Ellison v. United States ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-462
RASHAD ELLISON, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-12054-18)
(Hon. Kimberley S. Knowles, Trial Judge)
(Submitted May 13, 2020 Decided October 1, 2020)
Richard Seligman was on the brief for appellant.
Jessie K. Liu, United States Attorney at the time the brief was filed, and
Elizabeth Trosman, Elizabeth H. Danello, Dana Joseph, and Steven B. Snyder,
Assistant United States Attorneys, were on the brief for appellee.
Before BECKWITH and DEAHL, Associate Judges, and FISHER, Senior Judge. *
*
Judge Fisher was an Associate Judge at the time of submission. His status
changed to Senior Judge on August 23, 2020.
DEAHL, Associate Judge: A police officer saw Rashad Ellison engage in what
he suspected was a hand-to-hand drug deal. Mr. Ellison exchanged a small item
retrieved from the front of his waistband for cash. The officer radioed details of the
transaction and descriptions of its participants to nearby officers who were on the
scene as part of a narcotics investigation. Officers stopped and searched the
presumed buyer, after he briefly entered and exited a store in the area, and recovered
a small bag of crack cocaine on him. A different officer—who had already detained
and patted down Mr. Ellison based on the observed transaction—then conducted an
extensive search of Mr. Ellison on the scene, rifling through his shorts, but
uncovered nothing incriminating. Officers then transported Mr. Ellison to a police
station and conducted a strip search, which uncovered forty-six small bags of crack.
Mr. Ellison moved to suppress those narcotics as having been obtained in
violation of his Fourth Amendment rights. The trial court denied his suppression
motion, and Mr. Ellison pled guilty to distribution of cocaine, in violation of D.C.
Code § 48-904.01(a)(1) (2014 Repl. & 2020 Supp.), and possession with intent to
distribute cocaine, in violation of D.C. Code § 48-904.01(a)(1). He reserved his
right to appeal the court’s suppression ruling. See Super. Ct. Crim. R. 11(a)(2). Mr.
Ellison now raises two Fourth Amendment claims on appeal. First, he argues that
his pre-arrest detention was longer than permitted under Terry v. Ohio, 392 U.S. 13
(1968). Second, he argues that the government lacked probable cause to search and
arrest him. We disagree on both points and affirm.
I.
On August 14, 2018, a team of officers from the Metropolitan Police
Department was staking out the 800 block of 21st Street NE as part of a narcotics
investigation. Officer Troy Hinton was the “eyes” of the operation, watching from
a nearby observation post and relaying what he saw (via radio) to other members of
the team. Just after 5:00 p.m., Officer Hinton saw what he believed to be a hand-to-
hand narcotics exchange between two individuals, and he later identified Mr. Ellison
as the apparent seller. Officer Hinton radioed that he saw the seller reach into his
front waistband, retrieve a small object, and exchange it with the buyer for cash.
Officer Hinton described the seller as a black man wearing a turquoise tank top and
grey shorts, and riding a yellow bicycle. He described the buyer as black man
wearing a tank top who drove away in a black Acura, and he provided the license
plate number. Officer Andrew Stout, along with his partner, tailed the buyer and
radioed two communications relevant here: (1) he indicated that he was “going to
stop the buyer” and instructed Officers Benjamin Rubin and Apolinar Nunez to “stop
the seller,” and about three minutes later (2) he indicated that he was “about to” stop
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the buyer and told Officers Rubin and Nunez, “if you want to go toward the seller,
go for it.” Officer Hinton immediately added, “make sure they get a recovery before
y’all pop that seller.”
Officers Rubin and Nunez then apprehended Mr. Ellison, who matched the
description of the seller. Officer Rubin placed him in handcuffs and conducted a pat
down frisk of his waistband, finding nothing. Officer Rubin did not place Mr.
Ellison under arrest at that point, but detained him as other officers investigated
whether the buyer in fact obtained illegal narcotics. In the meantime, Officer Stout
stopped and searched the buyer as he exited a nearby convenience store, and
recovered a small bag of crack from his pocket. His partner radioed that they found
crack on the buyer, to which Officer Nunez—sitting in a police cruiser apart from
Officer Rubin, which is apparently where he remained after the initial stop—
responded “copy.” By this point, Mr. Ellison had been detained for about three
minutes.
After an additional seven-minute delay apparently caused by Officer Nunez’s
body worn camera malfunctioning, another officer arrived to assist Officer Rubin,
who then conducted a thorough on-scene search of Mr. Ellison. After several
minutes of probing through Mr. Ellison’s shorts and underwear, Officer Rubin found
5
some money in Mr. Ellison’s shorts but no narcotics. The officers then formally
arrested Mr. Ellison, transported him to the police station, and conducted a strip
search, finding forty-six bags of crack. Mr. Ellison was later indicted for both
distribution of cocaine, in violation of D.C. Code § 48-904.01(a)(1), and possession
with intent to distribute cocaine, also in violation of D.C. Code § 48-904.01(a)(1).
Mr. Ellison moved to suppress the recovered narcotics as being the fruit of an
illegal search in violation of his Fourth Amendment rights. The trial court held an
evidentiary hearing dedicated to the motion. At the close of evidence, the
government stressed the recovery of crack from the buyer as critical to the probable
cause calculus, stating there was “probable cause to search [Mr. Ellison] after the
zip [was] found on the buyer,” “they had probable cause specifically after they found
. . . controlled substances in the buyer’s shorts.” Mr. Ellison’s counsel argued that
reliance was misplaced because it was unclear if Officer Rubin, who conducted the
on-scene search and effectuated the arrest, was aware that crack was recovered from
the buyer.
The trial court denied Mr. Ellison’s suppression motion. The judge focused
on two questions relevant to Mr. Ellison’s Fourth Amendment challenge. First, she
addressed whether there was reasonable articulable suspicion to believe that Mr.
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Ellison had engaged in criminal activity before his seizure. See generally Terry v.
Ohio, 392 U.S. 1 (1968). She concluded there was. She reasoned that the hand-to-
hand transaction witnessed by Officer Hinton, and the detailed description of the
seller matching Mr. Ellison, provided the requisite reasonable articulable suspicion
for a Terry stop.
Second, she addressed whether there was “probable cause to search” Mr.
Ellison. She concluded there was not at the time officers initially detained him and
patted him down, noting that there was no evidence this was a “high crime area,” or
that Mr. Ellison secreted the money he received in a suspicious way. But she found
probable cause accrued once crack was recovered from the buyer: “[A]t that point
there was probable cause, because there was confirmation of” the suspected drug
transaction. She did not address if or when Officer Rubin personally learned of that
recovery. But she did find that officers recovered crack from the buyer before
Officer Rubin conducted the intrusive on-scene search of Mr. Ellison, and before the
subsequent stationhouse search yielding the forty-six bags of crack, so that probable
cause supported the searches of Mr. Ellison.
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After the trial judge denied the suppression motion, Mr. Ellison entered a
conditional guilty plea to both counts of the indictment under Super. Ct. Crim. R.
11(a)(2), reserving his right to appeal the suppression ruling.
II.
Mr. Ellison now makes two arguments attacking the trial court’s Fourth
Amendment rulings: (1) his pre-arrest detention was too protracted to be justified
as an investigatory stop under Terry, 392 U.S. at 26 (permitting “brief” investigatory
detentions); and (2) in any event, there was not probable cause to arrest and search
him. We disagree on both points and affirm. Because our resolution of the second
issue informs the first, we begin by addressing probable cause.
A. Probable Cause
“A search conducted without a warrant is per se unreasonable under the Fourth
Amendment unless it falls within a few specific and well-established exceptions.”
United States v. Taylor, 49 A.3d 818, 821 (D.C. 2012) (quoting Basnueva v. United
States, 874 A.2d 363, 369 (D.C. 2005)) (internal quotation marks omitted). One
exception is that officers may conduct a “search incident to a lawful arrest,” id., that
is, an arrest supported by probable cause, Dunaway v. New York, 442 U.S. 200, 213–
8
14 (1979). The government argues that the on-scene and stationhouse searches of
Mr. Ellison both fit within this exception to the Fourth Amendment’s warrant
requirement. 2 Mr. Ellison’s only argument in response is that there was no probable
cause to support either search. We disagree.
We begin by clearing away some confusion about whether our inquiry should
focus on probable cause to search, or on probable cause to arrest. Counsel for Mr.
Ellison waxes about the difference, suggesting the former was lacking even if the
latter existed. But his argument stems from the mistaken (and disadvantageous to
Mr. Ellison) premise that probable cause to search alone might have justified the on-
scene search but was simply lacking. 3 That is wrong. Probable cause to search,
2
While the on-scene search “did not yield inculpatory evidence,” as the
government points out, its legality remains relevant. That lengthy and intrusive
search exceeded the bounds of a permissible Terry stop so that, at least by the time
Officer Rubin conducted the search, the stop was transformed into an arrest. See
Womack v. United States, 673 A.2d 603, 608 (D.C. 1996) (“[W]hen officers subject
a detained suspect to a greater restraint on his liberty than is permissible in a
legitimate Terry seizure, articulable suspicion is not sufficient, and the Constitution
requires a showing of probable cause.”). If that arrest was not supported by probable
cause, we would then have to confront the question of whether the forty-six bags
recovered after the subsequent stationhouse search were the fruit of the unlawful
arrest, an issue we do not reach.
3
The mistaken premise echoes the trial judge’s own framing of the issue:
“Now was there probable cause to search?”; “I believe there was probable cause to
search.” That is not the question that needed answering. The relevant inquiry was
not whether there was probable cause to search, but instead whether there was
probable cause to arrest, and if so, was there an actual arrest so that a search was
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absent a warrant or some exception to the warrant requirement—like a
contemporaneous arrest supported by probable cause, Knowles v. Iowa, 525 U.S.
113, 117–18 (1998)—is not an adequate justification for a search. Taylor, 49 A.3d
at 821; Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971) (“[T]he most
basic constitutional rule in this area is that ‘searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and well
delineated exceptions.’”) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
The only exception to the warrant requirement the government advances is
that the searches of Mr. Ellison were conducted incident to arrest. Mr. Ellison does
not argue that the timing of his on-scene search, preceding the more formal trappings
permitted incident to that arrest. Focusing on probable cause to search not only
identifies the wrong object of the probable cause inquiry, it also suffers from a more
fundamental problem: neither probable cause to search, nor probable cause to arrest,
by itself justifies a search. Probable cause to search is the predicate for, not an
exception to, obtaining a search warrant. And probable cause to arrest, absent an
actual arrest, is likewise insufficient justification for a search. Knowles v. Iowa, 525
U.S. 113, 115-16 (1998) (rejecting view that “probable cause to make a custodial
arrest” justifies an incident search absent a custodial arrest “in fact”). We see no
need to remand for the trial court to focus its findings on the pertinent legal question
whether there was probable cause to arrest because we interpret it as having engaged
in this inquiry, despite its imprecise phrasing of the pertinent question. And, as
discussed below, there is no daylight between the two inquiries: there was probable
cause to both search and arrest for the same reasons discussed below.
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of his arrest, brings it outside the bounds of the search incident to arrest exception.
See generally Rawlings v. Kentucky, 448 U.S. 98, 100 (1980) (“Where the formal
arrest follow[s] quickly on the heels of the challenged search of [a suspect’s] person,
we do not believe it particularly important that the search preceded the arrest rather
than vice versa.”). The government’s argument that the on-scene search was
incident to Mr. Ellison’s subsequent formal arrest despite their inverse sequencing
stands unrefuted, and thus conceded. The only remaining question is thus whether
there was probable cause to arrest, because aside from an arrest supported by
probable cause, “a search incident to the arrest requires no additional justification.”
United States v. Robinson, 414 U.S. 218, 235 (1973).
When reviewing the trial court’s determinations, we view “the facts and all
reasonable inferences therefrom in the light most favorable to the government as the
prevailing party, and we review the Superior Court judge’s findings of fact only for
clear error.” Logan v. United States, 147 A.3d 292, 297 (D.C. 2016) (quoting Towles
v. United States, 115 A.3d 1222, 1228 (D.C. 2015)). We assess the trial court’s legal
conclusions under the Fourth Amendment de novo. Jackson v. United States, 157
A.3d 1259, 1264 (D.C. 2017). Probable cause exists where a reasonable police
officer “considering the total circumstances confronting him and drawing from his
experience would be warranted in the belief that an offense has been or is being
11
committed.” Peterkin v. United States, 281 A.2d 567, 568 (D.C. 1971) (quoting
Lucas v. United States, 256 A.2d 574, 575 (D.C. 1969) (internal quotation marks
omitted). This inquiry “must be guided by practical rather than technical
considerations keeping in mind the necessities of the moment and the reasonableness
of the officers’ actions.” Id.We agree with the trial court, aside from its framing of the issue, supra note
3, that there was probable cause to arrest Mr. Ellison once a small bag of crack was
recovered from the buyer. By that point, officers had not only seen Mr. Ellison
engage in a hand-to-hand transaction—exchanging a small item from his front
waistband for cash—but they had also recovered a small bag of crack from the
person he had just transacted with. Mr. Ellison counters that this case is “directly on
par” with Shelton v. United States, 929 A.2d 420 (D.C. 2007), in which we held that
an observed hand-to-hand transaction, without “additional contextual factors,” did
not supply probable cause, id. at 425. We would agree with Mr. Ellison if the initial
description of the hand-to-hand transaction were all the information the officers had.
But there was considerably more.
Unlike in Shelton, here we have the discovery of a small bag of crack on the
buyer, which is a significant additional factor, more incriminating than other factors
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that we have held provide probable cause when coupled with hand-to-hand
transactions. See, e.g., Jefferson v. United States, 906 A.2d 885, 886–90 (D.C. 2006)
(finding probable cause where defendant engaged in one hand-to-hand, reached into
a vehicle to perhaps “re-supply[] himself,” and then engaged in another hand-to-
hand); Coles v. United States, 682 A.2d 167, 168 (D.C. 1996) (finding probable
cause because experienced officer observed defendant engage in a hand-to-hand
after retrieving a ziplock bag from an apparent stash in a nearby tree-box). One
individual’s conduct in an observed hand-to-hand transaction can contribute to
probable cause to arrest the other. See Young v. United States, 56 A.3d 1184, 1192–
93 (D.C. 2012) (finding probable cause to search and arrest defendant where other
individual in observed hand-to-hand discarded small item upon seeing police). The
recovery of crack from the buyer when coupled with the hand-to-hand transaction
supplied probable cause to arrest Mr. Ellison, the observed seller.
Mr. Ellison further contends there was little evidence and no trial court finding
that Officer Rubin himself, who effectuated the on-scene search and arrest, knew
officers had recovered crack from the buyer before searching Mr. Ellison. The
government concedes the factual point, but counters that the so-called “collective
knowledge” doctrine—sometimes referred to as the “fellow officer” rule, see
generally Whiteley v. Warden, 401 U.S. 560, 568 (1971)—renders it irrelevant. In
13
its view, the “collective knowledge of investigating police officers [is] imputable to
other officers involved in [the] investigation.” See Smith v. United States, 358 F.2d
833, 835 (D.C. Cir. 1966) (“[P]robable cause is to be evaluated . . . on the basis of
the collective information of the police” instead of just the arresting officer’s
knowledge.); Parsons v. United States, 15 A.3d 276, 279 (D.C. 2011) (explaining
the collective knowledge doctrine is “firmly established” to allow information
collectively known amongst officers to provide probable cause); Prince v. United
States, 825 A.2d 928, 932–33 (D.C. 2003) (concluding there was sufficient probable
cause even though the arresting officer’s knowledge taken alone would not suffice).
The government paints with too broad a brush. It is not the case, as the government
suggests, that any officer’s knowledge is imputable to all others investigating the
same crime, without limitation. 4 Nonetheless, we agree on these facts that the
4
The collective knowledge doctrine is more nuanced than that, and we have
described it in varying ways that are not so easy to reconcile. Compare Haywood v.
United States, 584 A.2d 552, 557 (D.C. 1990) (“In cases such as this where probable
cause for arrest is predicated in part on the personal observations of the arresting
officer, the court may not rely on facts which were available to other officers at the
scene unless that information was communicated to the arresting officer.”), with
Tetaz v. District of Columbia, 976 A.2d 907, 914 n.7 (D.C. 2009) (“It does not matter
that the particular officers on duty at the Russell Building may not have known of
the activity inside the Hart Building. In a case concerning ‘a fast-moving sequence
of events involving a number of law enforcement officers at several different
locations,’ this court applies the doctrine of collective knowledge in deciding
whether police action was justified.”) (citation omitted). We need not decide in this
case the precise scope of the doctrine nor do we attempt to reconcile any tension
14
collective knowledge doctrine applies to factor the crack recovery into the probable
cause calculus. Here is why.
It is undisputed that the arresting officer, Officer Rubin, heard Officer
Hinton’s initial description of the hand-to-hand transaction and description of the
seller. And Mr. Ellison does not contest, as the record indicates, that Officer Stout
subsequently directed Officer Rubin to stop Mr. Ellison—“stop the buyer,” “go
toward the seller, go for it”—prompting Officer Rubin to do just that. While those
transmissions came before Officer Stout recovered crack from the buyer, we have
squarely held that such after-acquired facts may be imputed to the officer who acted
on the earlier command under the collective knowledge calculus. In re M.E.B., 638
A.2d at 1132–33 (collective knowledge doctrine accounts for directing officer’s
knowledge, even that knowledge obtained after directive issued). And because
Officer Stout himself recovered crack from the buyer, there is no question that he
was aware of the crack recovery before the on-scene search and arrest of Mr. Ellison.
That information thus factors into the probable cause to arrest calculus, regardless
of whether Officer Rubin himself was aware of the recovery.
between the statements above because, as discussed below, we find In re M.E.B.,
638 A.2d 1123, 1132–33 (D.C. 1993), to be controlling here.
15
We do not address the force of the collective knowledge doctrine where an
officer is not merely effectuating other officers’ directives but exceeds the bounds
of (or even contravenes) those directives. Officer Stout’s directive was to “stop”
Mr. Ellison—to “go for it”—and Officer Hinton immediately rejoined, “make sure
they get a recovery before y’all pop that seller.” Mr. Ellison might have argued, but
does not, that Officer Rubin could not rely on Officer Stout’s directive (and all that
Officer Stout knew, both before and after issuing it) to justify an intrusion that was
not only greater than the one directed, but in contravention of Officer Hinton’s
contemporaneous direction not to arrest (or “pop”) Mr. Ellison unless and until drugs
were recovered from the buyer. See Bryant v. United States, 599 A.2d 1107, 1112
n.9 (D.C. 1991) (“That the arrest team was entitled to rely on the information
transmitted is beyond question. But the scope of justifiable reliance is limited by the
objective information imparted.”) (internal citations omitted); United States v.
Hensley, 469 U.S. 221, 232–33 (1985) (finding scope of inquiry conducted in
reliance on “wanted flyer” limited by issuing department’s knowledge and what is
defensible based on “objective reading” of the flyer). The argument is not raised, so
we bracket it only to say we do not decide it.
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B. Prolonged Detention
Mr. Ellison also argues that his pre-arrest detention was longer than permitted
under Terry’s rationale permitting brief investigatory stops. 5 Mr. Ellison complains
that he was detained under Terry for more than ten minutes, without adequate
justification. But for reasons set forth above, the duration of his Terry detention is
not the ten-plus minutes between his initial seizure and formal arrest, but just the
three minutes that elapsed between his seizure and the accrual of probable cause to
arrest. At that point in time, the officers had adequate justification for the more
prolonged detention attendant to an arrest. And as explained below, that three-
minute-long, pre-probable-cause detention was reasonable under the circumstances
and justified by Terry’s rationale.
In evaluating the legality of a Terry stop, we look to “whether the officer's
action was justified at its inception, and whether it was reasonably related in scope
to the circumstances which justified the interference in the first place.” Terry, 392
5
The government argues that Mr. Ellison forfeited this argument because he
did not challenge the length of his pre-arrest detention in the trial court, and urges us
to apply plain error review. Mr. Ellison counters that he did adequately preserve the
issue. We do not address the preservation argument because we find that the claim
fails on its merits.
17
U.S. at 19–20. In general, Terry stops are “designed to last only until a preliminary
investigation either generates probable cause or results in the release of the suspect.”
In re A.J., 63 A.3d 562, 567 (D.C. 2013) (quoting In re M.E.B., 638 A.2d at 1126);
see also Adams v. Williams, 407 U.S. 143, 146 (1972) (“A brief stop of a suspicious
individual, in order to determine his identity or to maintain the status quo
momentarily while obtaining more information, may be most reasonable in light of
the facts known to the officer at the time.”). In reviewing the scope of the stop, we
review whether the officers “acted less than diligently, or [whether] they
unnecessarily prolonged [the suspect’s] detention.” United States v. Sharpe, 470
U.S. 675, 685 (1985) (emphasis omitted). Brevity is one factor to consider. Id.(citing United States v. Place, 462 U.S. 696, 709 (1983)). Like the Supreme Court
in Place, though, this court has declined to adopt a bright-line rule that a certain
length of time de facto transforms a detention into an arrest. In re D.M., 94 A.3d
760, 765–66 (D.C. 2014) (citing Place, 462 U.S. at 709). Instead, we consider other
factors like “the law enforcement purposes to be served by the stop as well as the
time reasonably needed to effectuate those purposes” and “whether the police
diligently pursued a means of investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to detain the defendant.”
Sharpe, 470 U.S. at 685; see also In re D.M., 94 A.3d at 765 (“Police conduct
exceeds the scope permissible under Terry when ‘the police seek to verify their
18
suspicions by means that approach the conditions of arrest.’”) (quoting Florida v.
Royer, 460 U.S. 491, 499 (1983)).
Mr. Ellison does not contend that his stop was unjustified at its inception under
Terry; he concedes that the initial detention was justified. He instead takes issue
only with the duration (or scope) of the Terry stop. The three-minute duration of the
Terry stop fits within the time period this court has allowed for investigative stops,
on similar facts. See Speight v. United States, 671 A.2d 442, 449 (D.C. 1996)
(upholding additional detention of appellant for a few minutes so police could search
his car even though frisk revealed no weapons or contraband); Turner v. United
States, 623 A.2d 1170, 1173–74 (D.C. 1993) (upholding detention of appellant for a
few minutes to investigate criminal involvement even after police learned they
stopped the wrong suspect). There was good reason for the three-minute Terry
detention: it made sense for officers to further investigate whether the purported
buyer had indeed procured narcotics, and once they determined he had, officers had
probable cause for the more protracted stop attendant to Mr. Ellison’s arrest.
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III.
The judgment of the Superior Court is affirmed.
So ordered.