Dozier v. United States, 15-CF-1098

• Citation: 220 A.3d 933
• Decision Date: 05 December 2019
• Docket Number: No. 15-CF-1098,15-CF-1098
• Parties: Samuel D. DOZIER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

220 A.3d 933

Samuel D. DOZIER, Appellant,

v.UNITED STATES, Appellee.

No. 15-CF-1098

District of Columbia Court of Appeals.

Argued October 6, 2016

Decided December 5, 2019

Richard P. Goldberg, Washington, DC, for appellant.

Danielle M. Kudla, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, Elizabeth Trosman, Elizabeth H. Danello, and Richard Barker, Assistant United States Attorneys, were on the brief, for appellee.

Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.

Concurring opinion by Associate Judge McLeese at page 948.

Ruiz, Senior Judge:

Appellant seeks reversal of his conviction for one count of possession of cocaine with intent to distribute. He argues that the trial court erred in denying his motion to suppress the plastic bags of cocaine and other evidence obtained as the result of what he claims was an unlawful seizure. Specifically, appellant contends that the trial court incorrectly determined that the entirety of appellant's encounter with the police was consensual and that he voluntarily agreed to a pat-down that led to the eventual discovery of the incriminating evidence. We conclude that appellant had been seized within the meaning of the Fourth Amendment by the time he complied with the officers' request to put his hands against a wall so that the officers could pat him down. As the officers did not have reasonable, articulable suspicion to seize appellant, the pat-down was conducted in violation of the Fourth Amendment. Because the drugs and other evidence used to convict appellant were fruits of that violation, the motion to suppress should have been granted. Thus we reverse appellant's conviction and remand for further proceedings consistent with this opinion.

I.

Metropolitan Police Department (MPD) Officer Kristopher Smith presented the government's evidence at the hearing on appellant's motion to suppress and also testified at trial.¹ Officer Smith testified that on the night of April 5, 2014, he and Officer Shannon Strange were assigned to a foot patrol near the 6200 block of Dix Street, N.E, an area "known for ... soliciting prostitution and drug activity." Officer Smith explained that his "foot beat" was "concentrate[d] on a certain area in the Sixth District for high visibility." Two other MPD officers, Brittany Gerald and Richard Willis, gave Officers Smith and Strange a ride in a marked police vehicle to their assigned location. All four officers were in uniform and armed. Around 8:45 p.m., from inside the police vehicle, the officers observed appellant at the mouth of an alley on the 6200 block of Dix Street, walking out of the alley with another person.² Officer Smith found it "odd [that appellant] was dressed in all black clothing," and "wanted to see what was going on during that time period." There was no one else in the vicinity.

Upon seeing appellant, the officers drove their police vehicle to the alley. When the officers parked the vehicle,³ its blue position lights were on, illuminating it as a police cruiser. Officer Smith testified that it was dark out, but that the alley was well lit. Appellant, now alone, was ten to fifteen feet inside the alley. Officers Smith and Strange got out of the police vehicle, and from about twenty feet away, Officer Strange asked appellant, "[h]ey, man, can I talk to you?" Appellant did not respond and "kept on walking." Both officers got closer, and when they were five to ten feet away from appellant,⁴ Officer Strange again asked him, "hey, man, can I talk to you?" Officer Smith testified that Officer Strange used a "calm voice" when he asked to speak to appellant. The second time he was asked, appellant replied, "yeah, you can talk to me."

Officer Smith asked appellant whether he had "any illegal weapons on him." Appellant replied "no," and also "lifted his jacket" to show "a clean waistband." According to Officer Smith, "it was at that point that [the officers] decided to conduct a pat-down."⁵ Officer Strange then asked appellant whether he could be patted down "for any weapons." Appellant responded, "yes, you can check me." Officer Strange asked appellant "voluntarily for his safety to place his hands on the [alley] wall," and appellant complied. Officer Strange began the pat-down, and upon reaching appellant's left ankle, felt a "bulge" inside appellant's sock that was approximately the size of a crumpled up "ball of money." Officer Strange asked appellant what the bulge was. Officer Smith, who had "grabbed" appellant's right arm, felt him "tense up,"⁶ and signaled to Officers Gerald and Willis, who were still in the police cruiser, to come over to provide assistance. Appellant then "pushed off" of the wall and ran away.

The four officers gave chase for about a minute, over one to one-and-a-half blocks. Appellant ran through the alley to a nearby Valero gas station, where the officers apprehended him. Officer Smith testified that when appellant reached the gas station, he ran toward a nearby area that was enclosed by a locked fence, and appellant had "nowhere to go." He turned to face the officers who were upon him, removed an item from his sock, and threw it over the fence. The officers recovered a plastic bag from the opposite side of the fence. It contained smaller plastic bags with a white rock-like substance that was tested and proved to be cocaine.

Appellant was charged with one count of unlawful possession with intent to distribute (PWID) cocaine, in violation of D.C. Code § 48-904.01(a)(1) (2001).⁷ He moved to suppress "all tangible evidence allegedly recovered from his person," namely the drugs, as well as "[a]ll evidence of what was observed" during the encounter, including his running away from the officers and tossing an object over the fence. After a hearing, the trial court denied appellant's motion.

The trial court concluded that Officer Smith was credible, and that no other evidence contradicted his testimony. The court found that, while the government offered "no evidence" that appellant had "engaged in any kind of criminal activity" when the officers initially approached him in the alley, the officers did not need justification to stop appellant because appellant's initial encounter with the police was consensual. The court determined that the government "established by a preponderance of the evidence that the officers had not engaged in any coercive or threatening behavior" — there were no weapons drawn, no commands, but only a calm request — and that appellant consented to be patted down.⁸ Stating that Officer Smith had "attempted to grab [appellant's] right arm" before appellant "broke free from both officers and began to flee,"⁹ the court found that appellant's encounter with the police was similar to the one considered by the Supreme Court in California v. Hodari D. , 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), and in our subsequent cases holding that an unsuccessful attempt to detain a suspect is not a seizure. The court denied the motion to suppress, reasoning that at most there was an "attempted" seizure when the officers discovered the bulge in appellant's sock and that appellant subsequently fled and abandoned the drugs.

A three-day jury trial followed, after which appellant was found guilty on the sole count of PWID and sentenced to twenty months in prison to be followed by five years of supervised probation. This timely appeal followed.

II.

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A constitutionally permissible encounter between a police officer and an individual can either be a "consensual encounter[ ], which do[es] not require any level of suspicion prior to initiation"; an "investigative detention[ ], which if nonconsensual, must be supported by a reasonable, articulable suspicion of criminal activity prior to initiation"; or an "arrest[ ], which must be supported by probable cause prior to initiation." Gordon v. United States , 120 A.3d 73, 78 (D.C. 2015) (footnotes omitted). "Both investigative detentions and arrests are seizures under the Fourth Amendment; mere consensual encounters are not." Id. (footnotes omitted). An encounter may begin consensually and, through either "the officer's show of authority or some other indication that the individual is not free to leave, become a nonconsensual seizure" that requires reasonable, articulable suspicion.

Towles v. United States , 115 A.3d 1222, 1228 (D.C. 2015).

In determining whether a seizure occurred, this court analyzes the totality of the circumstances to determine whether "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick , 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ; see Hooks v. United States , 208 A.3d 741, 746 n.11 (D.C. 2019) ("Another formulation of the test asks whether a reasonable person would have felt ‘free to leave,’ ... but the protections of the Fourth Amendment extend to situations where a citizen has no desire to go elsewhere and instead simply wishes to decline an encounter with the police."). The hypothetical reasonable person is an innocent person. See Bostick , 501 U.S. at 438, 111 S.Ct. 2382. "Whether a seizure has occurred for Fourth Amendment purposes is a question of law which this court reviews de novo , deferring to the trial court's factual findings, unless clearly erroneous." Jackson v. United States , 805 A.2d 979, 985 (D.C. 2002). The trial court's determination that an encounter was consensual is a legal conclusion that a seizure did not occur, subject to de novo review. See id. at 985-86 ; Sharp v. United States , 132 A.3d 161, 166 (D.C. 2016).

Where the government contends the person agreed to a pat-down, it bears the burden to prove...