BRANDON D. GOLDEN, APPELLANT, v. UNITED STATES, APPELLEE.
No. 17-CF-529
DISTRICT OF COLUMBIA COURT OF APPEALS
April 15, 2021
Argued December 3, 2019
Appeal from the Superior Court of the District of Columbia (CF2-8438-15)
(Hon. Anthony C. Epstein, Trial Judge)
Claire Pavlovic, Public Defender Service, with whom Alice Wang and Samia Fam, Public Defender Service, were on the brief, for appellant.
Katherine M. Kelly, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Matthew R. Palmer-Ball, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and MCLEESE, Associate Judges.
We hold that the police (1) unconstitutionally seized Mr. Golden by confronting him on the street, subjecting him to accusatory questioning, and asking him to expose his waistband for visual inspection, all without a reasonable basis to suspect him of criminal activity; and (2) unconstitutionally searched Mr. Golden by then frisking him for a weapon without an objectively reasonable basis to suspect he was armed and dangerous. Accordingly, and without reaching Mr. Golden‘s other claims of error at his trial, we vacate his convictions.
The charges in this case arose from Mr. Golden‘s street encounter with members of the Metropolitan Police Department‘s Gun Recovery Unit (GRU). On the night of June 22, 2015, at about 9:41 p.m., Mr. Golden was walking by himself down Southern Avenue and approaching the intersection with South Capitol Street. At that same time, four GRU officers who were on patrol together in a pair of unmarked SUVs were also travelling down Southern Avenue. As they neared South Capitol Street, the driver of the lead SUV, Officer John Wright, pointed out Mr. Golden (by saying “the guy on the right“) to his partner, Officer Patrick Vaillancourt. The record is silent as to why Officer Wright called attention to Mr. Golden; there was no lookout and the record contains no evidence that Mr. Golden was doing anything noticeably illegal or suspicious.5 Nonetheless, Officer Wright then made a right turn onto South Capitol Street and stopped his car at the curb, directly in front
After stopping, the officers remained seated in their cars with their windows down. The officers all wore tactical vests that displayed their badges and were marked “POLICE” in large, bright yellow lettering. They carried guns in their holsters. As Officer Vaillancourt testified, Mr. Golden noticed the officers confronting him and abruptly “froze,” appearing “surprised” and “nervous.” There were a few people in a parking lot behind Mr. Golden; they quickly dispersed. There is no indication in the record that any other persons were on foot in the vicinity.
Mr. Golden was wearing a short-sleeved orange polo shirt, with a sweatshirt tied over it around his waist. Officer Vaillancourt testified that he found the
Officer Vaillancourt addressed Mr. Golden. He identified himself as a police officer and, in a conversational tone, asked Mr. Golden whether he had any weapons on him. Mr. Golden said he did not. Officer Vaillancourt responded, “[C]an you just show me your waistband[?]” Mr. Golden, who was holding a cigar in his right hand, responded to this request by pulling up the middle and left side of his shirt from its tucked position under the sweatshirt with his free left hand. Officer Vaillancourt testified that this action made him more “concerned” because he suspected that Mr. Golden was “trying to avoid raising up the right” side of his shirt where the bulge was. But Officer Vaillancourt did not ask appellant to lift his shirt on the right side, nor did he ask about the bulge. Instead, he said to Mr. Golden, “I can‘t see your waistband because of the sweatshirt.” Mr. Golden then removed the sweatshirt from around his waist and displayed it. When he held it out, the sweatshirt blocked Officer Vaillancourt‘s view of the bulge. Officer Vaillancourt believed Mr.
Officer Vaillancourt then exited the SUV, walked up to Mr. Golden, and said, “I can‘t see your waistband now because you‘re showing me the sweatshirt. What do you have?” The officer still did not mention the bulge. Mr. Golden did not verbally respond; the record does not indicate how long Officer Vaillancourt waited for a response. Mr. Golden did, however, “lower[] his arms[,]” keeping hold of the sweatshirt with his free left hand. Without saying more, Officer Vaillancourt then “frisked the bulge” and “felt what [he] deemed to be a revolver.” Officer Vaillancourt alerted the other officers, who left their vehicles and assisted in Mr. Golden‘s arrest. A crime scene officer was summoned to take photographs showing the appearance of the bulge before the police removed the gun from Mr. Golden‘s pants. As the trial judge later found when ruling on the suppression motion, “the bulge was not in the shape of a gun, [and] there was nothing distinctive about the nature of the bulge.”
At the suppression hearing, Officer Vaillancourt articulated three reasons for believing, when he frisked Mr. Golden, that Mr. Golden was armed. First, Officer Vaillancourt noted, “most people are right-hand dominant so seeing that bulge there
Crediting Officer Vaillancourt‘s testimony, the trial court rejected Mr. Golden‘s arguments that the stop and frisk violated his Fourth Amendment rights. The trial court ruled that Mr. Golden was not seized within the meaning of the Fourth Amendment until Officer Vaillancourt frisked him, because Mr. Golden “stopped on his own accord” when the police SUVs pulled up in front and beside him; “Mr. Golden was not impeded or surrounded or hemmed in” and was “physically free to continue on his business“; and Officer Vaillancourt “simply asked two questions and made one statement” in a “conversational” tone of voice.7
II. The Fourth Amendment
Not all street encounters with police trigger constitutional scrutiny. “[A]lthough there is an inherent inequality and vulnerability in most encounters with police, the Fourth Amendment calculus tolerates a measure of official pressure in exchange for needed cooperation from the public with police activities in
Mr. Golden contends he was subjected to an unreasonable seizure after four police officers suddenly drove up and stationed their unmarked SUVs perpendicular to each other, in front of him (blocking his path) and to his left as he walked down the street alone at night; Officer Vaillancourt immediately proceeded to ask him if he had any weapons on him; and, after he replied that he did not, the officer asked him to expose his waistband for inspection. Mr. Golden further argues that he was subjected to an unreasonable search when Officer Vaillancourt frisked him. The government argues that no seizure took place until the frisk, and that by then the
Whether and when Mr. Golden was seized within the meaning of the Fourth Amendment and whether and when law enforcement had the requisite reasonable articulable suspicion to stop and frisk him are questions of law that we review ”de novo, deferring to the trial court‘s factual findings, unless [those findings are] clearly erroneous.”15
A. The Seizure
We determine whether a person has been seized by considering whether, in light of “all the circumstances surrounding the encounter[,] . . . 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.”16 This test
The message that a suspect is not “free to leave or terminate the inquiry can be conveyed, not necessarily intentionally, in ways less obvious than actual physical force or explicit command.”20 A police officer may effect a seizure without using physical force by means of a “show of authority” that, under the circumstances, would lead a reasonable person to believe they were not free to leave or terminate the encounter.21 If police behavior amounts to a show of authority without a physical touching, a seizure will be found if the person to whom the show is directed submits;
“The Supreme Court has repeatedly held that police do not manifest a show of authority ‘merely [by] approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting some questions to him if the person is willing to listen,’ provided the officers do not imply that answers are obligatory.”24 But such an encounter does rise to the level of a seizure if the police “convey a message that compliance with their requests is required.”25 Thus, brief inquiry in a non-hectoring, conversational tone or casual manner, unaccompanied by intimidating or coercive police conduct, likely would
While it can be said that almost any “encounter in which a visibly armed police officer” appears “without warning . . . to interrupt a person going about his private business is not an encounter between equals,”28 this was not just any surprise encounter with the police. It commenced with an impressive show of police authority. Not one but four police officers in two unmarked vehicles simultaneously
We have said that a street encounter with police may be “more intimidating if the person is by himself, if more than one officer is present, or if the encounter occurs in a location that is secluded or out of public sight.”30 In this case, Mr. Golden was by himself, at night, and the people seen standing around in the vicinity promptly
The first thing Mr. Golden heard from the police after being stopped was Officer Vaillancourt‘s question — did he have any weapons on him? By itself this did not amount to a seizure, but it is important to appreciate the question for what it was. It would be a mistake to view the inquiry as equivalent to a simple request for information that an officer might put to an ordinary civilian who is not a suspect but merely may be helpful in an investigation. With this question, the officer gave Mr. Golden reason to understand that a group of police officers in unmarked cars had singled him out and partially surrounded him because they suspected him of being armed and committing a crime at that very moment. Mr. Golden (and any reasonable innocent person in his position) could not know what grounds the police had to suspect this, what else the police suspected about him, or how dangerous the police officers deemed him to be. Such uncertainties contribute to a reasonable person‘s sense of powerlessness in an investigative confrontation by the police, regardless of the person‘s belief in their own innocence or their willingness to cooperate with law enforcement.31
Officer Vaillancourt then did not take Mr. Golden‘s “no” for an answer. Manifesting disbelief of Mr. Golden‘s denial, the officer immediately asked him to prove he had no gun by exposing his waist so the officer could see for himself whether Mr. Golden was concealing a gun there or not. This took the encounter beyond mere questioning. It called upon Mr. Golden to acquiesce in a public unveiling of part of his body — first by lifting his shirt and then by removing his sweatshirt — for police to inspect in aid of a criminal investigation in which he was the target. And it implied the police would view Mr. Golden with heightened suspicion if he attempted to end the encounter without first exposing his waist.
An ordinary reasonable and innocent person, surrounded by police who persist in suspecting that person of carrying a firearm despite the person‘s denial, would not feel free to frustrate the police inquiry at that point by refusing to expose their body for visual inspection to prove their innocence. Humiliating as enduring the public spectacle might be for many, such an individual reasonably and naturally would fear the police will take a refusal as confirming their suspicions, not allow the suspect
In sum, Mr. Golden, walking alone at night, was confronted by four police officers in two unmarked SUVs that pulled up and stopped in front of and beside him. Officer Vaillancourt immediately informed Mr. Golden that, yes, the officers suspected him of carrying a firearm. When Mr. Golden denied it, Officer Vaillancourt refused to accept that answer and pressed him to prove he had no gun by exposing his waist for visual inspection. “[I]n the absence of any sign that a reasonable person in these circumstances would believe the officer was giving [them] a genuine choice to decline the request[s],” the clear message conveyed to a
In similar factual circumstances, other courts have reached the same conclusion we do, namely that the encounter attained the level of a Fourth Amendment seizure when the police officer called upon the suspect to expose his waistband (if the suspect acquiesced). In United States v. Gibson,37 Mr. Gibson was walking home from a bus stop around midnight when four Metropolitan Police Officers — all members of the Gun Recovery Unit (wearing tactical vests identifying them as “POLICE,” patrolling in the area in an unmarked car) — came upon him. The officers pulled up next to Mr. Gibson and one of them, Officer Wright, shined a flashlight at him, identified himself as a police officer, and asked Mr. Gibson if he had a firearm on him. Mr. Gibson answered that he did not. Officer Wright then said, “let me see your waistband.” In response, Mr. Gibson raised both his arms in the air. Officer Wright then said, “lift your jacket.” At that point, Mr. Gibson turned and fled; as he ran, a gun fell out of his waistband. The district court held that Mr. Gibson was seized within the meaning of the Fourth Amendment before he fled;
Likewise, in Lee v. State,39 the Maryland Court of Special Appeals held that the defendant Lee was seized where the “police had asked [him] to lift up [his] clothing and to expose part of [his] body after [he] had declined, on three occasions, to engage with them.”40 More specifically, two officers confronted Lee on foot outside a McDonald‘s restaurant; although the officers “did not surround him, back him into a corner, or eliminate all exit paths,” they effectively “blocked all but one
In another case with factual similarities to this one, United States v. Gross, the D.C. Circuit held that the appellant had not yet been seized at this point in the
In Gross, the appellant was walking on a sidewalk at night when an unmarked car with four GRU officers slowed down and began driving parallel to him, separated by a lane of traffic between them.48 One of the officers “shined a flashlight on Mr. Gross to get his attention” and said, “[H]ey, it is the police, how are you doing? Do you have a gun?”49 Mr. Gross stopped but did not answer.50 The police stopped too, and the same officer asked, “Can I see your waistband?”51 Mr. Gross “responded by lifting his jacket slightly to show his left side.”52 Although the officer who made the request was satisfied with that response, another officer exited the car and asked
Mr. Golden was met with a significantly greater show of authority by the police. The two unmarked SUVs approached him more confrontationally than the one car did Mr. Gross. There was no traffic lane to act as a buffer; in contrast, the
To that point, the police had observed nothing more than Mr. Golden walking alone on a public street on a pleasantly warm evening, with a sweatshirt tied around his waist and a bulge that could have been “anything” on his right hip. The government concedes, and we agree, that this scant information did not justify a
B. The Frisk
We would reach the same conclusion even if we were persuaded by the government‘s argument that Mr. Golden was not seized within the meaning of the Fourth Amendment until Officer Vaillancourt actually undertook to frisk him. Not even then, we conclude, did the police have sufficient basis for a reasonable articulable suspicion that Mr. Golden was armed.
We have summarized the principles of objectivity, specificity, and logic that guide our evaluation of a claim of reasonable articulable suspicion as follows:
In considering whether the totality of the circumstances gave rise to reasonable articulable suspicion, we do so “through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.“. . . [C]onclusory statements expressing an officer‘s belief that a person is involved in criminal activity are insufficient to establish reasonable articulable suspicion. See Terry [v. Ohio, 392 U.S. 1, 27
(1968)] (rejecting as incompatible with the Fourth Amendment, seizures based on an “inchoate and unparticularized suspicion or hunch“). “Reasonableness” — the touchstone of the Fourth Amendment — in the context of a seizure requires “some minimal level of objective justification. . . .” INS v. Delgado, 466 U.S. 210, 217 (1984). That level of justification, reasonable articulable suspicion, is “less demanding” than probable cause and “considerably less” than preponderance. Illinois v. Wardlow, 528 U.S. 119, 123 (2000). But even though not a demanding standard, to be “reasonable” the suspicion must be based on facts that would have led another officer to have a similar suspicion. Moreover, to be “articulable,” there must be specific evidence — not merely conclusions — that led the officer to suspect criminal activity in a particular circumstance. See United States v. Sokolow, 490 U.S. 1, 7 (1989). These two requirements are not only the minimal safeguard of a person‘s constitutionally protected freedom to go about without coercion or seizure, but also are necessary for meaningful judicial evaluation of police action.58
In evaluating the totality of circumstances, we recognize that no factor on which an officer relies can be viewed “in isolation” or rejected simply because it is “readily susceptible to an innocent explanation.”59 Thus, we examine all the factors “individually and collectively.”60 We appreciate, however, that “some factors are
The factors on which Officer Vaillancourt and the trial court relied as justifying the frisk of Mr. Golden were: (1) the presence of a bulge on Mr. Golden‘s right hip; (2) its partial concealment from view by a supposedly unneeded sweatshirt around Mr. Golden‘s waist; and (3) Mr. Golden‘s failure to provide an “innocent explanation” for the bulge and his possibly evasive failure to facilitate Officer Vaillancourt‘s view of it when the officer asked to see his waist. To these three factors the government adds Mr. Golden‘s apparent nervousness in the presence of the police. For the following reasons, we conclude that these factors do not withstand scrutiny and, taken together, did not furnish an objectively reasonable basis for Officer Vaillancourt to suspect that the bulge was a weapon.
First, as the trial court found (and the government does not dispute), the bulge Officer Vaillancourt saw on Mr. Golden‘s right hip was not in the shape of a gun
Unlike the officer in Singleton, Officer Vaillancourt did not link the nondescript bulge to any distinctive behavior by Mr. Golden indicating that the bulge was a gun (or any other weapon). Officer Vaillancourt offered only that the location of the bulge on Mr. Golden‘s right hip “reminds me that‘s where I keep my gun.” This was “a purely subjective impression” that affords no insight at all into whether Mr. Golden was carrying a gun or something else on his hip.69 The generalization that people (at least, right-handed people)70 who do have guns often carry them on
Second, that Mr. Golden had a sweatshirt tied around his waist lent no objective support to Officer Vaillancourt‘s suspicion that the bulge was a gun (or, for that matter, to a suspicion that any other criminal activity was afoot). The officer‘s inference — it was a warm night, so Mr. Golden did not need to wear a sweatshirt, and therefore he was using it for purposes of concealment — was little more than speculation, a pure hunch based on dubious logic and questionable assumptions. If anything, the warm weather was a reason sufficient in itself to explain why Mr. Golden had tied the sweatshirt around his waist (as people commonly do with sweatshirts when it warms up) instead of wearing it over his shirt. And there was nothing inherently suspicious, or suggestive of a desire for concealment, about either carrying or wearing an ordinary sweatshirt outside on a
Third, the suggestion that Mr. Golden intentionally frustrated or impeded Officer Vaillancourt‘s efforts to view the bulge on his right hip is not substantiated. If anything, it is contradicted by the officer‘s account of Mr. Golden‘s actual behavior. To begin with, no adverse inference can be drawn from Mr. Golden‘s failure to provide an innocent explanation for the bulge, since he was never asked to
Rather than asking Mr. Golden to do anything else after he pulled up his shirt to reveal his waist, Officer Vaillancourt merely declared that he could not see Mr. Golden‘s waistband because of the sweatshirt. This obviously did not identify the right side as the area of interest. But in what is most naturally interpreted as a good
Thus, when considered individually, each of the factors relied upon to support the frisk — Officer Vaillancourt‘s observation of a nondescript bulge on Mr. Golden‘s right hip, the officer‘s association of that bulge with where he holsters his own firearm, Mr. Golden‘s possession of a sweatshirt tied around his waist on a warm evening, Mr. Golden‘s (at most) imperfect compliance with Officer Vaillancourt‘s request to inspect his waist, and Mr. Golden‘s nervousness during the encounter — is excessively ambiguous and of little objective significance. It remains to address their cumulative probative value in light of all the surrounding circumstances. Given (1) how little each factor contributes to a reasonable, particularized suspicion, as opposed to a mere hunch, that Mr. Golden was concealing a weapon, (2) the absence of any surrounding circumstances indicating that Mr. Golden was armed or engaged in criminal activity, and (3) that the several factors do not materially reinforce each other or fit together in any logical way so as
III. Remaining Claims
Mr. Golden raises three additional claims of constitutional error. First, invoking his
Second, Mr. Golden argues that the trial court erred in denying his motion for a new trial based on a claimed Brady84 due process violation — namely, the government‘s failure to disclose before trial the finding by another judge of the Superior Court that Officer Wright had testified falsely about an illegal stop in a case factually similar to Mr. Golden‘s case. Evaluation of this claim of error would
Third, Mr. Golden argues that his CPWL, UF, and UA convictions must be vacated because they violate the
This court, having noted that it was not “bound” by the decision in Wrenn, has yet to weigh in on the constitutionality of the “good reason” requirement.88 Doing so would be a significant undertaking in itself. But even if we “assume that Wrenn was decided correctly,”89 proper evaluation of appellant‘s
Given our reversal of Mr. Golden‘s convictions on
To be sure, we cannot say definitively that our
We thus are persuaded, in the exercise of our discretion, not to reach the remaining claims of error after having concluded that Mr. Golden‘s convictions must be vacated on
For the foregoing reasons, we vacate appellant‘s convictions and remand for such further proceedings, if any, as may be appropriate.
So ordered.