Anthony Hooks v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CF-1382

ANTHONY D. HOOKS, APPELLANT

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF2-6952-17)

(Hon. Danya A. Dayson, Trial Judge)

(Argued February 14, 2019 Decided May 30, 2019)

Christine Pembroke for appellant.

Bianca Forde, Assistant United States Attorney, for appellee. Jessie K. Liu,

United States Attorney, and Elizabeth Trosman, John P. Mannarino, Gauri Gopal,

Puja Bhatia, and Maryam L. Adeyola, Assistant United States Attorneys, were on

the brief for appellee.

Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges.

2

EASTERLY, Associate Judge: Anthony Hooks appeals from his convictions,

following a jury trial, for felon in possession of a weapon and related offenses.1

He argues that the trial court should have granted his motion to suppress the

contraband found on his person because the police violated his rights under the

Fourth Amendment when they seized and searched him. We agree and reverse.

I. Facts and Procedural History

On a Sunday afternoon in April 2017, Mr. Hooks attended a barbeque

outside the home of his friend, Latisha Toney, on Congress Street Southeast. As

the setting is relevant to the legal issues presented, we describe it in some detail.

Ms. Toney’s residence is the end unit of a set of townhouses. From the street, her

neighbors’ houses are to the left, and a grassy yard surrounded by a metal fence is

to the right. Whereas all her neighbors’ front doors face Congress Street, Ms.

Toney’s front door faces the enclosed yard. To reach Ms. Toney’s home and the

yard from the street, a visitor must climb six steps from the sidewalk and walk

1

Mr. Hooks was convicted of four crimes in all: felon in possession of a

firearm, D.C. Code § 22-4503(a)(1), (b)(1) (2013 Supp.); possession of an

unauthorized firearm, D.C. Code § 7-2502.01(a) (2015 Supp.); possession of a

large capacity ammunition feeding device, D.C. Code § 7-2506.01(b) (2013

Supp.); and unlawful possession of ammunition, D.C. Code § 7-2506.01(a)(3)

(2013 Supp.).

3

down a concrete path. The path is lined on either side by fencing that opens up on

the left to give access to another set of steps up to Ms. Toney’s front door, and on

the right to give access to the yard. 2

Having eaten some hot dogs and hamburgers, Mr. Hooks was sitting in a

folding lawn chair on this concrete path. The other guests, a handful of adults and

at least one child, were in the enclosed yard. Around 5:00 p.m., four police

officers in the Narcotics Special Investigation Division drove past in an unmarked

police car. According to the undisputed testimony of Ms. Toney, the police car

stopped a few houses past her yard and then reversed back towards her home.

Officer Dominique Tyson and three other members of his team, Officers Travis

Collins, Brock Vigil, and Sean Hodges, all armed and in uniform, exited the

vehicle.3 With Officer Tyson in the lead, the four proceeded up the steps from the

sidewalk onto the concrete pathway between Ms. Toney’s house and the enclosed

yard, and headed straight for Mr. Hooks in his lawn chair.

2

The concrete path continues to the rear of the row of townhouses. There is

no evidence in the record indicating that it reconnects with a public street.

3

Officer Tyson testified at the suppression hearing that his team was on its

way from one “buy and bust” operation to another when they “[s]aw a large group

of males hanging out. Well, a group of individuals hanging out. Appeared to be --

some were holding cups, which was consistent with drinking alcohol, so we were

just going to make contact with them.”

4

Officer Tyson instructed Mr. Hooks to “get up.”4 At the suppression

hearing, Officer Tyson acknowledged he intended these two words as a command:

Q. [T]here was no question that he was going to get

up?

A. Yes, he was going to have to move.

Q. He was going to have to move?

A. Yes.

Q. Okay. And, if he hadn't moved, you would have

snatched him; right? You would have helped him

move?

A. He would have got help, yes.

In response to Officer Tyson’s instruction, Mr. Hooks immediately stood up.

During this encounter, Officer Tyson observed a bag of marijuana sticking out of

Mr. Hooks’s coat pocket.5 Based on Mr. Hooks’s admission that he was carrying a

4

Officer Tyson later testified that he issued his command because he was

concerned he would not be able to get past Mr. Hooks without bumping into him.

He disavowed any interest in Mr. Hooks, but disagreed with defense counsel’s

proposition that Mr. Hooks was not doing anything wrong. Officer Tyson

explained his understanding that “In D.C., you can’t block a passage. Passage

meaning any walkway that the public has immediate access to because you can’t

block a walkway because someone ha[s] to walk around you[.]”

5

The record is not entirely clear as to when Officer Tyson observed the

drugs, but the United States has not argued in this court that he saw them before

Mr. Hooks complied. We therefore assume for purposes of our decision that

Officer Tyson did not see the bag until after Mr. Hooks stood up.

5

little more than two ounces of marijuana, 6 the police handcuffed Mr. Hooks, and in

a search incident to arrest recovered a handgun.

Prior to trial, Mr. Hooks moved to suppress all tangible items seized by the

police as fruits of an illegal seizure and search. After a hearing, the trial court

denied the motion. The court agreed that the government had proved that either (1)

Mr. Hooks had not been seized when the police commanded him to stand up and

he complied, or (2) pursuant to Terry v. Ohio, 392 U.S. 1 (1968), the police had

reasonable articulable suspicion to briefly stop Mr. Hooks because, by virtue of

where he was sitting in his lawn chair, he was violating D.C. Code § 22-1307

(2013 Supp.) by “obstructing [a] walkway.”

II. Standard of Review

The government introduces its discussion of our standard of review with a

pair of statements: “[t]his Court’s review of a trial court’s denial of a motion to

suppress is limited,” and “[t]his Court’s role in reviewing the denial of a

6

It is “lawful . . . for any person 21 years of age or older to . . . [p]ossess,

use, purchase, or transport marijuana weighing 2 ounces or less.” D.C. Code § 48-

904.01(a)(1)(A) (2015 Supp.).

6

suppression motion is to ensure that the motions judge had a substantial basis for

concluding that no constitutional violation occurred.” 7 We pause to clarify, lest

these statements evince a misunderstanding that our analysis of constitutional

questions under the Fourth Amendment is somehow constricted. It is not.

Although we accept the trial court’s findings of fact unless they are clearly

erroneous and we review the facts and reasonable inferences therefrom in the light

most favorable to the prevailing party, our review of the “trial court’s legal

conclusions [is] de novo,” United States v. Lewis, 147 A.3d 236, 239 (D.C. 2016)

(en banc), as we have reaffirmed in countless decisions of this court, 8 including the

cases to which the government cites.9

7

The government cites Hampleton v. United States, 10 A.3d 137, 142 (D.C.

2010), and Womack v. United States, 673 A.2d 603, 607 (D.C. 1996), for the first

proposition, and Howard v. United States, 929 A.2d 839, 844–45 (D.C. 2007), and

Alston v. United States, 518 A.2d 439, 440 n.2 (D.C. 1986), for the second. The

language “a substantial basis for concluding that no constitutional violation

occurred” is actually a quotation from Howard, 929 A.2d at 844–45 (quoting

Thompson v. United States, 745 A.2d 308, 312 (D.C. 2000)).

8

See, e.g., Posey v. United States, 201 A.3d 1198, 1201 (D.C. 2019); Miles

v. United States, 181 A.3d 633, 637 (D.C. 2018); Pridgen v. United States, 134

A.3d 297, 302 (D.C. 2016); Robinson v. United States, 76 A.3d 329, 335 (D.C.

2013).

9

Hampleton, 10 A.3d at 143 (acknowledging that our review of the legal

question is de novo); Howard, 929 A.2d at 844 (same); Womack, 673 A.2d at 607

(same). The “substantial basis” language from Howard, 929 A.2d at 844–45, does

not point in a different direction. Rather, that language appears to come from this

court’s decision in Lawrence v. United States, 566 A.2d 57 (D.C. 1989), where we

made clear that it pertains to our review of the trial court’s fact-finding:

(continued…)

7

III. Fourth Amendment Analysis

The Fourth Amendment protects individuals against all “unreasonable

searches and seizures.” U.S. CONST. amend. IV. “This inestimable right of

personal security belongs as much to the citizen on the streets of our cities as to the

homeowner closeted in his study to dispose of his secret affairs.” Terry, 392 U.S.

at 8–9. It extends to individuals attending springtime barbeques in every quadrant

of the District of Columbia. “For, as [the Supreme] Court has always recognized,

[n]o right is held more sacred, or is more carefully guarded, by the common law[]

than the right of every individual to the possession and control of his own person,

free from all restraint or interference of others, unless by clear and unquestionable

authority of law.” Id. at 9 (internal quotation marks omitted).

(…continued)

We give deference to the trial judge’s findings of fact and must accept his

resolution of conflicting testimony. Moreover, the judge’s factual findings

will not be disturbed unless they are clearly erroneous, i.e., without

substantial support in the record. Nevertheless, the ultimate determination

as to whether a seizure occurred remains a question of law.

Id. at 60 (internal citations omitted) (emphasis added).

8

A. Whether Mr. Hooks Was Seized Within the Meaning of the Fourth

Amendment

The preliminary question before us is whether the “restraint or interference”

by the police in this case amounts to a seizure implicating Fourth Amendment

protections. Terry, 392 U.S. at 9. As the Supreme Court explained in Terry,

seizures are not limited to actual arrests, id. at 16–19,10 but neither do they extend

to “all personal intercourse between policemen and citizens.” Id. at 19 n.16;

accord Towles v. United States, 115 A.3d 1222, 1228 (D.C. 2015) (acknowledging

that “[a] seizure does not occur simply because a law enforcement officer

approaches a person on the street and asks him or her questions” (quoting Jackson

v. United States, 805 A.2d 979, 984 (D.C. 2002)). The dispositive question “is

whether, taking into account all of the circumstances surrounding the encounter,

the police conduct would have communicated to a reasonable person that he was

not at liberty to ignore the police presence and go about his business.”11 Florida v.

10

See also California v. Hodari D., 499 U.S. 621, 625–26 (1991)

(reaffirming that a seizure is not limited to an arrest and occurs when an “officer,

by means of physical force or show of authority, has in some way restrained the

liberty of a citizen,” so long as the individual yields to the exercise of force or

show of authority).

11

Another formulation of the test asks whether a reasonable person would

have felt “free to leave,” Michigan v. Chesternut, 486 U.S. 567, 573 (1988);

Jackson, 805 A.2d at 983–84, but the protections of the Fourth Amendment extend

to situations where a citizen has no desire to go elsewhere and instead simply

(continued…)

9

Bostick, 501 U.S. 429, 437 (1991) (quoting Chesternut, 486 U.S. at 569); id. at 436

(“[T]he appropriate inquiry is whether a reasonable person would feel free to

decline the officers’ requests or otherwise terminate the encounter.”); Towles, 115

A.3d at 1228; Sharp v. United States, 132 A.3d 161, 169 (D.C. 2016) (holding

defendant was seized “in the absence of any sign that a reasonable person in these

circumstances would believe the officer was giving him a genuine choice to

decline the request”). Thus, we ask whether a reasonable person in Mr. Hooks’s

position would have felt free to ignore the police officers who converged on him in

his lawn chair, disregard their command to him to “get up,” and go about his

business of sitting in his lawn chair.

We conclude a reasonable person would not have felt such freedom after a

team of four armed, uniformed officers drove past him and then reversed to get

back to his location; all four officers emerged from the car; all four officers crossed

the sidewalk and walked up the concrete walkway, bounded by fencing on either

side, directly to where he was sitting in his lawn chair; and the lead officer, without

any explanation, commanded him to “get up.”

(…continued)

wishes to decline an encounter with the police. See, e.g., Florida v. Royer, 460

U.S. 491, 493–94, 504–05 (1983) (plurality opinion) (passenger in an airport);

Sharp, 132 A.3d at 164, 169 (individual sitting in a parked car).

10

We are guided in this determination by United States v. Mendenhall, 446

U.S. 544 (1980) (plurality op.), where the Supreme Court provided “[e]xamples of

circumstances that might indicate a seizure,” among them “the threatening

presence of several officers, . . . or the use of language or tone of voice indicating

that compliance with the officer’s request might be compelled.” Id. at 554.12 As

noted above, here we have both.

We are also guided by our precedent, which requires a “realistic” assessment

of the totality of the circumstances. Jackson, 805 A.2d at 988. Such realism

requires the acknowledgement that “an encounter in which a visibly armed police

officer in full uniform . . . emerges without warning from a police cruiser to

interrupt a person going about his private business is not an encounter between

equals. . . . The officer, however well-intentioned and polite, initiates the meeting

with an undeniable air of authority . . . .” (Albert) Jones, 154 A.3d at 595–96

(footnote omitted).13 “The circumstances are more intimidating . . . if more than

12

We do not mean to suggest that the Mendenhall factors are an exhaustive

list; an individual may be seized even if none of them are present. E.g., (Albert)

Jones v. United States, 154 A.3d 591, 595–98 (D.C. 2017) (holding that appellant

was seized even though the Mendenhall factors “were largely absent or of lesser

import in th[e] case”).

13

(Albert) Jones is not at odds with Ware v. United States, 672 A.2d 557

(D.C. 1996), cited by the government, where we observed in a footnote that “an

(continued…)

11

one officer is present,” as was the case here. 14 Id. at 596. In concluding there was

a seizure in (Albert) Jones, we factored in the circumstance that the defendant was

confronted by the police in a confined space, thereby “substantially reduc[ing] the

ease with which [he] could have walked on or otherwise avoided the encounter.”

Id. at 597. Here, Mr. Hooks’s ability to avoid an encounter with the police was

similarly compromised; he had four armed police officers occupying the concrete

path in front of him, a lawn chair behind him, and metal fencing to either side. In

further comparison with (Albert) Jones, where we relied in part on the seizing

officer’s request to view an object Mr. Jones was holding, id. at 593-98, the lead

officer did not merely ask Mr. Hooks to allow access to an object; the officer

issued a command to Mr. Hooks to get up—a command that reasonably could have

(…continued)

officer’s mere approach” does not without more constitute a seizure. Id. at 561

n.8. Ware relied on Kelly v. United States, 580 A.2d 1282, 1285 (D.C. 1990), in

which we explained that “it is not enough for [a defendant] to assert that police are

inherently figures of authority, and that their presence . . . without more, convert[s]

the encounter into a seizure.” 580 A.2d at 1285–86 (internal quotation marks

omitted) (first emphasis added); see also Sharp, 132 A.3d at 167 (explaining that

“Kelly is a pure questioning case”), but did not reject the premise that law

enforcement officers wield significant power in society by virtue of their

possession of a badge and a gun.

14

The fact that the officers were armed is “not a negligible factor bearing on

whether a reasonable person in [Mr. Hooks’s] position would feel free to leave,”

even though they never drew their weapons. See (Albert) Jones, 154 A.3d at 595

(citing In re J.F., 19 A.3d 304, 309 (D.C. 2011) (identifying “the visibility of the

officers’ guns in their waistbands” as a factor in demonstrating that J.F. was

seized)).

12

been perceived under the circumstances as a directive to submit his person to

police control. Cf. Sharp, 132 A.3d at 169 (a reasonable person would not have

understood the police officer’s request to the driver to “step out of the vehicle” as

“giving him a genuine choice to decline the request and stay in the car” but instead

“conveyed a message that compliance with their request was required” (brackets

omitted)).

Based on our examination of the totality of the circumstances, we conclude

that Mr. Hooks was, by virtue of a show of authority, seized by the police within

the meaning of the Fourth Amendment. We are unpersuaded by the government’s

citation to cases where this court did not find a seizure; 15 these cases are

distinguishable. This court’s decision in United States v. Barnes, 496 A.2d 1040

(D.C. 1985), in particular does not compel a different conclusion. In Barnes, an

15

Brown v. United States, 983 A.2d 1023, 1025–26 (D.C. 2009) (officer

twice asking, “in a normal tone,” from “two to three feet away” if the defendant

possessed any contraband did not amount to a seizure); Lawrence, 566 A.2d at 63

(single officer’s approach of a defendant walking down the sidewalk coupled with

his question in “a calm, conversational tone of voice, [about] what [defendant] had

in his clenched hand” was not a seizure); Richardson v. United States, 520 A.2d

692, 697 (D.C. 1987) (single request to speak to defendant did not amount to

seizure; defendant was only seized after he fled, discarding drugs in his

possession); United States v. Burrell, 286 A.2d 845, 846–47 (D.C. 1972) (single

request—“[h]old it, sir, could I speak with you a second?”—coupled with a touch

to the elbow did not constitute a seizure).

13

officer who had seen the defendant on the street “approached [him] and asked him

to remove his hands from his pockets,” and then asked two “nonintimidating”

questions. Id. at 1041, 1045. We held that the defendant had not been seized

within the meaning of the Fourth Amendment because, on those facts, “nothing

happened . . . that would have warranted appellee’s reasonable belief that he was

not free to ignore the questions and walk away.” Id. at 1045. We cannot say the

same of the instant case. Not only did Barnes involve a request as opposed to a

command, the surrounding circumstances in Barnes, inter alia, the fact that the

defendant was approached by only one officer, and “there was no . . . indication

that [the officer] used a severe tone of voice,” were distinct. Id.

B. Whether the Police Had Reasonable Articulable Suspicion to Justify

Mr. Hooks’s Seizure

Consistent with the Fourth Amendment, the police may, based on “probable

cause to believe that an individual is committing or, in the case of a felony, has

committed a crime,” conduct an arrest; alternatively, based “[u]pon a lesser

showing of a reasonable suspicion supported by specific and articulable facts that

the individual is involved in criminal activity[,] . . . [police] may conduct a

correspondingly less intrusive seizure: a brief stop,” commonly referred to as a

Terry stop, “for investigatory purposes.” Robinson, 76 A.3d at 335–36 (citations

14

and internal quotation marks omitted). The government has never argued that the

police had probable cause to arrest Mr. Hooks. At trial, as on appeal, its position

was that the police had legitimate grounds to conduct a Terry stop.

Generally, when we assess whether the police conducted a valid Terry stop,

our focus is on whether the quantum of information known to the police officer

conducting the stop amounted to reasonable, articulable, particularized suspicion

that the individual was engaged in criminal activity. See, e.g., Robinson, 76 A.3d

at 331, 337–40. Here we need not engage in this sufficiency-type analysis,

however, because it is clear as a matter of law that Mr. Hooks did not commit the

crime that the government asserts the police reasonably suspected him of

committing.

The government argues that the officers could have reasonably believed that

Mr. Hooks was violating the District’s anti-“crowding, obstructing, or

incommoding” statute, D.C. Code § 22-1307.16 Based on our review of the plain

16

Pursuant to Devenpeck v. Alford, 543 U.S. 146, 153 (2004), the

government was not bound by Officer Tyson’s initial reason for diverting his team

to the enclosed yard outside Ms. Toney’s home—his apparent suspicion that her

guests were violating the District’s open container law, see note 3 supra—and it

has not sought to rely on this suspicion on appeal (likely because there was no

testimony that Mr. Hooks was holding a beverage). Thus, we do not assess

(continued…)

15

language, we disagree. D.C. Code § 22-1307(a) makes it “unlawful for a person,

alone or in concert with others”:

(1) To crowd, obstruct, or incommode:

(A) The use of any street, avenue, alley, road, highway, or

sidewalk;

(B) The entrance of any public or private building or enclosure;

(C) The use of or passage through any public building or public

conveyance; or

(D) The passage through or within any park or reservation; and

(2) To continue or resume the crowding, obstructing, or incommoding

after being instructed by a law enforcement officer to cease the

crowding, obstructing, or incommoding.

§ 22-1307(a) (emphasis added). The statute thus plainly identifies two separate

actus reus circumstance elements that must be satisfied before a person’s conduct

becomes criminal. First, a person must “crowd, obstruct, or incommode” one of

several enumerated locations, § 22-1307(a)(1)(A–D). Second, the person must

“continue or resume the crowding, obstructing, or incommoding after being

instructed by a law enforcement officer to cease.” § 22-1307(a)(2).17 Because

(…continued)

whether that rationale would have given the police authority to seize him, although

it is not obvious that it would. See D.C. Code § 25-1001(a) (2014 Supp.) (making

it unlawful to possess an open container of alcohol only in specifically defined

public spaces); Campbell v. United States, 163 A.3d 790, 795–96, 798 (D.C. 2017)

(narrowly interpreting D.C. Code § 25-1001(a)).

17

In the section-by-section analysis of the 2012 legislation, the Judiciary

Committee explained that certain revisions were being made to clarify some

(continued…)

16

there is nothing in the record to indicate that, before the police seized Mr. Hooks,

they either instructed him to cease “crowding, obstructing, or incommoding” a

protected area under the statute, or that he disregarded such an instruction, there is

simply no basis for any belief that Mr. Hooks was violating D.C. Code § 22-

1307. 18

In its brief to this court, the government argues that, even if they were

mistaken, the officers reasonably could have believed that the walkway leading to

Ms. Toney’s front door and the enclosed yard “was covered by § 22-1307” and

thus their seizure of Mr. Hooks could be upheld under the Supreme Court’s

decision in Heien v. North Carolina, 135 S. Ct. 530, 536, 539 (2014) (holding that

(…continued)

ambiguous language in the 2010 “Blocking Passage” statute, but that “[i]t is

imperative, as well, to re-affirm that any of the described activity under this

subsection [(a)(1)] is only made criminal after a law enforcement officer has

ordered dispersal and the person (or persons) resumes or continues the same

conduct.” D.C. Council, Report on Bill 19-645 at 42 (Nov. 29, 2012) (emphasis

added).

18

Because we conclude that the record is devoid of any evidence to satisfy

the second actus reus circumstance element, we do not address whether the police

could have reasonably believed Mr. Hooks had committed the first actus reus

circumstance element, i.e., crowding, incommoding, or obstructing the “entrance

of any public or private building or enclosure,” under § 22-1307(a)(1)(B), the

specific subsection relied upon by the government. Thus we avoid addressing the

question, which was not briefed, of whether § 22-1307(a)(1)(B) either was meant

to apply within private property or could legitimately do so.

17

“reasonable suspicion can rest on a mistaken understanding of the scope of a legal

prohibition” so long as that misunderstanding is “objectively reasonable”). But as

explained above, we do not resolve this case on the ground that the walkway in

question is not covered by § 22-1307. Thus, we have no cause to say whether such

an error would fall within the bounds of mistakes allowed by Heien. We are

certain, however, that the officers’ suspicion that Mr. Hooks had committed a

crime simply because he engaged in conduct described in D.C. Code § 22-

1307(a)(1)(B) is not such a mistake: It is not objectively reasonable to think that a

person has committed a crime because the police have information indicating he

violated half of a statute. As discussed at oral argument, no one would say that a

person committed the crime of carrying a pistol without a license where he does

not have a gun license, but also has no gun. Similarly here, even assuming Mr.

Hooks was blocking a walkway “covered by § 22-1307,” the police had no basis to

think that he was continuing to do so after being asked to disperse. We thus have

no difficulty concluding that the Heien exception does not apply to this case.

C. Whether Suppression Is Required

Because Mr. Hooks was seized without the requisite reasonable articulable

suspicion, the trial court should have granted his suppression motion. It has long

been the law that evidence collected in violation of the Fourth Amendment is

18

considered “fruit of the poisonous tree” and generally may not be used by the

government to prove a defendant’s guilt. Wong Sun v. United States, 371 U.S.

471, 484, 488 (1963) (explaining the exclusionary rule deters avoidable police

misconduct and “make[s] effective the fundamental constitutional guarantees of

[the] sanctity of the home and inviolability of the person”); (Prince) Jones v.

United States, 168 A.3d 703, 717 (D.C. 2017) (“[T]he exclusionary rule forbids the

use of improperly obtained evidence at trial . . . [and] is designed to safeguard

Fourth Amendment rights generally through its deterrent effect.” (internal

quotation marks, citations, and alterations omitted)).

The government argues, however, that “for the same reason[]” we should

find no Fourth Amendment violation at all under Heien, we should likewise

conclude that application of the exclusionary rule is inappropriate in this case. We

draw the opposite conclusion. For the same reason the police did not make a

reasonable mistake of law, there is a strong case for deterrence through suppression

of the contraband recovered from Mr. Hooks. The government looks to the

Supreme Court’s decision in Herring v. United States, 555 U.S. 135 (2009). But

the factual mistake that caused the Court to reconsider the cost-benefit analysis of

the exclusionary rule as applied in Herring is miles away from the legal error

19

before us.19 In Herring, the police unknowingly relied on an arrest warrant that

had been recalled months earlier but, “because of a negligent bookkeeping error”

by other police employees, was never deleted from a law enforcement database.

Id. at 137–38. While cautioning that it was not “suggest[ing] that all

recordkeeping errors by the police are immune from the exclusionary rule,” the

Court determined that the deterrent value of suppressing evidence “obtained in

objectively reasonable reliance on a subsequently recalled warrant” would be

“marginal or nonexistent.” Id. at 146. By contrast, here we have a patently

unlawful seizure by officers unaware of the letter of the law they were trying to

enforce. The circumstances of this case are precisely those we want to deter and

amply justify the application of the exclusionary rule. See id. at 146 (rejecting the

argument that its “decision will cause police departments to deliberately keep their

officers ignorant” and acknowledging that the exclusionary rule should apply when

the police behave recklessly).

19

Even assuming that Herring applies to mistakes of law in addition to

mistakes of fact, because Heien postdated Herring, Herring had no cause to

address whether unreasonable mistakes of law which are not excused under Heien,

135 S. Ct. at 539, could be exempted from the exclusionary rule.

20

As the government has not attempted to argue that the admission of the

illegally seized contraband was harmless beyond a reasonable doubt, 20 and

harmlessness is not “obvious,”21 we reverse and remand for such further

proceedings as are consistent with this opinion.

So ordered.

20

See Chapman v. California, 386 U.S. 18, 24 (1967).

21

Randolph v. United States, 882 A.2d 210, 226 (D.C. 2005) (explaining

that “it is only in the rare circumstance in which harmlessness is obvious that we

are prepared to find an error harmless notwithstanding the government's failure to

make a timely claim of harmlessness”).