Singleton v. United States

• Decision Date: 17 June 2010
• Docket Number: No. 08-CF-283.,08-CF-283.
• Citation: 998 A.2d 295
• Parties: Kevin SINGLETON, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

998 A.2d 295

Kevin SINGLETON, Appellant,v.UNITED STATES, Appellee.

No. 08-CF-283.

District of Columbia Court of Appeals.

Argued April 6, 2010.

Decided June 17, 2010.

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Justin P. Lee, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief for appellant.

Stephanie Brenowitz, Assistant United States Attorney, with whom Channing D. Phillips, acting United States Attorney at the time the brief was filed, and Roy W. McLeese III, Mary B. McCord, Elizabeth Gabriel, and Scott L. Sroka, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ, Associate Judge, and FERREN and SCHWELB, Senior Judges.

RUIZ, Associate Judge:

Appellant, Kevin Singleton, entered a conditional plea of guilty to attempted carrying a pistol without a license (“CPWL”),¹ possession of an unregistered firearm (“UF”),² and unlawful possession of ammunition (“UA”),³ after the trial court denied his Motion to Suppress Tangible Evidence. On appeal, he argues that the trial court erred in denying his motion to suppress the firearm because the officer who stopped and frisked him (and found the firearm on appellant) did not have reasonable articulable suspicion that he was armed. We affirm.

I. FACTS

1. The Government's Evidence

At the suppression hearing, United States Park Police Officer Michael Abate testified that, on the morning of June 5, 2007, he was on routine patrol on a motorcycle in an alley south of the 1300 block of Columbia Road, in N.W., Washington, D.C. He saw appellant come out of an apartment building accompanied by an “older woman,” appellant's grandmother. According to Officer Abate, appellant “appear[ed] to have a bulge consistent with a firearm” in the right front pocket of his jeans. Officer Abate observed that appellant was walking “in a rigid manner and appeared to be very nervous,” looking in Officer Abate's direction “approximately five times ... to see what [the officer] was doing.” Officer Abate testified that appellant began “quickly walking away,” although his pace “couldn't really be that fast because he was with an older woman.” The officer described appellant as having a “stiff posture, possibly to try and minimize the effects of the bulge coming out of the pants.” Officer Abate also saw appellant “making motions with his hand towards his right front pocket.” Appellant continued to look back at Officer Abate as if “to see what [the officer's] actions were.”

Based on his observations, Officer Abate believed that appellant had a firearm in his pocket. Acting on that belief, Officer Abate drove his motorcycle over to appellant in a “bee line,” and, without any preliminary questioning, “stopped and contacted and performed a frisk.” The officer “immediately” felt the outline of a pistol in appellant's right front pant pocket. After handcuffing appellant, the officer searched inside the pocket, where he found a .32-caliber revolver loaded with five rounds of ammunition. When asked why he believed the bulge in the pocket was caused by a firearm, Officer Abate testified that, based on his training and experience, he was “quite familiar with the sizes and shapes [of firearms] and ... what one would look like underneath clothing.” Officer Abate explained that he had been a military police officer “master at arms” with the United States Navy for five years and a civilian police officer for eight years before this encounter, and that during the course of his career as a police officer, he had participated in “several dozen” arrests during which firearms were recovered.

On cross-examination, Officer Abate was questioned about the fact that he had not described the bulge he saw in appellant's pocket as having the appearance of a firearm or appellant's “awkward” way of walking in either of his two police reports or in his grand jury testimony. Officer Abate responded indirectly:

Well, if I knew what ... it was, it wouldn't have been a stop and frisk. It would've been he's under arrest if I knew there was a firearm in there. But I could tell you, from being around firearms, I know exactly what and how a person walks when you have a firearm in your pocket, because I've had one in mine for years ... [I]t's an awkward movement when you're carrying a firearm because, obviously, you have a loaded weapon that is lethal, and if it goes off, it's going to potentially strike you. So I'm very familiar with how someone walks, especially when you have a firearm in your pocket that does not have a holster with it.

The court followed up and asked Officer Abate “what made [him] think the bulge was a firearm, and not an apple or some other large object.” Officer Abate explained:

[B]eing around firearms, I know how you consciously put ... your hand, when you have a firearm[ ] in your pocket [when] you're walking away. I mean it's just something that you do, especially with a firearm that's not in a holster, to potentially maybe brace it so something does not get in the trigger guard ... [I]t just seemed ... unreasonable ... to have anything else but a firearm. So that's why I did the frisk. With the entire action of [appellant] coming out of the house and seeing the police, having an object that [ ] was consistent ... [with] a firearm, and ... the awkward movement of continuing to look back over the shoulder to see what I was doing I thought warranted enough to at least do further investigation into a frisk.

2. The Defense Evidence

Appellant's grandmother, Cynthia Singleton, testified on appellant's behalf. She recounted that, on the day appellant was arrested, they had left their apartment at 1302 Columbia Road, N.W., to go to the grocery store. As they were walking, she noticed two police officers, one on a motorcycle and the other one in a car. Ms. Singleton said that appellant did not hold his pocket while they were walking or look back at the police officers; instead, appellant asked her “why [is the police officer] looking at me[?]”

3. The Trial Court's Ruling

The trial court “fully credit[ed]” Officer Abate's testimony, and found him to be “entirely candid, not evasive ... in any way, and not ... embellishing or adding the facts that could have enhanced his testimony.” ⁴ The court found that the officer's attention was initially drawn to appellant because of the bulge in appellant's pocket, which appeared to be a firearm, and that he then observed appellant's “rigid manner” of walking, which was “consistent with how one walks when there's a handgun in his pocket,” and that appellant was “very nervous, kept looking over his shoulder.” The court concluded that viewed together, those factors “gave the officer reasonable articulable suspicion to briefly stop [appellant] and to do a quick pat down search for his own safety because ... as soon as he saw the bulge he believed it to be a gun.”

Appellant entered a conditional plea and filed this appeal.

II. ANALYSIS

When reviewing a trial court's ruling on a motion to suppress, “the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court's ruling.” Howard v. United States, 929 A.2d 839, 844 (D.C.2007) (quoting In re T.H., 898 A.2d 908, 912 (D.C.2006)). “While factual findings will not be disturbed if supported by substantial evidence, conclusions of law are reviewed de novo.” Id. Whether the police officer had a sufficient basis to seize a suspect is a conclusion of law. See (Thomas) Green v. United States, 974 A.2d 248, 255 (D.C.2009) (We “make our own independent determination of whether there was ... reasonable suspicion justifying a Terry stop.”).

“To conduct a brief, investigatory stop of a person in keeping with the Fourth Amendment, a police officer must have a reasonable, articulable suspicion that criminal activity may be afoot.” Wilson v. United States, 802 A.2d 367, 369 (D.C.2002) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “The requirement of ‘articulable suspicion’ is not an onerous one.” Jackson v. United States, 805 A.2d 979, 988-89 (D.C.2002) (quoting Gomez v. United States, 597 A.2d 884, 888 (D.C.1991)). “Various factors are considered in determining whether a Terry stop is justified, 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.” Id. at 989. (quoting Anderson v. United States, 658 A.2d 1036, 1038 (D.C.1995)). “Although each factor is useful in determining whether there were articulable facts justifying the stop, these factors ‘are not elements of a conjunctive test,’ and no one factor is ‘outcome determinative.’ ” Umanzor v. United States, 803 A.2d 983, 993 (D.C.2002) (quoting In re D.A.D., 763 A.2d 1152, 1155 (D.C.2000)). “The totality of the circumstances may establish reasonable suspicion despite the fact that all of the factors are not met, and additional circumstances may also be considered.” Id. at 993-94.

Appellant claims that Officer Abate lacked the reasonable articulable suspicion necessary to conduct a Terry stop and frisk. He argues that the officer's observation of a bulge in appellant's pocket could not form a reasonable and articulable suspicion that he was carrying a firearm because a man's pant pocket is where men carry a host of innocent objects that would create a bulge. As defense counsel argued at the suppression hearing:

[M]en don't often carry purses. They carry their items in their pockets, so there's a number of things that a man would carry that include keys, cell phones, wallets, cigarettes, [and] anything that could make a bulge in a pocket.

Appellant also contends that Officer Abate's description of appellant's “rigid manner” of walking did not give Officer Abate reasonable and articulable suspicion that appellant was unlawfully carrying a firearm because the officer did not describe...