Deandre J. Posey, Appellant,
United States, Appellee.
May 15, 2018
from the Superior Court of the District of Columbia
CF2-4464-15, Hon. Juliet J. McKenna, Trial Judge
Jennifer Williams, with whom Samia Fam and Shilpa S.
Satoskar, Public Defender Service, were on the brief, for
Patricia A. Heffernan, Assistant United States Attorney, with
whom Jessie K. Liu, United States Attorney, and Elizabeth
Trosman, Suzanne Grealy Curt, and Seth M. Gilmore, Assistant
United States Attorneys, were on the brief, for appellee.
Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge,
and Washington, Senior Judge.
Washington, Senior Judge
a hearing on his motion to suppress tangible evidence and a
stipulated bench trial, appellant Deandre J. Posey was
convicted of unlawful possession of a firearm and related
offenses. On appeal, Mr. Posey seeks reversal of his
convictions on the ground that the trial court erroneously
denied his motion to suppress a handgun that was found on his
person. He contends that the police lacked reasonable
articulable suspicion to conduct a
Terry stop, and therefore, his Fourth Amendment
rights were violated. For the reasons stated below, we agree
with Mr. Posey and reverse his convictions.
suppression hearing, the government presented the testimony
of Metropolitan Police Department Officer Michael Kasco.
Officer Kasco testified that he and his partner, Officer Ron
Orgel, received a radio run ("lookout") for a
robbery at gunpoint in the unit block of M Street N.W.
According to Officer Kasco, this first lookout contained a
description of the suspect, "a black male dressed in all
black." While responding to the scene, officers received
a second lookout reporting that "it was a group of black
males, and the group was last seen heading towards North
Officers Kasco and Orgel arrived on the unit block of M
Street, they saw "Sergeant Ritchie was already on the
scene with the complainant." The officers also observed
a group of five or more black males mostly dressed in black
jackets, on the same block as the complainant and their
sergeant, walking towards North Capitol Street. Officer Kasco
testified that "[i]t was a group that possibly may have
been involved with the robbery" but admitted that the
officers did not "know."
that the patrol was in a predominately African-American
neighborhood where groups "typically . . . just
scatter" from police, Officer Kasco drove to within
fifteen feet of the group that included Mr. Posey. The group
briefly stopped, turned, and looked at the marked police
cruiser. At the time they approached the group, nothing Mr.
Posey did drew any particular attention to him. Officer Kasco
testified that he did not observe Mr. Posey exchange anything
with other members of the group, make any motions toward or
to conceal his waistband, or do anything illegal. Officer
Kasco's attention turned from the group to Mr. Posey only
after Mr. Posey "took off running" and
"Officer Orgel immediately jumped out of the"
patrol car in pursuit.
thereafter Mr. Posey was apprehended and handcuffed by
Officer Orgel because the "lookout was for an armed
robbery with a gun." Officer Kasco then came up,
conducted a Terry pat down for safety, and found a
handgun in Mr. Posey's front waistband. Mr. Posey did not
resist and was not identified as the armed robber during a
subsequent show-up identification with the victim. According
to Officer Kasco, the entire encounter - from the time
officers drove up to the scene to the time the show-up
identification was conducted - took place within "[f]ive
to ten minutes" of the second lookout.
denying Mr. Posey's suppression motion, the trial court
admitted that it was a close question. First, the trial court
recognized that the description of the suspect was
"quite vague" and there was a valid concern
"about the ability of the police to act on such a
generalized description." It determined, however, that
the particular circumstances of this case were sufficient to
overcome such vagueness because Mr. Posey was located "a
block away, within five to ten minutes after the crime had
been reported." The trial court then found that Mr.
Posey was the only member of his group to flee when officers
arrived "in their marked squad car in full
uniform," without any "demonstration that it was
their intent to approach that group of individuals."
Based on these facts, the trial court made the
"difficult" determination that there was reasonable
articulable suspicion for the police to stop Mr. Posey on
suspicion of robbery.
the suppression hearing, Mr. Posey entered into a stipulation
agreement admitting to the facts related to the handgun found
on his person during the stop. As a result of the
stipulation, Mr. Posey was found guilty of four ...