240 F.3d 55 (D.C. Cir. 2001), 00-3039, United States v. Edmonds

Docket Nº:00-3039
Citation:240 F.3d 55
Party Name:United States of America, Appellee v. Brad K. Edmonds, Appellant
Case Date:February 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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240 F.3d 55 (D.C. Cir. 2001)

United States of America, Appellee

v.

Brad K. Edmonds, Appellant

No. 00-3039

United States Court of Appeals, District of Columbia Circuit

February 27, 2001

Argued January 22, 2001

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Appeal from the United States District Court for the District of Columbia (No. 99cr00207-01)

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Teresa Alva, Assistant Federal Public Defender, entered an appearance.

Suzanne Grealy Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr. and Adam L. Rosman, Assistant U.S. Attorneys.

Before: Williams, Ginsburg and Sentelle, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge:

Based on evidence that police officers discovered during a Terry stop and subsequent searches, appellant Brad K. Edmonds was convicted of possessing cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860(a). Edmonds appeals that conviction, arguing that the evidence introduced against him was obtained in violation of the Fourth Amendment's guarantee against unreasonable searches and seizures. Because we conclude that, considering the totality of the circumstances, the police officer reasonably suspected that appellant was engaged in criminal activity, we hold that he obtained the evidence lawfully. However, the United States introduced no evidence that the school near which appellant was arrested was one of the specific types of schools enumerated in the statute, and we therefore vacate his conviction and remand with instructions that his conviction for a lesser included offense be reinstated.

I. BACKGROUND

A. Factual background

In the early evening of May 24, 1999, a group of Washington Metropolitan Police Department officers was patrolling the

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4600 block of Livingston Road, SE in Washington, DC. The officers included Sergeant Bruce Feirson, a 21-year veteran who had worked in that neighborhood intermittently for some 14 years. Livingston Road is notorious as one of the many "open air drug markets" infesting the nation's capital and is additionally, in Feirson's words, home to "a series of murders" and the site of "hundreds of arrests and hundreds of incidents, violent incidents." Transcript of Motions Hearing at 6 ("Motion Tr.").

On that particular day, Feirson and his companions were dressed in plainclothes and driving an unmarked car. But according to his testimony, their vehicle--a black Crown Victoria--is regularly used to patrol the neighborhood and is easily identifiable by residents as a police cruiser. As the officers made their way down Livingston Road, Feirson observed a man (later identified as Antonio McFadden) standing on the curb. When McFadden noticed the Crown Victoria, "his eyes got pretty big, and he immediately pivoted, turned away and he began to walk"--rapidly--towards a van located in the parking lot of the nearby Patricia Harris school. Id. at 9. McFadden entered the van and seated himself in the front passenger's seat. Appellant Edmonds occupied the driver's seat.

McFadden had left the curb, Feirson believed, because he had recognized him and his companions as police officers. The sergeant's suspicions were further aroused because, he testified, "it is not proper for--it would be illegal for cars to be on school property after hours unless they have some business at the school." Id. at 48. Moreover, the parking lot to which McFadden retreated is well-known to officers as the location of numerous drug transactions.

Sergeant Feirson decided to investigate. Exiting the Crown Victoria, he approached Edmonds's van through the parking lot with his police badge prominently hanging from his neck. Id. at 21. Feirson could see both Edmonds and McFadden through the van's windshield. As he drew nearer, Edmonds began to make furtive movements: He "lean[ed] forward in the vehicle, move[d] about in the car, and then s[a]t upright, straight back upright in the vehicle." Id. at 11. Feirson believed that Edmonds was attempting to hide something--he particularly suspected a weapon or drugs--under the driver's seat.

After reaching the driver's-side door of the van, Feirson asked Edmonds to show him his driver's license and vehicle registration. Edmonds appeared to Feirson to be "extremely nervous," as he was fidgeting in his seat and rapidly blinking his eyes. Id. at 11-12. When he failed to produce his registration, Feirson asked him to step out of the van. Edmonds did so--and promptly began sprinting away. As he fled, one of Sergeant Feirson's fellow officers spotted a pistol lying in plain view on the van's floorboard, and shouted out "gun" or "he has got a gun." Id. at 13.

Feirson, who after catching Edmonds by the waistband of his pants was dragged several feet, finally tackled him with the assistance of another officer. Because he noticed "a bulge in Mr. Edmonds' left-front-pants pocket" and consequently believed that he was armed, id., Feirson conducted a pat-down search that yielded 40 ziploc bags of crack cocaine and a fully loaded 9mm clip. Officers also recovered a fully loaded 9mm pistol "sticking out" from underneath the van's driver's seat. Id. at 16.

B. Procedural background

Edmonds stood trial on a five-count indictment, charging him with: (1) unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g); (2) unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g); (3) unlawful possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); (4) unlawful

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possession with intent to distribute cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860(a); and (5) carrying and possessing a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1).

Before trial, Edmonds moved to suppress the evidence on the grounds that it had been seized during an unconstitutional search. The United States District Court for the District of Columbia heard Edmonds's motion on September 2, 1999, and several days later denied it, concluding that the officers' stop of Edmonds was supported by a reasonable suspicion and hence was justified under Terry v. Ohio, 392 U.S. 1 (1968). The court found, as a general matter, that the testimony of Sergeant Feirson, who was the United States' principal witness, was credible. It also found that neighborhood residents could easily identify the officers' unmarked Crown Victoria as a police cruiser. See Transcript of Pretrial and Voir Dire, 9/13/99, at 15 ("9/13/99 Tr.").

The court concluded that Edmonds was "seized" within the meaning of the Fourth Amendment at the moment Feirson asked him for his license and registration. See id. at 17. It further held that the seizure was a reasonable one. Considering the totality of the circumstances, it was reasonable for an experienced police officer to have suspected that criminal activity was afoot when (1) he was patrolling a neighborhood known for drug trafficking; (2) a man observed him and then fled to a parked van; (3) the van was parked in a school parking lot after school hours; and (4) another person in the van made "furtive gestures" while the officer approached him. See id. at 15-17. Because the initial seizure was lawful, the court held, Feirson was entitled to order Edmonds to exit the van after he failed to produce his vehicle registration. And the officers had probable cause to arrest Edmonds, and to conduct a search incident to arrest, because they discovered a gun lying in plain view of the floor of the van. See id. at 2021. All evidence therefore was deemed admissible.

Edmonds's trial commenced on September 13, 1999. On September 20, the jury returned a guilty verdict on counts three and four (possessing and intending to distribute cocaine base, and possessing and intending to distribute within 1,000 feet of a school, respectively). Because the jury was unable to reach a verdict on counts one, two, and five, the court declared a mistrial as to those counts. At the close of the evidence, Edmonds had moved for judgment of acquittal on count four, arguing that the government had not proved that the school near which he was arrested was one of the types enumerated in 21 U.S.C. § 860(a). See Transcript of Testimony, 9/15/99, at 170, 196. His motion was denied but, on March 7, 2000, the court vacated his conviction under count three, finding that it was a lesser, included offense of count four. The court then sentenced Edmonds to a 60-month jail term, from which he now appeals.

II. DISCUSSION

Edmonds's appeal presents two issues, but only one of them is contested: whether a police officer has a reasonable suspicion sufficient to support a Terry stop when (1) he is patrolling a neighborhood known for narcotics trafficking; (2) a man observes him, flees, and enters a van in which the suspect is seated; (3) the van is parked in a school parking lot--where drugs often are sold--after school hours; and (4) the suspect makes "furtive gestures," apparently attempting to conceal an item under the driver's seat, while the officer approaches the van. As to the second issue, whether a defendant can be convicted of violating 21 U.S.C. § 860(a), which criminalizes the distribution of drugs within 1,000 feet of, among others, "a public or private elementary, vocational, or secondary school," when the government fails to introduce any evidence that the school near which he was arrested was one of the

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specific types of schools enumerated in the statute, the parties are in accord. Edmonds's conviction on count four must be vacated and his case remanded with instructions that his...

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