Crews v. United States
| Decision Date | 10 November 2021 |
| Docket Number | No. 19-CF-346,19-CF-346 |
| Citation | 263 A.3d 128 |
| Parties | Harry A. CREWS, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Mindy A. Daniels for appellant.
David P. Saybolt, Assistant United States Attorney, with whom Timothy J. Shea, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Ariel Dean, Assistant United States Attorneys, were on the brief, for appellee.
Before Blackburne-Rigsby, Chief Judge, Thompson,* Associate Judge, and Ferren, Senior Judge.
Appellant Harry Crews appeals the denial of his motion to suppress a handgun recovered from his person and seeks correction of his sentence. Following a jury trial, appellant was convicted of carrying a pistol without a license ("CPWL") outside his home or place of business; possession of an unregistered firearm; and unlawful possession of ammunition.1 Appellant argues that the trial court incorrectly determined the point of seizure and that he was unlawfully seized by Metropolitan Police Department ("MPD") officers while on the landing to his apartment as he tried to unlock his apartment door. Appellant also requests that this court review his Judgment and Commitment Order, which reflects a felony CPWL conviction even though, the jury was only instructed with the elements of misdemeanor CPWL.
We vacate the trial court's denial of the motion to suppress and remand the case for further findings as to whether (1) there was a show of authority by officers and, relatedly, (2) appellant submitted to a show of authority. In addition, we ask the trial court to clarify whether (and, if so, when) the officers had reasonable articulable suspicion to conduct an investigatory stop prior to the frisk. We do not reach the issue relating to the Judgment and Commitment Order.
On February 4, 2019, the trial court held a pretrial evidentiary hearing to address appellant's motion to suppress a pistol recovered by MPD. After hearing testimony from the sole witness, MPD Officer Jendy Olivo, the trial court denied appellant's motion to suppress, crediting the officer's testimony with respect to what happened and what he personally observed. Officer Olivo testified that he is a patrol officer for the Seventh District with specialized training in recognizing characteristics associated with armed gunmen. Officer Olivo described the neighborhood around the 1500 block of Eaton Road S.E. as a place leading to the 2600 block of Burnie Place, an area known to officers for continuous drug and gun related arrests.
Officer Olivo testified that around midnight on April 5, 2018, he along with two other officers, Officers Labun and Gramieri, all dressed in full uniform, were patrolling the 1500 block of Eaton Road in their marked squad car. Officer Olivo was in the backseat of the vehicle, Officer Gramieri was driving, and Officer Labun was in the front passenger seat. As Officer Olivo was unable to see from the back seat, the other officers informed him that as appellant was exiting his car and saw the police vehicle approaching, he turned the front of his body into and pressed it against his vehicle. The officers found this turning away unusual. Officer Olivo explained that "for individuals to press their body against a vehicle" is "common upon seeing police officer[s,] to avoid officers being able to see any unusual bulges or objects weighing down their center area or like jackets."
Officer Olivo further testified that after passing the appellant, Officer Gramieri turned the police vehicle around and drove back to the location where appellant was last seen. Officer Olivo exited the police vehicle and began canvassing the area around appellant's vehicle, eventually entering a fenced area with a red building. Upon entering the fenced area, Officer Olivo testified that he saw exterior stairs leading to a covered upper-level landing which was surrounded by railing and led to the door of appellant's apartment. The landing was at a second-floor level and had no other access points.
Officer Olivo was at the bottom of the stairs when he saw appellant standing on the upper landing. Due to very poor lighting, Officer Olivo shined his flashlight at appellant and said, "Hey what's up, can I talk to you real quick?" As Officer Olivo moved closer towards appellant, he testified that he could see appellant become nervous and try several times to hurriedly put his key into the keyhole of the apartment door to open it.
Officer Olivo stated he made his way up the stairs towards appellant. Noticing appellant's hurried and nervous state, Officer Olivo testified that he then said to appellant "no, I need to talk to you" in a more persistent tone.2 In addition, Officer Olivo's body worn camera captured appellant responding to the officer, the clearest statement being, "For what?" Also, appellant momentarily paused his attempt to unlock his apartment door. When Officer Olivo was about three to four stairs away from appellant, he began asking if appellant had any weapons, but was interrupted when appellant turned to face him. Officer Olivo testified that he then saw an L-shaped weighted object in the front pocket of appellant's pull over hoodie. He then sprinted up the short distance up the stairs and bear hugged appellant to prevent access to the L-shaped weighted object, which he suspected was a firearm. While being bear hugged, appellant stated that he lived there (which was verified after appellant was taken to the police station).
According to Officer Olivo, Officers Labun and Gramieri followed closely behind him through the gate, also with their flashlights on. Officer Olivo testified that within five seconds of his bear-hugging appellant, Officer Gramieri helped secure appellant and Officer Labun conducted the pat down, and the object was removed from the pocket and discovered to be a firearm. After the firearm was recovered and the officers were waiting for back-up to arrive, Officer Olivio testified that appellant stated,
In denying appellant's motion to suppress the recovered firearm on Fourth Amendment grounds, the trial court concluded that (1) the observation of appellant leaning into his car as the police vehicle passed did not give police reasonable articulable suspicion, but was something that caused officers to further investigate; however, the trial court further concluded that (2) once Officer Olivo was on the landing in front of appellant's apartment and saw the L-shaped weighted object in the front pocket of appellant's hoodie, which Officer Olivo believed to be a gun, there was reasonable articulable suspicion justifying a Terry frisk. Therefore, the trial court concluded that Officer Labun's subsequent frisk of appellant was lawfully conducted, and the recovered firearm admissible.
However, the trial court was concerned with whether an officer has a "right to go on to somebody's else's property that [is] fenced" without reasonable articulable suspicion or if it is permissible to go beyond the fence to initiate a citizen contact. The trial court found that: (1) the fence around the building was see-through; (2) the gates were open; (3) there were two entrances to two different apartments; (4) each entrance had its own steps leading to it; (5) and the steps leading to the landing had an overhead cover. The trial court presumed the steps were curtilage and that Officer Olivo entered the curtilage. However, recognizing Florida v. Jardines , the trial court held that in the absence of signage prohibiting entrants beyond the open gate, Officer Olivo did not act beyond what a private citizen may do. 569 U.S. 1, 8, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ().
The trial court concluded that Officer Olivo was legally on the property, including the stairs, because there was no "unlicensed intrusion," or use of any "unlicensed physical intrusion." See Jardines , 569 U.S. at 7-8, 133 S.Ct. 1409 (). The trial court reaffirmed its conclusion that Officer Olivo did not have reasonable articulable suspicion when he initially entered up the stairs. However, the court found that Officer Olivo's physical intrusion — the bear hug upon appellant — was licensed, legal, and permitted the moment he observed the L-shaped weighted object in appellant's front pocket, which established reasonable articulable suspicion to then conduct a Terry frisk. Officer Olivo's bear hug, conducted for his own safety to prevent appellant from reaching for the suspected weapon, was therefore a lawful action preceding the frisk, said the court. Therefore, the trial court issued its final denial of appellant's motion to suppress.
The relevant Fourth Amendment evidence presented at trial mirrored the evidence presented at the motion to suppress hearing. The only additional evidence admitted at trial, relevant to our review, pertains to the Judgment and Commitment Order, which reflects a felony CPWL conviction and requires proof beyond a reasonable doubt that appellant carried the weapon "in a place other than the person's dwelling place" or "on other land possessed by the person." D.C. Code § 22-4504(a)(1). Throughout the presentation of the case the jury was presented with the elements for misdemeanor CPWL, which does not require the aforementioned element of proof that was put forward. See ...
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