Hawkins v. US
| Decision Date | 17 August 1995 |
| Docket Number | No. 93-CF-813.,93-CF-813. |
| Citation | 663 A.2d 1221 |
| Parties | Ronnie L. HAWKINS, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Joseph Virgilio, appointed by the court, Glendale, CA, for appellant.
Mark J. Carroll, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and John F. Cox, Assistant United States Attorneys, Washington, DC, were on the brief, for appellee.
Before FARRELL and KING, Associate Judges, and MACK, Senior Judge.
This appeal presents a seizure issue involving the victim of criminal activity who was approached by the police for questioning. Because the conduct of the police officers did constitute a "seizure" within the meaning of the Fourth Amendment and because the officers acted without "articulable suspicion," probable cause, or any other legal justification for the seizure, the motion to suppress should have been granted.
Following his indictment for carrying a pistol without a license,1 possession of an unregistered firearm,2 unlawful possession of ammunition,3 unlawful possession with intent to distribute cocaine while armed,4 unlawful possession of marijuana,5 and possession of a firearm during a crime of violence or dangerous offense,6 appellant moved to suppress all tangible evidence recovered from his person, and all statements made to the police,7 on the ground that he had been illegally seized by police officers acting without articulable suspicion or probable cause. At the suppression hearing, the following testimony, credited by the trial judge, was given by the officers involved.
Around 7:00 p.m., on June 25, 1992, Officers Douglas Reynolds and Diedre Barnes, assigned to the Metropolitan Police Department's Warrant Squad, were at the intersection of Mount Olivet Road and Capital Avenue, N.E., in an unmarked police car, when appellant's vehicle made a left turn in front of them. Reynolds, the driver, made a U-turn and followed appellant to the 1300 block of Galludet Street, N.E. Reynolds had recognized appellant as the complainant in a pending assault case involving two separate incidents which had occurred a few weeks earlier, and he wanted to ask appellant some questions concerning the identity of his attackers.8 By the time the officers reached appellant's vehicle, the car was stopped and appellant was talking to some females.9 Reynolds "pulled casually alongside of him" and asked if he could talk to appellant who "was cordial and said sure."10 Reynolds, who was dressed in plain-clothes and was not displaying a weapon, approached appellant (who was still seated in the driver's side of his car), and identified himself by flashing his badge.11 Meanwhile, Officer Barnes, who was also in plain-clothes and who was not displaying a weapon, approached appellant's car from the passenger side and remained there observing appellant.12
Reynolds asked appellant if he knew who had shot him or who had come to the hospital to "finish him off" and appellant said "no." Then, based on what Reynolds termed "instinct" and "past dealings with the situation with appellant," Reynolds asked appellant "was he packing anything."13 Appellant said "no" and the conversation concerning the pending assault case continued. At this time, Barnes signaled Reynolds by patting her right thigh with her right hand (meaning she believed that appellant had a weapon on him). Understanding this signal, Reynolds asked appellant for a second time if he was "packing." Appellant responded by removing some money from his pocket and telling Barnes that all he had was some money; he then returned the money to his right front pocket.14 Reynolds asked appellant for a third time, "Are you sure you're not packing?" At that point, Barnes walked around to the driver's side of the car and told Reynolds to remove appellant from the car.15
As appellant exited the car, Reynolds saw the butt of a gun in his right front pocket. He placed appellant's hands on the top of the car and Barnes retrieved the gun. Subsequent to the arrest, Reynolds recovered six packs of marijuana and seventeen packs of crack cocaine from appellant's left front pocket.
In denying the motion to suppress, the trial court credited the testimony of both officers and discredited appellant's testimony. The trial judge made the following oral findings of fact and conclusions of law:
Our scope of review for an order denying a motion to suppress evidence is set forth in D.C.Code § 17-305(a) (1989).16 "We are bound by the trial court's factual findings unless clearly erroneous or not supported by the evidence." Powell, supra, note 16, 649 A.2d at 1084 (quoting Holston v. United States, 633 A.2d 378, 386 n. 10 (D.C.1993)) (emphasis added). Furthermore, in reviewing the trial court's denial or grant of a motion to suppress, this court's review is de novo. See, e.g., Lewis v. United States, 632 A.2d 383, 385 (D.C.1993); Gomez v. United States, 597 A.2d 884, 889 (D.C.1991).
Our inquiry in this case is two-fold. First, we must determine whether appellant was "seized" within the meaning of the Fourth Amendment. And second, if appellant was in fact "seized," we must determine whether there was "articulable suspicion" or probable cause of criminal activity, or some other legal basis for the seizure. As we recently stated in In re J.M., 619 A.2d 497 (D.C.1992) (en banc), "The crucial 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." Id. at 499-500 (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991)) (internal quotations and emphasis omitted) (citations omitted).17 Moreover, an initially consensual encounter can be transformed into a seizure and detention within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).
Generally speaking, any restraint of a person amounting to a "seizure" is invalid unless justified by probable cause. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). However, certain seizures are valid if there is "articulable suspicion" that a person has committed or is about to commit a crime. Id. (). In any event, the Supreme Court has made it clear that an individual "may not be detained even momentarily without reasonable, objective grounds for doing so." Id.
In the present case, even assuming arguendo that appellant's initial decision to speak with the officers was consensual, the officers, early in this encounter, adopted a posture displaying their authority which communicated very clearly to appellant that he was not free to simply ignore them and leave.18 According to the testimony of both officers, appellant's car was double parked with its engine running when they initially approached him. It remained in that position after appellant agreed to speak with the officers. Officer Reynolds directed appellant to park his vehicle, and, at some point, asked appellant to turn off his ignition. Upon approaching appellant, Reynolds displayed his badge and then both officers positioned themselves on either side of the car. Noteworthy is Officer Barnes' testimony that the officers' positioning themselves on both sides of the car conformed with their training for making a traffic stop.19 Any objective belief that appellant was free to leave was further negated by Reynold's repeated questioning about whether appellant was carrying a weapon.20 Given the totality of the circumstances presented in this case, a reasonable person...
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