Samuel D. DOZIER, Appellant,
UNITED STATES, Appellee.
October 6, 2016
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the Superior Court of the District of Columbia
(CF2-6040-14), (Hon. Juliet J. McKenna, Trial Judge)
P. Goldberg, Washington, DC, for appellant.
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
opinion by Associate Judge McLeese at page 948.
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 appellants
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 appellants conviction and
remand for further proceedings consistent with this opinion.
Police Department (MPD) Officer Kristopher Smith presented
the governments evidence at the hearing on appellants
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
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 appellants left ankle, felt a
"bulge" inside appellants 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" appellants
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 appellants motion.
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 appellants 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 [appellants] right arm" before
appellant "broke free from both officers and began to
flee," the court found that appellants
encounter with the police was similar to the one considered
by the Supreme Court in California v. Hodari D., 499
U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (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 appellants 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 ...