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10/10/91 JOHN THOMAS PEAY v. UNITED STATES

October 10, 1991

JOHN THOMAS PEAY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. John H. Suda, Trial Judge.

Rogers, Chief Judge, Ferren, Terry, Steadman, Schwelb and Wagner, Associate Judges, and Belson, Senior Judge.* Opinion for the Court by Associate Judge Steadman. Dissenting opinion by Associate Judge Ferren, with whom Chief Judge Rogers, and Associate Judge Schwelb, join.

The opinion of the court was delivered by: Steadman

On Rehearing En Banc

This case involves an encounter between a lone police officer and the appellant, clutching in his hand something that "could possibly have been a weapon, a small knife, possibly a gun," on the third floor of an apartment building known for narcotics trafficking. We affirm the trial court's ruling that the officer's stop of the appellant for further investigation was reasonable within the meaning of the Fourth Amendment.

I

Fourteen twenty-nine Girard St., N.W., Washington, D.C., was an apartment building which the police would routinely enter and check for the illegal drug trafficking for which the building was known. On the afternoon in question, Officer Emmett Queen and two fellow officers, in plain clothes, pulled up to the entrance of the building to make such a routine check. *fn1 Appellant was standing in the doorway of the building; as he looked at the officers exiting their car, he "left the scene rather hurriedly" and went inside the building.

The team of officers entered the building and fanned out to engage in the drug patrolling. *fn2 Officer Queen mounted the staircase to the third floor, where he came upon appellant in the hallway some three feet away. Queen noticed appellant clutching something in his left hand. Queen could not tell exactly what it was but thought it "could possibly have been a weapon, a small knife, possibly a gun." As Queen approached, appellant turned away from Queen. Thereupon, in a roughly simultaneous time frame, *fn3 Queen identified himself as a police officer, asked appellant to stop, inquired what appellant had in his hand, and, as appellant started walking away without responding, followed and put his hand on appellant's shoulder, at which time, as he pulled away from Queen, appellant dropped some thirteen small plastic bags to the floor. These subsequently were found to contain marijuana.

Following a suppression hearing, the trial court found that on the facts here, Queen had "articulable suspicion of criminal activity and danger to himself" upon which to base the stop. Hence, the trial court denied the motion to suppress. At trial, a jury found appellant guilty of possession with intent to distribute cannabis in violation of D.C. Code § 33-541 (a)(1) (1988). On appeal, a panel of this court reversed the denial of the motion to suppress, 575 A.2d 279 (D.C. 1990). We granted the government's petition for rehearing and vacated the panel opinion. 580 A.2d 1331 (1990).

II

The basic legal framework here is a familiar one. To justify an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 , 20 L. Ed. 2d 889 (1968), the police "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. This "minimal level of objective justification" is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581 , 104 L. Ed. 2d 1 (1989). In determining whether a Terrystop is lawful, the court must look to the "totality of the circumstances." Alabama v. White, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990), quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690 , 66 L. Ed. 2d 621 (1981). *fn4 Even if each specific act by a suspect could be perceived in isolation as an innocent act, "the observing police officer may see a combination of facts that make out an articulable suspicion." United State v. Bennett, 514 A.2d 414, 416 (1986). See Sokolow, supra, 490 U.S. at 9-10 ("Indeed, Terry itself involved 'a series of acts, each of them perhaps innocent' if viewed separately, 'but which taken together warranted further investigation'" (citation omitted)); Illinois v. Gates, 462 U.S. 213, 243-44, 103 S. Ct. 2317 , 76 L. Ed. 2d 527 n.13 (1983) ("innocent behavior frequently will provide the basis for a showing of probable cause"). In reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling. Nixon v. United States, 402 A.2d 816, 819 (D.C. 1979); Brooks v. United States, 367 A.2d 1297, 1304 (D.C. 1976) (where no express findings, appellate court is to "determine if the denial of the motion to suppress is supportable under any reasonable view of the evidence").

We agree with the trial court that the case before us presented sufficient "specific and articulable facts" to make constitutionally reasonable the police officer's decision to "detain briefly in order to 'investigate the circumstances that provoked suspicion.'" Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138 , 82 L. Ed. 2d 317 (1984) (citation omitted). We review the circumstances surrounding the Terrystop.

A

The officers arrived for the routine patrol of a specific building known for its narcotics trade. As they arrived, the defendant, upon seeing them, rapidly went into the building. Appellant argues that this fact should be discounted, since the defendant may not have been aware that they were police officers and since appellant "merely walked" away, citing Smith v. United States, 558 A.2d 312, 316-17 (D.C. 1989) (en banc), and In re D.J., 532 A.2d 138, 141 (D.C. 1987). However, the instant case is significantly different. Here, the defendant did not depart from the area of suspected activity but on the contrary went directly toward it, in a manner described at the suppression hearing as "leaving the scene rather hurriedly." Moreover, the movement of appellant occurred previous and not subsequent to the immediate event leading to the stop. The reaction of the appellant thus bears upon the issue as not only a possible reflection of "consciousness of guilt" but also as related to the possible on-going narcotics trafficking within the building itself (such as a warning to such participants of approaching strangers). *fn5 Moreover, the place to which the appellant hurried and where the subsequent confrontation took place was not some generalized neighborhood or even public street where drug activity was rife but rather a specific identified and isolated private locale, known for such trafficking and regularly patrolled by the police.

Thus, when Queen mounted the apartment stairway to the third floor and entered the third story hallway, he came upon appellant not as a total stranger, not as an apartment dweller just leaving his quarters or strolling the halls, but as an individual who had hastily entered the building shortly before. Furthermore, appellant had not, as might be expected were he a resident, entered the apartment in which he lived but instead was standing in the hallway "clutching something in his hand" at a distance of some three feet from Queen, who was by himself. ...


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