Newman v. United States

• Decision Date: 02 September 2021
• Docket Number: No. 17-CF-520,17-CF-520
• Citation: 258 A.3d 162
• Parties: Everick NEWMAN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

258 A.3d 162

Everick NEWMAN, Appellant,

v.UNITED STATES, Appellee.

No. 17-CF-520

District of Columbia Court of Appeals.

Submitted May 30, 2018

Decided September 2, 2021

Christine Pembroke was on the brief for appellant.

Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Bridget Behling, L'Shaunteé J. Robertson and Chimnomnso N. Kalu, Assistant United States Attorneys, were on the brief for appellee.

Before Thompson and Easterly, Associate Judges, and Nebeker,^* Senior Judge.

Per curiam opinion on page 164.

Separate statement by Associate Judge Easterly concurring in the judgment on pages 166–67.

Concurring opinion by Senior Judge Nebeker on pages 166–67.

Per Curiam:

Everick Newman appeals his convictions for unlawful possession of a firearm,¹ related gun charges,² and unlawful possession of a controlled substance³ following a stipulated bench trial. He argues that the trial court erred in concluding the police had the requisite reasonable, articulable suspicion to conduct a Terry⁴ stop.⁵ He also raises a Second Amendment challenge to his gun convictions based on the D.C. Circuit's decision in Wrenn v. United States , 864 F.3d 650 (D.C. Cir. 2017). The judgment is affirmed.

I.

Turning first to Mr. Newman's challenge to the trial court's suppression ruling, we reaffirm that we review de novo all legal rulings on Fourth Amendment issues, but we review only for clear error the trial court's factual findings, and we examine the full record in the light most favorable to the government as the prevailing party. See (Anthony) Hooks v. United States , 208 A.3d 741, 745 (D.C. 2019). The trial court's decision to deny Mr. Newman's motion to suppress was based largely on the credited testimony of one of the arresting officers, Officer Moshier, that (1) Mr. Newman ran away from him and his partner, Officer Cory, at "full speed," when they responded to an unrelated report of disorderly conduct at an apartment building in a southeast Washington neighborhood where the police were called out to frequently, (2) Mr. Newman held the waistband of his pants with his right hand as he ran, while his left arm swung freely, (3) when the police went to look for him after they responded to their call, he again ran away from them at "full speed," securing his waistband with his right hand, and (4) when the police caught sight of Mr. Newman again, he ran away a third time and then finally "gave up" and stopped, allowing Officer Moshier to seize him. The trial court concluded that this evidence gave the police a lawful basis to conduct a Terry stop and frisk.

Mr. Newman argues that "[i]n this case, ... where the officer was responding [only] to flight and furtive gestures," it was error for the trial court to conclude that the police had reasonable articulable suspicion that Mr. Newman was engaged in criminal activity. Mr. Newman begins his analysis by highlighting the fact that the police had no reason to suspect him of criminal activity when they saw him. But as the record established, soon after the police encountered Mr. Newman, he ran away from them while clutching his waistband with one hand, in a manner that made Officer Moshier think Mr. Newman had "some sort of illegal contraband," in a neighborhood Officer Moshier testified "[wa]s known for a lot of gun violence and drugs."

Regarding the trial court's consideration of his flight, Mr. Newman does not appear to take issue with the relevance of flight generally in the reasonable suspicion analysis, although he fails to cite the Supreme Court's decision in Illinois v. Wardlow , 528 U.S. 119, 124–25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (recognizing that unprovoked flight is pertinent to the Terry calculus). Instead, he argues that his initial flight from the police would not have been suspicious to a reasonable police officer because "[t]here are numerous innocent explanations" for it. While that may be so, here the evidence established that Mr. Newman fled from the police while clutching his waistband not just once but three times, a fact that Mr. Newman glosses over in his analysis.⁶ In these circumstances the trial court did not err in concluding that his repeated flight while holding the side of his pants substantially contributed to a determination of reasonable articulable suspicion. See Wilson v. United States , 802 A.2d 367, 368, 370–71 (D.C. 2002) (holding police had reasonable articulable suspicion to stop appellant and his companion who "quickened their pace" upon seeing officers, "hurried down [a] hallway," and then "frantically pounded on an apartment door"); Pridgen v. United States , 134 A. 3d 297, 303 (D.C. 2016) (declining to rely on appellant's initial flight from the police who shouted at him from an unmarked car late at night, and focusing instead on "what appellant did as he ran"— including "holding his side" — "and what he did after he entered the apartment building" in concluding officers had reasonable articulable suspicion that appellant was armed).

Lastly, Mr. Newman challenges the trial court's reliance on the testimony that he was clutching at his waistband with one hand as he ran from the police. Citing factually distinguishable cases, he argues that his placement of his hand at his waistband could have had an innocent explanation. Again we do not disagree, but a reasonable officer nonetheless could have concluded (as Officer Moshier did conclude) that Mr. Newman's act of clutching his waistband while running signaled the possession of illegal contraband. See Pridgen , 134 A.3d at 303–04 (agreeing with the trial court that "a critical fact in evaluating whether the officers had a basis for reasonable articulable suspicion was that, during the entire time appellant was running, he held his hand against his left side" in a way that led the police to believe he was armed (internal quotation marks omitted)); see also id. at 304 n.20 ("[T]he officers’ reasonable suspicion of a gun did not depend on their being able to eliminate every conceivable innocent explanation for appellant's posture while running."). For these reasons, we reject Mr. Newman's challenge to the trial court's ruling denying his motion to suppress on Fourth Amendment grounds.

II.

Mr. Newman also argues that his convictions for CPWL and unlawful possession of ammunition must be vacated "[i]n the wake of [the District of Columbia Circuit's decision in] Wrenn v. District of Columbia ," 864 F.3d 650 (D.C. Cir. 2017). Mr. Newman appears to understand Wrenn as a decision that generally invalidated on Second Amendment grounds all gun control legislation in the District of Columbia that precludes an individual from "carry[ing] a pistol in public for self-defense." As we explained, however, in (Reginald) Hooks v. United States , 191 A.3d 1141 (D.C. 2018), the holding of Wrenn is much more limited: "[ Wrenn ] did not invalidate the CPWL statute, but merely what it called the District's ‘good reason’ law," by which it referred to a set of statutes and regulations limiting the basis upon which an individual could be issued a license to carry a weapon. Id . at 1145. "Any statutory law not encompassed by Wrenn's definition of ‘good-reason law’ remains undisturbed"; this includes the statutory requirements that "a person must be ‘suitable’ to qualify for a concealed carry license," id. at 1145–46 (quoting D.C. Code § 22-4506 ), and "must ‘meet all of the requirements for registering a firearm,’ " id. (quoting 24 D.C.M.R. § 2335.1 (a)(2015)) (brackets and ellipsis omitted). Mr. Newman does not dispute that he had a prior felony conviction that would have made him ineligible to obtain a concealed carry license, see id. at 1146 & n.5, or that the firearm the police recovered from his person when they arrested him was not registered. Accordingly, his Second Amendment challenge to his CPWL and ammunition possession convictions based on Wrenn is rejected, and the judgment of the Superior Court is affirmed. It is so ordered.

Easterly, Associate Judge:

I concur in the judgment.

Nebeker, Senior Judge, concurring:

"[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio , 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams , 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Instead, "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id . at 146, 92 S.Ct. 1921.

To justify such a stop requires reasonable articulable suspicion; in other words, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry , 392 U.S. at 21, 88 S.Ct. 1868. We "must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (cleaned up). "Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." United States v. Cortez , 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ; see also Jones v. United States , 154 A.3d 591, 595 (D.C. 2017) (explaining that our analysis is "earthy and realistic" (cleaned up)).

Deferring to the factual findings and assessing de novo whether...