United States v. Johnson
United States v. Johnson
Opinion of the Court
I. INTRODUCTION
In the early morning hours of May 6, 2018, Officers Dennis Sfoglia and Nizam Ahmed of the Washington, D.C. Metropolitan Police Department ("MPD") arrived at the scene of a suspected drive-by shooting to find Defendant Harshia Johnson lying in the street. By the time the officers had gotten out of their squad car, Johnson was on his feet and walking away, but the officers noticed that he was leaning slightly to his left and that his left arm was tucked against his side. Fearing that Johnson may have been shot, the officers' initial response was perfectly sensible. They approached Johnson and instructed him to come toward them, which he did. They asked Johnson if he had been shot; he responded that he had not. They looked at Johnson's hands and arms; they saw no signs of a gunshot wound. Nonetheless, within seconds, instead of asking Johnson additional questions to ensure he was uninjured, one of the officers proceeded to grab and pull on Johnson's left arm-the arm that was pressed against his side. Eventually, the officer succeeded in moving Johnson's arm outward and away from his body, which exposed Johnson's inner jacket pocket, as well as the gun held inside of it.
For purposes of the Fourth Amendment, this was a search-and one that, as the Court will explain below, lacked objective justification. Indeed, the government has failed to demonstrate that the search was a reasonable exercise of the officers' community caretaking functions, or that it was based on a reasonable suspicion that Johnson was armed and dangerous. The Court therefore concludes that the search was unconstitutional and grants Johnson's motion to suppress all physical evidence subsequently obtained.
II. FACTUAL BACKGROUND
At around 1:10 am on May 6, Officer Sfoglia and Officer Ahmed were in their squad car when Officer Ahmed received a notification on his phone from an installed Shot Spotter application, designed to alert MPD officers when the sounds of gunshots have been detected in their assigned areas of patrol. See Rough Transcript of Nov. 18, 2018 Hearing ("Hearing Tr.") at 6, 8, 11. This particular alert indicated that three distinct shots had been heard on the 3700 block of Horner Place SE-just a few blocks away from Officer Sfoglia and Officer Ahmed's location at the time. Id. at 14-15. Then as the officers began to drive to Horner Place, they received a radio call from their district dispatcher reiterating that three gunshots had been detected on Horner's 3700 block. Id. at 14-17; Audio of Radio Call, Gov't's Ex. 5. The dispatcher added that, based on the Shot Spotter application's sensors, the source of the *94gunshots appeared to be moving at twenty-eight miles per hour, indicating that this had been a drive-by. Hearing Tr. at 17; Audio of Radio Call, Gov't's Ex. 5.
Officer Sfoglia and Officer Ahmed arrived at the scene within a few minutes, and as they pulled up, they claim to have seen a man-later identified as Harshia Johnson-lying in the street and "in the process of getting up." Hearing Tr. at 18; see also id. at 50. For purposes of Johnson's motion to suppress, this is the only factual issue in dispute: Johnson denies ever being on the ground. See id. at 52-54, 63. Both Officer Sfoglia's and Officer Ahmed's body camera footage from this time is available, but it is of no use on this issue because, as both officers were still seated in the squad car at the time, the footage shows only the car's interior.
The body camera footage does, however, make clear that, by the time the officers exited the car, Johnson was on his feet and walking away from them across the street. See Ahmed Body-Worn Camera Footage ("Ahmed BWC") at 2:00-2:04, Gov't's Ex. 2. Johnson was, according to Officer Ahmed's later testimony, leaning slightly to his left and holding his left forearm at roughly a ninety degree-angle, with his left elbow tucked closely to his side. See Hearing Tr. at 20. As Officer Ahmed put it, "it appeared as if [Johnson] was shot in the arm." Id. At this time, the body camera footage shows that Officer Sfoglia began to follow Johnson across the street and said, "Yo, come here for a second." Ahmed BWC at 2:00-2:04. Officer Ahmed, who was walking behind Officer Sfoglia, then briefly shined his flashlight on Johnson, and as he did so, Officer Sfoglia said, "Hey"-raising the volume of his voice a touch. Id. at 2:04. As Johnson began to turn around, Officer Sfoglia repeated, "Come here." Id. at 2:05. Johnson responded by taking a few steps toward the officers, during which time Officer Sfoglia said, "Let me see your hands," following up a second later with, "Did you get shot?" Id. at 2:08.
Johnson responded, "No, I didn't," and he and Officer Sfoglia continued to walk toward one another. Id. at 2:08-2:10. By the time Officer Sfoglia replied, "You didn't?," he and Johnson were just a few feet apart. Sfoglia Body-Worn Camera Footage ("Sfoglia BWC") at 00:15, Gov't's Ex. 1. Officer Ahmed joined them within a couple of seconds and stood to Officer Sfoglia's left. See Ahmed BWC at 2:14. In compliance with Officer Sfoglia's earlier instruction, Johnson had stretched out his right hand so that the officers could examine it. Sfoglia BWC at 00:16. He was wearing an unzipped, black leather jacket over a black t-shirt. Officer Sfoglia briefly put his left hand on the outside of Johnson's jacket at the right bicep, looked at the right hand, then pointed to Johnson's left arm, and repeated, "Let me see your hand." Id. at 00:16-00:20. Johnson responded by turning his body so that Officer Sfoglia could see his left side. Id. at 00:20-22. His left arm remained in the same position the officers had noticed when they got out of their car-elbow tucked into his side and forearm at roughly a ninety-degree angle. Ahmed BWC at 2:15-2:16. With his hand unclenched and resting several inches in front of his abdomen, it was as if Johnson was wearing an invisible sling. Id.
As soon as Johnson showed his left arm, Officer Sfoglia began pulling on Johnson's jacket sleeve at the wrist while Officer Ahmed shined his flashlight on Johnson's left side. Id. at 2:16. Johnson resisted this pulling and kept his arm in the same position, after which Officer Sfoglia asked, "You can't put the hand down?" Id. at 2:17. Officer Sfoglia continued to tug at Johnson's sleeve, and eventually, Johnson's arm moved outward. Id. at 2:17-2:19. When *95Johnson's arm shifted, the area on his left side between his jacket and shirt became visible to Officer Ahmed. His flashlight still on, Officer Ahmed's eyes "locked onto the handle of [a] gun" held in Johnson's inner jacket pocket. Hearing Tr. at 24; Ahmed BWC at 2:18-2:19. As this happened, the pulling on Johnson's sleeve also caused his torso to rotate to his left, exposing the inside of Johnson's left side to Officer Sfoglia. Ahmed BWC at 2:18-2:20. Noticing Officer Ahmed's reaction, Officer Sfoglia looked down, saw the gun himself, and yelled "gun" four times. Id. The two officers then together took Johnson to the ground and arrested him. Id. at 2:25-2:26.
After the officers handcuffed Johnson, they recovered the gun that they had spotted-a loaded Glock 19, 9mm semi-automatic pistol. See Indictment at 1, ECF No. 1. Johnson also later underwent a search incident to his arrest, during which a pill bottle containing multiple clear bags of cocaine was found on his person, in addition to around 370 dollars in cash. Ultimately, Johnson was indicted on three counts: (1) unlawful possession of a firearm and ammunition by a person convicted of a felony, in violation of
Presently before the Court is Johnson's motion to suppress all physical evidence seized during his encounter with the police on May 6. As Johnson sees it, Officer Sfoglia and Officer Ahmed violated his Fourth Amendment rights when they stopped and searched him on the street without a warrant. Johnson therefore contends that the gun that was recovered must be excluded, because it constitutes evidence obtained as a direct result of the officer's illegal actions. And because the gun is what provided the officers probable cause to arrest him, Johnson argues that the arrest was illegal too, meaning the evidence recovered during his arrest-the pill bottle, drug evidence, and cash-must be excluded as "fruit of the poisonous tree."
III. ANALYSIS
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. Violations of this guarantee are generally subject to the exclusionary rule, which requires courts to suppress evidence obtained through unconstitutional means. E.g., United States v. Weaver ,
"Typically, '[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged *96search or seizure.' " United States v. Jones ,
As already noted, Johnson's motion here focuses entirely on the events preceding his arrest. He contends that Officer Sfoglia and Officer Ahmed violated his Fourth Amendment rights when they seized him on the street and searched him without a warrant. But he argues that the exclusionary rule requires that the Court suppress all of the physical evidence that the police obtained from him. The gun, Johnson asserts, is primary evidence obtained directly from the illegal conduct, while the remaining evidence-the pill bottle, the drug evidence, and the cash-constitute fruit of the poisonous tree.
In response, the government argues that two different exceptions justify the officers' conduct during their initial interaction with Johnson. The first is the infrequently invoked "community caretaking exception," which has been described, in general terms, as "a catchall" that can be used to justify police action taken pursuant to the "wide range of responsibilities that ... officers must discharge aside from their criminal enforcement activities." Matalon v. Hynnes ,
But before invoking either of these exceptions, the government argues that the officers' actions do not trigger Fourth Amendment scrutiny in the first place. No search or seizure occurred in this case, the government contends, because Johnson consented to his encounter with the officers up until the point that the gun was discovered in plain view, at which time probable cause arose to lawfully arrest him.
As explained below, none of the government's arguments are persuasive. The officers' conduct constituted both a seizure and a search for Fourth Amendment purposes. And though the seizure may have been reasonable under the community caretaking exception, neither of the government's invoked exceptions render the search reasonable. The Court therefore grants Johnson's motion and suppresses the physical evidence that the government obtained as a result of the search.
*97A. Whether a Seizure and/or Search Occurred
"The threshold inquiry in any Fourth Amendment analysis is whether the government's conduct is included in the Amendment's coverage, [or] in other words, whether it amounts to a 'search' [or seizure] for constitutional purposes." Parker v. District of Columbia ,
According to the government, a seizure did not take place here because Johnson's freedom of movement was not restrained. Rather, as the government sees it, "the officers engaged in a consensual encounter with [Johnson] when they approached him on a public street and asked him whether he was okay." See Gov't's Resp. to Def.'s Mot. to Suppress ("Gov't Resp.") at 5-6, ECF No. 15. And the government argues that a search did not occur because, once that consensual interaction had begun, Johnson "voluntarily allowed the officers to examine his arm, at which point they saw in plain sight the firearm in [his] pocket," providing them probable cause to arrest him. Id. at 6; see also, e.g., Payton v. New York ,
No part of the government's argument is supported by the evidence, though. The Court has little trouble concluding that both a seizure and a search occurred. As alluded to above, whether the initial stop constituted a seizure hinges on whether the officers' actions amounted to a "show of authority," United States v. Gross ,
These factors overwhelmingly weigh in favor of the conclusion that Johnson was seized when the officers initially stopped him. The officers arrived on the scene in a marked, police squad car, and they were wearing uniforms-Officer Sfoglia's jacket even had "POLICE" emblazoned on it in large, bold lettering. E.g. , Ahmed BWC at 2:09; Hearing Tr. 40-41. When Officer Sfoglia spoke to Johnson, his sentences were phrased, not as questions, but as commands. Indeed, in a stern tone of voice, Officer Sfoglia twice told Johnson to "Come here," then twice instructed Johnson to "Let me see your hand(s)." Ahmed BWC at 2:00-2:20. It was also late at night, and, after Johnson did not at first respond to the officers, Officer Ahmed shined his flashlight at him. Ahmed BWC
*98at 2:04. Johnson was arguably seized as soon as the flashlight was shone on him, as the Court thinks it unlikely that any reasonable person would have felt free to ignore the officers at that time. Cf. United States v. Jones ,
The officers' search of Johnson then quickly followed. As an initial matter, contrary to the government's assertions, the gun was never in plain view. As the body camera footage and Officer Ahmed's testimony both make clear, the gun became visible only after Officer Sfoglia had grabbed Johnson's left arm and lifted it up. The footage shows that Officer Sfoglia pulled on Johnson's jacket sleeve at the wrist until the arm moved outward, exposing the area between his jacket and t-shirt, including his inner jacket pocket, which held the gun. Ahmed BWC at 2:16-2:20. And Officer Ahmed testified that "[i]t was after the left arm was raised up, [when] ... Johnson's jacket flared open, [that] [he] observed the handle of the firearm." Hearing Tr. at 49.
The question, then, is whether pulling at Johnson's sleeve and moving his arm constituted a search within the meaning of the Fourth Amendment-or, in other words, whether doing so infringed on "an expectation of privacy that society is prepared to consider reasonable." Miller ,
*99B. The Reasonableness of the Seizure and Search
With the Court having concluded that a warrantless seizure and search occurred here, the burden is on the government to demonstrate that its conduct was reasonable for purposes of the Fourth Amendment. The critical issue, of course, is the legality of the search, as it was the search that led directly to the officers' discovery of the gun. The constitutionality of the seizure is not irrelevant to the analysis, however. Under the fruit of the poisonous tree doctrine mentioned above, evidence obtained following an illegal seizure generally must be excluded unless the government shows (1) that the evidence would have been discovered inevitably, (2) that the evidence was discovered from a separate, independent source, or (3) that the discovery of the evidence was so attenuated from the illegal seizure that the taint of the unlawful police conduct was dissipated. See, e.g., Strieff ,
1. Community Caretaking
The government first argues that the stop and search were constitutional based on the community caretaking doctrine. As the government sees it, the officers' actions were reasonable because, under the circumstances, they had a duty to make sure Johnson was not shot and in shock, or otherwise injured.
The community caretaking doctrine has its origins in the Supreme Court's decision in Cady v. Dombrowski ,
Nearly five decades after Cady , the scope of the "community caretaking exception" remains a subject of debate. Some courts, for example, have limited the exception's application to cases involving cars, and the D.C. Circuit left that question open just a few years ago. See Corrigan v. District of Columbia ,
Based on the circumstances here, the Court thinks it was a reasonable exercise of the officers' community caretaking functions to briefly stop Johnson in a manner that amounted to a seizure under the Fourth Amendment. According to Officer Ahmed's testimony-which the Court credits-the officers arrived on the scene of a suspected drive-by shooting to find Johnson lying in the street. Hearing Tr. at 18. And after Johnson got to his feet, the officers observed him holding his left arm in a manner suggesting that he may have been shot. Hearing Tr. at 20. Under these circumstances, it was reasonable for the officers to approach Johnson and briefly question him to ensure that he was not injured, even if Johnson himself did not want to talk. It likely would have been irresponsible, actually, for the officers to ignore the situation, as they had an obligation to protect the safety of members of the community. See, e.g., United States v. Coccia ,
As the Court explained above, however, the government must also justify the officers' search of Johnson, and the search is a different matter. Given the evidence presented, the Court is unable to conclude that it was reasonable for the officers to start grabbing Johnson's clothing and moving his arm within seconds. Everything the officers had learned during the initial stop had indicated that Johnson was not shot: Johnson had said that he was not shot, and there were no signs of a gunshot wound anywhere on the outside of his clothing. In other words, based on the brief seizure, the officers' concern for Johnson's safety should have begun to diminish-not dissipate entirely, but diminish.
Also, assuming Johnson had been shot or that he was injured in some other way, it is the government's burden to show that moving Johnson's arm was a reasonable exercise of the officers' community caretaking responsibilities. See Jones ,
In fact, the Court is aware of no case that supports such a broad conception of the community caretaking exception. Even the courts that have applied the exception more liberally have stressed that it is not a blank check. Rather, it requires *101courts to "balance the governmental interest in the police officer's exercise of his or her 'community caretaking function' and the individual's interest in being free from arbitrary government interference." United States v. King ,
In light of these general principles, courts do not typically contemplate searches of individuals being justified by the community caretaking exception; the cases speak primarily of seizures. See, e.g., Vargas ,
The government also relies on the Eight Circuit's decision in Harris , but that case involved an unconscious person as well. The individual at issue there was found asleep in the middle of the day at a bus station with a gun "sliding" out of his pants pocket. Harris ,
2. Terry
The government next argues that the moving of Johnson's arm constituted a legally permissible Terry search. "Under Terry and its progeny, a police officer may perform a protective frisk [or pat-down search] if he has reason to believe, based on 'specific and articulable facts ... taken together with rational inferences from those facts,' that 'he is dealing with an armed and dangerous individual.' "
The historical facts that the government cites here are (1) that Johnson was present in a high-crime area, where (2) a suspected shooting had recently taken place; (3) that Johnson "initially attempted to flee from the officers" when they first arrived; and (4) that Johnson was holding his arm to his side, as the Court has already described. Gov't Resp. at 12; see also Hearing Tr. at 67. Beginning with the first fact, that all of this occurred in a high crime neighborhood is undoubtedly relevant, but "an individual's presence in such an area, 'standing alone, is not [even] enough to support reasonable, particularized suspicion that the person is committing a crime' "-which is obviously a less demanding standard than showing that the person is armed and dangerous. Brown ,
To that end, the government contends that Johnson initially tried to flee when the officers arrived. But the Court finds that argument unsupported by the evidence. Although the beginning of the body camera footage shows Johnson walking away, he was not moving very fast, and he promptly turned around to acknowledge the officers after the flashlight was shone on him. In his testimony, Officer Ahmed did not characterize this as an attempt to flee, and the Court would not characterize it as an attempt to flee either. Without more, the Court is left with this: "Merely walking away, even quickly ... upon the arrival of [a] uniformed police officer" does not "provide articulable suspicion of criminal wrongdoing." United States v. Jones ,
The positioning of Johnson's arm is admittedly a more challenging subject. It was certainly awkward-looking, and with the benefit of hindsight, one can see how it may have had the effect of concealing Johnson's inside pocket. But though "a police officer is not required to possess the clarity of vision that arises only in hindsight," United States v. Pontoo ,
Here, the Court is presented with little to no evidence that a reasonable officer would have, based on training and expertise, viewed this position as suggestive of someone concealing a weapon. Instead, all indications are that a reasonable officer would have thought Johnson was injured. Officer Ahmed, in fact, repeatedly testified that he and Officer Sfoglia did not interpret the position of Johnson's arm to be indicative of concealment. See, e.g. , Hearing Tr. at 21, 23, 27. Rather, prior to searching him, they never thought he was "anybody other than a victim of a crime."Id. at 27. As the Court has said, the officers' subjective motives are not dispositive, but in this case, Officer Ahmed's testimony is essentially the only evidence the Court has of what an objectively reasonable police officer would have thought.
That Johnson's arm position had an apparent, wholly innocent explanation distinguishes this case from others where reasonable suspicion was present based on possible concealment. Johnson did not, for example, respond to the sight of the officers by needlessly "pressing the front of his body" against a vehicle. United States v. Dortch ,
To be sure, a reasonable suspicion determination "need not rule out the possibility of innocent conduct" entirely. Brown ,
C. Application of the Exclusionary Rule
Having concluded that a Fourth Amendment violation occurred here, the Court's only remaining task is to determine what evidence is subject to the exclusionary rule. As the Court said earlier, the rule applies to both the primary evidence obtained directly from the illegal search and the evidence subsequently obtained that is "derivative of [the] illegality." Strieff ,
IV. CONCLUSION
For the foregoing reasons, Johnson's Motion to Suppress Physical Evidence is GRANTED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
The Court held an evidentiary hearing on Johnson's motion on November 15, 2018, during which both parties' submitted exhibits and Officer Ahmed provided sworn testimony.
To the extent that the government contends that Johnson consented to be searched, that argument fails too. It is true that consent can constitute an exception to the Fourth Amendment's warrant requirement under certain circumstances. See United States v. Delaney ,
This is not to say that "officers must select the least intrusive means of fulfilling community caretaking responsibilities." Lockhart-Bembery ,
As Vauss predates Cady , it never used the phrase "community caretaking." The Court assumes, without deciding, that it is properly viewed as a community caretaking case, but the Court also notes that Vauss 's reasoning is arguably more consistent with the application of what is now usually referred to as the "emergency aid doctrine," which the Supreme Court has framed as a subset of the exigent circumstances exception, see Brigham City, Utah v. Stuart ,
Though it does not rely as heavily on it, the government also cites the Tenth Circuit's decision in Garner. But importantly, the issues presented to the court there did not involve any alleged search of the defendant. See
As the Court mentioned earlier, Terry also permits a police officer to briefly stop and detain a person for investigative purposes if the officer has a reasonable suspicion that "criminal activity may be afoot." Dickerson ,
See also Black ,
Reference
- Full Case Name
- United States v. Harshia JOHNSON
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- 4 cases
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- Published