Jones v. United States

• Decision Date: 23 February 2017
• Docket Number: No. 15–CM–129,15–CM–129
• Citation: 154 A.3d 591
• Parties: Albert JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

154 A.3d 591

Albert JONES, Appellant,

v.UNITED STATES, Appellee.

No. 15–CM–129

District of Columbia Court of Appeals.

Argued June 7, 2016

Decided February 23, 2017

Joseph A. Mokodean for appellant.^*

Vivian Kim, Assistant United States Attorney, for appellee. Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Jay Apperson, Assistant United States Attorneys, were on the brief for appellee.

Before Glickman and Fisher, Associate Judges, and Ruiz, Senior Judge.

Opinion for the court by Associate Judge Glickman.

Dissenting opinion by Associate Judge Fisher at page 598.

Glickman, Associate Judge:

Albert Jones appeals his conviction for unlawful possession of cocaine. He claims the trial judge erred in denying his motion to suppress the cocaine as the fruit of an unconstitutional seizure when a police officer detained him, without reasonable articulable suspicion, for questioning and a warrant check. The government argues that appellant was not seized within the meaning of the Fourth Amendment's prohibition on unreasonable searches and seizures. Whether appellant was seized is the sole disputed issue before us; if he was, the government does not deny that the seizure was unlawful for lack of reasonable articulable suspicion or that the cocaine was the excludable fruit of the constitutional violation.

We conclude that a reasonable person in appellant's position would not have felt free to terminate the encounter of his own accord and go about his business by the time the police officer asked to inspect the contents of a cigarette box in his possession. We therefore agree with appellant that he was seized in violation of his Fourth Amendment rights and that the cocaine found in the cigarette box should have been suppressed. Accordingly, we reverse appellant's conviction.

I.

At the hearing on appellant's suppression motion, the government relied on one witness, Metropolitan Police Officer Zachary Blier. Officer Blier testified that he was on patrol, driving a marked police cruiser, when he came upon appellant on the evening of October 3, 2014. Sitting in the front passenger seat of the cruiser with Blier was his partner, Metropolitan Police Officer Gregory Collins. Blier was in uniform and wearing an outer tactical vest that said "Police" on the front and back. He also was wearing a gun.

The encounter occurred at around 6:00 p.m. when the officers drove into an alley in the 2500 block of North Capitol Street, Northeast. It was still daylight. The alley was narrow, only about fifteen to twenty feet wide, with a row of houses on one side and a graveyard on the other. Blier testified that he knew the area to be one "that's historically had a high volume of drug sales." Upon entering the alley, Blier saw appellant walking toward him. Appellant was alone. Blier noticed that appellant was "fiddling with a Newport cigarette box," and that when appellant looked up and saw the police car, he "immediately" lowered the hand holding the cigarette box to his side. This captured Blier's attention because he "kn[e]w individuals commonly hide drugs and drug paraphernalia in Newport boxes."

Appellant continued on his way. As he proceeded alongside the police car on the driver's side, Blier rolled down the window and said, "hey, man, how you doing?" In response, appellant stopped and turned to face Blier. Blier asked appellant where he was coming from and stepped out of the car to "engage" appellant in "conversation." When he exited the car, Blier saw appellant put the cigarette box behind his back as if to hide it from view. This increased Blier's suspicions. He asked appellant for his name, date of birth, and "probably" his address, all of which appellant provided. Blier wrote down the information and gave it to Officer Collins to "run in the system." He then asked appellant, "hey, can I see that cigarette box?" Appellant handed it to him. Blier opened the box, looked inside, and saw what he recognized to be crack cocaine. Appellant then was searched and placed under formal arrest.

Blier testified that his questioning of appellant prior to discovering the cocaine was "cordial" and lasted only a minute or two. During that time, Blier said, he gave no orders to appellant, made no threats, and did not have physical contact with appellant. He did not display or reach for his weapon. When asked how close he stood to appellant while questioning him, Blier stated that "as I opened my door ... he was in front of my door so he was, kind of stepped back a little bit and I closed my door. I mean, we were just face to face, maybe separated by three or four feet."

Appellant was the only other witness at the hearing on his motion. His description of the encounter matched Blier's in most respects. Appellant testified that Blier asked him about half a dozen questions in all, including where appellant was coming from, why he had no shopping bags (since appellant told Blier he had been shopping), his name and date of birth, whether he had personal identification on him (he did not), and where he lived. Appellant answered Blier's questions while standing in the space between the door of the cruiser and the wall of the graveyard. According to appellant, Blier remained seated inside the car during this questioning because the officer could not open the car door completely while appellant was standing only "a few inches" away from it in the "too narrow" space beside the vehicle. While appellant "could have continued walking through if [Officer Blier] wouldn't have stopped," he did not feel he could walk away "[b]ecause [Officer Blier] didn't give me an indication that I could leave" ("[i]t was more of an authority indication that I was being detained"), and "the questioning was like I was being detained." Blier then asked appellant what was in the cigarette box he was holding, and appellant said it contained cigarettes. At that point, appellant testified, Blier "command[ed]" him to place the cigarette box on the roof of the police car and move to the rear of the car. Only then, according to appellant, did Blier get out of the police cruiser.

The trial judge credited Blier's testimony. He found that Blier "drove up alongside" appellant in a "very narrow" alley after seeing him "fidgeting with a Newport cigarette box," and that Blier was "suspicious" of the cigarette box and proceeded to question appellant. In response to the officer's inquiries, appellant "provided information about his date of birth and his name such that [Blier's] partner could run perhaps a WALES check to see if there's any outstanding warrants."¹ Blier then asked appellant if he could see the cigarette box, and appellant handed it to him; the judge found implausible and did not believe appellant's testimony that Blier ordered him to place the cigarette box on the roof of the police car. We infer that the judge also accepted Blier's testimony that he exited the car at the outset of the confrontation to question appellant face to face, and disbelieved appellant's conflicting testimony that Blier remained inside the cruiser until appellant obeyed his command to put the box on the roof.

The judge considered it "a very close question" under these circumstances whether appellant had been seized unlawfully within the meaning of the Fourth Amendment by the time he gave the cigarette box to Blier. Ultimately, however, the judge ruled that appellant had not been seized at that point, and that he consented to a search of the cigarette box by voluntarily turning it over at Blier's request. The judge concluded that the encounter was not "so coercive" prior to the search as to amount to a seizure because it lasted only a minute or two, Blier spoke to appellant in a "cordial" tone of voice without demanding he do anything, and the officer did not touch appellant or draw his weapon at any time. The judge thought the encounter would have been "more coercive" if it had been longer and appellant had had "to wait on the scene while [the officers] ran information or came back and checked on him to get more information."

II.

When we review a ruling on a motion to suppress, we defer to the trial judge's factual findings unless they are clearly erroneous, but whether there was a seizure for Fourth Amendment purposes is a question of law that we review de novo .² "[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions."³ Rather, "a seizure will have occurred only when the officer, by means of physical force or show of authority, has in some way restrained someone's liberty."⁴ Accordingly, in a street encounter such as this one, "the 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'—in other words, that he was ‘not free to leave.’ "⁵ The hypothesized "reasonable person" in this test is an innocent person.⁶

The message that a suspect is not free to leave or terminate the inquiry can be conveyed, not necessarily intentionally, in ways less obvious than actual physical force or explicit command. In United States v. Mendenhall ,⁷ Justice Stewart wrote that "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled."⁸ These particular circumstances were largely absent or of lesser import in this case. There were not "several" officers on the scene, but just two, and while this still meant that appellant was outnumbered by the police, Officer Collins remained...