Appeal from the Superior Court of the District of Columbia; Hon. Bruce D. Beaudin, Trial Judge
Farrell, Associate Judge. Concurring opinion by Senior Judge Kern. Dissenting opinion by Associate Judge Steadman.
The opinion of the court was delivered by: Farrell
On March 15, 1989, at approximately 2:00 a.m., the police received a call from an unknown citizen stating that three or four individuals were selling drugs at the corner of Fourteenth and Buchanan Streets, N.W. No additional description of the individuals was given. Within a period of time unclear in the record but which the government concedes to be fifteen to twenty minutes, police officers arrived at the intersection in marked vehicles and saw three to five persons standing on the northwest corner. The group dispersed on sighting the police, as two men "took off around the corner" and appellant began to walk away "at a brisk pace." One of the officers jumped out of his car and walked quickly after appellant. Appellant then stopped and placed on the ground a tote bag he was carrying; he made no attempt to move on. The officer took hold of appellant's arm, picked up the bag, and ushered him back to the police car where he asked him whose bag it was. Appellant replied, "It's not mine. You can have it if you want it." The bag was searched at the scene and found to contain cocaine.
The trial Judge found -- and appellant does not dispute -- that if the police acted properly before taking hold of appellant and the bag, the Fourth Amendment was not violated because appellant either abandoned the bag at that point or consented to a search of its contents. The court further concluded that the police, on the basis of the telephone call and their own observations, had reasonable suspicion justifying the seizure of appellant and the bag. We are compelled to reverse.
We begin with the relevant legal principles undisputed by the parties. To justify an investigative detention or seizure under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the police "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). As the Supreme Court recently explained, "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the 'totality of circumstances' that must be taken into account when evaluating whether there is reasonable suspicion." Alabama v. White, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990), quoting Cortez, 449 U.S. at 417. These factors (the content of the information and its degree of reliability) reflect the criteria the Court traditionally has employed in evaluating anonymous tips as a basis for finding probable cause, viz., the informant's "veracity," "reliability," and "basis of knowledge." In White, the Court confirmed its earlier holding in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), that these factors "remain 'highly relevant in determining the value of [the informant's] report,'" White, 110 S. Ct. at 2415, and applied them to the lesser showing required for reasonable suspicion. In addition to knowledge of the informant himself, "corroboration of details of an informant's tip by independent police work," Gates, 462 U.S. at 241, can provide a substantial basis for crediting the informant's statement. Goldston v. United States, 562 A.2d 96, 100 (D.C. 1989).
On appeal, this court makes an independent determination of whether there was reasonable suspicion, Brown v. United States, 590 A.2d 1008 (D.C. May 8, 1991) (probable cause), although in doing so "we give deference to the court's findings of fact as to the circumstances surrounding the appellant's encounter with the police." Giles v. United States, 400 A.2d 1051, 1054 (D.C. 1979). The facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court's ruling. Nixon v. United States, 402 A.2d 816, 819 (D.C. 1979).
Our task, then, in this case is to apply a "totality of the circumstances approach . . . taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work." White, 110 S. Ct. at 2416. We begin with the tip itself and ask what the police knew about its reliability and content -- its quality and quantity. The trial Judge found that the police went to Fourteenth and Buchanan Streets "pursuant to a citizen complaint about drug dealing." The government thus urges that we apply the "presumption," which we have "long recognized," that "a citizen is prima facie a more credible source than a paid police informant," and further that when the citizen appears to have personally observed a crime, "the reliability of his or her information is greatly enhanced." Allen v. United States, 496 A.2d 1046, 1048 (D.C. 1985) (citations and internal quotation marks omitted). The government points to the testimony of Officer Morgan that he responded to Fourteenth and Buchanan Streets after "Lieutenant Hawkins came in and said a woman who lives in the area called, she said there were three to four subjects at the corner of 14th and Buchanan, they're there now and they are selling drugs" (emphasis added). The government asserts that from this it can be inferred that the woman had personally observed the illicit activity that she said was continuing.
The Judge made no express finding that the caller lived in the area and had personally seen the drug activity she reported, perhaps because Officer Morgan's statement quoted above was hearsay several times removed, and elsewhere he testified only that Hawkins had told him the station clerk had received a call "that there were three or four subjects selling drugs on the corner of 14th and Buchanan Streets, N.W." Also, the caller in this case does not compare favorably with the citizen in Allen, supra. *fn1 See also Brown, supra, slip op. at 15-18. Nevertheless, we may assume that the anonymous caller possessed citizen-eyewitness status and hence that her report had reliability beyond that accorded a tip from a caller whose basis of knowledge is wholly unknown. It is when we turn to the content of the information and the circumstances of its corroboration that the government's argument falters.
The tip stated that three or four persons were presently at Fourteenth and Buchanan Streets selling drugs. Other than describing the number of participants, it gave no physical description of the suspects by sex, race, size, clothing or any other distinguishing feature; *fn2 nor did it describe any object, such as a car or storefront, in the vicinity of which they could be located. *fn3 See Brown, supra, slip op. at 18-19, 34 (noting "scanty" description furnished by anonymous informant). These omissions are important when we consider the other key factor in this case, the delay of at least fifteen minutes in the arrival of the police at the reported location. *fn4 Appellant asserts, and the government does not disagree, that this response time is considerably longer than the delay involved in our past decisions on point. *fn5 The government argues, however, that the delay is neutralized by the fact that the events occurred at 2:00 a.m. when relatively few people could be expected to be on the street, and the fact that the police upon arriving saw no other individuals at the intersection. *fn6
These facts do not suffice on this record. In their testimony the police officers acknowledged that a bus and taxi cab stop, a convenience store, and a twenty-four-hour gas station were located at or near the intersection and that bus service along that route continued late into the night. Moreover, as the police drove toward the intersection "there were other people throughout the block . . . on the west side of the street on the 14th Street corridor." In these circumstances, the lack of specificity in the tip leaves too much uncertainty whether the persons the police saw at the corner were the same ones the caller had identified more than a quarter of an hour earlier.
The government further argues that any uncertainty about appellant's involvement in selling drugs -- bearing in mind that only reasonable suspicion is needed -- was overcome by his behavior in abruptly walking away and then stopping and depositing his bag when the police pulled up in their marked vehicles. It is basic that independent police observation of suspicious conduct can offer confirmatory support for a tip that otherwise would be inadequate. See Lawson v. United States, supra. We conclude, however, that the government's reliance on evidence of "flight" in this case is foreclosed by this court's en banc decision in Smith v. United States, 558 A.2d 312 (D.C. 1989). In Smith the court recognized that "flight from authority -- implying consciousness of guilt -- may be considered among other factors justifying a Terry seizure." 558 A.2d at 319 (quoting United States v. Johnson, 496 A.2d 592, 597 (D.C. 1985)). However, the en banc majority held, such use of flight presupposes a finding that "the manner of flight suggests consciousness of guilt rather than a mere desire not to interact with the police . . . . For flight to suggest consciousness of guilt -- a mentality other than a legitimate desire to avoid the police -- that flight not only must be very clearly in response to a show of authority but also must be carried out at such a rate of speed, or in such an erratic or evasive manner that a guilty conscience is the most reasonable explanation." 558 A.2d at 319 (emphasis added) (separate majority opinion by Judge Ferren).
Thus, the fact that in this case the individuals, including appellant, clearly knew that police were present does not satisfy the Smith test unless appellant's reaction was in the manner Smith requires. It was not. As in Smith, appellant did not "bolt or run" from the scene, id. at 317, but walked away at a fast pace. *fn7 Smith expressly held that "the fact that the person chooses to leave the scene, even at a brisk pace, cannot reasonably arouse suspicion" if the police "do not otherwise have a legitimate basis for a Terry stop." Id. at 319. Smith thus refused to ...