Tom Green Reply Brief

8/14/2019 Tom Green Reply Brief

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TABLE OF CONTENTS

Table of Contents ..............................................................................................................................i

Table of Authorities .........................................................................................................................iiArgument .........................................................................................................................................1

.I Mr. Greens statement was elicited in violation of his Fifth Amendment rights..........1

.A Mr. Greens statement was involuntary................................................................... 1

.B Mr. Greens statement was elicited in violation of Miranda...................................2

.1 Mr. Greens statement was a response afforded Miranda protections.............................2

.2 The public safety exception does not apply because there was no threat outside of

police control....................................................................................................................... 3

.3 A reversal of the trial courts Miranda ruling entitles Mr. Green to withdraw his

conditional plea.................................................................................................................... 4

.II The police did not have reasonable suspicion at the time they seized Mr. Green.......5

Conclusion .......................................................................................................................................7

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TABLE OF AUTHORITIES

Cases

California v. Beheler, 463 U.S. 1121, 1125 (1983).......................................................2

California v. Hodari D., 499 U.S. 621 (1991)...............................................................6

Dyson v. United States, 815 A.2d 363 (D.C. 2003).......................................................4

Florida v. J.L., 529 U.S. 266 (2000)..............................................................................6

Glenn v. Commonwealth of Virginia, 642 S.E.2d 282, 293 (Va. App. 2007).................5

In re D.E.W., 612 A.2d 194 (D.C. 1992)........................................................................6

In re I.J., 906 A.2d 249, 260 (D.C. 2006)..................................................................1, 4

James v. United States, 829 A.2d 963 (D.C. 2003)........................................................6

Jefferson v. United States, 776 A.2d 576, 579 (D.C. 2001)...........................................7

Morales v. United States, 866 A.2d 67, 71 (D.C. 2005)................................................2

Peay v. United States, 597 A.2d 1318 (D.C. 1991)........................................................6

State v. Juarez, 903 P.2d 241, 249 (N.M. App. 1995)....................................................4

State v. Piorkowski, 672 A.2d 921, 930 n.15 (Conn. 1996)...........................................4

United States v. Adams, 1 F.3d 1566 (11th Cir. 1993)...................................................2

United States v. Clipper, 313 F.3d 605, 607 (2002).......................................................7

United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992)...............................................6

United States v. Johnson, 107 Fed. Appx. 674 (7th Cir. 2004)......................................6

United States v. Johnson, 341 U.S. App. D.C. 289 (2000)............................................6

United States v. Mejia, 69 F.3d 309, 316 (9th Cir. 1995)...............................................4

United States v. Mendenhall, 446 U.S. 544, 554 (1980)................................................6

United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993)...................................................1

United States v. Turner, 761 A.2d 845, 851 (D.C. 2000)...............................................6

Rules

Rule 11(a)(2)..................................................................................................................4

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n.15. But the similarities between the cases are more striking: both defendants had guns pointed

at them, both were forced to lie face-down on the ground, and both were questioned by police

officers standing over them. Furthermore, the United States does not attempt to analogize the

instant case to any in which a statement was held to be voluntary. Consequently, Mr. Greens

statement and its fruits should have been suppressed.

.B Mr. Greens statement was elicited in violation ofMiranda.

.1 Mr. Greens statement was a response afforded Miranda protections.2

Mr. Green contends that the trial court erred when ruling that his statement prior to arrest

was not a response within the meaning ofMiranda. The United States urges this Court to

interpret that ruling as a finding of fact, deserving deference. See Brief of Appellee at 26-28.

But none of the relevant facts are in dispute. The police asked Mr. Green one question several

times: Where is the gun? Mr. Greens attention was then diverted to an altercation between the

police and one of Mr. Greens companions. Then, approximately one minute after last having

been asked the question, Mr. Green said: Heres the gun. Tr. II at 10. If the trial courts ruling

were a finding of fact, it would have to be a finding that Mr. Green did not intendhis statement

to provide the officers with the information they requested. This is not a plausible interpretation

of the trial courts ruling, for such a finding would be clearly erroneous. It is impossible to

believe Mr. Green did not intend to answer the question posed to him. It could not have been a

mere coincidence that his statement contained the very information requested by the police.

It is of no moment that Mr. Green might have had a discernable motive for responding to

police questioning. The United States suggests that Mr. Green made his statement because he

2 Despite never having argued the point at any time below, the United States now suggests in a

footnote that Mr. Green was not in custody forMiranda purposes at the time he made his firststatement. Even if this argument is not waived, it is without merit. An individual is in custodyforMiranda purposes where there is restraint on freedom of movement of the degree associatedwith a formal arrest. Morales v. United States, 866 A.2d 67, 71 (D.C. 2005) (quoting Californiav. Beheler, 463 U.S. 1121, 1125 (1983)). It is not disputed that a police officer with his ownhands forced Mr. Green to lie face down on the ground, and the police continued to stand abovehim, depriving Mr. Green of all freedom of movement. Although the United States cites no casein support of its argument, cases with facts similar to the instant case have held suspects to be incustody forMiranda purposes. See, e.g., United States v. Adams, 1 F.3d 1566 (11th Cir. 1993)(defendant in custody underMiranda where forced to lie down on stomach at gunpoint).

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wanted to ease the escalating confrontation between [Mr.] Prices wife and the police. Brief for

Appellee at 27. But Miranda protections are not limited to those responses motivated by an

unadulterated desire to be helpful. What matters is that the statement was a response to custodial

interrogation, regardless of its motive.

A more plausible interpretation of the trial courts ruling is that it was a legal conclusion,

holding that a response made after a one minute diversion is not a response within the meaning

ofMiranda. The United States cites no precedent for such a conclusion, and Mr. Green is aware

of none.

.2 The public safety exception does not apply because there was no threatoutside of police control.

Mr. Green also contends that the trial court erred when ruling that the public safety

exception to Miranda applies in this case, because there was no threat to public safety that was

not already under police control. As explained in the opening brief, the cases recognizing the

public safety exception, including all of those cited by the United States in its brief, involve

situations in which there was reason to fear the existence of a dangerous weapon outside of the

control of the police. The instant case presents no such concern, and therefore the public safety

exception ought not to apply.

The United States responds that because Mr. Green had attempted to enter the van after

seeing the police, the police could not be sure that he hadnt placed the gun in the van or given it

to Ms. Johnson, who was in the van. See Brief for Appellee at 30-31 n.19. But there is no

evidence that Mr. Green was ever out of sight of the police or had the opportunity to dispose of

the gun. And even if he had such an opportunity, the van and Ms. Johnson were entirely within

police control. In fact, the police removed all of the occupants from the van. In short, there was

no reason to believe the gun could have been anywhere but within police control, so there was no

justification for the public safety exception to Miranda.

The instant case presents a direct contrast to cases such as Dyson v. United States, 815

A.2d 363 (D.C. 2003), which applied the exception where the police, having briefly lost sight of

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an armed suspect and later apprehended him, questioned him about the location of a gun after

searching both him and the surroundings. Here, the police did not frisk Mr. Green or search the

van. This is to say that the police did not make the very choice this Court requires of them.

Despite having take[n] highly intrusive steps to protect themselves from danger, they did not

similarly provide protection to their suspects by advising them of their constitutional rights. In

re I.J., 906 A.2d at 260.

.3 A reversal of the trial courts Miranda ruling entitles Mr. Green to

withdraw his conditional plea.

Mr. Green entered a plea of guilty on the condition that, should he prevail on appeal, he

would be allowed to withdraw his plea. Rule 11(a)(2) of the Superior Court Rules of Criminal

Procedure specifically provides that [a] defendant who prevails on appeal shall be allowed to

withdraw the [conditional] plea. It does not appear that this Court has had the opportunity to

reach the question of whether a defendant who only partially prevails on appeal is allowed to

withdraw a conditional plea, but other jurisdictions with similarly worded rules have allowed

defendants to withdraw their pleas in such situations. See, e.g., United States v. Mejia, 69 F.3d

309, 316 (9th Cir. 1995) (Ifany ruling that forms a basis for the conditional plea is found to be

erroneous, we are required to permit the defendant to withdraw his plea. (emphasis in original));

State v. Juarez, 903 P.2d 241, 249 (N.M. App. 1995) (We also note Defendants guilty plea was

entered on the express, stipulated condition that the plea could be withdrawn if he was successful

on appeal. Here, Defendant is partially successful. Accordingly, we remand so that Defendant

may have the opportunity to reassess the admissible evidence in this case and either plead guilty

or proceed to trial.); State v. Piorkowski, 672 A.2d 921, 930 n.15 (Conn. 1996) (In the event

defendant prevails partially on appeal, the appellate court would order the judgment of the trial

court, based upon the defendants conditional nolo contendere plea, reversed, and the case

remanded for further proceedings. On remand, both the state and the defendant would then have

to reevaluate their respective positions in light of the availability of some, but not all, of the

evidence gathered as a result of the search.); Glenn v. Commonwealth of Virginia, 642 S.E.2d

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Green made toward his waist. Mr. Green has always maintained that his gesture was much less

suspicious than anything in existing caselaw that has been found to corroborate an anonymous

tip. The United States makes two points in response.

First, the United States cites four cases involving gestures or motions of various kinds.

See Brief for Appellee at 22 (citingIn re D.E.W., 612 A.2d 194 (D.C. 1992), United States v.

Johnson, 212 F.3d 1313 (D.C. Cir. 2000),Peay v. United States, 597 A.2d 1318 (D.C. 1991), and

James v. United States, 829 A.2d 963 (D.C. 2003)). These cases are simply inapposite. None of

them involves an anonymous tip, so they cannot be precedent for the proposition that a gesture to

the waist is sufficient to corroborate an anonymous tip. Furthermore, two of the casesD.E.W.

andJameswere decided beforeFlorida v. J.L., when the law in the District of Columbia

recognized reasonable suspicion on the basis of an anonymous tip alone.4 Therefore, District of

Columbia cases from that time are not reliable precedent for determining which actions are

sufficient to establish reasonable suspicion in anonymous tip cases afterFlorida v. J.L.

Second, the United States compares the instant case toJefferson v. United States, 776

A.2d 576, 579 (D.C. 2001), discussed in detail in Mr. Greens opening brief. See Brief for

Appellee at 23-24. The United States argues that Mr. Greens hand gesture toward his waist is

analogous to the defendant inJeffersons emerging from a fenced area reasonably perceived to

be off-limits to the public and housing the entrance to the cashiers office of the gas station

whose imminent robbery had been reported to the police. According to the United States, just

as the behavior inJefferson could very well have been innocent, so too could Mr. Greens

gesture corroborate an anonymous tip because the reasonable suspicion requirement does not

compel the police to view ambiguous conduct innocently. Brief for Appellee at 23 (quoting

Jefferson, 776 A.2d at 579).

4CompareUnited States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992) (upholding, prior toFlorida v.J.L., a stop solely on the basis of an anonymous tip) withUnited States v. Clipper, 313 F.3d 605,607 (2002) (both parties agreed at argument that for purposes of this case the officers stop ofClipper should be assumed to be unconstitutional underFlorida v. J.L.).

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It is true that both Mr. Greens actions and those at issue inJefferson are susceptible of

both innocent and incriminating interpretations, as all actions are. But not all interpretations are

equally plausible. It is of course possible that the man emerging from the cashiers office of the

gas station only shortly after its imminent robbery was reported was merely an employee, but

such an interpretation hardly seems likely. Mr. Greens touching of his waist might have been an

innocent adjusting of his pants or it might have been the incriminating check of his gun. The

material point is that the innocent interpretation of his act issignificantly more plausible than that

of the actions inJefferson or in any other case finding reasonable suspicion based on an

anonymous tip.

This Court will have to decide how likely an incriminating interpretation has to be in

order for the behavior to be sufficiently suspicious to corroborate an anonymous tip. Mr. Green

submits that affirming the ruling below will render meaningless the Supreme Courts ruling in

Florida v. J.L., for it is difficult to imagine many anonymous tip cases that do not involve

gestures as benign as a touch of the waist.

CONCLUSION

For the reasons set forth above, Mr. Green respectfully requests that the order denying his

motion to suppress evidence be reversed, that his conviction be vacated, and that the case be

remanded to the Superior Court for the District of Columbia so that he may withdraw his

conditional plea. In the alternative, for the reasons set forth in his opening brief and in the brief

of the United States, Mr. Green requests that his sentence be vacated and the case be remanded

for sentencing.

Respectfully submitted,

_____________________________

James Mangiafico, Bar No. 481689

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Mary Kennedy, Bar No. 390622

ARNOLD & PORTERLLP

555 Twelfth Street, NW

Washington, DC 20004

(202) 942-5000

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief has been served, by hand, upon

Suzanne G. Curt, Esq., Appellate Division, Office of the United States Attorney, 555 Fourth

Street, N.W., Room 8104, Washington, D.C. 20530, this 15th day of November, 2007.

___________________________

James Mangiafico

Tom Green Reply Brief

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