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.
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."
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."
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 ...