Funderburk v. United States
| Decision Date | 07 October 2021 |
| Docket Number | No. 19-CF-110,19-CF-110 |
| Citation | 260 A.3d 652 |
| Parties | Mark FUNDERBURK, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Stefanie Schneider, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant.
Daniel Honold, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Felice Roggen, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Thompson,* Associate Judges, and Ruiz, Senior Judge.
Around 2:20 a.m. on December 20, 2017, two police officers heard gunshots and commotion coming from a nearby alley in a residential neighborhood. They encountered appellant in that same alley thirty seconds later. He was alone, but the officers were aware of a few other people not far behind him. The streets were otherwise deserted at this late hour. The officers stopped and frisked appellant. The central question before us is whether the officers had reasonable suspicion to do so. We hold that they did, and therefore affirm the trial court's denial of appellant's motion to suppress.
In the early morning hours of December 20, 2017, Metropolitan Police Department (MPD) Officers Andrew Rose and Corey Bonds were on patrol in a residential neighborhood of northeast D.C. At 2:20 a.m., the trial court found, they heard "several gunshots and what they described as a commotion, including the sound of people yelling." Officer Rose said it sounded like an "argument," although neither he nor Officer Bonds could hear what the argument was about. They thought the shots and commotion came from a nearby alley, which the trial court found was "within about a block of their location at that time."
The officers immediately drove towards the alley. They arrived at the mouth of the alley twenty seconds later. At this point, a ShotSpotter report came over the radio.1 ShotSpotter had detected four gunshots fired near 312 Division Avenue.2 The alley ran between Division Avenue and 51st Street; its mouth was directly behind the 300 block of Division Avenue. The officers drove into the alley. Ten seconds later — and thirty seconds after hearing the gunshots — the officers saw appellant. He was walking towards the officers, who had pulled up next to a parking lot in the alley. The trial court found that the parking lot was "almost directly across from the rear of 312 Division Avenue," the address provided by ShotSpotter.
Appellant was the first and only person the officers saw in the twenty seconds it took them to drive to the alley and the ten seconds it took them to drive down the alley. However, as the officers exited their vehicle to apprehend appellant, they could still "hear loud and erratic screaming." It was, the trial court found, the "same type of commotion that [they] had heard just a few moments earlier accompanying the sound of gunshots." The commotion was coming from a walkway to a house just behind appellant. Appellant was walking away from the commotion.
When the officers ordered appellant to get on the ground, he fully complied. As Officer Bonds began to handcuff him, two women approached, and a third appeared in the doorway of the house behind appellant. One of the approaching women was upset with appellant. She was repeatedly yelling at him, "Why would you do that to me?" and, "Why would you take it this far?" The second woman was restraining her. The trial court found that the first woman was behaving "as though something had been done to her," although it noted that neither of the two women "said at any point that [appellant] had actually done anything to harm them or that he had done anything illegal." The officers did not stop any of the three women.
Around the same time, a second ShotSpotter report informed the officers that the gunshots had been moving eastward at 8.7 miles per hour.3 Officer Rose agreed that the report meant the locus of the shots had been moving, but he did not understand what it meant "technically."
While Officer Rose kept the two women away from appellant, Officer Bonds patted down appellant's waist area. He discovered a .380 caliber bullet in appellant's back pocket.4 The officers then searched the area for a firearm and found a .380 caliber handgun lying in the grass near the parking lot. Officer Rose estimated that the gun was twenty-five feet from where he first saw appellant walking in the alley.
The officers placed appellant under arrest. While processing appellant at the station, Officer Kevin Raynor discovered a .380 caliber magazine in his jacket. Officers also took a buccal swab from appellant.
Appellant was charged with one count of Carrying a Pistol Without a License,5 one count of Possessing an Unregistered Firearm,6 and two counts of Unlawful Possession of Ammunition.7 He later filed a motion to suppress tangible evidence and statements made to the police at the scene. He argued, inter alia , that the officers lacked reasonable articulable suspicion to stop or frisk him, and that the evidentiary fruits (i.e., the bullet, gun, and magazine, among other things) should be suppressed as products of the unlawful stop and frisk.
After a suppression hearing, the trial court denied appellant's motion. It acknowledged that the officers "had no physical description of the shooter." However, it found that "the geographic proximity, temporal proximity, lateness of the hour, and the suspect's lone presence at the scene" "created a reasonable suspicion that [appellant] was the person who had discharged the firearm and thus justified the stop."8 Appellant was found guilty on all counts after a stipulated trial. He timely appealed the denial of his motion to suppress.
Appellant argues that his mere presence near the location where officers heard gunshots thirty seconds earlier did not justify a Terry stop.9 We review that question de novo.10 In doing so, we must "defer to the [trial] court's findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling below."11
An officer may conduct a brief stop "for investigatory purposes" when he has "reasonable suspicion supported by specific and articulable facts that the individual is involved in criminal activity."12 During the stop, the officer may also conduct a "protective frisk for weapons" if he has a "reasonable, articulable suspicion that the person detained is armed and dangerous."13 The burden of demonstrating this suspicion is "not an onerous one."14 It requires more than an "inchoate and unparticularized suspicion or hunch," but "substantially less than probable cause."15
To determine whether reasonable suspicion existed, we look to all "the facts available to the officer at the moment of the seizure or search."16 Appellant was seized when he complied with Officer Bonds's order to get on the ground.17 At that time, we conclude, the available information established a reasonable suspicion that appellant had fired the shots (at least some, if not necessarily all, of them). Although the officers did not have a description of the shooter, we have recognized that "sometimes the universe" of potential suspects "will be small enough that no description at all will be required to justify a stopping for investigation."18 For the following reasons, we are satisfied the universe was small enough here.
To start, the officers were not relying on a tip of doubtful veracity. Nor were they depending "on the character of the streets" and the recent crime rate in the vicinity.19 Rather, they responded to a potentially violent crime that undoubtedly had just occurred.20 The officers heard "several gunshots" and "a commotion," which Officer Rose testified sounded like an "argument." They knew someone — possibly multiple people — fired a weapon or weapons. The only question was who.
The officers were not directionless in seeking to answer this question. They had a good idea of where the shots originated. Both officers thought the shots came from an alley within a block of their location. Officer Bonds was even more specific, testifying that he heard "a lot of screaming and yelling and loud commotion coming from my left side between two houses ... like it was coming from an alley." A ShotSpotter report then confirmed the gunshots came from a twenty-five-meter area that included the alley. The officers thus limited the universe of potential suspects to those at a particular location.
The officers responded to that location immediately. It took them twenty seconds to arrive at the mouth of the alley, and then another ten seconds to drive down it. Their stop of appellant occurred a mere thirty seconds after the shots rang out. "When the passage of time between the occurrence of a crime and a subsequent stop is" this short, i.e., where the stop is either "immediate or within only a few minutes," we have said that "particularized reasonable suspicion is usually found."21 The officers also found appellant at the crime scene . He was exactly where they thought the shots originated. This means he was apprehended both immediately after the crime, and at the location of the crime. Such a "showing of immediacy" supports a reasonable suspicion that appellant was involved in the crime.22
This immediacy also limits the possibility that the culprit (or culprits) could have fled before the officers arrived. In United States v. Jones , the D.C. Circuit held that officers arriving "within a minute and a half of MPD's call reporting the ShotSpotter alert" sufficiently limited the possibility that the suspect fled.23 Here, the officers arrived even sooner — not a minute and a half after a crime was reported , but thirty seconds after the crime actually occurred .24 Of course, it was possible that the shooter(s) had fled in those thirty seconds. But Jones recognized that officers need...
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