Maye v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: SHANKER, ASSOCIATE JUDGE.
• Docket Number: 22-CO-0940
• Decision Date: 16 May 2024
• Parties: Mario Tyrell Maye, Appellant, v. United States, Appellee.

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Mario Tyrell Maye, Appellant, v. United States, Appellee.

No. 22-CO-0940

Court of Appeals of The District of Columbia

May 16, 2024

Submitted December 5, 2023

Appeal from the Superior Court of the District of Columbia (2013-CF2-000616) (Hon. Patricia A. Broderick, Trial Judge)

Sicilia C. Englert was on the brief for appellant.

Matthew M. Graves, United States Attorney, and Chrisellen R Kolb, Nicholas P. Coleman, and Mark Hobel, Assistant United States Attorneys, were on the brief for appellee.

Before Beckwith, Deahl, and Shanker, Associate Judges.

SHANKER, ASSOCIATE JUDGE.

Appellant Mario Maye and a group of about seven friends were gathered outside on a block in Southeast Washington, D.C., when a police car approached and parked near the group. Two officers, who had not seen any illegal activity, stepped out of the car and walked toward the group to speak with them. One officer immediately focused on Mr. Maye after observing him adjust something in his waistband. He approached Mr. Maye and noticed an ordinary pocketknife clipped to his pocket. The officer asked Mr. Maye if Mr. Maye could remove his hand from his pocket while they spoke, and then asked if he could pat down Mr. Maye for weapons. Mr. Maye agreed. During the pat-down, the officer found a bag of cocaine in Mr. Maye's waistband.

Mr. Maye was charged with possession of cocaine with the intent to distribute it, in violation of D.C. Code § 48-904.01(a)(1). He moved to suppress the narcotics as the fruit of an illegal seizure. The trial court denied the motion, finding that Mr. Maye had voluntarily consented to the search. A jury found Mr. Maye guilty of possession with intent to distribute cocaine.

Mr. Maye has appealed the denial of his motion to suppress twice before. We remanded the case each time, concluding that the trial court made insufficient findings for our ultimate review as to whether Mr. Maye's Fourth Amendment rights had been violated. Maye v. United States, No. 13-CF-1271, Mem. Op. &J. at 4 (D.C. July 15, 2015); Maye v. United States, 260 A.3d 638, 644 (D.C. 2021). Following the second remand, the trial court concluded that Mr. Maye had not been seized before he consented to the pat-down search and that he voluntarily consented to the pat-down.

Mr. Maye now appeals a third time, reiterating his arguments that (1) he was unlawfully seized when an officer requested to search him and thus any consent was invalid as the fruit of an illegal seizure; (2) any purported consent was coerced and involuntary; and (3) even if he had consented, the search exceeded the scope of consent for a weapons pat-down. We are unpersuaded by each of Mr. Maye's contentions and affirm his conviction.

I. Background

A.

After a police officer found narcotics on Mr. Maye during a pat-down search, Mr. Maye was charged with possession with intent to distribute cocaine. Maye v. United States, 260 A.3d 638, 641 (D.C. 2021). He moved to suppress the cocaine, arguing that he had been illegally seized in violation of the Fourth Amendment before consenting to the search. Id. at 641. The evidence at the suppression hearing was as follows.

One evening in January 2013, Officers Sean Kenney and Matthew Jones were on routine patrol in a marked police vehicle in the District of Columbia's Sixth District. Id. They came to the 800 block of 51st Street, SE, which they described as a high-crime area known for guns and narcotics-related offenses. Id. at 641-42. On that block, they saw a group of about eight individuals standing near a car parked alongside the curb. Id. at 642. Although the officers did not observe any unlawful conduct, they pulled up near the group, parked their police car, and approached to initiate a citizen encounter. Id. The officers did not activate their patrol car's siren or emergency lights but were dressed in full police uniform. Id.

Officer Kenney's focus immediately turned to Mr. Maye, who had "manipulat[ed] his waistband" with his right hand and placed that same hand in his pocket. Id. Officer Kenney walked toward Mr. Maye, noticed an ordinary pocketknife clipped to that same pocket, and asked a few questions. Id. First, he asked Mr. Maye if he could "speak to him for a minute," and Mr. Maye responded with "something to the effect of, sure, what's up?" Id. Officer Kenney then asked, "while I'm speaking with you, would you mind taking your hand out of your pocket," and Mr. Maye complied. Id. Next, he asked, "while I'm speaking with you, do you mind if I pat you down for officer safety for any weapons?" and Mr. Maye replied, "sure, that's fine." Id. Mr. Maye placed his hands on the nearby car, and Officer Kenney began patting him down. Id. Officer Kenney patted Mr. Maye's waistband and "felt a bulge" that he "immediately recognized" to be packaged narcotics. Id. He reached into Mr. Maye's waistband and removed a clear plastic bag containing fifty-five smaller bags of a rock-like substance, which was later confirmed to be cocaine. Id.

Mr. Maye and Ronald Hall, a friend of Mr. Maye's at the scene, described quite a different police encounter. Id. at 641-42. Mr. Maye claimed that the officers approached the group, asked if they had any weapons, instructed everyone to place their hands on the car, and immediately handcuffed him before he was searched. Id. at 642. Mr. Hall testified that the two officers "pulled up" and asked, "who lives here?" Id. at 643. Then, Officer Kenney immediately turned to and grabbed Mr. Maye while Officer Jones directed the rest of the group to put their hands on the car. Id. Mr. Hall was unsure whether Officer Kenney sought Mr. Maye's permission to conduct a search. Id. Finding Officer Kenney's account more consistent and credible, the trial court credited his version of events over the versions offered by Messrs. Maye and Hall. Id. at 642-43.

The trial court orally denied Mr. Maye's motion. Id. at 643. The entirety of the initial ruling was as follows:

Listening to all the testimony, I do find that I credit Officer Kenney. I'm not overly impressed with Officer Jones. Mr. Hall was credible, too, but inconsistent, really, in the details that he was able to provide, but he didn't provide a lot of details.

I find that Officer Kenney and Officer Jones were more consistent with each other than Mr. Hall and Mr. Maye. For that reason, I do give more credit to Officer Kenney and I do find that there was consent in this case. So I'll deny the motion.

Id.

The case proceeded to trial, and a jury found Mr. Maye guilty of possession with intent to distribute cocaine. Id.

B.

In his first appeal, Mr. Maye argued that the trial court committed various errors in denying his suppression motion. Id. We did not resolve Mr. Maye's legal arguments because the trial court's findings were insufficient to permit meaningful appellate review. Maye v. United States, No. 13-CF-1271, Mem. Op. &J. at 3-4 (D.C. July 15, 2015). We remanded the case for a clearer determination whether Mr. Maye's consent was voluntary, whether it was the product of an illegal seizure, and whether the seizure of drugs exceeded the scope of consent. Id. at 4.

On remand, the trial court issued a written order denying Mr. Maye's suppression motion. Maye, 260 A.3d at 643. The court articulated two alternative bases for its ruling. Id. First, it concluded that the officers had reasonable, articulable suspicion to seize Mr. Maye and pat him down for weapons under Terry v. Ohio, 392 U.S. 1 (1968), and therefore consent was immaterial. Maye, 260 A.3d at 643. Second, the court concluded, in the alternative, that Mr. Maye voluntarily consented to the search. Id. In support of this determination, the trial court found, among other things, that when Officers Kenney and Jones approached the group, they stated "that no one in the group was in trouble" and that, contrary to Mr. Maye's testimony, Mr. Maye had not been ordered to place his hands on the vehicle and immediately handcuffed. Id. at 651-52.

Mr. Maye appealed a second time. We concluded that, if Mr. Maye had in fact been seized, reasonable, articulable suspicion to justify the seizure was lacking. Id. at 644. We observed that "there is nothing suspicious about gathering with a small group of friends outside at around 7:15 in the evening," "[Mr.] Maye's hand movements . . . were innocuous," and the presence of an ordinary pocketknife, which Officer Kenney did not suspect was illegal, did not give rise to reasonable suspicion as required for an investigatory seizure and protective pat-down. Id.

As to the court's consent ruling, we concluded that if Mr. Maye had been seized at the time he agreed to a search, then any consent offered was "tainted by the illegal seizure" and thus invalid. Id. at 651. We declined to resolve the issue, however, because the factual findings as to whether Mr. Maye was seized at the time of purported consent were, again, insufficient. Id. Thus, we directed the trial court to determine whether the officers had directed the entire group to put their hands on the car-a circumstance to which Messrs. Maye and Hall testified but that was absent from Officer Kenney's testimony. Id. We noted the significance of this fact because "a reasonable person in [Mr.] Maye's shoes might think it material, when assessing whether they are free to terminate a police encounter, if seven of their friends have likewise been directed to assume the position and then complied." Id. Additionally, we highlighted two potential factual inconsistencies for the trial court to review on remand: the court's suggestion that the officers had specified that no one was in trouble, which was not supported by any testimony, and its dismissal of Mr. Maye's testimony that he "was ordered to place his hands on the . . . vehicle and...