Appeal from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)
Before Ferren, Schwelb and Farrell, Associate Judges. Opinion by the court Per Curiam. Concurring opinion by Associate Judge Farrell. Concurring opinion by Associate Judge Schwelb. Opinion by Associate Judge Ferren, Concurring in part, Dissenting in part, and Dissenting from the judgment.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: The judgment of the Superior Court is affirmed. Under the circumstances of this case, the stop of appellant was permitted by the Fourth Amendment. The reasoning in support of this Conclusion is contained in all but part II.B.1. of the opinion of Judge FARRELL and in part II of the Concurring opinion of Judge SCHWELB.
FARRELL, Associate Judge Concurring: This appeal presents a search and seizure issue arising in the context of "a rapidly moving street occurrence . . . involving a dangerous weapon," a situation this court has observed makes "the need for immediate action" by police "more urgent" than in the case of less directly menacing offenses. Rushing v. United States, 381 A.2d 252, 256 (D.C. 1978). See also Cauthen v. United States, 592 A.2d 1021, 1025 n.8 (D.C. 1991); Adams v. United States, 466 A.2d 439, 444 (D.C. 1983); Galloway v. United States, 326 A.2d 803, 805 (D.C. 1974), cert denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975); Cox v. United States, 256 A.2d 917, 918 (D.C. 1969). Because the conduct of the police in stopping appellant was reasonable under the Fourth Amendment, the ensuing seizure of a handgun in plain view was also valid and the motion to suppress was properly denied.
Following his indictment for carrying a pistol without a license, *fn1 possession of an unregistered firearm, *fn2 and unlawful possession of ammunition, *fn3 appellant moved to suppress a gun and ammunition recovered from a car in which he was a passenger on the ground that he had been seized beforehand without articulable suspicion, in violation of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 , 88 S. Ct. 1868 (1968). At the suppression hearing the following testimony, credited by the trial Judge, was given by the police officer involved.
On March 25, 1989, at 3:45 a.m., Officer Leland D. Schadt was on duty with a partner in an unmarked police cruiser, investigating a reported assault on the southwest corner of Georgia Avenue at Missouri Avenue, N.W., in the District of Columbia. Several shootings had occurred recently in the area, which was also known for its drug activity. While investigating the assault, Schadt heard several gun shots fired "across the street from the area of the southeast corner of Georgia and Missouri." He quickly walked to the corner and saw a car speed away on Missouri Avenue going east. He also saw appellant and two women "attempting to get into another car in what thought to be a very quick hurry." As Schadt approached this car, it began to back quickly out of a gas station parking lot. His gun still holstered, Schadt asked the driver to stop and directed the three occupants to raise their hands. He explained that he stopped the car because he was "unsure whether these others were tied in with the car speeding off and, perhaps Mr. Williamson's is the group where the shot was at, trying to get out of the area[;] or whether the car speeding off had been shot at by this group." He "was unsure who had fired the shots and whether they [the occupants of this car] were involved or not." Asked on cross-examination why he focused on this particular car when there were "people running all over the place," Schadt replied that the occupants of the car "seemed to be trying to get away more than anyone else," because others were leaving by "running sort of backwards" from the scene. *fn4
Because he was uncertain who had fired the shots, Schadt asked the occupants to raise their hands. The two women complied but appellant, the front-seat passenger, "raised only one hand and reached down with the other hand as if he was trying to hide something." "Unsure of what was doing[,] and having heard the gun shots," Schadt drew his pistol and again ordered appellant to raise his hands. *fn5 Appellant continued to reach down, and raised his hands only after Schadt's third request to keep his hands in view. The officer ordered the occupants out of the car; when they had obeyed, he looked into the car and saw a pistol lying partially concealed under the floormat on the right front passenger side, near where appellant had lowered his hand.
In denying the motion to suppress, the trial Judge credited Officer Schadt's testimony and made the following oral findings of fact and Conclusions of law:
was diagonally across the corner investigating an assault that had taken place, very dangerous area, 3:00 in the morning, heard shots, from the diagonal corner, saw a car speed away, assuming that that car could have been the source of the shots, walked over to the area to investigate further.
Saw the car containing the defendant start to back up to pull away. At that point, he reasonably thought that that car could have been involved somehow in the shooting, either as the victim or as the shooter, certainly as a possible witness which, indeed, the people were.
He certainly had a basis to stop and question the people in the car, to stop the car. It was reasonable of him to ask the people to raise their hands, given his uncertainty, as to whether or not they had a weapon, given the fact that that shooting just took place when the defendant failed to obey his orders to raise both hands.
He saw the defendant reach down as if to hide something at that point. He . . . certainly had grounds to pull his gun and to get the defendant out of the car for his own protection in order to neutralize the situation and to maintain his own safety.
In getting the defendant out of the car it was reasonable for him to look at the area where he reached and upon looking there saw the gun.
While I don't think there was probable cause of any sort of an offense being committed, . . . there clearly was articulable suspicion and each of the acts the officer took was reasonably calculated to protect his safety and to further investigate what was clearly a serious criminal offense that had just taken place there.
The fact that the officer was alone on a dark corner in a dangerous area made his actions all the more reasonable under the circumstances. *fn6
So I would find the actions he took to put him in a position to see the gun were reasonable under Terry to protect his safety and based on articulable suspicion. [Emphasis added.]
Appellant contends that when Officer Schadt "told the occupants to stop their vehicle and put their hands up, he effected a seizure under the Fourth Amendment," and that although Schadt then had "plenty of evidence that some crime had been committed, even if only the unlawful discharge of a firearm," he possessed no information "that indicated that Mr. Williamson had participated in the discharge of any firearm." According to appellant, at most the officer had cause to believe appellant had witnessed the shooting, which was inadequate to justify his seizure under Terry. The government responds first that, under California v. Hodari D., 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), appellant was not seized until he finally put his hands up as ordered, so that his actions in furtively reaching down to the floor, combined with the other facts known to Schadt, gave the officer unassailable founded suspicion to detain appellant and order him out of the car. The government argues, alternatively, that even without the furtive gesture, the officer's conduct in stopping the car to investigate and directing the occupants to keep their hands in view was reasonable in the circumstances and satisfied the requirements of Terry.
The government's first argument based upon Hodari D. is unpersuasive. Appellant was seized when the car he occupied was stopped by a show of authority as it began backing out of the parking lot. E.g., Colorado v. Bannister, 449 U.S. 1, 4, 66 L. Ed. 2d 1 , 101 S. Ct. 42 n.3 (1980) ("There can be no question that the stopping of a vehicle and the detention of its occupants constitute a 'seizure' within the meaning of the Fourth Amendment"). As the trial Judge concluded, Officer Schadt's direction to the car to stop, complied with by the driver and accompanied almost simultaneously by the officer's command to the occupants to raise their hands, was a seizure of the vehicle and its occupants. *fn7 Therefore, the reasonableness of Schadt's conduct must be evaluated without regard to the grounds for suspicion furnished by appellant's furtive movements after the seizure.
"The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 114 L. Ed. 2d 297, 111 S. Ct. 1801, 1803 (1991). "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Id. Derived from this underlying principle is the test for evaluating seizures of a person on less than probable cause, which "balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion." United States v. Hensley, 469 U.S. 221, 228, 83 L. Ed. 2d 604 , 105 S. Ct. 675 (1985). One factor in the many informing this assessment is "whether the police are acting in a swiftly developing situation"; in such a case "the court should not indulge in unrealistic second-guessing." United States v. Sharpe, 470 U.S. 675, 686, 84 L. Ed. 2d 605 , 105 S. Ct. 1568 (1985). Especially is that so, as our cases cited at the beginning point out, where police confront "a rapidly moving street occurrence involving a dangerous weapon," rather than "a report of future criminal activity or of activity posing no threat to the public." Adams v. United States, 466 A.2d at 444. See also Hensley, 469 U.S. at 228. In these circumstances, as the Supreme Court has explained:
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-46, 32 L. Ed. 2d 612 , 92 S. Ct. 1921 (1972). *fn8
Appellant argues that this "intermediate response" to "maintain the status quo momentarily while obtaining more information" was not justified in the present case because, according to appellant, Officer Schadt conceded that he had no reason to suspect that any specific individual, in the car or out, had committed a crime. See, e.g., United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621 , 101 S. Ct. 690 (1981) ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity") (emphasis added). To the contrary, Schadt's inability to identify the precise origin of the shooting did not make the stop unreasonable in the circumstances of this case.
"The Fourth Amendment requires 'some minimal level of objective justification' for making the stop." Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 217, 80 L. Ed. 2d 247 , 104 S. Ct. 1758 (1984). We have recognized that this "requirement of 'articulable suspicion' is not an onerous one," Gomez, 597 A.2d at 888, and does not require officers "to rule out the possibility of innocent behavior, for 'suspicious conduct by its very nature is ambiguous, and the principal function of the investigative stop is to quickly resolve that ambiguity.'" Id. at 890, quoting State v. Anderson, 155 Wis. 2d 177, , 454 N.W.2d 763, 766 (1990). Here the police unmistakably had founded suspicion that a crime had been committed; what Schadt did not know was whether the crime was an unlawful discharge of a firearm or, worse, a shooting or attempted shooting of a person or persons. Schadt also did not know whether anyone had been wounded. These are scarcely the sort of ambiguities that should have caused a responsible police officer to "shrug his shoulders" and forgo immediate investigation. Moreover, while the identity of the shooter(s) was ambiguous, it was not impermissibly so. Schadt heard shots from the direction of two cars, one of which immediately fled and the other of which quickly began to do so. The latter car contained two women and appellant. Either car could have contained the shooter in Schadt's view, but both were a more natural object of suspicion than other persons in the area who sought to leave in less hurried fashion. *fn9 Thus the direction from which the shots came and the fact that appellant and his companions were the only others leaving by car appeared to link them with the car fleeing down Missouri Avenue. This gave Schadt an objective reason to suspect appellant, as part of a distinct and small group of individuals, of taking part in a shooting seconds before. My colleagues disagree and view this knowledge as merely a "hunch," thereby eradicating the distinction between reasonable suspicion and probable cause on these facts. In the "swiftly developing situation" presented, Sharpe, supra, in which violence already might have produced bloodshed, Schadt's suspicion was not required to meet the level of individual-specific precision needed to support probable cause to arrest. See 3 W. LAFAVE, SEARCH AND SEIZURE § 9.3 (d), at 461 (2d ed. 1987) ("Even if the circumstances are such that no one person can be singled out as the probable offender, the police must sometimes be allowed to take some action intermediate to that of arrest and nonseizure activity"). See also Wold v. State, 430 N.W.2d 171, 174 (Mind. 1988). *fn10
JUDGE FERREN's Dissent misapprehends the facts as presenting a situation in which Officer Schadt did not reasonably suspect appellant "of anything more than being in the vicinity when someone else fired a gun four times"; at best, according to Judge FERREN, appellant was one of a half dozen or more people "suspected of . . . witnessing another's crime." Post at 33, 39. But Judge FERREN describes a different case: Here Schadt heard gunshots from the direction of two cars fleeing (or attempting to flee) the scene; and one of only two scenarios immediately suggesting themselves to him was that "the car speeding off had been shot at by this group [entering appellant's car]." Judge FERREN thus misreads the record in asserting that "the person or persons whom Officer Schadt suspected of firing the shots had fled the scene," post at 41, and other persons -- including appellant -- were simply removing themselves from harm's way. On the basis of what he heard and saw, Schadt suspected that either of two groups was the source of the shooting, but only one had not made its escape. And even if he had been certain the other car contained the shooter, he could not be certain that appellant's car -- "tied in" with the other one -- did not contain a victim. Far from bring arbitrarily singled out for a stop, as Judge FERREN would have it, appellant and a narrowly defined group of others were the direct focus of the officer's reasonable belief that a violent crime had been committed. *fn11
In my view, to hold that Schadt's knowledge, measured by the perceptions of a conscientious police officer on the scene and not of a Judge poring over the record in the library, failed the test of objective, articulable suspicion flunks the ultimate test of reasonableness under the Fourth Amendment.
Even assuming that Officer Schadt lacked reasonable suspicion under Terry to believe appellant was a participant in the shooting, the Fourth Amendment did not bar the decision to stop him. In Schadt's mind, the occupants of appellant's car were either participants in the shooting or witnesses to it who could provide material information about the event and the possible identity of the shooter. Schadt was not required to sort out appellant's exact role -- participant or witness -- before stopping him to inquire about a just-completed crime of violence. No Supreme Court decision cited by Judge FERREN has addressed the issue whether police may detain a person in such circumstances long enough to clarify his involvement and ask about his knowledge. A substantial body of authority, however, supports the reasonableness of such a stop.
Professor LaFave observes that the Model Code of Pre-Arraignment Procedure "takes the sensible position that the power to stop may constitutionally be extended so as to encompass the brief detention of potential witnesses in at least certain situations." LAFAVE, § 9.2 (b), at 353. The Code proposes that an officer be allowed to make a stop whenever
(i) The officer has reasonable cause to believe that a misdemeanor or felony, involving danger of forcible injury to persons or of appropriation of or danger to property, has just been committed near the place where he finds such person, and
(ii) the officer has reasonable cause to believe that such person has knowledge of material aid in the ...