Johnson v. United States, No. 17-CF-839

CitationNo. 17-CF-839
Case DateJuly 15, 2021
CourtCourt of Appeals of Columbia District


No. 17-CF-839


Argued February 7, 2019
July 15, 2021

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Danya A. Dayson, Trial Judge)

Steven R. Kiersh for appellant.

Jessie K. Liu, United States Attorney at the time the brief was filed, with whom, Elizabeth Trosman, Chrisellen R. Kolb, Eric Hansford, and Ann M. Carroll, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and FISHER,* Senior Judge.

Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.

Concurring opinion by Chief Judge BLACKBURNE-RIGSBY at page 23.

Concurring opinion by Associate Judge MCLEESE at page 24.

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BLACKBURNE-RIGSBY, Chief Judge: Appellant Jermal Johnson appeals the partial denial of his motion to suppress an unregistered firearm and ammunition that he discarded while fleeing on foot from law enforcement after an unlawful pat-down.1 In denying his motion to suppress, the trial court ruled first in appellant's favor that the officer conducted an unlawful pat-down. However, it found that appellant's subsequent flight ended any seizure, thereby removing the taint of the unlawful seizure from the subsequently-discarded and discovered firearm and ammunition. The only question before this court is whether appellant's flight operated to attenuate the illegal prior frisk, thereby permitting the admission of the subsequently recovered gun into evidence. Applying the attenuation doctrine to the facts of this case, we find no attenuating or intervening circumstances here and reverse appellant's firearm-related convictions.2

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I. Factual and Procedural History

At the hearing on the appellant's motion to suppress, the government introduced evidence that, at approximately 5:30 p.m. on September 23, 2016, Metropolitan Police Department ("MPD") Officers Anthony Brathwaite and Patrick Bacon were on patrol in a marked patrol car in a "high-crime area" that included the Edgewood apartment complex and the surrounding area in the District of Columbia's Northeast quadrant. Specifically, Officer Brathwaite testified it was a known high-crime area. The officers observed a white BMW, which they believed was leaving the apartment complex, fail to come to a complete stop behind the stop line at a stop sign.3 As a result, the officers conducted a traffic stop of the BMW at the 300 block of Channing Street, Northeast. The officers approached the BMW on either side of the vehicle and observed the driver and three passengers inside. An individual, later identified as appellant, occupied the front passenger seat. Officer Brathwaite noticed the driver was "shaky . . . [h]is hands were shaking. And even the way that he was talking, it gave off a nervous vibe." Officer Brathwaite did not know the driver, appellant, or any of the other occupants.

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Officer Brathwaite asked the driver to step out of the vehicle to speak with the officer. The driver complied. The officer observed that all of the occupants in the vehicle were nervous, and as a result, asked if he could search the vehicle. The driver consented to a search of his vehicle, and all occupants exited the vehicle one-by-one. Because Officers Brathwaite and Bacon were outnumbered by the car's occupants, two other officers arrived to assist. Because appellant appeared nervous and Officer Brathwaite wanted to ensure the safety of the public and the officers, he asked appellant if he could conduct a pat-down of appellant's person.4 According to Officer Brathwaite, in response, appellant "put his hands up," which the officer understood to be implied consent. The officer conducted a pat-down and felt a metal object on the right side of appellant's right leg, which he believed to be a gun. Instead of placing him in handcuffs per the officer's usual practice, he asked appellant what the object was. Appellant responded: "That's my thing." Moments later, appellant fled on foot. While Officers Brathwaite and Takim Jackson, who had arrived to assist the traffic stop, pursued him on foot, Officer Brathwaite heard

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a metal object fall to the ground in the street, but ran past it in pursuit of appellant.5 Officer Brathwaite was less than a half car-length behind appellant when he heard the metal object hit the ground and continued to chase appellant while Officer Jackson recovered the object, which was a loaded handgun. Officer Brathwaite did not observe anyone attempt to reclaim the metal object.

Officer Jackson testified that he saw appellant running with his right hand at his waist and his left hand "pump[ing] freely" and when the officer was two or three car-lengths behind appellant, he saw a gun fall from appellant's waistband on his right side and land under a nearby car. Officer Bacon continued the chase by car and witnessed appellant run through the screen door of a nearby house on the 400 block of Bryant Street, Northeast. Officer Bacon followed appellant into the house and apprehended him in the kitchen.

Appellant denied consenting to a pat-down or search of his person. Appellant further clarified that he did not raise his hands in the air at any point or make any

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physical movement immediately after exiting the vehicle. Instead, as soon as he exited the vehicle, the officer proceeded to pat him down.6 According to appellant, he did not have anything metal on his person; however, he wore a court-ordered device on his right ankle. He also denied throwing any objects. Appellant did not know the officers.

Appellant moved to suppress the gun and ammunition found by Officer Jackson, arguing that the officers did not conduct a valid traffic stop and that he was illegally seized when Officer Brathwaite patted him down without his consent. At the suppression hearing, appellant's counsel argued that, but for the officer's unlawful conduct, he would not have been frisked by the officers, nor would he have fled from them. The trial court partially granted appellant's motion to suppress. The trial court suppressed the evidence that appellant consented to the pat-down and that he subsequently abandoned the gun. In doing so, the trial court found that the officer conducted a valid traffic stop, the driver consented to a search of the car, and appellant lacked standing to object to the search of the car. Thus, the officer did not seize appellant when he ordered him out of the car; instead, he merely facilitated the consent search of the car. However, the trial judge found that appellant was

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unlawfully seized because he did not consent to Officer Brathwaite's pat-down, and there was no other constitutional basis for the pat-down. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968); see also Germany v. United States, 984 A.2d 1217, 1222 (D.C. 2009) (holding if a police officer has reasonable, articulable suspicion that an individual "might be armed and dangerous," the officer may lawfully pat-down (frisk) that individual) (footnote omitted). The trial court further found that appellant "discarded an item that was later found to be gun,"7 supporting the trial court's conclusion that appellant intended to abandon it. Relying on Henson v. United States,8 the trial court held in the alternative that, based on appellant's flight and

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decision to abandon the loaded gun, appellant lacked standing to seek exclusion of the loaded gun on Fourth Amendment grounds.9 55 A.3d 859, 866 (D.C. 2012) ("There is no need for an individual to resort to flight to protect his or her rights."). The jury ultimately convicted appellant on all counts. Appellant appeals the partial denial of his suppression motion.

On appeal, appellant argues that the factors to support seizing the appellant in Henson—"(1) appellant's unprovoked flight from the officers, (2) at night, (3) in a high crime area, (4) after the officers indicated that they were interested in investigating recent robberies in the area and that they wanted to know if appellant had weapons on him"—are not present here. Henson, supra, 55 A.3d at 867. However, these factors only support the trial court's ruling that the officer conducted an unlawful pat-down. In his brief, appellant did not address whether his flight operates to attenuate the illegal prior frisk, which would permit the admission of the gun into evidence. Our review of the record and the government's brief also shows that the government did not explicitly raise the attenuation issue in the trial court, but appellant's counsel argued its general principles. Consequently, for oral

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argument, we directed the parties to be prepared to discuss Utah v. Strieff, 136 S. Ct. 2056 (2016), and Thornton v. State, 189 A.3d 769 (Md. Ct. Spec. App. 2018) (applying the attenuation doctrine to an unlawful pat-down of a driver during a traffic stop and affirming the denial of motion to suppress a firearm discovered as a direct result of driver's flight).10

II. Attenuation Doctrine Analysis

In reviewing the trial court's denial of a suppression motion, "we view the evidence presented at the suppression hearing in the light most favorable to the prevailing party . . . [and] draw all reasonable inferences in that party's favor." Henson, 55 A.3d at 863 (cleaned up). While we review the factual findings for clear error and "'give due weight to inferences drawn from those facts by resident judges and local law enforcement officers,'" id. (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)), we review the legal conclusions drawn from those findings, de

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novo. Miles v. United States, 181 A.3d 633, 637 (D.C. 2018) (internal citation omitted).

"Generally, when physical or...

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