MARIO MAYE, APPELLANT, v. UNITED STATES, APPELLEE.
No. 19-CO-0589
DISTRICT OF COLUMBIA COURT OF APPEALS
October 7, 2021
Hon. Patricia A. Broderick, 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 (CF2-616-13). Submitted September 22, 2020.
Monica J. Milton was on the brief for appellant.
Timothy J. Shea, United States Attorney at the time the brief was filed, with whom Elizabeth Trosman, Chrisellen R. Kolb, Christine Macey, and Mark Hobel, Assistant United States Attorneys, were on the brief, for appellee.
Before EASTERLY, MCLEESE, and DEAHL, Associate Judges.
Maye appealed, maintaining that his Fourth Amendment rights were violated because any consent to the search was the byproduct of an illegal seizure. We did not resolve that question in an earlier appeal, instead remanding the case because we were “unable to ascertain, on th[at] record, what specific testimony the trial court credited.” Maye v. United States, No. 13-CF-1271, Mem. Op. & J. at 4 (D.C. July 15, 2015). We instructed the trial court, on remand, to make a “clearer determination” about “whether [Maye]‘s consent was voluntary, [or] whether it was the product of an illegal seizure.” Id. On remand, the trial court issued a written order finding “police officers obtained consent to search [Maye] during a lawful Terry stop” because they had reasonable articulable suspicion to seize him. Maye now appeals again, raising the same core Fourth Amendment claim.
We agree with Maye that, if he was seized, that seizure was unlawful and the trial court erred in concluding it was supported by reasonable articulable suspicion. Any consent he offered while unlawfully seized would “not [be] free from the taint of unlawful detention” under these circumstances, and would thus be “insufficient to show consent.” Jones v. United States, 154 A.3d 591, 598 n.20 (D.C. 2017).
The government nonetheless asks us to affirm on the ground that Maye was not seized, contrary to the trial court‘s repeated statements that his consent came amidst a lawful Terry stop. Unfortunately, we once again find ourselves without findings critical to assessing that question. The trial court focused its findings on whether it was reasonable to seize Maye and whether Maye voluntarily consented to a search regardless of whether he was seized. But it never focused on the related and we think dispositive question of whether Maye was seized at the moment of his purported consent. For instance, while the court stressed that Ronald Hall—Maye‘s friend at the scene—testified to facts that “did not materially contradict the officers’ testimony,” his testimony did diverge from the officers’ in respects critical to assessing when Maye was seized. Because further factual findings are potentially dispositive as to whether Maye was seized when he agreed to be searched, we remand the case for further findings.
I.
Maye was arrested and indicted for possession with intent to distribute a controlled substance after officers discovered cocaine in his waistband. He moved to suppress the drugs found on him during a pat-down search preceding his arrest, and the trial court held an evidentiary hearing on that suppression motion.
The government presented testimony from Officers Sean Kenney and Matthew Jones at the suppression hearing. Each testified that on January 10, 2013, at around 7:15 p.m., they were on routine patrol in a marked police vehicle in the District of Columbia‘s Sixth District. They came to the 800 block of 51st Street SE, which they described as a high-crime area known for guns and narcotics-related offenses. Officer Jones testified that “we‘ve
Officer Kenney‘s focus immediately turned to Maye because he—while facing Officer Kenney and without “trying to hide” what he was doing—“manipulat[ing] his waistband” with his right hand. Maye then put that same hand in his right pants pocket. Officer Kenney approached Maye and noticed what he identified as a “typical folding pocket knife” clipped inside of that same pocket, though he did not “feel threatened” by it or suspect the knife was illegal in any respect. He described it as “a silver knife with a silver clip,” “[l]ike the clip on the back of a pen,” though the body of the knife was “in [Maye‘s] pocket” so it is unclear how much beyond the clip Officer Kenney was able to see. There was no further description of the knife—Officer Jones had no recollection of a knife, Hall testified that he did not see Maye with a knife, and Maye disclaimed having one. Officer Kenney did not otherwise “see anything bulge wise” or observe anything “to suggest that [Maye] was breaking the law,” and he did not disagree that Maye might “have been adjusting” the belt he was wearing when manipulating his waistband. Nonetheless, based on the “movements [Maye] was making with his hand,” Officer Kenney testified he was “concerned with the fact that there might be a gun in [Maye‘s] waistband.”
Officer Kenney asked Maye if he could “speak to him for a minute,” and Maye responded with “something to the effect of, sure, what‘s up?” Officer Kenney then said, “while I‘m speaking with you, would you mind taking your hand out of your pocket,” and Maye complied. He next asked: “[W]hile I‘m speaking with you, do you mind if I pat you down for officer safety for any weapons?“, and Maye replied, “sure, that‘s fine.” Maye then placed his hands on the trunk of the nearby car, and Officer Kenney “immediately went to the area of his waistband” as he started the pat-down search. Officer Kenney “felt a bulge” that he “immediately recognized to be narcotics.” He then reached into Maye‘s waistband and removed a “clear plastic bag that contained 55 smaller [bags], each of which contained a rock-like substance” later confirmed to be cocaine. Officer Kenney could not recall if he removed the pocketknife during the pat-down, noting only that he “didn‘t seize it as evidence or anything like that,” but that it was certainly removed at some point and perhaps given to one of Maye‘s friends at the scene.
Maye and Hall testified to a very different version of the encounter. Maye testified that the officers “pulled up,” “got out of the[ir] car,” asked if anyone in the group had weapons, instructed “everybody [to] put [their] hands on the car,” and then “immediately” handcuffed him before he was searched. He went into more detail, but the trial court generally did not credit Maye—and specifically discredited his claim, echoed by Hall, that he was handcuffed before being searched—so we turn
Hall testified that he was hanging out with a group of about seven friends when two officers “rode up,” “proceeded to get out of [their patrol] car,” and asked “who lives here?” Officer Kenney went immediately to Maye and grabbed him, while at about the same time Officer Jones directed the rest of the group to put their hands on the car. Hall at times described this as a command and at times as a request, once recounting Officer Jones saying to the group, “we going to need you to put your hands on the car,” and later phrasing it as, “can you get up and put your hands on the car?” Hall was then questioned by Officer Jones, but he was still able to hear and see Maye‘s interactions with Officer Kenney. He was unsure if Officer Kenney ever asked Maye for permission to conduct a search.
At the conclusion of the hearing, the trial court orally denied Maye‘s suppression motion. The entirety of that initial ruling is as follows:
Listening to all the testimony, I do find that I credit Officer Kenney. I‘m not overly impressed with Officer Jones. Mr. Hall was credible, too, but inconsistent, really, in the details that he was able to provide, but he didn‘t provide a lot of details.
I find that Officer Kenney and Officer Jones were more consistent with each other than Mr. Hall and Mr. Maye. For that reason, I do give more credit to Officer Kenney and I do find that there was consent in this case. So I‘ll deny the motion.
The case then proceeded to trial and a jury found Maye guilty of possession with intent to distribute cocaine.
Maye appealed, reasserting his Fourth Amendment claim and contending that the trial court erred in a variety of ways when denying his suppression motion. We did not resolve most of his legal arguments in that initial appeal because we determined that the trial court‘s findings were insufficient to permit meaningful appellate review. Maye, Mem. Op. & J. at 3-4. We noted that the trial court “made no findings on critical issues such as the voluntariness of [Maye‘s] consent, the point at which he was seized, whether that seizure was lawful, when consent was given in relation to his seizure, and whether seizing the package of drugs from inside [Maye‘s] pants exceeded the scope of the consent.” Id. at 4. We also explained that it was not possible to ascertain “what specific testimony the trial court credited in deciding ‘there was consent in this case‘” because the trial court found both Officer Kenney and Hall credible, and their testimonies “greatly differed.” Id.
On remand, the trial court issued a written order once again denying Maye‘s suppression motion. It articulated two bases—which it treated as independent bases—for its ruling. It first found the officers had reasonable articulable suspicion as necessary to seize Maye and conduct a pat-down search of his waistband under Terry v. Ohio, 392 U.S. 1 (1968), rendering his consent, or lack thereof, immaterial. The court relied on the following findings as support for that conclusion: (i) “seven or eight individuals [were] standing within [a] ‘high crime area’ surrounding a parked car,” (ii) Maye made “furtive gestures” near his waistband and pants pocket, and (iii) Officer Kenney observed a pocketknife clipped to Maye‘s pants pocket, which the trial court thought “carr[ied] with it an indici[um] of wrongdoing.” The trial court also concluded that the pocketknife gave officers specific reason to believe Maye was armed and dangerous.
II.
Maye now argues (1) there was not reasonable articulable suspicion sufficient to justify his seizure and pat-down search of his waistband, and (2) his purported consent to the pat-down was tainted by his illegal seizure. We agree with Maye on the first point and, if he was in fact seized, we would agree with him on the second as well. As to the first point, there is nothing suspicious about gathering with a small group of friends outside at around 7:15 in the evening, and Maye‘s hand movements as recounted by Officer Kenney were innocuous. Having a “typical folding pocketknife” clipped inside of his pants pocket does not add much to the equation. Officer Kenney had no suspicion of the knife‘s illegality, and the presence of a legal pocketknife did not give rise to a reasonable suspicion that Maye was engaged in criminal activity in these circumstances.
Whether Maye was seized before agreeing to a search, which the government disputes, is a harder question that we again cannot answer on the record before us. There are discrepancies in the testimony that the trial court did not resolve—including that we cannot tell if the trial court credited Hall‘s account that the officers directed the entire group of friends to put their hands on the car and that everybody complied. Whether that is true is a potentially dispositive factor in determining whether Maye was seized, i.e., whether a reasonable person in his shoes would have felt “free to . . . terminate the encounter” with the officers and go about his way. Sharp v. United States, 132 A.3d 161, 166 (D.C. 2016) (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)). We thus remand for further factual determinations relevant to whether Maye was in fact seized when he agreed to a search. If he was, that seizure was in violation of the Fourth Amendment, thus obviating any purported consent, and the court should vacate Maye‘s conviction.
A.
We begin with the trial court‘s ruling that the officers had the reasonable articulable suspicion required for an investigatory seizure and a protective pat-down search of Maye. Consistent with the Fourth Amendment‘s protections “against unreasonable searches and seizures,” it is settled that a police officer “may conduct a brief stop (a seizure) ‘for investigatory purposes’ when he has ‘reasonable suspicion supported by specific and articulable facts that the individual is involved in criminal activity.‘” Pridgen v. United States, 134 A.3d 297, 301 (D.C. 2016) (quoting Robinson v. United States, 76 A.3d 329, 335-36 (D.C. 2013)). “And if, in the
The reasonable articulable suspicion standard is neither onerous nor toothless. Robinson, 76 A.3d at 336. It requires “at least a minimal level of objective justification“—a “less demanding standard than probable cause,” but one that is not satisfied by a mere “inchoate and unparticularized suspicion or hunch” of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (quoting Terry, 392 U.S. at 27) (quotation marks omitted). In other words, “a ‘gut’ feeling . . . will not do.” Brown v. United States, 590 A.2d 1008, 1014 (D.C. 1991). Nor will conclusory explanations devoid of particularized facts, especially where “the behavior of [the] suspect is capable of ‘too many innocent explanations.‘” Duhart v. United States, 589 A.2d 895, 899 (D.C. 1991) (quoting United States v. Barnes, 496 A.2d 1040, 1043 (D.C. 1985)); see also Hawkins v. United States, 248 A.3d 125, 131 (D.C. 2021). Whether reasonable articulable suspicion exists is a mixed question of law and fact. Umanzor v. United States, 803 A.2d 983, 991 (D.C. 2002). “[W]e 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.” Id.
The government argues, as the trial court found, that Officer Kenney had reasonable suspicion that Maye was engaged in illegal activity based on (i) his hand movements, (ii) his presence in a high-crime area, and (iii) the pocketknife clipped to his pants. “[W]e 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.” Johnson v. United States, 253 A.3d 1050, 1056 (D.C. 2021).
Considering these factors collectively, and drawing reasonable inferences in the government‘s favor, they fall short of the reasonable articulable suspicion necessary to justify a Terry stop.
1. Maye‘s Hand Movements Plus the High Crime Area
Officer Kenney testified that he “saw [Maye] with his hand doing something in his waistband” as if “he appeared to be manipulating something,” and then put the same hand “in[to] his right front pant pocket.” There is nothing particularly suspicious about adjusting or manipulating one‘s waistband in itself, an action perfectly consistent with “too many innocent explanations.” Duhart, 589 A.2d at 899 (citation omitted); see also In re A.S., 827 A.2d 46, 47-48 (D.C. 2003) (no reasonable articulable suspicion when officer observed an ambiguous “stuffing motion with [individual‘s] right hand into the waistband area“). For example, Maye could have simply been hiking up his pants, resetting his underwear, or adjusting his belt—a possibility expressly put to Officer Kenney at the suppression hearing, and which he could not discount. And “[p]utting one‘s hands in one‘s pockets . . . is a universal action which [can] hardly be called suspicious.” In re D.J., 532 A.2d 138, 142-43 (D.C. 1987) (abrogated on other grounds).
So we next consider what more is offered here to “fill the ‘logical gap’ between [Maye‘s] hand motions and the suspicion that he might be” engaged in criminal
“following-up on an informant‘s tip.”4 And Maye was not trying to conceal or shield his hand motions from Officer Kenney, contrary to the trial court‘s and the government‘s descriptions of his gestures as “furtive.”5 Officer Kenney made clear that Maye made no effort to hide what he was doing while adjusting his waistband.
That left the trial court to rely heavily on the fact that Maye was in a high crime area. The mere fact that a neighborhood is high in crime may, in some circumstances, amplify otherwise suspicious activity. See Brown, 97 A.3d at 96 (noting “high-crime area” as contributing to reasonable suspicion to seize); Wardlow, 528 U.S. 124 (noting the “high crime area” as “among the relevant contextual considerations“). But it does not transform innocuous behavior like adjusting one‘s waistband and placing a hand in one‘s pants pocket into grounds for a seizure. Duhart, 589 A.2d at 900 (“[A]n allegedly ‘high narcotics activity’ area does not objectively lend any sinister connotation to facts that are innocent on their
face.“); Curtis v. United States, 349 A.2d 469, 472 (D.C. 1975) (facts do not “assume added significance because they happen to have occurred in a high crime area“); Robinson, 76 A.3d at 340 (“[T]he character of the streets . . . does not authorize officers to rove troubled neighborhoods and briefly detain and patdown anyone they encounter.“); Dozier v. United States, 220 A.3d 933, 943 n.12 (D.C. 2019)
We are mindful that these factors are to be considered collectively under a “totality of the circumstances” test, Umanzor, 803 A.2d at 992-93, and that “[e]ven if each specific act . . . could be perceived in isolation as an innocent act,” there may yet be “a combination of facts that make out an articulable suspicion.” Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc). Nonetheless, we have repeatedly found a lack of reasonable suspicion despite similar hand gestures observed in high crime areas under circumstances more suspicious than what we have here. See, e.g., Duhart, 589 A.2d at 899-900 (no reasonable articulable suspicion where officer saw “two people examining ‘something‘” in a high-crime area and, upon noticing the officer, the appellant “shoved [the] item into his pocket“); Hawkins, 248 A.3d at 127, 131 (no reasonable articulable suspicion where, upon seeing police officer, appellant stuffed one or both of his hands into his satchel “several times” while in an area that “had experienced ‘an increase in violent crime’ that summer“); Anderson v. United States, 658 A.2d 1036, 1040 (D.C. 1995) (no reasonable articulable suspicion when officer saw appellant in high crime area around midnight “reluctantly remov[ing] his hands from his pocket and act[ing] in an unusual manner“).6
The government argues that Peay, supra, compels a contrary conclusion. We disagree. In Peay, the officers’ suspicions that defendant possessed an illegal weapon rested on a stronger foundation than what we confront here. We determined there was reasonable articulable suspicion in that case when officers pulled their car up to the entrance of an apartment building known for “narcotics trafficking,” and the appellant, upon seeing the officers, “hurried” inside the building while clutching an object in his hand that officers suspected was an illegal weapon. 597 A.2d at 1319-22 & n.6. By contrast, in this case Maye did not flee but cooperated with the officers who pulled their car up to his group of friends, parked it, exited, and approached with no specific cause. There was nothing in Maye‘s hand that could be mistaken for a gun, nor was there any bulge or attempt to turn away from officers so as to suggest he was hiding something. And he did not run inside any particular house or complex specifically known to be a hot-bed for
2. The Pocketknife Clipped to Maye‘s Pocket
The lone additional factor the government and trial court point to as creating a reasonable suspicion of criminal conduct is Maye‘s possession of a pocketknife, clipped inside his pants pocket with the clip in plain view. We disagree with the trial court‘s reasoning that possessing a “typical folding pocket knife” “carr[ies] with it an indici[um] of wrongdoing.” People carry pocketknives for many reasons; anybody who has an occasional need to open packages, break down boxes, or cut string may find it useful to keep one at hand. Pocketknives may be carried “for utilitarian reasons” or “as a tool in certain trades or hobbies.” Scott v. United States, 243 A.2d 54, 56 (D.C. 1968). A pocketknife is often listed first among the “ten essentials” that older Scouts (formerly, “Boy Scouts“) are expected to carry on any outing. See, e.g., Stephen Regenold, The Scout 10 Essentials: Items Every Scout Needs in the Outdoors, SCOUTING, scoutingmagazine.org/2013/02/the-10-essentials/; https://perma.cc/V7MZ-4NYR (last visited August 27, 2021). In short, individuals are allowed to carry pocketknives—and adjust their waistbands, including in high-crime areas—without forfeiting their Fourth Amendment rights to be free from seizures and searches absent more particularized suspicion.
We find the Second Circuit‘s opinion in United States v. Hussain, 835 F.3d 307 (2d Cir. 2016), instructive on the point. In that case, officers stopped a car for running a stop sign in a “high crime area” and the driver—later observed to have a pocketknife in his pocket—“started fumbling around the center console.” Id. at 310, 315-16. One of the passengers in the car was also “sitting in an ‘unnatural’ position that suggested” he was trying to “block the officer‘s view of the inside of the car,” id. at 311, 314, unlike in this case where there is no indication any of Maye‘s companions were acting suspiciously. The trial court found in Hussain that the above factors gave the officers reasonable articulable suspicion to permit a protective search of the car for other weapons. Id. at 312; see generally Michigan v. Long, 463 U.S. 1032, 1035 (1983) (extending Terry‘s rationale to vehicular searches).
The Second Circuit reversed for reasons applicable here.7 It determined that the trial court “overstated the description of the knife as a dangerous ‘weapon’ that signaled the presence of other weapons” because possession of a simple pocketknife did not support such an assumption. Id. at 317. In arriving at that conclusion, the court explained that carrying a standard pocketknife does not suggest a person is otherwise armed with an illegal weapon, as it observed that pocketknives with
shorter blades—like the “Swiss Army knife” and “the official pocketknife licensed by the
Other courts tend to agree with the point that mere possession of a pocketknife, without more, does not give rise to reasonable articulable suspicion of criminal activity. See, e.g., People v. Brannon, 949 N.E.2d 484, 487-88 (N.Y. 2011) (defendant‘s possession of a “typical pocket knife” did not support a finding of reasonable articulable suspicion); Lockard v. State, 233 A.3d 228, 241 (Md. Ct. Spec. App. 2020) (a pocketknife does not give rise to reasonable articulable suspicion that person is otherwise armed and dangerous); Davis v. State, 67 So. 3d 1125, 1127 (Fla. Dist. Ct. App. 2011) (“Possession of a pocketknife, without more, does not create a reasonable suspicion that a citizen is involved in criminal activity.“); Debord v. State, 622 S.E.2d 460, 461-63 (Ga. Ct. App. 2005) (no reasonable articulable suspicion where officer knew appellant from “a previous narcotics violation” and “noticed a pocketknife ‘clipped to his pants pocket‘“). We reach the same conclusion here.
This court‘s recent decisions in Hawkins and Golden are also instructive. In Hawkins v. United States, there was testimony that the defendant, who appeared nervous upon seeing a police officer, made stuffing motions into a satchel he was carrying. 248 A.3d at 127-28, 131. The arresting officer had indicated a trend that summer of persons hiding illegal firearms in similar satchels. Id. at 131. The government argued that the appellant‘s stuffing motions while present on a block experiencing “‘an increase in violent crime’ that summer,” combined with the officer‘s knowledge that people were carrying firearms in satchels like his, provided the requisite suspicion for the officer to believe the defendant possessed an illegal firearm. Id. at 127, 131. We disagreed, reasoning that the “officer‘s conclusory reference to a ‘trend’ of finding guns hidden in satchels that summer was not supported by details which would allow the court to ‘evaluate the reasonableness of th[e] . . . search.‘” Id. at 131 (quoting Terry, 392 U.S. at 21). In Golden v. United States, officers observed the defendant wearing an “unneeded” sweatshirt around his waist which appeared to be covering a bulge on his right hip. 248 A.3d 925, 941-42 (D.C. 2021). The government argued that the location of the bulge, combined with the defendant‘s wearing of a sweatshirt on a warm day, triggered a reasonable articulable suspicion for officers to believe the defendant was armed with an illegal firearm. Id. We again disagreed, concluding that the officers’ observations of the defendant were consistent with innocent behavior and were too generalized to provide reasonable articulable suspicion under the Fourth Amendment. Id. at 942-43.
Officer Kenney‘s suspicions here were even more generic than the ones we confronted in Hawkins and Golden. He did not suggest there was a trend of people with pocketknives carrying firearms, like the asserted correlation between satchels and firearms noted in Hawkins. There was no bulge on Maye‘s waist suggesting a firearm, as there was in Golden. There was only a typical pocketknife, which—similar to the satchel in Hawkins and the sweatshirt in Golden—supplied no meaningful support for Officer Kenney‘s suspicion of criminal activity. “Mere conclusory statements by the officer that what he saw made him believe the defendant had a weapon [in his waistband] are not enough
Finally, we do not think the combination of (1) Maye putting a hand in his pocket (2) where a pocketknife was clipped, presents a tandem of factors more suspicious than the sum of its constituent parts. There is no reason to think Maye placing his hand in his pocket put him in a better position to draw the knife than if he had naturally rested his arm at his side—an equally innocuous posture. Officer Kenney did not suggest otherwise and was explicit that he did not feel “threatened” by the pocketknife, further testifying that he could not even recall if he removed it during the course of patting Maye down. These two factors, in combination with the high-crime area and waistband adjustment, did not give rise to a reasonable articulable suspicion to seize Maye.
B.
Our conclusion above is not fatal to affirmance, however, as the government also contends that Maye was not in fact seized when he consented to a search. The government asserts the trial court itself found there was no seizure when Maye consented to a search, but that view cannot be reconciled with the trial court‘s ten separate references to the encounter as a ”Terry stop” or a “stop under Terry.” While we acknowledge the trial court at times suggested there was no seizure,9 its ultimate
conclusion about that is of little consequence because whether there was a seizure is a question of law we review de novo and we “may affirm a decision for reasons other than those given by the trial court” so long as there is no “procedural unfairness to the parties.” Tuckson v. United States, 77 A.3d 357, 360-61 (D.C. 2013).10
To determine whether Maye was seized at the time he agreed to a search, we ask whether a reasonable person in Maye‘s shoes would have felt “free to . . . terminate the encounter” with the officers. Sharp, 132 A.3d at 166 (quoting Bostick, 501 U.S. at 439). If so, then the encounter
Amendment rights.11 Gordon v. United States, 120 A.3d 73, 78 (D.C. 2015). If not, then this was an unlawful seizure and Maye‘s agreement to the search “would have been contemporaneous with and tainted by the illegal seizure, and ‘thus insufficient to show consent.‘” See Dozier, 220 A.3d at 947 n.18 (quoting Jones, 154 A.3d at 598 n.20). Whether a seizure occurred by the time Maye ostensibly consented to the search is thus crucial to whether Maye‘s motion to suppress should have been granted.
Unfortunately, the trial court‘s order again does not resolve discrepancies between Officer Kenney‘s and Hall‘s testimonies that are critical to this analysis, likely because it—incorrectly, in our view—thought a seizure was justified under Terry in any event. When this case was remanded in 2015, we instructed the trial court to resolve the differences between Officer Kenney‘s and Hall‘s versions of the events, because those were the two witnesses whom it generally credited. Maye, Mem. Op. & J. at 4. Because their accounts differed substantially and because the trial court found both witnesses credible, this court could not discern “what specific
testimony the trial court credited in deciding that there was consent in this case.” Id. (quotation marks omitted).
One of those key unresolved differences is whether the officers directed everyone in the group to put their hands on the car—a circumstance Hall and Maye testified to, but that was absent from Officer Kenney‘s testimony. While the trial court generally described how “[t]he officers did not make a show of authority or act in a manner that would dictate compliance by any member of the group was required,” it said that was “undisputed even by the Defendant,” suggesting it thought Maye‘s and Hall‘s accounts of the entire group being asked or directed to put their hands on the car was simply not coercive. Given the seeming significance of that fact, we do not opine on whether this was a seizure without a clear finding about it. Suffice it to say that a reasonable person in Maye‘s shoes might think it material, when assessing whether they are free to terminate a police encounter, if seven of their friends have likewise been directed to assume the position and then complied.
Because we remand—and further animating why we think it is prudent to do so—we note two factual points the trial court may have gotten wrong. First, the trial court suggested that when Officers Kenney and Jones approached the group, they “specified that no one in the group was in trouble.” No one testified to that during the suppression hearing, or at Maye‘s trial for that matter.12 Perhaps the trial court was merely paraphrasing the officers’ testimony that in fact nobody was in trouble—rather than suggesting they indicated as much to the group—but because that is unclear we flag the point. Second, the trial court found Maye‘s testimony that he “was ordered to place his hands on the . . . vehicle and was immediately handcuffed” not credible, in part, because
III.
We disagree with the trial court‘s conclusion that reasonable articulable suspicion justified a seizure of Maye. We remand the case for clearer factual findings relevant to whether and when Maye was in fact seized.
So ordered.