ISSUE PRESE TED Whether the trial court violated [Defendant]s Fourth Amendment rights by denying his motion

to suppress, which sought to exclude a marijuana cigarette found in his pocket by three non-uniformed vice officers who forcibly stopped and seized him based on a mere hunch that his presence on a public street at a late hour was suspicious.

STATEME T OF THE CASE [Defendant] appeals the denial of his motion to suppress in the above-captioned case, wherein he was convicted of misdemeanor possession of marijuana. (R.10). The charge arose out of a June 28, 2011, incident in which three non-uniformed vice officers stopped [Defendant] on a public street, searched him, and found the half-inch stub of a partially-smoked marijuana cigarette in his pocket. (Tr. 8, 35). [Defendant] was released and a warrant for his arrest was not sought until one month later. (R.1). He was arraigned on August 4, 2011. (R.5). On November 14, 2011, [Defendant] filed a motion to suppress the marijuana. (R.8). He argued that he was violently seized without reasonable suspicion, and searched without probable cause. (R.8). A hearing on the motion was held on November 16, 2011. (R.A.) The court first heard testimony from [Officer 1], one of the three officers who participated in [Defendant]s arrest. (Tr. 4-8, 27). He said [Defendant] was stopped for a pedestrian violation crossing the street outside of a crosswalk. (Tr. 5-6). [Officer 1] testified that he smelled burnt marijuana as he approached [Defendant] to discuss the violation, so he asked for permission to search him. (Tr. 6-7). [Defendant] allegedly consented. (Id.) The court then heard from [Defendant], who gave an entirely conflicting account of the encounter. He testified that the officers accosted him suddenly, without so much as a word about a pedestrian violation, a consensual search, or anything else for that matter (Tr. 39-41). The officers came out of nowhere, threw him against their car, forcibly restrained him, immediately searched him, found the marijuana cigarette, took his identification, and then released him. (Id.) The trial denied [Defendant]s suppression motion and [Defendant] entered a conditional guilty plea, reserving only the right to appeal the suppression ruling. (Tr. 55-60, 67).

The government sought a sentence of 90 days imprisonment. (Tr. 68). The prosecutor stated that the government would have probably asked for an entirely suspended sentence if [Defendant] had pleaded earlier (Id.) Leniency was no longer warranted, however, because he chose to contest [the charge] by impugning the integrity of the MPD officer and being untruthful before the court in the motions hearing. (Id.) The court imposed a sentence of 90 days in jail (all of which were suspended), plus nine months supervised probation and 40 hours of community service. (Tr. 70). [Defendant] filed a timely Notice of Appeal on November 28, 2011. (R.11). STATEME T OF THE FACTS At approximately 1:15 a.m. on June 28, 2011, three vice squad officers in an unmarked vehicle stopped [Defendant] near the intersection of Ninth Street NW and S Street NW. (R.1). [Defendant] was stopped near the Lincoln Westmoreland Apartments, a development the vice squad targeted because of its purportedly high incidence of drug activity. (Id.) [Officer 1]s Account. [Officer 1] testified that [Defendant] drew his suspicion by erratically and repeatedly pacing north and southbound within the 1700 block of Ninth Street. (Tr. 14, 27). He said [Defendant] was a stones throw from the Lincoln Westmoreland Apartments when he was stopped. (Tr. 30). The true distance between the locations actually exceeds 200 feet.1 [Officer 1] conceded that there is nothing illegal about walking in a supposedly drug infested area, but he averred that such activity is sometimes suspicious. (Tr. 14-15). He also admitted, however, that [Defendant] was never seen leaving or walking toward the Lincoln Westmoreland Apartments, and that [Defendant] had been observed pacing the sidewalk for less than 10 to 15 minutes. (Tr. 19, 30). Nor did the officers see [Defendant] talk

[Can I attach an exhibit or am I limited to the record?]. 2

to anyone, make any furtive gestures, engage in any hand-to-hand transactions, reach into his pocket, or smoke any substances. (Tr. 15). Rather, [Defendant] was stopped because at some point he allegedly walked out in the middle of the street. (Tr. 5). [Officer 1] said [Defendant] stood in the street for a couple of seconds He wasnt moving. He was standing there so we immediately pulled up on him. (Tr. 6). [Officer 1] said he approached [Defendant] to advise him that he was supposed to walk in the crosswalk. (Id.) [Officer 1] then testified that he smelled burnt marijuana upon coming within two feet of [Defendant]. (Tr. 6). He asked if he could search [Defendant] for drugs, and [Defendant] supposedly consented. (Tr. 7). However, [Defendant] made nervous movements before consenting: He hesitated, and he placed his right hand and forearm against the right side of his shorts, and said go ahead. (Id.) And as [Officer 1] began to search [[Defendant]], he turned his right side of his body away from me. (Tr. 8). [Officer 1] took this behavior as an indication that [Defendant] had drugs or weapons on him. (Tr. 21). Accordingly, [Officer 1] dispensed with a pat-down and reached into [Defendant]s pocket, where he found a partially burned, halfinch marijuana cigarette and a glass crack pipe. (Tr. 8, 35). [Defendant]s Account. [Defendant] testified that he was searched, seized and detained while waiting for a friend with whom he had plans to go to a nightclub. (Tr. 37, 45). [Defendant]s friend was running late and he was pacing the sidewalk and waiting for her to come around. (Id.) [Defendant] denied [Officer 1]s claim that he walked into the middle of the street. He did at one point step a few feet off the sidewalk, beyond [some] parked cars, to get a better view of the street but he never walked into the middle of the street and stood motionlessly, as [Officer 1] testified. (Tr. 41). [Defendant] also disputed [Officer 1]s claim that the officers

talked to him and asked for consent to search him. Rather, the officers came out of nowhere, jumped out of their cruiser, immediately threw him up against the vehicle, and searched him without so much as a word about a pedestrian violation or any other wrongdoing. (Tr. 39-42). That is what they do to us on a regular basis right there in that neighborhood, [Defendant] testified. (Tr. 38). Trial Judges Motions Ruling and Findings. The court perfunctorily denied [Defendant]s suppression motion on the record. (Tr. 55). The judge resolved the conflicting testimony in favor of [Officer 1], whom he deemed credible. (Id.) [Defendant], by contrast, was found evasive and lacking in credibility. (Tr. 56). The judge further found that the search was valid under two theories. Under the first theory, probable cause existed to search [Defendant] under the circumstances. (Tr. 58-59). [Officer 1] validly approached [Defendant] initially, the judge found, and whether [Defendant] actually committed a pedestrian violation was immaterial because that initial stop was a consensual police encounter that did not amount to a Fourth Amendment seizure. (Tr. 56-57). Probable cause developed thereafter, as the marijuana odor and other factors led [Officer 1] to validly conclude that a full search was warranted. (Tr. 58-59). Under the second theory, the court found that the search was valid because [Defendant] consented to it, creating an exception to the Fourth Amendments warrant requirement. (Tr. 5960). The judges holding under this alternative theory was based on his above-noted determination that [Officer 1] was a credible witness and [Defendant] was not. (Id.) The judges explanation of his ruling and findings did not discuss the significance, if any, of the governments failure to procure the testimony of [Officer 2] and [Officer 3], the two other vice squad members who participated in [Defendant]s arrest. (See Tr. 27). Nor did the trial

judge discuss the significance, if any, of the governments failure to introduce into evidence the glass crack pipe that [Officer 1] allegedly found in [Defendant]s pocket along with the partially-smoked, half-inch marijuana cigarette stub. (See Tr. 8). The record does not indicate why [Defendant] was not charged with Unlawful Possession of Drug Paraphernalia under D.C. Code 48-1103(a). LEGAL ARGUME T [Defendant] challenges the trial judges legal conclusion that [Officer 1]s initial stop made for the ostensible purpose of discussing [Defendant]s pedestrian violation did not constitute a seizure under the Fourth Amendment. (See Tr. 56-57). [Defendant] also challenges the courts finding that he consented to a search and thus created an exception to the Fourth Amendments warrant requirement. (Tr. 59-60). The judges ruling that [Defendant] consented was predicated on his determination that [Officer 1] was a more credible witness a factual finding that [Defendant] will show was clearly erroneous. Finally, it is clear that the lower court failed to make sufficiently explicit findings on important factual and evidentiary disputes, which relieves this Court of its obligation to review the lower courts factual findings with as much deference as is usually applied. Standard of Review Different standards apply to this Courts review of the trial judges legal conclusions and factual determinations. Legal conclusions on Fourth Amendment issues, including whether a seizure has occurred and, if so, whether it was justified by reasonable articulable suspicion, are legal questions that this Court reviews de novo. Jacobs v. United States, 981 A.2d 579, 582 (D.C. 2009). By contrast, this Court must defer to the motions court's findings of fact as to the circumstances surrounding the appellant's encounter with the police and [must] uphold them

unless they are clearly erroneous. Porter v. United States, 7 A.3d 1021, 1024 (D.C. 2010) (internal citations omitted; brackets in original). However, although deference is given to the courts factual pronouncements and credibility determinations, this Court has recognized that such deference is not required or even possible in cases where a court fails to make sufficiently explicit findings on disputed issues of fact. It is incumbent upon us, in this case as in any other, to eschew appellate fact-finding. Nevertheless, the absence of explicit findings on most of the disputed issues of fact reduces both our opportunity and our obligation to be deferential. Brown v. United States, 590 A.2d 1008, 1020-1021 (D.C. 1991). Discussion I. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT WAS NOT SEIZED [Defendant]s first argument on appeal challenges the lower courts ruling that he was not seized when [Officer 1] first stopped him for his purported failure to use a crosswalk. (See Tr. 56-57). The judge found that the circumstances surrounding that initial contact were more indicative of a consensual police-citizen encounter than a seizure. (Id.) Such an encounter, the Supreme Court has held, will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. Florida v. Bostick, 501 U.S. 429, 434 (1991). Obviously, not all personal intercourse between policemen and citizens involves seizures of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. Id. at 437. In the instant case, the trial judge improperly characterized [Officer 1]s stop as a consensual encounter rather than a seizure. The factual findings that the judge based his ruling on were clearly erroneous and unsupported by the record which included testimony from [Officer 1] himself that indicated that the three vice officers who accosted [Defendant] used physical

force, or at the very least a show of authority, during that initial encounter over the alleged crosswalk violation. The trial court discounted [Defendant]s testimony that he never committed a pedestrian violation issue. And while the trial courts credibility determination on this issue is entitled to this courts deference, other evidence in the record support the claim that the pedestrian stop was pretextual at best or that [Officer 1]s testimony, at worst, was concocted out of whole cloth. The government argued, and the trial judge found, that [Officer 1] approached [Defendant] to discuss the crosswalk violation and smelled the odor of burnt marijuana upon coming within two feet of him. (Tr. 6, 57-58). Accepting the governments and the courts version of the encounter, [Defendant] was approached by a police officer who testified he immediately pulled up on him with two armed peers, jumped out of his cruiser and quickly invaded his personal space, coming within two feet of him all for the purpose of informing him to get in a crosswalk. A reasonable defendant in [Defendant]s position would not feel that he was at liberty to ignore such a show of force and go about his business which is the crucial test for distinguishing between a consensual encounter and a Fourth Amendment seizure. See In re J.M., 619 A.2d 497, 500 (D.C. 1992) (The crucial test for determining whether a person has been seized 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.) (internal citations omitted). As the Supreme Court first noted in Terry v. Ohio, whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. 392 U.S. 1, 17 (1968). In the instant case, [Defendant]s freedom to walk away was unquestionably restrained.

In finding that [Defendant] was not seized, the trial judge noted that [t]here was nothing used to stop the defendant when [Officer 1] approached him on the street. (Tr. 57). [Defendant] testified otherwise, saying that he was forcibly detained but even if we accept the trial courts findings, the conclusion that there was nothing used to stop [Defendant] ignores the fact that physical touching is not the only means of stopping a person and restraining his liberty. As this court has noted, one of the factors which may indicate whether a seizure has occurred is the threatening presence of several officers. Jackson v. United States, 805 A.2d 979, 987 (D.C. 2002). Here, [Officer 1] was trailed by two colleagues when he jumped out of the cruiser to confront [Defendant] on an empty street. (Tr. 27). Another factor relevant to the question of whether somebody was seized is the display of a weapon by an officer. Jackson, 805 A.2d at 987. The trial judge noted that [Officer 1] did not draw his weapon (Tr. 57), but he did not consider whether a weapon that is simply brandished or holstered, rather than drawn, might also be intimidating enough to lead a reasonable person to believe that he was being detained. It is clear that the totality of the circumstances indicate that the three vice squad officers who accosted [Defendant] adopted a posture displaying their authority which communicated very clearly to [the defendant] that he was not free to simply ignore them and leave Hawkins v. United States, 663 A.2d 1221, 1225-1226 (D.C. 1995). This Court should thus reverse the trial judges ruling that [Defendant] was not seized. Even if the evidence is evaluated in a light favorable to the government, the trial judge erroneously applied the facts to the law in finding that the circumstances surrounding [Defendant]s initial stop did not indicate a seizure. II. THE COURT ERRED IN FINDING [DEFENDANT] CONSENTED TO A SEARCH The second argument on appeal challenges the motion judges finding that [Defendant] consented to a search and thus provided an alternative basis for holding in the governments

favor. (Tr. 59-60). The judges ruling that [Defendant] consented was predicated on his determination that [Officer 1] was a more credible witness. (Id.) Ordinarily, a ruling that a defendant consented to a search is a question of fact that is reviewed for clear error. In re J.F., 08-FS-1644 (D.C. May 12, 2011) ([T]he issue of whether a citizen has voluntarily consented to a search is a question of fact, thus we are bound to uphold the trial court's finding that a search was consensual unless such a finding is clearly erroneous). However, the clearly erroneous standard should not be applied to this question in the instant case. Even if this Court accepts the motion judges findings that [Defendant] consented, such consent was given after, or contemporaneously with, [Officer 1]s initial stop, which was an unlawful seizure. As this court has noted, [w]hen statements and conduct evidencing consent to a search are given contemporaneously with the illegal seizure, with no break in the causal chain, the actions of the person seized are not free from the taint of unlawful detention and are thus insufficient to show consent. Id. (internal citations omitted). When a consensual search follows a Fourth Amendment violation, the government must prove both (1) that the consent was voluntary under the totality of the circumstances, and (2) that there was a break in the causal connection between the illegality and the evidence thereby obtained. Id. In the instant case, the government cannot show a break in the causual connection between the illegality and the evidence thereby obtained. Id. The finding that [Defendant]s consent was voluntary was based entirely on the trial judges credibility determination, and it is unsupported by competent and credible evidence in the record, for reasons discussed supra. Moreover, [b]efore a court will hold that a defendant has waived his protection under the Fourth Amendment there must be convincing evidence to that effect. Nueslein v. District of Columbia, 115 F2d 690, 694 (D.C. 1940). The evidence of

consent in the instant case is not convincing. Accordingly, this court should reverse the lower courts alternative finding that [Defendant]s search was justified because of his consent. III. THE TRIAL COURT FAILED TO MAKE SUFFICIENTLY EXPLICIT FINDINGS ON DISPUTED FACTUAL ISSUES Finally, [Defendant] argues that the lower court failed to sufficiently articulate the factual findings that it based its resolution of conflicting testimony on. That failure relieves this Court of its obligation to review the decision below with as much deference as is usually applied. The scope of review on appeals from the denial of suppression motions has been frequently, and sometimes misleadingly, described as limited. See, e.g., White v. United States, 763 A.2d 715, 719 (D.C. 2000) (Our review of the trial court's disposition of a motion to suppress is limited). The axiomatic status this proposition enjoys may be the result of appellate courts over-emphasizing the deferential pose they must assume in assessing the factual findings underlying trial courts suppression rulings. See, e.g., Dancy v. United States, 745 A.2d 259, 272 (D.C. 2000) (We must defer to the trial courts findings of evidentiary fact). However, although the above authority does suggest that the scope of appellate review of suppression denials is limited, this Court has wisely noted that such a view is oversimplified. Some courts have stated, perhaps oversimplifying the problem, that our review of a district court's determination of probable cause for arrest is limited by the clearly erroneous standard. A more precise articulation was provided by the court in United States v. Campbell, 843 F.2d 1089, 1092 (8th Cir.1988): Whether reasonable suspicion or probable cause exists to justify a seizure is a mixed question of fact and law. The findings with respect to the historical facts are reviewed under the clearly erroneous standard; the ultimate conclusion, however, is subject to de novo review It is incumbent upon us, in this case as in any other, to eschew appellate fact-finding. Nevertheless, the absence of explicit findings on most of the disputed issues of fact reduces both our opportunity and our obligation to be deferential Brown , 590 A.2d at 1020-1021 (D.C. 1991) (internal quotations omitted).

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In the instant case, the trial judge failed to make explicit findings on important disputed issues of fact. He failed to probe the discrepancies between [Officer 1]s claim that [Defendant] committed a pedestrian violation and consented to a search, and [Defendant]s claims that neither a violation nor a giving of consent occurred. Nor did the trial judge sufficiently discuss why he determined that the circumstances of the officers encounter with [Defendant] were more indicative of a consensual stop than a seizure. And the judge did not comment on the significance, if any, of the governments failure to procure the testimony of the other officers involved in [Defendant]s arrest, or of the governments failure to introduce into evidence the crack pipe that was allegedly found on [Defendant]s person. The Fourth Amendment protections enunciated in Terry are being denuded, and this Court should demand that the government hew more closely to judicial admonitions to respect citizens rights to be free from unreasonable searches and seizures. CO CLUSIO For all of the above reasons, this Court should reverse [Defendant]s conviction.

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