Williams v. United States

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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 20-CM-0051

                          PIERRE WILLIAMS, APPELLANT

                                         V.

                            UNITED STATES, APPELLEE.


                          Appeal from the Superior Court
                           of the District of Columbia
                               (2019 CMD 10257)

                       Hon. Michael L. Rankin, Trial Judge

(Submitted June 1, 2021                               Decided September 29, 2022)

      Sicilia C. Englert was on the brief for appellant.

       Channing D. Phillips, Acting United States Attorney, and Elizabeth Trosman,
Erin M. DeRiso, and Ethan L. Carroll, Assistant United States Attorneys, were on
the brief for appellee.

      Before EASTERLY and DEAHL, Associate Judges, and THOMPSON,* Senior
Judge.



      * Senior Judge Thompson was an Associate Judge of the court at the time of
submission. On October 4, 2021, she was appointed as a Senior Judge but she
continued to serve as an Associate Judge until February 17, 2022. See 

 & 1504(b)(3). On February 18, 2022, she began her service as a Senior
Judge. See 

.
                                          2

      Opinion for the court by Associate Judge EASTERLY.

      Opinion by Senior Judge THOMPSON, dissenting in part, at page 7.

      EASTERLY, Associate Judge: Pierre Williams (whose true name is apparently

Eric Ross Williams) seeks reversal of his convictions for unlawful possession of

drug paraphernalia, 

(a)(1), and unlawful possession of a

controlled substance, 

(d)(1). 1 He argues that the trial court

erred in denying his motion to suppress (1) statements he made to police without the

benefit of Miranda warnings, (2) purported drug paraphernalia (a glass “stem” and

a rolled up dollar bill) found during a warrantless search of his car, and (3) crack

cocaine found in his sock during a subsequent search of his person. We review the

court’s factual findings for clear error and its legal rulings de novo. In re D.M., 

 (D.C. 2014). Based on the arguments briefed to the court, we vacate

in part and affirm in part.




      We turn first to Mr. Williams’s argument that the trial court erred in denying

his motion to suppress his incriminating statements, which the police elicited without

Mirandizing him. In issuing its ruling, the court correctly acknowledged that, after

the police stopped Mr. Williams for driving a car with stolen license plates, removed


      1
        Mr. Williams was also convicted of operating a motor vehicle without a
permit, 

(d), but raises no challenge to that conviction.
                                          3

him from his car, surrounded, searched, and handcuffed him, “he was clearly

detained [and] had no liberty to go anywhere.” But while acknowledging that Mr.

Williams had clearly been seized for Fourth Amendment purposes, the court

appeared to conclude that neither “the level of custody” nor the “public safety”

nature of the questions the officers posed to Mr. Williams implicated Miranda. We

cannot agree.




      Although the Fourth and Fifth Amendment inquiries are distinct, Miranda

does not require a greater degree of restraint than formal arrest, see Berkemer v.

McCarty, 

 (1984) (defining custody for Miranda purposes as

“comparable to [the level of restraint] associated with a formal arrest”), and a person

in Mr. Williams’s situation would not have felt they were “at liberty to terminate the

interrogation and leave,” see White v. United States, 

 (D.C. 2013)

(internal quotation marks omitted) (identifying this as the relevant inquiry for

assessing Miranda custody). Moreover, in that custodial situation, when the police

asked Mr. Williams an investigatory question about the presence of contraband in

his car that they reasonably should have known was likely to elicit an incriminating

response, 2 the standard for Miranda interrogation was squarely met. See Rhode


      2
       The police asked Mr. Williams, “Anything in the car we need to know about?
Drugs, guns, anything of that sort?”
                                          4

Island v. Innis, 

 (1980); accord Jones v. United States, 

 (D.C. 2001) (en banc). We therefore hold that the trial court erred in

denying Mr. Williams’s motion to suppress his un-Mirandized statements.




      Mr. Williams also challenges the admission of the stem and the dollar bill

found in his car after he was taken into Miranda custody. The court concluded that

these objects were in plain view, see Umanzor v. United States, 

, 998-

99 (D.C. 2002) (citing Horton v. California, 

 (1990)), in the

absence of any testimony to that effect. (The court observed that the police took a

photograph of the objects on full display on the passenger seat, and “usually, that’s

done to show defense or prosecution where something is when [the police] see it.”)

On appeal, the government acknowledges that the body-worn camera footage shows

that the stem and the dollar bill were not in plain view when the police approached

the car and that an officer had to go into the car and unfold a piece of cloth on the

front seat to make them visible. We conclude that the trial court’s factual finding

that the stem and dollar bill were visible from outside the car was without adequate

foundation and that its conclusion that the seizure of these items was justified under

the plain view doctrine was in error.
                                          5

      The government urges us to uphold the seizure of the stem and rolled up dollar

bill on different grounds, asserting that the police had probable cause to search Mr.

Williams’s car. 3 Specifically, the government suggests that, under United States v.

Patane, 

 (2004), any Miranda violation would not require the

suppression of any resulting physical fruits, and that Mr. Williams’s un-Mirandized

statements could establish probable cause for the search of the car. As it effectively

concedes, the government did not advance this theory before the trial court. 4 We


      3
        At trial, the government argued that the stem and dollar bill were separately
admissible under the doctrine of inevitable discovery because, once the police
lawfully discovered the drugs on Mr. Williams’s person (in his sock, see infra
discussion of the conviction for possession of a controlled substance), they would
have had a basis to search his car for drugs as well. However, the government
abandons this theory on appeal.
      4
         The government argues we should address this unpreserved Patane-based
probable cause argument for the first time on appeal because, it asserts, addressing
a purely legal question would not be procedurally unfair. Effectively, the
government appears to be asking this court to relieve it of its burden to justify the
legality of searches and seizures in the trial court. We decline to do so.

       Even though the government does not argue that it preserved a probable cause
argument, the dissent identifies places in the trial record where it perceives this
argument to have been made. In particular, the dissent highlights a sentence in the
government’s opposition to Mr. Williams’s motion to suppress where the
government argued that the court should recognize an “officer safety” exception to
Miranda, and then asserted that Mr. Williams had made an “admission in response
to an officer safety question” to which Miranda’s requirements did not apply
(emphasis added). The novelty of this reasoning aside, this one sentence cannot
reasonably be said to have raised an argument that a statement obtained in violation
of Miranda can alone provide probable cause for a subsequent search of Mr.
Williams’s car. And there is no indication in the record from the evidentiary hearing
that the trial court, or either of the parties, understood the government to be making
                                          6

therefore decline to consider whether the search of Mr. Williams’s car was lawful

on this basis. 5 See Robinson v. United States, 

, 341 n.24 (D.C. 2013)

(concluding that the government “forfeited its opportunity to defend its seizure and

search of [the defendant] based on [a] new theory” not litigated in the trial court).




      Without Mr. Williams’s statements regarding his possession of drug

paraphernalia or the items themselves, his conviction for possession of drug

paraphernalia lacks any evidentiary foundation and must be vacated. The same,

however, cannot be said of his conviction for drug possession. That conviction is

based on the drugs found on Mr. Williams’s person, which the court concluded were




that argument. Rather, the government (unsuccessfully) argued the stem and the
dollar bill would have been inevitably discovered based on the later search of Mr.
Williams’s person, see supra note 3, thereby seeming to concede that the search
required some basis outside of Mr. Williams’s un-Mirandized statements regarding
the contents of his car.
      5
         The dissent correctly notes that “parties are not limited to the precise
arguments they made below,” as long as the overarching claim was properly
presented before the trial court. Post at 9 (quoting Yee v. City of Escondido, 

 (1992)). But, setting aside that the government has not made a Yee-
based argument, to say that the government presented a “claim” under Patane to the
trial court would be to consider a “claim” at such a level of abstraction that the term
would lose all meaning. We would effectively be saying that the government could
preserve any and all arguments against suppression whenever it simply asserts its
agents did nothing wrong. We have never before in a criminal case permitted the
government such leeway, and we decline to set aside our standard preservation
requirements to allow for the government’s argument here.
                                         7

discovered in a search incident to his arrest. Mr. Williams argues that these drugs

were the fruits of earlier unauthorized conduct by the police. Even if we were to

assume that this argument is adequately preserved, Mr. Williams fails to substantiate

it on appeal. He argues conclusorily that “[t]he drugs found in [his] sock after his

arrest[] should have been suppressed as fruit of the poisonous tree” and fails to

explain why the search could not have been conducted incident to the original basis

of his arrest for possession of stolen license plates. See Comford v. United States,

 (D.C. 2008) (“[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”).

Thus, we conclude that the trial court did not err in admitting the cocaine from Mr.

Williams’s sock.




      For these reasons, we vacate Mr. Williams’s conviction for possession of drug

paraphernalia and affirm his conviction for possession of a controlled substance.




                                             So ordered.




      THOMPSON, Senior Judge, dissenting in part: In this case, appellant was
                                          8

stopped by police because the vehicle he was driving had tags that had been reported

stolen.    After the stop, officers asked appellant to step outside the vehicle,

handcuffed him, and, without reading him his Miranda rights, asked him whether

there was anything in the vehicle they should know about. Appellant responded that

he had a “stem” — a pipe used to ingest crack cocaine — on the front passenger

seat. The officers eventually looked on the front passenger seat of the vehicle and

found the stem with a white powdery substance on it and, in the same place, a rolled-

up dollar bill also containing a white powdery substance. Appellant argues that

discovery of the stem and rolled-up dollar bill — the basis of his conviction of

possession of drug paraphernalia — was the fruit of his un-Mirandized statements

and that the drug paraphernalia items should have been suppressed. My colleagues

in the majority agree, declining to consider the government’s arguments that under

United States v. Patane, 1 the physical fruits of appellant’s un-Mirandized statement

need not be suppressed and that there was no Fourth Amendment violation entailed

in the search that led to recovery of the stem because appellant’s statement about the

stem located on the passenger seat made the search for that item lawful.




      1
          

 (2004).
                                          9

      My colleagues’ stated reason for declining to consider the government’s

arguments is that the government forfeited its opportunity to defend its search based

on a new theory not litigated in the trial court. I respectfully disagree, as I believe

that my colleagues’ crabbed view of what was required to preserve the government’s

claim that the search violated neither Miranda nor the Fourth Amendment cannot be

squared with this court’s jurisprudence applying Yee v. City of Escondido, 

 (1992) (“Once a . . . claim is properly presented, a party can make any

argument in support of that claim; parties are not limited to the precise arguments

they made below.”). See Wilson-Bey v. United States, 

, 839 & n.39

(D.C. 2006) (en banc) (explaining that even though conspiracy and accomplice

liability “are distinct legal theories that require proof of different elements,” the

government’s invocation of a conspiracy theory “for the first time in its brief to the

en banc court might reasonably be viewed not as an impermissible new ‘claim,’ but

rather as a permissible new argument in support of a previously made and preserved

claim [regarding accomplice liability]” (citing Yee, 

)). 2



      2
         See also, e.g., D.C. Dep’t of Health v. D.C. Off. of Emp. Appeals, 

, 876 n.4 (D.C. 2022) (reasoning that agency’s argument that “any breaches of
the regulatory timelines were harmless” “adequately preserved for [appellate]
review” the agency’s argument that the regulatory ninety-day duration limit for an
employee performance improvement plan was directory rather than mandatory);
Miles v. United States, 

, 643 n.16 (D.C. 2018) (rejecting the
government’s contention that Miles’s failure to argue at the suppression hearing that
his flight was provoked, and his trial testimony that he did not flee from the officers
                                         10

      A review of the government’s written opposition and supplemental opposition

to appellant’s motion to suppress shows that the government’s principal arguments

were that there was no Miranda violation because appellant was not in custody when

he made his statements to the officer and that the stem and rolled-up dollar bill were

in plain view and also would inevitably have been discovered after the search

incident to appellant’s arrest revealed cocaine in appellant’s sock. But, in opposing

the motion to suppress, the government also argued that “even if [appellant] was in

custody [and Miranda was applicable]” the search that recovered the drug


at all, precluded him from arguing on appeal that any inference of consciousness of
guilt was unwarranted because his flight was provoked; noting that Miles “clearly
contended in the trial court that the police lacked reasonable suspicion to stop him”;
and reasoning that his failure to argue provocation “boiled down to a failure to
highlight certain facts that made his conduct less suspicious”); Anthony v. United
States, 

, 282 n.10 (D.C. 2007) (“[T]he underlying ‘claim’ was that the
prosecutor’s misstatements prejudiced Anthony and that the judge failed adequately
to cure the prejudice. The contention that the judge should have asked the court
reporter to read back the testimony, and that if he had done so the misrepresentations
could have been remedied, is simply a (somewhat) new argument in support of that
claim.”); West v. United States, 

, 868 n.3 (D.C. 1998) (holding that the
defense argument that “there was no constructive refusal to admit the police officers”
was sufficient to preserve for review the issue of whether the time lapse between the
officers’ announcement of their presence and their use of a battering ram to break
down defendant’s door was too short to establish compliance with the authorizing
statute); W.M. Schlosser Co. v. Md. Drywall Co., 

, 651 n.9 (D.C. 1996)
(“Robertson contends that the District failed to preserve the issue of whether the
construction work being performed by him was an inherently dangerous activity. . . .
The crux of the District’s argument now is that implicit in its argument in the trial
court that it owed no duty to Robertson — because it had delegated that duty to
Schlosser — is the theory that Robertson’s activity was not inherently dangerous.
We agree; the District’s argument below can fairly be held to encompass its
argument in this court.” (internal quotation marks omitted)).
                                          11

paraphernalia was lawful in light of appellant’s “admission . . . that he had a stem in

the vehicle.” 3 In other words, in the trial court, in response to the defense arguments

that the fruits of the search must be excluded under Miranda and the Fourth

Amendment, the government articulated essentially the same argument it has made

in its brief in this appeal: that any Miranda violation did not render the search based

on appellant’s voluntary statement unlawful, 4 and that there was no Fourth

Amendment violation entailed in the (front-passenger-seat) search that turned up the

stem and dollar bill.




      Moreover, the trial judge confirmed his understanding that appellant was

asking the court to rule that the claimed Miranda violation “would lead to the

suppression not only of the statements but of the fruits of the statement.” That is,

“the trial judge was fairly apprised as to the questions on which []he was being asked


      3
        To be precise, the government stated in its initial opposition, “However, even
if he was in custody, Defendant and the immediate area were lawfully searched, with
Defendant’s admission in response to an officer safety question that he had a stem
in the vehicle.” It repeated in its supplemental opposition, “However, even if he was
in custody, notwithstanding the officer’s inquiry about whether there were weapons
or anything the officers should know about[,] Defendant and the immediate area
were lawfully searched, with Defendant’s admission in response to an officer safety
question that he had a stem in the vehicle.”
      4
         In the trial court, appellant did not dispute the government’s assertion that
his statement about the stem was voluntary, and he does not contend on appeal that
his statement was involuntary.
                                          12

to rule,” which “preserved the . . . [Patane] issue for our review.” Tindle v. United

States, 

 (D.C. 2001) (internal quotation marks omitted). The

trial judge also understood that the government disputed the point, as the court

remarked that its finding that there was no interrogation for Miranda purposes “does

away with [the court’s need to analyze] the fruit of the poisonous tree thing.”

Further, the prosecutor’s argument apprised the court that the government was

linking the vehicle search with appellant’s admission about the stem. The prosecutor

told the court that in light of appellant’s “voluntary statement that there’s a stem in

there,” the “stem and that dollar bill was [sic] going to be found no matter what.”




      To be sure, the government did not cite to the trial court the authorities it cites

in its brief on appeal: Patane, 

 (holding that Miranda does not require

the suppression of the fruits of a voluntary but un-Mirandized statement made during

custodial questioning); and Mitchell v. United States, 

 (D.C. 2000)

(“Mitchell’s admission that he had marijuana in his car unquestionably established

probable cause to search the vehicle and any containers found therein that might

contain the contraband.”). But that is of no moment, because numerous decisions of

this court applying Yee have interpreted it to “permit us to consider on their merits

. . . the more refined arguments which appellate counsel . . . have made for the first

time on appeal.” Salmon v. United States, 

 (D.C. 1997); see supra
                                            13

n.2 and accompanying text; see also Baker v. United States, 

(D.C. 2005) (“[C]itation to a particular case is not a prerequisite to the preservation

of an objection for appellate review . . . .”).




      Taken together, the government’s written oppositions to appellant’s motion to

suppress tangible evidence and the prosecutor’s argument during the suppression

hearing can fairly be read to encompass claims that appellant’s un-Mirandized

admission that he had a stem did not require suppression of the fruits of the officers’

follow-up search of appellant’s vehicle, and that appellant’s admission about having

a stem on the front passenger seat of the vehicle rendered the search of that location

lawful under the Fourth Amendment. The government is entitled on appeal to make

additional arguments in support of those claims, including by making arguments

based on Patane and Mitchell. 5 Under those authorities, there was no legal basis


      5
         This is not a case in which the government has advanced a constitutional
claim for the first time, e.g., Gilchrist v. United States, 

(D.C. 2008) (“[T]he constitutional claim presented in this court is not ‘fairly
included’ in the question presented to the trial court regarding the question of a
witness’ general credibility. . . .”); or where the government’s arguments rely on
facts not established in the trial court, e.g., Jones v. United States, 

, 981
n.34 (D.C. 2010) (“[I]t is one thing to make new legal arguments on appeal to
support a claim made below. It is another thing to advance an entirely new factual
claim.”); or where evaluation of the government’s arguments requires consideration
of different rules of evidence than were the focus of the trial court’s ruling, e.g.,
Butts v. United States, 

, 415 n.7 (D.C. 2003) (“Because challenges to
                                        14

for suppressing the stem and dollar bill. 6 Accordingly, I would uphold appellant’s

conviction for unlawful possession of drug paraphernalia.




relevancy and expert qualification involve entirely different rules of evidence, we
view them as separate claims rather than as different arguments in support of the
same claim.”); or where “there is no meaningful resemblance between [the
government’s] position in the trial court and the claim that [it] presents to us,”
Perkins v. United States, 

, 609 n.9 (D.C. 2000). Nor is this a case in
which the government did no more in the trial court than argue that “its agents did
nothing wrong.” Ante at 6 n.5. Rather, this is a case in which the government,
having met its evidentiary burden of presenting facts showing that the search was
justified based on appellant’s statement about the stem, “presented the same general
theme in both courts and then added additional arguments on appeal in support of
the same theme.” Perkins, 

 n.9.
      6
        E.g., United States v. McCoy, 

 (2d Cir. 2010) (“[T]he
Government’s citation to Patane was not a new argument but rather supplied further
support for a contention that the Government consistently pressed: that the firearm
and ammunition should not be suppressed despite the officers’ failure to give
Miranda warnings.” (citing Eastman Kodak Co. v. STWB, Inc., 

(2d Cir. 2006), a Second Circuit case that itself cites Yee, 

)).