U.S. v. Askew

• Decision Date: 06 April 2007
• Docket Number: No. 04-3092.,04-3092.
• Parties: UNITED STATES of America, Appellee v. Paul ASKEW, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

482 F.3d 532

UNITED STATES of America, Appellee v. Paul ASKEW, Appellant.

No. 04-3092.

United States Court of Appeals, District of Columbia Circuit.

Argued November 17, 2006.

Decided April 6, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cr00010-01).

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Florence Y. Pan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed and Roy W. McLeese, III, Assistant U.S. Attorney.

Before: SENTELLE and KAVANAUGH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Circuit Judge SENTELLE joins.

Dissenting opinion filed by Senior Circuit Judge EDWARDS.

KAVANAUGH, Circuit Judge.

When the police have reasonable suspicion that a person committed, is committing, or is about to commit a crime, the officers may forcibly stop that individual. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) During the Terry stop, the officers may briefly take certain reasonable investigative steps—including questioning the suspect and conducting identification procedures such as fingerprinting and "show-ups" (in a show-up, the police have a witness or victim look at the suspect). See Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004); Hayes v. Florida, 470 U.S. 811, 817, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Michigan v. Summers, 452 U.S. 692, 700 n. 12, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).

In this case, the police learned that an armed robbery had just occurred on a street in Washington, D.C. Shortly afterward, an officer saw Paul Askew walking on a nearby street. Based on reasonable suspicion that Askew had committed the armed robbery, the officer stopped him. The police then brought the robbery victim to the scene of the stop and conducted a show-up. The officers unzipped Askew's outer jacket during the show-up so that the victim could see Askew's clothing— that step, the police believed, could assist the witness's identification. Unzipping the outer jacket ultimately led the officers to discover that Askew was illegally carrying a gun.

Askew's primary argument to this Court is that the initial unzipping of his jacket was an unreasonable search. We disagree. In a show-up during a Terry stop, the Fourth Amendment permits police officers to reasonably maneuver a suspect's outer clothing—such as unzipping an outer jacket so a witness can see the suspect's clothing—when taking that step could assist a witness's identification. We affirm the District Court's judgment.

I

1. The District Court's findings of fact (and, where specific findings are lacking, the relevant testimony from the suppression hearing) show the following. See United States v. Askew, 313 F.Supp.2d 1, 2-3 (D.D.C.2004).

At about 11 p.m. on December 19, 2003, a Metropolitan Police Department radio broadcast reported an armed robbery near 9th and G Streets, S.E., in the District of Columbia. The radio report in part described the robbery suspect as male, approximately six-feet tall, and wearing a blue sweatshirt and blue jeans. While driving in his patrol car, Officer Anthony Bowman heard the dispatch and began canvassing the area near the robbery scene. Within minutes, Officer Bowman saw Paul Askew walking near 9th Street and Independence Avenue, S.E. Noticing that Askew was a man with a mustache who "vaguely matched" the broadcast description, Officer Bowman asked the dispatcher whether the alleged robber had a mustache. The dispatcher replied that the robbery suspect indeed had been described as having a mustache. Meanwhile, when Askew saw that Officer Bowman's car was following him, Askew turned and walked in a different direction. Officer Bowman continued to follow Askew in the police car.

After calling in his location to other police, Officer Bowman parked the patrol car, got out, and stopped Askew. Officer Bowman requested that Askew present identification and instructed Askew to keep his hands on top of his head, not in his pockets. Askew complied with those requests. Officer Bowman then told Askew that he had been stopped because he matched the description of an armed robbery suspect. Officer Bowman noticed that Askew was wearing two jackets: "[H]e had on a navy blue jacket with a darker blue fleece type jacket underneath."

Other police (including Officer Anthony Willis and Officer James Koenig) arrived at the scene. For the officers' safety, Officer Koenig conducted a standard patdown frisk of Askew's outer clothing pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officer Koenig did not feel a weapon.

Another officer then arrived with the robbery victim to conduct a "show-up" procedure (which allows a witness or victim to look at a suspect for identification purposes). The victim remained inside the police car as the officers brought Askew toward the car. Officer Willis recalled that the suspect described in the radio broadcast was wearing a blue hooded sweatshirt. As Officer Willis testified, he wanted the victim to see what Askew had on "to make sure that he wasn't zipping nothing up to cover up." To that end, Officer Willis started to pull down Askew's outer jacket zipper. The zipper stopped when it hit what Officer Willis described as a "hard" or "solid" object and "didn't go past" the object. Askew then knocked Officer Willis's hand away from the zipper.

At about this time, the show-up ended, and the officer accompanying the victim in the car drove her away from the scene of the show-up. At this point, Officer Willis and Officer Edward Snead were not aware of the results of the show-up. They quickly walked Askew backward and made him sit upright on the hood of a police car. (The testimony suggests less than a minute passed between the end of the show-up and the walk to the police car. See Suppression Hr'g Tr. 54-55 (Mar. 10, 2004).) Officer Willis fully unzipped Askew's outer jacket, revealing that Askew wore a black pouch underneath the jacket. The pouch was partially open, and a silver object protruded from it. The police recognized the object as a gun. The police then handcuffed Askew and formally arrested him. Although the record does not specify the grounds for the arrest, District of Columbia law prohibits carrying a pistol without a license. See D.C. CODE § 22-4504(a).

In the meantime, the victim informed the officer in the police car that Askew was not the man who had committed the robbery. The record does not specify the precise moment when this occurred, although the officers on the scene did not become aware until some undetermined time after Askew's arrest on the weapons violation. See 313 F.Supp.2d at 3 & n. 4 (officer accompanying victim "did not advise Officer Willis and his colleagues whether the complainant had made an identification."); see also Suppression Hr'g Tr. 13 (Mar. 26, 2004) (Officer Willis learned results of show-up "after [officers] had handcuffed" Askew); Suppression Hr'g Tr. 54 (Mar. 10, 2004) ([Question to Officer Snead]: "So at least you never heard from [officer accompanying victim] at that time what the results of the show-up were? [Answer]: Not at that time.").

2. Based on Askew's prior felony conviction, the Government subsequently obtained a one-count federal grand jury indictment charging Askew with possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1).

Askew moved to suppress the evidence of the firearm on the ground, among others, that the unzipping of the outer jacket violated the Fourth Amendment and that the gun was the fruit of the constitutional violation. After an evidentiary hearing, the District Court denied the motion. 313 F.Supp.2d at 1. At the outset, the District Court concluded that Officer Bowman had the authority under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to stop Askew—given Askew's proximity to the location of the reported robbery, his physical resemblance to the armed robbery suspect described in the police radio broadcast, and his change of course upon seeing Officer Bowman. See 313 F.Supp.2d at 4. The District Court also concluded that Terry authorized Officer Koenig to frisk Askew for potential weapons (the District Court here was referring to the initial frisk that did not disclose Askew's gun). Id.

The court held that the partial unzipping of the outer jacket for the show-up procedure was also permissible. Id. at 6-7. The court further ruled that, because Officer Willis's partial unzipping of Askew's jacket for purposes of the show-up was constitutional, the Fourth Amendment permitted the officers, after feeling the hard object, to restrain Askew and fully unzip his jacket to determine whether the hard object was a weapon. Id. at 5.

Askew entered a conditional plea of guilty, reserving his right to bring this appeal from the District Court's denial of the motion to suppress. See Fed. R.Crim.P. 11(a)(2). The District Court sentenced Askew to 36 months of imprisonment and 36 months of supervised release.

On appeal, the parties agree that the Fourth Amendment governs the analysis and that the evidence of the gun must be excluded if we find the search unreasonable. Askew does not challenge the District Court's conclusions that Officer Bowman had reasonable suspicion to stop Askew and that Officer Koenig's frisk of Askew was valid. Askew focuses instead on the conduct of the police during the show-up—in particular, the two unzippings of the outer jacket. We review de novo the District Court's legal conclusion that the search was constitutional. In doing so, we accept the District Court's findings of fact unless clearly erroneous. See Ornelas v. United States, 517 U.S. 690, 699, 116...