Gordon v. United States

• Decision Date: 23 July 2015
• Docket Number: No. 13–CM–594.,13–CM–594.
• Parties: Kelby R. GORDON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

120 A.3d 73

Kelby R. GORDON, Appellant

v.UNITED STATES, Appellee.

No. 13–CM–594.

District of Columbia Court of Appeals.

Argued Dec. 16, 2014.

Decided July 23, 2015.

Anna B. Scanlon for appellant.

Vanessa Goodwin, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Kondi Kleinman, and Erik H. Zwicker, Assistant United States Attorneys, were on the brief, for appellee.

Before BECKWITH and McLEESE, Associate Judges, and FERREN, Senior Judge.

Opinion

FERREN, Senior Judge:

Kelby R. Gordon appeals his conviction for possession of marijuana following a conditional guilty plea.¹ On appeal, Gordon argues that he was unlawfully “seized” when police officers, without reasonable articulable suspicion,² repeatedly questioned him about his identity for “about ten minutes.” As a result, he argues, his statements to the police and the tangible evidence found on his person should have been suppressed. We agree with Gordon and reverse.

I.

On March 5, 2013, Metropolitan Police Department Officer Marboo Whisnant, accompanied by three fellow officers in the Robbery Unit, “saw a group of guys loitering in the hallway” of an apartment building in Southeast Washington, D.C. The officers pulled up to the building in an unmarked police vehicle, without flashing lights. Wearing plain clothes with black tactical vests that displayed “Police” on the front and back, the officers carried handcuffs, a baton, pepper spray, and a gun, and entered the building through an unlocked front door.

Officer Whisnant described the main landing where the police entered as “a little square area,” and Gordon's defense investigator described it as a “little foyer” with “four or five steps to go down and about four or five steps to go up.” When the four officers entered the foyer, they saw “about three to four guys inside.” Two were standing on the main landing, the man later identified as Gordon was on the upward stairs, and the other individual was on the downward stairs. Officer Whisnant testified that the whole building smelled like burnt marijuana, but that the officers did not see any of the four individuals smoking it.

Once they smelled marijuana, the officers “made contact” with the four individuals in the foyer. Officer Whisnant testified that he had previously “stumbled upon individuals smoking in that hallway.” In speaking with Gordon, Officer Whisnant did not inform him either that he was free to leave or that he could refuse to speak to the officers. Officer Whisnant asked Gordon for his identification to “figure out” who he was and where he lived. Gordon replied that he did not live in the building and did not have physical identification. Gordon told the officer, however, that his name was “Khalil Mikes.” He also provided his date of birth and, in response to another inquiry, added that “he had been locked up in Washington, D.C. before.”

Officer Whisnant thereupon entered Gordon's proffered information into the removable laptop from his squad car to “run him through the system,” which takes “[a] matter of seconds” to return a result. But he “couldn't pull him up.” The officer further testified that when the police “can't pull them up, more than likely, they're lying about their name.” Officer Whisnant acknowledged that he then “just kept asking him about the spelling, is there anything—when he was locked up, did he give another name, does he have a[n] alias or anything he goes by. And eventually he gave [the officers] his real name.” Whereupon, the officer continued, “We ended up pulling up his picture in one [data] system. And then we ran him in WALES/NCIC and that revealed that he had a[n] outstanding warrant for a probation violation.”³ Gordon was then placed under arrest.

Gordon was asked whether he had anything illegal on his person, and Gordon replied that “he had some weed in his pants.”⁴ The officers ultimately found “eight small, clear zip-lock bags which all contained marijuana.” Officer Whisnant acknowledged that Gordon did not consent to the search of his person, but he added that Gordon was “free to leave and walk away.” The entire period from the time Officer Whisnant asked Gordon for identification to the officer's discovery of the outstanding warrant lasted “[a]bout 10 minutes,” according to Whisnant. The trial court credited Officer Whisnant's testimony that, throughout the entire encounter, the officers spoke in a calm voice and did not draw their weapons.

Two days later, on March 7, Gordon was charged with unlawful possession of marijuana.⁵ Counsel moved to suppress the marijuana and Gordon's statements to the police, arguing that the police had unlawfully seized his person without reasonable suspicion. On May 20, following a suppression hearing, the trial court denied the motion. The court found that the initial encounter with Officer Whisnant, when he asked Gordon for his name, was “consensual,” and that “[i]t was perfectly reasonable for the police to talk to [Gordon] a little bit more to try to verify his identity” after Gordon apparently had provided a false name. Furthermore, added the court, while the officer was verifying Gordon's identity, Gordon “was not surrounded in a way that would have communicated to him, that is, to a reasonable person innocent of any crime, that he wasn't free to disengage from the contact.” At the point the WALES search revealed that Gordon had an outstanding warrant, the court concluded, “the police had probable cause to arrest him and could search incident to that arrest.” Ultimately, the trial court ruled that Gordon had not been “seized prior to [the officers'] learning about the warrant”; thus, his “Fourth Amendment rights [were] not violated.”

Gordon then entered a conditional guilty plea, reserving his right to appeal the denial of the motion to suppress. The court sentenced him to thirty days of imprisonment, with credit for time served, to run concurrently with any sentence that he was serving at the time of sentencing. The court also ordered Gordon to pay $50 to the Victims of Crime Fund. This appeal followed.

II.

Gordon contends that he was seized by the police without reasonable suspicion when the police repeatedly questioned him about his identity—an encounter that lasted approximately ten minutes. The government contends, to the contrary, that the officer's questioning did not constitute a seizure, and that even if it did, Gordon's proffer of a false name, along with other suspicious circumstances, created the required reasonable suspicion that justified the officers' further pursuit of the truth through an identity check and warrant search. Rejecting the government's argument, we conclude that the repeated questioning of Gordon for “about ten minutes,” evidencing a show of authority, amounted to a seizure, and that the officers lacked reasonable suspicion to justify the detention.

When reviewing a trial court's ruling on a motion to suppress, we must uphold the court's findings of fact unless they are clearly erroneous, but we review the court's conclusions of law de novo.⁶ Gordon bears the burden of proving that the police violated his Fourth Amendment rights.⁷ We consider the evidence in the light most favorable to the government.⁸

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”⁹ There are three types of permissible encounters between the police and citizens which do not violate the Fourth Amendment: (1) consensual encounters, which do not require any level of suspicion prior to initiation¹⁰ ; (2) investigative detentions, which if nonconsensual, must be supported by a reasonable, articulable suspicion of criminal activity prior to initiation¹¹ ; and (3) arrests, which must be supported by probable cause prior to initiation.¹² Both investigative detentions and arrests are seizures under the Fourth Amendment¹³ ; mere consensual encounters are not.¹⁴

Accordingly, a “seizure does not occur simply because a police officer approaches an individual and asks a few questions.”¹⁵ Moreover, “the police also may ask a person to do something, such as produce identification or an airline ticket, without necessarily converting the encounter into a seizure.”¹⁶ Thus, a seizure will have occurred “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained” someone's liberty.¹⁷ It follows, according to the Supreme Court, that the test for determining whether a person has been seized “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”¹⁸ —in other words, that he was “not free to leave.”¹⁹

The central question on the facts here divides into two parts: (A) whether the police, by repeatedly asking Gordon questions about his identity for “[a]bout ten minutes,” seized Gordon; and (B) if there was a seizure, whether the police had reasonable suspicion to support it.

A.

First, we must assess whether, as Gordon contends, the police officer's repeated questioning about his identity, lasting about ten minutes, seized him prior to the officers' discovery of his outstanding warrant. The government replies that the officer's “mere questioning, in a calm and conversational tone in the public area of a residential building, where Officer Whisnant never drew his weapon, never took [Gordon's] property and at no time conveyed a message that compliance with his requests was required, did not constitute a seizure under the Fourth Amendment.” Before addressing the parties' contentions, we must examine the development of this court's doctrine explaining the relationship between the persistence of police questioning and Fourth Amendment seizures.

(1)

This...