Henderson v. United States

276 A.3d 484

Lorenzo D. HENDERSON, Appellant,

v.UNITED STATES, Appellee.

No. 19-CF-128

District of Columbia Court of Appeals.

Argued September 22, 2020

Decided June 16, 2022

Anne Keith Walton for appellant.

Ann M. Carroll, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Angela Buckner, and Ariel Dean, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman and McLeese, Associate Judges, and Fisher, Senior Judge.

Glickman, Associate Judge:

Appellant Lorenzo Henderson challenges the trial court's denial of his Fourth Amendment motion to suppress a loaded firearm, which police officers discovered under the hood of his car, and other evidence derivative of that discovery. After an evidentiary hearing on the motion, the court found that appellant voluntarily consented to let the police look under his car's hood, and that the police did not exceed the scope of his consent in doing so. We affirm the court's rulings and appellant's resulting conviction for carrying a pistol without a license.

I.

At the motions hearing, Metropolitan Police Officer Amanda Viteretti and appellant each testified regarding the circumstances in which the police recovered the firearm from appellant's car. Appellant's encounter with the police also was recorded on Officer Viteretti's and a second officer's body-worn camera footage, which was admitted in evidence. Except as otherwise indicated, the following facts are undisputed.

Shortly before 1:00 a.m. on the morning of April 30, 2017, gunshots were heard in the Lincoln Heights neighborhood of northeast Washington, D.C. Someone called 911 and reported that the shooter, described as a black man with braids or dreads and wearing dark-colored jeans, had hidden a gun in the engine compartment of an older white Jaguar with a long hood and driven toward Division and Nannie Helen Burroughs Avenues. Responding to the area, three uniformed Metropolitan Police officers — Officers Viteretti, Lazarus, and Julien — located a white Jaguar matching the caller's description parked on Cloud Place, N.E. The vehicle was unoccupied. The officers stopped and got out of their marked police cars to investigate.

Moments later, while the officers were standing around the Jaguar, a man matching the 911 caller's description of the shooter walked up to Officer Julien from behind and started speaking to him. This man, whom Officer Viteretti later identified as appellant, stated he owned the Jaguar and had just parked it there in order to go see if his family was all right. Officer Julien asked, "this is your car?" and appellant again said it was and that he was checking on his family. Officer Julien replied, "okay, buddy," and then asked in a conversational tone, "can you pop the hood for us?" Appellant responded, "pop the hood?" Officer Julien said "yeah." Appellant then walked between Officer Julien and Officer Viteretti, opened the driver's side door, reached down, and pulled a latch to unlock the hood.

After thus "popping the hood," appellant turned and without a word began walking past Officer Julien and back in the direction from which he had come. Neither Officer Julien nor Officer Viteretti tried to stop appellant from leaving until Officer Lazarus noticed his departure and asked Officer Julien to "hang on to him." Appellant then started running, and though Officers Julien and Viteretti pursued him, they were not able to catch him and he escaped. (The police arrested appellant a few days later.)

Meanwhile, Officer Lazarus remained with the Jaguar. As appellant was walking away, and just before the other officers started to pursue him, Officer Lazarus manually lifted the car's hood (which had not risen automatically when appellant unlatched it). Shining his flashlight into the engine compartment, Officer Lazarus almost immediately saw the handgun that had been placed there.

Appellant testified at the motions hearing that, before his encounter with the police at his Jaguar, he had been at a large gathering in Lincoln Heights to celebrate the anniversary of a friend's death. Appellant said he had consumed alcohol and marijuana and had become "high and drunk." The gathering was interrupted by a shooting, which appellant said he witnessed. Everyone fled, and appellant became separated from his family members. Appellant was "scared" because of the shooting, but after a while, he returned to the vicinity with his girlfriend to look for his cousins. There was, appellant said, "a high police presence" in the area, evidenced by a helicopter hovering over the scene, police vehicles, and the presence of police dogs, and he felt "a lot of tension in the air." Appellant testified that he, as a black man, has an "automatic, built-in fear" of the police because of "the way officers handle black men." He said he personally had seen officers "put guns to [a] friend's head" and "beat" another person on the street. As a result of his fear of police, appellant said, he "normally do[es] what [police officers] demand [him] to do."

Upon returning to the scene, appellant came upon the three police officers standing around his car. The officers were looking at the Jaguar, not at him. Seeing them there, appellant said, made him even "more" scared than he already was on account of the shooting; he professed to view the situation as a very "dangerous" one. Nonetheless, appellant acknowledged, he walked up to the police officers on his own initiative. He testified that when one of the officers asked him to pop the hood, he took it as "a demand" and obeyed. He opened the driver's door of the car, which was not locked, reached in, and "pulled the latch." Appellant testified he knew that merely unlatching the hood would not cause the hood to rise by itself, and he did not intend for the police to look under the hood. He said he did not know why the police wanted him to pop the hood and that the request made no sense to him.

Appellant testified that after he unlatched the hood and got out of the car, he went to ask his girlfriend for the keys to the Jaguar, which she happened to be holding. At that point, appellant said, he heard one officer tell another to apprehend him and then saw an officer make a "grab[ ] towards" him. Appellant "took off" running.

At the conclusion of the hearing, the court denied appellant's motion to suppress the evidentiary fruits of the search of the engine compartment of his car. Based, the court stated, on the totality of the circumstances, including both the characteristics of appellant, the entirety of the police conduct, and what was shown in the police body-worn camera footage, the court found that appellant voluntarily consented to the search by popping the hood in response to Officer Julien's request to do so. The court acknowledged appellant's testimony that he was "drunk and high at the time," his past unfavorable experiences with police, and "the societal context, which could lead young black men to fear contacts with the police." But two factors in particular "st[ood] out for the [c]ourt." First, the officers’ conduct was not coercive; as the court stated, this was "not an intimidation or duress situation." The officers did not stop appellant and "never detained" or even touched him. Rather, it was appellant himself who initiated the encounter by walking up to the police and volunteering that the Jaguar was his.

Second, the court found the evidence clearly showed that appellant voluntarily and knowingly consented to the search. "The police asked him to pop the hood" and the court found he did so "willingly" and "without any hesitation." There was no badgering, the court emphasized, just "a single question asked; ... a rather straightforward question and a rather straightforward response." Officer Julien's conversational "tone" and "inflection" confirmed that he was asking appellant a question and making a request, not issuing a command. The "police did not yell at him, they didn't raise their voice."

The court further found that the meaning of the request to "pop the hood" was unambiguous: "[t]he reason for asking to pop the hood is so that one could look under the hood," and "there can be no other purpose for popping the hood other than to open it." The court had no doubt appellant understood the police were asking him to unlatch the hood so that they could look inside the engine compartment; that was the "clear" and "common-sensical" reason, the court "didn't see or hear any confusion on [appellant's] part," and there was "nothing ambiguous" about his response.¹

Accordingly, the court ruled that appellant gave his consent for the police to lift the hood of his car and look into the engine compartment. In addition, the court deemed the ensuing search to be within the scope of appellant's consent. As the court noted, appellant did not "give the police consent to search the whole car," but only under the hood. The police did not exceed the limited scope of appellant's consent; "under the hood is where they found the gun, quickly, by looking with the flashlight." The gun was in "plain view" there.

Following the court's decision, appellant entered a conditional plea of guilty to the charge of carrying a pistol without a license, reserving his right to appeal the denial of his motion to suppress.

II.

Appellant argues that he did not voluntarily consent to unlock the hood of his car, and that even if he did, the police exceeded the scope of his consent by lifting the hood and looking in the engine compartment. We address each argument in turn.

A.

Under the Fourth Amendment, a warrantless search is " ‘per se unreasonable’ ... unless it falls within a few specific and well-established exceptions."² These exceptions include "a search conducted with the consent of the person being searched."³ The key to justifying such a search is voluntariness. The government bears the burden of establishing...