Appeal from the Superior Court of the District of Columbia; (Hon. Reggie B. Walton, Trial Judge)
Before Rogers, Chief Judge, Ferren, Terry, Steadman, Scwelb, Wagner, King, and Sullivan, Associate Judges, and Kern, Senior Judge. Opinion for the court by Senior Judge Kern. Dissenting opinion by Chief Judge Rogers, with whom Associate Judge Ferren joins. Dissenting opinion by Associate Judge Ferren, with whom Chief Judge Rogers joins.
The opinion of the court was delivered by: Kern
KERN, Senior Judge: A jury convicted appellant of carrying a pistol without a license, D.C. Code § 22-3204 (1989), and related offenses. Prior to trial, the court refused to suppress as evidence the pistol which the police found wedged between the end of the front seat and the right front door of the auto in which on appellant was riding as the front seat passenger.
The dispute in the instant case is not over the lawfulness of the police stop of the auto, which appellant concedes, but the constitutionality of the police command to appellant and the other passenger to raise their hands into view as they remained seated in the auto after a police chase effected its stop at 3:30 of a January morning. The record contains several different descriptions of the command given to the passengers. Essentially, it was to put their hands up where they could be seen. *fn1
This court established in Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc), the proposition that "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." The record reflects that officers Massey and Zerega were on duty on January 3, 1988, at 3:30 a.m., when they received and responded to a radio call for help from a fellow officer. They knew that the officer who called for assistance was pursuing a car but did not know for what reason. As Massey later testified, [TR. 39-40] he had "monitored a Traffic Division cruiser chasing an auto for an unknown reason" [TR. 45] and responded "to assist a fellow officer and to ensure his safety." [TR. 39-40]
After a chase of what amounted to six blocks by the Traffic Division cruiser, *fn2 the auto finally came to a stop at First Street and New York Avenue, N.W. in a "high drug" area. [TR. 40] Massey and Zerega arrived on the scene moments later. The former was carrying a shotgun because of a recent rash of police shootings. They observed Officer Braswell, the officer who had radioed for assistance, exiting his patrol car and approaching the auto in which appellant and two other males were seated. Zerega later testified that as he approached the auto, " advised the occupants [of the auto] to place their hands where we could see them up in the air." [TR. 167] Appellant initially complied, but then immediately dropped his hands, "did something below the dash line . . . and dropped his right shoulder down between the seat and the door, and came back up." [TR. 42-43] After appellant dropped his hands, he was ordered to raise them again as Officer Zerega proceeded to open the car door. Appellant was then ordered to exit the car. [TR. 43] The officers discovered a pistol in a brown paper bag, [TR. 10-11, 31] "just inches" from where appellant's hand had been as he sat in the front seat of the car.
The circumstances that had precipitated the chase were later explained in detail by Officer Braswell at the suppression hearing. Braswell testified that while riding in his patrol car he had observed the auto in which appellant was riding make a reckless turn from First Street, N.E. onto New York Avenue [TR. 13, 36-37], and begin to speed away. [TR. 14, 22] Officer Braswell, who was then following the auto, activated his cruiser lights several times, but the auto refused to stop. He further testified that [TR. 24] "the speed increased much faster as I turned my lights on when it made the turn." Once Braswell "made the determination that [the driver] did not intend to stop . . . . . . immediately called for some assistance." [TR. 14]
The trial Judge, in denying appellant's suppression motion, found [TR. 55, 60]:
There is even a little more than just a traffic violation, because he [Officer Braswell] said, and I think reasonably concluded from the actions of the driver . . . that the driver was attempting to avoid and flee from the presence of the officer, which adds a little more to the case as compared to the officer just having seen a traffic violation. * * * * The inference that I draw from the evidence that is unrefuted is that there was an attempt, after the officer pulled his car behind the suspect's car . . . to flee.
The court concluded [TR. 71-72]: *fn3
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 in the car so that their hands are in sight, while the officer does what he has to do in reference to the driver.
Appellant asserts that Officer Zerega effected an unreasonable seizure and hence violated the Fourth Amendment to the Constitution when he ordered appellant and the other passenger to keep their hands in view because, as he argued to the trial Judge at the hearing on his suppression motion, [TR. 76] "the conduct of the driver . . . did not provide a reasonable basis for the officer to take any actions with respect to the passengers . . . ." Appellant argues that as a consequence of this unlawful seizure, exacerbated by the fact that Zerega was accompanied by Officer Massey who carried a shotgun, the court should have suppressed the pistol the police recovered from the auto. *fn4
The government contends to this court sitting en banc [Petition for Rehearing at p. 4, 6] that
this case is governed by the principles articulated in Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), where police officers had made a traffic stop of a vehicle occupied by two individuals. When the driver complied with the command to step out of the car, a pistol was discovered . . . the Court did not require a reason to suspect that the particular individual was armed and dangerous. Rather "out of a concern for the safety of the police, the Court . . . held that officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon." New York v. Class 475 U.S. 106, 115, 89 L. Ed. 2d 81, 106 S. Ct. 960 (1986) (summarizing the holding in Mimms).
The government urges this court in this case to follow what it terms [p.6] the presently-existing "substantial authority for the proposition that the principle of Pennsylvania v. Mimms applies to passengers as well as the driver." However, the instant case, as the trial court found, "involves more than just a traffic violation" since "the driver was attempting to avoid and flee from the presence of the officer." Mimms involved a traffic stop without any indicia of criminal activity. In contrast, this case is not a mere traffic violation, and so we must decline the government's invitation to accept and apply the Mimms decision to declare that passengers may also be ordered to exit an auto stopped for a traffic violation only. *fn5 Rather, we view this case as requiring a determination of the reasonableness of the officer's command to the passengers to put their hands up in his view under the particular circumstances.
In the seminal case of Terry v. Ohio, 392 U.S. 1, 9, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the ...