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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CF-1226

GREGORY GREEN, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF1-5741-14)

(Hon. Milton Lee, Trial Judge)

(Argued June 4, 2019 Decided July 9, 2020) 

Ethan H. Townsend, with whom Charles B. Wayne was on the brief for 

appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. 

Liu, United States Attorney, and Elizabeth Trosman, John P. Mannarino, and 

Charles Willoughby, Assistant United States Attorneys, were on the brief, for 

appellee. 

Before GLICKMAN, FISHER, and EASTERLY, Associate Judges.

Opinion for the Court by Associate Judge GLICKMAN.

Concurring opinion by Associate Judge EASTERLY at page 33.

Dissenting opinion by Associate Judge FISHER at page 33.
2

GLICKMAN, Associate Judge: Gregory Green challenges his convictions for 

armed robbery and felony murder while armed on several grounds. We need 

address only one of them, his claim that the trial court erred in denying his motion 

to suppress evidence the police obtained from his cell phone. Mr. Green argues

that this evidence was the fruit of an illegal search and seizure arising from the 

presence of law enforcement agents in his home without a search warrant or other 

legal justification. Because we agree that the trial court should have granted the 

motion to suppress the cell phone evidence, and because the erroneous admission 

of that evidence at Mr. Green’s trial was not harmless beyond a reasonable doubt, 

we reverse his convictions.1

 

1

 Appellant also argues that the trial court committed other errors entitling 

him to reversal: by using a husher during portions of voir dire in violation of his 

right to a public trial; by failing to grant a mistrial to remedy a Brady violation; by 

instructing the jury inaccurately with respect to aiding and abetting; and by 

imposing consecutive sentences. His argument regarding use of the husher appears 

to be foreclosed by this court’s decision in Blades v. United States, 200 A.3d 230, 

241 (D.C. 2019) (holding that “use of the husher during individual-juror voir dire

did not constitute closure or partial closure of the courtroom, but instead was a 

reasonable alternative to closing the proceeding that protected appellant’s publictrial right” (internal citation, quotation marks, and alterations omitted)). And 

because we reverse appellant’s convictions and the other issues are unlikely to 

recur if he is retried, we need not address them. See Broom v. United States, 118 

A.3d 207, 217 n.3 (D.C. 2015). 
3

I.

Early on the morning of March 29, 2014, Derrick Williams was shot, killed, 

and robbed in front of his home in Southeast Washington, D.C. Mr. Williams’s 

friend and roommate, Mr. Tillman, heard the shooting, ran to the door, and made 

eye contact with a man who was standing over Mr. Williams’s body and going 

through his pockets to rob him. Mr. Tillman recognized this man as someone he 

knew from the neighborhood by the nickname “Face.” He told the police that 

“Face” was dressed in black and had on a dark hat with white lettering. Mr. 

Tillman also observed that “Face” was accompanied by a man wearing a red Helly 

Hansen jacket. He was uncertain of this second man’s identity but thought it might 

have been somebody known as “Little Charles.” 

A few days later, at around 9:50 a.m. on April 2, 2014, U.S. Marshals 

executed an arrest warrant for appellant, who was believed to be “Face.” The 

Marshals made the arrest at appellant’s home, apparently when he opened the door 

to them, and at some point they entered the residence and removed the other 
4

persons who were there.2 The Marshals then remained inside appellant’s 

home by themselves. The record does not clarify what the Marshals were doing in 

the home after having cleared the premises, or exactly when they eventually left. 

They did not have a search warrant for appellant’s home.

After appellant was taken into custody, Metropolitan Police Department 

Detective Travis Barton was called to the scene. Detective Barton was the 

government’s only witness at the suppression hearing. He testified that one of the 

Marshals involved in appellant’s arrest informed him when he arrived that 

appellant’s cell phone was on a couch in the living room. The Marshal did not tell 

Detective Barton how or when the Marshals discovered the phone in the residence 

or how he knew the phone belonged to appellant.

3

 

 

2

 There was no testimony in the trial court proceedings as to exactly where 

at appellant’s home he was arrested, and the motion judge made no finding on the 

point. However, the government’s opposition to appellant’s suppression motion 

represented that appellant was arrested “inside of” his residence when he 

“answered the door,” and the affidavit supporting the post-arrest warrant to search 

appellant’s cell phone similarly stated that the Marshals arrested appellant “when 

he answered the door from inside of” the residence. For present purposes, 

however, the precise location of appellant’s arrest at his home is immaterial.

3

 The Marshals did not take the phone from appellant when they arrested 

him. 
5

Detective Barton entered the dwelling. He did not have a search warrant at 

the time. He went in, he testified, to “see if the cell phone was there” and to 

“gather information . . . for the search warrant” by “[t]alk[ing] to the officers inside 

[and] find[ing] out if they had any additional information related to what [the 

police] were doing as far as the search warrant or any visible evidence they saw 

when they were inside the house.” The record does not disclose why the Marshals 

were still in the residence at this time, which was nearly an hour after appellant’s

arrest, in the absence of a search warrant. Detective Barton testified that the

Marshals already had finished conducting their protective sweep of appellant’s 

home and had “secured” the location before he entered it.

Once inside, Detective Barton looked for the cell phone on the living room 

couch and did not find it there. The Marshals did not know what had happened to 

it. To find it, Detective Barton called appellant’s phone number.

4

 He heard a

phone ring outside the house. Detective Barton went out and found the phone in 

the hands of appellant’s girlfriend. She identified it as belonging to appellant, and 

the detective then seized it. 

 

4

 Detective Barton had obtained appellant’s phone number the day before 

the arrest. 
6

The following day, Detective Barton applied for and obtained a warrant to 

search the cell phone. His affidavit in support of the application stated that the 

phone had been identified as appellant’s by his girlfriend. To identify the phone 

with particularity, the affidavit also included the phone’s unique serial and 

International Mobile Equipment Identity numbers. Detective Barton had obtained 

those numbers by taking off the phone’s back cover and removing its battery. 

The phone’s call log revealed that appellant had received several calls in the 

minutes following Mr. Williams’s murder from a phone number listed under the 

name “Charlie” in the phone’s contact list. The phone also contained photos of 

appellant from a social media account that included the word “face” in its 

username; photos showing appellant wearing a dark baseball cap with white 

lettering; other photos showing him in a red Helly Hansen jacket; and text 

messages between appellant and his child’s mother indicating that appellant did not 

show up for a planned meeting with her on the night of the murder.

In moving to suppress his cell phone and the evidence obtained from it, 

appellant argued, inter alia, that his Fourth Amendment rights were violated by the 

search of his home without a search warrant after the purpose of the arrest warrant 

had been satisfied, and by the seizure of his phone from his girlfriend “without the 
7

authorization of any warrant [and without] the justification of any exception to the 

warrant requirement.” In its opposition, the government argued that exigent 

circumstances justified the warrantless seizure of the phone because it was “in 

imminent danger of destruction or loss.” 

After Detective Barton’s testimony at the suppression hearing revealed that 

the Marshals had concluded their protective sweep before his warrantless entry into

appellant’s home, appellant argued more specifically that the detective had 

engaged in an unlawful search and that the seizure of his cell phone was the fruit of 

that illegality:

[O]ne issue that’s presented is that . . . there’s a 

warrantless search when [Detective Barton] enters the 

apartment. The apartment’s been secure[d]. He’s not 

entering for the purpose of securing the apartment. At 

that point, it[] . . . doesn’t fall underneath the Buie[5]

exception for a protective sweep. The marshals have 

already done that. He enters, whether it was with [or] 

partially [with] the purpose of talking to other officers 

inside or looking for evidence, clearly, what happened 

was he did look for this cell phone . . . . It’s only as a 

result of that . . . entry into that house, that he—it leads 

 

5

 Maryland v. Buie, 494 U.S. 325 (1990). As we discuss below, in Buie the 

Supreme Court held that the Fourth Amendment permits police making a lawful 

in-home arrest to conduct a limited, “cursory” search of the surroundings, on less 

than probable cause and without a search warrant, in order to ensure their safety.
8

him, by the officer’s own account, to call that cell phone 

and discover it in the hands of [appellant’s girlfriend]. 

Appellant added that Detective Barton’s “concern about what happened with the 

[cell phone]” was the “result of [the] warrantless entry into the home” and that, 

“but for that warrantless entry,” Detective Barton would not have called the phone. 

The judge expressed skepticism that the absence of a search warrant meant the 

police had no right to be on the premises. Appellant answered that “at that point, 

they didn’t have the right to be on the premises” because appellant and all civilians 

had been removed and “the limited purpose of a protective sweep had been 

satisfied.” After having done that, appellant added, the police could secure the 

scene, if they needed to do so, but only “from the outside” of the dwelling. 

In contrast, the government argued that Detective Barton had the right to go 

into the house to confer with the Marshals there in order to prepare a particularized 

and complete application for a search warrant; and that while he was there for that 

lawful purpose, Detective Barton “ha[d] every right to look at things that are in 

plain view and the phone should have been in plain view and it wasn’t.” It then 

was reasonable for the detective to call the phone in order to locate it, and then to 

seize it to prevent the loss or destruction of evidence. The government premised 
9

this argument on its contention that the Marshals were allowed to remain inside 

appellant’s home to secure it “in anticipation of a search warrant.” 

The judge found that “it seem[ed] as though the intention of law 

enforcement” at the time Detective Barton entered the residence “was to seize the 

scene to make sure that they could locate any evidence that may be connected to 

the offense.” The judge ruled that law enforcement was “certainly in a position to 

do that under the Fourth Amendment.” He further ruled that once Detective 

Barton discovered that appellant’s cell phone was not on the couch, “the exigency 

seem[ed] clear.” Concluding that this exigency—the risk that valuable evidence 

might be lost if the police could not find and recover the cell phone immediately—

justified the detective’s warrantless seizure of the phone, the judge denied the 

motion to suppress the phone and the evidence obtained from it. The prosecution 

presented and relied on that evidence at trial.

II.

Appellant contends that Detective Barton entered his home after the 

justification for any law enforcement presence there without a search warrant was 

over, that the detective did so to collect evidence, and that the trial judge should 

have suppressed the evidence obtained from the search of his cell phone as the fruit 
10

of the warrantless intrusion. The government rejoins that the Marshals were 

justified in remaining in the premises to secure it pending the issuance of a search 

warrant, and that the detective therefore could join them for the purposes he did 

without infringing appellant’s Fourth Amendment rights. The sole basis on which 

the government has sought to justify Detective Barton’s entry is the putative 

lawfulness of the Marshals’ presence inside the residence to secure the scene and 

guard any evidence located there. 

When reviewing a trial court’s denial of a motion to suppress evidence, we 

defer to the court’s factual findings unless they are clearly erroneous, but we 

review the court’s legal conclusions de novo.

6

 For the reasons that follow, we 

agree with appellant that his Fourth Amendment rights were violated.

The Fourth Amendment prohibits “unreasonable searches and seizures.”7 A 

search occurs within the meaning of the Fourth Amendment when the police 

physically intrude on a constitutionally protected area in order to obtain 

 

6

 See Hooks v. United States, 208 A.3d 741, 745 (D.C. 2019) (explaining 

“that our analysis of constitutional questions under the Fourth Amendment is [not]

constricted” and that our review of the trial court’s conclusions of law is de novo). 

7

 U.S. Const. amend. IV.
11

information.8 Because the “physical entry of the home is the chief evil against 

which the wording of the Fourth Amendment is directed,”9it is a basic principle of 

Fourth Amendment jurisprudence that “searches and seizures inside a home 

without a [search] warrant are presumptively unreasonable”10 unless they come 

within one of “a few specifically established and well-delineated exceptions.”11 

The government bore the burden, therefore, of identifying an exception to the 

warrant requirement that applied here. 

As previously mentioned, the government has relied on only one of those 

few exceptions to justify the Marshals’ and Detective Barton’s entry and 

continuing presence in appellant’s home—the alleged need to impound the 

premises pending execution of a search warrant to prevent unauthorized persons 

from entering and removing or destroying evidence. We address the applicability 

of this exception, but before we do, we think it will be helpful to an understanding 

of the issue we confront to explain briefly why other potentially available 

exceptions did not justify the law enforcement intrusion in this case (and have not 

 

8

 United States v. Jones, 565 U.S. 400, 407 (2012).

9

 Payton v. New York, 445 U.S. 573, 585 (1980) (quotation marks omitted).

10

 Id. at 586.

11

 Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quotation marks omitted).
12

been relied upon by the government). Those inapplicable exceptions are three in 

number: (1) the authority that may be provided by an arrest warrant; (2) entry to 

conduct a protective sweep of the home for safety purposes; and (3) exigent 

circumstances arising from an imminent threat of removal or destruction of 

evidence in the home. 

First, while the Marshals were armed with a warrant for appellant’s arrest, 

that did not justify their prolonged occupation of appellant’s home, nor Detective

Barton’s subsequent entry. “[A]n arrest warrant founded on probable cause 

implicitly carries with it the limited authority to enter a dwelling in which the 

suspect lives when there is reason to believe the suspect is within,” for the purpose 

of making the arrest.12 While officers are effecting a lawful arrest, “search incident 

to arrest” doctrine allows them to search “the area into which an arrestee might 

reach in order to grab a weapon or evidentiary items,”13 and the “plain view” 

doctrine allows the arresting officers to seize incriminating evidence in their plain 

view at the time.14 But the government has not claimed, and the record does not 

 

12

 Payton, 445 U.S. at 603.

13

 Chimel v. California, 395 U.S. 752, 762-63 (1969).

14

 Police may seize evidence in plain view without a search warrant if the 

seizing officer is “lawfully located in a place from which the [evidence] can be 

(continued...)
13

show, that the Marshals discovered appellant’s cell phone in the course of arresting 

appellant. And an arrest warrant is not a substitute for a search warrant.15 By 

itself, an arrest warrant does not authorize law enforcement officers to carry out a 

broader search of the arrestee’s dwelling for evidence; nor does it authorize them

to remain inside the dwelling, or enter it, after they have removed the arrestee from 

it.

16

 So the fact that the Marshals had an arrest warrant did not justify their

continuing presence or Detective Barton’s entry in appellant’s home after he had 

been arrested. 

Second, the actions of the Marshals or Detective Barton were not shown to 

be justified under the “protective sweep” exception to the requirement of a search 

warrant recognized in Buie. A protective sweep is not a search for evidence, nor is 

it a full search of the arrestee’s occupancy; it is “a quick and limited search of [the] 

 

(...continued)

plainly seen,” the officer has “a lawful right of access to the object itself,” and the 

“incriminating character” of the evidence is “immediately apparent.” Horton v. 

California, 496 U.S. 128, 136-37 (1990) (quotation marks omitted); see also 

Umanzor v. United States, 803 A.2d 983, 998-99 (D.C. 2002). 

15

 See Chimel, 395 U.S. at 763.

16

 And if the arrestee is apprehended outside the home or in the doorway, as 

appellant reportedly was in this case, see footnote 2, supra, an arrest warrant by 

itself would not authorize police to enter the premises at all.
14

premises, incident to an arrest and conducted to protect the safety of police officers 

or others. It is narrowly confined to a cursory visual inspection of those places in 

which a person might be hiding.”17 Thus, a protective sweep may “last[] no longer 

than is necessary to dispel the reasonable suspicion of danger and in any event no 

longer than it takes to complete the arrest and depart the premises.”18 

 

17

 Buie, 494 U.S. at 327; see also Young v United States, 982 A.2d 672, 681

(D.C. 2009). There are two types of sweeps depending on the suspected source of 

the danger. The first allows the police to “look in closets and other spaces 

immediately adjoining the place of arrest from which an attack could be 

immediately launched,” even if they lack probable cause or reasonable suspicion to 

believe such an attack would occur. Buie, 494 U.S. at 334. The second allows the 

police to search beyond immediately adjoining areas of the arrest, but only if they 

“possess[] a reasonable belief based on specific and articulable facts that the area 

to be swept harbors an individual posing a danger to those on the arrest scene.” Id.

at 337. 

18

 Id. at 335-36 (emphasis added); see also, e.g., United States v. Starnes, 

741 F.3d 804, 808-09 (7th Cir. 2013) (protective sweep constitutional where “[t]he 

sweeping officer ran through the apartment briefly,” “removed [the apartment’s 

occupants] immediately and vacated the [apartment],” and “all of the police 

officers remained outside of the . . . apartment until the court issued the [search] 

warrant”); United States v. Winston, 444 F.3d 115, 120-21 (1st Cir. 2006) (“The 

duration of the sweep must be ‘no longer than is necessary to dispel the reasonable 

suspicion of danger and in any event no longer than it takes to complete the arrest 

and depart the premises.’ . . . After arresting Winston, . . . all agents departed. 

There was no evidence that the agents lingered longer than necessary to arrest 

Winston.” (quoting Buie, 494 U.S. at 335-36)); United States v. Paopao, 469 F.3d 

760, 767 (9th Cir. 2006) (police officer’s presence in an apartment after an arrest 

was legal as part of a protective sweep because the officer was not yet “secure in 

the notion that no one was left in the apartment”); United States v. Davis, 471 F.3d 

938, 945 (8th Cir. 2006) (“The [protective] search should take no longer than 

necessary to complete the arrest and leave the premises.”); United States v. Hogan, 

38 F.3d 1148, 1150 (10th Cir. 1994) (“If we assume that the officers initially had 

(continued...)
15

The government has not claimed, and there is no evidence, that the Marshals

discovered appellant’s cell phone in plain view (or otherwise) during their 

protective sweep of appellant’s residence. And Detective Barton confirmed at the 

suppression hearing that the sweep had ended before he arrived there, meaning the 

Marshals should have been gone from the residence by then. So the “protective 

sweep” exception to the warrant requirement did not justify the Marshals’ 

continued presence or Detective Barton’s subsequent entry, and the government 

cannot (and did not) invoke this exception to justify the warrantless discovery of 

the cell phone.

Third, “[i]t is well established that ‘exigent circumstances,’ including the 

need to prevent the destruction of evidence, permit police officers to conduct an 

otherwise impermissible search without first obtaining a warrant.”19 But the 

Marshals had no such justification after they removed all persons from appellant’s 

 

(...continued)

justification for a protective sweep, once the officers discovered that nobody else 

was in the house, the sweep should have ended.”); United States v. Oguns, 921 

F.2d 442, 447 (2d Cir. 1990) (“Once police eliminate the dangers that justify a 

security sweep . . . they must, barring other exigencies, leave the residence.”). 

19

 Kentucky v. King, 563 U.S. 452, 455 (2011).
16

residence, and Detective Barton admittedly went inside for exploratory reasons 

having nothing to do with the existence of any exigency.

That brings us to the fourth exception to the warrant requirement, the one on 

which the government relies. It contends the Fourth Amendment allowed the 

Marshals to impound appellant’s residence, pending the issuance of a search 

warrant, for the purpose of preventing unauthorized entrants from disposing of 

evidence there, and to seize incriminating items in plain view in the premises while 

they were doing so.

20

 There is authority supporting impoundment in such 

circumstances, but that does not mean it was lawful for the Marshals to remain 

inside the home after they had arrested appellant and removed all other persons 

who were present. Illinois v. McArthur21 teaches otherwise.

In McArthur, police stood guard outside a suspect’s home and prevented the 

suspect from entering it unescorted while they waited for a warrant to search it. 

 

20

 It should be noted that the government did not establish either that the 

Marshals remained in appellant’s residence for this reason, or that their discovery 

of the cell phone while doing so satisfied the additional requirements of the “plain 

view” exception to the warrant requirement (besides the requirement of lawful 

presence). See footnote 14, supra. Appellant did not directly dispute these 

matters, however.

21

 531 U.S. 326 (2001).
17

The police themselves did not enter the home except briefly to accompany the 

suspect (who was not yet under arrest) for the sole purpose of ensuring that he did 

not take the opportunity to destroy drugs concealed there. In order to determine 

whether this police conduct complied with the Fourth Amendment, the Court 

“balance[d] the privacy-related and law enforcement-related concerns to determine 

[whether] the intrusion was reasonable.”22 The Court concluded that “the 

restriction at issue was reasonable, and hence lawful, in light of the following 

circumstances, . . . consider[ed] in combination.”23 First, the police had probable 

cause to believe that the suspect’s home contained evidence of a crime.24 Second, 

the police had “good reason” to fear that the suspect would destroy the hidden 

drugs unless they restrained him.25 Third, and most significantly for present 

purposes, “the police made reasonable efforts to reconcile their law enforcement 

needs with the demands of personal privacy”; specifically, by staying outside the 

home except to escort the suspect in when he chose to reenter it, the police 

“imposed a significantly less restrictive restraint” and otherwise “left his home and 

 

22

 Id. at 331.

23

 Id.

24

 Id. at 331-32.

25

 Id. at 332.
18

his belongings intact.”26 Fourth, the police guard lasted for only a limited period of 

time, namely, two hours.27

The contrast between the present case and McArthur is marked. In the 

present case, the Marshals did not “ma[k]e reasonable efforts to reconcile their law 

enforcement needs with the demands of personal privacy.” After the Marshals 

arrested appellant and cleared his home, their only law enforcement need was to 

prevent unwanted entrants from removing or destroying evidence inside the 

residence before a search warrant could be executed. The Marshals reasonably 

could have accomplished that goal with minimal impact on appellant’s privacy 

interests in his home by stationing a guard at the door and securing the premises 

from the outside. They had no legitimate reason or need to stay inside the 

residence for that purpose. And unnecessarily lingering inside appellant’s dwelling 

 

26

 Id.; see also id. at 331 (concluding that the impoundment and restriction 

on the suspect’s unaccompanied access to his home was reasonable, because it was 

“tailored to that need [to preserve evidence], being limited in time and scope, . . . 

and avoiding significant intrusion into the home itself”); id. at 337-38 (Souter, J., 

concurring) (“When McArthur stepped outside and left the trailer uninhabited, the 

risk abated and so did the reasonableness of entry by the police for as long as he 

was outside. This is so because the only justification claimed for warrantless 

action here is the immediate risk, and the limit of reasonable response by the police 

is set by the scope of the risk.”).

27

 Id. at 332 (majority opinion).
19

was a substantial additional invasion of his privacy, much greater than a stakeout 

outside the premises would have been; for, at a minimum, it exposed the interior 

and unconcealed contents of the home to the Marshals’ continuing scrutiny even if 

they refrained from formally searching the premises. By any measure, the balance 

of law enforcement-related and privacy-related concerns in this case compels the 

conclusion that the prolonged intrusion in appellant’s home was unreasonable and 

hence unlawful under the Fourth Amendment.

Segura v. United States28 does not undermine that conclusion. The 

government relies on the Court’s determination in Segura that a warrantless police 

intrusion into an arrestee’s home to secure it while a search warrant was procured 

did not violate the Fourth Amendment’s proscription against unreasonable seizures

and therefore did not require suppression of evidence the police did not discover 

during the intrusion (and only discovered later during the execution of a valid 

search warrant). But that determination is inapposite to the present case, which 

concerns the applicability of the Fourth Amendment’s proscription against 

unreasonable searches to evidence—appellant’s cell phone—that the police did 

discover during a warrantless home intrusion. It was undisputed in Segura that the 

 

28

 468 U.S. 796 (1984).
20

warrantless police intrusion in that case did violate the Fourth Amendment’s 

proscription against unreasonable searches, and that this violation required any

evidence the police discovered during the intrusion to be suppressed. Nothing in 

Segura supports a different conclusion in this case.

In Segura, law enforcement agents had probable cause to believe Segura and 

Colon were trafficking in cocaine from their apartment. The agents arrested 

Segura in the lobby of his apartment building, took him up to his apartment, and 

knocked on the door. When Colon answered, the agents entered, “without 

requesting or receiving permission.”29 After informing those present that Segura 

was under arrest and a search warrant for the apartment was being obtained, the 

agents “conducted a limited security check of the apartment to ensure that no one 

else was there who might pose a threat to their safety or destroy evidence.”30 In 

plain view in the bedroom, the agents observed drug trafficking paraphernalia.31 

They then arrested everyone in the apartment. After the occupants were removed, 

two of the agents remained in the apartment for nineteen hours until a search 

 

29

 Id. at 800.

30

 Id. at 800-01.

31

 Id. at 801.
21

warrant was procured.32 In executing that warrant, agents discovered additional 

drug trafficking evidence that they had not noticed during their pre-warrant 

incursion.

The Supreme Court was concerned only with the admissibility of the 

additional, previously unseen evidence obtained pursuant to the search warrant. 

The government did not challenge the Second Circuit’s decision affirming the 

suppression of the evidence discovered before the warrant was obtained as the fruit 

of an unlawful search, and the Supreme Court stated it had “no reason to question 

the courts’ holding that that search was illegal.”33 “The only issue” before the 

Court was “whether drugs and other items not observed during the initial entry and 

first discovered by the agents the day after the entry, under an admittedly valid 

search warrant, should have been suppressed.”34 

The opinion for the Court majority concluded that the additional evidence 

found in executing the search warrant did not have to be suppressed as the fruit of 

 

32

 Id.

33

 Id. at 798 (emphasis added). 

34

 Id. at 804; see also id. (“[N]o issue concerning items observed during the 

initial entry is before the Court.”).
22

either an unreasonable search or an unreasonable seizure. It was not the fruit of an 

unreasonable search, the opinion explained, because the search warrant was 

supported entirely by information having a source independent of the first, illegal 

intrusion; it was information known to the agents before they entered the 

apartment.35 And even if the first intrusion amounted to a seizure of the apartment 

and all its contents, “seen and unseen,” that seizure (viewed apart from the search) 

was not unreasonable either, given that the agents had probable cause and 

undertook only to “preserve the status quo” for the limited time required to obtain 

a search warrant.36 

The rationale for the latter conclusion was set forth in Part IV of the Court’s

opinion.37 It reasoned that the illegality of the entry into the apartment did “not 

affect the reasonableness of the seizure,” because “[u]nder either method—entry 

 

35

 See id. at 813-14 (“Whether the initial entry was illegal or not is irrelevant 

to the admissibility of the challenged evidence because there was an independent 

source for the warrant under which that evidence was seized. Exclusion of 

evidence as derivative or ‘fruit of the poisonous tree’ is not warranted here because 

of that independent source.”).

36

 Id. at 798.

37

 The opinion of the Court was written by Chief Justice Burger. However, 

only one other Justice (Justice O’Connor) joined the Chief Justice in Part IV. See 

id. at 797 n.

†
23

and securing from within or a perimeter stakeout—agents control the apartment 

pending arrival of the warrant; both an internal securing and a perimeter stakeout 

interfere to the same extent with the possessory interests of the owners,”38 at least 

where the owners were already under arrest and in custody.

39

 But even so, Part IV 

emphasizes that “[d]ifferent interests are implicated by a seizure than by a 

search. A seizure affects only the person’s possessory interests; a search affects a 

person’s privacy interests.”40 Accordingly, Part IV acknowledges explicitly that 

the initial intrusion, though not an unconstitutional seizure, nonetheless “may have 

constituted an illegal search, or interference with petitioners’ privacy interests, 

requiring suppression of all evidence observed during the entry.”41 This 

necessarily included evidence in plain view of the intruding agents, because for the 

 

38

 Id. at 811 (Burger, C.J., joined by O’Connor, J.) (emphasis added). 

39

 See id. at 813 (“Here, of course, Segura and Colon, whose possessory 

interests were interfered with by the occupation, were under arrest and in the 

custody of the police throughout the entire period the agents occupied the 

apartment. The actual interference with their possessory interests in the apartment 

and its contents was, thus, virtually nonexistent. We are not prepared to say under 

these limited circumstances that the seizure was unreasonable under the Fourth 

Amendment.” (internal citation omitted)).

40

 Id. at 806 (internal citations omitted).

41

 Id. at 811 (emphasis added).
24

plain view rule to apply, the police must be “lawfully located in a place from which 

the object can be plainly seen.”42

Thus, on its face, Segura cannot be read as broadly holding that whenever 

the police need to safeguard evidence in an arrestee’s home pending the issuance 

of a search warrant, the Fourth Amendment permits them to enter or remain in the 

home and secure it from the interior in lieu of guarding it from the outside; or that 

evidence discovered in such warrantless intrusions will not be subject to 

suppression. Moreover, the Court’s subsequent decision in McArthur is plainly 

incompatible with such a reading of Segura. At most, Segura supports the 

proposition that evidence not discovered during or by means of the unlawful 

warrantless intrusion to secure the premises may not have to be suppressed if it is 

discovered later through execution of a valid, untainted search warrant or other 

lawful means. Hence, we agree with Professor LaFave that, even in the wake of 

Segura, “if the only risk is loss of evidence by someone thereafter entering the 

premises, then the police may not take the more intrusive step of making entry into 

the premises and guarding it from within while the search warrant is obtained.”43 

 

42

 Horton, 496 U.S. at 137 (emphasis added).

43 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth 

Amendment § 6.5(c), at 556 (5th ed. 2012) (footnote omitted).
25

Although Professor LaFave speaks of “entry” by the police, the same rule logically 

applies when the police extend their stay in a dwelling after their right to be there 

under an exception to the warrant requirement expires. In such non-exigent 

circumstances, absent other justification, the Fourth Amendment requires the 

police to guard the premises from the outside while awaiting a search warrant, and 

if a person with a possessory interest over the premises chooses to enter, as was the 

case in McArthur, the police constitutionally may escort that person inside only to 

ensure he does not remove or destroy evidence.

We therefore conclude that the trial court erred as a matter of law in ruling 

that the Fourth Amendment permitted government agents without a search warrant 

to enter or remain in appellant’s home for the purpose of “seiz[ing] the scene to 

make sure that they could locate any evidence that may be connected to the 

offense” after the issuance of a warrant. Because the government has provided no 

other sufficient legal justification for the Marshals’ initial warrantless finding of 

the phone in appellant’s home, nor for their continued presence or Detective 

Barton’s entry in that home without a search warrant, we hold that these actions 

violated appellant’s Fourth Amendment rights.

44

 

44

 For two reasons, it would not be appropriate to give the government a 

second opportunity on remand to carry its burden of justification by attempting to 

(continued...)
26

Our next step is to consider the consequence of that violation for this case. 

“It has long been the law that evidence collected in violation of the Fourth 

Amendment is considered ‘fruit of the poisonous tree’ and generally may not be 

used by the government to prove a defendant’s guilt.”

45

 To determine whether 

evidence can properly be classified as fruits, “the critical inquiry is whether ‘the 

 

(...continued)

fill in the evidentiary record. First, the government had a full opportunity the first 

time around; it was on notice from the start that it would need to justify Detective 

Barton’s warrantless seizure of appellant’s phone, and the hearing made clear that 

appellant viewed the seizure as tainted by the unlawfulness of the Marshals’ and 

Detective Barton’s warrantless entry into the home. Second, the government has 

proffered no additional facts that it would seek to prove if the suppression hearing 

were reopened. See Evans v. United States, 122 A.3d 876, 885 (D.C. 2015) (“The 

United States had a full opportunity at the original suppression hearing to develop 

the factual record it deemed necessary to support the admissibility under the Fourth 

Amendment of the evidence at issue. We are not inclined to remand to give the 

United States a second opportunity to develop the record on this point.”). This is 

not a case in which the government’s omissions were caused by the defendant’s 

failure to emphasize an issue below. Cf. United States v. Hernandez-Mieses, 931 

F.3d 134, 144 (1st Cir. 2019) (holding that although the court would “[o]rdinarily[] 

. . . not remand so that a party that failed to carry its burden (here, the government) 

would get a second chance to do so,” remand was appropriate where the appellant 

“b[o]r[e] some responsibility for the lack of focus by the government and the 

district court” on the legality of the protective sweep’s duration and scope at trial, 

because he did not highlight those issues before the trial court).

45

 Hooks v. United States, 208 A.3d 741, 750 (D.C. 2019) (citing Wong Sun 

v. United States, 371 U.S. 471, 484, 488 (1963)).
27

evidence . . . has been come at by exploitation of th[e] illegality or instead by 

means sufficiently distinguishable to be purged of the primary taint.’”46

Here, so far as record shows, the cell phone and cell phone data were come 

at by exploitation of what we have held to be unconstitutional conduct.47 Detective 

Barton relied on the Marshals’ unconstitutional discovery of the cell phone, and on 

his own unconstitutional entry, search, and discovery that the phone was not in 

appellant’s residence, to locate and seize the phone when he did. If the Marshals 

had never found the phone to begin with, there is no reason to suppose Detective 

Barton would have looked for it when he entered appellant’s home or would have 

found and seized it when he did; he relied on the Marshals’ report of their 

discovery. Even assuming (without a basis in the record) that the Marshals 

lawfully discovered the phone, Detective Barton still would not have learned that 

the phone was missing had he not gone into the dwelling, and then he would not 

have searched for it inside the dwelling, discovered it in the hands of appellant’s 

 

46

 Jones v. United States, 168 A.3d 703, 721 (D.C. 2017) (quoting Wong 

Sun, 371 U.S. at 488 (quoting John Maguire, Evidence of Guilt 221 (1959))).

47

 We note that the government has not argued otherwise. Nor, either in the 

trial court or on appeal, has the government ever disputed the applicability of the 

exclusionary rule to the cell phone and cell phone data in this case in the event we 

were to reject its impoundment theory and find a Fourth Amendment violation for 

the reasons we do.
28

girlfriend, and seized it from her. In short, the phone was seized as a direct result 

of what was learned through intrusions in appellant’s home that violated his Fourth 

Amendment rights.

48

However, that is not the end of the analysis. Exclusion of evidence is not 

necessarily mandated by the mere fact that it “would not have come to light but for 

the illegal actions of the police.”49 The Supreme Court has cautioned that “but-for 

causality is only a necessary, not a sufficient, condition for suppression.”50 We 

also must look to the totality of the circumstances to assess whether the evidence 

was purged of the primary taint, focusing on factors such as: (1) the “temporal 

proximity” of the illegality and acquisition of the fruits; (2) the existence of 

“intervening circumstances” causing the seizure of the fruits, such as an act of 

 

48

 Moreover, Detective Barton relied on his acquisition of the phone, and 

the information he obtained from it, to procure the search warrant allowing him to 

discover the incriminating contents of the phone. Unlike the search warrant in 

Segura, the warrant to search the cell phone seized from appellant’s girlfriend was 

not based entirely on an untainted, independent source. See also Murray v. United 

States, 487 U.S. 533, 542 (1988) (explaining that a search warrant cannot “in fact 

[be] a genuine[] independent source . . . if information obtained [through unlawful 

means] was presented to the Magistrate and affected his decision to issue the 

warrant”). 

49

 Wong Sun, 371 U.S. at 487-88.

50

 Hudson v. Michigan, 547 U.S. 586, 592 (2006).
29

independent free will on the part of the arrestee or a third party; and (3) “the 

purpose and flagrancy of the official misconduct.”51

The first factor, temporal proximity, has no purgative effect in this case and 

counsels in favor of exclusion. “[V]ery little time passed between” the Marshals’ 

and Detective Barton’s unlawful presence and search in appellant’s home and the 

detective’s seizure of the phone from appellant’s girlfriend; his search in the home 

for the phone led him directly and immediately to her.

52

The second factor, the existence of an intervening circumstance, likewise 

has no purgative effect because there was no such circumstance in this case. 

According to Detective Barton, appellant’s girlfriend did not offer his phone to him 

on her own initiative or of her own free will. Rather, the detective testified that he 

seized the phone from her after she confirmed it was appellant’s. Nor, as we have 

said, did the later issuance of a warrant to search the cell phone constitute an 

 

51

 See Brown v. Illinois, 422 U.S. 590, 603-04 (1975).

52

 See Jones, 168 A.3d at 723 (“First, as the search of Ms. Williams’s purse 

occurred at the scene of Mr. Jones’s apprehension and arrest, very little time 

passed between the police’s unlawful cell-site-simulator search and their recovery 

of the evidence from Ms. Williams’s purse.”); Gordon v. United States, 120 A.3d 

73, 86 (D.C. 2015) (“We observe that virtually no time passed between the illegal 

seizure and the discovery of the warrant . . . .”).
30

intervening circumstance that purged the primary taint of unlawfulness in the 

phone’s seizure, for the phone already had been seized and that fact was the 

predicate for the warrant’s issuance.

53

 

The third factor, the purpose and flagrancy of official misconduct, also does 

not operate to dispel the primary taint of the Fourth Amendment violation. 

Although the violation may not have been flagrant—the record does not show it to 

have been knowing or reckless—the fact remains that seizure of appellant’s cell 

phone was a primary aim of Detective Barton’s unjustified home intrusion, and it 

was only that violation that enabled Detective Barton to accomplish that aim.54

Based on the totality of the circumstances, we conclude that appellant’s cell

phone and cell phone data were obtained by exploitation of the Fourth Amendment 

 

53

 Cf. Utah v. Strieff, 136 S. Ct. 2056, 2062 (2016) (explaining that a valid 

arrest warrant was a sufficient intervening circumstance because it “was entirely 

unconnected with the [illegal] stop” (emphasis added)). 

54

 See Jones, 168 A.3d at 723 (“And third, although the police officers’ 

warrantless use of the cell-site simulator here was not flagrant misconduct, 

recovery of Mr. Jones’s cellphone and the complainants’ phones was undoubtedly 

one of the officers’ purposes in deploying the cell-site simulator.” (footnote 

omitted)); Gordon, 120 A.3d at 86 (“[A]lthough the illegality was not flagrant, the 

officer’s purpose at the time of the seizure—to check Gordon’s identity through 

computer databases that include information about warrant status—weighs in favor 

of suppression.”).
31

violation, not by sufficiently distinguishable means. The trial court erred in 

denying appellant’s motion to suppress those fruits.

The government argues that any error in admitting the cell phone evidence at 

trial was harmless. But we are not persuaded, as we must be, that this error was 

harmless beyond a reasonable doubt.55“A prosecutor’s stress upon the centrality 

of particular evidence in closing argument tells a good deal about whether the 

admission of the evidence was . . . prejudicial.”56 At appellant’s trial, the 

prosecutor relied upon the evidence collected from appellant’s phone for roughly 

twelve percent of the government’s closing argument. The prosecutor emphasized 

this evidence to shore up the credibility of Mr. Williams’s roommate, Mr. Tillman, 

the only witness who could identify appellant as Mr. Williams’s assailant. Linking

the calls to appellant’s phone from a contact named “Charlie” to the timeline of the 

crime, the prosecutor told the jury it was “not a coincidence” that, “[o]f all the 

people that could call the defendant within minutes of the murder,” the one who 

 

55

 In order to hold that an error implicating a federal constitutional right was 

harmless, we must be convinced that the error was “harmless beyond a reasonable 

doubt.” Chapman v. California, 386 U.S. 18, 24 (1967); Ellis v. United States, 941 

A.2d 1042, 1048-49 (D.C. 2008).

56

 Morten v. United States, 856 A.2d 595, 602 (D.C. 2004) (internal 

quotation marks and brackets omitted).
32

did so had the same name as the person Mr. Tillman had spoken of as appellant’s

accomplice. The other evidence found in the search of appellant’s cell phone lent 

additional support to Mr. Tillman’s identification of appellant. The confirmations

that the cell phone evidence supplied were critically important to the prosecution

because Mr. Tillman had given false testimony in the past and his credibility was 

tarnished and in serious question throughout the trial.

57

 Given the evidentiary 

value of the cell phone evidence, and the importance placed on it by the 

prosecutor, we cannot conclude that its unconstitutional admission was harmless 

beyond a reasonable doubt. 

 

57

 Before Mr. Tillman took the stand, the judge instructed the jury that he 

had “provided false or perjured testimony while under oath in testifying in another 

proceeding in January 2016 that relates to the allegations in this case.” When the 

prosecutor questioned Mr. Tillman about this past untruthfulness, the judge paused 

to instruct the jury that it had “heard testimony that Mr. Tillman had admitted to 

testifying untruthfully at a prior proceeding” and it “should consider the testimony 

of someone who has admitted to perjury . . . with caution and scrutinize it with 

care.” The defense anchored its closing in arguments about Mr. Tillman’s perjury 

and general dishonesty. And in his final jury instructions, the judge reminded the 

jury that “[t]he testimony of an admitted perjurer . . . , in this case, Maurice 

Tillman, should be considered with caution and scrutinized with care.” 
33

We therefore must reverse appellant’s convictions and remand for a new 

trial.

So ordered.

EASTERLY, Associate Judge, concurring: I agree entirely with Judge 

Glickman’s suppression analysis, but I would treat as conceded, in absence of any 

argument to the contrary by the government (or my dissenting colleague), the 

application of the exclusionary rule. See Robinson v. United States, 76 A.3d 329, 

342 n.27 (D.C. 2013) (stating that, “just as the government bears the burden to 

demonstrate that it did not violate a defendant’s Fourth . . . Amendment rights, it is 

the government’s burden to prove attenuation” such that the exclusionary rule 

should not apply).

FISHER, Associate Judge, dissenting: This is a challenging case made more 

difficult by an inadequate factual record and insufficient briefing. Before we issue 

such a consequential ruling, we should remand for a renewed evidentiary hearing 

and then require supplemental briefing.

As I will explain later, the focus of this litigation shifted once it got in the 

hands of appellate judges. It is regrettable, but not surprising, that the record does 
34

not answer many questions on which the court now has focused. No one 

questioned that the warrant for appellant’s arrest authorized the marshals to enter 

his home and take him into custody. Payton v. New York, 445 U.S. 573, 602-03 

(1980). None of the marshals testified, and we do not know how or where they 

found appellant’s cell phone. There is no basis in the record for asserting, as the 

court does, that the marshals’ discovery of the phone was unconstitutional. Nor is 

there a factual basis for thinking that Detective Barton conducted an illegal search 

inside the home. 

The focus of the suppression hearing was outside the home — on the seizure 

of the cell phone from appellant’s girlfriend. Appellant was also requesting a 

hearing under Franks v. Delaware, 438 U.S. 154 (1978), claiming that the 

government had misrepresented material facts when it applied for a separate 

warrant to search the phone. Although appellant’s counsel asserted orally that the 

marshals should have waited outside for the search warrant to arrive, and that 

Detective Barton entered the home illegally, those issues had not been briefed.

This court’s opinion purports to distinguish Segura v. United States, 468 

U.S. 796 (1984), factually, but it does not squarely deal with the Supreme Court’s 

holding:
35

Specifically, we hold that where officers, having 

probable cause, enter premises, and with probable cause, 

arrest the occupants who have legitimate possessory 

interests in its contents and take them into custody and, 

for no more than the period here involved, secure the 

premises from within to preserve the status quo while 

others, in good faith, are in the process of obtaining a 

warrant, they do not violate the Fourth Amendment's 

proscription against unreasonable seizures.

Id. at 798 (emphasis added). The present case turns on whether that holding is still 

good law. 

It is simply wrong to say that “Illinois v. McArthur teaches otherwise.” Ante

at 16. In fact, McArthur carefully avoided the question which had divided the 

Court in Segura — whether the police could lawfully secure the home from within 

while awaiting a search warrant. Rather than overruling Segura, the Court took the 

easy path home, noting that “both majority and minority [in Segura] assumed, at 

least for argument’s sake, that the police . . . might lawfully have sealed the 

apartment from the outside, restricting entry into the apartment while waiting for 

the warrant.” McArthur, 531 U.S. at 333. There is obvious tension between the 

holdings of Segura and McArthur, but the Supreme Court has not resolved it.

Nor have we benefitted from adversarial briefing on this important question. 

The government quoted Segura in its brief, but appellant did not even mention the 
36

case. Appellant does cite McArthur in both of his briefs, but for a different 

proposition. Before holding that the marshals could not lawfully remain inside the 

house while awaiting the search warrant, we should ask both parties to brief the 

issue.

If the marshals were lawfully securing the house from within, Detective 

Barton did not violate the Fourth Amendment by entering the home to join them. 

And he could take note of what was (or in this case was not) in plain view. Clark 

v. United States, 593 A.2d 186, 196-99 (D.C. 1991) (where initial entry was 

lawful, and responding officers remained in the premises for a reasonable time and 

were still there, crime scene search officer could enter and seize items in plain 

view); see also Porter v. United States, 37 A.3d 251 (D.C. 2012) (applying Clark

and remanding for an evidentiary hearing to clarify facts); Settles v. United States, 

615 A.2d 1105, 1112-13 (D.C. 1992) (applying the reasoning of Clark).

But before we ask for supplemental briefing, we need to know more facts. 

Because the ground has shifted since the suppression hearing was held, we should 

remand for further proceedings. See D.C. Code § 17-306 (“The District of 

Columbia Court of Appeals . . . may remand the cause and . . . require such further 

proceedings to be had, as is just in the circumstances.”). 
37

I respectfully dissent.