Kelby R. Gordon v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CM-594
KELBY R. GORDON, APPELLANT,
v.
UNITED STATES, APPELLEE,
Appeal from the Superior Court
of the District of Columbia
(CMD-3449-13)
(Hon. Harold Cushenberry, Jr., Trial Judge)
(Argued December 16, 2014 Decided July 23, 2015)
Anna B. Scanlon for appellant.
Vanessa Goodwin, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, Kondi Kleinman, and Erik H. Zwicker, Assistant
United States Attorneys, were on the brief, for appellee.
Before BECKWITH and MCLEESE, Associate Judges, and FERREN, Senior
Judge.
FERREN, Senior Judge: Kelby R. Gordon appeals his conviction for
2
possession of marijuana following a conditional guilty plea.1 On appeal, Gordon
argues that he was unlawfully “seized” when police officers, without reasonable
articulable suspicion,2 repeatedly questioned him about his identity for “about ten
minutes.” As a result, he argues, his statements to the police and the tangible
evidence found on his person should have been suppressed. We agree with
Gordon and reverse.
I.
On March 5, 2013, Metropolitan Police Department Officer Marboo
Whisnant, accompanied by three fellow officers in the Robbery Unit, “saw a group
of guys loitering in the hallway” of an apartment building in Southeast
Washington, D.C. The officers pulled up to the building in an unmarked police
vehicle, without flashing lights. Wearing plain clothes with black tactical vests
that displayed “Police” on the front and back, the officers carried handcuffs, a
baton, pepper spray, and a gun, and entered the building through an unlocked front
door.
1
A conditional guilty plea may be withdrawn if this court rules that the trial
court erroneously denied a specified pretrial motion, in this case a motion to
suppress evidence. See Super. Ct. Crim. R. 11 (a)(2).
2
Terry v. Ohio, 392 U.S. 1, 30 (1968).
3
Officer Whisnant described the main landing where the police entered as “a
little square area,” and Gordon’s defense investigator described it as a “little foyer”
with “four or five steps to go down and about four or five steps to go up.” When
the four officers entered the foyer, they saw “about three to four guys inside.”
Two were standing on the main landing, the man later identified as Gordon was on
the upward stairs, and the other individual was on the downward stairs. Officer
Whisnant testified that the whole building smelled like burnt marijuana, but that
the officers did not see any of the four individuals smoking it.
Once they smelled marijuana, the officers “made contact” with the four
individuals in the foyer. Officer Whisnant testified that he had previously
“stumbled upon individuals smoking in that hallway.” In speaking with Gordon,
Officer Whisnant did not inform him either that he was free to leave or that he
could refuse to speak to the officers. Officer Whisnant asked Gordon for his
identification to “figure out” who he was and where he lived. Gordon replied that
he did not live in the building and did not have physical identification. Gordon
told the officer, however, that his name was “Khalil Mikes.” He also provided his
date of birth and, in response to another inquiry, added that “he had been locked up
in Washington, D.C. before.”
4
Officer Whisnant thereupon entered Gordon’s proffered information into the
removable laptop from his squad car to “run him through the system,” which takes
“[a] matter of seconds” to return a result. But he “couldn’t pull him up.” The
officer further testified that when the police “can’t pull them up, more than likely,
they’re lying about their name.” Officer Whisnant acknowledged that he then “just
kept asking him about the spelling, is there anything—when he was locked up, did
he give another name, does he have a[n] alias or anything he goes by. And
eventually he gave [the officers] his real name.” Whereupon, the officer
continued, “We ended up pulling up his picture in one [data] system. And then we
ran him in WALES/NCIC and that revealed that he had a[n] outstanding warrant
for a probation violation.”3 Gordon was then placed under arrest.
Gordon was asked whether he had anything illegal on his person, and
Gordon replied that “he had some weed in his pants.”4 The officers ultimately
3
“[T]he Washington Area Law Enforcement System (WALES) . . . lists all
the active arrest warrants on file in the Superior Court’s Warrant Office.”
Woodward v. District of Columbia, 387 A.2d 726, 727 (D.C. 1978). “NCIC
[National Crime Information Center] is the primary nationwide database used by
law enforcement to determine whether any warrants have been issued for an
individual’s arrest.” United States v. Boone, 706 F. Supp. 2d 71, 76 n.2 (D.D.C.
2010).
4
It is unclear whether the officers arrested Gordon immediately after
determining that he had an outstanding warrant, or arrested him after he stated that
he had weed in his pants. Officer Whisnant’s PD-163 narrative and his in-court
(continued . . .)
5
found “eight small, clear zip-loc bags which all contained marijuana.” Officer
Whisnant acknowledged that Gordon did not consent to the search of his person,
but he added that Gordon was “free to leave and walk away.” The entire period
from the time Officer Whisnant asked Gordon for identification to the officer’s
discovery of the outstanding warrant lasted “[a]bout 10 minutes,” according to
Whisnant. The trial court credited Officer Whisnant’s testimony that, throughout
the entire encounter, the officers spoke in a calm voice and did not draw their
weapons.
Two days later, on March 7, Gordon was charged with unlawful possession
of marijuana.5 Counsel moved to suppress the marijuana and Gordon’s statements
to the police, arguing that the police had unlawfully seized his person without
reasonable suspicion. On May 20, following a suppression hearing, the trial court
denied the motion. The court found that the initial encounter with Officer
Whisnant, when he asked Gordon for his name, was “consensual,” and that “[i]t
was perfectly reasonable for the police to talk to [Gordon] a little bit more to try to
verify his identity” after Gordon apparently had provided a false name.
_______________________________________
(. . . continued)
testimony provide conflicting reports. Nothing in our analysis, however, turns on
the timing of Gordon’s arrest.
5
Gordon was charged under the 2001 version of the D.C. Code. See D.C.
Code § 48-904.01 (d) (2001).
6
Furthermore, added the court, while the officer was verifying Gordon’s identity,
Gordon “was not surrounded in a way that would have communicated to him, that
is, to a reasonable person innocent of any crime, that he wasn’t free to disengage
from the contact.” At the point the WALES search revealed that Gordon had an
outstanding warrant, the court concluded, “the police had probable cause to arrest
him and could search incident to that arrest.” Ultimately, the trial court ruled that
Gordon had not been “seized prior to [the officers’] learning about the warrant”;
thus, his “Fourth Amendment rights [were] not violated.”
Gordon then entered a conditional guilty plea, reserving his right to appeal
the denial of the motion to suppress. The court sentenced him to thirty days of
imprisonment, with credit for time served, to run concurrently with any sentence
that he was serving at the time of sentencing. The court also ordered Gordon to
pay $50 to the Victims of Crime Fund. This appeal followed.
II.
Gordon contends that he was seized by the police without reasonable
suspicion when the police repeatedly questioned him about his identity—an
encounter that lasted approximately ten minutes. The government contends, to the
contrary, that the officer’s questioning did not constitute a seizure, and that even if
7
it did, Gordon’s proffer of a false name, along with other suspicious circumstances,
created the required reasonable suspicion that justified the officers’ further pursuit
of the truth through an identity check and warrant search. Rejecting the
government’s argument, we conclude that the repeated questioning of Gordon for
“about ten minutes,” evidencing a show of authority, amounted to a seizure, and
that the officers lacked reasonable suspicion to justify the detention.
When reviewing a trial court’s ruling on a motion to suppress, we must
uphold the court’s findings of fact unless they are clearly erroneous, but we review
the court’s conclusions of law de novo.6 Gordon bears the burden of proving that
the police violated his Fourth Amendment rights.7 We consider the evidence in the
light most favorable to the government.8
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .”9 There are three types of permissible
6
Port. v. United States, 7 A.3d 1021, 1024 (D.C. 2010).
7
See Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978).
8
See Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007).
9
U.S. CONST. amend. IV.
8
encounters between the police and citizens which do not violate the Fourth
Amendment: (1) consensual encounters, which do not require any level of
suspicion prior to initiation10; (2) investigative detentions, which if nonconsensual,
must be supported by a reasonable, articulable suspicion of criminal activity prior
to initiation11; and (3) arrests, which must be supported by probable cause prior to
initiation.12 Both investigative detentions and arrests are seizures under the Fourth
Amendment13; mere consensual encounters are not.14
Accordingly, a “seizure does not occur simply because a police officer
approaches an individual and asks a few questions.”15 Moreover, “the police also
may ask a person to do something, such as produce identification or an airline
10
Fla. v. Bostick, 501 U.S. 429, 434 (1991); United States v.
Mendenhall, 446 U.S. 544 (1980).
11
Fla. v. Royer, 460 U.S. 491 (1983).
12
Illinois v. Gates, 462 U.S. 213 (1983).
13
Terry v. Ohio, 392 U.S. 1, 17 (1968) (declining to distinguish a “stop and
an arrest” from a seizure).
14
A police encounter with a suspect will be “consensual,” as a matter of
law, and thus not a “seizure,” if the suspect agrees (whether expressly so or not) to
answer police questions, unconstrained by physical force or a show of police
authority, and thus would reasonably believe that he was free to end the
questioning at any time and leave. See generally Kentucky v. King, 131 S. Ct.
1849, 1858 (2011).
15
Bostick, 501 U.S. at 434.
9
ticket, without necessarily converting the encounter into a seizure.”16 Thus, a
seizure will have occurred “[o]nly when the officer, by means of physical force or
show of authority, has in some way restrained” someone’s liberty.17 It follows,
according to the Supreme Court, that the test for determining whether a person has
been seized “is whether, taking into account all of the circumstances surrounding
the encounter, the police conduct would have communicated to a reasonable
person that he was not at liberty to ignore the police presence and go about his
business”18—in other words, that he was “not free to leave.”19
The central question on the facts here divides into two parts: (A) whether
the police, by repeatedly asking Gordon questions about his identity for “[a]bout
ten minutes,” seized Gordon; and (B) if there was a seizure, whether the police had
reasonable suspicion to support it.
16
United States v. Barnes, 496 A.2d 1040, 1044 (D.C. 1985) (internal
citations omitted).
17
Terry, 392 U.S. at 19 n.16.
18
Bostick, 501 U.S. at 436-37 (internal quotation marks omitted).
19
Id. at 436; United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(opinion of Stewart, J.).
10
A.
First, we must assess whether, as Gordon contends, the police officer’s
repeated questioning about his identity, lasting about ten minutes, seized him prior
to the officers’ discovery of his outstanding warrant. The government replies that
the officer’s “mere questioning, in a calm and conversational tone in the public
area of a residential building, where Officer Whisnant never drew his weapon,
never took [Gordon’s] property and at no time conveyed a message that
compliance with his requests was required, did not constitute a seizure under the
Fourth Amendment.” Before addressing the parties’ contentions, we must examine
the development of this court’s doctrine explaining the relationship between the
persistence of police questioning and Fourth Amendment seizures.
(1)
This court has concluded on several occasions that repeated questioning can
convert a consensual police-citizen encounter into a seizure. In Guadalupe,
described as a case of “first impression,”20 this court addressed whether two
“successive police-citizen confrontations over a twenty-five to thirty minute period
20
Guadalupe v. United States, 585 A.2d 1348, 1352 (D.C. 1991).
11
. . . creat[ed] such an intimidating atmosphere that a reasonable person would
believe he or she was not free to leave.”21 We observed, without deciding, that the
first encounter, when appellant allowed the police at Union Station to search his
bag after he denied possessing narcotics,22 was arguably consensual.23 But after
finding no contraband, the police confronted him again, fifteen minutes later,
obtained consent for a body search, and found two packets of cocaine.24 We held
that a seizure occurred when the officers asked appellant to consent to the body
search, because a “reasonable person, under these circumstances, could do no less
than believe that the officers had focused their attention on him in furtherance of
their narcotics investigation, and the questions, concluding in a request to conduct
a body search, became accusatory in effect.”25 Appellant, in short, would not have
felt free to leave. Even though the police “were not in uniform, spoke politely, did
not display a weapon, and did not physically block a person’s passageway,” this
21
Id.
22
Id. at 1350.
23
Id. at 1357.
24
Id. at 1351.
25
Id. at 1360.
 12
court was troubled, ultimately, by the persistent nature of the officers’ actions26—a
period in that case of twenty-five to thirty minutes.
Next, in Hawkins, this court held that repeated questioning by police
officers, in a single encounter, could amount to a seizure.27 The officers pulled
alongside appellant’s double-parked car, directed appellant to park (and at some
point asked him to turn off the ignition), and positioned themselves on either side
of his car, an action which conformed to their training for making a traffic stop.
They asked appellant three times about whether he had a weapon on him.28 Then,
without an affirmative answer, they removed him from his car, saw the butt of a
gun in his pocket, and placed him under arrest. This court agreed, with one judge
dissenting, that “the repeated questioning about the possession of a weapon
resulted in a seizure in violation of the Fourth Amendment.”29
26
Id. at 1360-61.
27
Hawkins v. United States, 663 A.2d 1221, 1226 (D.C. 1995) (opinion of
Mack, J.); id. at 1230 (Farrell, J., concurring in the judgment) (“At this point, I
cannot conceive that a reasonable person would not have understood the [third]
question as accusatory and that his freedom to go about his business depended on
giving satisfactory assurance to the officers that he was not carrying a gun.”
(citation and internal quotation marks omitted)).
28
Id. at 1224-26.
29
Id. at 1228 (opinion of Mack, J.); see id. at 1228-29 (Farrell, J.,
concurring in the judgment) (“[O]nce [Officer] Reynolds had asked appellant a
third time whether he was packing a gun, a reasonable person in appellant’s shoes
(continued . . .)
13
Later, this court in Jackson applied Guadalupe and Hawkins to a situation in
which a police officer, without reasonable suspicion, repeatedly questioned a man
standing in front of an apartment complex.30 The police had received an
anonymous call about him from a woman who reported that she feared for her
safety because there were a number of recent shootings in that area.31 Two police
officers drove up to the apartment complex in an unmarked police car and walked
over to appellant,32 inquired whether he had any drugs or weapons on him, and
asked him to raise his jacket.33 Without seeing drugs or weapons under his jacket,
the officers questioned appellant about how long “he had been there,” whether he
lived in the neighborhood, whether he was visiting anyone, and who that was.34
Then the officer, concerned for his safety (without any described provocation), told
_______________________________________
(. . . continued)
no longer would have believed himself free to ignore the question and end the
encounter with the officer.” (footnote omitted)).
30
Jackson v. United States, 805 A.2d 979, 982, 988 (D.C. 2002).
31
Id. at 982.
32
Id.
33
Id.
34
Id.
14
appellant to “please turn around for me.”35 As appellant turned, the officer’s hand
hit appellant’s jacket and felt, then retrieved, a gun.36 Reversing the trial court’s
denial of appellant’s motion to suppress, this court held: “the fact that the officer
remained unsatisfied and continued to question Jackson adds to the circumstances
that would convey to a reasonable innocent person that he was not going to be
permitted to leave until the officer was satisfied with his answers or found what he
was looking for.”37 The seizure occurred before the officer’s request for appellant
to turn around because the repeated questioning caused the encounter to cross “the
critical line between consent and coercion.”38
We believe that Gordon’s situation is similar to appellant Jackson’s. We
conclude that the officer seized Gordon by repeatedly questioning him before the
police learned of his outstanding warrant. We need not identify the exact moment
when the seizure occurred; the fact that it occurred at some point after Gordon
gave the name “Khalil Mikes,” but before the officers discovered Gordon’s
outstanding warrant, is sufficient for our analysis—as we shall elaborate.
35
Id.
36
Id. at 982-83.
37
Id. at 988.
38
Id.
15
(2)
Prior to the officer’s repeated questioning of Gordon about his identity, the
totality of the circumstances did not indicate that a seizure had occurred. The
officers pulled up to the building in an unmarked police vehicle, without flashing
lights. The plainclothes officers wore black tactical vests that displayed “Police”
on the front and back. In addition, the officers carried handcuffs, a baton, pepper
spray, and a gun, and entered the building through an unlocked front door.
Before questioning Gordon, the police spoke in a conversational tone, did not
block the exit, and separated the four individuals in the lobby such that none was
significantly outnumbered by the police. When Officer Whisnant initially
questioned Gordon, he asked only a few routine questions related to Gordon’s
identity: name, address, whether he lived in the apartment complex, and whether
he had previously been locked up. At this point, Gordon had not been seized; he
participated in a consensual encounter.39
After the first database search of Gordon’s first proffered name, “Kahlil
Mikes,” failed to return a result, however, the officers began repeatedly
39
See supra note 14.
16
questioning Gordon about his identity. Officer Whisnant acknowledged that he
then “just kept asking him about the spelling, is there anything—when he was
locked up, did he give another name, does he have a[n] alias or anything he goes
by. And eventually he gave [the officers] his real name.” As we have noted, the
entire period of time from when Officer Whisnant asked Gordon for identification
to the officer’s discovery of the outstanding warrant lasted, according to Whisnant,
“[a]bout ten minutes.”
Although we consider the totality of the circumstances when determining
whether a seizure occurred, we note as a preliminary matter that ten minutes of
questioning appears to significantly exceed the length of the police encounters in
both Hawkins and Jackson. Even on the thin record before us, it is apparent that an
individual in Gordon’s shoes, reacting reasonably, would feel restrained by police
authority and thus not free to leave. More specifically, the repeated questioning,
especially when combined with the computer database searches, would convey to a
reasonable person that the police were unsatisfied with his answers—to the point
that he would not be free to leave until the computer database returned a positive
result.40 In sum, we see the computer check as a factor that caused a material
40
See Ramsey v. United States, 73 A.3d 138, 147-48 (D.C. 2013)
(“However, the situation changed at the point when Officer Lally requested the
WALES check. At that point, we conclude, because appellant would not have felt
free to leave, the encounter became a seizure—for which Officer Lally no longer
(continued . . .)
17
acceleration of a conversation initially deemed consensual at law to a conversation
that reflected a seizure.
The government contends that this court’s decision in Brown compels a
different result, but we are not persuaded.41 In Brown, the officers, wearing vests
with the word “Police” written on the front but with their guns holstered,
approached a group of five to six individuals standing on the sidewalk.42 An
officer “stopped approximately two or three feet behind appellant and, speaking in
a normal tone, without . . . making any threatening gesture, asked, ‘Do you have
any guns, drugs, or narcotics on you?’”43 After appellant provided a non-
responsive answer, the officer again repeated her question.44 At this point,
appellant reached into her purse and handed the officer a bottle containing
_______________________________________
(. . . continued)
had reasonable, articulable suspicion, for the reasons already discussed.” (footnote
omitted)); State v. Hall, 115 P.3d 908, 917 (Or. 2005) (“[W]e find it difficult to
posit that a reasonable person would think that he or she was free to leave at a time
when that person is the investigatory subject of a pending warrant check.”).
41
Brown v. United States, 983 A.2d 1025 (D.C. 2009).
42
Id. at 1025.
43
Id.
44
Id.
 18
cocaine.45 This court cited Hawkins for the proposition that repeated questioning
could restrain an appellant’s freedom to leave if the “questioning certainly
appeared to convey that compliance with the question was required.”46 Ultimately,
we concluded that the fact the officer repeated her question to appellant only once
did not rise to the level of restraining a reasonable person’s freedom to leave.47
Repeating a question once is notably different from repeatedly questioning
Gordon about his identity for ten minutes. Moreover, the appellant in Brown
provided a non-responsive answer, so it was entirely reasonable for the officer to
ask her question again. Brown, therefore, differs from Johnson and Hawkins
because the appellants in these latter two cases provided responsive answers to the
officers’ questions. Neither was a case in which the suspect either misunderstood
the question or the officer could not understand the answer, arguably both of which
would have warranted a follow-up question; each reflected a situation in which
police officers were not satisfied with the appellants’ responses so they continued
their questioning. Absent reasonable suspicion, this questioning is the type of
conduct the Fourth Amendment is designed to prohibit, namely, repeated
questioning by the police that is accusatory in nature and would make reasonable
45
Id.
46
Id. at 1026 (internal alterations and quotation marks omitted).
47
Id.
19
persons believe they were not free to leave until the officers were satisfied. This
case presents that situation. Gordon answered Officer Whisnant’s questions,
although falsely, and Whisnant continued to question him for “about ten minutes”
in pursuit of an answer that would satisfy the officer: his real name. Because a
reasonable person in these circumstances would not feel free to leave, Gordon was
seized prior to the discovery of his outstanding arrest warrant.
B.
The government, however, contends that the police had reasonable suspicion
of criminal activity to justify a seizure. It observes in its brief that Officer
Whisnant and his fellow officers had seen several individuals (including Gordon)
apparently [1] “loitering” in the common area of an apartment building where
Gordon [2] “did not live”—a building that smelled of [3] “burnt marijuana” and
was located in a [4] “high crime area.” The government implicitly acknowledges
that these four quoted factors, taken together, did not create reasonable suspicion
of criminal activity, but it argues that such reasonable suspicion was justified when
Gordon himself supplemented those factors by [5] acknowledging that he “had
previously been arrested” (his lockup in D.C.) and [6] proffering a name that did
not turn up in the computer database that contained “anybody that’s been arrested”
(indicating a likely lie).
20
The government does not contend that Officer Whisnant’s awareness of the
fifth factor, Gordon’s earlier jail time, when added to the four numbered factors
quoted above from the government’s brief, was enough to trigger reasonable
suspicion. We agree with the government’s implicit concession that jail time for
an unspecified crime in the unspecified past is not enough to create reasonable
suspicion of criminal activity when added to Gordon’s presence among individuals
gathered in the public area of a building where he did not live (albeit in a high
crime area), and where the police smelled burnt marijuana but could not relate
Gordon or any of his compatriots to that unlawful activity. We turn, therefore, to
the government’s sixth factor: Gordon’s apparent lie.
This court’s decision in Anderson provides the best analysis for evaluating
reasonable suspicion here.48 In Anderson, police officers frisked the appellant and
found contraband. The government put forth the following facts to justify the
frisk:
(1) the area was a high crime area where drug
transactions take place; (2) appellant was standing with
another man in the backyard of a house on a[n] alley
48
Anderson v. United States, 658 A.2d 1036 (D.C. 1995).
21
during a cold winter night around midnight; (3) appellant
quickly walked away from the police; (4) neither
appellant nor the other man resided in the house; (5)
appellant denied that he had been in the backyard despite
being seen by the officers; (6) appellant placed his hands
back in his pocket after being asked to remove them; and
(7) appellant became nervous, rocked back and forth, and
got wide-eyed upon questioning.49
The officers knew that, in response to the officer’s question, appellant had lied,
saying he had not been present in the yard, because the officers had observed him,
a few minutes before, walking away from “the backyard of a house on an alley”
after observing the police car.50 This court ultimately found that these facts,
including the lie, did not create reasonable suspicion to justify the frisk.51
Anderson provides useful guidance because the facts there provide a more
compelling rationale for a seizure (though falling short) than the facts here. Of the
six factors the government cited as creating reasonable suspicion to detain Gordon,
three are essentially the same as factors in Anderson: Gordon was in a high crime
area, he did not live in the residence where he was seen, and the conduct could be
described as loitering. Three factors cited by the government in Gordon, however,
49
Id. at 1038.
50
Id. at 1037.
51
Id. at 1040.
 22
differ from those relied on in Anderson: the smell of burnt marijuana, Gordon’s
prior conviction, and mere suspicion of a lie. First, even if we do not credit the
government’s concession that it did not have reasonable suspicion prior to
anticipating Gordon’s lie, the burnt marijuana is not sufficient to distinguish this
case from Anderson. Gordon’s loitering in the lobby of an apartment building that
smelled like burnt marijuana was less suspicious than Anderson’s walking away (at
midnight) from the backyard of a house where he did not live upon observing a
police car—especially when Anderson (unlike Gordon) was nervous and fidgety
upon being questioned by the police.52 Second, we have already observed that
Gordon’s jail time was not a significant factor. Finally, in Anderson, the police
actually knew that the appellant had lied, but in Gordon’s case, the police only
suspected that he had provided a false name before they questioned him further.
Accordingly, if Anderson did not manifest facts creating reasonable suspicion that
justified seizure, then surely the facts here afforded the police no reasonable basis
for seizing Gordon after he identified himself as Khalil Mikes.
In support of its argument that Gordon’s eventually revealed lie about his
name created reasonable suspicion, the government cites Illinois v. Wardlow,53 a
52
Id. at 1037.
53
528 U.S. 119 (2000).
23
decision in which the Supreme Court characterized “[h]eadlong” and “unprovoked
flight” in a high crime area as “evasive behavior” pertinent “in determining
reasonable suspicion.”54 The government would have us equate Gordon’s
“unprovoked prevarication” with Wardlow’s “unprovoked flight,” in order to
supply the additional factor necessary to justify reasonable suspicion in Gordon’s
case. We decline to do so since most of the questioning occurred before Gordon
disclosed his real name—enough questioning to result in a seizure before Gordon’s
lie had been confirmed (and immediately yielded the warrant). But even if (as the
government apparently would have it) mere suspicion of a lie under some
circumstances would be sufficient to justify a seizure, the Court’s decision in
Wardlow, addressing unprovoked flight, would supply no justification for a seizure
here.
The flight in Wardlow may have resulted merely from the suspect’s sighting
of the police, but the accosting officers observed more than flight; they saw the
suspect “holding an opaque bag” in “an area known for heavy narcotics
trafficking.”55 Unprovoked flight, when coupled with concrete evidence (the bag)
consistent with narcotics transactions, together warranted the seizure. In our case,
however, Gordon gave a suspected false name under circumstances otherwise
54
Id. at 124-25.
55
Id. at 121-22.
 24
lacking concrete evidence of criminal activity. True: a lie can reflect
consciousness of guilt; indeed, perhaps guilt underlay Gordon’s initial response to
Officer Whisnant. But a lie can also reflect merely that the person stopped is
afraid of the police.56 Accordingly, we cannot say that Gordon’s initial
dissembling—confirmed only after almost all the ten-minute questioning—could
have erased all significance of the prior questioning and served to create the
reasonable suspicion that would have justified his seizure.
For all the foregoing reasons, we conclude that Gordon was unlawfully
seized without reasonable suspicion. We can confidently say that the repeated
questioning seized Gordon prior to the discovery of his outstanding warrant.57
56
See generally City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311,
313 (Tenn. 2007) (“S.B. was afraid of official involvement, afraid of going to a
foster home, and afraid of police in general who might force her into a possibly
more dire situation.”) (citation and internal quotation marks omitted); State v.
Bogdanoff, 585 P.2d 602, 604-05 (Haw. 1978) (“[H]e was afraid of (Police
Detective) Bobby Schmidt[,] and . . . he was going to lie if he ever was asked
under oath about what he said in the letters because of his fear of Bobby
Schmidt.”).
57
We need not answer the broader question whether a police database
search as such, absent reasonable suspicion, constitutes a per se seizure. See, e.g.,
Ramsey v. United States, 73 A.3d 138, 148 (D.C. 2013) (WALES check, without
reasonable suspicion, was a seizure under circumstances); United States v. Gross,
662 F.3d 393, 401 (6th Cir. 2011) (seizure even though police did not retain ID
requested of suspect); State v. Hall, 115 P.3d 908, 917 (Or. 2005) (seizure, under
Oregon law, even when ID promptly returned to suspect after radioing police
dispatch for a warrant check but before receiving result); State v. Painter, 676 P.2d
309, 311-12 (Or. 1984) (en banc) (seizure, under Oregon law, when police retained
(continued . . .)
25
III.
We turn, finally, to whether Gordon’s statements to the police and the Ziploc
bags of marijuana found on his person must be suppressed. As a general rule, if a
police officer’s actions violate the Fourth Amendment, “the indirect fruits of an
illegal search or arrest should be suppressed when they bear a sufficiently close
relationship to the underlying illegality.”58 If an unlawful seizure occurred, the
exclusionary rule applies unless the government proves that “the unlawful conduct
has become so attenuated or has been interrupted by some intervening
circumstances so as to remove the ‘taint’ imposed upon that evidence by the
original illegality.”59 According to the Supreme Court, first in Brown v. Illinois,
relevant considerations include “the temporal proximity of the [seizure] and the
[discovery of contraband], the presence of intervening circumstances, and,
_______________________________________
(. . . continued)
ID during warrant check); State v. Warner, 585 P.2d 681, 684, 690-91 (Or. 1978)
(en banc) (seizure, under Oregon law, by show of authority when police asked
defendant to place ID on table and advised defendant that he was subject of
criminal investigation). But see People v. Graves, 553 N.E.2d 810, 813 (Ill. App.
Ct. 1990) (“Nor was the deputy’s running a driver’s license check, under these
circumstances, a seizure.”).
58
New York v. Harris, 495 U.S. 14, 19 (1990).
59
United States v. Crews, 445 U.S. 463, 471 (1980).
26
particularly, the purpose and flagrancy of the official misconduct.”60 We find no
such attenuation or intervening circumstances here.
In attempting to avoid suppression under the exclusionary rule, the
government argues that the outstanding arrest warrant was an intervening event
sufficient to purge the taint of the illegal seizure.61 We cannot agree. Applying
Brown’s three criteria,62 we perceive no attenuating or intervening event that would
trump the Fourth Amendment violation here. We observe that virtually no time
passed between the illegal seizure and the discovery of the warrant; there were no
intervening circumstances other than the discovery of the arrest warrant after the
unlawful seizure; and although the illegality was not flagrant, the officer’s purpose
at the time of the seizure—to check Gordon’s identity through computer databases
60
Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (footnote and internal
citations omitted).
61
In making this argument, the government relies on Harris, 495 U.S. at 14.
There the Court held that if “the police have probable cause to arrest a suspect,”
and unlawfully enter his home to do so, “the exclusionary rule does not bar the
State’s use of a statement made by the defendant outside of his home” after his
arrest. Id. at 21 (limiting Payton v. New York, 445 U.S. 573 (1980)). In the
present case, however, unlike the officers in Harris, the police who committed the
illegality were unaware of any probable cause (the arrest warrant) at the time they
seized Gordon; indeed, they lacked even reasonable suspicion to justify their
actions. See Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004) (justification for
seizure is based on “facts known to the arresting officer at the time of the arrest”).
62
Brown, 422 U.S. at 603-04.
27
that include information about warrant status—weighs in favor of suppression.63
Accordingly, Gordon’s statements to the police and the tangible evidence
immediately found on his person as a result of that search must be suppressed.
63
See United States v. Gross, 662 F.3d 393, 404-05 (6th Cir. 2011)
(discovery of valid arrest warrant—while relevant under Brown analysis—was
insufficient under circumstances to attenuate prior unlawful seizure; “[t]o hold
otherwise would create a rule that potentially allows for a new form of police
investigation, whereby an officer patrolling a high crime area may, without
consequence, illegally stop a group of residents where he has a “police hunch” that
the residents may: 1) have outstanding warrants; or 2) be engaged in some activity
that does not rise to a level of reasonable suspicion.”); State v. Moralez, 300 P.3d
1090, 1094, 1100-03 (Kan. 2013) (court ordered suppression of marijuana seized
from suspect; police behavior in stopping suspect for a warrants check, without
reasonable suspicion of criminal activity, was too “flagrant,” under Brown
attenuation analysis, to allow the warrant to purge the taint of police illegality);
State v. Bailey, 338 P.3d 702, 715 (Or. 2014) (en banc) (“For purposes of the
federal exclusionary rule, the effect of [the purposeful police conduct], when
considered along with the temporal proximity between the unlawful detention and
the discovery of the challenged evidence, outweighs any value that otherwise
might be assigned to the subsequent discovery of a valid arrest warrant.”); see also
United States v. Lopez, 443 F.3d 1280, 1286 (10th Cir. 2006) (affirmed district
court order granting suppression of outstanding warrant—without reference to
Brown factors—because government conceded that police “did not have probable
cause or reasonable suspicion to detain Lopez until the warrants check was
completed”); United States v. Luckett, 484 F.2d 89, 91 (9th Cir. 1973) (per curiam)
(“Because [police] had no reasonable grounds to be suspicious that there might be
a warrant outstanding against him,” the court held, in a pre-Brown ruling, that
“detention was unreasonable, and its fruits, therefore, were properly suppressed by
the district court.” (internal citation omitted)). But cf. United States v. Green, 111
F.3d 515, 521 (7th Cir. 1997) (“It would be startling to suggest that because the
police illegally stopped an automobile, they cannot arrest an occupant who is found
to be wanted on a warrant—in a sense requiring an official call of ‘Olly, Olly,
Oxen Free.’ Because the arrest is lawful, a search incident to the arrest is also
lawful. The lawful arrest of Avery constituted an intervening circumstance
sufficient to dissipate any taint caused by the illegal automobile stop.”).
28
*****
For the foregoing reasons we reverse the order denying Gordon’s motion to
suppress, vacate his guilty plea, and remand the case for further proceedings
consistent with this opinion.
So ordered.