JERMAL E. JOHNSON, APPELLANT, v. UNITED STATES, APPELLEE.
No. 17-CF-839
DISTRICT OF COLUMBIA COURT OF APPEALS
July 15, 2021
Argued February 7, 2019
Hon. Danya A. Dayson, Trial Judge
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 (CF2-15610-16)
Steven R. Kiersh for appellant.
Jessie K. Liu, United States Attorney at the time the brief was filed, with whom, Elizabeth Trosman, Chrisellen R. Kolb, Eric Hansford, and Ann M. Carroll, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and FISHER,* Senior Judge.
Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.
Concurring opinion by Chief Judge BLACKBURNE-RIGSBY at page 23.
Concurring opinion by Associate Judge MCLEESE at page
BLACKBURNE-RIGSBY, Chief Judge: Appellant Jermal Johnson appeals the partial denial of his motion to suppress an unregistered firearm and ammunition that he discarded while fleeing on foot from law enforcement after an unlawful pat-down.1 In denying his motion to suppress, the trial court ruled first in appellant‘s favor that the officer conducted an unlawful pat-down. However, it found that appellant‘s subsequent flight ended any seizure, thereby removing the taint of the unlawful seizure from the subsequently-discarded and discovered firearm and ammunition. The only question before this court is whether appellant‘s flight operated to attenuate the illegal prior frisk, thereby permitting the admission of the subsequently recovered gun into evidence. Applying the attenuation doctrine to the facts of this case, we find no attenuating or intervening circumstances here and reverse appellant‘s firearm-related convictions.2
I. Factual and Procedural History
At the hearing on the appellant‘s motion to suppress, the government introduced evidence that, at approximately 5:30 p.m.
Officer Brathwaite asked the driver to step out of the vehicle to speak with the officer. The driver complied. The officer observed that all of the occupants in the vehicle were nervous, and as a result, asked if he could search the vehicle. The driver consented to a search of his vehicle, and all occupants exited the vehicle one-by-one. Because Officers Brathwaite and Bacon were outnumbered by the car‘s occupants, two other officers arrived to assist. Because appellant appeared nervous and Officer Brathwaite wanted to ensure the safety of the public and the officers, he asked appellant if he could conduct a pat-down of appellant‘s person.4 According to Officer Brathwaite, in response, appellant “put his hands up,” which the officer understood to be implied consent. The officer conducted a pat-down and felt a metal object on the right side of appellant‘s right leg, which he believed to be a gun. Instead of placing him in handcuffs per the officer‘s usual practice, he asked appellant what the object was. Appellant responded: “That‘s my thing.” Moments later, appellant fled on foot. While Officers Brathwaite and Takim Jackson, who had arrived to assist the traffic stop, pursued him on foot, Officer Brathwaite heard
a metal object fall to the ground in the street, but ran past it in pursuit of appellant.5 Officer Brathwaite was less than a half car-length behind appellant when he heard the metal object hit the ground and continued to chase appellant while Officer Jackson recovered the object, which was a loaded handgun. Officer Brathwaite did not observe anyone attempt to reclaim the metal object.
Officer Jackson testified that he saw appellant running with his right hand at his waist and his left hand “pump[ing] freely” and when the officer was two or three car-lengths behind appellant, he saw a gun fall from appellant‘s waistband on his right side and land under a nearby car. Officer Bacon continued the chase by car and witnessed appellant run through the
Appellant denied consenting to a pat-down or search of his person. Appellant further clarified that he did not raise his hands in the air at any point or make any
physical movement immediately after exiting the vehicle. Instead, as soon as he exited the vehicle, the officer proceeded to pat him down.6 According to appellant, he did not have anything metal on his person; however, he wore a court-ordered device on his right ankle. He also denied throwing any objects. Appellant did not know the officers.
Appellant moved to suppress the gun and ammunition found by Officer Jackson, arguing that the officers did not conduct a valid traffic stop and that he was illegally seized when Officer Brathwaite patted him down without his consent. At the suppression hearing, appellant‘s counsel argued that, but for the officer‘s unlawful conduct, he would not have been frisked by the officers, nor would he have fled from them. The trial court partially granted appellant‘s motion to suppress. The trial court suppressed the evidence that appellant consented to the pat-down and that he subsequently abandoned the gun. In doing so, the trial court found that the officer conducted a valid traffic stop, the driver consented to a search of the car, and appellant lacked standing to object to the search of the car. Thus, the officer did not seize appellant when he ordered him out of the car; instead, he merely facilitated the consent search of the car. However, the trial judge found that appellant was
unlawfully seized because he did not consent to Officer Brathwaite‘s pat-down, and there was no other constitutional basis for the pat-down. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968); see also Germany v. United States, 984 A.2d 1217, 1222 (D.C. 2009) (holding if a police officer has reasonable, articulable suspicion that an individual “might be armed and dangerous,” the officer may lawfully pat-down (frisk) that individual) (footnote omitted). The trial court further found that appellant “discarded an item that was later found to be gun,”7 supporting the trial court‘s conclusion that appellant intended to abandon it. Relying on Henson v. United States,8 the trial court held in the alternative that, based on appellant‘s
decision to abandon the loaded gun, appellant lacked standing to seek exclusion of the loaded gun on
On appeal, appellant argues that the factors to support seizing the appellant in Henson—“(1) appellant‘s unprovoked flight from the officers, (2) at night, (3) in a high crime area, (4) after the officers indicated that they were interested in investigating recent robberies in the area and that they wanted to know if appellant had weapons on him“—are not present here. Henson, supra, 55 A.3d at 867. However, these factors only support the trial court‘s ruling that the officer conducted an unlawful pat-down. In his brief, appellant did not address whether his flight operates to attenuate the illegal prior frisk, which would permit the admission of the gun into evidence. Our review of the record and the government‘s brief also shows that the government did not explicitly raise the attenuation issue in the trial court, but appellant‘s counsel argued its general principles. Consequently, for oral
argument, we directed the parties to be prepared to discuss Utah v. Strieff, 136 S. Ct. 2056 (2016), and Thornton v. State, 189 A.3d 769 (Md. Ct. Spec. App. 2018) (applying the attenuation doctrine to an unlawful pat-down of a driver during a traffic stop and affirming the denial of motion to suppress a firearm discovered as a direct result of driver‘s flight).10
II. Attenuation Doctrine Analysis
In reviewing the trial court‘s denial of a suppression motion, “we view the evidence presented at the suppression hearing in the light most favorable to the prevailing party . . . [and] draw all reasonable inferences in that party‘s favor.” Henson, 55 A.3d at 863 (cleaned up). While we review the factual findings for clear error and “‘give due weight to inferences drawn from those facts by resident judges and local law enforcement officers,‘” id. (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)), we review the legal conclusions drawn from those findings, de
novo. Miles v. United States, 181 A.3d 633, 637 (D.C. 2018) (internal citation omitted).
“Generally, when physical or testimonial evidence is uncovered by an illegal search or seizure, it must be suppressed as the ‘fruit of the poisonous tree.‘” Wilson v. United States, 102 A.3d 751, 753 (D.C. 2014) (citation omitted). This 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.” Gordon v. United States, 120 A.3d 73, 85 (D.C. 2015) (quoting United States v. Crews, 445 U.S. 463, 471 (1980)).
The Supreme Court has long recognized the so-called attenuation doctrine and articulated three factors to guide the
factors in any particular case of course depends on the circumstances of that case.” United States v. McMillian, 898 A.2d 922, 940 (D.C. 2006) (quoting United States v. Cherry, 759 F.2d 1196, 1211 (5th Cir. 1985)). Analyzed collectively under the circumstances here, the three factors favor appellant.
1. Temporal Proximity
Here, the first factor, temporal proximity, weighs in favor of appellant. Appellant fled on foot mere moments after the officer conducted the unlawful pat-down, and the officers recovered the gun after a short pursuit. See Strieff, 136 S. Ct. at 2062 (involving the discovery of drugs “only minutes” after the illegal stop and concluding this favors suppression of the evidence); Thornton, 214 A.3d at 57 (favoring suppression when “mere moments” passed between the unlawful frisk and the discovery of the handgun); see also e.g., Green v. United States, 231 A.3d 398, 413 n.52 (D.C. 2020) (recognizing that suppression is favored when very little time has passed between an officer‘s unlawful conduct and the recovery of evidence); cf. Oliver v. United States, 656 A.2d 1159, 1173 (D.C. 1995) (finding the primary taint purged where at least three hours passed between the unlawful arrest and the confession). Because the time encompassing the chain of events was mere moments, the temporal proximity factor strongly favors appellant.
2. Intervening Circumstances
The second factor, the presence of intervening circumstances, likewise has no purgative effect. Although appellant was a passenger in a vehicle that was the subject of valid traffic stop, it is undisputed that Officer Brathwaite lacked reasonable articulable suspicion to conduct a lawful pat-down of appellant. Appellant‘s flight, moments later, was the direct result of this unlawful pat-down.11 See Hicks v. United States, 705 A.2d 636, 641 (D.C. 1997) (refusing to find an intervening circumstance where the officer‘s discovery of the contraband was “virtually simultaneous” with the illegal arrest).
The government argues that a defendant‘s flight and voluntary abandonment of contraband necessarily purges any taint from an unlawful search or seizure. We are not persuaded. As the government has shown in its brief, there are some cases where courts have found attenuation in a defendant‘s response to illegal police conduct. In those decisions cited by the government, the courts found that the
defendant had either committed a new crime, e.g., United States v. Garcia, 516 F.2d 318, 319 (9th Cir. 1975) (resisting arrest); See United States v. Brodie, 742 F.3d 1058, 1063 (D.C. Cir. 2014) (listing examples), or had fled in a manner posing serious risks to the public safety—typically a vehicular flight leading to a high-speed car chase, e.g., United States v. McClendon, 713 F.3d 1211, 1218 (9th Cir. 2013); United States v. Boone, 62 F.3d 323, 324 (10th Cir. 1995)
Most of the exclusionary rule cases that could support the government‘s position are distinguishable. Brodie presents the most similar factual situation and it resulted in exclusion of the evidence. Brodie, 742 F.3d at 1058. In Brodie, officers were waiting to execute a search warrant at the home of a murder suspect. Id. 1060. While waiting, they saw the defendant (who was not the murder suspect) exit
the home. Id. The officers then requested that the defendant stop and place his hands on a nearby car. Id. He initially complied, but shortly thereafter fled. Id. During his flight, he dropped three weapons. Id. Upon arresting the defendant, the arresting officer conducted a pat-down search and recovered crack cocaine. Id. The defendant moved to suppress all of the evidence, which the district court denied. Id. at 1060-61.
On appeal, the D.C. Circuit held that the officers’ initial stop of the defendant was illegal, as it was not a valid Terry stop and also was not a legal seizure pursuant to an execution of a search warrant. Id. at 1061-62 (citing Bailey v. United States, 568 U.S. 186, 197 (2013)). Having determined that the initial stop was illegal, the D.C. Circuit then applied Brown‘s attenuation test. Brodie, 742 F.3d at 1063. In doing so, the D.C. Circuit held that the defendant‘s flight did not constitute an intervening circumstance. In Brodie, the court reached its conclusion in part by contrasting the situation with that of the Supreme Court case, Bailey v. United States:
Bailey contains perhaps the most analysis. The defendant engaged in forcible resistance to the seizing officers, which the court regarded as a violation of
18 U.S.C. § 111 , making it a crime to forcibly resist officers of the United States going about the execution of their duties. The conclusion depended on the court‘s reading § 111 as withholding any defense based on the illegality of the officers’ prior conduct. Bailey, 691 F.2d at 1018. Plainly
we need not get into the soundness of these cases: Brodie fled on foot, and the manner of his flight in itself posed no incremental threat to anyone.
As to Brodie‘s discard of his weapons, the Bailey court‘s treatment of a similar case is persuasive. The court noted that a defendant‘s tossing marijuana out a car window during an illegal stop did not constitute a new, attenuating crime: the tossing “only revealed [the] extant crime and did not itself constitute a crime.” Id. at 1017. So here.
Brodie, 742 F.3d at 1063-64 (D.C. Cir. 2014). Brodie‘s rationale applies to the situation at hand: the officers’ initial pat-down of appellant was illegal; that illegal pat-down precipitated appellant‘s flight in quick succession; appellant‘s flight did not pose any incremental threat to anyone.
flight to be an insufficient intervening circumstance. In context of the attenuation doctrine‘s three-factor balancing test, this factor is, at worst, neutral; at best, it favors appellant.
3. Purpose and Flagrancy of Misconduct
Nor does the third factor, the purpose and flagrancy of official misconduct, operate to dispel the primary taint of the
unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed in the hope that something might turn up. Brown, 422 U.S. at 605.
In the instant case, it is undisputed that Officer Brathwaite violated appellant‘s
Robinson v. United States, 76 A.3d 329, 331 (D.C. 2013) (“Although the reasonable, articulable suspicion threshold is low, it nonetheless requires an objective foundation both for the belief that an individual is engaged in criminal activity and, before a protective pat[-]down is conducted, for the belief that the individual is armed and dangerous.“); Singleton v. United States, 998 A.2d 295, 300-01 (D.C. 2010) (“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 ‘articulate,’ there must be specific evidence—not merely conclusions that led the officer to suspect criminal activity in a particular circumstance.“).
The record shows the obvious impropriety of Officer Brathwaite‘s misconduct, which alone satisfies the first part of the Brown test.14 Brown, 422 U.S. at 605 (requiring the impropriety of the official‘s misconduct to be obvious or that the official knew that his conduct was likely unconstitutional but engaged in it nevertheless). Appellant and Officer Brathwaite provided conflicting versions of events as to how that transpired. Officer Brathwaite testified appellant appeared
nervous and he wanted to ensure the safety of the public and the officers, which is why he asked and obtained implicit consent to conduct the pat-down. However, appellant denied raising his hands or consenting to a pat down. While the trial court declined to make any credibility findings regarding the officer‘s version of events—suggesting instead that the officer may have misremembered the sequence of the events—it found that “there is just no evidence . . . that there was any action that was consistent with the testimony of the officers.”15 Cf. United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003) (suggesting that purposeful conduct can arise from circumstances where “the police lack an arguable basis for the detention“), aff‘d, 443 F.3d 600 (7th Cir. 2006).
Beyond its obvious impropriety, Officer Brathwaite‘s conduct was investigatory in design and purpose and was executed in the hope that something might turn up. We have repeatedly found such conduct to be purposeful where an officer undertook an unlawful search or seizure with a particular aim in mind and where that unlawful search or seizure enabled the officer to accomplish that aim. See Green, 231 A.3d at 414 (D.C. 2020) (“Although the violation may not have been
flagrant . . . the fact remains that seizure of appellant‘s cell phone was a primary aim of Detective Barton‘s unjustified home intrusion, and it was only that violation that enabled Detective Barton to accomplish that aim“); Jones v. United States, 168 A.3d 703, 723 (D.C. 2017) (“Although the police officers’ warrantless use of the cell-site simulator here was not flagrant misconduct, recovery of Mr. Jones‘s cellphone and the complainants’ phones was undoubtedly one of the officers’ purposes in deploying the cell-site simulator.” (footnote omitted)); Gordon v. United States, 120 A.3d 73, 86 (D.C. 2015) (“[A]lthough the illegality was not flagrant, the officer‘s purpose at the time of the seizure—to check Gordon‘s identity
Here, Officer Brathwaite committed an illegal pat-down with the particular aim of finding a weapon. When asked why he wanted to pat down appellant, Officer Brathwaite testified: “They were just nervous. . . It was just to make sure he had no weapons and to make sure that that he would not be . . . any kind of danger to the public or the officers once he‘s outside the vehicle.” See United States v. Fernandez, 18 F.3d 874, 883 (10th Cir. 1994) (finding that the officer‘s actions “had a quality of purposefulness” where the sole basis for detaining the defendant was because the officer felt that defendant was “definitely nervous” and that there was a “tension in
the air“). However, a generic concern for safety, without anything more, does not permit an officer to violate the
The three factors, analyzed together, weigh in appellant‘s favor, leading us to conclude that the primary taint of Officer Brathwaite‘s illegal pat-down immediately after appellant exited the car had not been purged by the time the officers found the loaded gun moments later during their pursuit of appellant. Therefore, the officers’ subsequent discovery of a loaded gun must be suppressed as “fruit of the poisonous tree.” The trial court erred in concluding otherwise.
III. Appellee‘s Remaining Arguments
We briefly address the government‘s argument that appellant lacks standing, as the trial court ruled in the alternative, because he “disavowed any possessory or
privacy interest in the gun.” The government‘s argument conflates the “person or property searched or seized” with the “fruit” of that search or seizure. As we have noted, although “the fruit of the poisonous tree doctrine applies [] when the defendant has standing regarding the
Furthermore, we hold that appellant did not voluntarily abandon the gun in the
Accordingly, appellant‘s firearm-related convictions are hereby reversed.
So ordered.
BLACKBURNE-RIGSBY, Chief Judge, concurring: While I join the opinion of the court in full, I write separately to caution that the dual factors of “unprovoked flight” and “high crime area,” outlined in Illinois v. Wardlow, 528 U.S. 119, 121-26 (2000), not be applied so formulaically that they become a substitute for requiring police officers to have particularized suspicion of an individual‘s suspected criminal activity prior to a lawful seizure. Although our court has adopted and considered the Wardlow factors, we have also held that “more is required for officers to develop reasonable articulable suspicion of criminal activity justifying a stop” than a defendant‘s “presence in a high crime neighborhood coupled with his flight from uniformed officers.” See Posey v. United States, 201 A.3d 1198, 1203-04 (D.C. 2019). Since the Wardlow decision, the United States Supreme Court has similarly
cautioned against “adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” Missouri v. McNeely, 569 U.S. 141, 158 (2013) (clarifying that, in the context of Wardlow, there is “no valid substitute for careful case-by-case evaluation of reasonableness“). Accordingly, I simply stress that the reasonable articulable suspicion analysis should be informed by more than mere evidence of flight in a high crime area.
MCLEESE, J., Associate Judge, concurring: In her concurring opinion, the Chief Judge expresses the view that unprovoked flight from the police in a high-crime area does not suffice to establish reasonable articulable suspicion. For reasons that I have explained elsewhere, I believe that binding authority establishes that, to the contrary, unprovoked flight from the police in a high-crime area does suffice to establish reasonable articulable suspicion. Miles v. United States, 181 A.3d 633, 648 n.21 (D.C. 2018) (McLeese, J., dissenting).