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April 21, 1983


The opinion of the court was delivered by: BRYANT

 On April 6, 1983, the court granted the motion of defendant James L. Best to suppress all physical evidence seized by the government at the time of his arrest and all statements made by him while in police custody following his arrest. The court now sets forth the reasons for its decision.

 A. Factual Background: The Search and Arrest

 The factual background of this case was examined at a full-day hearing held on March 10, 1983. At this hearing, the court received testimony from three witnesses for the defendant -- the defendant himself; Mr. Lawrence Troy Hart, who was arrested along with the defendant; *fn1" and Ms. Valerie Davis, the defendant's girl friend -- and three witnesses for the government -- police officers Michael P. Wilson, Edward W. Minnis, Jr., and Samuel Prue, all of whom were present when the defendant was searched and arrested.

 With a few significant exceptions, which are discussed in part C below, the facts of this case are not in dispute. In the early afternoon of December 11, 1982, defendant Best was sitting in his car talking with his friend Lawrence Troy Hart. The car was parked in a parking lot behind a public housing project near Kenilworth Avenue and Quarles Street, N.E. It was not unusual for the defendant to park his car there because he frequently visited Ms. Davis, who lived in the housing project.

 On the day in question, there were several men standing in a group near the defendant's car, some of whom had been previously arrested for selling drugs in the parking lot. There was also a woman in the parking lot, who was walking towards an alley which leads out to the shopping district on Kenilworth Avenue.

 Suddenly and without warning, several police cars drove through the alley and into the parking lot. At the same time, several policemen approached on foot from the direction of the housing project. Cocking their shotguns, the policemen quickly converged on the defendant's car.

 The first policeman to reach the car was Officer Michael P. Wilson. At the suppression hearing, Officer Wilson testified that his attention was drawn to the car by a furtive movement made by the defendant, who was sitting in the driver's seat. Officer Wilson testified that the defendant appeared to be reaching under the driver's seat. When Officer Wilson approached the car, he went to the passenger's side, where Mr. Hart was sitting, and ordered the men to get out of the car. Officer Wilson placed Mr. Hart against the hood, ordered him to take everything out of his pockets, and frisked him.

 Meanwhile, the defendant, who had gotten out of the car in response to Officer Wilson's order, was taken by Officer Edward Minnis to a low chain-link fence at the edge of the parking lot. He was joined there by the group of men who had been standing near his car. All the men were told to empty their pockets and were frisked. The woman who had been walking towards the alley was picked up and also placed against the fence.

 He entered the car and looked under the seat. There he found not only a gun, but also a black leather pouch containing plastic envelopes of heroin. He handed the leather pouch out to another officer, who, in turn, held it up for the other policemen to see. Officer Wilson said that he left the gun on the floor of the car so that it could be processed for fingerprints.

 Further search of the car uncovered a number of empty plastic bags, a machine for sealing the bags, and three $10 rolls of quarters in the trunk. *fn2" During the frisks, $50 was also seized from Mr. Hart, *fn3" and $253 from the defendant. The defendant also handed the officer who was frisking him an envelope which contained a small amount of marijuana.

 Following the search, the defendant and Mr. Hart were formally placed under arrest, handcuffed, put in a police wagon, and taken to the Sixth District station, where they were stripped searched and locked up. After being advised of his right to remain silent, the defendant acknowledged that the drugs and the gun were his and emphasized that nothing taken from his car belonged to Mr. Hart.

 B. Factual Background: The Police "Sweep" Tactics

 According to the unanimous testimony of both the defendant's witnesses and the government's witnesses, the "sweep" tactics that resulted in defendant Best's arrest were (and perhaps continue to be) commonly used by the police in the Quarles Street area. It was obvious from the testimony of the defendant's three witnesses that as residents of that area, they were thoroughly familiar with the sweeps. Ms. Davis testified that on December 11, when she heard the sound of shotguns being cocked, she knew from experience that another sweep was beginning. She said that the police, whom she called "the jump-out boys,":

ride through the alley, jump out cocking their guns stopping everybody and anything that's in their way . . . telling them empty their pockets, up against the fence . . . . They never say [what they are looking for]. If you ask them questions, next thing you know you are down there for disorderly conduct. [Transcript of March 10, 1983, Hearing at 33.]

 The defendant testified in similar fashion and added that:

When I saw them coming up the alley and I noticed these four or five people standing in front of me then I knew that that was going to be the place that they stopped because whenever they come they only stop if it's a crowd or a gathering. If anything more than three or four people are standing in one spot when they come through that's where they are going to make their initial stop at. [Transcript at 89.] *fn4"

 Mr. Hart, who described the police tactic as "swarming," testified that on a previous occasion, while walking through the alley to the store, he had been caught up in one of the sweeps, searched at gunpoint, and told not to walk there again.

 The most precise testimony concerning the sweep tactics was given by Sergeant Prue, the commanding police officer, as follows:

A. Well, I have ten people assigned to my unit and I went to the commanding officer of the district and he assigned me 15 more people. We decided to use these 25 people and about four ...

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