Golden v. United States

• Decision Date: 15 April 2021
• Docket Number: No. 17-CF-529,17-CF-529
• Citation: 248 A.3d 925
• Court: D.C. Court of Appeals
• Parties: Brandon D. GOLDEN, Appellant, v. UNITED STATES, Appellee.

248 A.3d 925

Brandon D. GOLDEN, Appellant,

v.UNITED STATES, Appellee.

No. 17-CF-529

District of Columbia Court of Appeals.

Argued December 3, 2019

Decided April 15, 2021

Claire Pavlovic, Public Defender Service, with whom Alice Wang and Samia Fam, Public Defender Service, were on the brief, for appellant.

Katherine M. Kelly, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Matthew R. Palmer-Ball, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, and Glickman and McLeese, Associate Judges.

Glickman, Associate Judge:

Brandon Golden appeals his convictions for carrying a pistol without a license (CPWL),¹ possession of an unregistered firearm (UF),² and unlawful possession of ammunition (UA).³ Mr. Golden argues that the trial court should have granted his motion to suppress the physical evidence supporting these charges — the gun and ammunition — because the police recovered that evidence from him by conducting an unreasonable stop and frisk in violation of his Fourth Amendment rights. We agree. We hold that the police (1) unconstitutionally seized Mr. Golden by confronting him on the street, subjecting him to accusatory questioning, and asking him to expose his waistband for visual inspection, all without a reasonable basis to suspect him of criminal activity; and (2) unconstitutionally searched Mr. Golden by then frisking him for a weapon without an objectively reasonable basis to suspect he was armed and dangerous. Accordingly, and without reaching Mr. Golden's other claims of error at his trial, we vacate his convictions.

I. The Stop and Frisk⁴

The charges in this case arose from Mr. Golden's street encounter with members of the Metropolitan Police Department's Gun Recovery Unit (GRU). On the night of June 22, 2015, at about 9:41 p.m., Mr. Golden was walking by himself down Southern Avenue and approaching the intersection with South Capitol Street. At that same time, four GRU officers who were on patrol together in a pair of unmarked SUVs were also travelling down Southern Avenue. As they neared South Capitol Street, the driver of the lead SUV, Officer John Wright, pointed out Mr. Golden (by saying "the guy on the right") to his partner, Officer Patrick Vaillancourt. The record is silent as to why Officer Wright called attention to Mr. Golden; there was no lookout and the record contains no evidence that Mr. Golden was doing anything noticeably illegal or suspicious.⁵ Nonetheless, Officer Wright then made a right turn onto South Capitol Street and stopped his car at the curb, directly in front of Mr. Golden and just before he was about to reach it. Officer Vaillancourt estimated that their vehicle was ten to twenty feet away from Mr. Golden at this time. Simultaneously, the driver of the second police vehicle, Officer Sherman Anderson, pulled up to the curb on Southern Avenue and stopped in a position perpendicular to Officer Wright and Officer Vaillancourt's vehicle, an estimated seventeen feet to Mr. Golden's left.⁶

After stopping, the officers remained seated in their cars with their windows down. The officers all wore tactical vests that displayed their badges and were marked "POLICE" in large, bright yellow lettering. They carried guns in their holsters. As Officer Vaillancourt testified, Mr. Golden noticed the officers confronting him and abruptly "froze," appearing "surprised" and "nervous." There were a few people in a parking lot behind Mr. Golden; they quickly dispersed. There is no indication in the record that any other persons were on foot in the vicinity.

Mr. Golden was wearing a short-sleeved orange polo shirt, with a sweatshirt tied over it around his waist. Officer Vaillancourt testified that he found the sweatshirt "sort of strange," because "it was warm out and [the officer didn't] really think there would be any need for a sweatshirt at that point." After turning onto South Capitol Street, Officer Vaillancourt saw "a bulging object" of some kind on Mr. Golden's right hip under his orange shirt. The officer said he could not see it "too well" because the sweatshirt was "in the way," that he "had no idea" what the bulge was, and that it "could [have been] anything."

Officer Vaillancourt addressed Mr. Golden. He identified himself as a police officer and, in a conversational tone, asked Mr. Golden whether he had any weapons on him. Mr. Golden said he did not. Officer Vaillancourt responded, "[C]an you just show me your waistband[?]" Mr. Golden, who was holding a cigar in his right hand, responded to this request by pulling up the middle and left side of his shirt from its tucked position under the sweatshirt with his free left hand. Officer Vaillancourt testified that this action made him more "concerned" because he suspected that Mr. Golden was "trying to avoid raising up the right" side of his shirt where the bulge was. But Officer Vaillancourt did not ask appellant to lift his shirt on the right side, nor did he ask about the bulge. Instead, he said to Mr. Golden, "I can't see your waistband because of the sweatshirt." Mr. Golden then removed the sweatshirt from around his waist and displayed it. When he held it out, the sweatshirt blocked Officer Vaillancourt's view of the bulge. Officer Vaillancourt believed Mr. Golden "either was confused or trying to be evasive," and he suspected that the bulging object on Mr. Golden's right hip was a firearm.

Officer Vaillancourt then exited the SUV, walked up to Mr. Golden, and said, "I can't see your waistband now because you're showing me the sweatshirt. What do you have?" The officer still did not mention the bulge. Mr. Golden did not verbally respond; the record does not indicate how long Officer Vaillancourt waited for a response. Mr. Golden did, however, "lower[ ] his arms[,]" keeping hold of the sweatshirt with his free left hand. Without saying more, Officer Vaillancourt then "frisked the bulge" and "felt what [he] deemed to be a revolver." Officer Vaillancourt alerted the other officers, who left their vehicles and assisted in Mr. Golden's arrest. A crime scene officer was summoned to take photographs showing the appearance of the bulge before the police removed the gun from Mr. Golden's pants. As the trial judge later found when ruling on the suppression motion, "the bulge was not in the shape of a gun, [and] there was nothing distinctive about the nature of the bulge."

At the suppression hearing, Officer Vaillancourt articulated three reasons for believing, when he frisked Mr. Golden, that Mr. Golden was armed. First, Officer Vaillancourt noted, "most people are right-hand dominant so seeing that bulge there in the right hip reminds me that's where I keep my gun." Second, the bulge was under "a sweatshirt that really seems unnecessary because it's a warm summer day," suggesting that "something is being concealed." And third, the officer stated, Mr. Golden had "refus[ed]" to display whatever was on his right side and had "meticulously" kept it covered with his shirt. Officer Vaillancourt did not explain what he meant by "meticulously."

Crediting Officer Vaillancourt's testimony, the trial court rejected Mr. Golden's arguments that the stop and frisk violated his Fourth Amendment rights. The trial court ruled that Mr. Golden was not seized within the meaning of the Fourth Amendment until Officer Vaillancourt frisked him, because Mr. Golden "stopped on his own accord" when the police SUVs pulled up in front and beside him; "Mr. Golden was not impeded or surrounded or hemmed in" and was "physically free to continue on his business"; and Officer Vaillancourt "simply asked two questions and made one statement" in a "conversational" tone of voice.⁷

In addition, the court ruled that Officer Vaillancourt's frisk of Mr. Golden was supported by reasonable suspicion that Mr. Golden was armed, based on the factors the officer had identified: (1) the presence of a bulge on Mr. Golden's right hip, where "the officer credibly testified ... people often carry a gun" (notwithstanding, the court said, that the bulge was nondescript and there was "no claim this was a high-crime ... area"); (2) appellant's perceived evasiveness and failure to explain the bulge ("Mr. Golden decided to show only the front and left side" of his waistband and "did not provide any innocent explanation" for the bulge, said the court, and Officer Vaillancourt reasonably could conclude that "Mr. Golden could have raised [his] shirt on the right side, even though he was holding a cigar in his right-hand"); and (3) the fact that Mr. Golden "was carrying a sweatshirt and using it to conceal an object, even though there was no apparent need for a sweatshirt."

II. The Fourth Amendment

Not all street encounters with police trigger constitutional scrutiny. "[A]lthough there is an inherent inequality and vulnerability in most encounters with police, the Fourth Amendment calculus tolerates a measure of official pressure in exchange for needed cooperation from the public with police activities in safeguarding safety and assisting with law enforcement."⁸ As a rule, however, an encounter implicates the Fourth Amendment right to be "secure ... against unreasonable searches and seizures"⁹ whenever an officer, "by means of physical force or show of authority, has in some way restrained the liberty" of a person.¹⁰ "[T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business."¹¹ Even a brief restraining stop of a person is an unreasonable seizure in violation of the Fourth Amendment if it is conducted "for investigatory purposes" without "a reasonable suspicion supported by specific and articulable facts that the individual is involved in criminal...