UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Criminal No. 97-496(JGP)
:
xxxxxxxxxxxxxxxxx, :
:
Defendant. :
:
SUPPLEMENTAL MOTION TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS AND INCORPORATED MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF
xxxxxxxxxxx, through undersigned counsel, respectfully moves this Honorable Court to suppress as evidence against him at trial any and all tangible evidence seized by law enforcement agents in violation of the Fourth Amendment on November 29, 1997.
As grounds for this motion, Mr. xxxxxx, through counsel, states:
1. Michael xxxxxx is charged by indictment with possession of a weapon and ammunition in violation of 18 U.S.C. Section 922(g).
2. On the evening of October 29, 1997, Officer Che Of the Public Housing Police believed he had observed an individual wanted on a Superior Court arrest warrant. When the suspect ran off, the officer summoned MPD officers for the chase, although MPD Officers were unaware at that moment the reason for chasing the defendant.
3. As Police pursued the suspect into a building and up a flight of stairs, it is alleged that the suspect dropped a handgun which was retrieved by Police Officers. The suspect escaped capture.
4. On the basis of the gun's seizure, and out-of-court identifications by the police officers, the police officers obtained an arrest warrant on October 31, 1997 for Michael A. xxxxxx, on the grounds that he had possessed a weapon without a license, a crime in the District of Columbia.
5. On November 29, 1997, while he was standing in front of a building in Southeast Washington, D.C., Mr. xxxxxx was arrested by police officers.
6. The government bears the burden of proving that Mr. xxxxxx' arrest was justified by probable cause. Hayes v. Florida, 470 U.S. 811 (1985); Florida v. Royer, 460 U.S. 491, 500 (1983). See also Katz v. United States, 389 U.S. 347 (1967); Henry v. United States, 361 U.S. 98 (1958); United States v. Allen, 629 F.2d 51, 55 (D.C. Cir. 1980); Rouse v. United States, 359 F.2d 1014, 1016 (D.C. Cir. 1966).
7. Further, probable cause requirements before a warrant for either arrest or search can issue, require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560 (1971).
7. In the instant case, the arrest warrant was obtained based on the
allegation that Mr. xxxxxx had committed a crime at the time police officers arrived at
the scene. There is no evidence, however, that Housing Police communicated to other
officers that Mr. xxxxxx was wanted on an arrest warrant, nor that Mr. xxxxxx possessed
any gun in violation of the law. Therefore, thre existed no reasonable suspicion at that
point to even consider stopping Mr. xxxxxx and detaining him.
principally upon the allegation that police officers engaged in a chase of someone who was running, without any knowledge as to why he was even being pursued. There is no evidence that Housing Police communicated to the other officers the reason for seizing Mr. xxxxxx.
8. A hearing on this matter may adduce sworn testimony that the officers could not have observed the fleeing individual sufficient to identify him as Michael xxxxxx.
Argument
Mr. xxxxxx was arrested without probable cause when police officers chased, tackled, handcuffed and transported him to a police substation because that was not reasonable conduct by the police given the totality of the circumstances surrounding the intrusion. The police had no knowledge about Mr. xxxxxx's point of origin, his destination, the manner in which he paid for his ticket, whether he had purchased a one-way or a round-trip ticket, nor the length of his trip and whether he was carrying an appropriate amount of luggage for a trip of that duration. His statement to the police that he had not done anything and his subsequent running from them was the functional equivalent of his assertion of his right not to speak with the police and to walk away from them.
Even if the seizure of Mr. xxxxxx was merely a "stop," rather than an arrest, it was not justified because the police lacked reasonable articulable suspicion, based upon objective facts and circumstances, to stop Mr. xxxxxx. Even if a stop of Mr. xxxxxx was warranted, the investigative and security purposes of a Terry stop were exceeded by the police actions once they had seized Mr. xxxxxx.
Mr. xxxxxx was seized without justification when police officers grabbed him in the MacDonald's. Duhart v. United States, 589 A.2d 895 (D.C. 1991) (holding that a police officer's grabbing of the suspect's wrist constituted a seizure within the meaning of Terry v. Ohio, 392 U.S. 1 (1968) and that police officers who observed individual display something to another individual on the street lacked articulable suspicion to grab suspect's wrist as suspect slowly took hand out of pocket in response to police officer's question about what he had in his pocket).(1)
Because Mr. xxxxxx's running from Detective Centrella was an assertion of his right not to speak with the police, it could not properly be used as part of the calculus supporting his seizure at the MacDonald's. Florida v. Bostick, U.S. , 111 S.Ct. 2382, 2387 (1991) ("refusing to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure"). See also United States v. White, 890 F.2d 1413 (8th Cir. 1989), cert. denied, 498 U.S. 825 (1990); United States v. Brown, 731 F.2d 1491 (11th Cir. 1984). As the Supreme Court has explicitly acknowledged:
The person approached, ... need not answer any question put to him; indeed, he may decline to answer the questions at all and may go on his way. ... He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or to answer does not, without more, furnish those grounds.
Florida v. Royer, 460 U.S. 491, 497-498 (1983) (italics supplied), citing Terry v. Ohio, 392 U.S. 1, 32-33 (1968) (Harlan, J., concurring); id. at 34 (White, J., concurring); United States v. Mendenhall, 446 U.S. 544, 556 (1980) (opinion of Stewart, J.). Thus, Mr. xxxxxx's running from the police in this case was nothing more than his refusal to listen to the police and his effort to go on his way.
In United States v. Wilson, the Fourth Circuit observed:
Despite his best efforts, Wilson was unable to 'terminate the encounter,' to ignore the police presence and go about his business,' or to 'go on his way.' The coercive effect of the policemen's actions must be evaluated in light of Wilson's response. No one would seriously dispute that Wilson had a right to attempt to fend off his inquisitors in the manner he did, and it is not contended that it was unreasonable for him to do so.
953 F.2d at 122. Similarly, in the instant case, Mr. xxxxxx was entitled not to have to speak with Detective Centrella and his comrades; that he exercised that entitlement should not be held against Mr. xxxxxx as part of the basis justifying his seizure.
Similarly, in Wilson, the Fourth Circuit, discussing the Supreme Court's decision in California v. Hodari, U.S. , 111 S.Ct. 1547 (1991), acknowledged that, "[p]hysical movement alone does not negate the possibility that a seizure may nevertheless have occurred." 953 F.2d at 122-123. Accord United States v. Adebayo, 985 F.2d 1333, 1338 n. 3 (7th Cir. 1993) (recognizing that if a suspect flees and is then caught by the police, a seizure has occurred).
The Third Circuit has indicated that "[f]light at the approach of law enforcement officers, when coupled with specific knowledge relating the suspect to evidence of a crime, is a proper factor to be considered in the decision to make an arrest." United States v. Cruz, 910 F.2d 1072, 1077 (3rd Cir. 1990) (italics supplied), citing Delaware v. Prouse, 392 U.S. 40, 66-67 (1968), cert. denied, 498 U.S. 1039 (1991). In Cruz, however, the specific evidence which, when coupled with flight, was sufficient to support the police seizure of the suspect was that the suspect went to a store purchased by a known convicted drug dealer, made a u-turn in front of it, looked into the store window and reached into his pocket as if to look for a key. This is far more specific and objective information than that which Detective Centrella had about Mr. xxxxxx. In Mr. xxxxxx's case the police lacked any specific information whatsoever relating him to evidence of a crime.
In United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981), the D.C. Circuit acknowledged its time-honored view that "flight is not a 'reliable indicator of guilt without other circumstances to make its import less ambiguous.'" 670 F.2d at 1152, quoting Hinton v. United States, 424 F.2d 876, 879 (D.C. Cir. 1969). In Green the Court stated that "'"when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime," [flight or evasion] may properly be considered...'". Id. quoting Hinton v. United States, 424 F.2d at 879, quoting, Sibron v. New York, 392 U.S. 40, 66 (1968).
In United States v. Millan, 912 F.2d 1014, 1018 (8th Cir. 1990), the police had observed a passenger disembark a plane and observed two bulges in the pockets of his jacket which they suspected were drugs. The Eighth Circuit held that the law enforcement agents lacked anything more than an "'unparticularized hunch or suspicion'" for stopping and questioning the accused at the airport, therefore finding that the Fourth Amendment had been violated because the police "belief that [the suspect's] pockets contained narcotics could not have been anything more than a hunch." 912 F.2d at 1017. The Eighth Circuit therefore ruled that all that flowed from the stop had to be suppressed. The same logic applies to Mr. xxxxxx's case.
In United States v. Buenaventura-Ariza, 615 F.2d 29 (2d Cir. 1980), the Second Circuit held that observations made by law enforcement agents who had seen suspects arrive from a "source city" and appear nervous and walk separately in the airport, did not justify an airport stop of the suspects. The Second Circuit held that the fact that "appellants [had] arrived from a source city and seemed nervous to [the law enforcement agent ... was] wholly insufficient to constitute 'specific and articulable' facts supporting a reasonable suspicion that they were involved in drug trafficking." 615 F.2d at 36. The Second Circuit noted the absence of "other objective facts which, when viewed in conjunction with nervous behavior and arrival from a source city, raise the complex of conduct to a level justifying reasonable suspicion of criminal activity." Id. Likewise, Detective Centrella lacked objective facts regarding Mr. xxxxxx to justify reasonable suspicion that he was engaged in criminal activity.
Moreover, the police lacked articulable suspicion for a "Terry" stop, let alone the subsequent search of Mr. xxxxxx. In his concurring opinion in Terry v. Ohio Justice Harlan noted:
[I]n the absence of state authority, policemen have no more right to 'pat-down' the outer clothing of passers-by or of persons to whom they address casual questions, than does any other citizen ...
*******
In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons...
392 U.S. at 32. See Adams v. Williams, 407 U.S. 143, 146 (1972) (weapons search is only permitted if the police officer has reason to believe the suspect is armed and dangerous). There were no "specific and articulable facts which, taken together with rational inferences from those facts warrant[ed]" the pat-down or search of Mr. xxxxxx. Terry v. Ohio, 392 U.S. at 21. See also Brown v. Texas, 443 U.S. 47, 51-52 (1979) (where citizen "look[ed] suspicious" but officer could not articulate "specific, objective facts" which underpinned that hunch, stop and frisk was illegal). Since there was no justification for the police to have patted Mr. xxxxxx down nor to have searched him, the drugs seized from his person must be suppressed. United States v. Most, 876 F.2d 191, 195 (D.C. Cir. 1989) (to allow search based on plain touch "initial contact [must be] determined to be lawful"). Cf. United States v. Millan, 912 F.2d 1014 (8th Cir. 1990).
In moving directly from catching up with Mr. xxxxxx at the MacDonald's to immediately wrestling him to the ground, handcuffing him and moving him over a hundred yards to a secure police substation(2) the police "did not handle the stop properly" and accordingly, "it became an arrest without their thinking about the totality of what was happening." United States v. Novak, 870 F.2d 1345, 1352 (7th Cir. 1989). When Officer Pena felt an object in Mr. xxxxxx's pocket, at most, she had the right to question Mr. xxxxxx or to investigate further. Her actions in this case went beyond a frisk of Mr. xxxxxx and instead constituted a full-blown search of his person. Moreover, the police evidenced their true purpose in seeking to confirm their hunches and suspicions by searching Mr. xxxxxx for drugs. Upon catching up with Mr. xxxxxx, Officer Pena never asked him his name or for identification; where he was coming from or where he was going; nor what was in his pocket and whether she could search it; instead, the police sought "to verify their suspicions by means that approach[ed] the conditions of an arrest." Florida v. Royer, 460 U.S. at 499. Compare United States v. Smith, 574 F.2d 882, 883-885 (6th Cir. 1978) (where suspect exhibited drug courier characteristics "plus" showed a bulge around her abdomen, police officer was justified in stopping her, and asking her for identification, and plane ticket) (emphasis in original), with United States v. Millan, 912 F.2d at 1018 (police officers' belief that suspect's "pockets contained narcotics [was] 'too slender a reed' to justify the seizure"), citing Reid v. Georgia, 448 U.S. at 441. In sum, the police failed to use "investigative methods ...[that were] the least intrusive means reasonably available to verify or dispel the officer's suspicions in a short period of time." Florida v. Royer, 460 U.S. at 500. As the Seventh Circuit explained in Novak, "[t]o qualify as a Terry stop, a detention must be limited in scope and executed through the least restrictive means." 870 F.2d at 1352.
Moreover, Mr. xxxxxx's action in allegedly putting his hand into his pocket, occasioned by the officer's illegal action in seizing him, was not sufficient to justify his detention. The value of similar evasive actions as indicia of probable cause has been recognized to be unreliable. See Duhart v. United States, supra (police officers who observed individual display something to another individual on the street lacked articulable suspicion to grab suspect's wrist as suspect slowly took hand out of pocket in response to police officer's question about what he had in his pocket). In Duhart the District of Columbia Court of Appeals, held that a police officer's grabbing of the suspect's wrist constituted a seizure within the meaning of Terry v. Ohio, 392 U.S. 1 (1968), and that the police lacked a "'particularized and objective basis for suspecting the [suspect] of criminal activity' when he grabbed a hold of [the suspect's] wrist." 589 A.2d at 898, citing United States v. Cortez, 449 U.S. 411 (1981); Terry v. Ohio, 392 U.S at 21. Likewise, in Mr. xxxxxx's case at the time he was seized there were no facts and circumstances in the police officers' possession sufficient to justify their actions in seizing him.
To the extent the government tries to justify the police action with regard to Mr. xxxxxx, as a response to his running when he was approached by the police, the value of flight as an indicia of probable cause has been recognized to be unreliable. In Bailey v. United States, 424 F.2d 876, 880 (D.C. Cir. 1969), the United States Court of Appeals for this Circuit noted, "The evidentiary value of flight,...has depreciated substantially in the face of Supreme Court decisions delineating the dangers inherent in unperceptive reliance upon flight as an indicium of guilt."
Officer Pena's Actions Exceeded A Limited Terry Frisk
Once Mr. xxxxxx had been grabbed, restrained and handcuffed by three officers, the need for a pat-down had evaporated. The purpose of a Terry frisk was not advanced since, at that point, the officers no longer needed to concern themselves with any danger Mr. xxxxxx presented as he was then unable to reach any objects that might have been contained within his pocket. At this point the officers should have questioned Mr. xxxxxx to determine more information that might determine whether there was probable cause to search him.
The distinction between a limited search for weapons and a thorough personal search is consistent with the reasoning in Terry. In addition, there is no evidence suggesting that the police reasonably believed that Mr. xxxxxx was armed or potentially dangerous. See Ybarra v. Illinois, 444 U.S. at 93 (citizen may not be patted down absent a reasonable belief that s/he is armed and dangerous); Adams v. Williams, 407 U.S. 143, 146 (1972) (weapons search is only permitted if the police officer has reason to believe the suspect is armed and dangerous). There were no "specific and articulable facts which, taken together with rational inferences from those facts warrant[ed]" the pat-down or search of Mr. xxxxxx. Terry v. Ohio, 392 U.S. at 21. See also Brown v. Texas, 443 U.S. 47, 51-52 (1979) (where citizen "look[ed] suspicious" but officer could not articulate "specific, objective facts" which underpinned that hunch, stop and frisk was illegal). Under such circumstances, even a pat-down search of Mr. xxxxxx violated his constitutional rights.
The search of Mr. xxxxxx once he had been forcibly moved from the MacDonald's to the police sub-station also violated the Fourth Amendment. In Minnesota v. Dickerson, U.S. , 113 S.Ct. 2130 (June 7, 1993), the Supreme Court held that contraband discovered through the sense of touch had to be suppressed where "the officer who conducted the search was not acting within the lawful bounds of Terry [v. Ohio, 392 U.S. 1 (1968)]." In Minnesota v. Dickerson, U.S. , 113 S.Ct. 2130 (1993), the Supreme Court held that contraband discovered through the sense of touch had to be suppressed where "the officer who conducted the search was not acting within the lawful bounds of Terry v. Ohio, 392 U.S. 1 (1968)]." Because Officer Pena's actions fell outside the scope of the "plain touch" doctrine explained by the Supreme Court in Dickerson, they constituted an unlawful search of Mr. xxxxxx.
Suppression Of Statements
Any statements Mr. xxxxxx made subsequent to the police illegally searching him and seizing him must be suppressed. Taylor v. Alabama, 457 U.S. 687 (1982); Dunaway v. New York, 442 U.S. 200, 220 (1979); Wong Sun v. United States, 371 U.S. 471 (1963). Moreover, Mr. xxxxxx's statements were obtained in violation of his Miranda rights. Miranda v. Arizona, 384 U.S. 436 (1966). For that reason, they must be suppressed. There can be no finding that, when he made the statements at issue in this case, Mr. xxxxxx intentionally relinquished a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). See also Tague v. Louisiana, 444 U.S. 469, 471 (1980) (any waivers must be shown to be understanding).
WHEREFORE, for the foregoing reasons, those set forth in Mr. xxxxxx's original Motions To Suppress and the Incorporated Memoranda of Points and Authorities In Support Thereof, any other reasons this Court may deem just and proper, and which may appear in supplemental pleadings, which Mr. xxxxxx explicitly reserves the right to file, Neil Wilson, through counsel, respectfully requests that his suppression motions be granted and that the tangible evidence seized from his person be suppressed as evidence against him after an evidentiary hearing.
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Santha Sonenberg
Assistant Federal Public Defender On Behalf of Neil Wilson 625 Indiana Avenue, N.W. Washington, D.C. 20004
(202) 208-7500
Dated: August 2, 1994
CERTIFICATE OF SERVICE
This is to certify that on this 2d day of August, 1994, a copy of the foregoing Renewed Motion To Suppress Tangible Evidence and Statements and the Incorporated Memorandum of Points and Authorities In Support of Motion To Suppress has been served by first-class postage-prepaid mail upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 for Assistant United States Attorney Kevin Carwile.
Santha Sonenberg
1. United States v. Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990) (per curiam) urges "as much commonality between [the District of Columbia Court of Appeals] and the [Court of Appeals for the District of Columbia Circuit] as is possible." Accordingly, the District of Columbia Court of Appeals' decision in Duhart should not be discounted in determining whether the police violated Mr. xxxxxx's Fourth Amendment rights in this case.
2. From the time the police grabbed Mr. xxxxxx and handcuffed both his hands behind his back, transporting him over one hundred yards to the substation, until the time they searched his jacket, they did not ask his permission to search the jacket, they did not ask him any additional questions, and they knew no more at the police substation than they had known at the MacDonald's. Cf. Sibron v. New York, 392 U.S. 40, 63 (1968) (police officer "obtained no new information in the interval between his initiation of the encounter ... and his physical seizure and search of Sibron outside").