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11/14/90 MATTER T.T.C.

November 14, 1990

IN THE MATTER OF T.T.C., APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Robert I. Richter, Trial Judge

Rogers, Chief Judge. Terry and Steadman, Associate Judges. Opinion for the court by Chief Judge Rogers. Concurring opinion by Associate Judge Terry. Dissenting opinion by Associate Judge Steadman.

The opinion of the court was delivered by: Rogers

Appellant T.T.C. appeals from an adjudication of delinquency based on his possession of cocaine in violation of D.C. Code § 33-541(a)(1988 Supp.). He contends that the trial Judge erred in denying his motion to suppress the drugs found in the car in which he was a passenger since the evidence was obtained daring an illegal seizure. We agree and reverse.

I

As a result of seeing a man hand a small white object to another man at the corner of First Street and Rhode Island Avenue, N.W., on January 18, 1989, at about 9:45 p.m., Officer Bradley Beldon and two other undercover police officers followed the car which the first man had entered. When the car came to a stop at a traffic light, the officers approached the car and the three men inside. Officer Beldon had a flashlight in one hand and his pistol at his side in the other hand. Beldon identified himself as the police, and saw appellant, who was sitting in the rear passenger seat, put an object on the floor. Beldon "removed from the car," and saw a plastic bag containing smaller ziplock packets of a white rock substance on the car floor where appellant's feet had been. Beldon seized the plastic bag and arrested appellant.

The trial Judge denied appellant's motion to suppress the drugs on the ground that the officers' approach to the car did not constitute a stop invoking the Fourth Amendment, and, alternatively, if it did, the police had a reasonable and articulable suspicion that criminal activity had occurred at First and Rhode Island Avenue which justified the minimal intrusion engendered by approaching the car. The Judge credited Beldon's testimony that, based on his experience he thought he had witnessed a drug transaction involving one of the men in the car that the police followed. *fn1 The Judge also found that the police had articulable suspicion to order appellant out of the car when he was observed dropping something, and that upon seeing the white packets in the plastic bag, the police had probable cause to seize the packets and arrest appellant.

II

Appellant contends that the approach of the police and the announcement that they were the police constituted a Terry stop which was not supported by a reasonable suspicion of criminal activity, and that when the police removed appellant from the car, he was arrested without probable cause. Hence, he contends, the evidence seized from the car was a fruit of an illegal seizure and should have been suppressed.

In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Supreme Court made clear that personal intercourse between the police and citizens involves a seizure when the officer "by means of physical force or show of authority, has in some way, restrained the liberty of a citizen." 392 U.S. at 19 n.6. We agree that when the police officer approached the car with his gun at his side and announced his identity, appellant's liberty was restrained. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh'g. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980) ("In view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."); see Smith v. United States, 558 A.2d 312, 314 (D.C. 1989) (en banc); Hemsley v. United States, 547 A.2d 132 (D.C. 1988).

Although the police did not stop or block the car in which appellant was a passenger, the show of force exhibited by the police constituted at least a Terry stop. While the nature of the suspected activity observed at First and Rhode Island Avenue, and Beldon's concern that the car's occupants might be armed or take other dangerous or evasive action, combined with the time of night and the reduced ability to observe and evaluate the occupants' reactions to his approach while in the car, may well have warranted the officer's concern for his safety, a reasonable person would think his liberty was restrained when an officer holds his gun at his side and announces his authority. *fn2 See United States v. Jackson, 652 F.2d 244 (2d Cir.), cert. denied, 454 U.S. 1057, 102 S. Ct. 605, 70 L. Ed. 2d 594 (1981) (Terry stop where officer approached car with gun drawn, but not pointed); Miley, supra note 2,477 A.2d at 722-23 (officer's command, with gun drawn, to come forward sufficient to curtail suspected gunman's freedom to leave); United States v. Diggs, 173 U.S. App. D.C. 95, 522 F.2d 1310, 1314 (1975), reh'g. denied sub nom., United States v. Floyd, 175 U.S. App. D.C. 337, 535 F.2d 1299, cert. denied, 429 U.S. 852, 97 S. Ct. 144, 50 L. Ed. 2d 127 (1976) (officers' gun-drawn approach of car, based on "powerful suspicion," while showing identification and ordering three suspected armed robbers to raise hands). See also Ceballos, supra note 2, 654 F.2d at 184 (blocking car, approaching with guns drawn and ordering out of car sufficiently intrusive to require probable cause). It does not matter for purposes of a Terry stop that the officer did not actually point his gun at the men in the car. See Jackson, supra, 652 F.2d at 249 (guns drawn but not pointed does not turn Terry stop into an arrest). Further, we need not decide whether the officer's approach with his gun drawn or his subsequent action removing appellant from the car constituted such excessive use of force as would turn a Terry stop into an arrest of appellant since we conclude that the police did not have articulable suspicion under Terry. *fn3

III

The Supreme Court has noted that the "balancing of competing interests" is "the key principle of the Fourth Amendment." Michigan v. Summers, 452 U.S. 692, 700 n.12, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). See Maryland v. Buie, supra note 2, 110 S. Ct. at 1096-97. Consequently, the determination whether police behavior is supported by a reasonable and articulable suspicion of criminal activity lies in a comparison between the degree of police intrusion and the level of police justification. See Mendenhall, supra, 446 U.S. at 516; note 3, (supra) . Under Terry, the police officer must be able to point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" an investigatory stop. 392 U.S. at 21. The Terry exception to the probable cause requirement is limited to circumstances "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Id. at 30 (emphasis added). While every case will differ based on its facts, our decision in Jones v. United States, 391 A.2d 1188 (D.C. 1978), makes clear the deficiency in the instant case.

In Jones, a police officer noticed two men in a parked car with the dome light on at about one o'clock a.m. The car was in an area known for drug trafficking and the passenger was smoking a cigarette. As the officer approached the car, the passenger made a quick movement as though trying to hide something under the seat. The officer called for assistance and ordered the men out of the car. When the passenger alighted, the officer saw a greenish weed on the right front seat and numerous brown envelopes on the rear seat. Based on his experience the officer recognized the envelopes as those used to package marijuana for sale. The officer arrested the two men.

On appeal, the court reversed the convictions. While no seizure of the occupants of the car occurred when the officers walked up to the car, there being neither a show of force or authority, the court held that when the police ordered the men out of the car without making further inquiry, the occupants had been unlawfully seized for Fourth Amendment purposes since the police were acting upon circumstances that were only "marginally suspicious." 391 A.2d at 1191. Neither the passenger's gesture nor the other circumstances provided specific and articulable suspicion to justify ordering the men out of the car, the court noting that the police had no prior complaint of a crime nor any prior contact or observation of the occupants engaged in criminal conduct. Id. The court rejected the government's argument that under Pennsylvania v Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), *fn4 the officer could order the occupants out of the car for his own protection once he had reason to speak to them of circumstances that are marginally suspicious, reasoning that to do so "would allow the government to boot-strap its way to a full blown 'seizure' in the absence of articulable facts indicating that 'criminal activity is afoot.'" Id. at 1190-91 (quoting Terry v. Ohio, supra, 392 U.S. at 30). See also United States v. Page, 298 A.2d 233, ...


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