D.C.: Illegal patdown without RS caused def’s flight; discard of gun in flight excluded

The patdown of defendant was manifestly unreasonable, and defendant’s flight was thereafter. The exclusionary rule should be applied to this. Johnson v. United States, 2021 D.C. App. LEXIS 187 (July 15, 2021):

Here, Officer Brathwaite committed an illegal pat-down with the particular aim of finding a weapon. When asked why he wanted to pat down appellant, Officer Brathwaite testified: “They were just nervous …. It was just to make sure he had no weapons and to make sure that that he would not be … any kind of danger to the public or the officers once he’s outside the vehicle.” See United States v. Fernandez, 18 F.3d 874, 883 (10th Cir. 1994) (finding that the officer’s actions “had a quality of purposefulness” where the sole basis for detaining the defendant was because the officer felt that defendant was “definitely nervous” and that there was a “tension in the air”). However, a generic concern for safety, without anything more, does not permit an officer to violate the Fourth Amendment by conducting an investigatory search. See id. at n.6 (“[I]f an officer lacking reasonable suspicion wishes to address his safety concerns by detaining a suspect for questioning about guns and drugs, he may attempt to do so on a consensual basis.”). Officer Brathwaite’s pat-down falls within that category of purposeful misconduct that is “most in need of deterrence.” Strieff, 136 S. Ct. at 2063. The third factor of the attenuation doctrine thus fails to dispel the taint of illegality from Officer Brathwaite’s conduct.

The three factors, analyzed together, weigh in appellant’s favor, leading us to conclude that the primary taint of Officer Brathwaite’s illegal pat-down immediately after appellant exited the car had not been purged by the time the officers found the loaded gun moments later during their pursuit of appellant. Therefore, the officers’ subsequent discovery of a loaded gun must be suppressed as “fruit of the poisonous tree.” The trial court erred in concluding otherwise.