Appeal from the Superior Court of the District of Columbia; Hon. John H. Suda, Trial Judge
Newman and Ferren, Associate Judges, and Pryor, Senior Judge. Opinion for the court by Associate Judge Newman. Dissenting opinion by Associate Judge Ferren.
The opinion of the court was delivered by: Newman
John Thomas Peay appeals his conviction for possession of marijuana with intent to distribute in violation of D.C. Code § 33-541(a)(1) (1988) on grounds that evidence seized from him and admitted against him at trial Was seized in violation of the Fourth Amendment of the United States Constitution. Specifically, Peay charges that the evidence, consisting of several plastic bags of marijuana, was seized by an officer who, without proper justification, ordered him to stop. Because we conclude as a matter of law that the officer lacked a reasonable articulable suspicion that Peay was engaged in criminal activity when he ordered Peay to stop, we reverse.
According to the testimony of Emmett G. Queen, on the afternoon of January 26, 1988, Queen and two other plainclothes officers of the Metropolitan Police Department were on routine patrol in the 1400 block of Girard Street, N.W., when they parked their vehicle in front of a building known to the officers as a place where illegal narcotics were sold. *fn1 There they observed John Thomas Peay standing in the doorway to the building. As they exited the car to begin their routine check of the building for illegal narcotics sales, they saw Peay look in their direction before hurrying into the building.
Queen went immediately to the third floor to begin his part of the routine check. There in the third floor hallway, he encountered Peay standing about three feet away in good light. Peay was clutching something in his left hand, and Queen testified that he thought it might be "a weapon, a small knife, possibly a gun." Queen identified himself as a police officer, then approached Peay and asked what was in his hand. Peay turned and began to walk away. Queen ordered Peay to stop. Peay continued walking, and Queen ran towards him and grabbed him by the shoulder, at which time Peay dropped several small plastic bags containing a greenish weed. Another officer arrived and the contents of the plastic bags were field tested. When the contents of the bags proved to be marijuana, Peay was placed under arrest. He was subsequently charged with possession of marijuana with intent to distribute.
Peay moved for suppression of the bags of marijuana at a pre-trial hearing, arguing that police had begun to pursue him from the moment they first saw him standing outside the building, at which point in time they lacked a reasonable articulable suspicion that would justify seizing him. When the trial court rejected his interpretation of events, concluding instead that the police had entered the building not to chase Peay but on routine patrol, Peay argued that Queen did not have a reasonable articulable suspicion when he stopped Peay in the third floor hallway, since Queen admitted he had no idea what Peay had in his hand. The trial court rejected his argument as well, holding that Queen did indeed have a reasonable articulable suspicion. As the trial court put it:
I also find that if there was a stop here -- and I'm not certain that there was there was an articulable suspicion upon which to base the stop, which included more than this being a building where the police officer testified there was a traffic in narcotics.
The activity of the defendant prior to the actual question which was lodged by the police officer, was such that when the police officer saw that the defendant had something in his hand, he could reasonably have a suspicion of there being a problem. Therefore, when he said, "Stop. What is in your hand?" he was indeed minimizing the impact of this stop, if indeed it was a stop, and he was minimizing it to the point where he was addressing what for him was an articulable suspicion of criminal activity and danger to himself.
He and two other officers were in a building where they knew there was a traffic in drugs, and they also know of the dangers to their own safety inherent in drug trafficking and being in areas where drugs are being sold.
On appeal, Peay has abandoned his argument that a chase ensued from the moment he entered the building. Moreover, the government concedes that Queen conducted a stop within the meaning of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) by ordering Peay to stop. This concession was proper. See Michigan v. Chesternut, 486 U.S. 567, 573-74, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988); Smith v. United States, 558 A.2d 312, 314 (D.C. 1989) (en banc). Because we hold that prior to observing Peay's clenched fist Queen had no justification for conducting a Terry stop, the only issue we face is whether the trial court erred in holding that Queen had justification for a Terry stop after observing Peay's clenched fist.
We begin with a fundamental premise expressed in Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1970):
the most basic constitutional rule in this area is that "searches conducted outside the judicial process, without prior approval by Judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). The exceptions are "jealously and carefully drawn," Jones v. United States, 357 U.S. 493, 499, 2 L. Ed. 2d 1514, 78 S. Ct. 1253 (1958), and there must be "a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative." McDonald v. United States, 335 U.S. 451, 456, 93 L. Ed. 153, 69 S. Ct. 191 (1948). "he burden is on those seeking the exemption to show the need for it." United States v. Jeffers, 342 U.S. 48, 51 1951, 96 L. Ed. 59, 72 S. Ct. 93 ).
One of the "specifically established and well-delineated exceptions" was created in Terry v. Ohio, supra, 392 U.S. 1. Under the Terry exception, in order to justify forcibly stopping a citizen, an officer "must be able to point to specified and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. The definition of what constitutes articulable suspicion necessarily has depended upon the facts available to the officer in each of the particular situations that have come up for review. Nonetheless, we have expressed general principles to be followed in reviewing the nexus between available facts and the inference drawn from them. For example, in Stephenson v. United States, 296 A.2d 606 (D.C. 1972), cert. denied, 411 U.S. 907, 93 S. Ct. 1535, 36 L. Ed. 2d 197 (1973), we identified the following factors:
(1) the particular activity of the person stopped for questioning which the investigating officer has observed, (2) that officer's knowledge about (a) the activity and the person observed and/or (b) the area in which the activity is taking place, and (3) the immediate reaction or response of the person approached and questioned by the officer.
Id. at 609. Moreover, we have said that in reviewing the judgments of police officers making such stops in the field, we must consider the "totality of what the police observed." United States v. Bennett, 514 A.2d 414, 416 (D.C. 1986). See, also, United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981) ("the totality of the circumstances -- the whole picture -- must be taken into account."). However, we have also made clear that there must be more than mere suspicions or hunches to justify such a stop. See Jones v. United States, 391 A.2d 1188, 1191 (D.C. 1978); Coleman v. United States, 337 A.2d 767, 772 (D.C. 1975). As ...