316 F. Supp. 3d 437 | D.C. Cir. | 2018
This matter comes before the Court on defendant Derrick Wills' motion [Dkt. No. 12] to suppress statements and motion [Dkt. No. 13] to suppress tangible evidence, both filed on June 5, 2018. The government filed an omnibus opposition *442[Dkt. No. 17] to the motions to suppress on June 18, 2018. On July 11, 2018, the Court held a hearing on the motions. The government presented two witnesses - Officer Krishaon Ewing and Officer Dmitry Gendelman. And both parties submitted evidence, including a number of video recordings from officers' body-worn cameras, and made further arguments in support of their positions. Upon consideration of the testimony and evidence presented at the hearing, the written and oral arguments of the parties, and the entire record in this case, the Court will grant both motions to suppress.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of February 3, 2018, Metropolitan Police Department ("MPD") officers were patrolling the 2300 block of Good Hope Court in Southeast Washington, D.C. During this routine patrol, Officers Krishaon Ewing, Herman Kelly, and David Whitehead were riding as passengers in a marked police car driven by Officer Lavon Woods. According to Officer Ewing's testimony, the officers spotted three men, two of whom the officers suspected were drinking open containers of alcohol because the men were drinking from red "Solo-style" cups. Mr. Wills was the third man, not drinking from a red cup.
Officer Ewing testified that, upon seeing the police car drive closer to the group, Mr. Wills turned and started to walk away, toward the exit of the apartment complex. Officer Ewing initially testified that "[o]nce we stopped the vehicle, [Mr. Wills] was looking over his shoulder at [the police car]" and only when Officer Ewing exited the vehicle did Mr. Wills begin to flee, running while holding his waistband. But when confronted with the footage from his own body-worn camera, Officer Ewing acknowledged that Mr. Wills "was running when [Officer Ewing] got out of the car."
In any event, Mr. Wills ran and Officers Ewing, Kelly, and Whitehead pursued him on foot, while Officer Woods circled around in the police car. Officer Ewing testified that, because of the way Mr. Wills held his waistband with his right hand as he ran, with his left arm swinging, he believed that Mr. Wills had a firearm on his person. He explained that he based this belief on his prior experiences as an officer in similar situations, where a defendant had run while carrying a firearm in his waistband without a holster. Officer Ewing pursued Mr. Wills through the apartment complex, following him through two covered apartment building walkways. Officer Ewing testified that, as Mr. Wills turned corners during the pursuit, Officer Ewing would momentarily lose sight of him. In particular, as Mr. Wills exited the second covered walkway and turned to the left, Officer Ewing lost sight of him until Officer Ewing also exited the covered walkway. According to the footage from his body-worn camera, Officer Ewing drew his gun when he lost sight of Mr. Wills, before Officer Ewing exited the second covered walkway. Officer Ewing testified that, as he emerged from the second covered walkway, he heard a "metallic object hit the wall" of the apartment building. He then *443saw Mr. Wills continuing his flight, no longer clutching his waistband. In addition, Officer Ewing observed Mr. Wills' hand "coming down from ... a curved shape," as if "coming back from a tossing motion." Officer Ewing did not see any object in Mr. Wills' hand. Because of Mr. Wills' gait, his arm movements, and the metallic noise, Officer Ewing testified that, based on his experience as a police officer, he believed Mr. Wills had thrown a gun against the building after he exited the second covered walkway. At that point, Officer Ewing alerted the other officers to this belief and used the police radio to broadcast the code word for "firearm."
Shortly after exiting the second covered walkway, Officer Ewing caught up to Mr. Wills and forcibly stopped him by pushing him into the patrol car being driven by Officer Woods. Mr. Wills crashed into the car and then fell to the pavement, sustaining abrasions to his head and the palms of his hands. Officer Ewing directed the other officers to search the bushes lining the wall of the apartment building for the firearm. After he assisted Officer Woods to handcuff Mr. Wills, Officer Ewing went over to join the search himself. Less than two minutes later, other MPD officers, including Officer Dmitry Gendelman, arrived on the scene. Officer Gendelman testified that, upon his arrival, he volunteered to assist Officer Woods with standing-up and supervising Mr. Wills, who was now handcuffed with his hands behind his back, while the other officers joined the search for the firearm. After helping Mr. Wills to his feet, Officer Gendelman immediately unzipped Mr. Wills' backpack, still attached to Mr. Wills' back, and searched its contents. During his testimony, Officer Gendelman explained that he was looking for contraband, including a potential firearm. During this time, Officer Woods questioned Mr. Wills, asking whether he lived on the premises, whether he had any identification, and whether he needed medical attention for his abrasions. As a result of the search of Mr. Wills' backpack, Officer Gendelman found a clear plastic bag containing approximately three ounces of a green leafy substance, later determined to be marijuana, as well as a digital scale.
During and after the search of his backpack, Mr. Wills appeared quite concerned about what Officer Gendelman had discovered in the backpack and made multiple related incriminating statements, such as "You seen what's in my bag. That's why I ran." In addition, while Officer Woods continued to ask Mr. Wills questions to elicit booking information, Officer Gendelman asked him, "You throw something or no?" Mr. Wills responded to Officer Gendelman's question by stating: "Man, look, I only threw a knife, that's what I'm telling you." At the time he made these statements, Mr. Wills had not been given Miranda warnings.
Mr. Wills was subsequently indicted and now faces three criminal charges: (1) unlawful possession of a firearm by a convicted felon,
II. ANALYSIS
A. Suppression of Backpack Contents
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, *444and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause." See U.S. CONST. amend. IV. Because warrantless searches are presumed to be unreasonable, law enforcement officers generally must first obtain a judicial warrant before searching a person or a person's property for evidence of criminal wrongdoing. See Riley v. California, --- U.S. ----,
The government argues that multiple exceptions to the warrant requirement are applicable to the facts presented here. First, the government argues that the police officers had reasonable suspicion justifying an investigatory stop of Mr. Wills and a search of his backpack under Terry v. Ohio. See Opp'n at 4-7. Second, the government asserts that the officers had probable cause to believe that a crime had been committed at the time of the search and, as a result, the search of Mr. Wills' backpack was a permissible search incident to lawful arrest. See id. at 7-9. Finally, the government maintains that even if the search of Mr. Wills' backpack was neither a lawful Terry search nor a search incident to a lawful arrest, the firearm inevitably would have been discovered once the officers found the gun in the bushes and thus had probable cause to arrest Mr. Wills - they then permissibly could have searched him incident to arrest. See id. at 9-11. For the following reasons, the Court concludes that none of these exceptions applies here. As a result, the contents of Mr. Wills' backpack must be suppressed.
1. Search of Backpack Not a Valid Terry Search
As one exception to the Fourth Amendment's warrant requirement, officers may conduct a brief investigative " Terry stop" when they have a "reasonable, articulable suspicion that criminal activity is afoot." See Illinois v. Wardlow,
Crediting the officers' testimony, the Court has little doubt that the officers acted reasonably in pursuing and stopping Mr. Wills in light of the circumstances confronting them. At the time Officer Gendelman searched the backpack, Mr. Wills was validly detained in a Terry seizure of his person, justified by reasonable suspicion.
The government contends that Officer Gendelman's search of the backpack was a permissible search for weapons under Terry. It argues that "[a] Terry pat-and-frisk need not be limited to a Defendant's person." See Opp'n at 5 (citing United States v. Holmes,
2. No Probable Cause at Time of Backpack Search
As another exception to the warrant requirement, when a police officer conducts a lawful arrest, the arresting officer may search "the arrestee's person and the area 'within his immediate control' ... [meaning] the area from within which he might gain possession of a weapon or destructible evidence." See Chimel v. California,
"The probable-cause standard is a 'practical, nontechnical conception' that deals with 'the factual and practical considerations of everyday life.' " See Maryland v. Pringle,
The government argues that, at the time of the search, the officers had probable cause to support a lawful arrest, and as a result, Mr. Wills' backpack was validly searched incident to his arrest. But at the time of the search, the only facts in support of criminal activity were Mr. Wills' flight from police and Officer Ewing's observations that Mr. Wills held his waistband as he ran, that he heard the "clink" of metal on brick when he lost sight of Mr. Wills, and that, after regaining a line of sight, he saw Mr. Wills' hand come down as if completing a tossing motion. These facts undoubtedly established reasonable *447suspicion that Mr. Wills may have possessed a gun. But more was needed to establish probable cause. Under these circumstances, the officers did not have probable cause to arrest Mr. Wills until they recovered the firearm. See, e.g., United States v. Moore,
Because probable cause did not exist to lawfully arrest Mr. Wills at the time of the search, his backpack was not lawfully searched incident to arrest.
3. Discovery of Backpack Contents Not Inevitable
Where evidence is discovered as the result of an unlawful search, it may nonetheless be admissible if its discovery was inevitable.
*448In the circumstances presented here, there are two avenues by which the government might assert inevitable discovery: an inventory search or a search incident to arrest. In this case, however, the government has not presented any affirmative evidence of an inventory search policy of the MPD which would have inevitably resulted in the discovery of the contents of Mr. Wills' backpack. In fact, at the motions hearing, the government expressly disclaimed any reliance on an inventory search theory for purposes of inevitable discovery analysis. Instead, the government relies exclusively on the argument that the contents of the backpack would have been discovered pursuant to a lawful search incident to arrest.
The government correctly notes that although the officers did not have probable cause at the time of the search, probable cause materialized shortly thereafter when officers found the gun. The government thus argues that discovery of the backpack's contents was inevitable because, once the officers found the gun and thus had probable cause to arrest Mr. Wills for a firearms offense, the officers could have lawfully searched the backpack incident to arrest. In support of this contention, the government cites an MPD General Order, which apparently serves as the Department's search incident to arrest policy. The Order provides in relevant part that "[a]t the time of arrest, prisoners shall be thoroughly searched and all personal property, including those items (e.g., ties, belts, suspenders, scarfs, etc.) that could be used to inflict injuries upon themselves, shall be removed." See METRO. POLICE DEP'T , GEN. ORDER 601.1 ¶ I.A.8 (Apr. 30, 1992); see also Opp'n at 11.
Of course, this generic and expansive provision must still comply with the requirements of the Fourth Amendment. And under the Fourth Amendment, the warrant requirement remains the general rule for a lawful search: "Even if an officer has probable cause to believe that a bag (or a box, or a house) contains evidence of criminal activity, he must get a warrant before searching it unless one of the actual exceptions to the warrant requirement applies." See United States v. Howard,
When conducting a lawful arrest, an officer may search "the arrestee's person and the area 'within his immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." See Chimel v. California,
In light of this standard, whether or not a closed backpack or bag can be searched incident to arrest depends on a fact-intensive assessment of the totality of the circumstances. See, e.g., United States v. Myers,
Here, Mr. Wills had been handcuffed with his cuffed wrists and arms behind his back when Officer Gendelman unzipped the backpack. As defense counsel has argued, it appears from the officers' body-worn camera footage that Mr. Wills would have had to engage in significant acrobatics in order to gain access to the contents of his backpack at the time it was searched. See United States v. Lyons,
More to the point, if the officers had waited until they had probable cause to arrest Mr. Wills, it remains unclear whether they then would have had cause to properly and lawfully search his backpack incident to arrest. It is impossible for the *450Court to do more than hypothesize as to what "inevitably" would have occurred in such a scenario. Had the backpack not been illegally searched prior to the existence of probable cause, would officers have searched the backpack while it was still on Mr. Wills' back, or removed it and brought it several feet away? Would officers have removed Mr. Wills' handcuffs to take off the backpack or simply unbuckled the straps while Mr. Wills remained handcuffed? Would Mr. Wills have been locked inside of a police vehicle before or during such a search? Would his backpack have been removed before he was placed in a police vehicle? How many officers would have stood by to supervise Mr. Wills while another officer searched the backpack, either nearby or elsewhere? Such hypothesizing and speculation is the very antithesis of the inevitable discovery doctrine. See United States v. Holmes,
Certainly, what officers did later is somewhat instructive. Officer Keleman's body-worn camera footage shows that a few minutes later, while officers were tending to Mr. Wills' bleeding hands and after the gun had been found, Officer Gendelman conducted a second search of the backpack. He reopened the backpack, removed the bag of marijuana, and then spoke to Mr. Wills while confronting him with the bag of marijuana.
But again, the Court need not decide whether either or both of these searches of Mr. Wills' backpack would have amounted to a lawful search incident to arrest had they not been preceded by an unlawful search. It is certainly possible to review the various courses of conduct available to the officers and speculate about what they could have done to eventually lawfully discover the marijuana as the result of a reasonable search. Cf. Gore v. United States,
B. Suppression of Statements Regarding Contents of Backpack
As noted above, evidence derived from an illegal search or seizure must be suppressed unless the government can show intervening circumstances sufficient to break the causal connection between the Fourth Amendment violation and the resulting evidence. See Brown v. Illinois,
At the motions hearing, the government suggested that the Fourth Amendment's fruit of the poisonous tree doctrine does not apply to statements. But this is clearly not the case. See Brown v. Illinois,
Accordingly, the Court must decide here "whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the 'taint' imposed upon that evidence by the original illegality." See *452United States v. Crews,
Here, mere seconds passed between the start of Officer Gendelman's illegal search and Mr. Wills' statements acknowledging the contents of his backpack. In fact, the illegal search was still ongoing when Mr. Wills first made the statement, "You seen what's in my bag. That's why I ran." And Officer Gendelman's body-worn camera footage indicates that Mr. Wills was fully cognizant of the search of his backpack - he turned his neck toward Officer Gendelman in an apparent attempt to see what was going on, while the unzipping of his backpack and rustling of the plastic bag were clearly audible. Confirming this to be the case, Mr. Wills acknowledged the search and asked Officer Gendelman whether he had seen what was inside of his backpack, rhetorically answering "that's why I ran." The illegal search and resulting statements occurred in short succession, no Miranda warnings had been given, and the government has not directed the Court to any other potentially attenuating factors. Accordingly, Mr. Wills' statements pertaining to the contents of his backpack must be suppressed as fruit of the poisonous tree.
C. Suppression of Statement Regarding Throwing a Knife
In Miranda v. Arizona, the Supreme Court announced certain prophylactic measures to guard against compelled self-incrimination by requiring that custodial interrogation be preceded by a warning that adequately advises the defendant of the right to remain silent and the right to the presence of an attorney during questioning. See Miranda v. Arizona,
Mr. Wills has moved to suppress his statements made in response to custodial interrogation absent the requisite Miranda warnings. The government notes that Mr. Wills "has not identified any particular statement he seeks to suppress." See Opp'n at 11. But the government has represented that, at trial, it would seek to introduce an admission by Mr. Wills that he threw a knife. Specifically, the government proffers the exchange between Mr. Wills and Officer Gendelman which occurred shortly after Officer Gendelman arrived at the scene and searched Mr. Wills' backpack. According to the body-worn camera footage introduced as Defense Exhibit 3, at approximately 4:58:16 P.M., Officer Gendelman asked, "You throw something or no?" and Mr. Wills responded, "Man, look, I only threw a knife, that's what I'm telling you." This questioning *453occurred after Mr. Wills had fled from officers on foot and Officer Ewing had pushed him into the police car and onto the ground to end his flight. At the time of this questioning, Mr. Wills' hands were behind his back, handcuffed and bleeding after his fall. He was standing up, after Officer Woods and Officer Gendelman had helped pull him to his feet, and he appeared relatively cooperative - he stood still and allowed the officers to search his person, for example, and he responded to their questions. The backpack hung down his back, with the straps looped around both shoulders. Only seconds prior, he had been subjected to an illegal search of his backpack. See supra Part II(A). And he had not been given any Miranda warnings.
The government has conceded that "Officer Gendelman's question undoubtedly constituted interrogation." See Opp'n at 16. And the government does not appear to contest that Mr. Wills was in custody, for purposes of Miranda, at the time of the questioning. See id. at 11-19; see also United States v. Clemons,
In situations that pose a threat to public safety, the need for answers to questions reasonably prompted by safety concerns "outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." See New York v. Quarles,
Viewing the totality of the circumstances here, the government has failed to show that Officer Gendelman's question was motivated by an objectively reasonable public safety concern.
The government urges the Court nonetheless to find that public safety was implicated by an objective concern for an unrecovered and potentially loaded firearm. The government characterizes the officers' search as a "frantic" one and suggests that, as a result, Officer Gendelman's question - "You throw something or no?" - reflected an objective need to urgently locate the gun. See Opp'n at 17. But again, the circumstances here stand in stark contrast to those presented in cases where the public safety exception has been found to apply. This was not an instance, for example, in which one or two officers faced the imperative of locating a gun which they believed had been discarded in an unsecured zone from which some member of the public might retrieve it and either destroy the evidence or harm themselves or others. See New York v. Quarles,
III. CONCLUSION
For the foregoing reasons, the Court will suppress the contents of Mr. Wills' backpack, as well as his statements relating to the contents of his backpack, as fruit of the poisonous tree under the Fourth Amendment. The Court will also suppress Mr. Wills' statement to Officer Gendelman that he threw a knife as a result of the failure to first provide Mr. Wills with the requisite Miranda warnings. Accordingly, it is hereby
ORDERED that Mr. Wills' motion [Dkt. No. 12] to suppress statements is GRANTED; and it is
FURTHER ORDERED that Mr. Wills' motion [Dkt. No. 13] to suppress tangible evidence is GRANTED.
SO ORDERED.
In connection with the pending motions, the Court has reviewed the following filings, including the exhibits attached thereto: Defendant's Motion to Suppress Statements [Dkt. No. 12]; Defendant's Motion to Suppress Tangible Evidence [Dkt. No. 13]; Government's Opposition to Defendant's Motions to Suppress ("Opp'n") [Dkt. No. 17]; Government's Supplemental Opposition to Defendant's Motions to Suppress [Dkt. No. 22]; and Supplemental Authorities in Support of Defendant's Motion to Suppress Tangible Evidence [Dkt. No. 24].
At the motions hearing, defense counsel also argued that Officer Ewing's use of force - drawing his gun and pushing Mr. Wills down to crash into the police car and end his flight - escalated the detention from a Terry stop into an unlawful arrest. Because the Court finds the evidence and statements at issue to have been unlawfully obtained in any event, the Court need not determine whether this use of force converted a legitimate Terry stop into an unlawful arrest or instead merely represented a "legitimate[ ] escalat[ion]" in response to attempted flight. See United States v. White,
The circumstances presented in United States v. Leo are strikingly similar to those presented here. In that case, there was little doubt that, once the defendant was lawfully stopped, officers were permitted to pat down the backpack to search for weapons under Terry. See United States v. Leo,
The D.C. Circuit has expressed significant doubt as to whether the inevitable discovery doctrine may ever be applied to "primary evidence," as opposed to mere "derivative evidence." See United States v. $639,558.00 in U.S. Currency,
The Court notes that the federal circuit courts are divided as to whether the inevitable discovery doctrine requires a showing that police were actively pursuing an alternative method of investigation at the time the constitutional violation occurred, and the D.C. Circuit has yet to weigh in on this debate. See 45 Geo. L.J. Ann. Rev. Crim. Pro. 267 n.675 (2016).
The Court notes that it does not have the full benefit of knowing precisely what Officer Gendelman did and said at this point. It appears that Officer Gendelman turned off the recording function of his body-worn camera when he began to speak with two witnesses. It does not appear that he ever reactivated his body-worn camera, despite being present at the scene and engaging with Mr. Wills, witnesses, and evidence for at least fifteen minutes after turning off his body-worn camera.
The Court notes that the government has failed to provide any evidence of when, if ever, Mr. Wills was eventually Mirandized by the police. Despite body-worn camera footage that spans more than twenty minutes from the start of the encounter, it does not appear that any of the officers who interacted with Mr. Wills at the scene ever gave him Miranda warnings.
At the same time, the totality of the circumstances do not indicate the kind of extreme coercion which might render Mr. Wills' statement an involuntary confession elicited in violation of the Fifth Amendment Due Process Clause. See, e.g., Colorado v. Connelly,
The government argues, and the Court agrees, that the objective circumstances should not be reviewed with the bias of hindsight, in light of the fact that, "as Officer Gendelman asked his question, officers instantaneously found the gun." See Opp'n at 17. Thus, the Court has based its analysis on the objective factual circumstances as they would have appeared to a reasonable officer at the time Officer Gendelman asked the question at issue.