Maye v. United States
| Decision Date | 07 October 2021 |
| Docket Number | No. 19-CO-0589,19-CO-0589 |
| Citation | 260 A.3d 638 |
| Parties | Mario MAYE, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Monica J. Milton was on the brief for appellant.
Timothy J. Shea, United States Attorney at the time the brief was filed, with whom Elizabeth Trosman, Chrisellen R. Kolb, Christine Macey, and Mark Hobel, Assistant United States Attorneys, were on the brief, for appellee.
Before Easterly, McLeese, and Deahl, Associate Judges.
Mario Maye and a group of about seven friends, a mix of males and females, were gathered outside one evening when a police vehicle pulled up and parked near the group. Two officers, who had not observed any illegal activity and were not responding to any report, exited the vehicle. Officer Sean Kenney's focus immediately turned to Maye because he was doing something with his waistband and then placed his hand into his pants pocket where a "typical folding pocketknife" was clipped. There are some unresolved questions about what happened next, but ultimately Officer Kenney approached Maye, asked him to take his hand out of his pocket, and then asked if he could search him. Maye agreed and the officer found cocaine in his waistband during the search. Maye moved to suppress the narcotics, arguing he had been illegally seized in violation of his Fourth Amendment rights before purportedly consenting to the search. The court denied the motion, finding Maye had voluntarily consented to the search, but without addressing Maye's contention that his consent was the fruit of an illegal seizure. A jury then found Maye guilty of possession with intent to distribute cocaine.
Maye appealed, maintaining that his Fourth Amendment rights were violated because any consent to the search was the byproduct of an illegal seizure. We did not resolve that question in an earlier appeal, instead remanding the case because we were "unable to ascertain, on th[at] record, what specific testimony the trial court credited." Maye v. United States , No. 13-CF-1271, Mem. Op. & J. at 4, 117 A.3d 1043 (D.C. July 15, 2015). We instructed the trial court, on remand, to make a "clearer determination" about "whether [Maye]’s consent was voluntary, [or] whether it was the product of an illegal seizure." Id. On remand, the trial court issued a written order finding "police officers obtained consent to search [Maye] during a lawful Terry stop" because they had reasonable articulable suspicion to seize him. Maye now appeals again, raising the same core Fourth Amendment claim.
We agree with Maye that, if he was seized, that seizure was unlawful and the trial court erred in concluding it was supported by reasonable articulable suspicion. Any consent he offered while unlawfully seized would "not [be] free from the taint of unlawful detention" under these circumstances, and would thus be "insufficient to show consent." Jones v. United States , 154 A.3d 591, 598 n.20 (D.C. 2017).
The government nonetheless asks us to affirm on the ground that Maye was not seized, contrary to the trial court's repeated statements that his consent came amidst a lawful Terry stop. Unfortunately, we once again find ourselves without findings critical to assessing that question. The trial court focused its findings on whether it was reasonable to seize Maye and whether Maye voluntarily consented to a search regardless of whether he was seized. But it never focused on the related and we think dispositive question of whether Maye was seized at the moment of his purported consent. For instance, while the court stressed that Ronald Hall—Maye's friend at the scene—testified to facts that "did not materially contradict the officers’ testimony," his testimony did diverge from the officers’ in respects critical to assessing when Maye was seized. Because further factual findings are potentially dispositive as to whether Maye was seized when he agreed to be searched, we remand the case for further findings.
Maye was arrested and indicted for possession with intent to distribute a controlled substance after officers discovered cocaine in his waistband. He moved to suppress the drugs found on him during a pat-down search preceding his arrest, and the trial court held an evidentiary hearing on that suppression motion.
The government presented testimony from Officers Sean Kenney and Matthew Jones at the suppression hearing. Each testified that on January 10, 2013, at around 7:15 p.m., they were on routine patrol in a marked police vehicle in the District of Columbia's Sixth District. 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. Officer Jones testified that "we've come into contact with multiple individuals in that block with weapons and narcotics," and that just one week prior to testifying, he arrested someone on that same block with four PCP-dipped cigarettes. Officer Kenney more generally described the entire Sixth District—save for a "couple of little streets here and there maybe" and a park "where it might not be as high as other areas"—as a high-crime area. On that block they saw a group of about eight people, mostly males with a couple of females, standing near a car parked alongside the curb. While the group was not "doing anything that appeared to be illegal," the officers—both in full police uniform—pulled up near the group and parked their car to initiate a "citizen encounter." They did not activate their patrol car's siren or emergency lights.
Officer Kenney's focus immediately turned to Maye because he—while facing Officer Kenney and without "trying to hide" what he was doing—"manipulat[ed] his waistband" with his right hand. Maye then put that same hand in his right pants pocket. Officer Kenney approached Maye and noticed what he identified as a "typical folding pocket knife" clipped inside of that same pocket, though he did not "feel threatened" by it or suspect the knife was illegal in any respect. He described it as "a silver knife with a silver clip," "[l]ike the clip on the back of a pen," though the body of the knife was "in [Maye's] pocket" so it is unclear how much beyond the clip Officer Kenney was able to see. There was no further description of the knife—Officer Jones had no recollection of a knife, Hall testified that he did not see Maye with a knife, and Maye disclaimed having one. Officer Kenney did not otherwise "see anything bulge wise" or observe anything "to suggest that [Maye] was breaking the law," and he did not disagree that Maye might "have been adjusting" the belt he was wearing when manipulating his waistband. Nonetheless, based on the "movements [Maye] was making with his hand," Officer Kenney testified he was "concerned with the fact that there might be a gun in [Maye's] waistband."
Officer Kenney asked Maye if he could "speak to him for a minute," and Maye responded with "something to the effect of, sure, what's up?" Officer Kenney then said, "while I'm speaking with you, would you mind taking your hand out of your pocket," and Maye complied. He next asked: "[W]hile I'm speaking with you, do you mind if I pat you down for officer safety for any weapons?", and Maye replied, "sure, that's fine." Maye then placed his hands on the trunk of the nearby car, and Officer Kenney "immediately went to the area of his waistband" as he started the pat-down search. Officer Kenney "felt a bulge" that he "immediately recognized to be narcotics." He then reached into Maye's waistband and removed a "clear plastic bag that contained 55 smaller [bags], each of which contained a rock-like substance" later confirmed to be cocaine. Officer Kenney could not recall if he removed the pocketknife during the pat-down, noting only that he "didn't seize it as evidence or anything like that," but that it was certainly removed at some point and perhaps given to one of Maye's friends at the scene.
Maye and Hall testified to a very different version of the encounter. Maye testified that the officers "pulled up," "got out of the[ir] car," asked if anyone in the group had weapons, instructed "everybody [to] put [their] hands on the car," and then "immediately" handcuffed him before he was searched. He went into more detail, but the trial court generally did not credit Maye—and specifically discredited his claim, echoed by Hall, that he was handcuffed before being searched—so we turn to Hall's account, which the court found more credible.
Hall testified that he was hanging out with a group of about seven friends when two officers "rode up," "proceeded to get out of [their patrol] car," and asked "who lives here?" Officer Kenney went immediately to Maye and grabbed him, while at about the same time Officer Jones directed the rest of the group to put their hands on the car. Hall at times described this as a command and at times as a request, once recounting Officer Jones saying to the group, "we going to need you to put your hands on the car," and later phrasing it as, "can you get up and put your hands on the car?" Hall was then questioned by Officer Jones, but he was still able to hear and see Maye's interactions with Officer Kenney. He was unsure if Officer Kenney ever asked Maye for permission to conduct a search.
At the conclusion of the hearing, the trial court orally denied Maye's suppression motion. The entirety of that initial ruling is as follows:
The case then proceeded to trial and a jury found Maye...
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