DC: Intoxicated defendant did or said nothing to justify frisk for a weapon

Defendant’s intoxicated rocking back and forth did not give any reasonable justification or suspicion for a frisk. No words or hand movement suggested he was armed, so his handgun is suppressed. Robinson v. United States, 2013 D.C. App. LEXIS 643 (September 26, 2013):

Alex A. Robinson appeals his convictions for unlawful possession of a firearm and possession of an unregistered firearm. He argues that his Fourth Amendment rights were violated when he was seized and searched by police in the absence of the reasonable, articulable suspicion required under Terry v. Ohio, 392 U.S. 1 (1968), to authorize a temporary detention and protective patdown. The Metropolitan Police Department (“MPD”) officers who seized and searched Mr. Robinson were part of the Gun Recovery Unit in the Narcotics and Special Investigations Division. To accomplish their mission of recovering guns, they employed a simple technique: they asked any individual they encountered if he or she had a gun and then watched to see if that individual engaged in what the officers perceived to be suspicious behavior. In this case, Mr. Robinson, who had just discarded a half-drunk bottle of vodka and appeared to be intoxicated, did not respond to the “do you have a gun?” inquiry. Instead, the police observed him make “back and forth,” “side to side” hand motions on his chest (he was wearing a winter coat, but he did not try to reach in any pockets or inside the coat). Based on these movements, the police grabbed, handcuffed, and searched Mr. Robinson; pursuant to this search, they found a small handgun in Mr. Robinson’s coat pocket.

The hearing court acknowledged that it could not “imagine a more spare set of circumstances” to justify a Terry stop and protective patdown but concluded “if only just barely, that the actions of the officer here are consistent with the Fourth Amendment.” We conclude otherwise. Although the reasonable, articulable suspicion threshold is low, it nonetheless requires an objective foundation both for the belief that an individual is engaged in criminal activity and, before a protective patdown is conducted, for the belief that the individual is armed and dangerous. We discern no such objective foundation here. Nothing about Mr. Robinson’s silent hand motions or any other facts known to the police objectively signaled that Mr. Robinson was possibly engaged in the criminal activity of possessing a gun or posed a threat to the police because he might be armed. Because the police did not have reasonable, articulable suspicion to seize and search Mr. Robinson, the handgun they recovered must be suppressed. We further determine that Mr. Robinson’s subsequent statements to the police must be suppressed as the illegal fruits of his unjustified seizure and search and thus we do not reach Mr. Robinson’s additional argument that these statements must be suppressed on Fifth Amendment grounds.