Sharp v. United States

• Citation: 132 A.3d 161
• Decision Date: 18 February 2016
• Docket Number: No. 13–CM–951.,13–CM–951.
• Parties: Devon SHARP, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

132 A.3d 161

Devon SHARP, Appellant,

v.UNITED STATES, Appellee.

No. 13–CM–951.

District of Columbia Court of Appeals.

Submitted Nov. 14, 2014.

Decided Feb. 18, 2016.

Tito V.A. Castro, Washington, DC, for appellant.

Sharon A. Sprague, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Christopher Bruckman, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE–RIGSBY and BECKWITH, Associate Judges, and FARRELL, Senior Judge.

BECKWITH, Associate Judge:

Following a stipulated trial, appellant Devon Sharp was found guilty of possession of marijuana,¹ cocaine,² and drug paraphernalia³ and attempted possession of a prohibited weapon.⁴ On appeal, Mr. Sharp challenges the trial court's ruling that the encounter that preceded Mr. Sharp's admission to the police officer that he was carrying brass knuckles was a consensual one, rather than a seizure that triggered Fourth Amendment protections and required suppression of the evidence stemming from the seizure. We conclude that Mr. Sharp was seized for Fourth Amendment purposes when he was stepped out of his car and that his seizure was not justified by the "specific and articulable facts" required under Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We therefore reverse Mr. Sharp's convictions and remand for a new trial at which the evidence uncovered as a result of that seizure is suppressed.

I.

The two witnesses who testified at the suppression hearing—Metropolitan Police Department Officer John Pugh and appellant Devon Sharp himself—gave divergent accounts of the incident leading to Mr. Sharp's arrest. Officer Pugh testified that he and Officers Christopher Dorsey and Brett Cuevas were patrolling the area near 14th and U Streets, Northwest, shortly after midnight when their police vehicle broke down. As the officers pushed the vehicle into a parking space, Officer Pugh heard a "loud scream or commotion" coming from a parking lot across the street where the officer said valets often park cars and where "a lot of cars get broken into." It "wasn't like a someone[-]in[-]danger scream" but "just a noise that caught [his] attention."

When the people causing the commotion walked away, Officer Pugh's attention was drawn to some rap music coming from a parked Jeep whose driver, appellant Devon Sharp, was "sitting behind the wheel" with "his head down" and was "looking down at something in his hands." Officer Pugh "went ... to check the person, but really to find out if he was the valet or not." Wearing black tactical police vests and badges and identifying themselves as police officers, Officer Pugh approached the driver's side of the vehicle and Officer Dorsey approached on the passenger side. Officer Pugh asked Mr. Sharp what he was doing there, a question that prompted a series of what Officer Pugh described as nervous behaviors and nonresponsive answers from Mr. Sharp. "Didn't know if he had any[thing] illegal on him, anything illegal in the vehicle," Officer Pugh said, "so I asked him could I search his vehicle." Officer Pugh testified that after Mr. Sharp declined a vehicle search, "[d]ue to him seeming kind of nervous, and making me kind of feel slightly uncomfortable, I asked could he step out of the vehicle." Officer Pugh said he did not "command" Mr. Sharp to step out of the vehicle—"I asked him can he step out of the vehicle"—and that Mr. Sharp "complied freely" and "stepped out calmly and stepped out regularly."⁵ Officer Dorsey came around to the driver's side of the car and stood next to Officer Pugh as Mr. Sharp was getting out of the car.

Officer Pugh testified that he asked Mr. Sharp whether he had any weapons on him, and Mr. Sharp "said yes and began reaching his hand into his left front jacket pocket," telling the officer that he had brass knuckles. Officer Pugh recovered the brass knuckles and placed Mr. Sharp in handcuffs, after which Officer Dorsey searched Mr. Sharp further, incident to the arrest, and recovered "multiple zips containing a white powdery substance." Officer Pugh testified that the officers then searched Mr. Sharp's vehicle, where they recovered, from a baby seat in the back, a bag containing a green weed-like substance that field tested positive for marijuana.

For his part, Mr. Sharp testified that he worked security for and managed several restaurants and bars in the U Street area and that he had been parking his car in the lot at 14th and U Streets "for a long time." Mr. Sharp said that on the day of the incident he was sitting in his vehicle and may have been texting on his phone as he "was getting ready to get out of the car" when Officer Pugh "stopped [him]," told him "to hold on," and "hindered [him] from getting out of the vehicle." According to Mr. Sharp, Officer Pugh asked him whether he had any weapons while Mr. Sharp was still inside the Jeep, Mr. Sharp answered no, but Officer Pugh "told [him] he was going to search [him] for his safety," opened the door, and "asked [him] to get out of the car." Mr. Sharp testified that he felt he had no choice but to get out of the car, that "it was more guided than anything," and that because he was parked near some pillars, the officer "kind of had me boxed in so there wasn't really too much I can do." According to Mr. Sharp, Officer Pugh held his arm as he got out of the Jeep, patted him down, and found the brass knuckles. Mr. Sharp testified that he was "100 percent sure" that he never told Officer Pugh about the brass knuckles until the officer felt them and asked what they were, to which Mr. Sharp responded "brass knuckles."

The government argued that Mr. Sharp voluntarily stepped out of his car after being asked to do so, but that even if he were seized for Fourth Amendment purposes, the police had reasonable suspicion to justify such a seizure based upon the lateness of the hour, the danger inherent in approaching a person seated in an automobile, the officer's familiarity with criminal activity in that particular parking lot, Mr. Sharp's nervous behavior and nonresponsive answers to the officer's questions, and the fact that Mr. Sharp was doing something with his hands that the approaching officers could not see.

In its ruling on Mr. Sharp's motion to suppress, the trial court described the case as "essentially boil[ing] down to the credibility determination between Officer Pugh and Mr. Sharp," and noted that it was "having a hard time crediting Mr. Sharp's testimony." Closely tracking Officer Pugh's testimony, and explicitly discrediting Mr. Sharp's, the court found that Officer Pugh "approached the side of the car and asked [Mr. Sharp] to step out of the car, and he stepped out at the request of, but not at the order of[,] the police officer." The court further found that "Pugh asked him if he had any weapons and he said yes, and reached in, and Pugh asked him what it was and he said brass knuckles." The court noted that if Officer Pugh had seized Mr. Sharp for Fourth Amendment purposes, the justification for doing so under Terry would be questionable—"as thin as it could be" and "a very close call." But having concluded that Officer Pugh "asked not ordered Mr. Sharp out of the car," the trial court deemed the encounter to be a consensual one, not a seizure that triggered Fourth Amendment protections. After denying Mr. Sharp's motion to suppress the evidence seized from him and his vehicle, the trial court found Mr. Sharp guilty of all counts against him after a stipulated trial.

II.

On appeal, Mr. Sharp argues that the trial court erred in denying his suppression motion because, among other things, he was unreasonably seized in violation of the Fourth Amendment when the police stepped him out of his vehicle without probable cause or reasonable suspicion. The government argues primarily that Mr. Sharp cannot rely upon testimony the trial court discredited to support his contention that he was subject to an unreasonable seizure. We agree with the government in that regard, but conclude that when Officer Pugh "asked [Mr. Sharp] can he step out of the vehicle" after Mr. Sharp had already declined the request to search his car, Officer Pugh made a show of authority that amounted to a seizure, and the officers did not have reasonable articulable suspicion to justify the detention.

The Fourth Amendment of the Constitution protects people from unreasonable seizures by government authorities. Terry, 392 U.S. at 9, 88 S.Ct. 1868. In reviewing a trial court's denial of a motion to suppress evidence on Fourth Amendment grounds, we defer to the trial court's findings of evidentiary fact unless clearly erroneous, and we view those facts, and the reasonable inferences that stem from them, in the light most favorable to the government. Henson v. United States, 55 A.3d 859, 863 (D.C.2012). We review de novo the trial court's conclusions of law. In re J.M., 619 A.2d 497, 500 (D.C.1992) (en banc). Whether Mr. Sharp was seized is a question of law, In re J.F., 19 A.3d 304, 308 (D.C.2011), as is the ultimate question whether the police had reasonable suspicion for such a seizure, Umanzor v. United States, 803 A.2d 983, 991 (D.C.2002) (describing the question as a "mixed question of law and fact" in which we "defer to the trial court's factual findings unless clearly erroneous, and make an independent legal assessment as to whether there was reasonable suspicion for the stop").

Encounters between citizens and law enforcement officers fall into three general categories: consensual encounters, investigative detentions, and full-fledged arrests. Gordon v. United States, 120 A.3d 73, 78 (D.C.2015). "Both investigative detentions and arrests are seizures under the Fourth Amendment," while consensual encounters, during which a person may comply with or choose to ignore a police officer's requests, are not. Id. While an arrest, to be lawful, must be supported by probable...