MARK FUNDERBURK, APPELLANT, v. UNITED STATES, APPELLEE.
No. 19-CF-110
DISTRICT OF COLUMBIA COURT OF APPEALS
October 7, 2021
Argued April 21, 2021
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.
Appeal from the Superior Court of the District of Columbia (CF2-21521-17)
(Hon. Todd E. Edelman, Trial Judge)
Stefanie Schneider, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant.
Daniel Honold, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Felice Roggen, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and THOMPSON,* Associate Judges, and RUIZ, Senior Judge.
* Judge Thompson was an Associate Judge of the court at the time of argument. Although Judge Thompson‘s term ended on September 4, 2021, she continues to serve as an Associate Judge until her successor is confirmed. See
I.
In the early morning hours of December 20, 2017, Metropolitan Police Department (MPD) Officers Andrew Rose and Corey Bonds were on patrol in a residential neighborhood of northeast D.C. At 2:20 a.m., the trial court found, they heard “several gunshots and what they described as a commotion, including the sound of people yelling.” Officer Rose said it sounded like an “argument,” although neither he nor Officer Bonds could hear what the argument was about. They thought the shots and commotion came from a nearby alley, which the trial court found was
The officers immediately drove towards the alley. They arrived at the mouth of the alley twenty seconds later. At this point, a ShotSpotter report came over the radio.1 ShotSpotter had detected four gunshots fired near 312 Division Avenue.2 The alley ran between Division Avenue and 51st Street; its mouth was directly behind the 300 block of Division Avenue. The officers drove into the alley. Ten seconds later — and thirty seconds after hearing the gunshots — the officers saw appellant. He was walking towards the officers, who had pulled up next to a parking lot in the alley. The trial court found that the parking lot was “almost directly across from the rear of 312 Division Avenue,” the address provided by ShotSpotter.
Appellant was the first and only person the officers saw in the twenty seconds it took them to drive to the alley and the ten seconds it took them to drive down the alley. However, as the officers exited their vehicle to apprehend appellant, they could still “hear loud and erratic screaming.” It was, the trial court found, the “same type of commotion that [they] had heard just a few moments earlier accompanying the sound of gunshots.” The commotion was coming from a walkway to a house just behind appellant. Appellant was walking away from the commotion.
When the officers ordered appellant to get on the ground, he fully complied. As Officer Bonds began to handcuff him, two women approached, and a third appeared in the doorway of the house behind appellant. One of the approaching women was upset with appellant. She was repeatedly yelling at him, “Why would you do that to me?” and, “Why would you take it this far?” The second woman was restraining her. The trial court found that the first woman was behaving “as though something had been done to her,” although it noted that neither of the two women “said at any point that [appellant] had actually done anything to harm them or that he had done anything illegal.” The officers did not stop any of the three women.
Around the same time, a second ShotSpotter report informed the officers that the gunshots had been moving eastward at 8.7 miles per hour.3 Officer Rose agreed that the report meant the locus of the shots had been moving, but he did not understand what it meant “technically.”
While Officer Rose kept the two women away from appellant, Officer Bonds patted down appellant‘s waist area. He discovered a .380 caliber bullet in appellant‘s back pocket.4 The officers then searched the area for a firearm and found a .380 caliber handgun lying in the grass near the parking lot. Officer Rose estimated that the gun was twenty-five feet from where he first saw appellant walking in the alley.
Appellant was charged with one count of Carrying a Pistol Without a License,5 one count of Possessing an Unregistered Firearm,6 and two counts of Unlawful Possession of Ammunition.7 He later filed a motion to suppress tangible evidence and statements made to the police at the scene. He argued, inter alia, that the officers lacked reasonable articulable suspicion to stop or frisk him, and that the evidentiary fruits (i.e., the bullet, gun, and magazine, among other things) should be suppressed as products of the unlawful stop and frisk.
After a suppression hearing, the trial court denied appellant‘s motion. It acknowledged that the officers “had no physical description of the shooter.” However, it found that “the geographic proximity, temporal proximity, lateness of the hour, and the suspect‘s lone presence at the scene” “created a reasonable suspicion that [appellant] was the person who had discharged the firearm and thus justified the stop.”8 Appellant was found guilty on all counts after a stipulated trial. He timely appealed the denial of his motion to suppress.
II.
Appellant argues that his mere presence near the location where officers heard gunshots thirty seconds earlier did not justify a Terry stop.9 We review that question de novo.10 In doing so, we must “defer to the [trial] court‘s findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling below.”11
A.
An officer may conduct a brief stop “for investigatory purposes” when he has “reasonable suspicion supported by specific and articulable facts that the individual is involved in criminal activity.”12 During the stop, the officer may also conduct a “protective frisk for weapons” if he has a “reasonable, articulable suspicion that the person detained is armed and dangerous.”13 The burden of demonstrating this suspicion is “not an onerous one.”14 It requires more than an “inchoate and unparticularized suspicion or hunch,” but “substantially less than probable cause.”15
To determine whether reasonable suspicion existed, we look to all “the facts available to the officer at the moment of the seizure or search.”16 Appellant was
To start, the officers were not relying on a tip of doubtful veracity. Nor were they depending “on the character of the streets” and the recent crime rate in the vicinity.19 Rather, they responded to a potentially violent crime that undoubtedly had just occurred.20 The officers heard “several gunshots” and “a commotion,” which Officer Rose testified sounded like an “argument.” They knew someone — possibly multiple people — fired a weapon or weapons. The only question was who.
The officers were not directionless in seeking to answer this question. They had a good idea of where the shots originated. Both officers thought the shots came from an alley within a block of their location. Officer Bonds was even more specific, testifying that he heard “a lot of screaming and yelling and loud commotion coming from my left side between two houses . . . like it was coming from an alley.” A ShotSpotter report then confirmed the gunshots came from a twenty-five-meter area that included the alley. The officers thus limited the universe of potential suspects to those at a particular location.
The officers responded to that location immediately. It took them twenty seconds to arrive at the mouth of the alley, and then another ten seconds to drive down it. Their stop of appellant occurred a mere thirty seconds after the shots rang out. “When the passage of time between the occurrence of a crime and a subsequent stop is” this short, i.e., where the stop is either “immediate or within only a few minutes,” we have said that “particularized reasonable suspicion is usually found.”21 The officers also found appellant at the crime scene. He was exactly where they thought the shots originated. This means he was apprehended both immediately after the crime, and at the location of the crime. Such a “showing of immediacy” supports a reasonable suspicion that appellant was involved in the crime.22
This immediacy also limits the possibility that the culprit (or culprits) could have fled before the officers arrived. In United States v. Jones, the D.C. Circuit
We also cannot chalk up appellant‘s presence at the crime scene to coincidence. He was not stopped at a time and place when one would expect to find people going about their normal business. It was 2:20 a.m. on a December weeknight. When officers stopped a suspect at a similar time in Umanzor v. United States — there, it was 2:45 a.m. — we found the lateness supported reasonable suspicion for that same reason.30 That appellant was in a residential neighborhood did not mean his presence in that particular location at that particular time was unsuspicious. The appellant in Wilkerson v. United States was stopped in a residential area, but his presence was still atypical because “it was the middle of a bitter cold night,” when one would not expect residents to be outside.31 Expectations aside, the officers reported that the surrounding streets and alley were deserted. The officers drove through several streets and down the alley, and yet they observed no one prior to seeing appellant. Accordingly, we cannot say appellant‘s presence at the scene of a shooting, a mere thirty seconds after the shooting, was unremarkable and not cause for reasonable suspicion.
It is instructive to compare the facts here with those in United States v. Delaney.32 In that case, police officers heard several gunshots shortly after midnight while patrolling a residential neighborhood.33
Delaney was “a close call”40 even though (1) the officers did not know where the shots came from and (2) Delaney was found in an area where, and at a time when, one would expect to see people engaged in innocent activity. In contrast, Officers Rose and Bonds knew where the shots came from, and appellant was found within seconds at that location at an hour when one would not expect to see people there — at 2:20 a.m. on a December weeknight, not shortly after midnight on New Year‘s Eve.
Appellant argues the officers did not have sufficient grounds to stop him because they knew he was not alone in the alley. “Being alone in the area of the reported crime limits the universe of potential [suspects] and strengthens individualized suspicion in any one person.”41 Here, however, while the officers may not have known there were exactly three women nearby at the time they stopped appellant, they at least knew there were one or more other persons in the vicinity from the yelling they heard.42 And we think it fair to say that nothing meaningfully distinguished appellant from the yet-to-be-revealed source(s) of yelling, except for the fact that officers saw him first. We agree these circumstances reduced the particularized suspicion of appellant, but they did not destroy it.
Consider our decision in United States v. Turner. There, we held the officers’ suspicion to be sufficiently particularized when it was narrowed down to two possible suspects.43 The officers in Turner received a general description of a drug dealer at a certain location.44 When the officers arrived at the location “within a minute,” they encountered two men, each of whom fit the description.45 That the officers could not distinguish between the two men was, we said, “a countervailing consideration,
Turner illustrates how particularized suspicion “does not deal with hard certainties, but with probabilities.”48 By definition, there may be a reasonable basis to suspect more than one individual of being the (one) person who committed the criminal offense under investigation. If reasonable suspicion centers on each of a small enough number of individuals, to the exclusion of all others, the probability of each individual‘s guilt is enough to establish the requisite degree of particularity to stop each of them.49 That was the case here (even setting aside the possibility that there was more than one shooter). Given how quickly Officers Bonds and Rose arrived at the scene of the shooting, and the fact that the surrounding streets otherwise appeared deserted, the officers could have had reasonably particularized suspicion that appellant was the shooter, even though there may have been just as good reason to suspect one (or more) of the three women who appeared on the scene shortly after the officers spotted appellant. We think it unreasonable to insist on more precision before police can effect an investigative Terry stop.50
We acknowledge there were more potential suspects in this case than there were in Turner — four rather than two. But the officers in Turner were only looking for one suspect. Here, there were several gunshots, and the officers never testified they were only looking for one shooter. More importantly, the specter of a “dragnet seizure”51 was nonexistent. The officers’ suspicion could not apply to “a potentially staggering number” of innocent people, as it did in In re A.S.,52 but only to the few people who just happened to be in an alley at the unusual hour of 2:20 a.m. on a December weeknight, thirty seconds after a shooting occurred there. Everyone else was safe from the officers’ scrutiny.53
Appellant cites cases where suspicion that applied equally to multiple persons was insufficiently particularized to support
Appellant argues that this case is governed by Williamson v. United States,57 but we do not agree. In Williamson, a majority of the panel concluded that an officer lacked reasonable suspicion to stop appellant and his two companions moments after the officer heard gunshots coming from their vicinity.58 The majority emphasized that the officer himself “acknowledged that he had no basis for suspecting [appellant] of a crime.”59 Before stopping appellant, the officer had stated over his radio that the four gunshots came from a vehicle that had already fled the scene.60 That is far from the case here, where Officers Rose and Bonds suspected appellant — not someone else — of being the shooter.61
In sum, we hold that the stop was justified at its inception by reasonable suspicion, and the suspicion was sufficiently particularized to appellant.
B.
We also conclude that the events occurring after the officers stopped appellant but before an officer frisked him did not dispel reasonable suspicion.
First, as Officer Bonds was restraining appellant, two women approached him and a third appeared in a nearby doorway. One of the women who approached was upset with appellant and, as the trial court found, “behaving as though something had been done to her.” We do not know why she was upset, and the woman never accused
Second, another ShotSpotter report was broadcast between the stop and the frisk. The report said the source (or sources) of the shots had been traveling eastward at 8.7 miles per hour. Appellant argues that this means the shooter had been “running or driving away” towards the east, whereas he had been “walking south at a much slower pace.” Accordingly, appellant argues the second ShotSpotter report showed he was not the shooter.
This argument is unpersuasive. To start, appellant points to no evidence that he was walking south, and the trial court never made such a finding. If anything, the available evidence tends to suggest appellant was walking east, or at least southeast. When the officers saw appellant, they were in the alley, which a review of a map in evidence reveals was to appellant‘s east. If appellant was found walking from a walkway leading into the alley towards the officers (a point appellant emphasizes), and the officers were to appellant‘s east, then appellant was walking east.
Moreover, the ShotSpotter report only stated a rate of speed at which the gun was moving when it was fired. Officer Rose testified he did not “technically” understand what the second ShotSpotter report signified. That is not clear to us, either. By itself, the rate of speed figure does not tell us much because there is no information as to how far (or exactly where) the gun traveled at that rate. Without this information, the rate of speed is not inconsistent with appellant having been the shooter. Since the officers did not see appellant until after the shooting had stopped, appellant could have been firing the gun as he was running (east) toward the alley where he then encountered the officers.62 And even if we had this information, the resulting figure would not be inconsistent with two shooters. After all, there is no testimony that ShotSpotter can distinguish between one person firing two shots, one at point A and one at point B, and two people firing one shot each, one person firing at point A and the other at point B. In both scenarios, the shots could have been reported to be moving at 8.7 miles per hour (assuming the time elapsed between each shot is constant), even if the two shooters in the second scenario were not moving at all.
Nor was the 8.7 miles per hour rate of speed reported by ShotSpotter itself a precise figure. According to Officer Rose, that figure explained “how long it took to get from point A to point B” (or, to put it more accurately, the speed was calculated based on the distance between points A and B and how much time elapsed between the gunshot from point A and the gunshot from point B). The issue, however, is that points A and B are estimates, because — as far as we know from the record — ShotSpotter can only identify the location of a shot to within a 25-meter radius. Consequently, the distance between shots could have been longer or shorter, and thus the rate of speed greater or less, than the 8.7 miles per hour figure suggests.63
C.
This brings us to the frisk itself. The officers had reasonable suspicion that appellant had just repeatedly fired a gun. So the officers reasonably could suspect that appellant was armed and dangerous when they encountered him. We therefore conclude the officers were justified in frisking appellant for their safety.
III.
For the foregoing reasons, we uphold the trial court‘s denial of appellant‘s motion to suppress evidence, and we affirm his convictions.