Hawkins v. United States

• Citation: 248 A.3d 125
• Decision Date: 08 April 2021
• Docket Number: No. 19-CF-0605,19-CF-0605
• Parties: Dominique HAWKINS, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

248 A.3d 125

Dominique HAWKINS, Appellant,

v.UNITED STATES, Appellee.

No. 19-CF-0605

District of Columbia Court of Appeals.

Argued January 12, 2021

Decided April 8, 2021

Christine Pembroke, Washington, for appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Timothy J. Shea, United States Attorney at the time the brief was filed, Elizabeth Trosman, Chrisellen R. Kolb, and Tara Ravindra, Assistant United States Attorneys, were on the brief, for appellee.

Before Beckwith and Deahl, Associate Judges, and Fisher, Senior Judge.

Fisher, Senior Judge:

Appellant Dominique Hawkins challenges the denial of his motion to suppress evidence. He argues that the trial court erred by finding that he consented to a police officer's warrantless search of his small satchel, in which police found a firearm. We agree that the record does not show that Mr. Hawkins consented to the search and therefore reverse.

I. Background

A. The Indictment

On August 8, 2018, Mr. Hawkins was charged with carrying a pistol without a license; possession of an unregistered firearm; unlawful possession of ammunition; and possession of cocaine, in violation of D.C. Code §§ 22-4504(a) (2020 Supp.) ; 7-2502.01(a) and 7-2506.01(3) (2018 Repl.); and 48-904.01(d) (2020 Supp.), respectively. Mr. Hawkins filed a motion to suppress all tangible evidence and statements, arguing that the police "unlawfully stopped, seized, and detained" him while he was standing on a driveway. The motion was denied, and Mr. Hawkins entered a conditional plea of guilty to the indictment, preserving his right to pursue this appeal.

B. The Suppression Hearing

Judge Kimberley Knowles presided over a hearing on the motion to suppress, receiving evidence on February 22, and March 22, 2019. The arresting officer, Christopher Denton, was the only witness to testify.

On July 16, 2018, Officer Denton and seven other officers – all members of MPD's specialized Gun Recovery Unit – were assigned to patrol MPD's Fifth District. Denton testified that the group, which was traveling in two unmarked police cars, went to the 2600 block of Evarts Street because the area had experienced "an increase in violent crime" that summer. Denton said that as they turned onto Evarts Street, he saw Mr. Hawkins and another man sitting in chairs at the end of a driveway. Denton explained, "I looked towards the defendant and I observed the defendant look towards me."

According to Denton, Mr. Hawkins "immediately reach[ed]" into a small satchel hanging around his neck and "stuffed his hands into the bag several times." Denton explained that Mr. Hawkins’ movement appeared "involuntary," "like patting for your keys that you may have lost when someone mentions keys." Denton said that after Hawkins reached into his satchel, Hawkins then "grabbed his chair and looked right to left quickly and kind of half got out of the chair." These actions made Denton suspect that Hawkins was concealing contraband in the satchel. Denton said he was particularly concerned that Hawkins might have a gun because Denton's unit had "recovered many firearms" from satchels that summer.

Denton and at least two other officers exited their vehicles and approached Hawkins and his companion. Denton testified that as he approached Hawkins, he said something similar to "hey, man. Officer Denton. Everything good? We just want to make sure everything is cool and nobody has any illegal firearms." As Denton walked toward Hawkins, Hawkins stood up, raised his hands, and started walking toward them. As Hawkins walked, he moved his hand toward his satchel as if to touch or adjust it. Denton explained at the suppression hearing that he found the hand movement toward the satchel significant because it showed Hawkins’ "consistent awareness of an item that causes ... nervousness." In Denton's experience, "it generally leads to a firearm recovery in persons that exhibit those characteristics[.]"

The government played footage from Denton's body worn camera ("BWC"), which corroborated Denton's testimony up to that point. In the footage, Denton can be heard asking Hawkins, "you mind if, you mind if I just squeeze that man?" Under cross-examination, Denton admitted that, in the video, his hands were moving toward the satchel as he asked for consent to squeeze it. Denton agreed that Hawkins did not verbally respond to his request to search the bag, but he said that Hawkins had nodded his head in consent.

During cross-examination, defense counsel challenged Denton's testimony that Hawkins had nodded his head. Denton admitted that it was difficult to see the nod, pointing out that the video footage was recorded from chest level instead of the eye level that he experienced that day; therefore, not all of Hawkins’ head was visible. However, under questioning from defense counsel, Denton agreed that if Hawkins nodded, it was with his entire head, "[c]hin to the tip," and that at least half of Hawkins’ head was always visible on the video footage. Denton maintained that he could see Hawkins nod on the video, and that he would point it out for the court if the footage was replayed for him. When defense counsel replayed the footage, Denton was unable to point to any specific place in the video where Hawkins nodded his head signifying consent to the search.

The video footage showed Denton's hands quickly moving toward Hawkins’ satchel at the same time Denton is heard requesting permission to squeeze it. Denton testified that when he touched Hawkins’ satchel, he "immediately felt ... the handle of a firearm." This squeezing of Hawkins’ bag is the central issue in this case. At oral argument, the government conceded that if Denton's initial squeezing of Hawkins’ bag was an unreasonable search, that constitutional violation tainted any later consent by Hawkins.

Denton did not tell Hawkins he could feel a gun, but instead asked if Hawkins would mind opening the bag. The video shows that Hawkins opened a side zipper, and that Denton then asked if he could see "what's in the bigger pocket?" While holding the zipper of the larger pocket, Denton asked Hawkins, "do you mind if I just open this zipper? Do you mind? Or do you want to do it for me?" Hawkins said he would open it. Denton testified that after he peered inside the satchel, he saw the handle of a gun and the officers arrested Hawkins for illegal possession of a firearm. Officers recovered 3.8 grams of cocaine from Hawkins after arresting him.

On April 11, 2019, Judge Knowles orally denied the motion to suppress. Judge Knowles said that even though there were "a couple of inconsistencies" in Officer Denton's testimony (relating to whether Denton had seen Hawkins stuff one or both hands into his satchel), she largely credited the testimony because in other ways, he was "precise" and "straightforward." Judge Knowles also stated that she relied on the video evidence in addition to Denton's testimony. She found that when Denton requested to search the bag, Hawkins consented by "kind of push[ing] either his chest or his stomach out, which kind of moves the bag a little bit forward. So he kind of moves his upper half forward ...."

Judge Knowles noted that "clearly the key issue in this case is consent[,]" because even if the officers had reasonable articulable suspicion to investigate Hawkins’ suspicious movements, those factors "did not rise to the level of a pat-down, for the officer to say that he was armed and dangerous[.]" Therefore, consent was the only valid basis for searching Hawkins’ satchel.

II. Discussion

Hawkins argues that the trial court erred in denying his motion to suppress for three reasons. First, he claims he never consented to Denton's request to search his satchel. Second, Hawkins contends that, even if he consented to the search, that consent was not voluntary because he had been "seized" within the meaning of the Fourth Amendment when Denton and the other officers first approached him. Finally, Hawkins asserts that the officers had no reasonable suspicion of criminal activity when they stopped to question him. We agree that the government did not prove that Hawkins consented to Denton's search and therefore reverse.

A. Consent

The Fourth Amendment protects against "unreasonable searches and seizures." U.S. CONST. amend. IV. A warrantless search is " ‘per se unreasonable’ under the Fourth Amendment unless it falls within a few specific and well-established exceptions." Basnueva v. United States , 874 A.2d 363, 369 (D.C. 2005) (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; Burton v. United States , 657 A.2d 741, 745 (D.C. 1994) ). "[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth , 412 U.S. at 219, 93 S.Ct. 2041. To benefit from this exception, the government must prove by a preponderance of the evidence that the individual consented to the search. Basnueva , 874 A.2d at 369.

Consent may be implied, but this requires an affirmative act by the individual about to be searched. See United States v. Drayton , 536 U.S. 194, 206-07, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (holding that appellant consented to a search of his person by lifting his hands about eight inches from his legs in response to officer's question, "[m]ind if I check you?"); Terrell v. United States , 361 A.2d 207, 210 (D.C. 1976) (holding that appellant consented to a search by opening the door to a police officer and then stepping back to let him in after being told of his investigation); Brown v. United States , 983 A.2d 1023, 1026-27 (D.C. 2009) (holding that appellant consented to a search by handing a pill bottle to police in response to a question about "whether she had any ‘guns, drugs, or narcotics’ ").

In this case the determination of whether Hawkins consented to a search is "essentially factual," and we therefore will uphold the trial court's finding unless it is...