United States v. Castle, 061416 FEDDC, 14-3073

Docket Nº:14-3073
Opinion Judge:Edwards, Senior Circuit Judge:
Party Name:United States of America, Appellee v. Harold Delonte Castle, Appellant
Attorney:Tony Axam Jr., Assistant Federal Public Defender, Office of the Federal Public Defender, argued the cause for Appellant. With him on the briefs was A.J. Kramer, Federal Public Defender. Ryan M. Malone, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Vincent H. C...
Judge Panel:Before: Millett, Circuit Judge, and Edwards and Silberman, Senior Circuit Judges. SILBERMAN, Senior Circuit Judge, dissenting:
Case Date:June 14, 2016
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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United States of America, Appellee

v.

Harold Delonte Castle, Appellant

No. 14-3073

United States Court of Appeals, District of Columbia Circuit

June 14, 2016

Argued February 19, 2016

Appeal from the United States District Court for the District of Columbia (No. 1:14-cr-00067-1)

Tony Axam Jr., Assistant Federal Public Defender, Office of the Federal Public Defender, argued the cause for Appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.

Ryan M. Malone, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Vincent H. Cohen Jr., Acting U.S. Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Todd W. Gee, Assistant U.S. Attorneys.

Before: Millett, Circuit Judge, and Edwards and Silberman, Senior Circuit Judges.

OPINION

Edwards, Senior Circuit Judge:

On March 25, 2014, Appellant Harold Castle was charged, in a one-count indictment, with possession with intent to distribute 100 grams or more of a mixture containing a detectable amount of phencyclidine ("PCP"), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iv). The charge was based on physical evidence and a statement obtained as a result of Appellant's warrantless seizure on the evening of February 24, 2014. Prior to trial, Appellant filed a motion to suppress the evidence, arguing that he was stopped by police officers without reasonable, articulable suspicion in violation of the Fourth Amendment. After a hearing, the District Court denied the motion. A jury found Appellant guilty of the lesser-included offense of possession with intent to distribute a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). On October 21, 2014, the District Court sentenced Appellant to 65 months imprisonment to be followed by six years of supervised release. Appellant now appeals the denial of his suppression motion.

I. INTRODUCTION

The District Court found that, on the evening in question, the seizing officers were on patrol in an unmarked pickup truck. The officers turned onto Yuma Street (a residential block in southeast Washington, D.C.) and saw Appellant walking quickly from the direction of an apartment complex outside of which PCP was known to be sold and toward an alleyway next to a house across the street. The alley led to a vacant yard. The District Court also found that, after they pulled up in front of the house, the officers saw Appellant lean over near a U-Haul truck parked in the yard.

The District Court additionally credited the officers' testimony that they patrolled the area so regularly that "people in the neighborhood" had come to recognize their unmarked truck as a police vehicle, to expect such patrols, and to act as "lookouts." On the basis of these generalized findings regarding "the neighborhood, " the District Court concluded that it was "not unreasonable for the officers to believe [Appellant] knew or suspected their vehicle was a police vehicle." Consequently, the District Court found that it also was not unreasonable for the officers to believe that Appellant was walking quickly in order to evade them and that he leaned over near the U-Haul in response to their presence. Finally, the District Court found that when the officers approached Appellant as he walked out of the backyard area, they recognized him from several prior seizures that had occurred some six to nine months earlier. Based on the totality of the foregoing findings of historical fact and inferences from those facts, the District Court concluded that the officers had reasonable, articulable suspicion that Appellant had just committed or was about to commit a criminal offense when they seized him. We disagree.

"Under the Fourth Amendment our society does not allow police officers to 'round up the usual suspects.'" United States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006). An officer relying on his or her "knowledge of [an individual's] criminal record" is "required to pair" that knowledge with "'concrete factors' to demonstrate that there [is] a reasonable suspicion of current criminal activity." United States v. Foster, 634 F.3d 243, 247 (4th Cir. 2011) (emphasis added) (citation omitted). In other words, knowledge of an "individual's criminal history" can "corroborate[], " but not substitute for "objective indications of ongoing criminality." United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006).

The law also makes clear what is eminently logical. In order to find that a person is evading the police, there must be evidence that the person has knowledge of a police presence. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Similarly, in the context of a reasonable, articulable suspicion analysis, "furtive gestures 'are significant only if they were undertaken in response to police presence.'" United States v. Brown, 334 F.3d 1161, 1168 (D.C. Cir. 2003) (quoting United States v. Edmonds, 240 F.3d 55, 61 (D.C. Cir. 2001) (quoting United States v. Johnson, 212 F.3d 1313, 1316 (D.C. Cir. 2000))). In both instances, the putatively evasive or furtive conduct cannot provide the necessary evidence of knowledge of a police presence. There must be independent evidence from which that knowledge can be inferred. See Wardlow, 528 U.S. at 124; Brown, 334 F.3d at 1168; Edmonds, 240 F.3d at 57, 61-62; Johnson, 212 F.3d at 1316-17.

As we explain more fully below, there is no such evidence here. Certainly the officers' assumption that Appellant knew of the presence of their truck on the evening in question gains no support from general knowledge in the neighborhood that the truck was a police vehicle. The ability of neighborhood people to recognize the truck as a police vehicle cannot support an inference that Appellant had knowledge of the presence of that known police vehicle on the evening he was stopped. And the record is entirely devoid of any evidence from which a reasonable officer could infer that Appellant knew of the truck's (and therefore the officers') presence before he was stopped. There is, for example, no testimony that Appellant so much as glanced in the direction of the officers' truck at any point after the officers turned onto Yuma Street. Nor is there evidence that Appellant was ever in close proximity to the truck. Neither did the officers testify that anyone else in the neighborhood alerted Appellant or that a "lookout" set off a general alarm that a known police vehicle was on the block. In other words, the officers' critical assumption of knowledge was based on nothing.

It is therefore clear that the Government failed to carry its burden of demonstrating that the actions of Appellant on the evening in question amounted to "concrete factors" or "objective indications" that he had just committed or was about to commit a criminal offense. Walking quickly on a very cold evening is commonplace, not suspicious, activity. So, too, is walking into an alleyway, leaning over, and walking out. These actions are entirely mundane. The fact that they took place in a residential neighborhood plagued by drug use did not allow the police officers to ignore the dictates of the Fourth Amendment. See United States v. Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997) (prior conviction "for a narcotics offense" and presence "in a neighborhood with a high incidence of drug traffic, " without "(other) particularized evidence that indicates criminal activity is afoot, " is insufficient to demonstrate reasonable, articulable suspicion).

Under Ornelas v. United States, 517 U.S. 690 (1996), we give "due weight" to a District Court's determination of the reasonableness of inferences drawn by police officers from historical facts. Id. at 700. In assessing this determination, however, we are obliged to adhere to the Supreme Court's admonition that "due weight must be given, not to [an officer's] inchoate and unparticularized suspicion or 'hunch, ' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry v. Ohio, 392 U.S. 1, 27 (1968). As we explain below, because the District Court's determination that the officers' inference that Appellant was aware of their presence had no basis in the factual record, it is entitled to no weight. We therefore reverse.

II. Background

The events giving rise to Appellant's seizure took place on February 24, 2014, in the 100 block of Yuma Street, Southeast, Washington, D.C. This long block, which begins at First Street on the west and terminates in a cul-de-sac on the east, consists of a mix of small apartment buildings and single family homes.

At approximately 6:30 p.m. on a very cold evening, Metropolitan Police Department Officers Olszak and Moseley were patrolling in an undercover police vehicle – an...

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