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Dozier v. United States

Court of Appeals of The District of Columbia

December 5, 2019

Samuel D. Dozier, Appellant,
v.
United States, Appellee.

          Argued October 6, 2016

          Appeal 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.

          Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.

          OPINION

          RUIZ, JUDGE

         Appellant 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.

         I.

         Metropolitan 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.[1] 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.[2]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.

         Upon seeing appellant, the officers drove their police vehicle to the alley. When the officers parked the vehicle, [3] its 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, [4] 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."

         Officer 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."[5] 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, "[6] 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.

         The 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.

         Appellant 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).[7] 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 motion.

         The 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.[8] Stating that Officer Smith had "attempted to grab [appellant's] right arm" before appellant "broke free from both officers and began to flee, "[9] 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.

         A 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.

         II.

         The 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).

         In 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).

         Where 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).

         "Generally, 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).[10] "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).

         III.

         The 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.[11] 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.

         We 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 595.

         In 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.

         We 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. See id.

         First, 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 598.

         As in (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 ...


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