06-CF-1313

In The

District of Columbia Court of Appeals
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THOMAS GREEN, Appellant, v. UNITED STATES, Appellee.
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On Appeal from the Superior Court of the District of Columbia — Criminal Division
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REPLY BRIEF FOR APPELLANT
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James Mangiafico* Mary Kennedy ARNOLD & PORTER LLP 555 12th Street NW Washington, DC 20004 (202) 942-5952 * Counsel for Oral Argument

TABLE OF CONTENTS Table of Contents..............................................................................................................................i Table of Authorities.........................................................................................................................ii Argument.........................................................................................................................................1 .I Mr. Green’s statement was elicited in violation of his Fifth Amendment rights..........1 .A Mr. Green’s statement was involuntary...................................................................1 .B Mr. Green’s statement was elicited in violation of Miranda...................................2 .1 Mr. Green’s statement was a response afforded Miranda protections.............................2 .2 The public safety exception does not apply because there was no threat outside of police control.......................................................................................................................3 .3 A reversal of the trial court’s Miranda ruling entitles Mr. Green to withdraw his conditional plea....................................................................................................................4 .II The police did not have reasonable suspicion at the time they seized Mr. Green.......5 Conclusion.......................................................................................................................................7

i

TABLE OF AUTHORITIES Cases California v. Beheler, 463 U.S. 1121, 1125 (1983).......................................................2 California v. Hodari D., 499 U.S. 621 (1991)...............................................................6 Dyson v. United States, 815 A.2d 363 (D.C. 2003).......................................................4 Florida v. J.L., 529 U.S. 266 (2000)..............................................................................6 Glenn v. Commonwealth of Virginia, 642 S.E.2d 282, 293 (Va. App. 2007).................5 In re D.E.W., 612 A.2d 194 (D.C. 1992)........................................................................6 In re I.J., 906 A.2d 249, 260 (D.C. 2006)..................................................................1, 4 James v. United States, 829 A.2d 963 (D.C. 2003)........................................................6 Jefferson v. United States, 776 A.2d 576, 579 (D.C. 2001)...........................................7 Morales v. United States, 866 A.2d 67, 71 (D.C. 2005)................................................2 Peay v. United States, 597 A.2d 1318 (D.C. 1991)........................................................6 State v. Juarez, 903 P.2d 241, 249 (N.M. App. 1995)....................................................4 State v. Piorkowski, 672 A.2d 921, 930 n.15 (Conn. 1996)...........................................4 United States v. Adams, 1 F.3d 1566 (11th Cir. 1993)...................................................2 United States v. Clipper, 313 F.3d 605, 607 (2002).......................................................7 United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992)...............................................6 United States v. Johnson, 107 Fed. Appx. 674 (7th Cir. 2004)......................................6 United States v. Johnson, 341 U.S. App. D.C. 289 (2000)............................................6 United States v. Mejia, 69 F.3d 309, 316 (9th Cir. 1995)...............................................4 United States v. Mendenhall, 446 U.S. 544, 554 (1980)................................................6 United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993)...................................................1 United States v. Turner, 761 A.2d 845, 851 (D.C. 2000)...............................................6 Rules Rule 11(a)(2)..................................................................................................................4

ii

ARGUMENT The remaining issues in this case center on the intersection of Fourth and Fifth Amendment rights. As this Court has recognized, the expansion of the government’s authority to stop individuals for investigation has implications for Fifth Amendment doctrine: When an encounter becomes dominated by police authority, the Fourth Amendment of the Constitution may not operate to prevent the investigation, but the Fifth Amendment may require that officers must make a choice—if they are going to take highly intrusive steps to protect themselves from danger, they must similarly provide protection to their suspects by advising them of their constitutional rights. In re I.J., 906 A.2d 249, 260 (D.C. 2006) (internal quotation omitted). In this case, the police did not make the required choice. They dominated Mr. Green by pointing their weapons at him and forcing him to lie face down on the ground, and then they questioned him without advising him of his constitutional rights. Mr. Green alleges that his seizure was impermissible, but even if the police were within their authority, they surely acted at the very limit of that authority and without providing the necessary protections of Mr. Green’s rights against self-incrimination. .I Mr. Green’s statement was elicited in violation of his Fifth Amendment rights. .A Mr. Green’s statement was involuntary.1

Because of the level of police force used during the investigatory detention of Mr. Green, his statement made during that detention must be considered involuntary for the purposes of the Fifth Amendment. Mr. Green has argued that this case in analogous to United States v. Perdue, in which the Tenth Circuit ruled that statements made during an investigatory stop were involuntary. See 8 F.3d 1455 (10th Cir. 1993). The United States attempts to distinguish Perdue from the instant case on the grounds that defendant in Perdue was questioned in a more isolated location and was confronted by more police officers and vehicles. See Brief for Appellee at 16
1

The United States suggests in a footnote that Mr. Green should be taken to have waived this argument, mistakenly asserting that it was not ruled on below. See Brief for Appellee at 16 n.15. But in fact the trial court did rule on the issue. See Transcript of proceedings of June 9, 2006 (hereinafter “Tr. II,” in accordance with the convention used in the opening brief) at 20; App. at 11a (“With respect to the Fifth Amendment claim that this statement was taken as either a Miranda violation or was involuntary. . . .”) (emphasis added). 1

n.15. But the similarities between the cases are more striking: both defendants had guns pointed at them, both were forced to lie face-down on the ground, and both were questioned by police officers standing over them. Furthermore, the United States does not attempt to analogize the instant case to any in which a statement was held to be voluntary. Consequently, Mr. Green’s statement and its fruits should have been suppressed. .B Mr. Green’s statement was elicited in violation of Miranda. .1 Mr. Green’s statement was a response afforded Miranda protections.2

Mr. Green contends that the trial court erred when ruling that his statement prior to arrest was not a “response” within the meaning of Miranda. The United States urges this Court to interpret that ruling as a finding of fact, deserving deference. See Brief of Appellee at 26-28. But none of the relevant facts are in dispute. The police asked Mr. Green one question several times: “Where is the gun?” Mr. Green’s attention was then diverted to an altercation between the police and one of Mr. Green’s companions. Then, approximately one minute after last having been asked the question, Mr. Green said: “Here’s the gun.” Tr. II at 10. If the trial court’s ruling were a finding of fact, it would have to be a finding that Mr. Green did not intend his statement to provide the officers with the information they requested. This is not a plausible interpretation of the trial court’s ruling, for such a finding would be clearly erroneous. It is impossible to believe Mr. Green did not intend to answer the question posed to him. It could not have been a mere coincidence that his statement contained the very information requested by the police. It is of no moment that Mr. Green might have had a discernable motive for responding to police questioning. The United States suggests that Mr. Green made his statement “because he
2

Despite never having argued the point at any time below, the United States now suggests in a footnote that Mr. Green was not in custody for Miranda purposes at the time he made his first statement. Even if this argument is not waived, it is without merit. An individual is in custody for Miranda purposes where there is “restraint on freedom of movement of the degree associated with a formal arrest.” Morales v. United States, 866 A.2d 67, 71 (D.C. 2005) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). It is not disputed that a police officer with his own hands forced Mr. Green to lie face down on the ground, and the police continued to stand above him, depriving Mr. Green of all freedom of movement. Although the United States cites no case in support of its argument, cases with facts similar to the instant case have held suspects to be in custody for Miranda purposes. See, e.g., United States v. Adams, 1 F.3d 1566 (11th Cir. 1993) (defendant in custody under Miranda where forced to lie down on stomach at gunpoint). 2

wanted to ease the escalating confrontation between [Mr.] Price’s wife and the police.” Brief for Appellee at 27. But Miranda protections are not limited to those responses motivated by an unadulterated desire to be helpful. What matters is that the statement was a response to custodial interrogation, regardless of its motive. A more plausible interpretation of the trial court’s ruling is that it was a legal conclusion, holding that a response made after a one minute diversion is not a “response” within the meaning of Miranda. The United States cites no precedent for such a conclusion, and Mr. Green is aware of none. .2 The public safety exception does not apply because there was no threat outside of police control.

Mr. Green also contends that the trial court erred when ruling that the public safety exception to Miranda applies in this case, because there was no threat to public safety that was not already under police control. As explained in the opening brief, the cases recognizing the public safety exception, including all of those cited by the United States in its brief, involve situations in which there was reason to fear the existence of a dangerous weapon outside of the control of the police. The instant case presents no such concern, and therefore the public safety exception ought not to apply. The United States responds that because Mr. Green had attempted to enter the van after seeing the police, the police could not be sure that he hadn’t placed the gun in the van or given it to Ms. Johnson, who was in the van. See Brief for Appellee at 30-31 n.19. But there is no evidence that Mr. Green was ever out of sight of the police or had the opportunity to dispose of the gun. And even if he had such an opportunity, the van and Ms. Johnson were entirely within police control. In fact, the police removed all of the occupants from the van. In short, there was no reason to believe the gun could have been anywhere but within police control, so there was no justification for the public safety exception to Miranda. The instant case presents a direct contrast to cases such as Dyson v. United States, 815 A.2d 363 (D.C. 2003), which applied the exception where the police, having briefly lost sight of 3

an armed suspect and later apprehended him, questioned him about the location of a gun after searching both him and the surroundings. Here, the police did not frisk Mr. Green or search the van. This is to say that the police did not make the very choice this Court requires of them. Despite having “take[n] highly intrusive steps to protect themselves from danger,” they did not “similarly provide protection to their suspects by advising them of their constitutional rights.” In re I.J., 906 A.2d at 260. .3 A reversal of the trial court’s Miranda ruling entitles Mr. Green to withdraw his conditional plea.

Mr. Green entered a plea of guilty on the condition that, should he prevail on appeal, he would be allowed to withdraw his plea. Rule 11(a)(2) of the Superior Court Rules of Criminal Procedure specifically provides that “[a] defendant who prevails on appeal shall be allowed to withdraw the [conditional] plea.” It does not appear that this Court has had the opportunity to reach the question of whether a defendant who only partially prevails on appeal is allowed to withdraw a conditional plea, but other jurisdictions with similarly worded rules have allowed defendants to withdraw their pleas in such situations. See, e.g., United States v. Mejia, 69 F.3d 309, 316 (9th Cir. 1995) (“If any ruling that forms a basis for the conditional plea is found to be erroneous, we are required to permit the defendant to withdraw his plea.” (emphasis in original)); State v. Juarez, 903 P.2d 241, 249 (N.M. App. 1995) (“We also note Defendant’s guilty plea was entered on the express, stipulated condition that the plea could be withdrawn if he was successful on appeal. Here, Defendant is partially successful. Accordingly, we remand so that Defendant may have the opportunity to reassess the admissible evidence in this case and either plead guilty or proceed to trial.”); State v. Piorkowski, 672 A.2d 921, 930 n.15 (Conn. 1996) (In the event defendant prevails partially on appeal, “the appellate court would order the judgment of the trial court, based upon the defendant’s conditional nolo contendere plea, reversed, and the case remanded for further proceedings. On remand, both the state and the defendant would then have to reevaluate their respective positions in light of the availability of some, but not all, of the evidence gathered as a result of the search.”); Glenn v. Commonwealth of Virginia, 642 S.E.2d 4

282, 293 (Va. App. 2007) (“Accordingly, in situations where an appellant has conditionally pleaded guilty . . . and has been partially successful on appeal, I would hold that the appropriate remedy is to remand the case ‘so that Defendant may have the opportunity to reassess the admissible evidence in this case and either plead guilty or proceed to trial.’” (quoting Juarez)) (Humphreys, J., dissenting on other grounds). The United States writes that “even if appellant’s statement should have been suppressed, the gun would still have been admitted, and the evidence would have been sufficient to establish appellant’s guilt for the purposes of a guilty plea.” Brief of Appellee at 31. But the question under Rule 11 is not whether the remaining evidence would be sufficient to support a guilty plea but rather whether the suppressed evidence contributed to the decision to enter the conditional plea. Mr. Green entered his plea based upon an erroneous ruling on his motion to suppress his statement, and therefore a reversal of that ruling entitles him to withdraw his plea. .II The police did not have reasonable suspicion at the time they seized Mr. Green.3 Mr. Green also contends that his initial seizure violated his Fourth Amendment rights because it was conducted without a reasonable suspicion of criminality. Because the police were acting on the basis of an anonymous tip given over the telephone, and because Florida v. J.L., 529 U.S. 266 (2000), teaches that such a tip alone does not constitute reasonable suspicion, the United States attempts to justify the seizure of Mr. Green on the basis of a hand gesture Mr.
3

The United States now contends, for the first time and in a footnote, that Mr. Green was not seized within the meaning of the Fourth Amendment when the police officers pointed their guns at him. See Brief for Appellee at 20-21 n.16. “A seizure occurs when the police have by word or conduct manifested to the suspect that he is not free to leave, and in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Turner, 761 A.2d 845, 851 (D.C. 2000). The Supreme Court has specifically said that “circumstances that might indicate a seizure” include “the display of a weapon by an officer.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). And other courts have held that the use of weapons during a stop constitutes a seizure. See, e.g., United States v. Johnson, 107 Fed. Appx. 674 (7th Cir. 2004) (suspect was seized where police officer pulled out a gun and warned suspect not to walk further). The United States cites California v. Hodari D., 499 U.S. 621 (1991) for the proposition that Mr. Green “was not seized for purposes of the Fourth Amendment until either: 1) he submitted to a display of police authority, or 2) the police used physical force against him.” Brief for Appellee at 20-21 n.16. Yet Hodari D. did not involve the use of weapons, which constitute a use of physical force under its test. 5

Green made toward his waist. Mr. Green has always maintained that his gesture was much less suspicious than anything in existing caselaw that has been found to corroborate an anonymous tip. The United States makes two points in response. First, the United States cites four cases involving gestures or motions of various kinds. See Brief for Appellee at 22 (citing In re D.E.W., 612 A.2d 194 (D.C. 1992), United States v. Johnson, 212 F.3d 1313 (D.C. Cir. 2000), Peay v. United States, 597 A.2d 1318 (D.C. 1991), and James v. United States, 829 A.2d 963 (D.C. 2003)). These cases are simply inapposite. None of them involves an anonymous tip, so they cannot be precedent for the proposition that a gesture to the waist is sufficient to corroborate an anonymous tip. Furthermore, two of the cases—D.E.W. and James—were decided before Florida v. J.L., when the law in the District of Columbia recognized reasonable suspicion on the basis of an anonymous tip alone.4 Therefore, District of Columbia cases from that time are not reliable precedent for determining which actions are sufficient to establish reasonable suspicion in anonymous tip cases after Florida v. J.L. Second, the United States compares the instant case to Jefferson v. United States, 776 A.2d 576, 579 (D.C. 2001), discussed in detail in Mr. Green’s opening brief. See Brief for Appellee at 23-24. The United States argues that Mr. Green’s hand gesture toward his waist is analogous to the defendant in Jefferson’s emerging from a fenced area reasonably perceived to be off-limits to the public and housing the entrance to the cashier’s office of the gas station whose “imminent robbery” had been reported to the police. According to the United States, just as the behavior in Jefferson “could very well have been innocent,” so too could Mr. Green’s gesture corroborate an anonymous tip because “the reasonable suspicion requirement does not compel the police to view ambiguous conduct innocently.” Brief for Appellee at 23 (quoting Jefferson, 776 A.2d at 579).

4

Compare United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992) (upholding, prior to Florida v. J.L., a stop solely on the basis of an anonymous tip) with United States v. Clipper, 313 F.3d 605, 607 (2002) (“both parties agreed at argument that for purposes of this case the officers’ stop of Clipper should be assumed to be unconstitutional under Florida v. J.L.”). 6

It is true that both Mr. Green’s actions and those at issue in Jefferson are susceptible of both innocent and incriminating interpretations, as all actions are. But not all interpretations are equally plausible. It is of course possible that the man emerging from the cashier’s office of the gas station only shortly after its imminent robbery was reported was merely an employee, but such an interpretation hardly seems likely. Mr. Green’s touching of his waist might have been an innocent adjusting of his pants or it might have been the incriminating check of his gun. The material point is that the innocent interpretation of his act is significantly more plausible than that of the actions in Jefferson or in any other case finding reasonable suspicion based on an anonymous tip. This Court will have to decide how likely an incriminating interpretation has to be in order for the behavior to be sufficiently suspicious to corroborate an anonymous tip. Mr. Green submits that affirming the ruling below will render meaningless the Supreme Court’s ruling in Florida v. J.L., for it is difficult to imagine many anonymous tip cases that do not involve gestures as benign as a touch of the waist. CONCLUSION For the reasons set forth above, Mr. Green respectfully requests that the order denying his motion to suppress evidence be reversed, that his conviction be vacated, and that the case be remanded to the Superior Court for the District of Columbia so that he may withdraw his conditional plea. In the alternative, for the reasons set forth in his opening brief and in the brief of the United States, Mr. Green requests that his sentence be vacated and the case be remanded for sentencing. Respectfully submitted,

_____________________________ James Mangiafico, Bar No. 481689

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Mary Kennedy, Bar No. 390622 ARNOLD & PORTER LLP 555 Twelfth Street, NW Washington, DC 20004 (202) 942-5000

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Brief has been served, by hand, upon Suzanne G. Curt, Esq., Appellate Division, Office of the United States Attorney, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20530, this 15th day of November, 2007.

___________________________ James Mangiafico