No Seizure Occurred Before Consent Search Leading to Discovery of “Teeny Tiny” Gun; Involuntary Manslaughter Is a Crime of Violence Under § 23-1331(4)

Edward Towles v. United States, No. 14-CF-509 (decided June 4, 2015).

Players:  Glickman, Thompson, King.  Opinion by Judge Thompson.  Barbara E. Kittay for Mr. Towles.  Trial judge:  Robert R. Richter.

Facts:  Police found a “teeny tiny” gun and PCP on Edward Towles after they encountered him on the street and stopped him while they were “looking for guns.”  Mr. Towles argued that he was illegally seized, and moved to suppress the gun and drugs. 

At the suppression hearing, a police officer testified that while he and three other law enforcement officers were driving in an unmarked car in Southeast, they saw Mr. Towles walking down the street with another man.  Mr. Towles looked over his shoulder at the police, then moved his hand near his waistband before breaking away from his friend, turning onto another street, and increasing his pace.  Getting out of the car, the officer asked Mr. Towles whether he had a gun, and Mr. Towles reached under his coat and produced a cell phone.  As he moved his coat, the officer thought it looked like the right pocket contained a heavy object that might be a gun.  The officer then approached, telling Mr. Towles in a “raised” voice, “[K]eep looking at me.  Keep looking at me,” and asked to pat him down.  He claimed that Mr. Towles consented to the pat-down, but that before it began, he volunteered that he had a gun.  In his right coat pocket, police found a .32-caliber semiautomatic weapon, measuring three inches from top to bottom.  After officers handcuffed him, he told them that he also had PCP.

Mr. Towles and his cousin offered a conflicting account, testifying that police repeatedly asked them for consent to search, but that Mr. Towles never gave consent.  The judge credited the police officer’s testimony, found that Mr. Towles had consented to the search, and denied the motion to suppress.

Issue #1:  Did the trial court err in denying the motion to suppress, where the defense argued that police illegally seized Mr. Towles by repeatedly demanding permission to search, and that any consent they obtained after that was invalid?  

Holding #1:  No.  Accepting the officer’s description of the encounter, as the trial court did, there was no seizure before the officer asked permission to conduct the pat-down, and after Mr. Towles consented to the search and then volunteered the information that he had a gun and PCP, officers had probable cause to arrest him and to search him incident to arrest.  

Issue #2:  Did Mr. Towles’s prior conviction in Maryland for involuntary manslaughter qualify as a “crime of violence” under D.C. Code § 23-1331(4), so that pursuant to § 22-4503(b)(1) he faced a mandatory minimum sentence of three years for possessing a firearm?      

Holding #2:  Yes.  The term “manslaughter,” as used in § 23-1331, refers to both voluntary and involuntary manslaughter.

Of Note: 

• As to the Fourth Amendment issue, the Court observes in a footnote that “there may have been a seizure” when the officer used a raised voice to tell Mr. Towles, “[K]eep looking at me.  Keep looking at me.”  It does not reach that issue, however, “because neither in his motion to suppress, nor in the argument before Judge Richter, nor in his brief to this court, did appellant argue that appellant was seized for Fourth Amendment purposes when Officer Katz uttered those commands.”  MW.     

Read full opinion here.