U.S. v. Holmes, 05-3171.

Decision Date23 October 2007
Docket NumberNo. 05-3171.,05-3171.
Citation505 F.3d 1288
PartiesUNITED STATES of America, Appellee v. Ronnell D. HOLMES, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia, (No. 05cr00094-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jafee, Assistant Federal Public Defender, entered an appearance.

Stratton C. Strand, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Elizabeth Trosman, and Elizabeth Gabriel, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and SENTELLE and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Appellant Ronnell Holmes was found guilty at a jury trial in the U.S. District Court for the District of Columbia for possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Holmes appeals his conviction contending that the district court erroneously denied his motion to suppress evidence of the firearm and ammunition. He argues that police officers discovered the evidence as a result of an illegal seizure of his car keys during a Terry stop. We agree. For the reasons set forth below, we reverse the judgment of conviction.

I. BACKGROUND

At approximately 3:40 a.m. on February 13, 2005, Metropolitan Police Department officers John Delaroderie and Steven Greene observed Holmes standing "very close" to a woman in an alley in an area known for drug dealing and prostitution. Upon seeing the police vehicle and Officer Delaroderie observing them from inside the cruiser, Holmes and the unidentified woman immediately ran away in different directions. Given the couple's suspicious behavior, combined with the early hour and the location, Delaroderie exited his vehicle and chased Holmes, who hurdled several residential fences in his attempt to elude the pursuing officer.

When Delaroderie finally caught Holmes, he told him to turn around and put his hands on a fence. At that point, Officer Greene arrived in the police cruiser and proceeded to pat Holmes down "to make sure there w[ere] no knives or guns on him for [the officers'] own safety." During the patdown, Greene noticed a package of cigarette rolling papers protruding from Holmes's front pants pocket, and felt a set of keys and a wallet in Holmes's pockets. Officer Greene removed the keys and wallet and decided to handcuff Holmes due to the flight risk he posed.

The officers began questioning Holmes about why he had fled when he saw the police cruiser, and Holmes responded that it was because he had been soliciting oral sex in the alley. Officer Delaroderie then began filling out a police contact form, which required Holmes's general information, including his name and address. Since the officers had already removed Holmes's wallet, Delaroderie used Holmes's Maryland driver's license to fill out the form. After learning Holmes's identity, the officers called in Holmes's information for a warrant check. The check returned negative for outstanding warrants but revealed that Holmes was on parole. On further questioning about his parole status, Holmes revealed to the officers that he had an earlier conviction for a drug offense.

When questioned about how he happened to be in the District that night given his Maryland residence, Holmes first told the officers that he had taken a Metro train into town. Disbelieving his answer due to the time of night, the officers again posed the same question, at which point Holmes stated that a friend had dropped him off. Officer Greene then asked Holmes why he had car keys with him, at which point Holmes admitted he had driven himself into the District that night. The officers asked him where his car was parked, and after first telling them it was parked a few blocks away, he admitted that it was parked just around the corner.

With Holmes's car keys in hand, Officer Greene walked to the street and used the remote opener on the keychain to identify Holmes's Acura, which lit up when Greene pressed the unlock button within transmitter range. Officer Greene returned to where Holmes and Officer Delaroderie were standing and reported that he had found the car. The officers then asked Holmes, still handcuffed, if he would sign a consent-to-search form to allow them to search his car. Officer Greene told Holmes they wanted to search his car because they were concerned that he had drugs inside. The officers also commented to Holmes that they felt they already had authority to arrest him for possessing the cigarette rolling papers.

The officers explained to Holmes that his decision to consent to the search was entirely voluntary and that he could refuse; Officer Greene actually read the consent form to Holmes, who agreed to sign it. The officers had to release one of Holmes's hands from the cuffs so he could sign the consent form. Holmes was present at the vehicle when Officer Greene searched it, and specifically requested that Greene not touch the driver's seat's electrical controls, explaining that they were set for his wife. When Greene bent down to look under that seat, he discovered a 9mm Ruger P89 pistol. The officers then placed Holmes under arrest for carrying a pistol without a license and for possession of drug paraphernalia. Holmes was ultimately indicted only for unlawful possession of a firearm and ammunition by a felon.

Prior to trial, Holmes moved to suppress evidence of the pistol seized from his car. While Holmes conceded that the Terry stop and frisk were proper under the circumstances, he challenged, among other things, Officer Greene's removal of his keys and wallet during the Terry patdown and argued that his eventual consent to the search of his vehicle was involuntary.

When the district court considered Holmes's argument that the police had seized his car keys illegally and that this seizure had led directly to the discovery of incriminating evidence in his vehicle, the court reasoned that whether Officer Greene had felt the keys while they remained in Holmes's pocket or taken them out was immaterial to Greene's line of questioning about how Holmes had come to the area. The court reasoned that the officers' feeling Holmes's keys in his pocket during the patdown — not the seizure of Holmes's keys — had led to discovery of the vehicle, so the officers' seizure of Holmes's keys did not lead to the discovery of the pistol inside.

Holmes also argued that his consent to search the vehicle was not obtained freely since he was still in handcuffs and was obviously not free to leave when the officers obtained his written consent to search. Based on the signed consent form and the police officers' credible testimony that they did not use force, coercion or threats during Holmes's apprehension and detention, the district court reasoned that Holmes's consent to search was voluntary.

The district court denied each of Holmes's grounds for suppression and ruled the weapon admissible into evidence. A jury found Holmes guilty of one count of possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On September 23, 2005, the district court sentenced Holmes to 102 months in prison, followed by three years of supervised release. Holmes now appeals the district court's denial of his suppression motion.

II. ANALYSIS

We consider a district court's legal rulings on a suppression motion de novo and review its factual findings for clear error giving "due weight to inferences drawn from those facts" and its determination of witness credibility. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Brown, 334 F.3d 1161, 1164 (D.C.Cir.2003).

To prevail on a motion to suppress evidence as the fruit of a Fourth Amendment violation, a defendant must first establish that the search or seizure was illegal. See Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.2000). That is not at issue in this case. The government now concedes, as Holmes had argued at the suppression hearing, that the police officers exceeded the permissible scope of a protective frisk authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), by seizing appellant's keys from inside his pocket. We agree that police seizure of items that are neither weapons nor apparent contraband during a Terry patdown exceeds that doctrine's limited exception to the Fourth Amendment's prohibition on warrantless searches and seizures. In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the Supreme Court explained that for a Terry patdown to survive constitutional scrutiny, it must be "strictly `limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.'" Id. at 373, 113 S.Ct. 2130 (quoting Terry, 392 U.S. at 26, 88 S.Ct. 1868). It is true that an officer conducting a legitimate Terry stop who "discover[s] contraband other than weapons . . . cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression." Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). But there is no claim here that the keys constituted contraband, and the officer had no right to take them from Holmes's pocket during the patdown.

Next, the defendant must make a prima facie showing of a causal nexus between the Fourth Amendment violation and the evidence he seeks to suppress. See United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). In this case, Holmes has met his burden of showing that, but for the...

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