Johnson v. United States

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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.

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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).