Appeal from the Superior Court of the District of Columbia; (Hon. Stephen J. Milliken, Trial Judge)
Before Rogers, Chief Judge, Farrell, Associate Judge, and Kern, Senior Judge.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: The government appeals *fn1 the order suppressing physical evidence and a statement of appellee Anderson on the ground that the police unlawfully stopped a car in which appellees were riding and from which the police seized a pistol and ammunition. We affirm.
On December 11, 1991, about 11:30 p.m. two undercover police officers driving an unmarked dark blue 1977 Pontiac Firebird stopped at a red light at 13th and I streets, N.W. A brown Maverick with four young African-American males pulled up along the right side of the officers' car at the red light. *fn2 Officer Andre Minzak, a nineteen year veteran of the Metropolitan Police Department who was assigned to the second district, was driving the officers' car. He looked around his partner at the occupants of the Maverick. *fn3 According to Officer Minzak,
The driver of the vehicle looked over to his left at Officer Caine and myself, stuck his finger up in the air as a child might do with attempt playing that he had a gun in his hand, pointed a finger at us and mouth the word Pow as if a round was being fired from that gun and then snickered, looked forward, the light turned and they drove off. *fn4
Officer Sean O'Hara Caine, on the police force for two and one half years, who was Officer Minzak's partner, did not mention the gesture during his testimony, and Officer Minzak testified that to his knowledge Officer Caine did not see the gesture. No furtive gestures by the youngsters in the car were observed.
Officer Minzak thought that the gesture was done "in a threatening manner" and that the driver, appellee Murray, "possibly had a weapon in that vehicle or on his person" and might intend to use it, indeed, that Officer Minzak's own life "could possibly be in danger." He suspected the presence of a gun because of the gesture, the late hour (11:30 p.m.), the high-crime area (known for prostitution), and "several recently highly publicized incidents of traffic altercations involving gunfire." *fn5 The officer explained that his suspicions were aroused "knowing what the climate of behavior on the streets is in the last few years." However, the officer admitted that he did not recall any drive-by shootings in the area in which appellees were stopped. Officer Minzak also admitted that he had not seen a gesture like that before, much less found a gun in a car after seeing a car occupant make such a gesture. *fn6 He denied that his training had told him to be on the lookout for certain kinds of individuals. *fn7
Appellees' car drove off when the light changed. Officer Minzak told his partner that he thought that the situation "bears further checking out," and he and officer Caine followed appellees for at least five blocks and three turns, from 13th and I past 9th and Pennsylvania and onto 9th street. As they followed the car, they called for a marked police car, which stopped appellees' car on the 200 block of 9th street. At no time had appellees committed any traffic violations. Appellees' car stopped as soon as the marked police car put on its emergency lights.
The officers exited their cars and ordered appellees out of their vehicle. When appellees' car was stopped, there were at least four police cars and seven police officers present. Some of the officers had their guns drawn. The officers forced two appellees to lie down on the street, and the other two appellees to place their hands against a car. When appellees got out of their vehicle, the left rear door was left open, and an officer saw a gun in plain view on the floor board in front of the rear passenger seat behind the driver. The police asked appellees who owned the gun, but no one responded. The officers found ammunition in a white pill bottle on the rear seat. After appellee Anderson had been read his Miranda *fn8 rights, Officer Caine asked who owned the gun, and appellee Anderson said the gun was his. Appellee Murray owned the car.
Appellees were each charged with carrying a pistol without a license, possessing an unregistered firearm, and unlawfully possessing ammunition. D.C. Code §§ 22-3204 (a) (Supp. 1992), 6-2311 (a) (1989 Repl.), 6-2361 (1989 Repl.). They filed motions to suppress, and following an evidentiary hearing the trial Judge found:
I think the operative facts are very straight forward. On a day in the District of Columbia a police officer with a partner in an unmarked car stopped at a traffic light. The defendants occupy another car which pulls to the light. The driver of the car occupied by the defendants leans over and with hand in the symbol of a pistol points it at the officers and mouths a word the officer understands to be pow. There's nothing in the record to suggest that the defendants knew that the individuals in the car, who were objects of that crude and unfortunate gesture, were police officers. I suggest that if they were, that there might be probable cause to find that the offense of assault of a police officer had been committed under the theory of intimidation as that action is prohibited under the assault statute.
The Government argues that there is reasonable basis for the officer to stop the car because of threats. It is significant that when the light changed the cars pulled off without further incident. . . .
I don't find the threat. I think under other circumstances to make such a rude, crude and inappropriate gesture could, as is it was relatively roundly agreed, have resulted in these four gentlemen being shot had the person in the car had a weapon or if the incident had escalated and Mr. Anderson had taken his weapon and there had ...