United States v. Robinson

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 1:20-cr-00214 (CJN)

JAMES ROBINSON,

Defendant.

MEMORANDUM OPINION

James Robinson is charged with unlawful possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1). See generally Indictment, ECF No. 5. He moves to suppress

evidence of his arrest, officers’ subsequent identifications of him, and the firearm and ammunition

at issue in this case. See generally Def.’s Omnibus Mot. to Suppress (“Def.’s Mot.”), ECF No.

24. Because Robinson has not established a violation of his Fourth Amendment rights or that the

officers’ identifications were impermissibly suggestive, his Motion is denied.

I. Background

On September 29, 2020, Officer Kelly of the Metropolitan Police Department’s Narcotics

and Special Investigations Division Gun Recovery Unit (“GRU”) observed an Instagram Live

video broadcasted by user “bigcuddy_bigbob_cp13.” Compl. SOMF at 1 (“SOMF”), ECF No. 1-

1; Tr. 18:13–14, ECF No. 38. The individual depicted in the video was “a black male wearing a

white crew neck sweatshirt, dreadlock style hair, designer sunglasses, a necklace, and blue jeans

with a red stripe,” with a black magazine floorplate tucked into the front of his jeans. SOMF at 1.

Officer Kelly recognized the individual as James Robinson, who was known to frequent the

Congress Heights neighborhood. Id. Officer Kelly notified other GRU officers and gave a

1 “lookout” for an individual in “long dreads, . . . a white sweatshirt, [and] Cartier glasses.” Tr.

21:11–12.

The GRU officers responded to Congress Heights in two unmarked cars, Tr. 18:21–19:4,

but did not see Robinson and eventually left, id. 21:15–19. A short time later, Officer Kelly saw

a second Instagram Live video again depicting Robinson in the Congress Heights area. SOMF at

1. The officers returned to the neighborhood and saw Robinson sitting in front of the apartment

building located at 3409 13th Place Southeast. Id. Three officers (Kelly, Jacobs, and Davies)

exited the first GRU car and approached Robinson, who fled into the apartment building while

holding his waistband. Id. 22:13–23:12. Those officers ran in after him and heard Robinson run

to the top floor. Tr. 30:2–7. Officer Davies—the first officer into the building—heard a door slam

followed by a loud metal noise, id., and upon climbing the stairs, noticed the door handle to

Apartment 302 lying on the floor, id. The officers knocked on the door to that apartment and

announced themselves. Gov’t Ex. 11.

At approximately the same time, two other officers (Hiller and Joseph) went around the

other side of the apartment building to watch the back exit. Tr. 23:14–21. Officer Hiller observed

Robinson open a window on the top floor, lean out the window, and throw a gun from it. Id.

24:23–24. As captured by body-worn camera footage introduced by the government, Officer

Hiller told the other officers “he just threw it out the back, I see it, 1-8001” and that he could

identify the man as “the man that ran in[to the apartment building].” Gov’t Exs. 10, 13. Officer

Joseph testified that although he did not see Robinson throw the gun, he did observe an airborne

object fall from a top floor window and into the bushes behind the building. Tr. 23:23–24:6. As

Officer Joseph walked toward the bushes to investigate, he looked at the apartment building and

1 “1-800” is a term used by GRU officers to indicate the presence of a firearm. Tr. 34:17–19.

2 observed Robinson standing in the window from which the object had fallen. Id. 24:11–16.

Officer Joseph testified that, at that time, Robinson closed the window and retreated into the

apartment. Id.

The three officers inside the building heard Officer Hiller’s observations over the radio and

asked him to indicate in which apartment he had observed Robinson. Tr. 39:15–24. After Officer

Hiller stated that it was the “top right” apartment, Officer Jacobs broke down the door to Apartment

302. Gov’t Exs. 11, 12; Tr. 46:17–47:3. The officers arrested Robinson and temporarily detained

two other individuals, including Juan Thurston (the leaseholder). Gov’t Ex. 12; Tr. 202:7–9. A

few minutes later, Officer Hiller entered the apartment, identified the window in which he had

observed Robinson, and identified Robinson (who by that time was already in handcuffs) as the

person who had thrown the firearm out the window. Gov’t Ex. 9; Tr. 47:13–23. Officer Joseph

also entered the apartment and identified Robinson (who was still in handcuffs) as the person he

had seen in the window. Gov’t Ex. 9; Tr. 44:12–45:1.

A loaded Glock 23 .40 caliber semiautomatic handgun and extended magazine were

recovered from the bushes. Tr. 28:14–22. Robinson was indicted on one count of unlawful

possession of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). See

generally Indictment. He is detained pending trial. Detention Order at 3–4, ECF No. 3.

II. Robinson’s Motion to Suppress

Robinson moves to suppress his arrest, “any subsequent physical evidence,” and Officers

Hiller and Joseph’s in-court and out-of-court identifications. See generally Def.’s Mot.

A. Fourth Amendment Challenge

The Fourth Amendment guarantees the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

3 The prohibition against unreasonable seizures requires that all seizures, even ones involving “only

a brief detention short of traditional arrest,” be founded upon reasonable, objective justification.

United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). Robinson argues that his arrest and

the officers’ entry into Apartment 302 were unlawful because they were not based on probable

cause and because the officers did not have a warrant. Def.’s Mot. at 5–8.

1. The Arrest

A Fourth Amendment seizure occurs when an officer, “by means of physical force or show

of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19

n.16 (1968). To determine whether a citizen’s liberty has been restrained, the Court asks whether

“a reasonable man, innocent of any crime,” would have believed himself free to leave. United

States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007) (per curiam). If a person is seized by show

of authority (instead of by physical force), the seizure does not occur until the subject has submitted

to the assertion of authority. California v. Hodari D., 499 U.S. 621, 626 (1991).

Whether a seizure is reasonable depends on the type of seizure at issue. Officers need

probable cause to make a warrantless arrest, see Maryland v. Pringle, 540 U.S. 366, 370 (2003),

but are permitted to “‘briefly detain a citizen’ where they ‘ha[ve] a reasonable, articulable

suspicion that criminal activity may be afoot,’” United States v. Delaney, 955 F.3d 1077, 1081

(D.C. Cir. 2020) (quoting United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001)).

But not all interactions between police officers and citizens amount to a “seizure,” and

these evidentiary requirements are triggered only when a Fourth Amendment seizure has occurred.

United States v. Gross, 784 F.3d 784, 786 (D.C. Cir. 2015). In deciding whether a seizure has

occurred, the Court of Appeals has looked to the factors listed by Justice Stewart in United States

v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality opinion): “the threatening presence of several

4 officers, the display of a weapon by an officer, some physical touching of the person of the citizen,

or the use of language or tone of voice indicating that compliance with the officer’s request might

be compelled.” The Court also considers “the demeanor of the approaching officer,” Gomez v.

Turner, 672 F.2d 134, 144 (D.C. Cir. 1982), “whether the officer . . . wore a uniform,” and “the

time and place of the encounter,” United States v. Wood, 981 F.2d 536, 539 (D.C. Cir. 1992).

A seizure does not occur simply because police officers approach an individual. For

example, in Goddard, the Court of Appeals concluded that a seizure had not occurred even where

four officers “jumped out” of their car and approached four men “with guns and handcuffs showing

and wearing identifiable MPD jackets and badges.” 491 F.3d at 461. This holding turned, in part,

on the fact that the officers did not impede the defendant’s movement. Id.

Here, Robinson was not subjected to a seizure within the meaning of the Fourth

Amendment when Officers Kelly, Jacobs, and Davies initially approached him. Those officers

drove up to the apartment building, exited the car, and started walking toward the front door. At

that point, they had said nothing to Robinson; had given no indication that he was not free to leave;

had not used physical force; and had not engaged in any “show of authority” sufficient to constitute

a seizure (and Robinson’s flight clearly did not submit to that authority). Robinson’s argument

that the police seized him at that time, and without probable cause, lacks merit.

A seizure did occur later, when the officers broke down the door to the apartment, ordered

its occupants (including Robinson) to put their hands up and get on the ground, and Robinson

submitted to those commands. Robinson argues that even then the officers did not have probable

cause. Def.’s Suppl. at 8–10, ECF No. 40. Although the probable-cause standard cannot be

precisely defined or quantified, see Pringle, 540 U.S. at 371, “[t]he substance of all the definitions

of probable cause is a reasonable ground for belief of guilt,” id. (quoting Brinegar v. United States,

5 338 U.S. 160, 175 (1949)). The test is an objective one: “probable cause exists if the totality of

the circumstances, as viewed by a reasonable and prudent police officer in light of his training and

experience, would lead that police officer to believe that a criminal offense has been or is being

committed.” United States v. Green, 670 F.2d 1148, 1152 (D.C. Cir. 1981). “Probable cause may

be based on the ‘collective knowledge of the police’” and does not require one officer to

individually have firsthand knowledge of all the facts amounting the probable cause. See United

States v. Burnett, 827 F.3d 1108, 1114 (D.C. Cir. 2016) (quoting United States v. Hawkins, 595

F.2d 751, 752 n.2 (D.C. Cir. 1978)).

Several factors may serve as indicators of criminal activity (although, in isolation, may not

be sufficient to establish probable cause). “Headlong” or “unprovoked flight” can suggest

wrongdoing but does not, on its own, give rise to probable cause. United States v. Stubblefield,

820 F.3d 445, 451 (D.C. Cir. 2016) (citing Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000)).

And the “type and intensity of past crime in the area” may similarly point to the reasonableness of

an officer’s belief that a crime has been or is being committed. See United States v. Gorham, 317

F. Supp. 3d 459, 464 (D.D.C. 2018); Wardlow, 528 U.S. at 124 (officers need not “ignore the

relevant characteristics of a location in determining whether the circumstances are sufficiently

suspicious to warrant further investigation”).

The evidence overwhelmingly establishes that the officers had probable cause to seize

Robinson inside the apartment. Officer Kelly had already viewed a live video in which Robinson

appeared to be carrying a firearm magazine in the waistband of his jeans. Tr. 18:13–14. Robinson

was then located in an area known to the officers as a “violent neighborhood,” id. 17:23; upon

seeing officers pull up to the apartment building, Robinson turned and fled inside while clutching

his waistband, id. 23:4–6; he ignored officers’ commands to stop and ran into a top-floor

6 apartment, Gov’t Ex. 11; he threw a gun from the window of that apartment, Tr. 23:23–24:16;

Gov’t Ex. 9; and only after Officer Joseph confirmed that the tossed object was a firearm did the

officers enter Apartment 302 and arrest Robinson, Gov’t Ex. 9. Taken together, these facts clearly

established probable cause that Robinson was engaged in criminal activity at the time of his arrest.

2. Apartment Entry

Robinson also challenges the warrantless entry into Apartment 302. Def.’s Mot. at 8. But

to do so, Robinson must have a cognizable Fourth Amendment right at stake. See United States v.

McCarson, 527 F.3d 170, 172–73 (D.C. Cir. 2008). He admittedly does not reside in that

apartment, but relies on Minnesota v. Carter, 525 U.S. 83, 90 (1998), in which the Supreme Court

recognized that social guests may have standing to challenge an entry into another’s home. The

Carter opinion stated that “an overnight guest in a home may claim the protection of the Fourth

Amendment, but one who is merely present with the consent of the householder may not.” Id.

Courts in this District have read Carter in light of Justice Kennedy’s concurring opinion, which

stated that a social guest with a “meaningful connection to [the host’s property]” has an expectation

of privacy in the host’s home. Id. at 101.

Robinson argues that he had a Fourth Amendment privacy interest in the apartment because

he was an invited guest and is Thurston’s close friend. Def.’s Mot. at 8. But his relationship with

Thurston and his connection to Apartment 302 are far more attenuated than the connections that

this Court has found sufficient to establish a Fourth Amendment privacy interest in a third party’s

home. See United States v. Dubose, No. CRIM.A. 05-0372 JDB, 2006 WL 1030154, at *7 (D.D.C.

Apr. 19, 2006), on reconsideration in part, No. CRIM.A.05-0372(JDB), 2006 WL 1876999

(D.D.C. July 5, 2006) (finding legitimate expectation of privacy in backyard when owner was

defendant’s mother, defendant regularly visited, and left personal items there believing that they

7 wouldn’t be disturbed); United States v. Leake, No. 19-CR-194 (KBJ), 2020 WL 3489523, at *7

& n.16 (D.D.C. June 26, 2020) (recognizing that invited guest can sometimes assert common-law

property interests of host but noting that the issue is unresolved and suggesting that overnight

presence may be important); see also Collins v. Virginia, 138 S. Ct. 1663, 1168 & n.1 (2018)

(suggesting defendant might have Fourth Amendment privacy interest in girlfriend’s house where

defendant stayed “a few nights per week”). At the suppression hearing, Thurston testified that

Robinson was a “very good friend” he had known for many years, Tr. 203:24–204:1, that Robinson

was a frequent visitor, id., and that Robinson was an invited guest on September 29, id. 205:2–21.

But Robinson has no familial or romantic connection to Thurston, id. 208:25–209:6, kept no

belongings at the apartment, id., was not an overnight guest on the day of his arrest, id. 205:16,

and did not have keys, id. at 204:25–205:1. Thurston’s testimony also failed to establish that

Robinson was an invited guest during the afternoon of September 29. Thurston described

Robinson as arriving at his apartment at ten or eleven in the morning, id. 211:7–10, then leaving

when he decided he did not want to play the game Thurston was playing, id. 211:21–22. Thurston

later saw Robinson outside, id. 212:9–10, and “here or there” around the apartment complex after

that, id. 212:18–24. And although Thurston testified that Robinson was supposed to return a set

of borrowed car keys about thirty minutes prior to the arrest, id. 213:12–214:8, there is no

indication that Robinson was a guest in the apartment at any time that afternoon. In light of these

facts, Robinson cannot demonstrate that his connection to the apartment was sufficient to establish

a Fourth Amendment privacy right that would enable him to challenge the officers’ entry.

But even if he did, exigent circumstances justified the warrantless entry. “When the totality

of circumstances shows an emergency—such as imminent harm to others, a threat to the officer

himself, destruction of evidence, or escape from the home—the police may act without waiting.”

8 Lange v. California, 594 U.S. __ (2021). Although the Fourth Amendment generally requires law

enforcement to secure a warrant before effecting a search or seizure inside a home, see Kentucky

v. King, 563 U.S. 452, 459 (2011), “the ultimate touchstone of the Fourth Amendment is

‘reasonableness,’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoting Flippo v. West

Virginia, 528 U.S. 11, 13 (1999) (per curiam)), and the warrant requirement is subject to certain

reasonable exceptions, id. One such exception permits officers to enter a premises without a

warrant to prevent imminent destruction of evidence. King, 563 U.S. at 460. That is certainly the

case here: officers observed Robinson flee into the building while clutching at his waistband,

where he had been seen carrying a firearm in two Instagram live videos that day. Officers then

observed Robinson attempt to discard the firearm by throwing it out the window and into the

bushes behind the apartment building. The officers saw the gun fall from the apartment and into

the bushes; that certainly provided clear reason to believe that Robinson was actively attempting

to destroy evidence of criminal activity. Thus, even if Robinson had a Fourth Amendment right

in Apartment 302, the officers’ entry was justified by exigent circumstances.

3. The Evidence

Robinson’s Fourth Amendment arguments therefore fail. But even if they had merit, the

firearm (and ammunition) recovered in this case was not derived from the arrest or the entry and

would not be suppressed.

As relevant here, evidence derived from an illegal search or seizure is inadmissible, subject

to three exceptions: (1) if it was discovered from a source independent of the illegal activity, Nix

v. Williams, 467 U.S. 431, 443 (1984), (2) its discovery was inevitable, id. at 447–48, or (3) its

discovery is attenuated from the illegality, Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016). Robinson

argues that the gun should be suppressed because the officers’ initial approach (in front of the

9 apartment building) was unconstitutional and based on a “hunch” arising out of the Instagram Live

video. Def.’s Mot. at 7–8. But there is no general suspicion requirement for officers to approach

citizens in public, see Goddard, 491 F.3d at 461, and as discussed above, the officers’ conduct did

not violate the Fourth Amendment.

Moreover, the firearm is not a fruit of Robinson’s arrest. California v. Hodari D., 499 U.S.

621, 629 (1991), is instructive. In that case, a suspect tossed crack cocaine while fleeing from

police and before his arrest. Id. at 622–23. The Court held that the cocaine was not the fruit of a

seizure because it was abandoned while the defendant was running and before he was seized. Id.

at 628–29. In a similar vein, the Court of Appeals has recognized that a defendant forfeits any

reasonable expectation of privacy in abandoned property, United States v. Lewis, 921 F.2d 1294,

1302 (D.C. Cir. 1990), and that the police may seize such abandoned property without a warrant

unless there is a “direct nexus” to an illegal seizure, see United States v. Wood, 981 F.2d 536, 541

(D.C. Cir. 1992).

Here, Robinson abandoned the firearm when he tossed it out the window and there is no

“direct nexus” to any Fourth Amendment violation. In fact, the evidence conclusively establishes

that the gun was thrown to the ground before the officers entered Apartment 302. The recovery of

the firearm was not the fruit of Robinson’s arrest and should not be suppressed.

B. Due Process Challenge

Robinson’s final argument is a due process challenge to the identifications made by

Officers Hiller and Joseph. Def.’s Mot. at 12–16. He argues that the identifications are unreliable

and were made in an unreasonably suggestive environment. Id.

When examining whether an identification complied with due process, the Court asks

whether the identification procedures were “impermissibly suggestive,” United States v. Rattler,

10 475 F.3d 408, 411 (D.C. Cir. 2007) (quoting United States v. Washington, 12 F.3d 1128, 1134

(D.C. Cir. 1994)), and if so, whether, under the totality of the circumstances, the identification was

“sufficiently reliable to preclude ‘a very substantial likelihood of irreparable misidentification,’”

id. (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)). In determining the reliability of an

identification, the Court considers

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Id. (quoting Manson, 432 U.S. at 114). And “[i]mmediate on-the-scene showup identifications,

while recognized as inherently suggestive, have long been upheld by this court.” United States v.

Singleton, 702 F.2d 1159, 1165–66 (D.C. Cir. 1983) (discussing identification in context of

evidence supporting guilty verdict).

Robinson contends that Officers Hiller and Joseph’s identifications were impermissibly

suggestive because the officers had seen him previously in the Instagram Live video and because

he was detained, handcuffed, and surrounded by uniformed officers at the time of the

identifications. Def.’s Mot. at 12–13. He also argues that Officer Joseph’s identification was

made in an unduly suggestive environment because Officer Joseph overheard Officer Hiller’s

identification. Id. It is true that Officer Joseph probably overheard Officer Hiller’s identification

(before Officer Joseph made his own). Gov’t Ex. 9 (identifications at approximately 17:48:47 and

17:48:51, respectively). But the evidence establishes that the identifications were reliable. Both

officers, while looking for an individual matching Officer Kelly’s lookout, had an opportunity to

witness Robinson outside the apartment building and in the window. They contemporaneously

11 described their observations over the radio. Gov’t Exs. 9, 10. Each officer made his identification

without any prompting and without expressing any doubt. Gov’t Ex. 9.

Robinson also argues that a previous adverse credibility determination against Officer

Hiller is evidence of the unreliability of the identifications, Def.’s Mot. at 14–15, but a witness’s

credibility is a matter for the jury, see Bush v. United States, 375 F.2d 602, 604 (D.C. Cir. 1967)

(leaving the veracity of a witness to be determined by the jury). And Robinson has not provided

any evidence indicating that the prior credibility issue impacts the reliability of the identifications

in this case. See Def.’s Mot. at 15–16. There is nothing to suggest that these identifications were

more suggestive than any show-up identifications that courts routinely deem admissible; Robinson

has certainly not provided enough evidence to render the officers’ identifications unreliable. The

identifications therefore survive Robinson’s due process challenge.

III. Conclusion

For the reasons discussed above, the Court denies Robinson’s Motion to Suppress in full.

An Order will be issued contemporaneously with this Memorandum Opinion.

DATE: July 1, 2021 CARL J. NICHOLS United States District Judge