United States of America v. Walter Mabry

Washington, DC - Criminal defense lawyer represented defendant with possession with intent to distribute both crack cocaine and N-Ethylpentylone, possession of a firearm by a felon and possession of a firearm during a drug offense charges.

On April 21, 2018, shortly after 10:00 pm, three officers

of the Metropolitan Police Department drove in an unmarked

car to 37th Place S.E. They were members of the Department's

Crime Suppression Team, which "focuses on guns and drugs

* Then-Judge Garland was a member of the panel at the time this case

was submitted but did not participate in the final disposition of the

case.

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in high-crime areas;” each wore a full uniform and a body

camera. They were not responding to a report of criminal

activity. Rather, they were patrolling the area because it was

known to be one where gun- and drug-related crime was

prevalent. The officers "saw three men hanging out on the

sidewalk.... They didn't see them doing anything,” but

"nevertheless got out of the car to make contact and to talk to

[them].”

As the officers neared, one of the three men began to walk

away; Officer Goss approached him as he did. Mabry and the

third man stayed where they were on the sidewalk in front of a

fence. Officer Volcin approached Mabry and Officer Tariq

approached the third man. The man who had tried to walk

away became irate as Officer Goss spoke with him, so Officer

Tariq walked over to help and patted the man down.

Meanwhile, Officer Volcin stayed with Mabry – who

presumably could see what was happening a few feet away –

and the third man. Officer Volcin asked the third man for

permission to pat him down. Although the body-camera

footage does not capture an audio response, it shows that

Officer Volcin proceeded to pat the third man down with one

hand while holding a flashlight in his other. Seeing this, Mabry

raised his shirt and said, "I've got nothing on me,” and "you

have no probable cause to search me.”

At that point Officer Volcin noticed Mabry was carrying a

satchel secured by a strap across his body. According to

Officer Goss, his team "ha[d] run into many individuals who

are keeping firearms and narcotics ... in satchels because

they're more concealable than carrying a backpack.” Officer

Volcin asked Mabry about it:

Volcin: What's in your satchel?

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Mabry: What you mean? That's my— that's my stuff

in my satch. Nothing in my satch.

Volcin: Let me see [indecipherable]. Let's take a look

at it real quick.

Mabry: There's nothing in my satch, man. Come on,

man.

Volcin: You ain't got to open it. You ain't got to open—

Mabry: Come on, man. I don't got nothing on me. I'm

gonna, I'm gonna leave. I don't have nothing

on me. Sir, I don't have nothing on me.

Nothing.

Volcin: Satch—

Mabry: Nothing. Nothing. Nothing in my satch. Come

on, man.

Volcin: You got nothing in your satch?

Mabry: Nothing.

Volcin: Let me see it real quick. Let's see that.

Mabry: Come on. Come on, man.

Officer Goss testified that during this exchange Mabry

appeared to be "trying to blade his body, the right side of his

body, away from Officer Volcin's attention.” Officer Goss

also observed Mabry had been "very forthcoming prior to that,

in showing his waistband, that he didn't have anything in it, but

was trying to conceal the fact that he had a satchel over his

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shoulder.” Officer Volcin never grabbed Mabry or the satchel,

nor did he tell Mabry he could not leave.

Towards the end of the exchange Mabry appeared to

remove some headphones from his jacket pocket and show

them to Officer Volcin. He then took off running. Officer

Volcin gave chase and Officer Goss joined. As they were

running, Mabry discarded the satchel, which Officer Goss

recovered. Mabry eventually stopped running and Officer

Volcin handcuffed him. Officer Goss handed the unopened

satchel to Officer Volcin.

Officers Goss and Volcin walked Mabry back toward the

site of their initial encounter. As they did so, Officer Volcin

opened the satchel and discovered a spring for a large-capacity

magazine. While walking, Mabry made two unsolicited

statements indicating he was in possession of a firearm. He

later said the police were lucky he did not start shooting. In

response to questions about what he had in his pockets, Mabry

said he had drugs. As officers were discussing the satchel,

Mabry said it also contained drugs.

All in all, Mabry was found in possession of a Glock 26

9mm pistol, 30 rounds of ammunition, an extended magazine,

crack cocaine, and amphetamines. He was charged with

possession with intent to distribute both crack cocaine and NEthylpentylone, each in violation of 21 U.S.C. § 841(a)(1) and

§ 841(b)(1)(C), possession of a firearm by a felon, 18 U.S.C.

§ 922(g)(1), and possession of a firearm during a drug offense,

18 U.S.C § 924(c)(1).

Mabry moved the district court to suppress the physical

evidence and the incriminating statements. He argued he was

seized "either when he lift[ed] his shirt,” or "[d]uring the

course of the aggressive questioning from [Officer Volcin].”

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He contended no reasonable person would have felt free to

leave after seeing Officer Goss interdict the man who tried to

walk away and Officer Volcin pat down the man standing next

to Mabry; his flight, therefore, came after he had submitted to

police authority. Because the officers had neither probable

cause nor a reasonable suspicion when they seized him, Mabry

argued, all evidence obtained after he fled had to be suppressed.

The Government countered that the officers did no more than

ask questions, which does not alone give rise to a seizure; the

officers did not, for example, touch Mabry or physically limit

his ability to leave. It also argued Mabry abandoned the satchel

so he had no constitutionally protected interest in it.

The district court denied Mabry's motion. It observed the

pre-flight questioning was "a consensual encounter in the first

instance” because police officers do not need a suspicion, much

less probable cause, to approach a person and ask questions:

No seizure occurs "so long as a reasonable person would feel

free to leave.” Finding "no indicia that [Mabry and the other

men] were prevented from leaving,” the court concluded

Mabry's pre-flight interaction with Officer Volcin was

consensual. Mabry subsequently agreed to a stipulated trial to

preserve his right to appeal his motion; he then pleaded guilty.

II. Merits

Where a district court denies a defendant's motion to

suppress evidence, this court reviews the court's factual

findings for clear error and the legal question "whether and

when a seizure occurred” de novo. United States v. Delaney,

955 F.3d 1077, 1081-82 (D.C. Cir. 2020). "A Fourth

Amendment seizure occurs when physical force is used to

restrain movement or when a person submits to an officer's

show of authority.” Id. at 1081 (internal quotation marks

omitted). Mabry was not physically restrained, so he was

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seized if and only if (1) the police made a show of authority,

and (2) Mabry submitted to that show of authority. Mabry

bears the burden of demonstrating both elements. United

States v. Castle, 825 F.3d 625, 633 (D.C. Cir. 2016).

A. Show of Authority

"A show of authority sufficient to constitute a seizure

occurs where the police conduct would have communicated to

a reasonable person that he was not at liberty to ignore the

police presence and go about his business, or, put another way,

where a reasonable person would have believed that he was not

free to leave.” Delaney, 955 F.3d at 1081 (cleaned up). Courts

addressing this issue "consider the totality of the

circumstances, including whether the suspect was physically

intimidated or touched, whether the officer displayed a

weapon, wore a uniform, or restricted the defendant's

movements, the time and place of the encounter, and whether

the officer's use of language or tone of voice indicated that

compliance with the officer's request might be compelled.” Id.

(cleaned up).

Mabry highlights several facts to show the officers'

conduct amounted to a show of authority. First, he notes it was

nighttime when multiple uniformed officers approached

together, effectively "corral[ling]” him against a fence.

Second, he contends the officers' conduct towards the other

two men communicated that a reasonable person in his

situation would not feel free to leave. For example, he points

to Officer Goss's having walked toward the man trying to walk

away and "impeding his forward progress.” Mabry saw that

person was subsequently frisked. Third, Mabry claims Officer

Volcin's conduct, including his pat-down of the man standing

next to Mabry, conveyed an intention to search him as well.

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Fourth, he argues Officer Volcin's repeated instructions to

show the satchel conveyed that compliance was required.1



The Government argues the officers' conduct here did not

involve the kind of steps courts have found constitute a show

of authority: The officers did not use a siren, display weapons,

or aggressively control the three men's movements. Rather,

the Government argues they did no more than approach the

three men to ask some questions which, the Government notes,

we have held does not constitute a show of authority. See, e.g.,

United States v. Gross, 784 F.3d 784, 788 (D.C. Cir. 2015)

("Questions alone ... ordinarily do not amount to a 'show of

authority.'”); United States v. Goddard, 491 F.3d 457, 461

(D.C. Cir. 2007) (observing "the presence of multiple officers

does not automatically mean that a stop has occurred,” and

explaining the police may "approach individuals and interact

with them” without necessarily seizing them). Further, the

individual standing next to Mabry "casually walked away”

while Officer Volcin questioned Mabry, and the fence Mabry

was leaning against ended nearby, leaving an avenue for him

to leave. Finally, the Government contends Officer Volcin's

language and tone did not indicate Mabry was required to show

his satchel. According to the Government, that Mabry's

associates were patted down does not change this. See United

States v. Drayton, 536 U.S. 194, 206 (2002) ("The arrest of one

person does not mean that everyone around him has been

seized by police.”).

1 Mabry claims these statements were commands, not questions, and

any contrary finding by the district court was erroneous. See

Opening Br. at 26-27 ("'Let me see,' did not require an answer; it

told Mr. Mabry to do something.”). Although we tend to agree, we

need not decide whether the district court's contrary finding was

clearly erroneous because these statements are not necessary to our

conclusion that Mabry was seized.

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This case illustrates how a consensual encounter with the

police can, subtly but surely, ripen into a show of authority that

triggers the Fourth Amendment. Although no one of the facts

to which Mabry points would by itself constitute a show of

authority, when viewed together they tell a different story. The

Government is, of course, correct that the police "may

generally ask questions” of a person even when they "have no

basis for suspecting a particular individual.” Gross, 784 F.3d

at 787 (quoting Florida v. Bostick, 501 U.S. 429, 435 (1991)).

Critically, however, their questioning can evolve into a show

of authority if they "convey a message that compliance with

their requests is required.” Id. That is precisely what happened

here.

The Fourth Circuit's decision in United States v. Wilson,

953 F.2d 116 (4th Cir. 1991), is instructive. In that case, the

court analyzed "the effect of a person's unsuccessful attempt to

terminate what began as a consensual encounter.” Id. at 121.

Several police officers who were monitoring for drug activity

at an airport approached Wilson, an arriving passenger. Id. at

118. They asked if they could speak with him. Id. He agreed

and consented to a search of his bag and person. Id. The police

then noticed he had two coats and asked permission to search

them; Wilson angrily refused and began to walk away. Id. One

officer walked alongside Wilson and tried "to reason with

him.” Id. Wilson explained that "there were some private

things that he didn't want [the police] to see.” Id. When he

asked why the police were stopping him, the officer responded,

"I am not stopping you, you are free to leave, you can leave if

you like.” Id. The officer – who was still walking alongside

Wilson toward the airport exit – asked permission for a dog to

sniff the coats; Wilson refused. Id. at 118-19. As Wilson

exited the airport, the officer noticed one of the coats had a

"bulge coming from one of [its] pockets.” Id. at 119. He

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continued to press the defendant who was now walking down

a sidewalk outside the airport. Id. Wilson finally relented and,

after the officer discovered what turned out to be crack cocaine,

grabbed his coat and tried to flee. Id. at 119-20.

The court held this conduct amounted to a show of

authority:

[T]he persistence of [the police] would clearly convey to a

reasonable person that he was not "free to leave” the

questioning.... Despite his best efforts, Wilson was unable

to terminate the encounter, to ignore the police presence

and go about his business, or to go on his way. The

coercive effect of the policemen's actions must be

evaluated in light of Wilson's response.... The principle

embodied by the phrase "free to leave” means the ability

to ignore the police and to walk away from them.

Id. at 122 (cleaned up). The same principle, applied here,

shows a reasonable person in Mabry's situation would not have

felt free to leave. By the time Officer Volcin noticed the

satchel, Mabry had already seen the police prevent one of his

associates from leaving and pat down both of them. Even

assuming Officer Volcin did not command Mabry to show him

the satchel, the persistent nature of his questioning – which

continued despite Mabry's attempts to end the encounter –

communicated that Officer Volcin was not taking no for an

answer. The broader context intensified the coercive nature of

the encounter. For example, the entire encounter occurred at

night, with uniformed officers shining their flashlights at the

three men, while Mabry's avenues of egress were at least

partially restricted by the officers, their car, and a fence. See

Delaney, 955 F.3d at 1083 (finding a show of authority where

the police "pulled into a narrow parking lot at night; trained

their take-down light on the defendant's car; and, most

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importantly, parked their cruiser within a few feet of the

defendant's car” (cleaned up)). Considering all the

circumstances, a reasonable person would not have felt free to

ignore Officer Volcin and walk away.

The Government would have the court distinguish Wilson

and rely upon Gross: Unlike the officer in Wilson, "Volcin

asked only to see – not search – the satchel,” and the whole

"interaction [here] was very brief.” Whatever may be said of

those differences, they do not change the persistent nature of

Officer Volcin's questioning which, when viewed in context,

would convey to a reasonable person that walking away was

not an option.

The Government's reliance upon Gross is misplaced. The

defendant in that case argued he had been seized when a patrol

car pulled up and one of the four officers in it asked him – from

the car – whether he had a gun and if he would show his

waistband. 784 F.3d at 787. We held that did not constitute a

seizure of the defendant and noted that the defendant did not

argue the encounter "subsequently ripen[ed] into a seizure

when [a different officer] exited the police car and asked if he

could check [the defendant] for a gun.” Id. at 788. Therefore,

we had no occasion in Gross to analyze an officer's persistent

questioning of a person who clearly wished to terminate the

encounter. Id. That questioning, by itself, does not necessarily

constitute a show of authority does not mean questioning never

constitutes a show of authority regardless of the surrounding

circumstances.

B. Submission

Having concluded the police made a show of authority, we

must determine whether Mabry submitted to it. "[W]hat may

amount to submission depends on what a person was doing

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before the show of authority: a fleeing man is not seized until

he is physically overpowered, but one sitting in a chair may

submit to authority by not getting up to run away.” Delaney,

955 F.3d at 1084 (quoting Brendlin v. California, 551 U.S. 249,

262 (2007)).

Mabry argues he submitted by twice lifting his shirt to

show his waist "in response to Officer Volcin shining a

flashlight on him and speaking to him.” He had just seen the

officer shine his flashlight on and pat down the man next to

him, then shine the light back on himself. He also argues he

"continued to submit by remaining stationary against the

fence” during Officer Volcin's repeated demands to see his

satchel.

The Government argues any submission was feigned and

therefore does not count. In its telling, Mabry stayed to answer

questions "only as part of his gambit to divert Officer Volcin's

attention away from his satchel.” The Government also

contends Mabry's blading his body was a "furtive gesture[]”

and he "raised his shirt to appear cooperative, while actually

concealing the contraband-laden satchel.”

Our decision in United States v. Brodie, 742 F.3d 1058

(D.C. Cir. 2014), resolves this issue. In that case, two police

officers sat in their car waiting to search the house of a murder

suspect when they saw the defendant come out. Id. at 1060.

The officers pulled up to the defendant and one "got out of the

car and told [him] to put his hands on a nearby car.” Id. At

first he complied but shortly thereafter tried to flee. Id. We

found the defendant's submission genuine, even if brief:

Nor does anything in the record suggest that Brodie had

some ulterior purpose in putting his hands on the car, such

as a belief that doing so would facilitate escape. Contrary

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to the government's position, the short duration of

Brodie's submission means only that the seizure was brief,

not that no seizure occurred. Later acts of noncompliance

do not negate a defendant's initial submission, so long as

it was authentic.

Id. at 1061. Feigning submission makes sense only if done for

the purpose of "facilitating escape.” See id. ("[P]utting one's

hands on a car when ordered to do so is quite different from

stopping a car just until the moment that an officer's almost

inevitable exit provides an improved chance of escape.”).

By staying where he was even as Officer Volcin's

questioning grew more persistent and not leaving though he

clearly wanted to, Mabry submitted to Officer Volcin's show

of authority. That his submission was brief makes it no less

genuine. Nothing about his submission could have improved

his chances of escape.

The Government counters with United States v. Huertas,

in which the Second Circuit held a defendant did not submit

when he remained still and briefly answered questions police

asked from their car: He hoped that the officer "would drive

away after being satisfied with answers to his questions.” 864

F.3d 214, 217 (2017). Significantly, however, there is no

indication that the defendant in Huertas was trying to

communicate a desire to limit or end the encounter. Mabry, by

contrast, had been trying to do just that – most obviously when

he said "I'm gonna leave.”

The Government's argument boils down to saying

Mabry's submission to the police show of force – he did not

leave – must have been feigned because he did not further

consent to Officer Volcin's demand to examine the satchel.

Full compliance would be evidence of consent and partial

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compliance would be evidence of feigned submission. Catch22! Neither logic nor law supports that position

We conclude Officer Volcin’s persistent questioning,

viewed in the totality of the circumstances, would leave a

reasonable person with the view that he was not free to leave.

We also conclude Mabry submitted to that show of authority

by remaining where he was for a time. Therefore, we reverse

the district court’s denial of Mabry’s motion to suppress, vacate

Mabry’s conviction, and remand this case for further

proceedings consistent with this opinion.