529 F.3d 1119 (D.C. Cir. 2008), 04-3092, United States v. Askew

Docket Nº:04-3092.
Citation:529 F.3d 1119
Party Name:UNITED STATES of America, Appellee v. Paul ASKEW, Appellant.
Case Date:June 20, 2008
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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529 F.3d 1119 (D.C. Cir. 2008)

UNITED STATES of America, Appellee


Paul ASKEW, Appellant.

No. 04-3092.

United States Court of Appeals, District of Columbia Circuit.

June 20, 2008

Argued Oct. 11, 2007.

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Appeal from the United States District Court for the District of Columbia (No. 04cr00010-01).

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs were A.J. Kramer, Federal Public Defender, and Sharon R. Rice, Assistant Federal Public Defender.

Blair G. Brown , Jonathan E. Nuechterlein , and Sambhav N. Sankar were on the brief for amicus curiae National Association of Criminal Defense Lawyers in support of appellant.

Florence Y. Pan , Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III , Assistant U.S. Attorney.

Before: SENTELLE , Chief Judge, GINSBURG ,[*] HENDERSON , RANDOLPH , ROGERS , TATEL , GARLAND , BROWN , GRIFFITH , and KAVANAUGH , Circuit Judges, and EDWARDS , Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS, with whom Circuit Judges ROGERS , TATEL , and BROWN join, and with whom Circuit Judge GRIFFITH joins except as to Part III.D, and with whom Circuit Judges GINSBURG and GARLAND join as to Parts I, III.D, III. E, and IV.

Concurring opinion filed by Circuit Judge GRIFFITH , with whom Circuit Judges ROGERS and TATEL join, except as to footnote 2.

Dissenting opinion filed by Circuit Judge KAVANAUGH , with whom Chief Judge SENTELLE and Circuit Judges HENDERSON and RANDOLPH join.

EDWARDS , Senior Circuit Judge:

On the evening of December 19, 2003, police officers received a broadcast “lookout" for an armed robber. Appellant Paul Askew, who wore clothing similar, but not identical to that described in the lookout, was stopped. The police then conducted a Terry “frisk" which produced nothing. Some time after the frisk was completed, the police moved appellant to a place where he could be seen by the complaining witness. The officers' purpose was to determine whether the complainant could identify appellant as her assailant. The District Court's findings of fact indicate that appellant complied during the stop and was not handcuffed during the identification show-up. Preparatory to the show-up, but without appellant's consent, one of the officers attempted to unzip appellant's outer jacket to reveal to the complainant what appellant had on under the jacket. The officer's unfastening of the jacket was interrupted when the zipper hit a hard object at appellant's waist. Appellant then pushed the officer's hand away from his jacket. These latter events aroused the officer's suspicion, but the officer did nothing and the show-up continued. Although appellant was not implicated by the complaining

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witness, the police officers continued to detain him, walked him backwards towards a police vehicle, placed him on the hood of the car, and then fully unzipped his jacket. The officers found a gun in an open waist pouch and arrested appellant.

In April 2004, after the District Court denied his Fourth Amendment motion to suppress the Government's evidence, appellant entered a conditional guilty plea to a one-count indictment charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) . Appellant reserved his right to appeal the District Court's denial of his motion to suppress. See FED.R.CRIM.P. 11(a)(2) . On June 29, 2004, the District Court sentenced appellant to 36 months' imprisonment, followed by three years' supervised release. Gov't En Banc Br. at 2; Appellant En Banc Br. at 2.

On April 6, 2007, a divided panel of the court affirmed the District Court's denial of appellant's motion to suppress. On July 12, 2007, the panel's judgment was vacated and an order was issued granting appellant's petition for rehearing en banc. The order granting en banc review instructed the parties to address the following issue:

[W]hether during a Terry stop police officers may unzip a suspect's jacket solely to facilitate a show-up. In addressing this question, the parties should consider whether the officers' action was a lawful search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) , and its progeny.

United States v. Askew, No. 04-3092, Order Granting En Banc Review (D.C.Cir. July 12, 2007). The order made clear that the only issue before the en banc court was whether the first, partial unzipping was unlawful. There is no dispute that if the partial unzipping was unlawful, the discovery of the hard object at appellant's waist during that unzipping cannot justify the second full unzipping that yielded the gun.

On April 10, 2008, after oral arguments were heard by the en banc court, an order was issued instructing the parties to submit supplemental briefs addressing the following questions:

1. Assuming, arguendo, that it is not dispositive that the unzipping was a search, was the gun evidence nonetheless inadmissible as the product of steps taken to facilitate a show-up witness' identification, on a theory that there were not reasonable grounds for believing that unzipping the jacket would establish or negate the suspect's connection with the crime under investigation?

2. Was the gun evidence admissible as the product of a valid protective search, on a theory that regardless of the officer's subjective intent the initial unzipping was an objectively reasonable response to the suspect's conduct during the pat-down?

3. Was the gun evidence admissible under the doctrine of inevitable discovery, on a theory that the officers had not completed the pat-down but would have done so after the show-up?

United States v. Askew, No. 04-3092, Order (directing supplemental briefing) (D.C.Cir. Apr. 10, 2008).

As described in its opening brief, the Government submits that the principal question for this court is whether the police “violate[d] appellant's Fourth Amendment rights by partially unzipping [his] outer jacket during a show-up identification procedure, so that a robbery victim could see whether appellant's sweatshirt matched that of the robbery perpetrator." Gov't En Banc Br. at 13; see also id. at 22, 24. Applying

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Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) , and the precedent on which it rests, to the District Court's uncontested findings of fact, a five-judge plurality of this court concludes that the answer to this question is yes. Because the police officer's unzipping of appellant's jacket went beyond what was necessary to protect the investigating officers or others nearby, it amounted to precisely the sort of evidentiary search that is impermissible in the context of a Terry stop.

Even assuming, arguendo, that an unzipping to facilitate a show-up is permissible under some circumstances, a majority of the court is nonetheless satisfied that the police officer's actions cannot be justified here since there were no reasonable grounds for believing that the unzipping would establish or negate appellant's identification as the robber in question.1 A majority of the court is also satisfied that the Government's alternative argument, that the search of appellant can be justified as an objectively reasonable continuation of the protective frisk, is both contrary to the District Court's factual findings and unsupportable on any plausible reading of the record.

Finally, the Government concedes that “[t]he gun is not admissible under a theory of ‘inevitable discovery.’ " Gov't Supplemental Br. at 12. As the Government explains, it “did not make an inevitable-discovery argument before the district court, and thus failed to elicit" the testimony necessary to support such a theory under Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) . Gov't Supplemental Br. at 14. Moreover, the Government acknowledges that “[b]ecause the inevitable-discovery theory raises factual issues that could have been addressed at the suppression hearing but were not, [it does] not believe that [it is] in a position to request a remand for further development of the record." Id. at 15 n. 7.


Following completion of the hearing on appellant's suppression motion, the District Court set forth its factual findings in a published opinion. See United States v. Askew, 313 F.Supp.2d 1 (D.D.C.2004) . “[A]ppellate courts must constantly have in mind that their function is not to decide factual issues de novo. " Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quotation marks omitted). Thus, as the Government rightly points out, “[t]his court must accept the district court's findings of fact unless clearly erroneous." Gov't En Banc Br. at 15. This rule is firmly entrenched in Supreme Court precedent, see Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) , and in applying it we “overstep[ ] the bounds of [our] duty ... if [we] undertake[ ] to duplicate the role of the lower court," Bessemer City, 470 U.S. at 573, 105 S.Ct. 1504. This is especially so when, as here, the trial court is required to reconcile differences in testimony in order to make factual findings. See Mar. 26 Tr. at 29-31; see generally Bessemer City, 470 U.S. at 573-76, 105 S.Ct. 1504 .

Notably, neither party challenged the District Court's findings in this case. In fact, in its brief filed with the panel, the Government characterized the District Court's factual findings as “consistent with the government's evidence at...

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