Posey v. United States

• Decision Date: 21 February 2019
• Docket Number: No. 16-CF-1126,16-CF-1126
• Citation: 201 A.3d 1198
• Parties: Deandre J. POSEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

201 A.3d 1198

Deandre J. POSEY, Appellant,

v.UNITED STATES, Appellee.

No. 16-CF-1126

District of Columbia Court of Appeals.

Argued May 15, 2018

Decided February 21, 2019

Jennifer Williams, with whom Samia Fam and Shilpa S. Satoskar, Public Defender Service, were on the brief, for appellant.

Patricia A. Heffernan, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Seth M. Gilmore, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge, and Washington, Senior Judge.

Washington, Senior Judge:

Following a hearing on his motion to suppress tangible evidence and a stipulated bench trial, appellant Deandre J. Posey was convicted of unlawful possession of a firearm and related offenses. On appeal, Mr. Posey seeks reversal of his convictions on the ground that the trial court erroneously denied his motion to suppress a handgun that was found on his person. He contends that the police lacked reasonable articulable suspicion to conduct a Terry¹ stop, and therefore, his Fourth Amendment rights were violated. For the reasons stated below, we agree with Mr. Posey and reverse his convictions.

I.

At the suppression hearing, the government presented the testimony of Metropolitan Police Department Officer Michael Kasco. Officer Kasco testified that he and his partner, Officer Ron Orgel, received a radio run ("lookout") for a robbery at gunpoint in the unit block of M Street N.W. According to Officer Kasco, this first lookout contained a description of the suspect, "a black male dressed in all black." While responding to the scene, officers received a second lookout reporting that "it was a group of black males, and the group was last seen heading towards North Capitol" Street.

As Officers Kasco and Orgel arrived on the unit block of M Street, they saw "Sergeant Ritchie[ ] was already on the scene with the complainant." The officers also observed a group of five or more black males mostly dressed in black jackets, on the same block as the complainant and their sergeant, walking towards North Capitol Street. Officer Kasco testified that "[i]t was a group that possibly may have been involved with the robbery" but admitted that the officers did not "know."

Aware that the patrol was in a predominately African-American neighborhood where groups "typically ... just scatter" from police, Officer Kasco drove to within fifteen feet of the group that included Mr. Posey. The group briefly stopped, turned, and looked at the marked police cruiser. At the time they approached the group, nothing Mr. Posey did drew any particular attention to him. Officer Kasco testified that he did not observe Mr. Posey exchange anything with other members of the group, make any motions toward or to conceal his waistband, or do anything illegal. Officer Kasco's attention turned from the group to Mr. Posey only after Mr. Posey "took off running" and "Officer Orgel immediately jumped out of the" patrol car in pursuit.²

Shortly thereafter Mr. Posey was apprehended and handcuffed by Officer Orgel because the "lookout was for an armed robbery with a gun." Officer Kasco then came up, conducted a Terry pat down for safety, and found a handgun in Mr. Posey's front waistband. Mr. Posey did not resist and was not identified as the armed robber during a subsequent show-up identification with the victim. According to Officer Kasco, the entire encounter – from the time officers drove up to the scene to the time the show-up identification was conducted – took place within "[f]ive to ten minutes" of the second lookout.

In denying Mr. Posey's suppression motion, the trial court admitted that it was a close question. First, the trial court recognized that the description of the suspect was "quite vague" and there was a valid concern "about the ability of the police to act on such a generalized description." It determined, however, that the particular circumstances of this case were sufficient to overcome such vagueness because Mr. Posey was located "a block away, within five to ten minutes after the crime had been reported." The trial court then found that Mr. Posey was the only member of his group to flee when officers arrived "in their marked squad car in full uniform," without any "demonstration that it was their intent to approach that group of individuals." Based on these facts, the trial court made the "difficult" determination that there was reasonable articulable suspicion for the police to stop Mr. Posey on suspicion of robbery.

Following the suppression hearing, Mr. Posey entered into a stipulation agreement admitting to the facts related to the handgun found on his person during the stop. As a result of the stipulation, Mr. Posey was found guilty of four offenses. The trial court suspended his sentence pending this appeal.³

II.

"When reviewing the denial of a motion to suppress, we must defer to the [trial] court's findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling below." Jackson v. United States , 157 A.3d 1259, 1264 (D.C. 2017) (internal quotation marks omitted). Whether officers had reasonable suspicion to justify a stop is a question of law that we review de novo. Miles v. United States , 181 A.3d 633, 637 (D.C. 2018). Our limited review must ensure that the prosecution has shown a constitutionally sufficient basis for stopping Mr. Posey. See Pridgen v. United States , 134 A.3d 297, 302 (D.C. 2016) ; Robinson v. United States , 76 A.3d 329, 335 (D.C. 2013). "When the trial court wrongfully denies a motion to suppress, reversal is necessary unless the error was harmless beyond a reasonable doubt." Armstrong v. United States , 164 A.3d 102, 107 (D.C. 2017).

III.

It is firmly established that, pursuant to Terry , "[o]fficers may conduct an investigatory stop if they have a reasonable suspicion based on specific and articulable facts that criminal activity may be occurring." Wade v. United States , 173 A.3d 87, 91 (D.C. 2017) (internal quotation marks omitted). Put differently, "[a]n officer may not rely on unparticularized suspicion and inarticulate hunches to conduct an investigatory stop, nor may he rely on his subjective good faith." Pridgen , 134 A.3d at 301 (internal quotation marks and brackets omitted).

In considering whether reasonable articulable suspicion existed, we "must consider the totality of the circumstances, as viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." Henson v. United States , 55 A.3d 859, 867 (D.C. 2012) (internal citation and quotation marks omitted). Multiple factors may contribute to the totality of the circumstances, "including the time of day, flight, the high crime nature of the location, furtive hand movements, an informant's tip, a person's reaction to questioning, a report of criminal activity or gunshots, and viewing of an object or bulge indicating a weapon." Singleton v. United States , 998 A.2d 295, 300 (D.C. 2010). Even recognizing that "the observing police officer may see a combination of facts that make out articulable suspicion," Jacobs v. United States , 981 A.2d 579, 581 (D.C. 2009), we are unable, on this record, to conclude that the stop in this case was based on anything more than a good faith hunch by Officer Kasco's partner, Officer Orgel. See Pridgen , 134 A.3d at 301.

The lookouts Officers Kasco and Orgel received described the robbery suspect as a black male dressed in all black, traveling in a group of black males in the direction of North Capitol Street from the unit block of M Street. We have repeatedly emphasized "the difficulty we have supporting a finding of particularized reasonable suspicion when a lookout description is limited to a person's race and a generic clothing color description, especially when more than one suspect is indicated or there are other persons in the vicinity." Armstrong , 164 A.3d at 108 ; see, e.g. , id. at 108-09 (citing cases). Our difficulty is compounded here because Mr. Posey was one of several members of his group matching the generic description given of a black man in black clothing.⁴ See In re T.L.L. , 729 A.2d 334, 340 (D.C. 1999) ("Without identifying information with respect to height, weight, facial hair or other distinguishing features, this description could have fit many if not most young black men."). The additional description of a group of black men walking towards North Capitol Street adds little specificity in a neighborhood that Officer Kasco described to the trial court as predominately black. See In re A.S. , 614 A.2d 534, 540 (D.C. 1992) ("To allow seizure of ... people on the basis of a generalized description that would fit many people is directly contrary to the central teaching of ... Fourth Amendment jurisprudence." (internal quotation marks omitted) ).

We of course recognize that diligent investigating officers arriving at this scene may have taken a legitimate interest in Mr. Posey's group based on the two lookouts. But we must emphasize that developing such an interest is only the beginning of their work. See Terry , 392 U.S. at 5-7, 27-28, 88 S.Ct. 1868 (describing a piqued interest, leading to observations, yielding facts justifying a stop). Officers with minimal information are permitted to approach people to investigate their hunches. See, e.g. , Pridgen , 134 A.3d at 303. But approached individuals are free to refuse to speak with officers or avoid them altogether. See, e.g. , Brown , 590 A.2d at 1019 ("Citizens have no legal obligation to talk to police."). Officers must then continue to establish facts corroborating reports from the public and build on their hunches by other means. See, e.g. , Jackson , 157 A.3d at 1262-64 (describing step-by-step investigation of information, identifying a suspect, whose actions during the...