Henson v. United States, No. 10–CF–1177.

Decision Date15 November 2012
Docket NumberNo. 10–CF–1177.
Citation55 A.3d 859
PartiesJavon Thomas HENSON, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals


Lee R. Goebes, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and John P. Mannarino and Katherine Rakoczy, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and BLACKBURNE–RIGSBY, Associate Judges, and KING, Senior Judge.

FISHER, Associate Judge:

Appellant Javon Henson challenges the denial of his motion to suppress a handgun and ammunition found on his person, claiming that they were discovered during an unlawful seizure and frisk. Unpersuaded by his argument that an unsuccessful attempt by a police officer to detain an individual constitutes a seizure, we affirm.

I. Factual Background

Shortly after midnight on January 31, 2010, two uniformed Metropolitan Police Department officers on routine patrol in a “high crime area” of northeast Washington pulled their marked vehicle alongside three young men who were walking in the neighborhood. Officer Matthew Jones explained to the men that they were “not in any trouble,” but that the officers would like to “talk to [them] for a minute” about some recent robberies in the area. The officers then asked the men if they would agree to a pat-down for weapons. Two of the men replied that they had no objections, and Officer Sean Kenney began to frisk them.

The third man, appellant Javon Henson, also consented to a pat-down and placed his hands on the hood of the police car. Before Officer Jones could begin the frisk, however, appellant “put his hands down” and “started walking towards the back of [the] vehicle.” Officer Jones asked, “hey, where are you going?” He also testified that “I may have placed my hand on the defendant's side as he was walking away. I don't recall.” [T]he next thing I know the defendant is attempting to run down the street.” Officer Jones then “grabbed onto [appellant's] jacket,” but appellant “was able to wiggle out of [it].”

The officers chased appellant for about twenty or thirty yards until appellant slipped and fell on the snow and the officers caught up with him. After a brief struggle during which appellant may have touched Officer Jones's gun, the officers placed Mr. Henson in handcuffs. Seeing that appellant's two companions were walking toward them and looked like they might pick up the jacket that appellant had dropped during the chase, Officer Kenney yelled at the men to stay back. He then frisked Mr. Henson, finding a pistol in his waistband. A subsequent search uncovered a bottle containing an alcoholic beverage. When Officer Jones asked why he had run, appellant “stated that he had an open bottle of liquor in his pocket.”

The trial court denied Mr. Henson's motion to suppress the firearm. Crediting the officers' testimony, the court found that, as appellant was moving away from Officer Jones, and before appellant began his flight, Officer Jones “reached out and grabbed Mr. Henson's arm and said where are you going or words to that effect.” 1 Appellant then “took off running.” During the ensuing chase, appellant “essentially ran out of his coat.” “After a short distance, [appellant] slipped on the ice and snow and fell to the ground,” at which point the officers caught up with him and placed him in handcuffs. Based on these facts, the court concluded that Mr. Henson had not been seized until the officers caught up with him after he fell, by which point they had reasonable, articulable suspicion to conduct a Terry stop and a frisk. The court cited several factors that gave rise to reasonable suspicion in this case, including the late hour, the fact that the events took place in a high crime area, appellant's “furtive gestures and movements” in “taking his hands off the police vehicle” and “moving away from the officer” after having consented to a pat-down, appellant's sudden flight, and the “fact that Mr. Henson's conduct and response was far different from the friends who were with him.”

Following the court's denial of his motion to suppress, appellant agreed to a stipulated trial. The court found Mr. Henson guilty of carrying a pistol without a license,2 being a felon in possession of a firearm,3 possession of an unregistered firearm,4 and unlawful possession of ammunition.5 He now appeals the denial of his suppression motion.

II. Analysis
A. Standard of Review

“Our review of a trial court's denial of a motion to suppress is limited.” Jones v. United States, 972 A.2d 821, 824 (D.C.2009). We ‘take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.’ Hampleton v. United States, 10 A.3d 137, 142 (D.C.2010) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Moreover, [w]e view the evidence presented at the suppression hearing in the light most favorable to the party prevailing below, and we draw all reasonable inferences in that party's favor.” Womack v. United States, 673 A.2d 603, 607 (D.C.1996) (citing Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc)). “However, legal conclusions on Fourth Amendment issues, including whether a seizure has occurred and, if so, whether it was justified by reasonable articulable suspicion, are legal questions that we review de novo. Bennett v. United States, 26 A.3d 745, 751 (D.C.2011) (citing Jacobs v. United States, 981 A.2d 579, 582 (D.C.2009)).

B. When Does a Seizure Occur?

Where a Terry stop is challenged as improper, “the threshold question is whether and when a seizure occurred.” Plummer v. United States, 983 A.2d 323, 331 (D.C.2009) (internal editing omitted). “Street encounters between citizens and police officers are incredibly rich in diversity,” Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and not every interaction between a police officer and a citizen constitutes a seizure. “A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement ....” Plummer, 983 A.2d at 331 (emphasis added) (quoting Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)); see also Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868 (“Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”) (emphasis added).

Appellant does not dispute that his initial encounter with Officers Kenney and Jones was consensual. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ([A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.”). However, he claims that he was seized when Officer Jones “grabbed [his] arm” and asked “where are you going?”, even though he failed to stop and, indeed, broke into full flight. We disagree.

C. An Unsuccessful Attempt to Detain a Suspect Is Not a Seizure

The Supreme Court has addressed the application of the Fourth Amendment to suspects who refuse to submit to police authority in two key cases: Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), and California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Brower, the suspect “was killed when the stolen car that he had been driving ... crashed into a police roadblock” set up to stop him after he had eluded pursuing police for approximately twenty miles. 489 U.S. at 594, 109 S.Ct. 1378. Emphasizing that [v]iolation of the Fourth Amendment requires an intentional acquisition of physical control,” id. at 596, 109 S.Ct. 1378 the Court held that Brower had been seized when he was “stopped by the very instrumentality ... put in place in order to achieve that result,” id. at 599, 109 S.Ct. 1378. The Court “did not even consider the possibility that a seizure could have occurred during the course of the chase because ... that ‘show of authority’ did not produce his stop.” Hodari D., 499 U.S. at 628, 111 S.Ct. 1547 (discussing Brower ).

In Hodari D., the defendant and his companions fled when they saw two police officers approaching in a vehicle. Id. at 622–23, 111 S.Ct. 1547. The officers gave chase and tackled the suspect a few blocks later, after he had discarded the crack cocaine he had been carrying. Id. at 623, 111 S.Ct. 1547. Describing the “narrow question” before the court as “whether, with respect to a show of authority ..., a seizure occurs even though the subject does not yield,” the court held “that it does not.” Id. at 626, 111 S.Ct. 1547.

Brower and Hodari D. both dealt with suspects who refused to submit to an officer's “show of authority.” The Supreme Court has yet to consider directly whether the same analysis applies to cases in which a police officer unsuccessfully attempts to detain an individual by force. There is language in Hodari D. which might suggest that a seizure occurs whenever an officer applies force, even though he does not succeed in stopping the suspect. See499 U.S. at 626, 111 S.Ct. 1547 (“The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.”) (emphasis added).6 But, as other courts have pointed out, see, e.g., Brooks v. Gaenzle, 614 F.3d 1213, 1220–21 (10th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 1045, 178 L.Ed.2d 864 (2011), much of...

To continue reading

Request your trial
26 cases
  • Mayo v. United States
    • United States
    • D.C. Court of Appeals
    • January 6, 2022
    ...v. Madrid , ––– U.S. ––––, 141 S. Ct. 989, 209 L.Ed.2d 190 (2021), which effectively overruled this court's decision in Henson v. United States , 55 A.3d 859 (D.C. 2012). Second, we hold that this seizure was unsupported by reasonable, articulable suspicion and therefore unlawful. Third, we......
  • Miles v. United States
    • United States
    • D.C. Court of Appeals
    • March 29, 2018
    ..."certainly suggestive of such," id. And although the Supreme Court's reasoning focused only upon these two factors, Henson v. United States , 55 A.3d 859, 868 (D.C. 2012) ; Wilson v. United States , 802 A.2d 367, 371 (D.C. 2002), the totality of the circumstances in Wardlow also included th......
  • Torres v. Madrid
    • United States
    • U.S. Supreme Court
    • March 25, 2021
    ...D. ’s aside does not constitute a binding holding. See Brooks v. Gaenzle , 614 F.3d 1213, 1220–1221 (CA10 2010) ; Henson v. United States , 55 A.3d 859, 864–865 (D. C. 2012). Today's majority seems to accept the point too. It acknowledges that Hodari D. "principally concerned a show of auth......
  • People v. Mandarino
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2013
    ...through the courts, rather than engage in self-help by fleeing.” (Internal quotation marks omitted.) Id. (quoting Henson v. United States, 55 A.3d 859, 869 (D.C.App.2012)). ¶ 116 A determination of whether the force used by defendant in this case was reasonable is analogous to a determinati......
  • Request a trial to view additional results
1 books & journal articles
  • How the Fourth Amendment Frustrates the Regulation of Police Violence
    • United States
    • Emory University School of Law Emory Law Journal No. 70-3, 2021
    • Invalid date
    ...1224.145. 27 F.3d 1403,1404-05 (9th Cir. 1994).146. Id. at 1405.147. Id.148. Id.149. Id. at 1407. 150. Id.151. Henson v. United States, 55 A.3d 859, 866-67 (D.C. Cir. 2012).152. See, e.g., Ludwig v. Anderson, 54 F.3d 465, 471 (8th Cir. 1995); Nelson v. City of Davis, 685 F.3d 867, 875-76 (9......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT