Bingman v. United States

267 A.3d 1084

Michael BINGMAN, Appellant,

v.UNITED STATES, Appellee.

No. 19-CF-1077

District of Columbia Court of Appeals.

Submitted November 24, 2020

Decided January 27, 2022

Michael Bruckheim for appellant.

Andrea Antonelli, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney at the time the brief was filed, Elizabeth Trosman, John P. Mannarino, and Elizabeth Aloi, Assistant United States Attorneys, were on the brief, for appellee.

Before Beckwith and Easterly, Associate Judges, and Fisher, Senior Judge.

Dissenting opinion by Senior Judge Fisher at page 1091.

Easterly, Associate Judge:

Michael Bingman seeks reversal of a number of gun-related convictions,¹ arguing that, because he was subject to an illegal search and seizure, the trial court erroneously denied his motion to suppress. Based on the testimony of two officers who participated in Mr. Bingman's arrest as well as the body-worn camera footage, the trial court concluded that the police lawfully seized Mr. Bingman and patted him down for weapons after they (1) went to execute a warrant at the location of a suspected marijuana "pop-up"² party and saw Mr. Bingman exiting the building, and (2) noticed that he was carrying what appeared to be a sheathed knife at his waistband. While we generally defer to the trial court's fact-finding and review the evidence and reasonable inferences therefrom in the light most favorable to the suppression ruling, whether the police violated a defendant's rights under the Fourth Amendment is a legal question that we review de novo. Hooks v. United States, 208 A.3d 741, 745 (D.C. 2019). It is "this court's obligation to ensure that the trial court had a substantial basis for concluding that no constitutional violation occurred." Robinson v. United States , 76 A.3d 329, 335 (D.C. 2013) (internal quotation marks omitted).

The police did not have a warrant for Mr. Bingman's arrest. Nor did the warrant to search the location of the pop-up party give them the authority to arrest or search him. For the purposes of this opinion we assume, however, that, on the basis of the search warrant, the police had grounds to briefly detain him, see Michigan v. Summers , 452 U.S. 692, 703–04, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), and that his initial seizure did not amount to an arrest. Nevertheless, the act of searching Mr. Bingman for weapons must separately be justified upon a showing that under a totality of the circumstances the police reasonably believed he was armed and dangerous at the time of the search. See id. at 695, 101 S.Ct. 2587 n.4 ("The seizure issue in this case should not be confused with the search issue presented in Ybarra v. Illinois , 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)." (quotation marks omitted)); see also Ybarra , 444 U.S. at 92–93, 100 S.Ct. 338 (holding that a frisk of a person detained at the location where a search warrant was being executed had to be "supported by a reasonable belief that he was armed and presently dangerous, a belief which th[e Supreme] Court has invariably held must form the predicate to a patdown of a person for weapons"). The trial court never explicitly stated that it was analyzing the legality of Mr. Bingman's patdown under this standard. Assuming the court applied it, we conclude that the court erred in ruling that the government presented sufficient evidence to support a determination that the police reasonably believed Mr. Bingman was armed and presently dangerous.

Relying on the officers’ testimony, the trial court noted that the police executing the search warrant "clearly had some belief that there was some illegal activity going on" but also acknowledged that "the warrant was for the entire premises, not for any particular person." Moreover, the only illegal activity specified in the warrant was that the location was being used for the sale and possible consumption of marijuana and related paraphernalia (e.g. rolling papers). There was no indication in the warrant that the police had any reason, much less probable cause, to believe that there were any weapons on the premises. Cf. Germany v. United States , 984 A.2d 1217, 1227 (D.C. 2009) ("[A]n individual's apparent association with a residence that police have been authorized to search for weapons^{[3 ]} is a circumstance that, along with the rest of the totality of the circumstances, may provide a reasonable articulable basis for police to frisk the individual for weapons when they find him on the premises when they arrive to execute the search warrant." (emphasis added)). The government argues that the officers’ reasonable suspicion was supported by their testimony that "it's not uncommon" for the police to find weapons at marijuana pop-up events. "[W]e know too little about [the officers’] experience to place much weight upon [their] conclusory statement[s]," however. United States v. Taylor , 49 A.3d 818, 827 (D.C. 2012) (internal quotation marks and citations omitted); see also Hawkins v. United States , 248 A.3d 125, 131 (D.C. 2021) (explaining that "officer's conclusory reference to a ‘trend’ of finding guns hidden in satchels that summer" is insufficient to justify the search). One officer (quoted by the dissent, post at 14) could not recall whether he had personally been involved in any pop-up warrants prior to this one. The other officer (also quoted by the dissent, post at 15) testified only vaguely that during "most" of the "few pop-up warrants" he had executed or was aware of (he did not specify), the police had encountered security, and they had "found weapons" (where he did not specify) on "multiple occasions." Thus, the trial court appropriately did not make a finding of fact in the government's favor based on this testimony.⁴

Aside from Mr. Bingman's presence at a location to be searched for marijuana and related paraphernalia pursuant to a warrant, the trial court appeared to rely on the fact that Mr. Bingman was wearing a knife on his belt. The court concluded that the knife added to the calculus of reasonable articulable suspicion, even though the government presented no evidence that it was an illegal weapon or was being used as such. Notably, the government never charged Mr. Bingman with possession of the knife, sought to admit the knife or a photograph thereof as an exhibit, or presented testimony about the knife's appearance or size.⁵ (Although the sheath for the knife is visible in the body-worn camera footage, the knife itself is not.). As we explained in Maye v. United States, 260 A.3d 638, 649 (D.C. 2021), because knives are useful tools for "open[ing] packages, break[ing] down boxes, or cut[ting] strings," not all knives automatically "carr[y] with [them] an indicium of wrongdoing" or cause the individual in possession of such a tool to "forfeit[ ] their Fourth Amendment rights to be free from seizures and searches absent more particularized suspicion." Id. Accordingly, in this case, without more information, Mr. Bingman's in-plain-view possession of some sort of knife does not meaningfully contribute to an assessment of whether the police had reasonable articulable suspicion to believe he had a concealed weapon.⁶

As discussed, the factors the trial court relied upon to validate the patdown of Mr. Bingman—his presence at a site the police were authorized pursuant to a warrant to search for marijuana and marijuana paraphernalia, and his possession of a knife of unknown description—do not support a reasonable determination that he was armed and dangerous. The government argues, however, that under a totality of the circumstances analysis, we should consider other evidence in the record, namely the fact that the police officers believed Mr. Bingman was working as security for the marijuana pop-up party and the fact that there were other people in the vicinity.

The police testified that they suspected that Mr. Bingman was working security for the marijuana pop-up party, even though they acknowledged Mr. Bingman (1) was not wearing any badge or markings that indicated that he was working security for the event, (2) answered "no" when the police asked him whether he works at the location, (3) gave no other indication that "he was involved with whatever may have been happening inside," (4) was cordial as the police approached—extending his hand to greet them,⁷ and (5) cooperated with the police when they directed him to walk down the stairs of the warehouse, immediately grabbed him, and put him in handcuffs. As the foundation for their suspicion, the officers relied on their unspecified "experience with [such] events," but see supra, and the fact that Mr. Bingman was wearing what they described as a "Battle Dress Uniform (BDU)," a "sort of a military-type uniform, security, law enforcement-related uniform." The trial court conspicuously did not find that Mr. Bingman was wearing a BDU, likely because this descriptor has no reasonable application to Mr. Bingman's outfit. Unlike, for example, the outfits worn by Gun Recovery Unit ("GRU") officers in a group photograph discussed and displayed in Wonell Jones v. United States , 263 A.3d 445, 450 (D.C. 2021), Mr. Bingman's clothing—a Rick and Morty T-shirt,⁸ black pants "with the big pockets to store items in," and a black hooded vest with a skull drawn on its back—looks nothing like a "security, law enforcement-related uniform." We discern nothing inherently suspicious about wearing a graphic tee and cargo pants, especially when nothing else signals the wearer of the outfit is working as security.⁹

Finally, the government argues that the officers "had legitimate safety concerns because of the number of people in the area." The trial court found that "there were about four people" present outside the building when the police arrived.¹⁰ The fact that there were four individuals "milling about" outside when the police arrived (to whom the police paid little attention and appeared not to perceive as a...