Deandre J. Posey v. United States , 201 A.3d 1198 ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-CF-1126
DEANDRE J. POSEY, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CF2-4464-15)
(Hon. Juliet J. McKenna, Trial Judge)
(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
2
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
Terry 1 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
1
Terry v. Ohio, 392 U.S. 1 (1968).
3
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
2
Officer Orgel did not testify at the suppression hearing.
4
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.
5
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
3
Mr. Posey was found guilty of carrying a pistol without a license outside a
home or place of business by a convicted felon, in violation of D.C. Code § 22-
4504 (a)(2) (2012 Repl.), unlawful possession of a firearm by a convicted felon, in
violation of D.C. § 22-4503 (a)(1) (2012 Repl.), possession of an unregistered
firearm, in violation of D.C. Code § 7-2502.01 (a) (2012 Repl.), and unlawful
possession of ammunition, in violation of D.C. Code § 7-2506.01 (3) (2012 Repl.).
He was sentenced to fourteen months’ incarceration for count 1, thirty-six months’
incarceration for count 2, ninety days’ incarceration for count 3, and ninety days’
incarceration for count 4, all to run concurrently, and three years of supervised
release, stayed pending the outcome of this appeal pursuant to D.C. Code § 23-
1325 (c) (2012 Repl.).
6
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
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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
8
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)).
4
We acknowledge that the discrepancy between Mr. Posey’s jeans and the
description of the suspect’s all black clothing is relevant to reasonable suspicion.
Ordinarily, “[t]he fact that a part of the description does not fit is . . . a negative
factor.” Brown v. United States, 590 A.2d 1008, 1018 (D.C. 1991). However, we
do not consider this discrepancy here because the trial court found that Officer
Kasco’s testimony about inadequate lighting conditions in the area was sufficient
to support a reasonable belief that Mr. Posey was dressed in all black at the time he
was stopped. Cf. id. (“[M]istakes are irrelevant if there is sufficient particularized
information . . . .” (internal quotation marks omitted)).
9
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 (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
investigation justified a search). We thus require officers to make observations to
develop their legitimate circumstantial hunches into articulable suspicion that the
individuals they choose to stop are engaged in criminal activity. See Wade, 173
A.3d at 91; Jackson, 157 A.3d at 1264-65; Pridgen, 134 A.3d at 303. No evidence
in our record suggests that the officers here completed the final investigative step
prior to seizing Mr. Posey.
10
Just as Mr. Posey’s presence in a group on the same block as the robbery
some five to ten minutes after the crime was reported does not exclude him from
suspicion, he correctly notes that his presence amongst such a group does not
necessarily point the finger in his direction. The trial court found that Mr. Posey
was discovered by the officers near the scene of the crime five to ten minutes after
the report of the robbery but heard no testimony and made no findings about when
the crime actually occurred. See Bennett v. United States, 26 A.3d 745, 754 (D.C.
2011) (recognizing that it takes “some amount of time” for reports of criminal
activity to reach responding officers). These minimally proximate facts do not
paint the picture brightly enough for us to afford them the seemingly dispositive
weight assigned by the trial court. Because the officers did not make any
observations fortifying the vague lookouts with specific probative facts describing
this group in relation to the scene of the crime relative to the time that the robbery
occurred, we conclude that they had no cause to cast any particular suspicion on
this group or subsequently identify Mr. Posey as the robber due to his association
with that group. See, e.g., Armstrong, 164 A.3d at 111 (“Being alone in the area of
the reported crime limits the universe of potential persons ensnared by a general
description and strengthens individualized suspicion in any one person” while
“[p]resence in a populated area . . . does the opposite.”). We therefore cannot
accept the government’s invitation to infer that Officers Kasco and Orgel arrived in
11
close temporal proximity to the crime merely because they were in close spatial
proximity to the scene when they heard the lookouts, headed to the crime scene,
saw their sergeant already on the scene with the complainant, and found Mr. Posey
in a group walking up the block on which the crime had at some earlier time
occurred. See, e.g., In re T.L.L., 729 A.2d at 341 (“The generality of the
descriptions of the robbers may not have been fatal if the accused had been
apprehended immediately after the robbery at the location where the crime
occurred.”).
The government suggests that Mr. Posey’s presence in a high crime
neighborhood coupled with his flight from uniformed officers is enough to
overcome the aforementioned deficiencies in the evidence before us. We harbor
no doubt that more is required for officers to develop reasonable articulable
suspicion of criminal activity justifying a stop.
While we cannot and do not say that encounters with police in a high crime
neighborhood are irrelevant per se, we can accord no real significance to the nature
of the neighborhood in this case. The government’s reliance on Illinois v.
Wardlow, 528 U.S. 119 (2000), is misplaced. The officers here were not alerted to
the fact that a robbery was committed or may be under commission by observing
12
some indicia of criminal activity common in the area of their patrol. See id. at 121-
22, 124-25; Miles, 181 A.3d at 640-41, 640 n.13; James v. United States, 829 A.2d
963, 968 (D.C. 2003). Rather, the officers were investigating a robbery that had
already occurred and been reported with nothing more than a vague lookout
description. Of far greater interest to our present inquiry is Officer Kasco’s
testimony that he did not observe any illegal activity or any indicia of illegal
activity as the officers approached the group of men that included Mr. Posey. See
Henson, 55 A.3d at 867.
Although the trial court appears to have found that Mr. Posey’s subsequent
flight from the group of men with whom he had been walking was not provoked by
the officers’ approach, unprovoked flight “is not necessarily indicative of [any
particular] wrongdoing.” Wardlow, 528 U.S. at 124 (2000). Flight is not merely a
box that, once checked, automatically justifies a stop. Like any factor in our
comprehensive analysis, flight is viewed in the context of the specific facts and
corroborating circumstances of each individual case to determine whether officers
had individualized and particularized suspicion to conduct a stop. See, e.g.,
Navarette v. California, 572 U.S. 393, 397 (2014); Miles, 181 A.3d at 641.
13
We find no indication in the record before us that Mr. Posey’s unprovoked
flight added anything to Officer Kasco’s minimal knowledge of Mr. Posey’s
relationship to the robbery then under investigation. Nothing about Mr. Posey’s
conduct prior to his flight or during Officer Orgel’s pursuit supports a contrary
finding. Cf. Miles, 181 A.3d at 641 (“[A]n individual may be motivated to avoid
the police by a natural fear or dislike of authority, a distaste for police officers
based upon past experience, an exaggerated fear of police . . . or other legitimate
personal reasons.” (internal brackets and quotation marks omitted)). Unlike those
cases where flight contributes to reasonable articulable suspicion, Officer Kasco
did not observe Mr. Posey doing anything illegal as the officers approached. See
Coghill v. United States, 982 A.2d 802, 808 (D.C. 2009); Howard v. United States,
929 A.2d 839, 845-46 (D.C. 2007). Nor did Officer Kasco indicate that the
manner of Mr. Posey’s flight was itself suggestive of armed robbery. Cf., e.g.,
Wade, 173 A.3d at 91 (“When the officers approached . . . Mr. Wade discarded a
cellphone and placed his hand near his waist, just where the 911 caller said a gun
would be.”); Pridgen, 134 A.3d at 304-05 (explaining that the “articulable basis for
suspicion that appellant was armed did not ripen into a reasonable suspicion . . .
until the officers saw appellant drop the cellphone, decline to stop and retrieve it
. . . hold his side as he ran upstairs,” and “mov[e] his hand around his left pocket as
he stood at the apartment unit door” while police in marked vests pointed their
14
guns at him and told him to get on the floor). If Officer Orgel developed
knowledge of any other fact tending to identify Mr. Posey as the robber, the
government did not present that information at the suppression hearing.
Under the totality of these circumstances, the officers approached the group
and acted on a hunch short of the individualized and particularized knowledge
needed to stop Mr. Posey on suspicion of robbery. We hold simply that a
nondescript individual distinguishing himself from an equally nondescript crowd
by running away from officers unprovoked does not, without more, provide a
reasonable basis for suspecting that individual of being involved in criminal
activity and subjecting him or her to an intrusive stop and police search. 5
5
We observe that the trial court did not specifically address Officer Kasco’s
testimony that he saw his sergeant with the complainant prior to spotting Mr.
Posey’s group walking up the same block, knew the block was in a predominately
black neighborhood, and understood that groups in that area often “scatter” when
approached by police. However, viewing these facts and the other uncontested
testimony in the light most favorable to the government does nothing to undermine
and supports our analysis that the officers in this case did not have enough
information to form a reasonable articulable suspicion under the totality of the
circumstances. See Pridgen, 134 A.3d at 302; Robinson, 76 A.3d at 335; Henson,
55 A.3d at 867.
15
IV.
Because we conclude that the officers lacked the particularized suspicion
necessary to subject Mr. Posey to a Terry stop, the trial court erred in denying his
motion to suppress. Without the firearm evidence discovered as a result of the
illegal stop, Mr. Posey could not have been found guilty of the various weapons
offenses for which he was convicted. Because the stipulated facts leading to Mr.
Posey’s conviction by the trial court were conditioned on the admission into
evidence of the gun illegally seized from him, his convictions are reversed. 6
So ordered.
6
Mr. Posey also asks us to consider whether additional distinguishing
information regarding the robbery suspect’s physical description that the 911
operator allegedly possessed but did not broadcast to officers should have been
considered under the collective knowledge doctrine. The government argues that
the 911 call was not introduced at the suppression hearing and contests the
proposition that a civilian 911 operator can be considered part of, and contribute to,
the collective knowledge of law enforcement. While these arguments raise
questions relevant to our inquiry, we need not address them here as we have
already found error in the trial court’s denial of the motion to suppress and
reversed Mr. Posey’s convictions. See Armstrong, 164 A.3d at 108 n.9.