United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2004 Decided May 6, 2005
No. 03-3122
United States of America,
Appellee
v.
Antwain L. Dykes,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00431-01)
Billy L. Ponds argued the cause and filed the briefs for
appellant.
SuzAnne C. Nyland, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Roy W.
McLeese, III, Steven B. Snyder, and John P. Gidez, Assistant
U.S. Attorneys.
Before: ROGERS, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GA RLAND, Circuit Judge: After a trial by jury, Antwain
Dykes was found guilty of possession with intent to distribute
cocaine base, possession of a firearm during a drug trafficking
offense, and possession of marijuana. He challenges his
convictions on two grounds. First, Dykes appeals the district
court’s denial of his motion to suppress drugs and a firearm that
the police found on his person in the course of a Terry stop.
Second, Dykes challenges the sufficiency of the evidence
supporting his conviction for possession of marijuana that the
police found in a subsequent search of his apartment. We reject
both arguments and affirm the convictions.
I
On the evening of July 30, 2002, three unmarked cars of the
Metropolitan Police Department (MPD) pulled into a parking lot
at 2408 Elvans Road, S.E., Washington, D.C., in response to
complaints of illegal drug trafficking in the area. Several people
were standing nearby, among them Dykes and Theodore
Duncan, who were next to each other. When the police entered
the parking lot, Duncan threw an object -- later determined to be
narcotics -- to the ground and ran away. As Duncan fled, Dykes
began to walk away from the police cars.
The police then got out of their cars. Each officer wore
multiple items of identification -- either MPD raid jackets and
medallions, or badges and orange MPD emblems. Upon looking
back and seeing the officers leave their vehicles, Dykes began
to run away at a fast pace. After Dykes had run twenty to thirty
feet, Investigator Jeff Folts forced him to the ground.
Once on the ground, Dykes immediately lay on his stomach
with his hands positioned underneath him, near his waistband.
Concerned that Dykes might have a weapon, Officer Eric
Schuler repeatedly ordered him to show his hands, but he did not
3
comply. Officers pulled on Dykes’ arms to remove his hands
from beneath his body. After thirty to forty seconds, the officers
succeeded in extracting Dykes’ hands, at which point they
handcuffed him. When the officers rolled Dykes over and sat
him up, they immediately saw a pistol in his waistband. They
seized the pistol, placed Dykes under arrest, and searched his
person. In his pockets were a ziplock bag of marijuana and
thirteen ziplock bags of cocaine base. Dykes admitted to the
police that he had been smoking marijuana when they arrived,
and that he had had the gun for years.
On August 8, 2002, MPD officers executed a search warrant
at Dykes’ apartment, close to the parking lot that had been the
site of his arrest. Dykes’ mother and several of his brothers
were present, but Dykes was not. The police later testified that
Dykes’ mother told them that the first bedroom was Dykes’ and
that no one else lived in it. 5/15/03 Tr. at 149. According to the
police, she further said that “he doesn’t like anyone in his room
when he’s not there, so nobody else stays in the room but him,”
and that “if anything was in there, . . . it was his.” Id. At trial,
however, Dykes’ mother testified that Dykes shared the
bedroom with two of his brothers, and that she had told this to
the police at the time of the search. Dykes’ girlfriend likewise
testified that Dykes shared the bedroom with his brothers.
On the floor of the bedroom, the police found a shoe box
containing cocaine base and a digital scale with cocaine residue.
In the bedroom closet was a tin can containing marijuana. Also
in the bedroom were a shotgun shell and small-caliber
ammunition. Inside a bedroom cabinet, the police found
personal papers bearing Dykes’ name and address, including
court papers dated July 31, 2002.
Dykes was indicted on four counts of violating federal law.
For the drugs and pistol found on his person on July 30, 2002,
4
Dykes was charged with unlawful possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C), and possession of a firearm during a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1). For the drugs
found in the bedroom on August 8, 2002, Dykes was charged
with unlawful possession with intent to distribute fifty grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii), and possession of marijuana, in violation of 21
U.S.C. § 844(a).
Dykes filed a motion to suppress the drugs and gun found
on his person, which the district court denied. Thereafter, a jury
found Dykes guilty on all counts except the charge relating to
the cocaine base found in the bedroom. On appeal, he
challenges both the denial of his motion to suppress, and the
sufficiency of the evidence supporting his conviction for
possession of the marijuana found in the bedroom.
II
Dykes contends that the police violated the Fourth
Amendment’s prohibition of unreasonable searches and seizures
when they forced him to the ground and handcuffed him. The
stop was unconstitutional, Dykes argues, because at the time it
was made, the police lacked probable cause to believe that he
had committed a crime. In Terry v. Ohio, 392 U.S. 1 (1968),
however, the Supreme Court held that “the police can stop and
briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry, 392 U.S. at 30). The Court further held that,
incident to such a stop, the police may conduct a “protective
search for weapons” if they “possess[] an articulable suspicion
that an individual is armed and dangerous.” Michigan v. Long,
5
463 U.S. 1032, 1034 (1983) (citing Terry, 392 U.S. at 24). We
decide de novo whether the police had reasonable suspicion; we
review the district court’s “findings of historical fact only for
clear error” and give “due weight to inferences drawn from
those facts” and to the court’s determinations of witness
credibility. Ornelas v. United States, 517 U.S. 690, 699-700
(1996); see United States v. Brown, 334 F.3d 1161, 1164 (D.C.
Cir. 2003).
There is no question but that the officers had reasonable
suspicion to stop Dykes. In Illinois v. Wardlow, 528 U.S. 119
(2000), the Supreme Court found reasonable suspicion to
conduct a Terry stop where a person fled without provocation
upon seeing police enter an area “known for heavy narcotics
trafficking.” Id. at 124-25. The situation here is nearly
identical. Officer Schuler’s uncontradicted testimony at the
suppression hearing established that Dykes was stopped in an
area “known for the sales of cocaine and marijuana,”
Suppression Hr’g Tr. at 16, that the police had entered the area
“due to numerous complaints of illegal narcotics sales,” id. at 6,
and that Dykes fled immediately upon seeing the officers leave
their cars. If anything, there was even greater reason for
suspicion in this case than in Wardlow, because Duncan, the
person standing next to Dykes, also fled (and threw down an
object) upon seeing the police.
Dykes protests that, even if the officers had reasonable
suspicion, the nature of the seizure -- in which he was forced to
the ground and ultimately handcuffed -- went beyond the
permissible scope of a Terry stop. 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 threat thereof to effect it.” Graham v.
Connor, 490 U.S. 386, 396 (1989). In deciding what degree of
force is permissible, courts must look to “the facts and
6
circumstances of each particular case, including 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. The test is one of reasonableness. Id.
Here, the officers used force in two ways, each of which
was reasonable. First, because Dykes was in full flight from
officers who were justified in stopping him, tackling him1 was
a reasonable method of effectuating the stop. See United States
v. Laing, 889 F.2d 281, 283, 286 (D.C. Cir. 1989) (holding that
it was reasonable for police to force to the floor a suspect who
began running upon seeing them).2 Second, once they had
brought him to the ground, it was also reasonable for the officers
to remove Dykes’ hands from underneath his body and to place
him in handcuffs. Dykes had kept his hands near his waistband,
resisting both the officers’ commands and their physical efforts
to move his hands into plain view. Under these circumstances,
it was reasonable for the officers to fear that Dykes had a
weapon in his waistband, and to take the necessary steps to
ensure that he could not use it. As the Supreme Court said in
Terry:
1
Although there was conflicting testimony as to whether
Investigator Folts tackled Dykes or merely collided with him, the
district court concluded that it was the former. Suppression Hr’g Tr.
at 57. Because that conclusion was not clearly erroneous, we proceed
upon it here.
2
See also United States v. Bonner, 363 F.3d 213, 218 (3d Cir.
2004) (upholding Terry stop effectuated by a tackle); United States v.
Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003) (same); United States
v. Jackson, 175 F.3d 600, 602 (8th Cir. 1999) (same); United States v.
Weaver, 8 F.3d 1240, 1244-45 (7th Cir. 1993) (same).
7
When an officer is justified in believing that the
individual whose suspicious behavior he is
investigating at close range is armed and presently
dangerous to the officer or to others, it would appear to
be clearly unreasonable to deny the officer the power
to take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize
the threat of physical harm.
392 U.S. at 24. And as this court said in Laing, the “amount of
force used to carry out the stop and search must be reasonable,
but may include using handcuffs or forcing the detainee to lie
down to prevent flight.” 889 F.2d at 285.3
III
Dykes’ remaining challenge is to the sufficiency of the
evidence supporting his conviction for possession of the
marijuana found in the search of the bedroom. Our review here
is limited: We must accept the jury’s guilty verdict if we
conclude that “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In
making this determination, “the prosecution’s evidence is to be
viewed in the light most favorable to the government, drawing
no distinction between direct and circumstantial evidence, and
giving full play to the right of the jury to determine credibility,
3
See also Laing, 889 F.2d at 283, 286 (holding that, during a
Terry stop, it was reasonable for the police to force a suspect’s hand
from his pants); United States v. Jones, 973 F.2d 928, 931 (D.C. Cir.
1992) (holding that a “Terry stop does not turn into a full arrest merely
because the officers use handcuffs and force the suspect to lie down
to prevent flight, so long as the police conduct is reasonable”).
8
weigh the evidence and draw justifiable inferences of fact.”
United States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)
(internal citation and quotation omitted).
As we explained in United States v. Morris, a case
remarkably similar to this one, possession “can be either actual
or constructive.” 977 F.2d 617, 619 (D.C. Cir. 1992); see
United States v. Hernandez, 780 F.2d 113, 116 (D.C. Cir. 1986).
Constructive possession “requires evidence supporting the
conclusion that the defendant had the ability to exercise
knowing ‘dominion and control’ over the items in question.”
Morris, 977 F.2d at 619 (quoting Hernandez, 780 F.2d at 116).
And a “jury is entitled to infer that a person exercises
constructive possession over items found in his home.” Id. at
620; see United States v. Jenkins, 928 F.2d 1175, 1179 (D.C.
Cir. 1991).
There was ample evidence that Dykes lived in the apartment
that the police searched, and specifically in the bedroom where
they found the marijuana. As to the apartment, Dykes’ name
was on the lease. As to the bedroom, personal papers bearing
his name and address, including court papers dated July 31,
2002, were found inside a bedroom cabinet. See Morris, 977
F.2d at 619-20 (noting that the presence of a birthday card with
the defendant’s name, found inside a dresser drawer, was
evidence that the defendant lived in the apartment). Further, the
police testified that, when they asked which bedroom was
Dykes’, his mother directed them to the bedroom in question.
Hence, because there was sufficient evidence to infer that the
bedroom was his, “the jury could infer that he constructively
possessed the drugs.” Id. at 620.
Dykes counters that there was evidence that he shared the
bedroom with his brothers. We have previously recognized that
“[t]he inference that a person who occupies an apartment has
9
dominion and control over its contents applies even when that
person shares the premises with others,” although it is plainly
not as strong an inference in that circumstance. Id. at 620; see
United States v. Edelin, 996 F.2d 1238, 1241 (D.C. Cir. 1993);
Jenkins, 928 F.2d at 1179. In any event, there was sufficient
evidence in this case for a reasonable juror to conclude that
Dykes did not share the bedroom. Officer Anthony Greene
testified that Dykes’ mother told him that Dykes alone occupied
the bedroom, and that all the items in the bedroom were his.
The two officers who searched the bedroom testified that the
room -- which contained only a single bed -- appeared to have
only one occupant. In addition, the only personal papers found
in the room had Dykes’ name on them. And while Dykes’
mother and girlfriend testified that Dykes shared the bedroom
with his brothers,4 the jurors may not have believed them,
particularly in light of Officer Greene’s testimony that the
mother had made a contrary statement to him. See Morris, 977
F.2d at 620 (noting that jurors were permitted to credit the
testimony of officers who testified that the defendant had said he
lived in the apartment at issue, despite the defendant’s trial
testimony to the contrary). Thus, there was sufficient “evidence
from which the jury could infer that [Dykes] lived alone in the
[bedroom] and exercised constructive possession over its
contents.” Id. at 620. Moreover, Dykes had been arrested
nearby -- just the week before -- in possession of the same drug,
which was further evidence that he possessed the marijuana in
the bedroom. 5
4
On appeal, Dykes contends that his mother’s testimony was
supported by Investigator Anthony Commodore’s statement that there
was clothing of different sizes in the bedroom closet. But Investigator
Commodore did not so testify. See 5/14/03 Tr. at 140-41.
5
See United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002)
(holding, in a constructive possession case, that “where a defendant is
10
Finally, Dykes questions how the jury could have acquitted
him on the charge of possessing the cocaine base found in the
bedroom, but convicted him of possessing the marijuana found
in the same room. We do not know what went through the
jurors’ minds. Perhaps they were persuaded by defense
counsel’s argument that the cocaine base found in the bedroom
could not have been Dykes’ because it was of a different purity
than that of the drugs found on his person at the time of his
arrest. Or perhaps the verdicts were simply inconsistent. But
even if the latter were so, a “criminal defendant convicted by a
jury on one count [cannot] attack that conviction because it was
inconsistent with the jury’s verdict of acquittal on another
count.” United States v. Powell, 469 U.S. 57, 58 (1984); see id.
at 66; Laing, 889 F.2d at 288. As Oliver Wendell Holmes,
quoting Learned Hand, said for the Court in Dunn v. United
States:
The most that can be said in such [a] case[] is that the
verdict shows that either in the acquittal or the
conviction the jury did not speak their real conclusions,
but that does not show that they were not convinced of
the defendant’s guilt. We interpret the acquittal as no
more than their assumption of a power which they had
no right to exercise, but to which they were disposed
through lenity.
charged with unlawful possession of something, evidence that he
possessed the same or similar things at other times is often quite
relevant to his knowledge and intent with regard to the crime charged”
(internal quotation mark omitted)); Unites States v. Toms, 136 F.3d
176, 183-84 (D.C. Cir. 1998) (holding that a driver’s conviction for
constructive possession of a gun found in the car was supported by
evidence of prior gun possession).
11
284 U.S. 390, 393 (1932) (quoting Steckler v. United States, 7
F.2d 59, 60 (2d Cir. 1925)); see Powell, 469 U.S. at 64-65
(quoting Dunn with approval).
The proscription against reviewing the inconsistency of
verdicts does not leave the defendant bereft of “protection
against jury irrationality or error.” Powell, 469 U.S. at 67.
Rather, that protection is afforded “by the independent review
of the sufficiency of the evidence undertaken by the trial and
appellate courts.” Id. We have undertaken such a review, and
for the reasons stated in this Part, we conclude that the evidence
was sufficient to support Dykes’ conviction for possession of the
marijuana found in the bedroom.
IV
The officers’ stop of Dykes and subsequent seizure of
narcotics and a firearm from his person were lawful under the
Fourth Amendment. In addition, the evidence that he possessed
the marijuana found in the bedroom was sufficient to support his
conviction for that crime. Accordingly, the defendant’s
convictions are
Affirmed.