Jackson v. United States, 14–CF–534

• Decision Date: 13 April 2017
• Docket Number: No. 14–CF–534,14–CF–534
• Citation: 157 A.3d 1259
• Parties: Nathan Pierre JACKSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

157 A.3d 1259

Nathan Pierre JACKSON, Appellant,
v.
UNITED STATES, Appellee.

No. 14–CF–534

District of Columbia Court of Appeals.

Argued June 23, 2016
Decided April 13, 2017

Claire H. Pavlovic, Public Defender Service, with whom James Klein and Mikel-Meredith Weidman, Public Defender Service, were on the brief, for appellant.

Nicholas P. Coleman, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, Assistant United States Attorney, were on the brief, for appellee.

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

Opinion for the court by Associate Judge Fisher.

157 A.3d 1262

Opinion by Associate Judge Beckwith, concurring in part and dissenting in part, at page 1268.

Fisher, Associate Judge:

Appellant Nathan Jackson appeals his convictions for assaulting and robbing Corinthea Thompson. He primarily argues that the trial court erred in denying his motion to suppress because the police seized him for a show-up based on an "anonymous" and "uncorroborated" tip provided by the victim's mother. He also mounts a facial challenge to the 2013 version of D.C. Code § 22–4504 (a), contending it violated the Second Amendment by banning the carrying of pistols in public. We reject these arguments and affirm his convictions.

I. Background

Evidence at the suppression hearing showed that shortly after noon on July 9, 2013, appellant Nathan Jackson approached Corinthea Thompson as she was walking down the street and demanded, "[g]ive up your shit."¹ When she refused, appellant struck her on the head with a "silver and black-colored handgun," knocking her unconscious, before stealing her watch and gold necklace. Officer Dion Smith arrived shortly thereafter, as did the victim's mother, who spoke with both her daughter and the officer. The victim told Officer Smith that the robber was "a dark-complected, black male," anywhere from five feet ten inches to six feet in height, 150 to 160 pounds, "with dread locks" and a thin build.

Approximately forty-five minutes to an hour after the robbery, the victim's mother, Shirley Thompson-Wright, called the police "for a second sighting as to where the suspect was in reference to her daughter's robbery."² Officer Stephen Chih, who "had heard about the robbery," responded to the intersection of 35th and East Capitol Streets. When Officer Chih arrived, the victim's mother was "cursing," "yelling[,] and screaming," saying that "the suspect was up in that apartment right now" and that if the police "don't go in there, I'm going to go in there and handle whatever I got to do." She provided the address 3425 East Capitol Street, apartment 301.

Officer Chih asked the victim's mother, Ms. Thompson-Wright, to calm down and to tell him "specifically what [wa]s going on," because he had not yet learned the particulars of the robbery (such as the victim's description of the robber). Ms.

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Thompson-Wright explained when and where her daughter had been robbed, and told him she had a picture of the suspect. She then gave Officer Chih a photograph which depicted a "[b]lack male, dark complected, with dreadlocks." She also told him she had received the photograph "from the neighborhood" but had not witnessed the robbery. Officer Chih then requested "other units to respond."

After backup units arrived, Officer Chih left Ms. Thompson-Wright with other officers and turned his attention to locating the suspect. Accompanied by Officer Curt Bonney, he went up to the third floor of the apartment building with the photograph tucked in his uniform shirt and the understanding that "[t]here was still a suspect outstanding with a firearm."

When Joyce Lewis answered the officers' knock, they explained that a crime of violence "had occurred earlier in the day" and "that there was information that a potential suspect was in her apartment." They asked whether any males were in the apartment, and Ms. Lewis said that only her son was there. Showing the photograph to Ms. Lewis, Officer Chih asked if that was her son. She replied that it was not, but did not indicate that she knew the person in the photograph or tell the officers that he was present.

Ms. Lewis invited the officers inside, and her son Craig Lewis came to the door. It was apparent to Officer Chih that Craig Lewis was not the person in the photograph. The officers requested Craig's identification and asked whether anybody else was inside. Craig said his identification was back in the bedroom, and Ms. Lewis and Craig indicated "that there was ... nobody else inside the apartment."

Following Craig to the bedroom, the officers were "surprised" to find "two other subjects" inside—the appellant and his brother, Rico Jackson. Appellant appeared "[v]ery nervous," and was "[w]ide eyed, kind of breathing a little bit heavy, constantly staring at his brother, back and forth, making eye contact with his brother." The brothers looked like each other and looked like the photo. Noting that appellant's brother Rico had a facial tattoo that was not depicted in the photograph, however, Officer Chih focused on appellant as the primary suspect. His suspicion solidified before the show-up procedure, when Craig Lewis told him that Rico had spent the night at the apartment, but appellant had just come in 15–20 minutes before the police arrived.

Officer Chih told appellant not to make any sudden moves and asked for identification. When appellant stated that his ID was in his wallet in his back pocket, the officer told him to stand up very slowly and remove it. Officer Chih also told appellant he was going to "pat him down for any type of weapons." The pat-down revealed no weapons, but Officer Chih noticed a white, plastic bag directly underneath where appellant had been sitting. Picking up the bag, Officer Chih immediately could feel that it contained expended shell casings.

The atmosphere became "[v]ery tense," and based on "the nature of the original crime," "the demeanor of both Nathan and Rico Jackson being very intense," and the fact that Ms. Thompson-Wright had predicted the officers would find the robber there (despite the Lewis's denials), Officer Chih alerted the other officers that there was "potentially a gun in [the room.]"

Without investigating further, Officer Chih left the room "to coordinate [a] show-up identification process" because an eyewitness to the crime had been found. (It seems that Ms. Thompson-Wright may have told the police about the witness, Ms. Matthews, while Officer Chih was upstairs

157 A.3d 1264

with appellant.) Officers Lavern Miller and Shaquinta Gaines remained in the room, but appellant began acting suspiciously. Pretending to be tired, he laid back and began reaching underneath the sheet at the head of the bed. Officer Miller said, "I know what you're doing. You need to stop moving and sit up right now." Appellant complied. After Officer Chih took appellant outside for the show-up, Officer Miller "pulled back the sheet from where Nathan Jackson was reaching" and found "a silver and black-colored handgun ... [with] six[, live] rounds in the magazine."

Outside, Ms. Matthews "immediately" identified appellant as the "man who had the gun and was robbing the girl." Officer Chih then arrested appellant; as he returned to the apartment, he heard "a radio transmission" revealing that Officer Miller had found the weapon. The officers then obtained written consent to search the apartment from both Joyce Lewis and Craig Lewis. That search revealed the expended cartridge casings, the firearm and ammunition, and clothing that matched the victim's description of the robber's attire. The police did not find Corinthea Thompson's watch or necklace.

On January 29, 2014, appellant's trial commenced before the Honorable John McCabe, and on February 7, 2014, the jury found appellant guilty of armed robbery, assault with a dangerous weapon ("ADW"), and other charges related to the firearm and ammunition.³

II. Fourth Amendment

Appellant argues that the trial court should have granted his motion to suppress the identification by the eyewitness and the physical evidence found in the apartment because the police did not have reasonable articulable suspicion to detain him. He asserts that the information Ms. Thompson-Wright gave to the police (1) "amounted to an anonymous tip" because it was "attributed" to "the neighborhood grapevine" and (2) was not sufficiently corroborated.

A. Standard of Review

When reviewing the denial of a motion to suppress, we "must defer to the court's findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling below." Joseph v. United States , 926 A.2d 1156, 1160 (D.C. 2007). "The court's legal conclusions on Fourth Amendment issues ... are ‘subject to de novo review.’ " Id. When conducting that de novo review, however, we "give due weight to a trial court's finding that the officer was credible and [that] the inference [he drew] was reasonable." Ornelas v. United States , 517...