Samuel D. Dozier, Appellant,
United States, Appellee.
October 6, 2016
from the Superior Court of the District of Columbia
(CF2-6040-14) (Hon. Robert E. Morin, Trial Judge)
Richard P. Goldberg for appellant.
Danielle M. Kudla, Assistant United States Attorney, with
whom Channing D. Phillips, United States Attorney at the time
the brief was filed, Elizabeth Trosman, Elizabeth H. Danello,
and Richard Barker, Assistant United States Attorneys, were
on the brief, for appellee.
Thompson and McLeese, Associate Judges, and Ruiz, Senior
seeks reversal of his conviction for one count of possession
of cocaine with intent to distribute. He argues that the
trial court erred in denying his motion to suppress the
plastic bags of cocaine and other evidence obtained as the
result of what he claims was an unlawful seizure.
Specifically, appellant contends that the trial court
incorrectly determined that the entirety of appellant's
encounter with the police was consensual and that he
voluntarily agreed to a pat-down that led to the eventual
discovery of the incriminating evidence. We conclude that
appellant had been seized within the meaning of the Fourth
Amendment by the time he complied with the officers'
request to put his hands against a wall so that the officers
could pat him down. As the officers did not have reasonable,
articulable suspicion to seize appellant, the pat-down was
conducted in violation of the Fourth Amendment. Because the
drugs and other evidence used to convict appellant were
fruits of that violation, the motion to suppress should have
been granted. Thus we reverse appellant's conviction and
remand for further proceedings consistent with this opinion.
Police Department (MPD) Officer Kristopher Smith presented
the government's evidence at the hearing on
appellant's motion to suppress and also testified at
trial. Officer Smith testified that on the night
of April 5, 2014, he and Officer Shannon Strange were
assigned to a foot patrol near the 6200 block of Dix Street,
N.E, an area "known for . . . soliciting prostitution
and drug activity." Officer Smith explained that his
"foot beat" was "concentrate[d] on a certain
area in the Sixth District for high visibility." Two
other MPD officers, Brittany Gerald and Richard Willis, gave
Officers Smith and Strange a ride in a marked police vehicle
to their assigned location. All four officers were in uniform
and armed. Around 8:45 p.m., from inside the police vehicle,
the officers observed appellant at the mouth of an alley on
the 6200 block of Dix Street, walking out of the alley with
another person.Officer Smith found it "odd [that
appellant] was dressed in all black clothing," and
"wanted to see what was going on during that time
period." There was no one else in the vicinity.
seeing appellant, the officers drove their police vehicle to
the alley. When the officers parked the vehicle,
blue position lights were on, illuminating it as a police
cruiser. Officer Smith testified that it was dark out, but
that the alley was well lit. Appellant, now alone, was ten to
fifteen feet inside the alley. Officers Smith and Strange got
out of the police vehicle, and from about twenty feet away,
Officer Strange asked appellant, "[h]ey, man, can I talk
to you?" Appellant did not respond and "kept on
walking." Both officers got closer, and when they were
five to ten feet away from appellant,  Officer Strange
again asked him, "hey, man, can I talk to you?"
Officer Smith testified that Officer Strange used a
"calm voice" when he asked to speak to appellant.
The second time he was asked, appellant replied, "yeah,
you can talk to me."
Smith asked appellant whether he had "any illegal
weapons on him." Appellant replied "no," and
also "lifted his jacket" to show "a clean
waistband." According to Officer Smith, "it was at
that point that [the officers] decided to conduct a
pat-down." Officer Strange then asked appellant
whether he could be patted down "for any weapons."
Appellant responded, "yes, you can check me."
Officer Strange asked appellant "voluntarily for his
safety to place his hands on the [alley] wall," and
appellant complied. Officer Strange began the pat-down, and
upon reaching appellant's left ankle, felt a
"bulge" inside appellant's sock that was
approximately the size of a crumpled up "ball of
money." Officer Strange asked appellant what the bulge
was. Officer Smith, who had "grabbed"
appellant's right arm, felt him "tense up,
" and signaled to Officers Gerald and
Willis, who were still in the police cruiser, to come over to
provide assistance. Appellant then "pushed off" of
the wall and ran away.
four officers gave chase for about a minute, over one to
one-and-a-half blocks. Appellant ran through the alley to a
nearby Valero gas station, where the officers apprehended
him. Officer Smith testified that when appellant reached the
gas station, he ran toward a nearby area that was enclosed by
a locked fence, and appellant had "nowhere to go."
He turned to face the officers who were upon him, removed an
item from his sock, and threw it over the fence. The officers
recovered a plastic bag from the opposite side of the fence.
It contained smaller plastic bags with a white rock-like
substance that was tested and proved to be cocaine.
was charged with one count of unlawful possession with intent
to distribute (PWID) cocaine, in violation of D.C. Code
§ 48-904.01(a)(1) (2001). He moved to suppress "all
tangible evidence allegedly recovered from his person,"
namely the drugs, as well as "[a]ll evidence of what was
observed" during the encounter, including his running
away from the officers and tossing an object over the fence.
After a hearing, the trial court denied appellant's
trial court concluded that Officer Smith was credible, and
that no other evidence contradicted his testimony. The court
found that, while the government offered "no
evidence" that appellant had "engaged in any kind
of criminal activity" when the officers initially
approached him in the alley, the officers did not need
justification to stop appellant because appellant's
initial encounter with the police was consensual. The court
determined that the government "established by a
preponderance of the evidence that the officers had not
engaged in any coercive or threatening behavior" - there
were no weapons drawn, no commands, but only a calm request -
and that appellant consented to be patted down. Stating that
Officer Smith had "attempted to grab [appellant's]
right arm" before appellant "broke free from both
officers and began to flee, " the court found that
appellant's encounter with the police was similar to the
one considered by the Supreme Court in California v.
Hodari D., 499 U.S. 621 (1991), and in our subsequent
cases holding that an unsuccessful attempt to detain a
suspect is not a seizure. The court denied the motion to
suppress, reasoning that at most there was an
"attempted" seizure when the officers discovered
the bulge in appellant's sock and that appellant
subsequently fled and abandoned the drugs.
three-day jury trial followed, after which appellant was
found guilty on the sole count of PWID and sentenced to
twenty months in prison to be followed by five years of
supervised probation. This timely appeal followed.
Fourth Amendment protects "the right of the people to be
secure in their persons, houses, papers and effects, against
unreasonable searches and seizures." U.S. Const. amend.
IV. A constitutionally permissible encounter between a police
officer and an individual can either be a "consensual
encounter, which do[es] not require any level of suspicion
prior to initiation"; an "investigative
detention, which if nonconsensual, must be supported by a
reasonable, articulable suspicion of criminal activity prior
to initiation"; or an "arrest, which must be
supported by probable cause prior to initiation."
Gordon v. United States, 120 A.3d 73, 78 (D.C. 2015)
(footnotes omitted). "Both investigative detentions and
arrests are seizures under the Fourth Amendment; mere
consensual encounters are not." Id. (footnotes
omitted). An encounter may begin consensually and, through
either "the officer's show of authority or some
other indication that the individual is not free to leave,
become a nonconsensual seizure" that requires
reasonable, articulable suspicion. Towles v. United
States, 115 A.3d 1222, 1228 (D.C. 2015).
determining whether a seizure occurred, this court analyzes
the totality of the circumstances to determine whether
"the police conduct would have communicated to a
reasonable person that the person was not free to decline the
officers' requests or otherwise terminate the
encounter." Florida v. Bostick, 501 U.S. 429,
439 (1991); see Hooks v. United States, 208 A.3d
741, 746 n.11 (D.C. 2019) ("Another formulation of the
test asks whether a reasonable person would have felt
'free to leave,' . . . but the protections of the
Fourth Amendment extend to situations where a citizen has no
desire to go elsewhere and instead simply wishes to decline
an encounter with the police."). The hypothetical
reasonable person is an innocent person. See
Bostick, 501 U.S. at 438. "Whether a seizure has
occurred for Fourth Amendment purposes is a question of law
which this court reviews de novo, deferring to the
trial court's factual findings, unless clearly
erroneous." Jackson v. United States, 805 A.2d
979, 985 (D.C. 2002). The trial court's determination
that an encounter was consensual is a legal conclusion that a
seizure did not occur, subject to de novo review.
See id. at 985-86; Sharp v. United States,
132 A.3d 161, 166 (D.C. 2016).
the government contends the person agreed to a pat-down, it
bears the burden to prove that "consent was, in fact,
freely and voluntarily given." Bumper v.
North Carolina, 391 U.S. 543, 548 (1968);
see (Valerie M.) Brown v. United
States, 983 A.2d 1023, 1027 (D.C. 2009). Whether an
individual gave consent is a factual finding that we review
for clear error. See In re J.M., 619 A.2d 497, 501
(D.C. 1992) (en banc). However, when "statements and
conduct evidencing consent to a search are given
contemporaneously with the illegal seizure, with no break in
the causal chain, the actions of the person seized are not
free from the taint of unlawful detention and are thus
insufficient to show consent." (Albert)
Jones v. United States, 154 A.3d 591, 598 n.20 (D.C.
2017) (quoting McGann v. Ne. Ill. Reg'l Commuter R.R.
Corp., 8 F.3d 1174, 1184 (7th Cir. 1993)); see Hicks
v. United States, 705 A.2d 636, 641 (D.C. 1997).
when physical or testimonial evidence is uncovered by an
illegal search or seizure, it must be suppressed as the
'fruit of the poisonous tree.'" Wilson v.
United States, 102 A.3d 751, 753 (D.C. 2014) (citation
omitted). "The test is whether the evidence
in question 'has been come at by exploitation of [the
primary] illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.'"
Id. (quoting Wong Sun v. United States, 371
U.S. 471, 488 (1963)). The government has the burden of
proving that "an intervening event or other attenuating
circumstance purged the taint of the initial illegality so as
to obviate suppression." Robinson v. United
States, 76 A.3d 329, 342 n.27 (D.C. 2013) (brackets,
citation, and internal quotation marks omitted).
government concedes that there was no reasonable, articulable
suspicion that appellant was engaging in criminal activity
when the officers saw him at the mouth of the alley and
decided to question him. Instead, the government contends that
the officers initially engaged appellant in a consensual
encounter that did "not require any level of suspicion
prior to initiation," Gordon, 120 A.3d at 78,
and that the interaction continued in the same vein, with
appellant voluntarily agreeing to the pat-down. In support,
the government argues that the officers did not say or do
anything to convey to appellant that he was not free to leave
or refuse the encounter; rather, they simply walked up, asked
a few questions in a "normal" tone of voice, and
did not take any action that amounted to a show of force or
that was otherwise intimidating.
disagree with the government's portrayal of
appellant's encounter with the police as entirely
consensual. Applying the well-established legal principles
outlined above in a totality-of-the-circumstances analysis,
we conclude that even assuming that the officers'
interaction with appellant began in a consensual manner,
there was a Fourth Amendment seizure by the time appellant
submitted to the officers' request to a pat-down. An
innocent person in appellant's situation, we believe,
would not have felt free to decline that request after he had
been approached by two uniformed and armed police officers
who engaged in repeated questioning and escalating requests,
culminating with a request to put his hands on the wall for a
pat-down, at a time when he was alone, at night, in a
secluded alley partially blocked by a police cruiser with two
additional officers standing by. "The message that a
suspect is not free to leave or terminate [an encounter] can
be conveyed, not necessarily intentionally, in ways less
obvious than actual physical force or [an] explicit
command." (Albert) Jones, 154 A.3d at
coming to this conclusion, we have reviewed our recent
analysis in (Albert) Jones. 154 A.3d at
594-98. In that case, two officers were on patrol in a marked
police car during the day in an area known for "a high
volume of drug sales." Id. at 593. While
driving through an alley they spotted Jones, who was walking
out of the alley, holding a Newport cigarette box in his
hand. Id. at 592-93, 595-96. As the officers passed
Jones, the officer driving the car rolled down his window and
casually greeted Jones. Id. at 593. The officer, who
was visibly armed and in uniform, then got out of the car,
and, noticing that Jones tried to hide the cigarette box
behind his back, asked Jones for his name, date of birth, and
address, which Jones provided. Id. The officer then
asked to see the cigarette box, which turned out to contain
contraband. Id. The officer used a cordial tone of
voice throughout and the encounter was short, lasting only a
minute or two. Id. at 595.
started our analysis by recognizing that when a "visibly
armed police officer in full uniform and tactical vest
emerges without warning from a police cruiser to interrupt a
person going about his private business," the encounter
is not "between equals." Id. at 595. In
addition, we noted that where "questioning is at least
implicitly accusatory (if not explicitly so), a reasonable
person's reaction is not only to show respect for the
officer's authority, but also to feel vulnerable and
apprehensive." Id. at 596. "In such an
atmosphere," we remarked, "a reasonable person who
can tell from the inquiries that the officer suspects him of
something, and who cannot know whether the officer thinks
there is sufficient reason to detain him, may well doubt that
the officer would allow him to avoid or terminate the
encounter and just walk away." Id. Although
these circumstances in Jones were not by themselves
sufficient to constitute a seizure, we went on to consider
two additional factors that, when combined with the
contextual circumstances, rendered the encounter with the
police a seizure within the meaning of the Fourth Amendment.
Jones's freedom of movement was limited because the
police vehicle was occupying the middle of a very narrow
alley and, when the officer stepped outside the car, he
partially obstructed Jones's way between the vehicle and
the alley wall. Id. Although it would have been
possible for Jones to squeeze past the officer or turn around
and leave the alley in the opposite direction, the
circumstances "substantially reduced the ease with which
[Jones] could have walked on or otherwise avoided the
encounter." Id. at 597. This helped "to
convey the message to a reasonable person in [Jones's]
position that he was not free to disregard the police and go
about his business." Id. Second, the officers
ran a check for outstanding arrest warrants, which would send
a strong signal to a reasonable innocent person that his
liberty would be restrained while the check was in progress.
Id. We concluded that, viewing the circumstances as
a whole, Jones's encounter with the police was a seizure
within the meaning of the Fourth Amendment. Id. at
(Albert) Jones, we begin our analysis in
this case by recognizing the apprehensiveness that would
naturally be felt by a person unexpectedly accosted by police
officers insistently asking questions in appellant's
situation. The setting in this case had several indicia that
made it particularly intimidating. As we commented in
(Albert) Jones, an encounter is "more
intimidating if the person is by himself, if more than one
officer is present, or if the encounter occurs in a location
that is secluded or out of public sight." Id.
at 597. Appellant's encounter occurred at night, in a
secluded alley where he was alone, and four officers were