United States v. Leake ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. 19-cr-194 (KBJ)
)
ROBERT LEAKE, )
)
Defendant. )
)
MEMORANDUM OPINION
On June 6, 2019, a federal grand jury indicted Defendant Robert Leake of four
offenses related to his alleged unlawful possession of illegal controlled substances and
a firearm on May 28, 2019, while Leake was in the laundry room of the apartment
complex where he was residing. (See Indictment, ECF No. 1.) 1 Before this Court at
present is Leake’s motion to suppress the tangible evidence that was recovered incident
to his arrest for those offenses. (See Def.’s Mot. to Suppress (“Def.’s Mot.”), ECF No.
18.) Leake argues that he was subjected to an unlawful seizure in violation of the
Fourth Amendment when two District of Columbia Metropolitan Police Department
(“MPD”) officers entered the laundry room without a warrant and arrested him,
allegedly without sufficient cause. (See Def.’s Mot. at 1 (“The officers did not have a
warrant or probable cause to search or arrest Mr. Leake, or reasonable suspicion to stop
and frisk him when they arrested him.”); see also Def.’s Reply in Supp. of Mot. (“Def’s
1
The four charges in Leake’s indictment are: (1) unlawful possession of a firearm as a convicted felon,
in violation of 18 U.S.C. § 922(g); (2) unlawful possession with intent to distribute twenty-eight grams
or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); (3) unlawful
possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and
(4) using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1).
1
Reply”), ECF No. 21, 1–6.) 2 Leake also argues that his Fourth Amendment rights were
violated when the officers used force to execute the arrest. (See Def.’s Mot. at 1
(“Without observing any illegal activity, [the officers] approached [Leake] and forcibly
threw him to the ground and searched him.”); see also Def.’s Mot. at 3–4.)
This Court held an evidentiary hearing with respect to Leake’s suppression
motion on March 5, 2020, during which it heard testimony from two witnesses: Officer
Wilmino Pantaleon (one of the arresting officers) and a defense character witness, Ms.
Kyia Branham. (See Minute Entry of Mar. 5, 2020.) The Court also received evidence,
including videotaped footage of the events preceding, during, and after Leake’s arrest.
(See Gov’t Exs. 1, 2; Def.’s Exs. V1, V2, V3; see also Gov’t Ex. List, ECF No. 31;
Def.’s Ex. List, ECF No. 32.) 3 During a separate hearing held on May 5, 2020, counsel
for the prosecution and the defense presented legal arguments to the Court concerning
this evidence. (See Minute Entry of May 5, 2020.) As explained fully below, upon
careful consideration of the evidence and arguments, this Court has made numerous
findings concerning the facts related to events that preceded and encompassed Leake’s
2
Page-number citations to the documents that the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.
3
Six videotapes that depict the events surrounding Leake’s arrest were received into evidence. Two
came from the body-worn cameras of the arresting officers (see Gov’t Exs. 1A, 1B), and three others
contained clips from body-worn camera footage of other members of the MPD who arrived on the scene
after the arrest (see Def.’s Exs. V1, V2, V3). The sixth video came from the surveillance camera in the
laundry room that was the site of Leake’s arrest. (See Gov’t Ex. 2 (offering three contiguous clips from
the surveillance footage labeled as Exhibits 2A, 2B, and 2C).) The video from the officers’ body-worn
cameras is cited to herein as “BWC” followed by the time stamp that appears on the video at the
relevant moment. The officers’ body-worn cameras’ timestamp corresponds to “Zulu time,” which is
four hours ahead of Eastern Standard Time during the daylight savings period. (Mar. 5 Tr. 64:14–25.)
Some of the video footage contains both visual depictions and sound, while others only contain visual
depictions. As a general matter, body worn cameras can be activated by the officer, and when so
activated, the camera begins recording both video and audio. (See Mar. 5 Tr. 61:19–22.) Body worn
cameras that are operating in standby mode continue to record video without sound, and upon
activation, the previous two minutes of video footage, with no audio, is retained and can be retrieved
along with the footage that is recorded from the moment of activation. (See Mar. 5 Tr. 61:16–18.)
2
arrest, and it has also reached several conclusions of law related to Leake’s Fourth
Amendment arguments.
In short, and as explained below, the Court finds that Leake’s stance in the
corner of the laundry room was suspicious, and that upon approaching him, Officer
Pantaleon observed Leake holding a small clear plastic baggie containing a powder-like
substance. Officer Pantaleon reasonably believed that the baggie contained narcotics,
and as Officer Pantaleon grabbed Leake to investigate this suspicious activity, Leake
attempted to flee, which resulted in a prolonged physical struggle between the police
officers and Leake. Leake was not arrested for Fourth Amendment purposes until the
officers saw that he was carrying a gun on his person. And given these findings, the
Court further concludes that the officers’ actions were reasonable for Fourth
Amendment purposes. Officer Pantaleon had a reasonable articulable suspicion that
justified the initial investigatory stop of Leake, and he had probable cause to arrest
Leake when the gun fell out of Leake’s waistband. Moreover, Leake does not have
Fourth Amendment standing to claim that the officers’ presence in the building’s
laundry room constituted a constitutional violation from the outset, nor was the
officers’ use of force to detain and arrest Leake unreasonable given his active resistance
(which was captured clearly on the officers’ body-worn cameras and the laundry room
video surveillance system). Therefore, Leake’s Fourth Amendment rights were not
violated when the officers arrested him on May 28, 2019, and, accordingly, Leake’s
motion to suppress the tangible evidence recovered at the time of his arrest must be
DENIED. A separate Order consistent with this Memorandum Opinion will follow.
3
I. FINDINGS OF FACT
The events leading up to Leake’s arrest occurred at Edgewood Commons, a
residential community in the northeastern quadrant of the District of Columbia. (See
Mar. 5, 2020, Hr’g Tr. (“Mar. 5 Tr.”), ECF No. 30, 7:23–24.) 4 Edgewood Commons
consists of multiple apartment buildings of various sizes; the entire complex takes up
several city blocks. (See Mar. 5 Tr. 8:1–8.) Leake resides in a building in the
Edgewood Commons complex located at 525 Edgewood St. NE (hereinafter, the “525
Building”) (see Mar. 5 Tr. 9:17), which is separated by a common plaza area from 601
Edgewood St. NE (hereinafter, the “601 Building”), a large apartment building in the
same complex (see Mar. 5 Tr. 8:10–12; 13:24–14:5). There are approximately 200
units in the 601 Building. (See Mar. 5 Tr. 55:16–17.) The 601 Building also houses
after-school programs for children in the community. (See Mar. 5 Tr. 10:5–10.) The
program for younger students takes place in the basement of the 601 Building, and the
program for older students occurs in a space adjacent to the 601 Building. (Id.)
Notably, a resident of any of the buildings in the Edgewood Commons complex
has a key card that accesses only his own building—that is, the key card for one
building does not work on any other building in the complex. (See Mar. 5 Tr. 37:20–
25.) However, the doors of the 601 Building are often propped open, because there is
“heavy traffic at Edgewood[.]” (Mar. 5 Tr. 27:1–7.) In particular, “most residents”
enter through the side door of the 601 Building due to its proximity to the adjacent
4
The Court finds, as a general matter, that Ms. Kyia Branham presented relevant facts of which she had
first-hand knowledge in a frank and candid manner and that her testimony was generally credible.
Thus, the Court has accepted her testimony as its findings of fact concerning the Edgewood Commons
property, unless otherwise noted.
4
parking lot and the fact that the side door is “the most practical entrance to get into the
building[.]” (Mar. 5 Tr. 12:13–14; see also Mar. 5 Tr. 18:22–19:1.) Thus, although the
side door of the 601 Building is intended to be locked and only accessible to building
management (see Mar. 5 Tr. 41:21–42:3), that door is frequently held open, or
otherwise propped open, for use by Edgewood Commons residents (see Mar. 5 Tr.
30:15–22).
The laundry room in the 601 Building is large, and has a significant number of
laundry machines, in order to accommodate the number of residents in the 601
Building. (See Mar. 5 Tr. 16:3–10.) It is also easily accessible through the side door of
the 601 Building and is located in the basement of the building, across the hallway from
the after-school program for younger children. (See Mar. 5 Tr. 28:6–10; 28:22–30:9.)
Officer Pantaleon had been an officer with the MPD for more than five years at
the time of his testimony concerning Leake’s arrest. (Mar. 5 Tr. 46:20–22.) 5 In the
spring of 2019, Officer Pantaleon regularly patrolled at Edgewood Commons, due to the
high crime nature of the neighborhood (see Mar. 5 Tr. 89:23–90:2), and he visited the
601 Building, in particular, “once or twice a week,” entering the building through the
side door. (Mar. 5 Tr. 57:23–58:4.) The MPD officers generally have a good
relationship with the Edgewood Commons security officers, who have asked MPD
5
During the motions hearing, Officer Pantaleon testified to relevant facts of which he had first-hand
knowledge, and he did so in a candid manner. Officer Pantaleon is familiar with the Edgewood
Commons complex; he has training and experience with respect to narcotics investigations; and he
recalled the specific events related to Leake’s arrest. Moreover, Officer Pantaleon’s body worn camera
footage largely corroborates his testimony, and any discrepancies are not material to legal issues that
Leake’s motion raises. Therefore, this Court finds that Officer Pantaleon’s testimony was credible, and
unless otherwise noted, the Court has accepted his testimony regarding the circumstances of the
challenged seizure and arrest.
5
officers to “stop by” the property regularly while they are on patrol. (See Mar. 5 Tr.
64:1–7, 91:8–13, 99:11–13.)
Officers Pantaleon and Aaron Follman were on patrol in the Edgewood
neighborhood, at approximately 6:43 PM, on May 28, 2019. (See Mar. 5 Tr. 65:3–
66:5.) These officers’ sergeants had directed them to patrol in that neighborhood on
that day. (Mar. 5 Tr. 47:12–19, 51:23–25.) Officers Pantaleon and Follman entered the
601 Building through the side door, which was unlocked, and because the side door
lacked a handle, Officer Pantaleon used his fingertips to pry the door open. (Mar. 5 Tr.
57:11–15; Pantaleon BWC, Gov’t Ex. 1A, at 22:44:10–12.) 6 The unlocked side door
opened into a stairwell, and Officer Pantaleon walked up one short flight of steps and
then entered a long hallway through the first door that he came to off of the stairwell.
(Pantaleon BWC at 22:44:13–27.) While Officer Follman remained behind in the
hallway (see Mar. 5 Tr. 71:15–17), Officer Pantaleon decided to “check the laundry
room” because “usually people are in there doing stuff” (Mar. 5 Tr. 58:11–13). Officer
Pantaleon walked down the hallway until he reached the open door of the building’s
laundry room (on the right side) through which he then entered. (See Pantaleon BWC at
22:44:27–49.)
Upon walking into the open door of the laundry room, Officer Pantaleon
immediately spotted a man standing in the corner of the room, with his back to Officer
6
Officer Pantaleon testified that the officers had entered the 601 Building on that particular occasion
because they saw a man “playing with a snake” who was walking as though he “might have a gun on
him . . . who went into the side [door] of 601.” (Mar. 5 Tr. 53:8–14.) The body-worn camera footage
of the officers’ entry does not confirm this account, as no such man appears on the video, either when
the officers alighted from their parked patrol car and began walking into the building after Officer
Pantaleon pried the door open. Nevertheless, the Court need not make a factual finding with respect to
the officers’ purported reason for entering the building because, for the reasons explained in Part II.A,
infra, Leake does not have standing to challenge the lawfulness of the officers’ entrance into the 601
Building.
6
Pantaleon and his face close to the wall. (See Mar. 5 Tr. 58:18–21; Pantaleon BWC at
22:44:55–45:01.) The man—who was later identified as Leake—was standing between
two vending machines that were perpendicular to one another and was looking down at
his hands. (See Mar. 5 Tr. 58:18–21; Pantaleon BWC at 22:44:55–45:01.) Officer
Pantaleon testified that he thought “it was odd” to find a person standing in that
fashion, so he began walking through the laundry room toward Leake. (Mar. 5 Tr.
60:10–13.) As he approached Leake from behind, Officer Pantaleon saw that Leake
was “playing with something” in his hands, so he said to Leake: “Hey, buddy. What you
got there?” (Mar. 5 Tr. 68:9–16.) 7
Leake quickly turned his body away from the wall to glance briefly in Officer
Pantaleon’s direction, at which point Officer Pantaleon saw a clear plastic baggie in
Leake’s hand. (See Mar. 5 Tr. 60:13–14; Pantaleon BWC at 22:45:08–10.) The baggie
contained a light-colored powder-like substance. (See Mar. 5 Tr. 60:13–15, 69:7–8.) 8
And after seeing the baggie in Leake’s hand, Officer Pantaleon approached Leake and
grabbed Leake’s left arm. (See Mar. 5 Tr. 69:15–18; Pantaleon BWC at 22:45:13–14.)
When Officer Pantaleon cornered him and made physical contact in this way, Leake
7
There is no audio in the body-worn camera footage at this point, see supra note 3, but on the video, it
is apparent that Officer Pantaleon catches Leake’s attention somehow, because Leake turns quickly to
face out into the room and away from the wall, and he looks directly at Officer Pantaleon. (Pantaleon
BWC at 22:45:09–10.)
8
During his post-arrest statements, Officer Pantaleon described the substance that he saw in the baggie
in Leake’s hands in various ways: as “heroin” (Pantaleon BWC at 22:53:28), a “white” substance
(Radon BWC, Def.’s Ex. V3, at 22:59:58), and a “light-brown powder like substance” (Final
Investigation Report, Def.’s Ex. 8). The Court finds that these discrepancies concerning the color of
the substance (see May 5 Tr. 28:21–29:8) are immaterial, however, because Officer Pantaleon
consistently related that he observed a plastic baggie containing a substance that caused him, in that
moment, to form an opinion that the baggie contained narcotics, based on his training and experience
(see Mar. 5 Tr. 60:16–19, 69:9–13.) The body-worn camera footage, too, captures Leake at the moment
of confrontation, and he appears to have an object in his hand consistent with a small, clear plastic
baggie. Thus, the video corroborates Officer Pantaleon’s testimony. (See Pantaleon BWC at 22:45:09–
10.)
7
attempted to “run through” Officer Pantaleon to flee, and a struggle ensued. (Mar. 5 Tr.
at 69:20–70:5). Officer Pantaleon held his grip on Leake’s arm, but Leake managed to
push his way out of the corner between the vending machines and tried to pull away
from Officer Pantaleon in order to exit the laundry room through the open door. (See
Pantaleon BWC at 22:45:15–22; Laundry Room Surveillance Camera Footage
(“Surveillance Cam.”), Gov’t Ex. 2A, at 18:45:17–23.) 9 As Officer Pantaleon struggled
to restrain Leake, he called out for Officer Follman, and Officer Follman responded to
the laundry room shortly thereafter. (See Mar. 5 Tr. 71:8–14; Surveillance Cam. at
18:45:23.)
Both officers then tried to subdue Leake by pushing him down to the floor, and
during this struggle, a firearm fell from Leake’s person onto the ground near the open
doorway of the laundry room. (See Mar. 5 Tr. 74:2–7; Surveillance Cam. at
18:46:11.) 10 Officer Follman then pushed the firearm away from the doorway and in
front of one of the vending machines. (See Mar. 5 Tr. 74:19–20; Pantaleon BWC at
22:46:19–20; Surveillance Cam. at 18:46:18–19.) Leake briefly extended his arm
towards the firearm as Officer Pantaleon attempted to push him to the ground, and
Officer Pantaleon quickly pulled Leake’s arm back away from the firearm. (See
9
At this point, Officer Pantaleon’s body-worn camera becomes intermittently obscured as Leake and
Officer Pantaleon engage in a physical struggle and are in close proximity.
10
The angles of both the laundry room security camera and Officer Pantaleon’s body worn camera are
such that neither captures the firearm falling to the ground, but Leake does not appear to contest that
the firearm fell from his person. The laundry room camera footage does show a firearm appearing near
the doorway of the laundry room during the scrum, and, on Officer Pantaleon’s now activated body-
worn camera footage, someone can be heard to say “gun!, gun!,” which is consistent with Officer
Pantaleon’s testimony that Officer Follman was alerting him to the presence of a firearm. (Mar. 5 Tr.
73:15–19; Pantaleon BWC at 22:46:06–10.)
8
Pantaleon BWC at 22:46:19–20.) 11 At that point, Officer Follman pushed the firearm
underneath the vending machine and out of Leake’s reach. (See Mar. 5 Tr. 75:1–2;
Pantaleon BWC at 22:46:20–21.)
Leake and the officer continued flailing about on the floor of the laundry room
for approximately two and a half more minutes before the officers were finally able to
restrain Leake. (See Pantaleon BWC at 22:46:22–48:55; Follman BWC, Gov’t Ex. 1B,
at 22:46:19–48:55; Surveillance Cam. at 18:46:20–48:52.) Leake was “actively
resisting” the officers at every turn, by “kicking,” “stiffening up his arms,” “pulling,”
and “doing everything he c[ould] to get away from” them. (Mar. 5 Tr. 76:7–9.) 12 The
officers repeatedly told Leake to place his arms behind his back and Leake resisted
doing so, such that even after Officer Follman was able to get a hold of both of Leake’s
wrists in order to handcuff them, Leake managed to pull both of his arms out of Officer
Follman’s grasp. (See Pantaleon BWC at 22:46:43–47:50.) And throughout this melee,
the plastic baggie remained in Leake’s right hand, until he eventually dropped it on the
ground in his effort to resist being handcuffed. (See Pantaleon BWC at 22:47:03–
47:50.) Leake tried to pull away from the officers even after they had managed to
handcuff him. (See Pantaleon BWC at 22:48:05–50:50.)
Leake was then subjected to a search incident to his arrest. As the officers held
Leake down, Officer Follman opened a black case that Leake had dropped when Officer
Pantaleon first approached him. (See Pantaleon BWC at 22:50:00–03.) Inside the case
Leake disputes that he tried to reach for the firearm, but the body-worn camera footage corroborates
11
Officer’s Pantaleon’s testimony as to that fact. (See Mar. 5 Tr. 74:22; Pantaleon BWC at 22:46:19–20.)
12
The body-worn camera footage from both officers corroborates Officer Pantaleon’s testimony about
this prolonged, physical altercation. (See Pantaleon BWC at 22:46:22–48:55; Follman BWC at
22:46:19–48:55.)
9
was a large plastic bag filled with a white substance that was later identified as 50.54
grams of cocaine hydrochloride. (See Gov’t Mem. in Opp’n to Def.’s Mot. (“Gov’t
Opp’n”), ECF No. 20, at 5.) The small plastic baggie that Leake had dropped during
the scrum contained what was later determined to be 2.427 grams of heroin. (See id.)
And when they searched Leake’s person, the officers recovered a brown tissue that
contained a “white rock-like substance” that was later determined to be .203 grams of
heroin. (Id. at 5.) Leake was also carrying “30 packets of Buprenorphine and Naloxone
Sublingual Film[,]” a white plastic bag containing a “white rock-like substance” later
determined to be 3.122 grams of cocaine base, and “$700.00 in U.S. currency.” (Id. at
5–6.)
II. LEGAL ANALYSIS
Leake was indicted on June 6, 2019, of having committed four offenses that
violate federal law: (1) possession of a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g); (2) possession with intent to distribute twenty-eight grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); (3)
possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); and (4) possession of a firearm during a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). (See Indictment, ECF No. 1.) Leake’s opposed
motion to suppress the tangible evidence that the officers collected ripened on February
3, 2020. (See Def.’s Mot., ECF No. 18; Gov’t Opp’n, ECF No. 20; Def.’s Reply, ECF
No. 21.)
In his motion, Leake argues, first, that all of the tangible evidence in his case
should be suppressed because it was procured as a result of the MPD officers’ unlawful
10
entry into the 601 Building’s laundry room. (See Def.’s Reply at 1–2.) Leake further
insists that his own Fourth Amendment rights were violated because Officer Pantaleon’s
initial seizure of him amounted to a warrantless arrest without probable cause (see
Def.’s Mot. at 1–2), and because the officers used excessive force when arresting him
(see Def.’s Mot. at 3–4). These suppression arguments thus turn on three legal issues:
whether Leake has standing to challenge the constitutionality of the police officers’
presence in the apartment building’s laundry room; whether there was insufficient
reasonable suspicion or probable cause for Officer Pantaleon’s seizure of Leake; and
whether excessive force was used to restrain Leake in violation of his constitutional
rights. As explained below, the Court concludes that the answer to each of these
questions is no, and as a result, Leake’s motion to suppress must be denied.
A. Leake Lacks Standing To Challenge The Police Officers’ Presence In
The Apartment Building’s Laundry Room
1. A Person May Only Invoke The Exclusionary Rule To Suppress
Evidence Procured Through A Violation Of His Own Fourth
Amendment Rights
The Fourth Amendment provides, in relevant part, that the “right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated and no warrants shall issue, but upon probable
cause.” U.S. Const. amend. IV. “[W]arrantless searches are presumed to be
unreasonable”; therefore, “law enforcement officers generally must first obtain a
judicial warrant before searching a person or a person’s property for evidence of
criminal wrongdoing” unless a specific exception to the warrant requirement applies.
United States v. Wills, 316 F. Supp. 3d 437, 444 (D.D.C.), reconsideration denied, 320
F. Supp. 3d 140 (D.D.C. 2018). If “evidence [is] obtained in violation of the Fourth
11
Amendment[,]” the courts may apply the “exclusionary rule[,]” which “prohibits the
government from introducing [the unlawfully obtained evidence] in its case in chief.”
United States v. Weaver, 808 F.3d 26, 33 (D.C. Cir. 2015). However, and importantly,
“[w]hether a warrant is required is a separate question from . . . whether the person
claiming a constitutional violation has had his own Fourth Amendment rights infringed
by the search and seizure which he seeks to challenge.” Byrd v. United States, 138 S.
Ct. 1518, 1526 (2018). And it is well established that in order to invoke the
exclusionary rule to suppress evidence procured through a violation of the Fourth
Amendment, it is one’s own rights that must have been violated—that is, a person may
not invoke the exclusionary rule to vindicate the rights of a third-party who suffered an
unreasonable search or seizure. See Rakas v. Illinois, 439 U.S. 128, 134 (1978); see
also Byrd, 138 S. Ct. at 1526; Minnesota v. Carter, 525 U.S. 83, 88 (1998); Rawlings v.
Kentucky, 448 U.S. 98, 104 (1980). A defendant who is unable to establish that the
evidence at issue was unlawfully procured through a violation of his own Fourth
Amendment rights is sometimes said to lack “standing” to seek suppression of that
evidence. Byrd, 138 S. Ct. at 1530. 13
In order to determine whether a person has standing to challenge a warrantless
search and seek suppression of the resulting evidence—that is, whether a person has a
cognizable Fourth Amendment right that was infringed when the evidence was
13
The Supreme Court has explained that the definition of Fourth Amendment rights as personal rights
“is more properly placed within the purview of substantive Fourth Amendment law than within that of
standing.” Rakas, 439 U.S. at 140. Accordingly, although “[t]he concept of standing in Fourth
Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable
Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search;
. . . it should not be confused with Article III standing[.]” Byrd, 138 S. Ct. at 1530. For the ease of the
instant discussion, however, the Court will refer to a person’s ability to invoke the exclusionary rule
with respect to a Fourth Amendment violation as having standing to do so.
12
procured—courts consider two different, yet intertwined theories. First of all, a person
may have a common-law property interest and may claim that the law enforcement
officers unlawfully invaded that interest. See, e.g., United States v. Jones, 565 U.S.
400, 406 (2012) (finding that the Government violated the Fourth Amendment where,
pursuant to an invalid warrant, it physically intruded on the defendant’s property by
placing a GPS monitor on the defendant’s car). A person might also claim to have a
reasonable expectation of privacy that the officers unlawfully invaded. See, e.g., Katz
v. United States, 389 U.S. 347, 352 (1967) (finding that the defendant’s Fourth
Amendment right to privacy was violated where the Government, without a warrant,
used a recording device to capture a conversation occurring inside of a telephone
booth); id. at 360 (Harlan, J., concurring) (identifying the majority’s test as one of a
“reasonable expectation of privacy”). The Supreme Court has explained that the
reasonable expectation of privacy test “supplements, rather than displaces the
traditional property-based understanding of the Fourth Amendment.” Byrd, 138 S. Ct.
at 1526. Thus, these two theories can overlap—for example, a person who has a
common-law property interest often also has a reasonable expectation of privacy in the
property itself, such as the expectation of privacy that comes with ownership of a home.
See id. at 1527 (“[O]ne who owns and possesses a house[] almost always has a
reasonable expectation of privacy in it.”). But the two theories may also operate
separately—for example, a person might have a reasonable expectation of privacy in
property they do not own, such as an overnight guest in a friend’s home. See Jones v.
United States, 362 U.S. 257, 259 (1960).
13
With respect to the first theory and the concomitant determination of whether a
person’s common-law property interest has been invaded, “Fourth Amendment
jurisprudence [is] tied to common-law trespass[.]” Jones, 565 U.S. at 405. The
Supreme Court has not opined specifically on the scope of the relevant property interest
in the Fourth Amendment context. See, e.g., Byrd, 138 S. Ct. at 1531 (Thomas, J.,
concurring) (noting that there is an undecided threshold issue of “what body of law
determines whether [a] property interest is present—modern state law, the common law
of 1791, or something else?”). However, at least one circuit has endorsed the
Restatement (Second) of Torts definition, see United States v. Sweeney, 821 F.3d 893,
900 (7th Cir. 2016), which defines “trespass” as “intentionally [] enter[ing] land in the
possession of the other[.]” Restatement (Second) of Torts § 158 (emphasis added). The
Restatement further explains that “possession” is “occupancy of land with intent to
control it” and “occupancy” means to “manifest a claim of exclusive control of the
land[.]” Id. § 157. As the Seventh Circuit summarizes these concepts, “one must have
possession of the property in question and the ability to exclude others from entrance
onto or interference with that property.” Sweeney, 821 F.3d at 900; cf. Byrd, 138 S. Ct.
at 1527 (“One of the main rights attaching to property is the right to exclude others,
and, in the main, one who owns or lawfully possesses or controls property will in all
likelihood have a legitimate expectation of privacy by virtue of the right to exclude.”
(internal quotation marks and citation omitted)).
It is also noteworthy that a person’s privacy interest in real property extends to
the “curtilage”—defined as the area “immediately surrounding and associated with the
home[,]” Florida v. Jardines, 569 U.S. 1, 6 (2013)—which typically includes the front
14
porch or a side garden, see id. at 6–7. And when presented with a novel question of
whether or not a particular area constitutes curtilage, courts analyze four factors:
“(1) the proximity of the area to the home; (2) whether the area is within an enclosure
surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps
taken by the resident to protect the area from observation by passersby[.]” United
States v. Dunn, 480 U.S. 294, 301 (1987).
Under the second theory of Fourth Amendment standing, a reasonable
expectation of privacy exists where a person exhibits a subjective expectation of
privacy, but only if that expectation is one that society is prepared to recognize as
reasonable. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring); see also Byrd, 138 S. Ct. at 1526 (explaining that the reasonable
expectation of privacy test “derive[s] from . . . Justice Harlan’s concurrence in Katz”).
As relevant to the instant matter, the Supreme Court has not addressed directly whether
there is a reasonable expectation of privacy in communal areas of a multi-unit dwelling.
However, the weight of circuit-level authority holds that a tenant does not have a
reasonable expectation of privacy in the common areas of such a building. 14 This
14
See, e.g., United States v. Correa, 653 F.3d 187, 191 (3d Cir. 2011) (concluding that there is not a
reasonable expectation of privacy in unlocked as well as locked common areas of a multi-unit building
because any other resident could admit guests or others into the common areas, and the defendant could
not control access to these areas); United States v. Rheault, 561 F.3d 55, 61 (1st Cir. 2009) (finding
that there was no reasonable expectation of privacy in a common area due to the distance from the
defendant’s second-floor apartment to the third-floor common area, and tenants’ and guests’ frequent
access to the third-floor common area, and the inability of defendant-tenant to exclude others from the
area); United States v. Villegas, 495 F.3d 761, 768 (7th Cir. 2007) (finding no reasonable expectation
of privacy where other tenants’ guests and customers could access common area of a duplex); United
States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir. 2002) (finding that tenants in a “large, high-rise
apartment building, the front door of which has an undependable lock that was inoperable on the day in
question,” have no reasonable expectation of privacy because the public at large could enter building’s
common areas); United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999) (finding no reasonable
expectation of privacy where there was no possessory interest in the common area, other tenants had
access, and defendant failed to show that he had made efforts to exclude others from the area); see also
United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993) (quoting findings of court in United States
15
holding is typically reached after a fact-intensive inquiry about the particular spaces at
issue, but whether or not a tenant can exclude others from accessing the common areas,
and whether the common areas are open to either the general public or at least to guests
of other tenants, are often determinative of the reasonable expectation of privacy issue.
For example, in United States v. Anderson, 533 F.2d 1210 (D.C. Cir. 1976), the D.C.
Circuit held that a tenant had no reasonable expectation of privacy in the common
corridors of a rooming house because the corridors were accessible to “residents of the
rooming house, their guests, people making deliveries, and others who had a legitimate
reason to be on the premises.” Anderson, 533 F.2d at 1214. And the panel further
explained that, because the defendant’s “constitutionally protected privacy interest
began at the door to [his room] rather than at the door to the entire rooming house[,]” it
was unnecessary to determine whether the police officers had a constitutionally
sufficient reason for entering the building without a warrant. Id. 15
v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977), that a tenant in an apartment complex had no reasonable
expectation of privacy in a common area where other residents and their guests could enter); United
States v. Barrios-Moriera, 872 F.2d 12, 14–15 (2d Cir. 1989) (finding no legitimate expectation of
privacy in a common hallway of multi-dwelling apartment even when area is bounded by a locked
door), overruled on other grounds by Horton v. California, 496 U.S. 128 (1990).
15
It appears that the Sixth Circuit stands alone in recognizing a reasonable expectation of privacy in the
common areas of a locked apartment building. See United States v. Carriger, 541 F.2d 545, 551 (6th
Cir. 1976) (commenting that, in an apartment complex whose main entrance doors are locked, “[a]
tenant expects other tenants and invited guests to enter in the common areas of the building, but he
does not expect trespassers”). Although, notably, the Sixth Circuit’s holding appears to turn on
whether the exterior doors are secured, and its expectation-of-privacy reasoning does not extend to
unlocked apartment buildings. See United States v. Dillard, 438 F.3d 675, 684 (6th Cir. 2006)
(declining to conclude that there is a reasonable expectation of privacy in the common areas of a multi-
unit building when the external doors are unlocked).
16
2. Leake Cannot Seek Suppression On The Basis Of The Officers’
Alleged Trespass, Because The Officers’ Entry Into The Laundry
Room Did Not Violate Leake’s Own Fourth Amendment Rights
Given the legal standards that apply to the determination of whether or not Leake
can invoke the exclusionary rule and seek suppression of the evidence against him on
the grounds that the police officers had entered the 601 Building’s laundry room
unlawfully (see supra Part II.A), this Court can confidently conclude that Leake lacks
standing to argue for suppression, for several reasons.
First of all, Leake does not have a common-law property interest in the 601
Building’s laundry room. Nothing in the record establishes that Leake owns the 601
Building outright, nor has he shown that he leases the entire building or otherwise has
exclusive control over the 601 Building and its laundry room such that he may exclude
others. See Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95 Eng. Rep. 807
(C.P. 1765), for the proposition that “no man can set his foot upon his neighbour’s
[property] without his leave; if he does he is a trespasser”); see also Sweeney, 821 F.3d
at 900 (explaining that “[o]nly the building owner or landlord could bring suit” against
a trespasser in a multi-unit dwelling and collecting cases thereto). Indeed, it is not even
clear that Leake has a common-law property interest in any of the buildings in
Edgewood Commons, much less the 601 Building, where the laundry room at issue was
located. (See Mar. 5 Tr. 24:17–25:3 (Ms. Branham testifying that Leake lives with his
aunt in the 525 Building but noting that she has no knowledge of whether or not Leake
is listed on the lease of his aunt’s apartment).)
Even if Leake was considered to be an invited guest of a resident of the 601
Building who can thereby assert the common-law property interests of an actual tenant
(i.e., those of his host), see Collins v. Virginia, 138 S. Ct. 1663, 1668 n.1, 1671 (2018)
17
(suggesting that a guest has the same property interest in his host’s home and its
curtilage as his host), as defense counsel argues (see May 5 Tr. 14:15–15:11), 16 it is
clear to this Court that the laundry room of the 601 Building is not an area with respect
to which Leake (or his host) has the right to exclude others for the purpose of the
Fourth Amendment’s privacy analysis. That is, the evidence would have to demonstrate
that the 601 Building’s laundry room is so “intimately linked . . . physically and
psychologically” to an individual apartment that it constitutes curtilage for Fourth
Amendment purposes. Jardines, 569 U.S. at 7 (quoting California v. Ciraolo, 476 U.S.
207, 213 (1986)). But the laundry room in the 601 Building appears to be a
quintessential common area of this multi-unit residence and common areas are generally
considered to be outside the protected curtilage of a private residence. See, e.g., United
States v. Jones, 893 F.3d 66, 72 (2d Cir.), cert. denied, 139 S. Ct. 468 (2018) (finding
16
Leake solicited testimony from Ms. Branham, who resides in an apartment in the 601 Building, in
support of his contention that he was a guest of Ms. Branham’s and thus has Fourth Amendment
standing in the 601 Building (see, e.g., Mar. 5 Tr. 11:19–12:24); and, during the motion hearing the
Court held on May 5, 2020, the Government conceded that Leake was a guest for Fourth Amendment
purposes with respect to Ms. Branham’s apartment in the 601 Building (see May 5 Tr. 42:10–16).
Nevertheless, it is not clear to this Court that Leake was a guest of Ms. Branham, or any other
particular resident of the 601 Building, on the day of his arrest, which, in this Court’s view, is relevant
to the discussion of whether a guest has any meaningful relationship with his host’s property for the
purposes of the Fourth Amendment. See Minnesota v. Carter, 525 U.S. 83, 91 (1998) (suggesting that
the defendant’s legitimate presence in the host’s home is a factor in assessing whether a guest can
claim the protection of Fourth Amendment). And even assuming that Leake was a guest at the time of
the events in question, it is not at all clear that a guest has the same enforceable property rights as a
tenant. The Supreme Court in Collins did not decide that a guest can assert his host’s common-law
property rights to vindicate an alleged trespass; rather, the Court specifically noted that the State of
Virginia had conceded that “Collins ha[d] Fourth Amendment standing.” Collins, 138 S. Ct. 1663,
1668 n.1 (2018). And while the Supreme Court also cited Minnesota v. Olson, a case which holds that
an “overnight guest” has a reasonable expectation of privacy in his host’s home, see 495 U.S. 91, 96–
100 (1990), it did not engage in any meaningful discussion of whether a guest also inherits his host’s
common-law property interest, because Virginia did not contest that issue. See id. at 1676 n.1
(Thomas, J., concurring) (“Collins did not live at the house; he merely stayed there with his girlfriend
several times a week. But Virginia does not contest Collins’ assertion that the house is his, so I agree
with the Court that Virginia has forfeited any argument to the contrary.”). But see United States v.
Bain, 874 F.3d 1, 13 (1st Cir. 2017) (holding that an overnight guest may “maintain a common law
trespass claim”).
18
that a “common area accessible to other tenants” was not a part of the curtilage because
defendant “could not reasonably expect that it should be treated as part of his private
home” and defendant did not have “exclusive control” over the common area); Sweeney,
821 F.3d at 902 (applying the Dunn factors to hold that multi-unit dwelling’s shared
basement laundry room and storage space was not in the curtilage of tenant’s
apartment). 17
Indeed, nothing in the instant record indicates that the particular laundry room at
issue here should be treated as protected curtilage for Fourth Amendment purposes. For
example, Leake has presented no evidence suggesting that his host’s apartment was
actually proximately located to the laundry room where Leake was found at the time
that the officers confronted him. See Dunn, 480 U.S. at 301; see also Jardines, 569
U.S. at 6–7 (emphasizing that curtilage protection pertains to areas that are “adjacent
to” and “immediately surrounding” the home, such as a “porch or side garden”).
Instead, the laundry room at issue here is in the basement of the 601 Building, which
itself is a large, multi-story apartment building with more than 200 units. The laundry
room in the 601 Building is not “within an enclosure surrounding” any of the Edgewood
Commons apartments, much less the particular unit where Leake was a guest. Dunn,
17
As a reminder, the Dunn factors help a court to determine whether an area qualifies as curtilage by
assessing “the proximity of the area to the home”; “whether the area is within an enclosure surrounding
the home”; “the nature and uses to which the area is put”; and “the steps taken by the resident to protect
the area from observation[.]” Dunn, 480 U.S. at 301. Applying those factors, courts have consistently
concluded that communal areas outside one’s own apartment are not properly considered curtilage for
Fourth Amendment purposes. See also United States v. Jackson, 728 F.3d 367, 374 (4th Cir. 2013)
(applying Dunn factors to find that a “common courtyard area” was not within an individual
apartment’s curtilage); United States v. Brooks, 645 F.3d 971, 976 (8th Cir. 2011) (holding that
staircase leading to basement common area was not in the curtilage of tenant’s apartment); Carol A.
Chase, Cops, Canines, and Curtilage: What Jardines Teaches and What It Leaves Unanswered, 52
Hous. L. Rev. 1289, 1305 (2015) (analyzing cases and finding that “the overwhelming weight of
authority rejects the proposition that a resident of a multi-dwelling residential building can claim
curtilage protection in common areas”).
19
480 U.S. at 301; see also Sweeney, 821 F.3d at 902 (explaining that “the [curtilage]
question is not whether the area at issue was within the walls of the building, but
whether it was enclosed and intimate to [the] apartment itself”). Moreover, the motion
hearing testimony and video footage indisputably established that all tenants must exit
their apartments and traverse common corridors to reach the 601 Building’s laundry
room—a fact that makes it next to impossible to conclude that that common area
qualifies as curtilage that gives rise to protectible privacy interests. See, e.g., United
States v. Jackson, 728 F.3d 367, 374 (4th Cir. 2013) (finding that an apartment
complex’s common area was outside of the curtilage of an individual unit because it
was clearly distinguished from an individual tenant’s property line).
To be sure, as a general matter, a laundry room is in the nature of an area that
commonly exists inside a home. See Dunn, 480 U.S. at 301 (establishing that one factor
of curtilage determination is “the nature and uses to which the area is put”). But the
laundry room at issue here is not treated as a private extension of any tenant’s
residential space; instead, it is open to use by all residents and guests of the Edgewood
Commons complex, and there is no indication that any one resident can exclude anyone
else from that area (as one would be able to do while undertaking to do laundry inside
one’s own apartment). The indisputable common-area character of the laundry room in
the 601 Building thus renders defense counsel’s efforts to distinguish this area from
other common areas of the 601 Building entirely unpersuasive. (See May 5 Tr. 20:8–22
(counsel arguing that a laundry room encompasses more intimate activities than other
types of common areas).) And it also appears that Leake did not even try to exclude
others from the laundry room while he was in it. See Dunn, 480 at 301 (inquiring as to
20
whether the person with the purported property interest took measures “to protect the
area from observation by passerby”). That is, the video footage of the events
surrounding Leake’s arrest clearly shows people coming and going from the laundry
room; the door was not closed and access was not otherwise barred, and the interior of
the room was observable to anyone who walked through the hallway or who entered
through the laundry room door.
This Court also rejects the contention that Leake had a reasonable expectation of
privacy in the laundry room of this multi-unit apartment building, separate and apart
from whatever property interest he might have as the guest of a tenant of Edgewood
Commons. As explained above, courts have consistently concluded that there is no
reasonable expectation of privacy in the common areas of a multi-unit dwelling, which
are open for use by residents and their guests. (See supra note 14.) Furthermore, it is
clear on the instant facts that the large laundry room in the unlocked basement of the
601 Building was not only open to tenants and their guests but also, effectively, to the
public at large. In the camera footage that both parties submitted in this case, any of
the myriad people who enter and exit that room can see plainly that Leake was standing
in the corner, fiddling with something in his hands. Thus, this Court has little trouble
concluding that to expect privacy in a laundry room that is so fully accessible to
tenants, guests, and the public is not “[an expectation] that society is prepared to
recognize as ‘reasonable.’” Minnesota v. Olson, 110 S. Ct. 1684, 1687 (1990).
To the extent that Leake relies on Justice Jackson’s concurrence in McDonald v.
United States, 335 U.S. 451 (1948), for the proposition that a person’s Fourth
Amendment rights are violated merely due to a police officer’s alleged unlawful
21
“breaking and entry” in order to gain access to a building (see Def.’s Notice of Add’l
Auths., ECF No. 29, at 1–2), this Court notes that Fourth Amendment jurisprudence has
evolved significantly since McDonald, and, indeed, the McDonald ruling predates the
Supreme Court’s seminal opinion in Katz. Moreover, every one of the courts of appeals
that has addressed the issue of common areas has found, post McDonald, that there is
no reasonable expectation of privacy in such common areas of an apartment building,
and that appears to be so no matter how the officers entered. 18 Therefore, this Court
concludes that Leake does not have a protectable property interest in the laundry room
of the 601 Building, nor did he have any reasonable expectation of privacy with respect
to his activities in the common area of such a multi-unit residential building, and as a
result, Leake lacks Fourth Amendment standing to challenge the officers’ presence,
regardless of whether their entry into the building and/or the laundry room violated the
Fourth Amendment. See Anderson, 533 F.2d at 1214.
B. Officer Pantaleon Had Sufficient Cause To Seize Leake
Leake next argues that an unreasonable seizure of his person in violation of the
Fourth Amendment occurred at the moment that Officer Pantaleon grabbed his arm,
because Officer Pantaleon did not have a warrant or probable cause to effect that
seizure. (See Def.’s Mot. at 1–2.) But as explained below, the Court concludes that
Officer Pantaleon’s initial seizure of Leake was a permissible investigatory stop (thus it
required only reasonable suspicion), and at the point in which the stop became an arrest,
18
It is also far from clear that Officers Pantaleon and Follman actually entered the 601 Building
unlawfully. (See Def.’s Reply at 1, 4 (arguing that the officers’ warrantless entry into the 601 Building
was an unlawful trespass).) As this Court has already found, Officer Pantaleon had visited the 601
Building on multiple prior occasions, with the encouragement and consent of the building security, and
thus he may very well have had a legitimate right of access.
22
Officer Pantaleon had sufficient probable cause to make an arrest. Therefore, Officer
Pantaleon’s seizure of Leake did not violate the Fourth Amendment.
1. Officer Pantaleon Did Not Need Probable Cause To Seize Leake At
The Outset
A seizure of a person occurs for Fourth Amendment purposes when a law
enforcement officer, “by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). The
Fourth Amendment protects persons against unreasonable seizures by law enforcement,
which means, at a minimum, that any such seizure must “be founded upon reasonable,
objective justification.” United States v. Gross, 784 F.3d 784, 786 (D.C. Cir. 2015)
(citation omitted). If a warrantless seizure of a person occurs, probable cause to believe
that the person has committed a crime is generally the required justification, see
Maryland v. Pringle, 540 U.S. 366, 370–71 (2003); however, in Terry v. Ohio, the
Supreme Court announced a limited exception to this probable cause requirement. See
Terry, 392 U.S. at 20; see also Dunaway v. New York, 442 U.S. 200, 209 (1979). In
Terry, the Supreme Court held that “an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citing Terry, 392 U.S. at 30). This brief stop based upon reasonable
articulable suspicion has come to be widely known as a “Terry stop.” Id. at 126; see
also, e.g., United States v. Place, 462 U.S. 696, 705 (1983); United States v. Rasberry,
882 F.3d 241, 246 (1st Cir.), cert. denied, 139 S. Ct. 591 (2018).
It is also well established that “reasonable articulable suspicion” exists where
there are “specific and articulable facts” that, when considered together with the
23
rational inferences from those facts, indicate that criminal activity may have occurred
or may be occurring. Terry, 392 U.S. at 21, 30; see also United States v. Sokolow, 490
U.S. 1, 7 (1989) (noting that “the level of suspicion required for a Terry stop is
obviously less demanding than that for probable cause”). Courts that are called upon to
decide after the fact whether a police officer had a reasonable suspicion consider the
“totality of the circumstances . . . to see whether the detaining officer ha[d] a
‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v.
Arvizu, 534 U.S. 266, 273 (2002). “[A] single factor might not itself be sufficiently
probative of wrongdoing to give rise to a reasonable suspicion, [but] the combination of
several factors—especially when viewed through the eyes of an experienced officer—
may.” United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir. 2001).
The Government here does not contest that Leake was seized for Fourth
Amendment purposes when Officer Pantaleon cornered him between the vending
machines and grabbed his arm. But Leake argues that this seizure amounted to an
arrest, and thus required probable cause (see Def.’s Mot. at 2; May 5 Tr. at 34:9–10),
while the Government maintains that Leake was merely subject to an investigatory
Terry stop and that the encounter only escalated to an arrest after the firearm fell from
Leake’s person (see Gov’t Opp’n at 11). Thus, the first step in deciding whether or not
Officer Pantaleon’s initial act of grabbing Leake transgressed the Fourth Amendment is
to determine the nature of this seizure—i.e., investigatory stop or arrest—in order to
pinpoint the requisite level of suspicion necessary to justify that seizure of Leake’s
person.
24
“The point at which an investigative stop becomes an arrest is not marked with a
bright line” but “the [Supreme] Court has ‘emphasized the need to consider the law
enforcement purposes to be served by the stop as well as the time reasonably needed to
effectuate those purposes.’” Hall v. D.C., 867 F.3d 138, 153 (D.C. Cir. 2017) (quoting
United States v. Sharpe, 470 U.S. 675, 685 (1985)). It is important to note that,
physical contact does not, in and of itself, convert a Terry stop into an arrest. See
United States v. Purry, 545 F.2d 217, 220 (D.C. Cir. 1976) (holding that an officer can
grab the defendant’s arm and then handcuff the defendant in order “to maintain the
status quo momentarily while obtaining more information”); see also United States v.
Castle, 825 F.3d 625, 633 (D.C. Cir. 2016) (analyzing whether an officer had
reasonable suspicion to support a Terry stop where the officer ordered defendant to
remove hands from pocket and “initiated physical contact” by touching defendant’s
arm); United States v. Smith, 373 F. Supp. 3d 223, 237 (D.D.C. 2019) (finding that a
“valid Terry stop” occurred where officers approached defendant and “grabbed his
arm”). Indeed, the investigatory stop-or-arrest assessment is a more nuanced one,
requiring consideration of “the officer’s intent in stopping the citizen; the impression
conveyed to the citizen as to whether he was in custody or only briefly detained for
questioning; the length of the stop; the questions, if any, asked; and the extent of the
search, if any, made.” United States v. White, 648 F.2d 29, 34 (D.C. Cir. 1981)
(citations omitted). “[A] stop that is unduly prolonged or intrusive transforms from an
investigative stop into an arrest requiring probable cause.” Hall, 867 F.3d at 153.
Given these considerations, this Court finds that Officer Pantaleon’s initial
seizure of Leake did not amount to an arrest, and, therefore, probable cause was not
25
required. To begin with, Leake had positioned himself in a very suspicious manner in
the laundry room when Officer Pantaleon first caught sight of him. Both Officer
Pantaleon’s testimony and the body-worn camera footage show that Leake was standing
facing the wall, inches from the corner, at the far end of the laundry room, and in
between two vending machines. (See Mar. 5 Tr. 58:18–21, 68:2–3; Pantaleon BWC at
22:45:01–08.) It is also patently obvious that Leake was looking down at his hands,
which were holding something. (See Mar. 5 Tr. 68:9–11; Pantaleon BWC at 22:45:06–
08.) Officer Pantaleon approached Leake, and caught his attention from behind, at
which point Leake turned to look at him, revealing that he had a small clear plastic
baggie in his hand. (See Mar. 5 Tr. 68:16–69:8; Pantaleon BWC at 22:45:09–10.) This
brief exchange and series of observations were enough to cause an officer who has
experience with identifying narcotics sales to suspect illegal activity and do what
Officer Pantaleon did—which was to grab Leake’s arm to “stop him[.]” (Mar. 5 Tr.
69:18.) And based on the video footage, Officer Pantaleon’s act of grabbing Leake’s
arm was not unduly intrusive such that it became an arrest of Leake’s person. See
Purry, 545 F.2d at 220 (explaining that an officer may conduct a Terry stop by
physically restraining a defendant momentarily to “obtain[] more information”).
Leake’s reliance on a case from the District of Columbia Court of Appeals,
Upshur v. United States, 716 A.2d 981 (D.C. 1998), to insist that the Fourth
Amendment required that Officer Pantaleon have a reason to believe that Leake was
armed and dangerous prior to the seizure (see May 5 Tr. 32:12–33:6; Def.’s Notice of
Add’l Auths. at 3) is misplaced. In Upshur, the D.C. Court of Appeals found that the
defendant’s Fourth Amendment rights were violated where the officer “immediately
26
grabbed [defendant] and conducted a search of his closed fist, attempting to force his
fist open to see what he held without specific and articulable facts from which it could
be inferred reasonably that appellant was armed and presently dangerous.” Upshur, 716
A.2d at 985. But, Officer Pantaleon did not grab Leake’s arm in order to conduct a
search; instead, he grabbed Leake to stop him after observing what was, in his training
and experience, a baggie containing narcotics. (See Mar. 5 Tr. 69:18.) And,
importantly, when Officer Pantaleon grabbed Leake’s arm, he did not manipulate
Leake’s arm to conduct a search and thereby discover unobserved evidence of criminal
activity. Cf. Upshur, 716 A.2d at 985 (explaining that officers had not viewed narcotics
in defendant’s hand and thus conducted an impermissible search when they grabbed his
arm and forced his hand open).
The video footage that was submitted in this case also plainly reveals that after
Officer Pantaleon first made physical contact with Leake by grabbing his arm, Leake
then pushed around Officer Pantaleon in order to flee. To prevent this attempted flight
(which would certainly have impeded Officer Pantaleon’s investigation), Officer
Pantaleon attempted to restrain Leake, and Officer Follman subsequently joined in the
effort while Leake struggled to break free. The D.C. Circuit has explained that
“[l]evels of force and intrusion in an ‘investigatory stop’ may be legitimately escalated
to meet supervening events, such as attempted flight[.]” White, 648 F.2d at 40. And
given that these officers had to engage in a full-fledged physical altercation with Leake
in order to prevent his flight so that the initial investigation could continue, this Court
cannot find that their actions were “unduly prolonged or intrusive” such that the
investigatory stop was converted into an arrest. Hall, 867 F.3d at 153.
27
2. Officer Pantaleon Had A Reasonable, Particularized, And Objective
Basis For Suspecting Wrongdoing And Seizing Leake
In addition to concluding that Leake’s initial seizure qualified as an investigatory
stop, rather than an arrest, the Court further finds that there was sufficient justification
for Officer Pantaleon to execute such a stop of Leake. To use the parlance of the
applicable case law, given the totality of circumstances, Officer Pantaleon had “specific
and articulable facts which, taken together with rational inferences from those facts,”
gave rise to a reasonable suspicion that “criminal activity [was] afoot[.]” Terry, 392
U.S. at 21, 30; see also United States v. Arvizu, 534 U.S. 266, 273 (2002) (explaining
that the court must consider the “totality of the circumstances . . . to see whether the
detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing”).
Specifically, these facts include that the officers were on patrol in a high crime
area (see Mar. 5 Tr. 145:2); that Officer Pantaleon observed Leake standing closely to
and facing the wall in the corner of the laundry room between two vending machines in
an apparent effort to conceal himself (see Mar. 5 Tr. 58:19–21, 68:2–3; see also
Pantaleon BWC at 22:45:01–08); that Leake was looking closely at something in his
hands (see Mar. 5 Tr. 68:11; see also Pantaleon BWC at 22:45:06–08); that, as Officer
Pantaleon walked closer to Leake, the item in Leake’s hands—a small clear plastic
baggie that contained a powdered substance—became momentarily visible (see Mar. 5
Tr. 60:14–15, 69:7–8; see also Pantaleon BWC at 22:45:09–10); and that Officer
Pantaleon reasonably believed the powdered substance was illegal narcotics, consistent
with his training and experience (see Mar. 5 Tr. 60:16–19, 69:9–13). And although any
one of these known facts could certainly have had an individual, innocent explanation,
28
the Court must consider them in their totality, see Edmonds, 240 F.3d at 60, and in
doing so, this Court finds that this set of circumstances was sufficient to provide a
reasonable officer with a particularized and objective basis for suspecting criminal
wrongdoing, and as such, Officer Pantaleon’s initial seizure of Leake was properly
justified.
3. The Officers Had Probable Cause To Arrest Leake
There is no dispute that the initial investigatory stop of Leake eventually became
a warrantless arrest (which then gave rise to the search incident to arrest that yielded
the evidence that Leake says must be suppressed); consequently at some point in this
encounter, Officers Pantaleon and Follman were required to have probable cause to
believe that Leake had committed a crime. Probable cause exists when, under the
totality of circumstances, there is a “fair probability” that a crime has been committed.
Florida v. Harris, 568 U.S. 237, 244 (2013). And “[i]f an officer has probable cause to
believe that an individual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest the offender.”
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
Under established Fourth Amendment jurisprudence, the reasonable suspicion
that led Officer Pantaleon to confront Leake at the outset likely also constituted
probable cause to arrest Leake for suspected possession of illegal narcotics. In
particular, Officer Pantaleon had observed a powdered substance in a baggie in Leake’s
hands, which he believed to be narcotics based on training and experience. See United
States v. Jackson, 360 F. Supp. 2d 24, 27 (D.D.C. 2003) (finding plain-view observation
of narcotics sufficient probable cause). What is more, it is by now well established that
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reasonable suspicion can become probable cause if a defendant attempts to flee an
approaching officer. See United States v. Stubblefield, 931 F. Supp. 2d 118, 131
(D.D.C. 2013), aff’d, 820 F.3d 445 (D.C. Cir. 2016) (collecting cases). Furthermore,
where officers observe a concealed firearm under circumstances that suggested that the
weapon is being carried unlawfully—e.g., where the firearm falls from a suspected law
breaker’s waistband—that observation, too, establishes probable cause to arrest. See,
e.g., United States v. Moore, 75 F. Supp. 3d 444, 449 (D.D.C. 2014) (finding probable
cause where officer in pursuit of fleeing defendant observed gun fall from defendant’s
waistband); United States v. Tuten, 293 F. Supp. 2d 30, 32 (D.D.C. 2003) (“[O]fficers
had reasonable suspicion for an investigatory stop and even probable cause for arrest
after viewing the gun in plain view.”).
Thus, this Court has little trouble finding that Leake was lawfully arrested under
the totality of circumstances, because Officers Pantaleon and Follman had probable
cause to arrest him given Officer Pantaleon’s first-hand observation of Leake’s
possession of a powdery substance that the officer believed to be narcotics; Leake’s
flight upon being subjected to an investigatory stop; and a firearm falling from Leake’s
body during the struggle with the officers.
C. The Officers’ Use Of Force Was Constitutionally Permissible
Finally, the Court also rejects Leake’s contention that the evidence against him
must be suppressed due to the officers’ use of constitutionally unreasonable force in
bringing him to the ground during the seizure of his person. (See Def.’s Mot. at 3–4.)
The Supreme Court has recognized that “the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of physical coercion or
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threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989) (emphasis
added). Thus, a court reviewing the reasonableness of the use of force in this context
must look to “whether the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397. The factors to be considered include “the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id. at 396. And it is clear beyond cavil that, in the course of an investigatory
Terry stop in particular, a suspect’s flight is a sufficient reason for an officer to tackle
or force the suspect to the ground in order to stop the flight, and once brought to the
ground, an officer may even place the suspect in handcuffs if an officer has reasonable
concerns about safety. See United States v. Dykes, 406 F.3d 717, 720–21 (D.C. Cir.
2005).
This Court has no doubt that the force that Officers Pantaleon and Follman used
to stop Leake when he attempted to flee and resisted arrest was objectively reasonable.
There is no speculation whatsoever regarding Leake’s actions when the officer first
approached him and the physical force that was eventually applied, because the video
captures it clearly: Leake attempted to flee, and he then actively resisted any additional
contact with the officers, fighting them physically tooth and nail and refusing to comply
with their directions. Even so, the officers never drew their firearms, nor did they
utilize pepper spray or wield any other weapons in their effort to restrain Leake. They
only forced Leake to the ground, and after seeing the gun and pushing it out of the way,
they were finally able to put handcuffs on Leake, with his hands behind his back.
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Nothing that appears in the three videotaped depictions of the events that the Court
received into evidence indicates that Officers Pantaleon and Follman used force in an
objectively unreasonable manner. And, therefore, their use of force to seize and
restrain Leake, which, again, was fully captured from various angles on three different
videotapes, did not violate Leake’s constitutional rights.
III. CONCLUSION
For the foregoing reasons, this Court finds that Leake lacks standing to challenge
Officers Pantaleon’s and Follman’s alleged trespass into the 601 Building, and that
these officers had both reasonable suspicion and probable cause to seize Leake and then
ultimately arrest him on May 28, 2019. The Court further finds that the manner of
Leake’s arrest did not involve a constitutionally unreasonable use of force under the
circumstances presented. Therefore, as set forth in the accompanying Order, Leake’s
motion to suppress the tangible evidence against him on the grounds that it was
obtained in violation of the Fourth Amendment (ECF No. 18) must be DENIED.
Date: June 26, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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