Drake v. U.S.

315 A.3d 1196

Nikko L. DRAKE, Appellant,

v.UNITED STATES, Appellee.

No. 22-CF-0887

District of Columbia Court of Appeals. Argued January 4, 2024

Decided May 30, 2024

Appeal from the Superior Court of the District of Columbia (2020-CF3-001170), (Hon. Maribeth Raffinan, Trial Judge)

Michael Madden for appellant.

Chimnomnso N. Kalu, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, and Paul V. Courtney, Assistant United States Attorneys, were on the brief, for appellee.

Before Beckwith and Shanker, Associate Judges, and Glickman, Senior Judge.

Shanker, Associate Judge:

Following a jury trial, appellant Nikko L. Drake was convicted of aggravated assault while armed and multiple firearms offenses in connection with a shooting in 2020 outside of a nightclub in Washington, D.C. Mr. Drake appeals, arguing that (1) the trial court erred in denying his motion to suppress items, including a cell phone, officers seized when Mr. Drake was in the emergency room after the incident and (2) the trial court abused its discretion in admitting at trial text messages and a photograph showing that, four months before the shooting, Mr. Drake had arranged to purchase a handgun similar to the one used in the shooting. We disagree on both fronts and affirm Mr. Drake’s convictions.

I. Background

A. The Shooting

The evidence at trial was as follows. On the evening of January 23, 2020, Fredirickia Lloyd went with a friend to Mirror Lounge in northwest D.C. Ms. Lloyd spent some time in the "VIP" section of the lounge with an individual named Kelvin Harris. At some point, Mr. Harris argued with a man who was described as Black, about 5'3" tall, with waist-length dreadlocks. Mr. Harris thought that the man was reaching for a weapon because he could not see the man’s hand for a moment, so Mr. Harris punched the man. Security then separated the two.

Before leaving through the back door, Mr. Harris told the manager that the man was carrying a gun. The man was escorted out of the front door, but, because he had left his glasses inside, he tried to follow security back inside. As the man attempted to reenter the lounge, James Coleman, the head of security, heard from someone that the man might be armed. The man was offered free drinks in exchange for consenting to a pat-down search, but he refused and left the club again. The individual was wearing a camouflage jacket when he left.

A short time later, Ms. Lloyd also left Mirror Lounge through the front door. She recognized the individual who had fought with Mr. Harris, approached him, and told him that she did not want to be involved in his quarrel with Mr. Harris. The man told Ms. Lloyd, "[O]h, you don’t want no smoke." Ms. Lloyd took the comment as a threat and the conversation escalated. The man then punched Ms. Lloyd and she fell to the ground. A security guard known as "Fat Joe" attempted to separate the man and Ms. Lloyd. During this altercation, Mr. Coleman saw a "dull black" or "plastic dark gray" gun, warned Fat Joe about it, and told Fat Joe and other bystanders to go into the club for safety. At 11:25 p.m., two gunshots were fired. Surveillance footage showed people rushing into Mirror Lounge at that time.

Metropolitan Police Department ("MPD") Officer Michael Webber was about one block away responding to an unrelated incident when he heard two gunshots. Officer Webber immediately searched for victims and found Ms. Lloyd on the sidewalk suffering from gunshot wounds. A crime scene forensic scientist recovered a projectile and two nine-millimeter shell casings from the same area.

Ms. Lloyd was taken to the hospital, where doctors determined that she had suffered gunshot wounds to her lower abdomen and back and was in shock due to blood loss. A trauma surgeon performed an exploratory laparotomy to repair Ms. Lloyd’s injuries. The surgeon testified that Ms. Lloyd could have died without the surgery.

Minutes after officers arrived at the scene outside Mirror Lounge, a lookout describing the shooter as "a black male with long dreads" was broadcast over police radio. MPD Officer Jermaine Perez spotted an individual who matched the lookout limping out of an alley around the corner from Mirror Lounge; the man was wearing a camouflage jacket. Officer Perez did not see anyone else in the area who matched the lookout. The officer noticed the man because he was limping and, in the officer’s experience "with calls like this, individuals shooting at each other or possibly shooting themselves in a shootout, they are limping." Officer Perez followed the man to the Howard University Hospital emergency room, where the man went into a bathroom. While the man was in the bathroom, the lookout was updated to include a camouflage jacket.

B. The Seizure of Mr. Drake’s Items

Additional officers arrived at the hospital and, after the man came out of the bathroom, handcuffed the man, who identified himself as Mr. Drake. Officer Brian O’Shea noticed blood on Mr. Drake’s clothing. The officers decided to take Mr. Drake to a transport vehicle to continue their investigation. The officers tried to walk Mr. Drake outside, but he was unable to walk on his own, had to be carried, and eventually became limp. The officers took Mr. Drake back into the emergency room, where doctors discovered a gunshot wound in Mr. Drake’s foot.

While Mr. Drake was being treated for his injury, Officer O’Shea returned to the area of the shooting and looked for surveillance footage. He reviewed footage from an establishment across the street from Mirror Lounge called Right Spot. The footage showed a man at the crime scene moments after Ms. Lloyd was shot. Officer O’Shea was "110 percent" confident that the man in the surveillance footage was Mr. Drake.

After Officer O’Shea relayed to the officers at the hospital his confidence that he had seen Mr. Drake on the surveillance footage, officers at the hospital seized Mr. Drake’s clothing, shoes, and an iPhone from his coat pocket and arrested Mr. Drake. The government later accessed the contents of Mr. Drake’s iPhone pursuant to a search warrant.

Police and K-9 units searched Mr. Drake’s flight path for a gun but did not find one.

C. The Motion to Suppress

Mr. Drake was charged with multiple offenses related to the shooting. Before trial, he moved to suppress the items that were seized in the hospital, arguing that officers unlawfully arrested him without probable cause when they stopped him as he exited the restroom because (1) they handcuffed him, (2) they commanded him to stop moving, (3) they asked whether he had a gun, and (4) one officer said over the radio that police had "one in custody."

The evidence at the suppression hearing was as follows. Officer O’Shea testified that around 11:25 p.m, on January 23, 2020, Officer Webber and another officer were near the 1900 block of 9th Street, NW, when they heard gunshots. The two officers found a woman on the sidewalk in front of Mirror Lounge who had been shot. Officer O’Shea, who was patrolling in a police cruiser, arrived about one minute later. About three minutes after the gunshots, at 11:28 p.m., one of the officers on the scene broadcast a lookout for "an African American male with dread locks." Officer Jermaine Perez, who was patrolling in another police cruiser, saw a man matching the lookout walking out of an alley one block south and one block east of Mirror Lounge. The individual was wearing a camouflage "bubble" jacket. Officer Perez followed the man in his car and, at around 11:36 p.m., the man walked into the emergency room at Howard University Hospital. At about 11:38 p.m., police broadcast an updated lookout stating that the suspect was wearing a camouflage bubble jacket. Officer Perez requested backup over the radio.

Officer O’Shea arrived at the hospital at about 11:39 p.m. The individual Officer Perez had been following came out of a bathroom and police handcuffed him around 11:41 p.m. The man, who had blood on his clothing, identified himself as Mr. Drake.

Rather than continuing their investigation from the public emergency room, police decided to take Mr. Drake to a transport vehicle. As police began escorting Mr. Drake from the hospital, he became limp. Officer O’Shea also noticed more blood and began to suspect that Mr. Drake might be injured. Police checked Mr. Drake for a gunshot wound but did not find one; they then took Mr. Drake back into the emergency room. Once inside, police learned that Mr. Drake had been shot in the foot.

Some of the officers remained with Mr. Drake while Officer O’Shea left the hospital and went back to the 1900 block of 9th Street. There, Officer O’Shea learned that surveillance footage from Right Spot had captured a portion of the incident and showed the suspected shooter leaving the scene. After watching the footage, Officer O’Shea told the officers who were still at the hospital with Mr. Drake that he was "110 percent" sure that the suspect in the footage was Mr. Drake. The officers at the hospital then decided to collect Mr. Drake’s property. Shortly thereafter, at 12:15 a.m. on January 24, police began seizing Mr. Drake’s property. Mr. Drake was formally arrested at 12:30 a.m.

The trial court orally denied Mr. Drake’s motion to suppress. The court concluded that the police had reasonable, articulable suspicion to stop Mr. Drake at the hospital in light of the fact that, before they stopped Mr. Drake, they were given a lookout for a Black male with dreadlocks in a camouflage bubble jacket and Mr. Drake matched that lookout. The trial court also concluded that the officers lawfully patted Mr. Drake down because they had reason to believe that the person who had committed the shooting was armed.

The trial court further determined that police had probable cause to subsequently arrest Mr. Drake because he matched the lookout, police had surveillance footage implicating Mr. Drake in the shooting, and Mr. Drake...