Plummer v. U.S., No. 04-CF-857.

• Decision Date: 12 November 2009
• Docket Number: No. 04-CF-857.
• Citation: 983 A.2d 323
• Parties: Frederick PLUMMER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

983 A.2d 323

Frederick PLUMMER, Appellant, v. UNITED STATES, Appellee.

No. 04-CF-857.

District of Columbia Court of Appeals.

Argued March 11, 2008 and January 15, 2009.

Decided November 12, 2009.

Shilpa S. Satoskar and Alice Wang, Public Defender Service, with whom, James Klein, Samia Fam, Andrea Roth and Jacklyn Frankfurt, were on the briefs, for appellant.

Elizabeth H. Danello and Roy W. McLeese III, Assistant United States Attorneys, with whom, Jeffrey A. Taylor, United States Attorney at the time the briefs were filed, and Elizabeth Trosman, and Wendy L. Short, Assistant United States Attorneys, were on the briefs, for appellee.

Before REID, GLICKMAN, and KRAMER, Associate Judges.

REID, Associate Judge:

Frederick Plummer, the appellant, challenges his convictions on the lesser-included charge of carrying a pistol without a license ("CPWL"), and the offense of possession of an unregistered firearm ("UF"), in violation of D.C.Code § 7-502.01.¹ He asserts that the police seized him for Fourth Amendment purposes when they drew their weapons and ordered him to turn around and put his hands up, and hence, since the police did not have reasonable, articulable suspicion to stop him, the trial court erred by denying his Motion to Suppress Evidence and Statements. We conclude that Mr. Plummer was not seized when the police approached him with their guns drawn and ordered him to put up his hands because he did not comply with that show of authority. Furthermore, at the time he was seized after complying with the order to put up his hands, the police had suitable corroboration showing reliability that Mr. Plummer was the person identified in an anonymous 911 call as carrying a gun, and that because of his repeated movements to his waist where guns are commonly concealed, the police had suitable corroboration demonstrating reliability that Mr. Plummer was engaged in the criminal act of carrying a gun. Consequently, the police had reasonable, articulable suspicion to stop Mr. Plummer, and the trial court properly denied Mr. Plummer's motion to suppress.

After the Supreme Court handed down its decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) in late June 2008, we ordered supplemental briefing and oral argument on Mr. Plummer's contention that his conviction must be reversed under Heller because the District of Columbia statutes under which he was convicted violate his Second Amendment individual right to bear arms. We conclude that Mr. Plummer had standing to challenge his convictions under the Second Amendment. We further hold that the UF and CPWL statutes are not facially invalid. However, for the reasons stated in this opinion, we are constrained to remand this case to the trial court with instructions to hold a hearing to determine whether Mr. Plummer would have satisfied the statutory requirements in D.C.Code § 7-2502.03 pertaining to qualifications for obtaining a registration certificate.

FACTUAL SUMMARY

At the hearing on Mr. Plummer's motion to suppress, the government presented the testimony of Metropolitan Police Department ("MPD") Officer Sayvon Weinfeld. As a result of a 911 call, Officer Weinfeld and his partner, Officer James Rogers, were dispatched to 2813 4th Street, in the Northeast quadrant of the District of Columbia, on the evening of October 20, 2003. The 911 caller had indicated that "a black male in a blue work uniform" had a gun. When the officers arrived at the designated address, they "observed [a man later identified as Mr. Plummer] standing in front of the address that was given by the dispatcher and banging on the door." He was wearing "a blue button-down type shirt and dark blue Dickey style work pants."²

The officers "exited [their] vehicle, approached [Mr. Plummer and] started ordering him to put his hands up." Mr. Plummer "began reaching towards his waist several times in a motion [that] appeared as if he was attempting to pull something out of his pants, out of his waistband." The officers "[c]ontinued to order him to put his hands up." After the officers gave the order "several times, he eventually complied and put his hands up." "Officer Rogers approached [Mr. Plummer] and handcuffed him for [the officers'] safety," but Mr. Plummer was not arrested at that point. Officer Weinfeld explained that there were safety concerns "[b]ecause the initial call was for a man with a gun and the individual that [the officers] had stopped ... was reaching towards his waist [and][i]t's a common place for an individual ... [who] possess[es] a handgun to keep it on [his] person." Even after he was handcuffed in front of the premises at 2813, Mr. Plummer "kept moving his hands behind him, attempting to reach to his right side...."

After Mr. Plummer was handcuffed, the door to 2813 4th Street opened and a man emerged. The officers ordered the man to put his hands up because they "weren't sure what was going on." The officers decided to separate Mr. Plummer and the man who opened the door. Officer Rogers went over to the man from the house while Officer Weinfeld "walk[ed] [Mr. Plummer] away from the front of the house" and turned him over to two other officers, Ewald and Groves, who had arrived on the scene. These officers "pull[ed] [Mr. Plummer] further away from the house."

Officer Rogers spoke with the man from the house, later determined to be the 911 caller; the man asserted that Mr. Plummer had banged on his door earlier and had a bottle of wine. When the complainant refused to agree to drink with him, Mr. Plummer "began splashing the wine on the door and then left the location." Later, Mr. Plummer returned with his shirt unbuttoned and outside of his pants; the first time he had appeared at the door, Mr. Plummer's shirt had been "buttoned up and tucked into his pants." The complainant "could see through the open shirt what he believed to be a silver handgun ... with a pearl handle."

As the two officers, Officers Ewald and Groves, pulled Mr. Plummer away from 2813, Officer Weinfeld heard Officer Ewald state: "He's got something in his pocket." Later, Officer Ewald informed Officer Weinfeld "that she had patted [Mr. Plummer's] pocket and immediately recognized that he had ... a pistol or a gun in his pocket." The officers "secured [Mr. Plummer] on the ground", and "Officer Groves retrieved a .32 caliber semiautomatic pistol from his right pocket."³ Mr. Plummer was arrested on a charge of carrying a pistol without a license.

On cross-examination, Officer Weinfeld stated that it took him "[s]omewhere between a minute and two minutes to get to 2813 4th Street after receiving the dispatch; that upon his arrival in the 2800 block of 4th Street, no one else was on that block"; when he and Officer Rogers saw Mr. Plummer knocking on the door of 2813, Mr. Plummer's back was to the officers and the officers were about fifteen to eighteen feet away from him; and Mr. Plummer "made the movements [to his waist] after [the officers] had beg[u]n to give orders for him to put his hands up." Defense counsel asked Officer Weinfeld, "And after you commanded him to put his hands up and turn around, what did he do, sir?" Officer Weinfeld responded, "Began pulling at his waist." After demonstrating how Mr. Plummer was pulling at his waist, defense counsel inquired, "When he made that movement, was he facing you or was his back toward you?" Officer Weinfeld answered, "He was facing us"; the officer did not see a gun. In response to defense counsel's question, "How many times did you have to ask him to put his hands up before he did so?" Officer Weinfeld stated, "I don't know the exact amount of times. We repeated ourselves several times." Officer Weinfeld also indicated that the officers had their guns drawn, and that the officers did not find a gun upon checking Mr. Plummer's waist area.⁴

The trial court denied the motion to suppress the tangible evidence stating, in part:

Here the officer saw the defendant, who matched the description of a man with a gun. The description was for a black male wearing a blue work uniform at an identified address. The defendant was the only person in the block, the only person at that address, and he was wearing what the witness described as a blue work outfit. He was at that address.

I believe it was reasonable for [the officers] to do what they did in order to determine whether in fact [the defendant] had a gun to assure their safety and the safety of others in the community, and that was to try to make certain he could not harm anyone by directing him to put his hands up. They made several commands for him to do that before there was any compliance. And indeed, before he did comply, he made several movements to his waist area that the police officer described.

In reaching its conclusion, the trial court examined the Supreme Court's decision in Florida v. J.L.,⁵ and the court continued:

I think the noncompliance with the commands increased their concern for their safety and distinguishes this case from ... Florida v. J.L.....

But I think the most significant factor besides the quick response [of the officers to the lookout dispatch] and the corroboration of the innocent details was the defendant's behavior once they encountered him and ... his noncompliance to their repeated commands raised their suspicion and allowed them to handcuff him to conduct a Terry frisk, and the fact that they placed him on the ground does not convert this to an arrest. I believe he was seized even though he did not willingly comply, but police are allowed to transport Terry suspects great distances. Here they placed him on the ground and the police officer testified that a colleague felt the outside of his pocket and felt what she believed to be a firearm, and they were justified in going inside his pocket and recovering that firearm.

And it's noteworthy that within minutes, if not seconds, the complainant told the police that Mr. Plummer was...