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.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CF-839
JERMAL E. JOHNSON, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF2-15610-16)
(Hon. Danya A. Dayson, Trial Judge)
(Argued February 7, 2019 Decided July 15, 2021)
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 24.
* Judge Fisher was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on August 23, 2020. 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
1 A jury convicted appellant of (1) unlawful possession of a firearm, committed after a prior felony conviction, D.C. Code § 22-4503(a)(1) (2012 Repl.); (2) carrying a pistol without a license, D.C. Code § 22-4504(a) (2012 Repl.); (3) possession of an unregistered firearm, D.C. Code § 7-2502.01(a) (2018 Repl.); (4) unlawful possession of ammunition, D.C. Code § 7-2506.01(3) (2018 Repl.); and (5) unlawful entry, D.C. Code § 22-3302 (2012 Repl.). 2 On appeal, appellant does not challenge his unlawful entry conviction. See supra note 1. 3
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. on September 23, 2016,
Metropolitan Police Department (“MPD”) Officers Anthony Brathwaite and Patrick
Bacon were on patrol in a marked patrol car in a “high-crime area” that included the
Edgewood apartment complex and the surrounding area in the District of
Columbia’s Northeast quadrant. Specifically, Officer Brathwaite testified it was a
known high-crime area. The officers observed a white BMW, which they believed
was leaving the apartment complex, fail to come to a complete stop behind the stop
line at a stop sign.3 As a result, the officers conducted a traffic stop of the BMW at
the 300 block of Channing Street, Northeast. The officers approached the BMW on
either side of the vehicle and observed the driver and three passengers inside. An
individual, later identified as appellant, occupied the front passenger seat. Officer
Brathwaite noticed the driver was “shaky . . . [h]is hands were shaking. And even
the way that he was talking, it gave off a nervous vibe.” Officer Brathwaite did not
know the driver, appellant, or any of the other occupants.
3 Under 18 D.C.M.R. § 2208.3, “every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line.” 4
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
4 Officer Brathwaite explained the officers conducted a pat-down of all the occupants. He could not recall if he patted down the driver. At this point, the officers had not conducted a search of the vehicle or found any contraband. 5
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 screen door of a nearby house on the 400
block of Bryant Street, Northeast. Officer Bacon followed appellant into the house
and apprehended him in the kitchen.
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
5 Not until after the officers took appellant into custody did Officer Brathwaite see the firearm, but Officer Jackson announced it over the police radio. He also testified the object he heard fall was on appellant’s person and ended up on the street. 6
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
6 Appellant denied placing his hands in the air. 7
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 flight and
7 Although none of the officers testified they saw appellant discard the gun, appellant does not challenge in his brief the trial court’s finding that he discarded the gun. Accordingly, for purpose of this appeal, we need not question the trial court’s finding, which is reasonable based on the evidence presented. Furthermore, to the extent that the United States is arguing that appellant may not rely on the trial court’s finding because he took a different position in the trial court, the United States fails to cite authority supporting a conclusion that a party is foreclosed from relying on appeal on factual findings made by the trial court that are contrary to the party’s factual position in the trial court. We see no reason to preclude such reliance, cf., e.g., Banks v. United States, 516 A.2d 524, 530-31 (D.C. 1986) (although defendant testified at trial that he had not sold heroin, jury found otherwise, and defendant was permitted to rely on that finding to argue for leniency at sentencing on ground that he had sold heroin to support addiction). 8 On March 25, 2021, the Supreme Court issued a decision in Torres v. Madrid, 141 S.Ct. 989 (2021), that rejects some of our reasoning in Henson, holding instead that the application of physical force to the body of a person with intent to restrain is a Fourth Amendment seizure even if the person does not submit and is not 8
decision to abandon the loaded gun, appellant lacked standing to seek exclusion of
the loaded gun on Fourth Amendment grounds. 9 55 A.3d 859, 866 (D.C. 2012)
(“There is no need for an individual to resort to flight to protect his or her rights.”).
The jury ultimately convicted appellant on all counts. Appellant appeals the partial
denial of his suppression motion.
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
subdued. This ruling, however, does not impact our analysis of the reasonable suspicion issue. 9 We discuss this standing argument and why it fails infra at Part III. 9
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
10 Subsequent to oral argument, the Court of Appeals of Maryland reversed the appellate decision. See Thornton v. State, 214 A.3d 34, 57 (Md. 2019) (reversing appellate court’s holding and concluding that the driver’s flight was a direct result of police officer’s unlawful pat-down and therefore the trial court erred in denying the motion to dismiss). 10
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 analysis. See Utah v. Strieff, 136 S.Ct. 2056
(2016); Brown v. Illinois, 422 U.S. 590, 603-04 (1975). In Brown, the Supreme
Court announced that we should consider “in determining whether the primary taint
of illegal police conduct has been purged: (1) the temporal proximity of the illegal
seizure and the discovery of the contraband; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the official misconduct.” Id.;
accord Strieff, 136 S.Ct. at 2061-62. “The relative importance of each of these 11
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. 12
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
11 Although, as the government points out, appellant did not explicitly testify that the pat-down prompted his flight, we find that this reasonable inference is implicit in the trial court’s ruling. 13
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). Here, appellant’s flight,
on foot, did not constitute a crime or a serious risk to the public safety when
compared to the cases cited by the government. 12
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. at
1060. While waiting, they saw the defendant (who was not the murder suspect) exit
12 The government also argues that appellant’s subsequent unlawful entry purged any taint from the earlier seizure. We are not convinced. Although appellant committed a new crime by entering a home only after Officer Jackson observed the gun fall, this crime does not purge any taint from the earlier seizure or its fruits. Unlike the cases to which the government cites, recovering the gun was not “incident to” the unlawful entry. See Bailey v. United States, 691 F.2d 1009, 1015 (11th Cir. 1982). Here, because appellant’s unauthorized entry occurred after he discarded the gun, it cannot logically constitute an intervening circumstance sufficient to purge the taint of the unlawful pat-down. 14
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 15
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.
While “we cannot condone or encourage flight from an officer every time an
individual believes that the officer’s conduct is unlawful[,]” Henson, 55 A.3d at
869-70, appellant’s flight moments after the pat-down was not unlawful, as the
United States twice conceded at oral argument. However, we have recognized that
if an appellant believes an officer’s conduct was illegal, “he should [] test[] its
legality through the courts, rather than engage in self-help.” See Henson, 55 A.3d at
869-70; see also California v. Hodari D., 499 U.S. 621, 627 (1991) (“[S]ince the
addressee has no ready means of identifying the deficient [police orders] it almost
invariably is the responsible course to comply.”). Nevertheless, we find appellant’s 16
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 Fourth Amendment violation. The third
factor of the attenuation doctrine favors exclusion when the police misconduct is
most in need of deterrence – that is, when it is “purposeful or flagrant.” Strieff, 136
S. Ct. at 2063. Although there must be something more than just a lack of reasonable
suspicion to find flagrancy or purposefulness, see Strieff, 136 S. Ct. at 2064, we need
not find that Officer Brathwaite acted in an outright threatening or coercive manner
to make a finding of purposeful or flagrant misconduct. See United States v. Burke,
605 F.Supp.2d 688, 703 (D. Md. 2009) (“Though this behavior does not seem
outrageous or patently offensive, a finding of ‘purposeful and flagrant’ misconduct
is not limited to situations where the police act in an outright threatening or coercive
manner similar to what occurred in Brown.”) (quotations omitted). Rather, such
misconduct is generally found where: (1) the impropriety of the official’s
misconduct was obvious or the official knew, at the time, that his conduct was likely 17
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
Fourth Amendment rights when he lacked reasonable articulable suspicion to
conduct a pat-down. In fact, the government does not challenge the trial court’s
finding that the officer conducted an unlawful pat-down. 13 Although Officer
Brathwaite was justified in asking the passengers to exit the vehicle, he immediately
sought to pat-down appellant before the officers executed a search of the car or
discovered any contraband. According to Officer Brathwaite and appellant, the
officer immediately began to pat-down appellant after he exited the vehicle. Such a
pat-down is only constitutionally supported upon a suspicion that appellant “might
be armed and dangerous”; no such articulable suspicion was present here. The
officers conducted a valid traffic stop but did not offer any specific evidence that led
the officers to suspect appellant, a passenger, was engaged in criminal activity. See
13 Instead, the government asks this court to affirm the trial court’s ruling based on its finding that appellant’s abandonment of the firearm supports the denial of his motion to suppress. However, appellant’s actions do not constitute abandonment for Fourth Amendment purposes because they were the result of an unlawful pat-down. See, e.g., Brown, supra, 97 A.3d at 97 n.5. 18
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 ‘articulable,’ 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 Braithwaite testified appellant appeared
14 There is nothing in the record to indicate that Officer Brathwaite did not know the well settled law around the reasonable articulable suspicion standard. See e.g. Robinson, 76 A.3d at 331; Singleton v. United States, 998 A.2d at 300-01. He further testified that he had been an MPD officer for over three years and had “been on many traffic stops.” 19
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
15 “The officer’s testimony in this case is that the defendant exited the car. The officer asked for permission to pat him down. The defendant raised his arms, which he took to be implicit consent, and then patted him down. . . . But what is very clear is that [his arms] are not raised in any manner.” 20
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 through computer
databases that include information about warrant status—weighs in favor of
suppression.”).
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 21
the air”). However, a generic concern for safety, without anything more, does not
permit an officer to violate the Fourth Amendment by conducting an investigatory
search. See id. at n.6 (“[I]f an officer lacking reasonable suspicion wishes to address
his safety concerns by detaining a suspect for questioning about guns and drugs, he
may attempt to do so on a consensual basis.”). Officer Brathwaite’s pat-down falls
within that category of purposeful misconduct that is “most in need of deterrence.”
Strieff, 136 S. Ct. at 2063. The third factor of the attenuation doctrine thus fails to
dispel the taint of illegality from Officer Brathwaite’s conduct.
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 22
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 Fourth Amendment violation which constitutes
the poisonous tree, the law imposes no separate standing requirement regarding the
evidence which constitutes the fruit of that poisonous tree.” Jones v. United States,
168 A.3d 703, 722 (D.C. 2017) (citations omitted) (emphasis added); see also 6
Wayne R. LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
§ 11.4 (5th ed. 2016) (“If the defendant [has] standing with respect to the poisonous
tree, that alone suffices.”).
Furthermore, we hold that appellant did not voluntarily abandon the gun in
the Fourth Amendment context. “In order to be effective, abandonment must be
voluntary. It is considered involuntary if it results from a violation of the Fourth
Amendment . . . [P]roperty is considered to have been involuntarily abandoned if the
defendant discards it as a consequence of illegal police conduct.” Brown v. United
States, 97 A.3d 92, 97 n.5 (D.C. 2014) (quoting United States v. Flynn, 309 F.3d
736, 738 (10th Cir. 2002). Because the gun was “fruit of the poisonous tree,” and
because appellant’s discarding of the gun resulted from the unlawful pat-down,
appellant had standing to challenge its admission. 23
IV. Conclusion
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 24
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).