January 26, 1993
UNITED STATES, APPELLANT
BYRON D. BELLAMY, TOR L. WALLACE, DION L. ANDERSON, TOMMY M. MURRAY, APPELLEES
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 been an exchange of shots as all too frequently occurs in the District of Columbia.
If the incident bad, as there was some Discussion, racial animosity between the four young African American men and two White officers, I'm very sorry. It's another sad day for race relations.
I grant the motions to suppress. *fn9
The government contends that the trial Judge erred in granting the suppression motions because the police had grounds to make a Terry *fn10 stop, that stop was not impermissibly intrusive, and the physical evidence, as well as appellee Anderson's statement, were lawfully obtained. More particularly, the government argues that the police had grounds for a brief investigative detention of appellees' car as a result of "the combination of two factors: (1) the threatening and intimidating conduct of appellee Murray came very close to being a crime in itself, and (2) Murray's conduct gave the officers an objective basis to suspect that there was a gun in the car." The government argues, taking no issue with the trial Judge's factual findings, that the trial Judge's legal Conclusion regarding the stop "placed an undue limit on the officers' ability to investigate suspected criminal activity." *fn11 Appellees respond that the police did not have reasonable articulable suspicion of wrongdoing sufficient to stop them, and further, that even if stopping the car were a permissible Terry stop, it became an arrest without probable cause when seven officers, some with guns drawn, surrounded the car, ordered appellees out of the vehicle, and placed two appellees on the ground and the two other appellees against the car. *fn12
As recently recapitulated, this court independently reviews the trial court's Conclusion of whether articulable suspicion existed, but defers to the trial court's "underlying factual findings." (Marvin) Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991) (citations omitted). The government concedes, for purposes of these consolidated appeals, the standing of appellees to raise Fourth Amendment suppression arguments. See generally Lewis v. United States, 594 A.2d 542, 544-45 (D.C. 1991) (requirements for standing to protest search), cert. denied, 117 L. Ed. 2d 460, 112 S.Ct. 1225 (1992).
The Supreme Court made clear many years ago that:
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a Judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be Judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man (or woman) of reasonable caution in the belief" that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.
Terry, supra, 392 U.S. at 21-22 (footnotes and citations omitted). Accordingly, the Court concluded that to justify a particular official intrusion, "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." Id. at 21. The Supreme Court instructs that "in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his [or her] inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he [or she] is entitled to draw from the facts in light of his [or her] experience." Id. at 27 (citation omitted). See also Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979) (vehicles cannot be stopped in officers' unrestricted discretion; there must be at least reasonable suspicion that suspects have violated the law, or neutral, non-discretionary checkpoints). *fn13 This court evaluates the lawfulness of Terry stops in light of the particular activity of the person stopped; the officer's knowledge about the activity, the person, and the area; and the immediate reaction of the person approached by the officer. Dockery v. United States, 385 A.2d 767, 770 (D.C. 1978) (citation omitted).
This is not a case in which the police had any prior knowledge of the people inside of the car; nor did the police have any subsequent knowledge of those persons as a result of information obtained from a police computer check before the car was stopped. There was no violation of the traffic laws by appellees, no evasive action by appellees when the marked police car put on its overhead lights and ordered the car to stop, nor any gesture by an occupant of the car other than Murray's hand gesture. There also was nothing to suggest that appellees knew that the undercover officers were policemen. Thus, the only elements available to support Officer Minzak's suspicion that appellees had a gun were the driver's gesture and mouthed word "pow," the time of night, the "high-crime" area, and the officer's experience and knowledge of past drive-by shootings under different circumstances.
The trial Judge could properly conclude that appellee Murray's gesture did not give Officer Minzak reasonable articulable suspicion that appellees had a gun or intended to use one. The gesture was, as the trial Judge found, rude, crude and inappropriate, but it did not constitute a threat. See page 18, (infra). There was no context or motive on which the police officer could rely to infer that appellee Murray or the other appellees might have a gun in the car or that he (or they) might actually intend to act on any insult or gesture made "as a child might do." *fn14 This circumstance is in sharp contrast to cases on which the government relies. *fn15 The gesture was not only an isolated incident, but it occurred in circumstances totally unlike those in which a police officer has articulable suspicion that a person has a weapon as a result of seeing either a bulge in an already-stopped suspect's clothes or a furtive gesture as if to hide a weapon. *fn16 Murray's gesture was not even furtive; he did not act as if he were trying to hide anything from the officer's view, but instead directed his gesture towards the officer. Furthermore, upon making the gesture, appellee Murray turned away, waited for the traffic light to change, and drove off when the light turned green, hardly circumstances suggesting that he intended to act on his insult to the undercover officers. There is not even the aspect of flight present in the instant case. *fn17 Moreover, how others might react if appellee Murray were to repeat his rude gesture in the future could not provide the police with articulable suspicion that Murray had a gun. *fn18 Nor did Officer Minzak testify that he suspected appellees of criminal activity but was unsure of exactly which crime was involved; rather he testified that he had a single, clear suspicion that appellees had a gun and might use it. *fn19 However, in the absence of a threat, which the trial Judge found was nonexistent, the officer's suspicion that appellees had a gun lacked a reasonable and articulable basis. *fn20
The other factors -- the time of night, the area of the city, and the officer's experience with the area or type of crime -- are neither individually dispositive nor, in combination, sufficient to support a reasonable suspicion that there was a gun in the car. *fn21 The "late hour" was only 11:30 p.m., but in any event, this factor appears usually to focus on the officer's potential vulnerability rather than the intent of the suspect. *fn22 The "high crime area" was known for prostitution, not drugs or violence. *fn23 While Officer Minzak was aware of drive-by shootings in the past several years in the District, ["all over the city"] he knew of none in the relevant area nor any that had arisen under like circumstances.
Officer Minzak's experience is not a significant factor here. *fn24 Although the officer was knowledgeable of the particular area of the city, that particular area was known for prostitution, an offense unrelated to appellees' conduct and the officer's suspicions. Indeed, the officer's testimony was tantamount to a concession that nothing in his prior experience provided a reason for him to conclude that appellees had a gun in their car. He admitted that he had never known such a gesture to lead to a gun. He denied that as a result of his training he was relying on a profile for certain kinds of individuals. His reliance on the character of the streets and what has been happening recently is not the same as the particularized, individualized suspicion that is required under Terry, supra 398 U.S. at 21, 22. Cf. Matter of A.S., 614 A.2d 534, 537-38 (D.C. 1992); Galberth v. United States, 590 A.2d 990, 997-98 (D.C. 1991) (general law enforcement concerns do not provide sufficient grounds for the police to stop a car) (citing Delaware v. Prouse, supra, 440 U.S. at 659 n. 18). Nor were there objective circumstances, based on information about appellees' other activity, that would permit the officer to stop the car because a gun was likely to be involved. *fn25 Other cases cited by the parties concern searches of passengers in lawfully stopped cars, and are not helpful here. *fn26 The factors present here are individually and collectively less probative than those in cases where there was reasonable articulable suspicion. *fn27
The government's contention that the police could stop appellees' car to investigate because "the threatening and intimidating conduct of appellee Murray came very close to being a crime in itself" fails on this record and thus cannot explain how the officers had reasonable articulable suspicion. Officer Minzak testified that he stopped appellees' car because he thought they might have a gun, and not because he thought that appellee Murray's gesture was itself a crime. In fact, the officer distinguished as "entirely different" appellee Murray's gesture from an obscene gesture, which, the officer claimed, in and of itself would have violated a statute. In addition, the trial Judge found that there was no evidence that appellees knew that officers Minzak and Caine were police officers, and therefore no probable cause to suspect them of assaulting a police officer under a theory of intimidation. *fn28
The government concedes that it did not argue in the trial court and now "does not press it as a reason to reverse" that appellee Murray's gesture and the mouthed word "Pow" may have violated D.C. Code § 22-507 (1989 Repl.), which forbids threats to do bodily harm. The government admits that appellee Murray's gesture "fell just shy of" threat-type assault prohibited by D.C. Code § 22-504 (1989 Repl.). The government suggests that Murray's gesture and mouthed word "arguably" violated the disorderly conduct statute, D.C. Code § 22-1121 (1989 Repl.). But the trial Judge's findings regarding the nature of the gesture make clear that the Judge did not find facts which would bring the gesture within the threats, assault, or disorderly conduct statutes. While the Judge concluded that appellee Murray's gesture was foolish thing to do, the Judge suggested that police officers were trained to take such insults without reacting so as to cause a disturbance. See notes 9 & 11, (supra) . In its reply brief the government argues that "plenty of ordinary citizens would feel very threatened by appellee Murray's gesture and the mouthed word 'Pow' in that location at that time of night." (citing United States v. Baish, 460 A.2d 38, 42 (D.C. 1983) (threat evaluated in terms of how it would affect ordinary recipient)). The fact that Officer Minzak may have interpreted the gesture, in the government's words, "as genuinely threatening and suggestive of the possibility of a gun's presence in appellees' vehicle," does not withstand the objective scrutiny that the Fourth Amendment requires, Terry, supra, 392 U.S. at 21-22, and the trial Judge applied in evaluating the officer's credibility. See (Marvin) Brown, supra, 590 A.2d at 1020 (citation omitted); Matter of B.E.W., 537 A.2d 206, 207 (D.C. 1988) (citation omitted).
The trial Judge's findings regarding the nature of the gesture make clear that appellee Murray's gesture was insufficient to objectively cause a reasonable person to believe that appellees had a gun in the car. *fn29 The gesture was not so linked to gun possession as to lead to that inference. *fn30 It was not a "furtive gesture" of hiding or holding a weapon. Nor did the officers see any physical sign of a concealed weapon, such a bulge in one of the appellees' clothing. The other factors, such as time of night, the area, and the officers' experience, are insufficient to bolster the observation of appellee Murray's gesture to provide reasonable articulable suspicion that he had a gun. The government's argument that Officer Minzak "testified that his judgment was that Murray would not have made [the gesture] without having immediate access to a real gun" is a judgment that was simply unsupported by the objective evidence or reasonable inferences based on facts known by the officer.
Accordingly, we affirm the order granting the motions to suppress.