United Staes v. Pope

313 A.3d 565

UNITED STATES, Appellant,

v.Khalil K. POPE, Appellee.

No. 19-CO-1094

District of Columbia Court of Appeals.

Argued September 29, 2020

Decided April 18, 2024

Appeal from the Superior Court of the District of Columbia (2016-CF2-011849), (Hon. Michael O’Keefe, Trial Judge)

Matthew Covert, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the initial brief was filed, Michael R. Sherwin, Acting United States Attorney at the time the reply brief was filed, and Elizabeth Trosman, Nicholas Dingeldein, and Emma McArthur, Assistant United States Attorneys, were on the brief, for appellant.

Shilpa S. Satoskar, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellee.

Before Deahl, Associate Judge, and Ruiz and Glickman,^* Senior Judges.

Ruiz, Senior Judge:

The United States appeals the trial court’s grant of a motion to suppress physical evidence, in this case a firearm. First, the government contends that the trial court erred as a matter of law by finding that appellee, Khalil K. Pope, was seized within the meaning of the Fourth Amendment when he was pursued by police. This led the trial court to conclude that because the police had no reasonable articulable suspicion to stop Mr. Pope, the backpack the officers seized when they caught up with him was the fruit of an illegal seizure. Second, the government argues that Mr. Pope abandoned his backpack and, therefore, he had no reasonable expectation of privacy in the backpack and no standing to challenge its search and seizure of the gun found inside. We agree with the government’s first contention that the trial court erred in concluding that the officers’ mere pursuit constituted a seizure. We disagree with the second contention, and affirm the court’s suppression of the firearm on the alternative ground that, as a matter of law, the government did not bear its burden of proving that Mr. Pope had abandoned the backpack when the officers, without probable cause or a warrant, retrieved it from where appellant had hidden it in an out-of-the-way area of a private home with which he had a personal connection.

I. Factual Background

Mr. Pope was charged with Carrying a Pistol without a License (Outside Home or Business); Possession of an Unregistered Firearm; and Unlawful Possession of Ammunition in violation of D.C. Code §§ 22-4504(a); 7-2502.01(a); and 7-2506.01(3). He filed a motion to suppress the gun, and the trial court held a hearing at which the following facts were presented.

On July 26, 2016, Metropolitan Police Department ("MPD") Officers Di Lauri, Hildebrandt, and Van Hook were patrolling Riggs Road NE in the District of Columbia near the Maryland border. At approximately 6:28 p.m., the officers received a radio call from the Prince George’s County Police Department requesting assistance locating "a male supposedly armed with a gun" who had "just crossed over" from Maryland into D.C. near the 5800 block of Eastern Avenue. The MPD officers tried to obtain more information, asking PG County, "what’s the lookout?" PG County replied: "[a]ll I know at this point is that it’s a black male." The MPD officers began to drive their patrol car toward Eastern Avenue.

About five minutes later, PG County police radioed MPD additional details, saying that they had initially responded to a call for "[a] man with a gun" who was described as a "heavyset black male, wearing black clothing." PG County explained that their officers "did not see a weapon," but that "the individual gave flight when approached by officers."

While the MPD patrol car was still about two blocks away from Eastern Avenue, Officer Van Hook saw Mr. Pope, who "matched [the] lookout" from the radio call. Van Hook described Mr. Pope as a "heavyset black male" with "a black tee shirt around his neck" who was "sweating profusely." According to Van Hook, Mr. Pope was entering the "south alley of the 400-block of Riggs Road, Northeast, coming from Nicholson Street, Northeast." The officers turned their vehicle onto Nicholson Street "to begin to make contact with [Mr. Pope]," but as soon as Mr. Pope saw the marked MPD cruiser, he "looked directly at" the MPD officers and "began to flee."

The officers chased Mr. Pope down the alley. Van Hook and Hildebrandt said Mr. Pope ran into the backyard of 459 Riggs Road NE, entered the back door of the home, and shut it behind him. The three officers ran to the door Mr. Pope had entered. Finding it locked, Di Lauri knocked, and a "couple seconds later," a woman opened the door. Van Hook said that the woman "appeared very nervous or frantic, scared." Van Hook did not remember whether the woman gave permission to enter the house, only that she "moved out of the way" as she was opening the door and said something to the effect of "[h]e’s going downstairs."¹

Upon entering the house, Van Hook could not immediately see Mr. Pope, but after he turned a corner into the kitchen, he could see Mr. Pope’s head as he "r[an] down the stairs towards the basement." As the officers went down the stairs after Mr. Pope, they saw Mr. Pope "toss[ ]’’ a backpack into a back room in the basement. Di Lauri handcuffed Mr. Pope, and Van Hook entered the back room to search for the backpack. On cross examination, Van Hook agreed that on his bodyworn camera footage from that day, he may have said that Mr. Pope had "stashed" the backpack, not simply "tossed" it. Van Hook explained that the statements were not inconsistent, because he recognized that Mr. Pope was attempting to hide the backpack, stating that "if you toss something into an area and attempt to hide it, you’re tossing it to stash it."

According to Van Hook, "[l]ess than a minute" elapsed between the time that Di Lauri directed him to search the room for the backpack and when he located it. He said that he found the backpack "sitting kind of on the ground, against the wall" and that it was "somewhat under the staircase" and nothing was on top of it. He picked it up and squeezed the bottom because it felt heavy enough to contain a firearm. He felt the "mold" of a gun handle, looked inside the bag, and confirmed his suspicion that it held a gun. When defense counsel asked why four to five minutes elapsed between the time that the officers radioed that they had secured Mr. Pope and when they radioed that they had found a weapon, Van Hook said that radioing about the gun recovery was "not instant" and that he was not sure exactly how long he helped Di Lauri secure Mr. Pope before he went to search for the backpack.

Mr. Pope’s version was somewhat different. He testified that he double-locked the rear door to the house after he entered, went through the kitchen, and ran down the basement stairs, closing two additional doors behind him. Once he was in the basement, he went into the laundry room in the back and to a space underneath the stairs used for storage ("crates, containers, an old TV, [and] a couple of monitors"). He placed his backpack in the bottom of a plastic storage crate of his belongings that he kept in the house, underneath his "cousin Rob[’s]" crate, and then covered the backpack with clothing from the crate and placed Rob’s heavier crate back on top. He said that by the time the police officers opened the door at the top of the staircase, he was already walking back from the laundry room, and that when they got to the bottom of the stairs, he was sitting down. The officers then asked him where his backpack was. After Mr. Pope denied having had a backpack, one of the officers handcuffed him, and then both officers went into the laundry room and searched "for at least a good three minutes" before they found the backpack.

In its findings of fact, the trial court noted the "direct conflict" between the testimony of the MPD officer and Mr. Pope concerning the exact timing of the search for the bag and where it was found. The trial court explicitly declined to resolve the factual differences, stating that: "[i]rrespective of the precise moment when the officers ultimately stopped Mr. Pope, [Officer] Van Hook located a drawstring bag, which he picked up and felt what he recognized as the shape of a gun."² The trial court did, however, find that Mr. Pope intended to hide the gun, noting that he "hides the bag, stashes the bag." The court stated that the semantics about precisely how Mr. Pope disposed of his backpack did not matter because "ultimately he hid the gun. [Mr. Pope] was trying to hide the gun. Whether he shoved it, whether he dropped it, whether he placed it, whether he stuck it in the bin."

The trial court also heard testimony about Mr. Pope’s relationship to the Riggs Road house. After Mr. Pope was arrested, Van Hook asked him "do you live here or do you stay somewhere else?" Mr. Pope responded that he "stay[ed] somewhere else" and gave Van Hook an address in Laurel, Maryland. At the suppression hearing, however, Mr. Pope explained that he actually did live at the Riggs Road house two to three nights a week, but that he initially told the officers he did not live there to avoid Section Eight housing re- percussions for the home’s tenant, whom he had known since he was 13 years-old and referred to as his "Aunt Sheila" even though they were not actually related to each other. He referred to her son as "Cousin Rob."

After Mr. Pope was arrested in the basement, Di Lauri went upstairs to ask those present in the house who Mr. Pope is to them. Sheila responded that Mr. Pope was "just a friend[,] [h]e be around here with my son." Sheila also said that Mr. Pope "ran into [her] house" and that he "hadn’t been there in a minute." Sheila’s son Rob, said he had told Mr. Pope "not to come around here no more." At the suppression hearing, defense counsel pointed out that after Rob said he told Mr. Pope to stay away, Rob added "I should have kept it like that," implying, as defense counsel argued, that "whatever ban Rob thought that he had...