Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 09-17-2021

Case Style:

United States of America v. Walter Mabry

Case Number: 19-3050

Judge: Douglas H. Ginsburg

Court: United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Plaintiff's Attorney: Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Elizabeth Trosman, John
P. Mannarino, and Thomas Martin, Assistant U.S. Attorneys.

Defendant's Attorney:


Washington, DC - Criminal defense Lawyer Directory


Description:

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.
3
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?
4
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
5
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].”
6
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
7
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.
8
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.
9
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
10
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
11
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
12
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
13
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
14
compliance would be evidence of feigned submission. Catch22! Neither logic nor law supports that position

Outcome: 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.

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: