Ellison v. United States, No. 19-CF-462
| Decision Date | 01 October 2020 |
| Docket Number | No. 19-CF-462 |
| Citation | 238 A.3d 944 |
| Parties | Rashad ELLISON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Richard Seligman was on the brief for appellant.
Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Dana Joseph, and Steven B. Snyder, Assistant United States Attorneys, were on the brief for appellee.
Before Beckwith and Deahl, Associate Judges, and Fisher, Senior Judge.*
A police officer saw Rashad Ellison engage in what he suspected was a hand-to-hand drug deal. Mr. Ellison exchanged a small item retrieved from the front of his waistband for cash. The officer radioed details of the transaction and descriptions of its participants to nearby officers who were on the scene as part of a narcotics investigation. Officers stopped and searched the presumed buyer, after he briefly entered and exited a store in the area, and recovered a small bag of crack cocaine on him. A different officer—who had already detained and patted down Mr. Ellison based on the observed transaction—then conducted an extensive search of Mr. Ellison on the scene, rifling through his shorts, but uncovered nothing incriminating. Officers then transported Mr. Ellison to a police station and conducted a strip search, which uncovered forty-six small bags of crack.
Mr. Ellison moved to suppress those narcotics as having been obtained in violation of his Fourth Amendment rights. The trial court denied his suppression motion, and Mr. Ellison pled guilty to distribution of cocaine, in violation of D.C. Code § 48-904.01(a)(1) (2014 Repl. & 2020 Supp.), and possession with intent to distribute cocaine, in violation of D.C. Code § 48-904.01(a)(1). He reserved his right to appeal the court's suppression ruling. See Super. Ct. Crim. R. 11(a)(2). Mr. Ellison now raises two Fourth Amendment claims on appeal. First, he argues that his pre-arrest detention was longer than permitted under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Second, he argues that the government lacked probable cause to search and arrest him. We disagree on both points and affirm.
On August 14, 2018, a team of officers from the Metropolitan Police Department was staking out the 800 block of 21st Street NE as part of a narcotics investigation. Officer Troy Hinton was the "eyes" of the operation, watching from a nearby observation post and relaying what he saw (via radio) to other members of the team. Just after 5:00 p.m., Officer Hinton saw what he believed to be a hand-to-hand narcotics exchange between two individuals, and he later identified Mr. Ellison as the apparent seller. Officer Hinton radioed that he saw the seller reach into his front waistband, retrieve a small object, and exchange it with the buyer for cash. Officer Hinton described the seller as a black man wearing a turquoise tank top and grey shorts, and riding a yellow bicycle. He described the buyer as black man wearing a tank top who drove away in a black Acura, and he provided the license plate number. Officer Andrew Stout, along with his partner, tailed the buyer and radioed two communications relevant here: (1) he indicated that he was "going to stop the buyer" and instructed Officers Benjamin Rubin and Apolinar Nunez to "stop the seller," and about three minutes later (2) he indicated that he was "about to" stop the buyer and told Officers Rubin and Nunez, "if you want to go toward the seller, go for it." Officer Hinton immediately added, "make sure they get a recovery before y'all pop that seller."
Officers Rubin and Nunez then apprehended Mr. Ellison, who matched the description of the seller. Officer Rubin placed him in handcuffs and conducted a pat down frisk of his waistband, finding nothing. Officer Rubin did not place Mr. Ellison under arrest at that point, but detained him as other officers investigated whether the buyer in fact obtained illegal narcotics. In the meantime, Officer Stout stopped and searched the buyer as he exited a nearby convenience store, and recovered a small bag of crack from his pocket. His partner radioed that they found crack on the buyer, to which Officer Nunez—sitting in a police cruiser apart from Officer Rubin, which is apparently where he remained after the initial stop—responded "copy." By this point, Mr. Ellison had been detained for about three minutes.
After an additional seven-minute delay apparently caused by Officer Nunez's body worn camera malfunctioning, another officer arrived to assist Officer Rubin, who then conducted a thorough on-scene search of Mr. Ellison. After several minutes of probing through Mr. Ellison's shorts and underwear, Officer Rubin found some money in Mr. Ellison's shorts but no narcotics. The officers then formally arrested Mr. Ellison, transported him to the police station, and conducted a strip search, finding forty-six bags of crack. Mr. Ellison was later indicted for both distribution of cocaine, in violation of D.C. Code § 48-904.01(a)(1), and possession with intent to distribute cocaine, also in violation of D.C. Code § 48-904.01(a)(1).
Mr. Ellison moved to suppress the recovered narcotics as being the fruit of an illegal search in violation of his Fourth Amendment rights. The trial court held an evidentiary hearing dedicated to the motion. At the close of evidence, the government stressed the recovery of crack from the buyer as critical to the probable cause calculus, stating there was "probable cause to search [Mr. Ellison] after the zip [was] found on the buyer," "they had probable cause specifically after they found ... controlled substances in the buyer's shorts." Mr. Ellison's counsel argued that reliance was misplaced because it was unclear if Officer Rubin, who conducted the on-scene search and effectuated the arrest, was aware that crack was recovered from the buyer.
The trial court denied Mr. Ellison's suppression motion. The judge focused on two questions relevant to Mr. Ellison's Fourth Amendment challenge. First, she addressed whether there was reasonable articulable suspicion to believe that Mr. Ellison had engaged in criminal activity before his seizure. See generally Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). She concluded there was. She reasoned that the hand-to-hand transaction witnessed by Officer Hinton, and the detailed description of the seller matching Mr. Ellison, provided the requisite reasonable articulable suspicion for a Terry stop.
Second, she addressed whether there was "probable cause to search" Mr. Ellison. She concluded there was not at the time officers initially detained him and patted him down, noting that there was no evidence this was a "high crime area," or that Mr. Ellison secreted the money he received in a suspicious way. But she found probable cause accrued once crack was recovered from the buyer: "[A]t that point there was probable cause, because there was confirmation of" the suspected drug transaction. She did not address if or when Officer Rubin personally learned of that recovery. But she did find that officers recovered crack from the buyer before Officer Rubin conducted the intrusive on-scene search of Mr. Ellison, and before the subsequent stationhouse search yielding the forty-six bags of crack, so that probable cause supported the searches of Mr. Ellison.
After the trial judge denied the suppression motion, Mr. Ellison entered a conditional guilty plea to both counts of the indictment under Super. Ct. Crim. R. 11(a)(2), reserving his right to appeal the suppression ruling.
Mr. Ellison now makes two arguments attacking the trial court's Fourth Amendment rulings: (1) his pre-arrest detention was too protracted to be justified as an investigatory stop under Terry , 392 U.S. at 26, 88 S.Ct. 1868 (permitting "brief" investigatory detentions); and (2) in any event, there was not probable cause to arrest and search him. We disagree on both points and affirm. Because our resolution of the second issue informs the first, we begin by addressing probable cause.
"A search conducted without a warrant is per se unreasonable under the Fourth Amendment unless it falls within a few specific and well-established exceptions." United States v. Taylor , 49 A.3d 818, 821 (D.C. 2012) (quoting Basnueva v. United States , 874 A.2d 363, 369 (D.C. 2005) ) (internal quotation marks omitted). One exception is that officers may conduct a "search incident to a lawful arrest," id. , that is, an arrest supported by probable cause, Dunaway v. New York , 442 U.S. 200, 213–14, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The government argues that the on-scene and stationhouse searches of Mr. Ellison both fit within this exception to the Fourth Amendment's warrant requirement.2 Mr. Ellison's only argument in response is that there was no probable cause to support either search. We disagree.
We begin by clearing away some confusion about whether our inquiry should focus on probable cause to search , or on probable cause to arrest . Counsel for Mr. Ellison waxes about the difference, suggesting the former was lacking even if the latter existed. But his argument stems from the mistaken (and disadvantageous to Mr. Ellison) premise that probable cause to search alone might have justified the on-scene search but was simply lacking.3 That is wrong. Probable cause to search, absent a warrant or some exception to the warrant requirement—like a contemporaneous arrest supported by probable cause, Knowles v. Iowa , 525 U.S. 113, 117–18, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) —is not an adequate justification for a search.
Taylor , 49 A.3d at 821 ; Coolidge v. New Hampshire , 403 U.S. 443, 454–55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (...
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