RASHAD ELLISON, APPELLANT, v. UNITED STATES, APPELLEE.
No. 19-CF-462
DISTRICT OF COLUMBIA COURT OF APPEALS
October 1, 2020
Appeal from the Superior Court of the District of Columbia (CF2-12054-18) (Hon. Kimberley S. Knowles, Trial Judge) (Submitted May 13, 2020)
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.
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,
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
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 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
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 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
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. 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.
After the trial judge denied the suppression motion, Mr. Ellison entered a conditional guilty plea to both counts of the indictment under
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
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, 213–14 (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, 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 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 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 that we have held provide probable
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 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 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
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.
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 U.S. at 19–20. In general, Terry
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.
III.
The judgment of the Superior Court is affirmed.
So ordered.