Appeals from the Superior Court of the District of Columbia; (Hon. Lee F. Satterfield, Trial Judge)
Before Wagner, Chief Judge, and Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Appellants Taylor Mayes and Samuel David Graves entered pleas of guilty to misdemeanor charges of carrying a pistol without a license (CPWOL), in violation of D.C. Code § 22-3204 (a) (1989). Each appellant reserved the right to appeal from his conviction on the ground that the trial Judge had erred in denying his pretrial motion to suppress tangible evidence. On appeal, each contends that the police seized him without the requisite articulable suspicion of criminal activity. We reverse Mayes' conviction and remand his case to the trial court with directions to grant his motion to suppress. We affirm Graves' conviction.
Sergeant Walter Ferguson and Officer Elise Morrison Schofield of the Metropolitan Police Department (MPD), the government's principal witnesses, both testified at the suppression hearing that, on November 23, 1991, the two of them were on patrol in a scout car in the area of 14th and A Streets in northeast Washington, D.C. At some time between midnight and 1:00 a.m., they observed a brown, dark gold, or brown and gold station wagon with tinted windows turn into the 1400 block of northeast A Street. The driver stopped in front of 1429 A Street, N.E. and double-parked. The vehicle's headlights were on and the motor was running.
Sergeant Ferguson testified that, upon seeing the station wagon, Officer Schofield advised him that the vehicle matched the description of one which was said to have been used in a shooting or a homicide on the previous night. Sergeant Ferguson pulled up his scout car behind the station wagon. He and Officer Schofield both stepped out of the police vehicle and approached the double-parked car. Approximately one minute had elapsed from the time the officers had first observed the station wagon moving into the block.
Sergeant Ferguson went to the driver's side of the station wagon. The rear door on that side "popped open," activating the interior dome light. Observing that there were three men in the back seat, *fn1 Ferguson directed the individual who was seated behind the driver, and who was later identified as appellant Mayes, to step out of the car. After Mayes had complied with this directive, Ferguson told him to place his hands on the car and then patted him down. Sergeant Ferguson felt a bulge, suspected that Mayes was armed, and directed Officer Morrison to call for back-up. Upon the arrival of reinforcements, Ferguson extracted a .25 caliber semi-automatic pistol from Mayes' pocket.
The remaining occupants of the vehicle were immediately "asked" to get out of the station wagon (according to Sergeant Ferguson) or "pulled" out of it (according to Officer Schofield). The police then searched the car. Officer Schofield found an additional handgun in the back of the vehicle, and another officer recovered a third handgun from the person of one of the men, who was later identified as Samuel Graves. All five men were placed under arrest.
B. The Alleged Traffic Violation.
Both Sergeant Ferguson and Officer Schofield claimed that their actions vis-a-vis the station wagon and its occupants were undertaken, in part, because the vehicle was involved in a traffic violation. Sergeant Ferguson stated that the station wagon was "parked abreast," conduct which, according to Ferguson, was a violation of the D.C. Code. He claimed that he was authorized to write a ticket for a vehicle so parked even if the motor was running. Ferguson acknowledged that the double parking had not caused any noticeable traffic problem.
Officer Schofield initially testified that the station wagon "was not allowing cars to drive straight through." She later acknowledged, however, that one lane was free, and that traffic therefore was not "absolutely" blocked. *fn2 According to Officer Schofield, Sergeant Ferguson "had the intent to make a traffic stop, and he obviously was attempting a traffic stop," although "I would not have stopped them maybe for that reason."
C. The Wanted Station Wagon.
Officer Schofield testified that earlier that day, some time between 3 p.m. and 11 p.m., she and Officer Suzette Rice observed a station wagon, gold or tan in color, with blacked out windows and "temporary" license tags, traveling past Eastern High School. *fn3 Officer Schofield got only a "glimpse" of the vehicle, and she and Officer Rice were unable to obtain its tag number. She testified that Officer Rice told her that the station wagon which the two of them observed fit the description of one which had allegedly been used the previous night in a shooting. Later, when Officer Schofield saw the station wagon in which Mayes and Graves were riding, she believed that it was the same vehicle which she and Officer Rice had seen at Eastern High School.
Officer Suzette Rice estimated that she and Officer Schofield first saw the station wagon at 17th and East Capitol Streets at about 11:30 p.m., or perhaps even after midnight. She thought the vehicle was "wanted for a shooting" because she remembered a lookout for a "gold, older model station wagon with tinted windows and temporary tags." She had learned of this lookout "either roll call or from another officer." With respect to the time at which she heard the lookout, Officer Rice stated that
I can't remember if it was the day before. It was within a couple of days of some shooting that we had in the District.
She acknowledged that her recollection, both of the source and of the information, was "vague."
Sergeant Ferguson testified that station wagons with tinted windows and paper tags are known by the police as "war wagons" or as "battle buckets." Officer Schofield stated that such vehicles are commonly used for "drive-by" shootings. She explained that she "maybe" would not have stopped the car for a traffic infraction, but rather "for being a war wagon" which fit the description in a lookout "for a car wanted for questioning in a shooting."
Sergeant Ferguson testified that the 1400 block of A Street, N.E. was in a "high crime" area. He described 1429 A Street, N.E. (the building in front of which the station wagon was double-parked) as a notorious crack house. A criminal investigator, who was called as a defense witness, testified that the building was in fact a high-rent luxury apartment house with its own security fence. The investigator also took photographs and obtained a brochure about the building; these items were introduced into evidence. The investigator stated that, according to the property manager, there had been no crime problems at the complex in the past four years "other than maybe a domestic situation or what have you." Most of the residents of the building were professional people and, according to the investigator, the premises and grounds were well maintained.
Officer Schofield, as we have previously noted, testified that the lookout on which she was relying was for a station wagon with temporary or paper license tags. Sergeant Ferguson and Officer Schofield both testified during the government's presentation of its case-in-chief that the double-parked station wagon had temporary tags. When the defendants presented their case, however, the parties stipulated that temporary license tags have five-digit numbers and that these numbers are preceded either by one or by two letters. According to a proffer which the government made to the court shortly after Mayes and Graves were arrested, the tag on the station wagon in which they were riding had six digits, and the parties stipulated that it was a hard, i.e., permanent, license plate and not a temporary tag.
The trial Judge orally denied each appellant's motion to suppress. First, he found that the car was "parked abreast" and that "there could have been an infraction given" had the officers chosen to ticket the car. Second, he concluded that "this was more than simply a traffic stop because of the information that Officer had about a car with this type of description ...