Green v. United States, No. 16-CF-1226

231 A.3d 398

Gregory GREEN, Appellant,

v.UNITED STATES, Appellee.

No. 16-CF-1226

District of Columbia Court of Appeals.

Argued June 4, 2019

Decided July 9, 2020

Ethan H. Townsend, Wilmington, DE, with whom Charles B. Wayne, Washington, was on the brief for appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Charles Willoughby, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman, Fisher, and Easterly, Associate Judges.

Concurring opinion by Associate Judge Easterly at page ––––.

Dissenting opinion by Associate Judge Fisher at page ––––.

Glickman, Associate Judge:

Gregory Green challenges his convictions for armed robbery and felony murder while armed on several grounds. We need address only one of them, his claim that the trial court erred in denying his motion to suppress evidence the police obtained from his cell phone. Mr. Green argues that this evidence was the fruit of an illegal search and seizure arising from the presence of law enforcement agents in his home without a search warrant or other legal justification. Because we agree that the trial court should have granted the motion to suppress the cell phone evidence, and because the erroneous admission of that evidence at Mr. Green's trial was not harmless beyond a reasonable doubt, we reverse his convictions.¹

I.

Early on the morning of March 29, 2014, Derrick Williams was shot, killed, and robbed in front of his home in Southeast Washington, D.C. Mr. Williams's friend and roommate, Mr. Tillman, heard the shooting, ran to the door, and made eye contact with a man who was standing over Mr. Williams's body and going through his pockets to rob him. Mr. Tillman recognized this man as someone he knew from the neighborhood by the nickname "Face." He told the police that "Face" was dressed in black and had on a dark hat with white lettering. Mr. Tillman also observed that "Face" was accompanied by a man wearing a red Helly Hansen jacket. He was uncertain of this second man's identity but thought it might have been somebody known as "Little Charles."

A few days later, at around 9:50 a.m. on April 2, 2014, U.S. Marshals executed an arrest warrant for appellant, who was believed to be "Face." The Marshals made the arrest at appellant's home, apparently when he opened the door to them, and at some point they entered the residence and removed the other persons who were there.² The Marshals then remained inside appellant's home by themselves. The record does not clarify what the Marshals were doing in the home after having cleared the premises, or exactly when they eventually left. They did not have a search warrant for appellant's home.

After appellant was taken into custody, Metropolitan Police Department Detective Travis Barton was called to the scene. Detective Barton was the government's only witness at the suppression hearing. He testified that one of the Marshals involved in appellant's arrest informed him when he arrived that appellant's cell phone was on a couch in the living room. The Marshal did not tell Detective Barton how or when the Marshals discovered the phone in the residence or how he knew the phone belonged to appellant.³

Detective Barton entered the dwelling. He did not have a search warrant at the time. He went in, he testified, to "see if the cell phone was there" and to "gather information ... for the search warrant" by "[t]alk[ing] to the officers inside [and] find[ing] out if they had any additional information related to what [the police] were doing as far as the search warrant or any visible evidence they saw when they were inside the house." The record does not disclose why the Marshals were still in the residence at this time, which was nearly an hour after appellant's arrest, in the absence of a search warrant. Detective Barton testified that the Marshals already had finished conducting their protective sweep of appellant's home and had "secured" the location before he entered it.

Once inside, Detective Barton looked for the cell phone on the living room couch and did not find it there. The Marshals did not know what had happened to it. To find it, Detective Barton called appellant's phone number.⁴ He heard a phone ring outside the house. Detective Barton went out and found the phone in the hands of appellant's girlfriend. She identified it as belonging to appellant, and the detective then seized it.

The following day, Detective Barton applied for and obtained a warrant to search the cell phone. His affidavit in support of the application stated that the phone had been identified as appellant's by his girlfriend. To identify the phone with particularity, the affidavit also included the phone's unique serial and International Mobile Equipment Identity numbers. Detective Barton had obtained those numbers by taking off the phone's back cover and removing its battery.

The phone's call log revealed that appellant had received several calls in the minutes following Mr. Williams's murder from a phone number listed under the name "Charlie" in the phone's contact list. The phone also contained photos of appellant from a social media account that included the word "face" in its username; photos showing appellant wearing a dark baseball cap with white lettering; other photos showing him in a red Helly Hansen jacket; and text messages between appellant and his child's mother indicating that appellant did not show up for a planned meeting with her on the night of the murder.

In moving to suppress his cell phone and the evidence obtained from it, appellant argued, inter alia , that his Fourth Amendment rights were violated by the search of his home without a search warrant after the purpose of the arrest warrant had been satisfied, and by the seizure of his phone from his girlfriend "without the authorization of any warrant [and without] the justification of any exception to the warrant requirement." In its opposition, the government argued that exigent circumstances justified the warrantless seizure of the phone because it was "in imminent danger of destruction or loss."

After Detective Barton's testimony at the suppression hearing revealed that the Marshals had concluded their protective sweep before his warrantless entry into appellant's home, appellant argued more specifically that the detective had engaged in an unlawful search and that the seizure of his cell phone was the fruit of that illegality:

[O]ne issue that's presented is that ... there's a warrantless search when [Detective Barton] enters the apartment. The apartment's been secure[d]. He's not entering for the purpose of securing the apartment. At that point, it[ ] ... doesn't fall underneath the Buie^{[5 ]} exception for a protective sweep. The marshals have already done that. He enters, whether it was with [or] partially [with] the purpose of talking to other officers inside or looking for evidence, clearly, what happened was he did look for this cell phone .... It's only as a result of that ... entry into that house, that he—it leads him, by the officer's own account, to call that cell phone and discover it in the hands of [appellant's girlfriend].

Appellant added that Detective Barton's "concern about what happened with the [cell phone]" was the "result of [the] warrantless entry into the home" and that, "but for that warrantless entry," Detective Barton would not have called the phone. The judge expressed skepticism that the absence of a search warrant meant the police had no right to be on the premises. Appellant answered that "at that point, they didn't have the right to be on the premises" because appellant and all civilians had been removed and "the limited purpose of a protective sweep had been satisfied." After having done that, appellant added, the police could secure the scene, if they needed to do so, but only "from the outside" of the dwelling.

In contrast, the government argued that Detective Barton had the right to go into the house to confer with the Marshals there in order to prepare a particularized and complete application for a search warrant; and that while he was there for that lawful purpose, Detective Barton "ha[d] every right to look at things that are in plain view and the phone should have been in plain view and it wasn't." It then was reasonable for the detective to call the phone in order to locate it, and then to seize it to prevent the loss or destruction of evidence. The government premised this argument on its contention that the Marshals were allowed to remain inside appellant's home to secure it "in anticipation of a search warrant."

The judge found that "it seem[ed] as though the intention of law enforcement" at the time Detective Barton entered the residence "was to seize the scene to make sure that they could locate any evidence that may be connected to the offense." The judge ruled that law enforcement was "certainly in a position to do that under the Fourth Amendment." He further ruled that once Detective Barton discovered that appellant's cell phone was not on the couch, "the exigency seem[ed] clear." Concluding that this exigency—the risk that valuable evidence might be lost if the police could not find and recover the cell phone immediately—justified the detective's warrantless seizure of the phone, the judge denied the motion to suppress the phone and the evidence obtained from it. The prosecution presented and relied on that evidence at trial.

II.

Appellant contends that Detective Barton entered his home after the justification for any law enforcement presence there without a search warrant was over, that the detective did so to collect evidence, and that the trial judge should have suppressed the evidence obtained from the search of his cell phone as the fruit of the warrantless intrusion. The government rejoins that the Marshals were justified in remaining in the premises to secure it pending the issuance of a search...