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09/20/91 JAMES COUSART v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


September 20, 1991

JAMES COUSART, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; Hon. Reggie B. Walton, Trial Judge

Rogers, Chief Judge, and Newman *fn1 and Kern, Senior Judges. Opinion for the court by Chief Judge Rogers. Dissenting opinion by Senior Judge Kern.

The opinion of the court was delivered by: Rogers

Appellant James Cousart appeals his convictions for carrying a pistol without a license, D.C. Code § 22-3204 (1989), possession of an unregistered firearm, id. § 6-2311, and unlawful possession of ammunition, id. § 6-2311, on the ground that the trial Judge erred by denying his motion to suppress a gun found in the car in which he was a passenger. We hold that absent articulable suspicion regarding the passenger, the seizure was unlawful and accordingly, we reverse.

I.

On January 3, 1988, at approximately 3:30 a.m., Officer Thomas Braswell of the Traffic Branch of the Metropolitan Police Department was on patrol in a marked police cruiser. At the intersection of First Street and Florida Avenue, Northeast, he observed a grey Pontiac driving southbound on First Street toward New York Avenue at a normal speed of thirty miles per hour. *fn2 As the car approached New York Avenue, the driver made a wide U-turn onto New York Avenue. Braswell followed the car westbound on New York Avenue. When the car's speed approached 45 miles per hour, Braswell "activated his emergency equipment," and pursued the car for two long blocks. *fn3 He also radioed for assistance, stating he was pursuing the car. The car pulled over immediately when Braswell was behind the car at First Street and New York Avenue, Northwest. Officer Braswell testified that his only purpose in stopping the car was to issue a traffic citation; he had no information to indicate that the people in the car were armed and dangerous or were engaging in criminal activity, and he only wanted to find out if the driver had a valid driver's license and registration and to issue a traffic citation. At no point did he pull his gun out of its holster.

Officer Joseph L. Massey, who monitored the radio broadcast that a Traffic Division cruiser was chasing an automobile for an unknown reason and then later that the auto had stopped, responded to "assist a fellow officer and to ensure his safety," being aware that the area was a high drug area. When he arrived at First Street and New York Avenue, the Pontiac had already pulled over. Massey parked his cruiser in front of the Pontiac. Two other police units also arrived on the scene. Massey saw Officer Braswell at the window of the Pontiac talking to the driver and then saw him order the driver out of the car and direct the driver to walk over to his scout car, which was behind the Pontiac.

As Officer Braswell questioned the driver near his scout car, Officer Massey walked over to the front of the Pontiac with his shotgun pointed up in the air. Like Braswell, Massey had no information that the people in the car were armed and dangerous or engaged in criminal activity; nor had he seen appellant (or anyone else in the car) do anything suspicious. Nevertheless, Massey ordered the two passengers to place their hands on the ceiling. Appellant dropped his hands below the dashboard, his right shoulder dropping down between the seat and the door, and then came back up empty handed. Massey pointed his shotgun at appellant and ordered him to put his hands up in the air. Appellant complied, and Massey requested Officer Zerega to remove appellant from the car. As Officer Zerega did so, he noticed a brown paper bag between the passenger seat and the door, and upon touching it, he felt a hard object, which proved to be a gun. Massey explained that he had his shotgun in his hands as he approached the Pontiac because "within the past 30 days seven policemen have been shot by various people in the District."

The trial Judge ruled that appellant had standing to move to suppress the gun and that he was seized when Officer Massey initially ordered him to raise his hands to the ceiling. Noting that this was a "very close case," the Judge concluded that in order to ensure their own safety, it was reasonable for the police to require appellant to raise his hands and keep them in sight. The trial Judge noted that at the time the driver stopped the car, Officer Braswell knew that the car had attempted to flee the police in a high narcotics area. This information, although not communicated to the other officers, could, the trial Judge ruled, be imputed to them. While Officers Massey and Zerega had no idea what had transpired, the Judge concluded that it would be unreasonable to expect the officers to approach the car without doing "anything to protect themselves until they find out what the situation is."

II.

The central inquiry under Terry v. Ohio, 392 U.S. 1 (1968), is whether the police action in seizing appellant was reasonable. This requires "a comparison between the degree of police intrusion and the level of police justification." In re T.T.C., 583 A.2d 986, 989 (D.C. 1990) (citing United States v. Mendenhall, 446 U.S. 554, 561 (1980)). Police conduct will only be justified under the Fourth Amendment when "a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot". Terry, supra, 392 U.S. at 30 (emphasis added). Nonetheless, at a minimum, the police officer 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 (1981). "The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, supra, 392 U.S. at 21. *fn4

Appellant contends that he was unlawfully seized when Officer Massey approached the car with a drawn shotgun and ordered him to raise his hands to the ceiling because the officer lacked specific and articulable suspicion to believe that appellant was armed and dangerous or engaging in criminal activity. *fn5 He maintains that he exhibited no suspicious activity of his own, but was merely a passenger in a car whose driver had exceeded the speed limit by 15 miles per hour. The government does not contend that appellant was not seized, but rather responds that the seizure was justified because Officers Braswell and Massey reasonably believed that the driver and occupants posed a potential threat to their safety, and that Massey's order that the passengers raise their hands and, after appellant's furtive gesture, exit the car was a reasonable precaution. *fn6 It relies on the circumstances that the police were pursuing a fleeing car in a high narcotics area at a time when, within the last month, seven police officers had been shot. Further, the government maintains that Pennsylvania v. Mimms, 434 U.S. 106 (1977), should apply to passengers so that whenever an automobile has been detained for a traffic violation, the police may order the passenger to keep his hands in view. It relies on the circumstance that the evading car and "appellant's furtive movement within the car, clearly gave rise to the suspicion that approaching and detaining the vehicle and its occupants was not without risk."

A.

The difficulty with the government's reliance on a fleeing car as a basis for seizing a passenger arises, of course, from the fact that the passenger is not in control of the movement of the car. "As a general proposition[,] . . . flight from authority -- implying consciousness of guilt -- may be considered among other factors justifying a Terry seizure." Smith v. United States, 558 A.2d 312, 316 (D.C. 1989) (en banc) (quoting United States v. Johnson, 496 A.2d 592, 597 (D.C. 1985)). However, a desire to avoid the police, without more, cannot support an inference of consciousness of guilt. In re D.J., 532 A.2d 138, 141 (D.C. 1987). To provide a basis for reasonable suspicion, the facts surrounding the efforts to avoid the police must lead rationally to the Conclusion that the individual's flight indicated consciousness of guilt. *fn7 See Smith, supra, 558 A.2d at 317 (and cases cited). In the context of an automobile passenger, the court has recognized that "one person's flight is imputable to another only if other circumstances indicate that the flight from authority implies another person's consciousness of guilt as well." Johnson, supra, 496 A.2d at 597.

Appellant's consciousness of guilt cannot be inferred from the fact that the driver did not stop the car immediately when Officer Braswell activated his emergency equipment. The driver was traveling at a normal speed before he made the U-turn and at only 45 miles per hour thereafter; there was no evidence regarding the point at which the driver realized that he was being pursued by the police. See Smith, supra, 558 A.2d at 316-17 ("in those cases in which we have found that flight indicated a consciousness of guilt, the accused clearly knew that the police were present and reacted by immediately running from the scene of the alleged crime"). Even though a passenger could be deemed to have been aware of a police siren and flashing lights, any inference of consciousness of guilt on the part of the passenger is considerably weakened where the driver voluntarily stops the car.

Even if the driver's flight implied a consciousness of his own guilt, the evidence, as the trial Judge recognized, did not support imputation of the flight to appellant. *fn8 There was no evidence of a joint venture such that the driver's flight "reflected the mind set and activity of those with whom he was associated under somewhat suspicious circumstances." Johnson, supra, 496 A.2d at 597 (citations omitted). There also was no evidence that appellant gave any instructions to the driver to flee the police, nor anything to suggest that appellant was more than an unwitting participant in the driver's flight. Nor did the officers note anything unusual about the car or the number of persons in the car. The circumstances known to the officers -- the driver's flight in a high crime area at a time when seven police officers had been shot in the last month -- cannot, therefore, justify appellant's seizure, particularly when the officer most knowledgeable of the circumstance stated that he intended only to issue a traffic citation to the driver and never drew his gun.

Appellant's seizure also cannot be justified because the flight occurred in a high narcotics area. The high narcotics area "'familiar talismanic litany, without a great deal more, cannot support an inference that appellant was engaged in criminal conduct.'" Smith, supra, 558 A.2d at 316 (quoting In re D.J., supra, 532 A.2d at 143). " great deal more," id., is missing here. Appellant's movement, on which the government relies, did not occur until after Officer Massey, with his shotgun in hand, had ordered the passengers to raise their hands to the ceiling of the car. Moreover, the circumstances and location of the seven police shootings were never identified, not even as involving traffic stops.

B.

The government's further contention in justification of appellant's seizure rests on Pennsylvania v. Mimms, in which a police officer stopped the driver of the car for driving an automobile with an expired license plate. Mimms, supra, 434 U.S. at 107. The officer approached the driver to write a ticket and asked him to get out of the car. Id. As the driver alighted, the officer noticed a large bulge under his jacket. Id. Fearing that the bulge was a weapon, the officer frisked the driver, found a gun, and arrested him. The Court upheld the seizure, holding "that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Id. at 111 n.6. They may do so even though "the officers had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior." Id. at 109. The Court balanced, on the one hand, the interest in diminishing "the possibility, otherwise substantial, that the driver can make unobserved movements" and, on the other hand, the minimal intrusion on the driver's liberty interest since the driver is already detained once the police pull him over for a traffic violation and it makes little difference that he is detained in his seat or outside the car. Id. at 110.

The rationale articulated in Mimms with respect to the driver of a car is not readily extended to a passenger in appellant's circumstances. *fn9 The intrusion on the passenger's privacy interest is clearly greater than on the driver. A driver who is lawfully detained for a traffic violation can reasonably expect to be ordered out of the car or temporarily detained in connection with the traffic infraction. By contrast the passenger is an innocent bystander who has no reason to expect that the stop of the car will result in his seizure. In addition, the officer's safety can be assured by insisting that the passengers keep their hands in sight, while the police inquire about events, and by having the law-violating driver accompany the police to a police vehicle. *fn10

Finally, the risk of accidental injury from passing traffic, of concern to the Court in Mimms, is less likely when the officer is on the passenger side of the car.

Because of these concerns, a number of courts have declined to extend Mimms to all passengers:

By stopping the automobile the police have decided that the driver will be detained. Such is not the case for the passenger, who has broken no law and who may walk away from the scene unless the police officer has some other legitimate reason to detain him. Certainly the passenger has a higher expectation of privacy than the driver, because the passenger plays no part in the routine traffic infraction and has reason to suppose that any exchange with the authorities will be conducted by the driver alone.

State v. Williams, 366 So. 2d 1369, 1374 (La. 1978); see People v. Maxwell, 206 Cal. App. 3d 1004, 254 Cal. Rptr. 124 (1988); State v. Becker, 458 N.W.2d 604 (Iowa 1990); Johnson v. State, 601 S.W.2d 326 (Tenn. Ct. App. 1980); State v. Schlosser, 774 P.2d 1132 (Utah 1989). See generally 3 W. LAFAVE, (supra) note 10, (disapproving the extension of Mimms to passengers). *fn11 These courts have, in sum, declined to recognize an exception to Terry's requirement of particularized suspicion for a passenger in a car stopped for a traffic violation.

Even were the rationale underlying the balance of interests by the Court in Mimms applied to a passenger seized after the vehicle is stopped for a traffic violation, the government's reliance on Mimms is misplaced. In Jones v. United States, 391 A.2d 1188, 1190-91 (D.C. 1978), the court rejected the government's argument that the police officer could order the occupants out of a car for his own protection once he had reason to speak to them. "Mimms does not . . . hold that a police officer may similarly intrude upon a person's right to personal security in a situation where he is not detaining him for a violation of law, but merely desires to make inquiry of circumstances which are only marginally suspicious." Id. *fn12 Here, after the car had stopped of its own accord, Officer Braswell, the first officer to approach the car, spoke with the driver and took him to a scout car twenty-five feet away. At no time did Braswell remove his gun from his holster; neither did any other officer. By the time Officer Massey approached the passengers, there was nothing to indicate that Braswell did not already have the situation under control. Contrary to the observation of the trial Judge, that the officer could reasonably insist that the passengers keep their hands in sight, a proposition with which we do not disagree, Massey's first reaction was to take his shotgun and order the passengers to grab the ceiling. Yet, Massey, like Braswell, had no information that appellant or any one else in the car was engaged in criminal activity and did not recall anyone suggesting that appellant had done anything suspicious with his hands before he was ordered to grab the ceiling. By contrast, our decisions upholding Terry stops where the police have drawn their guns have involved suspects whom the police had reason to believe were armed. T.T.C., supra, 583 A.2d at 988 & n.2 (citations omitted). *fn13

While Officer Massey could reasonably conclude that high drug areas present potential danger for the police, neither the Supreme Court nor this court have sanctioned the seizure of citizens in the absence of articulable suspicion required by Terry, supra, 392 U.S. at 1; e.g., Smith, supra, 558 A.2d at 312; Jones, supra, 391 A.2d at 1191 ("to hold otherwise would allow the government to bootstrap its way to a full blown 'seizure' in the absence of articulable facts indicating that 'criminal activity is afoot'" (quoting Terry, supra, 392 U.S. at 30)). The intrusion on appellant's liberty interests was more intrusive than that which occurred in Mimms, where the driver, after being lawfully detained, was ordered out of the car for a brief period; "the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it." 434 U.S. at 111. *fn14 As the trial Judge acknowledged, appellant was not seized "based upon his own conduct, . . . [but because he] only happened to be with somebody who had" committed a traffic violation. Such a departure from Terry's requirement of particularized, individualized suspicion would not be warranted by the doctrine of Mimms. See United States v. Di Re, 332 U.S. 581, 593 (1948) ("presumptions of guilt are not lightly to be indulged from mere meetings"); Smith, supra, 558 A.2d at 314 (eschewing the notion of "guilt by association"). *fn15 Were a stop of a driver for a routine traffic violation sufficient ground for seizing all of the passengers, the constitutional protections of the passengers under the Fourth Amendment would be ephemeral and concern about police security, as a result of unidentified events at other times and in other places, would be elevated above all other important societal interests. *fn16

Accordingly, we hold that the trial Judge erred in denying appellant's motion to suppress the gun, and the judgments of conviction are reversed.

Reversed.

KERN, Senior Judge, Dissenting: Our decision in this case is a matter of life and death to the some 5,000 women and men who comprise the Metropolitan Police Department *fn1 and has considerable import as well to the remaining members of the community faced with record serious crime. *fn2

This appeal presents for our determination a very narrow but clear-cut question: Does a police officer, in uniform and armed, violate the Fourth Amendment to the Constitution of the United States when he commands two male passengers in an auto, which had initially fled from but was then lawfully stopped by a fellow officer at 3:30 in the morning in a high-crime area, to keep their hands in his sight while he stands outside the auto and they remain seated inside the auto?

Applying both established precedent and common sense, I would answer "no" to the question posed by this appeal and therefore would affirm the experienced trial Judge who denied the suppression motion filed by appellant, one of the two passengers. *fn3 Surprisingly, the majority concludes the Constitution forbids the officer to do what he did, which action in my view was both lawful and necessary to the proper performance of his duties, and also reverses the trial court. Accordingly, the pistol seized "just inches" from appellant's hand, after he failed to comply with the officer's command, is suppressed as evidence. Of course, without the weapon as evidence, a retrial is practicably impossible and appellant has thereby foiled the law.

More than 20 years ago, Chief Justice Warren and the United States Supreme Court recognized in the celebrated case of Terry v. Ohio, 392 U.S. 1, 10 (1968), that where the police are "dealing with the rapidly unfolding and often dangerous situations on the city street," an officer might exercise his lawful authority, and without probable cause to arrest, momentarily stop a citizen while the apparently criminal situation is promptly sorted out. The Chief Justice and the Court went on to hold that in this limited situation, the officer had authority to take steps to protect himself. As Mr. Justice Harlan put it in his Concurring opinion in Terry v. Ohio, supra, 392 U.S. at 34:

Officer McFadden's right to interrupt Terry's freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer's right to take suitable measures for his own safety followed automatically. *fn4

In the instant case, the auto in which appellant was riding refused to heed a signal by a marked police cruiser to stop and instead accelerated its speed. The "signalling" officer at 3:30 in the morning of a January day radioed for assistance. Within minutes, other officers responded and confronted the auto with three male occupants. All agree that the auto was lawfully stopped. No one contends that the officers who received the radio call for help from their comrade acted impermissibly by responding to such a call. The circumstances all indicated to the responding officers that some criminal activity was afoot, exactly as had been the case in Terry. Thus, it was extremely late at night; the area was one of high-crime; and the vehicle had been in flight from a marked police cruiser. As the responding officers approached the vehicle, a male passenger was seated in the front seat and another was in the back seat. *fn5 Thereupon, a responding officer, who kept his pistol holstered, directed them to keep their hands in view. Although another responding officer was carrying a shotgun, he kept it pointed upwards and did not point it at the passengers. The passengers were not then ordered to disembark from the auto; nor, did any police officer then touch them.

Nevertheless, appellant contends in his brief that his Fourth Amendment Constitutional right was violated solely because the responding officer commanded him, while he remained untouched and seated in the auto, to put his hands in view. Specifically, appellant argues that because there was nothing to indicate to a responding officer that the passengers "were armed and dangerous," his command to them was an unreasonable seizure proscribed by the Fourth Amendment. The trial court rejected this argument -- quite correctly under applicable law -- in my view. The experienced Judge stated:

It just seems . . . unreasonable . . . to hold an officer to a requirement that in reference to the passengers in the car under those circumstances, the officer has to take his risks that those individuals [in the auto] had nothing to do with the driver attempting to flee, and therefore put his life in danger . . . . It would not be unreasonable to require that the passengers merely raise their hands so that their hands are in sight, while the officer has to do what he has to do in reference to the driver.

I am unable to discern from the majority opinion reversing the trial court whether it accepts or rejects appellant's quite specific contention. *fn6 In any event, a close reading of the majority opinion reveals that it faults the responding officer who issued the command on three counts: tactics, weaponry, and etiquette. Apparently, these three deficiencies, taken in the aggregate, constitute in the majority's view an unreasonable seizure in violation of Terry by a responding officer when he ordered the passengers, untouched and remaining inside the auto, to keep their hands in sight. Accordingly, the majority declares the officer here acted unconstitutionally and reverses the trial court.

First, according to the majority, the language used by the officer in ordering the two passengers while seated in a vehicle that was stopped at 3:30 in the morning in a high-crime area after that vehicle had fled from a fellow officer was improper. He directed them to "grab the ceiling" of the auto rather than, in a more mannerly fashion, to please keep their hands in view. *fn7 How the passengers seated inside the auto very late at night were to move their hands in the view of the officer without moving them upward toward the ceiling is not explained by the majority.

Next, the majority faults the fact that another officer was carrying a shotgun rather than a pistol at the time the command was issued to the passengers inside the auto. The majority gives no weight to the facts (1) that the officer did not point his weapon when the command was issued, and (2) that the officer explained in court, without any contradiction, that he carried this particular kind of weapon at that time because there had been a recent rash of shootings of police officers.

Finally, the majority, from the secure confines of the courthouse, after some months of deliberation, faults the tactics of the responding officers in even approaching the auto once they arrived on the scene and found it stopped. The majority appears to ignore the comment by Chief Justice Warren when the Court upheld the Terry stop and subsequent frisk "as the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so." Terry v. Ohio, supra, 392 U.S. at 28. Rather, the majority would have had the responding officers shrug their shoulders and depart as soon as they saw the car stopped, thus leaving the officer who had called for help with the driver and two passengers at 3:30 on a January morning in a high-crime area after the car had sought to evade the first officer in a marked cruiser.

It is obvious that the function of this court in this particular case is not to micromanage the Metropolitan Police Department in the etiquette, weaponry and tactics of its officers, but rather to Judge cases upon their salient facts under applicable law. The law applicable here was established by this court in In re T.T.C., 583 A.2d 986 (D.C. 1990), where we recognized that the "'key principal of the Fourth Amendment'" is a "'balancing of competing interests.'" Id. at 989 (quoting Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981)). There, we compared the degree of police intrusion with the level of police justification.

The police justification here for the officer's command to the passengers late at night in a high-crime area was the consideration of the officer's safety, which the Supreme Court has determined to be substantial. Thus, the Court "specifically recognized the inordinate risk confronting an officer as he approaches a person seated in a automobile." Pennsylvania v. Mimms, 434 U.S. 106, 110 (1986). Accord United States v. Robinson, 414 U.S. 218, 234 (1973) (rejecting argument that traffic violations involve less danger to police than other types of confrontations).

This court has expressly characterized a police command to a passenger to disembark from an auto lawfully stopped to constitute a "very minimal" intrusion. See, e.g., Thomas v. United States, 553 A.2d 1206, 1207 n.7 (D.C. 1989); King v. United States, 550 A.2d 348, 357 (D.C. 1988); United States v. Ordway, 329 A.2d 776, 778 (D.C. 1974). Obviously, the responding officer's command to appellant in this case -- to keep his hands in view but remain in the auto -- was even less than very minimal. Thus, balancing the less than "very minimal" police intrusion by the responding officers against the "inordinate risk" they faced as they approached two persons seated in an auto at 3:30 in the morning of a January day in a high-crime area requires the Conclusion (1) that the officer acted reasonably and (2) that the trial court ruled correctly.

The Supreme Court recently reminded that a court is "not empowered to forbid law enforcement practices simply because it considers them distasteful." Florida v. Bostwick, 111 S. Ct. 2382 (1991). In the instant case, the directive issued by the officer may have been distasteful, and the weapon that was carried (but not pointed at appellant when the Terry stop was effected) may also have been distasteful to those of us who serve off the streets in the courthouse, but surely the action by the police here under the particular circumstances was not unconstitutional. With all deference, the majority's ruling of law is insufficiently grounded in reality. Such a ruling "cannot be good either for our judicial branch or for our citizens." See Bolan v. United States, 587 A.2d 458, 461 (D.C. 1991) (Schwelb, J., Concurring).

I respectfully Dissent.


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