made by the defendant, who was sitting in the driver's seat, and (b) he searched under the driver's seat of the car only after first seeing the butt end of a gun sticking out in plain view from beneath the seat. The defendant vigorously disputed both of these claims.
In assessing the credibility of Officer Wilson's testimony, the court applies the same kinds of tests as it would ask jurors to apply in their factfinding.
It is the court's considered judgment that in light of these common-sense tests, Officer Wilson's testimony concerning the two points noted above must be rejected as unworthy of belief.
In the first place, Officer Wilson did not testify in a forthright manner. On the witness stand, he behaved in a nervous and evasive manner, so much so that the court found it necessary to try to pin him down on two occasions. See transcript at 119 and 125.
Secondly, Officer Wilson's testimony at the suppression hearing contradicted his earlier sworn testimony in critical areas, and the officer was unable to reconcile the discrepancy. At the suppression hearing, he testified with seeming confidence and certainty that he saw the pistol while looking through the open door of the defendant's car. However, at the preliminary hearing held before the Magistrate, Officer Wilson categorically stated that he saw the pistol while peering through the windshield of the car.
Thirdly, Officer Wilson's testimony was contradicted by what the court finds to be credible testimony of other witnesses. The defendant testified that once he saw the police cars driving into the alley, he knew that he and his car would be searched. He testified that he made no effort to avoid or resist the search. He also testified that both the gun and the heroin pouch were hidden far back under the seat and out of plain view. He and Ms. Davis testified that the seat of the defendant's car was covered with an old blanket, which had the effect of obscuring from view what was under the seat. While on the witness stand, both the defendant and Ms. Davis behaved in a natural and forthright manner which sharply contrasted with that of Officer Wilson.
Finally and perhaps most importantly, Officer Wilson's testimony revealed itself as being incredible in the face of his actual conduct at the time of the defendant's arrest. Officer Wilson maintained that as he approached the defendant's car, he looked through its rear window and saw the driver make a furtive movement, as if touching something under the seat. But when he reached the defendant's car, he went directly to the passenger's side of the car, ordered the passenger out of the car, paying strict attention to the passenger, his movements, and the place where he had been sitting. As to the driver, who allegedly made the furtive movement, he paid no attention. See transcript at 138. The court finds it incredible that a person would find something that he deemed significant and then ignore it, especially when what was at stake was his own physical safety.
For all these reasons, the court is forced to reject Officer Wilson's testimony to the extent that it would lend any uniqueness to the search of the defendant. The court finds as a matter of fact that the police neither approached the defendant's car in response to seeing some furtive gesture nor searched the car only after first seeing a gun in plain sight.
The court's confidence in this finding is strengthened by the undisputed fact that when the police conducted sweeps of the Quarles Street parking lot, their standard procedure was to search and interrogate anyone they found there and to order everyone out of their cars. What happened on December 11, 1982, was not a breakdown in the Department's investigative procedures, but simply their normal functioning.
The government has attempted to justify the detention and search of defendant Best on authority of United States v. White, 208 U.S. App. D.C. 289, 648 F.2d 29 (D.C. Cir. 1981). But, as the government acknowledges, the facts in White differ in significant ways from those in the instant case. In White, the police acted on a tip specifically directed at the defendant and established surveillance of the defendant's car before approaching it. None of that occurred here.
The court knows of no legal basis for the sweep tactics employed by the police in this case. The fourth amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". The fourth amendment "protects people, not places," Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), and applies "whenever a police officer accosts an individual and restrains his freedom to walk away," Terry v. Ohio, 392 U.S. 1, 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). There can be no question that when the police conducted sweeps in the Quarles Street area and searched people at gunpoint, they were "restrain[ing] their freedom to walk away".
Even a mere investigative stop of the type discussed in Terry, supra, cannot be justified simply because a person is found in an area with a high incidence of drug traffic, looks unfamiliar and suspicious to the police officer, but has done nothing to create suspicion of "any specific misconduct," Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979). The police must have, in Judge Leventhal's words, a "founded suspicion of wrongdoing," United States v. Montgomery, 182 U.S. App. D.C. 426, 561 F.2d 875, 880 (D.C. Cir. 1977).
Moreover, as this circuit recently stated in Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134 (D.C. Cir. 1982):
Appellant suggests that an MPD contact, even if a seizure, "constitutes such a minor intrusion upon a pedestrian's privacy that it need not be justified by a reasonable, articulable suspicion of criminal conduct, much less probable cause, and such questioning is proper as long as it is not wholly capricious." . . . The Supreme Court has recognized that brief, relatively unintrusive detentions -- termed "stops" -- may be "reasonable" if based upon an articulable suspicion . . . . More intrusive detentions are reasonable only if supported by probable cause . . . . The law is unsettled concerning the point at which a "stop" ripens into a detention that requires probable cause. In any event, the Court has stated that "any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity." . . . Accordingly, we decline appellant's invitation to find that a contact, even if a seizure, is reasonable although not based upon any recognized objective standard. [ Id. at 139-40, n.9.]
This is not a case that calls on the court to determine whether the line between an investigatory stop and an arrest was crossed. Even when judged under the less restrictive standards of a stop, the detention and search of defendant Best cannot stand. The police had no reason to suspect the defendant of any specific misconduct and cannot ascribe his detention and search to any exigent circumstances. Their action was prompted rather by a policy which takes legal shortcuts in dealing with drug trafficking, at least in Mr. Best's part of town.
Indiscriminate sweeps may be an effective tactic for moving drug traffic from one place, where it bothers the citizens, to another, where it causes less initial citizen concern. But when tested by the standards of the Fourth Amendment, its legitimacy is nonexistent. What happened in this case is perhaps best put in perspective by the words of Judge Edwards in United States v. White:
This case arose in the inner-city of Washington, D.C. One wonders whether police officers . . . would accost well-to-do residents in one of the affluent suburbs near Washington (where drug peddling is known to be prevalent), in the same manner that they accosted the appellant here. It is doubtful. [ 648 F.2d at 46 (Edwards, J., dissenting).]