In a split decision (PDF), the District of Columbia Court of Appeals upheld the conviction of Walter O. Johnson in the death of Metro Transit Police Officer Marlon Morales, finding that police did not frisk Johnson in violation of his constitutional rights.
Morales was killed while on duty inside the U Street Metro rail station in 2001. A District of Columbia Superior Court jury convicted Johnson of first degree murder in May 2004. Johnson's attorneys argued for a new trial, based on what they believed was an unconstitutional frisk, as well as recanting of testimony by a prosecution witness.
The three-judge appellate panel heard oral arguments on the frisk on Oct. 5. Several days after Morales was fatally shot in June 2001, police in Philadelphia found Morales’ service weapon in Johnson’s pant leg after an encounter with him during a traffic stop. After Johnson did not obey police orders to keep his hands on his car, a struggle ensued and police recovered the gun.
Johnson’s attorney, Alice Wang of the D.C. Public Defender Service, argued that prosecutors failed to prove that the police had a reasonable suspicion that Johnson was “armed and dangerous” when they began the frisk. Senior Judge Theodore Newman, writing for the majority, agreed with the trial judge that police did have reason to suspect Johnson.
After running the tags on the car Johnson was driving, they saw that the car was in “try and locate” status, meaning the owner had reported it missing. That the car might be stolen would be enough for police to have reason to suspect Johnson, but, as Newman wrote, there were other factors as well.
“During the police pursuit Johnson seemed reluctant to stop his car and appeared 'hyper'-nervous. Once he stopped the car, he twice tried to step out of it despite orders to remain inside,” Newman wrote. He wrote later that, “The police, in short, were not obliged to take the risk that a person potentially subject to arrest for felony theft had on his person the means – a weapon – of preventing his apprehension for a serious crime.”
In the dissenting opinion, Judge Kathryn Oberly wrote that she believed the frisk began once police positioned Johnson outside of his car, not when they formally began patting him down. At that time, Oberly said police did not have any reason to suspect Johnson was “armed and dangerous.”
“Although the totality of the circumstances may have been puzzling or ambiguous — in fact they may have caused Officer Harvey to suspect that something was amiss — such 'inchoate suspicion' is not sufficient to warrant a frisk,” she wrote.
The U.S. attorney’s office declined to comment. A representative of the Public Defender Service did not immediately return a request for comment.
The court also affirmed the trial judge’s decision to deny Johnson’s request for a new trial based on the recantation of a trial witness. Oberly’s dissent did not address this issue. Senior Judge Inez Reid also heard the case.