DEVON SHARP v. UNITED STATES

District of Columbia
Court of Appeals
No. 13-CM-951
FEB 18 2016
DEVON SHARP,
Appellant,
v. CMD-21631-12
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: Blackburne-Rigsby and Beckwith, Associate Judges; and Farrell,
Senior Judge.
JUDGMENT
This case was submitted to the court on the transcript of record, the briefs
filed, and without presentation of oral argument. On consideration whereof, and for the
reasons set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that appellant‘s convictions are reversed, as
unconstitutional intrusion led to the recovery of a prohibited weapon and the subsequent
search of appellant‘s person and his car incident to arrest. The case is remanded for a
new trial at which the fruits of the impermissible seizure are suppressed.
For the Court:
Dated: February 18, 2016.
Opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CM-951 2/18/16
DEVON SHARP, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-21632-12)
(Hon. Michael Ryan, Trial Judge)
(Submitted November 14, 2014 Decided February 18, 2016)
Tito V.A. Castro for appellant.
Sharon A. Sprague, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman and Christopher Bruckman, Assistant United States Attorneys, were on
the brief, for appellee.
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
FARRELL, Senior Judge.
BECKWITH, Associate Judge: Following a stipulated trial, appellant Devon
Sharp was found guilty of possession of marijuana,1 cocaine,2 and drug
1
D.C. Code § 48-904.01 (d) (2012 Repl.).
2
paraphernalia3 and attempted possession of a prohibited weapon.4 On appeal, Mr.
Sharp challenges the trial court‘s ruling that the encounter that preceded Mr.
Sharp‘s admission to the police officer that he was carrying brass knuckles was a
consensual one, rather than a seizure that triggered Fourth Amendment protections
and required suppression of the evidence stemming from the seizure. We conclude
that Mr. Sharp was seized for Fourth Amendment purposes when he was stepped
out of his car and that his seizure was not justified by the ―specific and articulable
facts‖ required under Terry v. Ohio, 392 U.S. 1, 21 (1968). We therefore reverse
Mr. Sharp‘s convictions and remand for a new trial at which the evidence
uncovered as a result of that seizure is suppressed.
I.
The two witnesses who testified at the suppression hearing—Metropolitan
Police Department Officer John Pugh and appellant Devon Sharp himself—gave
divergent accounts of the incident leading to Mr. Sharp‘s arrest. Officer Pugh
testified that he and Officers Christopher Dorsey and Brett Cuevas were patrolling
(continued…)
2
D.C. Code § 48-904.01 (d) (2012 Repl.).
3
D.C. Code § 48-1103 (a) (2012 Repl.).
4
D.C. Code §§ 22-4514 (a), -1803 (2012 Repl.).
3
the area near 14th and U Streets, Northwest, shortly after midnight when their
police vehicle broke down. As the officers pushed the vehicle into a parking
space, Officer Pugh heard a ―loud scream or commotion‖ coming from a parking
lot across the street where the officer said valets often park cars and where ―a lot of
cars get broken into.‖ It ―wasn‘t like a someone[-]in[-]danger scream‖ but ―just a
noise that caught [his] attention.‖
When the people causing the commotion walked away, Officer Pugh‘s
attention was drawn to some rap music coming from a parked Jeep whose driver,
appellant Devon Sharp, was ―sitting behind the wheel‖ with ―his head down‖ and
was ―looking down at something in his hands.‖ Officer Pugh ―went . . . to check
the person, but really to find out if he was the valet or not.‖ Wearing black tactical
police vests and badges and identifying themselves as police officers, Officer Pugh
approached the driver‘s side of the vehicle and Officer Dorsey approached on the
passenger side. Officer Pugh asked Mr. Sharp what he was doing there, a question
that prompted a series of what Officer Pugh described as nervous behaviors and
nonresponsive answers from Mr. Sharp. ―Didn‘t know if he had any[thing] illegal
on him, anything illegal in the vehicle,‖ Officer Pugh said, ―so I asked him could I
search his vehicle.‖ Officer Pugh testified that after Mr. Sharp declined a vehicle
search, ―[d]ue to him seeming kind of nervous, and making me kind of feel slightly
uncomfortable, I asked could he step out of the vehicle.‖ Officer Pugh said he did
4
not ―command‖ Mr. Sharp to step out of the vehicle—―I asked him can he step out
of the vehicle‖—and that Mr. Sharp ―complied freely‖ and ―stepped out calmly
and stepped out regularly.‖5 Officer Dorsey came around to the driver‘s side of the
car and stood next to Officer Pugh as Mr. Sharp was getting out of the car.
Officer Pugh testified that he asked Mr. Sharp whether he had any weapons
on him, and Mr. Sharp ―said yes and began reaching his hand into his left front
jacket pocket,‖ telling the officer that he had brass knuckles. Officer Pugh
recovered the brass knuckles and placed Mr. Sharp in handcuffs, after which
Officer Dorsey searched Mr. Sharp further, incident to the arrest, and recovered
―multiple zips containing a white powdery substance.‖ Officer Pugh testified that
the officers then searched Mr. Sharp‘s vehicle, where they recovered, from a baby
seat in the back, a bag containing a green weed-like substance that field tested
positive for marijuana.
For his part, Mr. Sharp testified that he worked security for and managed
several restaurants and bars in the U Street area and that he had been parking his
car in the lot at 14th and U Streets ―for a long time.‖ Mr. Sharp said that on the
day of the incident he was sitting in his vehicle and may have been texting on his
5
Officer Pugh also denied that he grabbed Mr. Sharp‘s arm and helped him
out of the car. Instead, he said, Mr. Sharp got out of the car ―[o]f his own free
will.‖
5
phone as he ―was getting ready to get out of the car‖ when Officer Pugh ―stopped
[him],‖ told him ―to hold on,‖ and ―hindered [him] from getting out of the
vehicle.‖ According to Mr. Sharp, Officer Pugh asked him whether he had any
weapons while Mr. Sharp was still inside the Jeep, Mr. Sharp answered no, but
Officer Pugh ―told [him] he was going to search [him] for his safety,‖ opened the
door, and ―asked [him] to get out of the car.‖ Mr. Sharp testified that he felt he had
no choice but to get out of the car, that ―it was more guided than anything,‖ and
that because he was parked near some pillars, the officer ―kind of had me boxed in
so there wasn‘t really too much I can do.‖ According to Mr. Sharp, Officer Pugh
held his arm as he got out of the Jeep, patted him down, and found the brass
knuckles. Mr. Sharp testified that he was ―100 percent sure‖ that he never told
Officer Pugh about the brass knuckles until the officer felt them and asked what
they were, to which Mr. Sharp responded ―brass knuckles.‖
The government argued that Mr. Sharp voluntarily stepped out of his car
after being asked to do so, but that even if he were seized for Fourth Amendment
purposes, the police had reasonable suspicion to justify such a seizure based upon
the lateness of the hour, the danger inherent in approaching a person seated in an
automobile, the officer‘s familiarity with criminal activity in that particular parking
lot, Mr. Sharp‘s nervous behavior and nonresponsive answers to the officer‘s
questions, and the fact that Mr. Sharp was doing something with his hands that the
6
approaching officers could not see.
In its ruling on Mr. Sharp‘s motion to suppress, the trial court described the
case as ―essentially boil[ing] down to the credibility determination between Officer
Pugh and Mr. Sharp,‖ and noted that it was ―having a hard time crediting Mr.
Sharp‘s testimony.‖ Closely tracking Officer Pugh‘s testimony, and explicitly
discrediting Mr. Sharp‘s, the court found that Officer Pugh ―approached the side of
the car and asked [Mr. Sharp] to step out of the car, and he stepped out at the
request of, but not at the order of[,] the police officer.‖ The court further found
that ―Pugh asked him if he had any weapons and he said yes, and reached in, and
Pugh asked him what it was and he said brass knuckles.‖ The court noted that if
Officer Pugh had seized Mr. Sharp for Fourth Amendment purposes, the
justification for doing so under Terry would be questionable—―as thin as it could
be‖ and ―a very close call.‖ But having concluded that Officer Pugh ―asked not
ordered Mr. Sharp out of the car,‖ the trial court deemed the encounter to be a
consensual one, not a seizure that triggered Fourth Amendment protections. After
denying Mr. Sharp‘s motion to suppress the evidence seized from him and his
vehicle, the trial court found Mr. Sharp guilty of all counts against him after a
stipulated trial.
7
II.
On appeal, Mr. Sharp argues that the trial court erred in denying his
suppression motion because, among other things, he was unreasonably seized in
violation of the Fourth Amendment when the police stepped him out of his vehicle
without probable cause or reasonable suspicion. The government argues primarily
that Mr. Sharp cannot rely upon testimony the trial court discredited to support his
contention that he was subject to an unreasonable seizure. We agree with the
government in that regard, but conclude that when Officer Pugh ―asked [Mr.
Sharp] can he step out of the vehicle‖ after Mr. Sharp had already declined the
request to search his car, Officer Pugh made a show of authority that amounted to a
seizure, and the officers did not have reasonable articulable suspicion to justify the
detention.
The Fourth Amendment of the Constitution protects people from
unreasonable seizures by government authorities. Terry, 392 U.S. at 9. In
reviewing a trial court‘s denial of a motion to suppress evidence on Fourth
Amendment grounds, we defer to the trial court‘s findings of evidentiary fact
unless clearly erroneous, and we view those facts, and the reasonable inferences
that stem from them, in the light most favorable to the government. Henson v.
United States, 55 A.3d 859, 863 (D.C. 2012). We review de novo the trial court‘s
8
conclusions of law. In re J.M., 619 A.2d 497, 500 (D.C. 1992) (en banc). Whether
Mr. Sharp was seized is a question of law, In re J.F., 19 A.3d 304, 308 (D.C.
2011), as is the ultimate question whether the police had reasonable suspicion for
such a seizure, Umanzor v. United States, 803 A.2d 983, 991 (D.C. 2002)
(describing the question as a ―mixed question of law and fact‖ in which we ―defer
to the trial court‘s factual findings unless clearly erroneous, and make an
independent legal assessment as to whether there was reasonable suspicion for the
stop‖).
Encounters between citizens and law enforcement officers fall into three
general categories: consensual encounters, investigative detentions, and full-
fledged arrests. Gordon v. United States, 120 A.3d 73, 78 (D.C. 2015). ―Both
investigative detentions and arrests are seizures under the Fourth Amendment,‖
while consensual encounters, during which a person may comply with or choose to
ignore a police officer‘s requests, are not. Id. While an arrest, to be lawful, must
be supported by probable cause to believe that a crime has been or is being
committed, a police officer may perform an investigative detention based on less
than probable cause if, given the totality of the circumstances, the officer could
―reasonably . . . conclude in light of his experience that criminal activity may be
afoot.‖ Terry, 392 U.S. at 30.
9
We turn first to the question whether Mr. Sharp was seized when Officer
Pugh got him out of the vehicle. In determining ―whether a particular encounter
constitutes a seizure, a court must consider all the circumstances surrounding the
encounter to determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers‘ requests or
otherwise terminate the encounter.‖ Florida v. Bostick, 501 U.S. 429, 439 (1991).
Although this court ―defers to the trial court‘s findings of fact unless they are
clearly erroneous,‖ Limpuangthip v. United States, 932 A.2d 1137, 1141 (D.C.
2007), we do not regard the trial court‘s determination that this encounter was
consensual as a factual finding that Mr. Sharp voluntarily complied with Officer
Pugh‘s request, but rather as a legal conclusion subject to de novo review. See
Jackson v. United States, 805 A.2d 979, 985–86 (D.C. 2002) (reviewing de novo
the trial court‘s determination that appellant voluntarily consented to an officer‘s
request to lift his jacket and turn around); see also Turner v. United States, 116
A.3d 894, 915 (D.C. 2015) (deferring to the trial court‘s factual determinations but
declining to ―accord comparable deference to[] the judge‘s determination of the
ultimate question of Brady materiality‖); Miller v. United States, 14 A.3d 1094,
1122 (D.C. 2011) (―Because the trial judge‘s ruling that there was no suppression
(i.e., that the defense was not prejudiced as a result of the prosecutor‘s delayed
disclosure) necessarily decides the ultimate question of Brady materiality, we are
10
not required to accord appellate deference to such a determination.‖).
At the outset, the government notes the absence of any finding that Officer
Pugh touched or threatened Mr. Sharp or drew a gun, and relies on Kelly v. United
States, 580 A.2d 1282 (D.C. 1990) (officer‘s questioning of the defendant in a train
station was a consensual encounter), and United States v. Barnes, 496 A.2d 1040(D.C. 1985) (defendant was not ―seized‖ when an officer approached him outside a
store, asked him questions about what he was doing, and asked him to remove his
hands from his pockets). But the circumstances of Kelly and Barnes lack an
element of coercion that is present here. See Hawkins v. United States, 663 A.2d
1221, 1230 (D.C. 1995) (Farrell, J., concurring) (noting that police conduct
―crossed the critical line between consent and coercion‖). Kelly is a pure
questioning case. See Kelly, 580 A.2d at 1286; see also Immigration &
Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984) (stating that ―police
questioning, by itself, is unlikely to result in a Fourth Amendment violation‖).
And the court in Barnes noted, in concluding that nothing ―would have warranted
appellee‘s reasonable belief that he was not free to ignore the questions and walk
away,‖ that the officer‘s request that Mr. Barnes remove his hands from his
pockets ―was no more intrusive than a request for identification‖—something
officers can do without initiating a Fourth Amendment seizure. 496 A.2d at 1045.
But cf. In re J.F., 19 A.3d at 309 (finding a Fourth Amendment seizure based in
11
part upon an order that J.F. remove his hands from his pockets).
By contrast, the Supreme Court has acknowledged that people have a ―sense
of security and privacy in traveling in an automobile‖ that they do not have
traveling as pedestrians or other ways of getting around. Brendlin v. California,
551 U.S. 249, 262 (2007) (quoting Delaware v. Prouse, 440 U.S. 648, 662 (1979)).
While Officer Pugh described his request to search Mr. Sharp‘s vehicle as
―ask[ing] him for consent,‖ he did not describe his request that Mr. Sharp get out
of the car in those terms, and it would be curious to do so. Courts routinely treat a
request to step out of a car as interchangeable with an order or direction to get out
of a car—a fact that strongly suggests that a reasonable person would likewise
believe that an officer who asked him to get out of a car was not giving him a
realistic right to say no. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 107, 108,
111 (1977) (describing the seizure at issue both in terms of the officer having
―asked respondent to step out of the car‖ and having ―order[ed]‖ him out of the
car); Gomez v. United States, 597 A.2d 884, 886, 888, 891 n.16 (D.C. 1991) (using
both the term ―asked‖ and the term ―ordered‖ to describe how police got the cars‘
occupants out of their vehicles).
This court and courts in other jurisdictions have held in analogous
circumstances—that is, in circumstances that do not involve a routine traffic
12
stop—that the police seized the occupant of a vehicle by asking that individual to
step out of the vehicle. In Gomez, for example, this court held that the defendant
was seized when police approached his car in an alley, asked him to get out of the
car, and asked him to place his hands on the vehicle. Id. at 888, 891 n.16. As in
the present case, the officer in that case testified that he ―asked, but did not ‗order,‘
[the defendant] and his companions to get out of the car,‖ but this court concluded
that ―the officer‘s characterization of his communication to the occupants as a
request [was] not dispositive.‖ Id. at 886, 891 n.16. And on facts very similar to
those here, the Florida Supreme Court held in Popple v. State that ―[w]hether
characterized as a request or an order,‖ the police officer‘s ―direction for Popple to
exit his vehicle constituted a show of authority which restrained Popple‘s freedom
of movement because a reasonable person under the circumstances would believe
that he should comply.‖ 626 So. 2d 185, 188 (Fla. 1993).
These holdings align with the wealth of Fourth Amendment decisions that
assume that a person who is stepped out of a car has been seized and wrestle
instead with the extent to which that seizure was supported by reasonable
suspicion.6 These include Pennsylvania v. Mimms, where the Supreme Court
6
Other decisions of this court provide additional examples of Fourth
Amendment seizures that, like a request to get out of a car, are created only by ―the
use of language or tone of voice indicating that compliance with the officer‘s
(continued…)
13
established a police officer‘s authority to have a driver exit his vehicle after the
police have performed a lawful traffic stop. 434 U.S. at 111. In Mimms, it was
undisputed that such a request marked a seizure even where, according to the
Supreme Court‘s recitation of the undisputed facts, the officer ―approached and
asked respondent to step out of the car.‖ Id. at 106 (emphasis added); see also id.at 111 n.6 (stating that ―we do not hold today that ‗whenever an officer has an
occasion to speak with the driver of a vehicle, he may also order the driver out of
the car‘‖); People v. Luedemann, 857 N.E.2d 187, 191–92 (Ill. 2006) (noting that
―[t]he State argued that no seizure occurred until Officer Pate asked defendant to
step out of the car‖ and that ―even if Officer Pate did seize defendant prior to
asking him to step out of the vehicle,‖ that seizure was justified by reasonable
suspicion); Mitchell v. United States, 746 A.2d 877, 885 (D.C. 2000) (explaining,
in a case in which the court found a Fourth Amendment seizure where police
(continued…)
request might be compelled,‖ United States v. Mendenhall, 446 U.S. 544, 554
(1980), without any physical touching or threatening display of a weapon. In In re
D.T.B., for example, this court concluded that an armed, uniformed officer seized
an individual when he confronted him in an enclosed space and told him to ―come
here.‖ 726 A.2d 1233, 1236 (D.C. 1999); see also Ware v. United States, 672 A.2d
557, 561 (D.C. 1996) (holding that appellant was seized when an officer ―told him
in an authoritative manner to get off his bicycle, put the purse down, and keep his
hands out in the open‖); United States v. Johnson, 496 A.2d 592, 594, 595 (D.C.
1985) (concluding that a uniformed police officer‘s command to ―come here,
police officer‖ was a Fourth Amendment seizure).
14
officers directed the appellant out of his parked car, that ―[the fact] [t]hat
[appellant] was already ‗stopped,‘ i.e., parked, when the officer came up to him
does not alter the nature of the encounter in this case‖), superseded by statute on
other grounds, D.C. Code § 25-101 (35) (2012 Repl.), as recognized in Workman
v. United States, 96 A.3d 678, 680 n.6 (D.C. 2014); Jones v. United States, 391
A.2d 1188, 1190 (D.C. 1978) (holding that an officer ―seized‖ the occupants of a
parked car when he ordered them out of that car, and equating these facts with ―the
request to get out of the car‖ that was at issue in Mimms (quoting Mimms, 434 U.S.
at 109)). The government has pointed to no case in which a court held that an
individual was not seized when police asked him to get out of a vehicle.
A ―totality of the circumstances inquiry, by its nature, eschews per se
rules,‖7 and we do not hold today that a police officer seizes a car‘s occupant in
every instance where he asks him to get out of the vehicle. But in the absence of
any sign that a reasonable person in these circumstances would believe the officer
was giving him a genuine choice to decline the request and stay in the car, we
7
In re J.H., 928 A.2d 643, 650 (D.C. 2007) (addressing custody under
Miranda v. Arizona, 384 U.S. 436 (1966)); see also Gomez, 597 A.2d at 889(―Each case turns on its particular facts, and ‗case matching‘ is of limited utility in
Fourth Amendment analysis of street encounters between citizens and police
officers, for ‗two cases are seldom sufficiently alike for the first to be an absolute
binding precedent for the second.‘‖ (quoting Arrington v. United States, 311 A.2d
838, 840 (D.C. 1973))).
15
conclude that the police here ―convey[ed] a message that compliance with their
request[] [was] required,‖ Bostick, 501 U.S. at 435, and that Mr. Sharp was at that
moment seized for purposes of the Fourth Amendment. As the government puts it,
Officer Pugh simply ―asked appellant to get out of the car.‖ See Appellee Br. 22
n.25. The trial court also found that Officer Pugh ―asked [Mr. Sharp] to step out of
the car.‖ While theoretically an officer might ask a vehicle‘s occupant if he would
consent to getting out of a car in a way that gave the occupant ―a realistic right to
decline,‖ see Gomez, 597 A.2d at 891 n.16, under the circumstances here, the
officer‘s routine act of asking the driver to get out of the car—a request made after
the driver had already turned down the officer‘s initial request to search the car—
―would have communicated to a reasonable person that the person was not free to
decline the officers‘ requests or otherwise terminate the encounter.‖ Bostick, 501
U.S. at 439; see also, e.g., Jackson, 805 A.2d at 988 (that the police officer
―remained unsatisfied and continued to question [appellant] add[ed] to the
circumstances that would convey to a reasonable innocent person that he was not
going to be permitted to leave‖); Hawkins, 663 A.2d at 1226 & n.20, 1228
(repeated police questions despite appellant‘s denial that he had a weapon
constituted Fourth Amendment seizure).
Because Mr. Sharp was seized, the evidence that stemmed from the
questioning and the vehicle search that followed his seizure should have been
16
suppressed unless the officers had reasonable articulable suspicion to justify the
seizure. See Barnes, 496 A.2d at 1042 (stating that ―if the approach and
questioning amounted to a seizure—i.e., physical force or a show of authority such
that a reasonable person would not believe he was free to leave—that seizure
would be unconstitutional, and thus the later, more formal detention and related
frisk would be as well‖ (quoting Delgado, 466 U.S. at 215)). An investigatory
detention is constitutionally permissible if it is supported by reasonable suspicion,
which is ―a particularized and objective basis‖ for suspecting the detained person
of criminal activity. Ornelas v. United States, 517 U.S. 690, 693, 696 (1996)
(quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). ―Various factors
are considered in determining whether a Terry stop is justified, 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.‘‖ Jackson, 805
A.2d at 988–89 (quoting Anderson v. United States, 658 A.2d 1036, 1038 (D.C.
1995)). These factors ―‗are not elements of a conjunctive test,‘ and no one factor is
‗outcome determinative.‘‖ Umanzor, 803 A.2d at 993 (quoting In re D.A.D., 763
A.2d 1152, 1155 (D.C. 2000)).
On appeal, the government argues only that the police never seized Mr.
Sharp and does not contend that even if he were seized, that seizure was justified
17
by reasonable suspicion. Our holding in this regard conforms with the
government‘s implicit concession. As an initial matter, the circumstances here
differ from those in Mimms, 434 U.S. at 109, in that, as the trial court observed,
―there is no violation of law that‘s alleged‖ at the onset of the officers‘ encounter
with Mr. Sharp. As we stated in Carr v. United States, ―analogizing to Mimms‖ in
a case like this—in which the encounter does not begin with a stop for a traffic
violation—―focuses solely on the reasonableness of what happened in the
encounter without considering why there was an encounter.‖ 758 A.2d 944, 947
(D.C. 2000); see also id. (noting that ―[t]here is no automatic right for police to
order occupants out of a car‖ and that in Mimms ―the reasonable articulable
suspicion that justifies the initial stop is the traffic violation‖).
Officer Pugh testified that he was aware of some criminal activity in the
parking lot—specifically, ―a lot of cars get broken into‖ and sometimes ―some
homeless people get in‖ to a double-wide trailer on the property ―and do things to
there [sic].‖ He was drawn to the lot that night by a ―loud scream or commotion‖
from the adjacent street, although it ―wasn‘t like a someone[-]in[-]danger scream,‖
the commotion was unconnected to Mr. Sharp, and the people Officer Pugh
associated with the commotion walked away. The music Mr. Sharp was playing
drew Officer Pugh to Mr. Sharp‘s car, which was legally parked. Officer Pugh did
not testify that Mr. Sharp‘s behavior—sitting in the driver‘s seat looking at
18
something in his hands—caused suspicion, and Mr. Sharp did not make any furtive
movements as the officers approached. The most Officer Pugh could say about
Mr. Sharp in particular was that he seemed nervous, that he made some odd
nonresponsive comments about police officers he knew, and that he declined the
request to search his car before the officer ―asked him can he step out of the
vehicle.‖ Although the trial court did not decide the question, it had its own doubts
about the justification for getting Mr. Sharp out of the car, noting that if Mr. Sharp
had been seized, ―the inarticulate character‖ of Officer Pugh‘s alleged suspicion—
Officer Pugh said ―[h]e was making me nervous because he was acting nervous‖—
―probably defeat[ed] the reasonable articulable suspicion.‖
These circumstances did not give police a particularized basis to suspect
―that criminal activity may be afoot.‖ Singleton v. United States, 998 A.2d 295,
299 (D.C. 2010) (quoting Wilson v. United States, 802 A.2d 367, 369 (D.C. 2002));
see also Johnson, 496 A.2d at 594–95 (concluding that ―a situation in which
persons unfamiliar to the police are parked in a car late at night in a high crime
area does not, without more, present specific, articulable facts warranting suspicion
of criminal activity‖ (quoting Johnson v. United States, 468 A.2d 1325, 1327 (D.C.
1983))). The totality of the circumstances thus did not provide the requisite
justification for the police officer‘s intrusion.
19
III.
Because we conclude that the police seized appellant Devon Sharp without
reasonable articulable suspicion, and because that unconstitutional intrusion led to
the recovery of the brass knuckles and to the subsequent search of Mr. Sharp‘s
person and his car incident to arrest, we reverse Mr. Sharp‘s convictions and
remand for a new trial at which the fruits of the impermissible seizure are
suppressed. See Carr, 758 A.2d at 948.
So ordered.