Deandre J. Posey v. United States
Deandre J. Posey v. United States
Opinion
Following a hearing on his motion to suppress tangible evidence and a stipulated bench trial, appellant Deandre J. Posey was convicted of unlawful possession of a firearm and related offenses. On appeal, Mr. Posey seeks reversal of his convictions on the ground that the trial court erroneously denied his motion to suppress a handgun that was found on his person. He contends that the police lacked reasonable articulable suspicion to conduct a Terry 1 stop, and therefore, his Fourth Amendment rights were violated. For the reasons stated below, we agree with Mr. Posey and reverse his convictions.
I.
At the suppression hearing, the government presented the testimony of Metropolitan Police Department Officer Michael Kasco. Officer Kasco testified that he and his partner, Officer Ron Orgel, received a radio run ("lookout") for a robbery at gunpoint in the unit block of M Street N.W. According to Officer Kasco, this first lookout contained a description of the suspect, "a black male dressed in all black." While responding to the scene, officers received a second lookout reporting that "it was a group of black males, and the group was last seen heading towards North Capitol" Street.
As Officers Kasco and Orgel arrived on the unit block of M Street, they saw "Sergeant Ritchie[ ] was already on the scene with the complainant." The officers also observed a group of five or more black males mostly dressed in black jackets, on the same block as the complainant and their sergeant, walking towards North Capitol Street. Officer Kasco testified that "[i]t was a group that possibly may have been involved with the robbery" but admitted that the officers did not "know."
Aware that the patrol was in a predominately African-American neighborhood where groups "typically ... just scatter" from police, Officer Kasco drove to within fifteen feet of the group that included Mr. Posey. The group briefly stopped, turned, and looked at the marked police cruiser. At the time they approached the group, nothing Mr. Posey did drew any particular attention to him. Officer Kasco testified that he did not observe Mr. Posey exchange anything with other members of the group, make any motions toward or to conceal his waistband, or do anything illegal. Officer Kasco's attention turned from the group to Mr. Posey only after Mr. Posey "took off running" and "Officer Orgel immediately jumped out of the" patrol car in pursuit. 2
Shortly thereafter Mr. Posey was apprehended and handcuffed by Officer Orgel because the "lookout was for an armed robbery with a gun." Officer Kasco then came up, conducted a Terry pat down for safety, and found a handgun in Mr. Posey's front waistband. Mr. Posey did not resist and was not identified as the armed robber during a subsequent show-up identification with the victim. According to Officer Kasco, the entire encounter - from the time officers drove up to the scene to the time the show-up identification was conducted - took place within "[f]ive to ten minutes" of the second lookout.
In denying Mr. Posey's suppression motion, the trial court admitted that it was a close question. First, the trial court recognized that the description of the suspect was "quite vague" and there was a valid concern "about the ability of the police to act on such a generalized description." It determined, however, that the particular circumstances of this case were sufficient to overcome such vagueness because Mr. Posey was located "a block away, within five to ten minutes after the crime had been reported." The trial court then found that Mr. Posey was the only member of his group to flee when officers arrived "in their marked squad car in full uniform," without any "demonstration that it was their intent to approach that group of individuals." Based on these facts, the trial court made the "difficult" determination that there was reasonable articulable suspicion for the police to stop Mr. Posey on suspicion of robbery.
Following the suppression hearing, Mr. Posey entered into a stipulation agreement admitting to the facts related to the handgun found on his person during the stop. As a result of the stipulation, Mr. Posey was found guilty of four offenses. The trial court suspended his sentence pending this appeal. 3
II.
"When reviewing the denial of a motion to suppress, we must defer to the [trial] court's findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling below."
Jackson v. United States
,
III.
It is firmly established that, pursuant to
Terry
, "[o]fficers may conduct an investigatory stop if they have a reasonable suspicion based on specific and articulable facts that criminal activity may be occurring."
Wade v. United States
,
In considering whether reasonable articulable suspicion existed, we "must consider the totality of the circumstances, as viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training."
Henson v. United States
,
The lookouts Officers Kasco and Orgel received described the robbery suspect as a black male dressed in all black, traveling in a group of black males in the direction of North Capitol Street from the unit block of M Street. We have repeatedly emphasized "the difficulty we have supporting a finding of particularized reasonable suspicion when a lookout description is limited to a person's race and a generic clothing color description, especially when more than one suspect is indicated or there are other persons in the vicinity."
Armstrong
,
We of course recognize that diligent investigating officers arriving at this scene may have taken a legitimate interest in Mr. Posey's group based on the two lookouts. But we must emphasize that developing such an interest is only the beginning of their work.
See
Terry
, 392 U.S. at 5-7, 27-28,
Just as Mr. Posey's presence in a group on the same block as the robbery some five to ten minutes after the crime was
reported
does not exclude him from suspicion, he correctly notes that his presence amongst such a group does not necessarily point the finger in his direction. The trial court found that Mr. Posey was discovered by the officers near the scene of the crime five to ten minutes after the report of the robbery but heard no testimony and made no findings about when the crime actually occurred.
See
Bennett v. United States
,
The government suggests that Mr. Posey's presence in a high crime neighborhood coupled with his flight from uniformed officers is enough to overcome the aforementioned deficiencies in the evidence before us. We harbor no doubt that more is required for officers to develop reasonable articulable suspicion of criminal activity justifying a stop.
While we cannot and do not say that encounters with police in a high crime neighborhood are irrelevant per se, we can accord no real significance to the nature of the neighborhood in this case. The government's reliance on
Illinois v. Wardlow
,
Although the trial court appears to have found that Mr. Posey's subsequent flight from the group of men with whom he had been walking was not provoked by the officers' approach, unprovoked flight "is not necessarily indicative of [any particular] wrongdoing."
Wardlow
,
We find no indication in the record before us that Mr. Posey's unprovoked flight added anything to Officer Kasco's minimal knowledge of Mr. Posey's relationship to the robbery then under investigation. Nothing about Mr. Posey's conduct prior to his flight or during Officer Orgel's pursuit supports a contrary finding.
Cf.
Miles
,
Under the totality of these circumstances, the officers approached the group and acted on a hunch short of the individualized and particularized knowledge needed to stop Mr. Posey on suspicion of robbery. We hold simply that a nondescript individual distinguishing himself from an equally nondescript crowd by running away from officers unprovoked does not, without more, provide a reasonable basis for suspecting that individual of being involved in criminal activity and subjecting him or her to an intrusive stop and police search. 5
IV.
Because we conclude that the officers lacked the particularized suspicion necessary to subject Mr. Posey to a Terry stop, the trial court erred in denying his motion to suppress. Without the firearm evidence discovered as a result of the illegal stop, Mr. Posey could not have been found guilty of the various weapons offenses for which he was convicted. Because the stipulated facts leading to Mr. Posey's conviction by the trial court were conditioned on the admission into evidence of the gun illegally seized from him, his convictions are reversed. 6
So ordered .
Terry v. Ohio
,
Officer Orgel did not testify at the suppression hearing.
Mr. Posey was found guilty of carrying a pistol without a license outside a home or place of business by a convicted felon, in violation of
We acknowledge that the discrepancy between Mr. Posey's jeans and the description of the suspect's all black clothing is relevant to reasonable suspicion. Ordinarily, "[t]he fact that a part of the description does not fit is ... a negative factor."
Brown v. United States
,
We observe that the trial court did not specifically address Officer Kasco's testimony that he saw his sergeant with the complainant prior to spotting Mr. Posey's group
walking
up the same block, knew the block was in a predominately black neighborhood, and understood that groups in that area often "scatter" when approached by police. However, viewing these facts and the other uncontested testimony in the light most favorable to the government does nothing to undermine and supports our analysis that the officers in this case did not have enough information to form a reasonable articulable suspicion under the totality of the circumstances.
See
Pridgen
,
Mr. Posey also asks us to consider whether additional distinguishing information regarding the robbery suspect's physical description that the 911 operator allegedly possessed but did not broadcast to officers should have been considered under the collective knowledge doctrine. The government argues that the 911 call was not introduced at the suppression hearing and contests the proposition that a civilian 911 operator can be considered part of, and contribute to, the collective knowledge of law enforcement. While these arguments raise questions relevant to our inquiry, we need not address them here as we have already found error in the trial court's denial of the motion to suppress and reversed Mr. Posey's convictions.
See
Armstrong
,
Reference
- Full Case Name
- Deandre J. POSEY, Appellant, v. UNITED STATES, Appellee.
- Cited By
- 11 cases
- Status
- Published