Morgan v. United States

• Decision Date: 06 August 2015
• Docket Number: No. 13–CM–1102.,13–CM–1102.
• Citation: 121 A.3d 1235
• Parties: Edward MORGAN, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

121 A.3d 1235

Edward MORGAN, Jr., Appellant

v.UNITED STATES, Appellee.

No. 13–CM–1102.

District of Columbia Court of Appeals.

Argued Dec. 9, 2014.

Decided Aug. 6, 2015.

Stephanie L. Johnson for appellant.

Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Lindsey Merikas, Assistant United States Attorneys, were on the brief, for appellee.

Before THOMPSON, EASTERLY, and McLEESE, Associate Judges.

Opinion

McLEESE, Associate Judge:

Appellant Edward Morgan, Jr. challenges his conviction for possession of cocaine. Mr. Morgan argues that the trial court erroneously denied his motion to suppress evidence. We affirm.

I.

The United States's evidence at the suppression hearing indicated the following. On June 29, 2013, at approximately 9:00 p.m., a citizen called the police to report potential drug crimes occurring near the citizen's residence. A fellow officer communicated the citizen's contact information and location to Sergeant James Boteler and Officer Derek Tarr, who went to the citizen's apartment building and spoke with the citizen. The citizen, who worked for the Department of Homeland Security, told the officers that the citizen on more than one occasion had seen what the citizen believed to be hand-to-hand drug transactions near the citizen's apartment. The citizen further explained that, a few minutes before calling the police, the citizen saw a man on a bicycle exchange small objects with another man, after which the two parted ways. During the exchange, the man on the bicycle “reach[ed] into the back of [his] pants and pull[ed] something out [and] put it back in.” The citizen described the man as a short black male with dreadlocks, riding a red bicycle. The citizen also described the color of the man's shirt; Sergeant Boteler at various points indicated that the citizen described the man's shirt as “blue gray,” “purplish gray, or purple slash gray,” or “purple and grayish.”

The officers drove around the area looking for the suspect. About ten to fifteen minutes later, the citizen called Sergeant Boteler and said that the man on the bicycle was in the 1500 block of P Street, NW. Within about thirty seconds, the officers arrived at that location and saw Mr. Morgan, who was riding a red bicycle and matched the description of the suspect. The officers got out of their car, and Sergeant Boteler asked Mr. Morgan if they could talk to him for a second. Sergeant Boteler told Mr. Morgan that he matched the description of someone who may have been involved in a drug transaction and asked Mr. Morgan if he had any illegal drugs on him. Mr. Morgan denied that he did but said that he did have “some K–2 stuff.” Sergeant Boteler knew that “K–2” is a common term for synthetic cannabinoids and that possession of certain synthetic cannabinoids has been illegal under federal law since 2012. Mr. Morgan told Sergeant Boteler that Sergeant Boteler could search him but that he did not have anything on him.

One of the officers took the K–2 out of Mr. Morgan's pocket. Sergeant Boteler ran his hands around Mr. Morgan's waistband and felt an object below Mr. Morgan's waistband, underneath the back of the pants. At this point, one of the officers handcuffed Mr. Morgan. After officers tried to persuade Mr. Morgan to remove the drugs from his person, Mr. Morgan reached into the back of his pants, took out a substantial amount of crack cocaine, and dropped it on the ground.

Mr. Morgan called his wife as a witness at the suppression hearing. She testified that on the date of the arrest she saw Mr. Morgan sitting in a police car, wearing a blue t-shirt and a hat.

At the close of the suppression hearing, Mr. Morgan argued that all of the evidence should be suppressed, because the officers unlawfully stopped him in violation of the Fourth Amendment. Concluding that the stop was justified by reasonable articulable suspicion, the trial court denied the motion to suppress. The trial court then found Mr. Morgan guilty after a stipulated trial.

II.

Mr. Morgan argues that the trial court erred in finding that the officers had reasonable articulable suspicion to conduct a Terry stop. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (officers may conduct investigatory stop if they reasonably believe “criminal activity may be afoot”). We conclude otherwise.

A.

When reviewing a trial court's denial of a motion to suppress, we “must view the evidence in the light most favorable to the prevailing party.” Bennett v. United States, 26 A.3d 745, 751 (D.C.2011) (internal quotation marks omitted). We draw all reasonable inferences in favor of upholding the trial court's ruling. Milline v. United States, 856 A.2d 616, 618 (D.C.2004). “The police may briefly detain a person for an investigatory or Terry stop ... if the officers have a reasonable suspicion based on specific and articulable facts that criminal activity may be occurring.” Pinkney v. United States, 851 A.2d 479, 493 (D.C.2004) (internal quotation marks omitted). “ ‘[R]easonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence....” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; see also, e.g., Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (investigative detention requires “some minimal level of objective justification”); Robinson v. United States, 76 A.3d 329, 336 (D.C.2013) ( “The reasonable, articulable suspicion standard requires substantially less than probable cause and considerably less than proof of wrongdoing by a preponderance of the evidence. It is not onerous, but it is not toothless either.... Unparticularized suspicion and inarticulate hunches are not sufficient to sustain a Terry stop ....”) (citations and internal quotation marks omitted).

B.

We conclude that the information provided by the citizen provided the officers with reasonable articulable suspicion to conduct a Terry stop. We note at the outset that although the citizen was not named at the suppression hearing, the citizen provided contact information and spoke to the police in person. The citizen thus was an adequately reliable source of information. See, e.g., Joseph v. United States, 926 A.2d 1156, 1161 (D.C.2007) ( “[I]nformation from an identified citizen is presumptively reliable.”).

1.

We conclude that the information provided by the citizen gave rise to a reasonable belief that the suspect was involved in unlawful activity. In reaching this conclusion, we rely on the citizen's statement that the suspect “reach[ed] into the back of [his] pants and pull[ed] something out [and] put it back in” during the exchange of small objects with another man. Interpreted naturally, that statement indicated that the suspect had reached inside the rear of the suspect's waistband. See, e.g., United States v. Scott, 987 A.2d 1180, 1185–86 (D.C.2010) (interchangeably referring to “reaching into the back of his pants,” reaching into his pants, and reaching “into the waistband of his pants”) (internal quotation marks omitted); Mothersell v. Syracuse, 289 F.R.D. 389, 398–99 (N.D.N.Y.2013) (equating attempt to “reach down into the back of his pants” and “attempt to stick his fingers inside the waistband of his pants and underwear”); Donaldson v. State, 416 Md. 467, 7 A.3d 84, 87, 93 (2010) (where officer described suspect as pulling plastic bag “from the rear of his pants,” court concludes that “keeping the items in a plastic bag in the rear of his pants was undoubtedly suspicious”). Although it is in theory possible that the citizen meant only to indicate that the suspect reached into a back pocket, rather than inside the waistband of the suspect's pants, that does not seem to be the more natural interpretation of the citizen's words. In any event, the Fourth Amendment requires only that the police have a reasonable basis for their actions, and we conclude that it would be objectively reasonable to understand the citizen's statement as indicating that the suspect obtained an object from inside the waistband of his pants and then returned an object to the same location. Cf., e.g., United States v. Fury, 554 F.2d 522, 530–31 (2d Cir.1977) (“The conversations, while somewhat ambiguous at times, can be reasonably interpreted to indicate what the detective interpreted them to be.”). In arguing to the contrary, the dissent suggests that ambiguity is fatal to reasonable articulable suspicion. Infra p. 1243. The law is otherwise. See, e.g., Wardlow, 528 U.S. at 125, 120 S.Ct. 673 (“Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.... Terry recognized that the officers could detain the individuals to resolve the ambiguity.”); Umanzor v. United States, 803 A.2d 983, 993 (D.C.2002) (“[T]he Terry standard does not require that an officer rule out the possibility of innocent behavior, for suspicious conduct by its very nature is ambiguous, and the principal function of the investigative stop is to quickly resolve that ambiguity[.]”) (internal quotation marks omitted).

We further conclude that a person's removal and replacement of an object from inside the waistband of the back of his pants during an exchange will typically create reasonable articulable suspicion to believe that the suspect was involved in criminal wrongdoing. In the circumstances of this case, we see no plausible, innocent explanation for such conduct. To the contrary, we view such conduct as comparable to storing objects in the crotch area, which we have described as “a uniquely private part of the body not normally used for carrying lawfully-held personal effects....” Jefferson v. United States, 906 A.2d 885, 888 (D.C.2006) (per curiam) (finding probable cause where suspect in high-drug area who was speaking to another man reached...