Appeal from the Superior Court of the District of Columbia. (Hon. Ricardo M. Urbina, Trial Judge).
Before Wagner, Chief Judge, Ferren, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Gallagher
GALLAGHER, Senior Judge: This case involves an encounter between a police officer and the appellant who had been seen in a high crime area, late at night, and who acted nervous and put his hands back in his coat pocket after being asked to remove them upon being questioned by the officer. He appeals his convictions on the ground that the trial court erred in denying his motion to suppress since the police lacked articulable suspicion justifying his seizure and frisk. We agree and reverse his convictions.
Appellant was indicted on one count of carrying a pistol without a license in violation of D.C. Code § 22-3204 (a) (Supp. 1994), possession of an unregistered firearm in violation of D.C. Code § 6-2311 (a) (1989), and unlawful possession of ammunition in violation of D.C. Code § 6-2361 (3) (1989). Two suppression hearings were held, both resulting in the denial of appellant's motion to suppress evidence and statements.
The evidence from the suppression hearings reveals that several officers were patrolling the 1500 block of S Street, N.E., around midnight on March 22, 1992. This location is known as a high-drug area. The officers observed appellant and another person in the backyard of a house on an alley. When the two people observed the police car, appellant walked quickly away by cutting between two houses. One of the officers asked the remaining individual several questions and determined that neither of the men lived in the house and that they were just talking. The officer allowed him to move on.
The three officers then circled the block to look for appellant. About five minutes later, they spotted appellant at the corner of 16th Street and Minnesota Avenue, N.E. They identified him as the same person in the alley by his three-quarter length, heavy, beige or tan coat. One of the officers pulled the car alongside of appellant and said to him: "come here, I want to ask you some questions." He stopped, but did not move toward the police car. The officer exited the car and asked appellant to take his hands out of his pockets. He complied and the officer asked him what he had been doing in the backyard so late. He denied he had been in the yard. Appellant became nervous and put his hands back into his coat pockets. The officer again asked appellant to take his hands out of his pockets. He complied, but seemed increasingly nervous and wide-eyed, and began rocking back and forth.
At that point, the officer asked appellant to place his hands on the patrol car and performed a limited frisk. The officer discovered a bulge in his pocket in the shape of a gun. The officer removed a loaded .32 caliber revolver and arrested him. The trial court determined that the exchange between appellant and the officer was voluntary. Therefore, the court held that no seizure took place "until the moment when Officer Bryant concluded that [appellant's] conduct was so suspicious as to give rise to articulable suspicion that he may be armed and dangerous." The court further concluded that this suspicion justified the officer's limited Terry v. Ohio *fn1 frisk and denied the motion to suppress the evidence seized in the frisk.
Appellant was convicted on all counts. He was sentenced to periods of incarceration of three-and-one-third to ten years on carrying a pistol without a license suspended as to all but seven months, one year for possession of an unregistered firearm, and one year for unlawful possession of ammunition. The sentences were to run consecutively and included three years of probation to run concurrently on all sentences.
Appellant contends that the trial court improperly failed to suppress evidence seized by the police pursuant to a Terry seizure and frisk. We stated in Peay v. United States, 597 A.2d 1318, 1319-20 (D.C. 1991) (en banc):
To justify an investigative detention under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the police "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. This "minimal level of objective justification" is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989). In determining whether a Terry stop is lawful, the court must look to the "totality of the circumstances." Alabama v. White, 496 U.S. 325 , 110 S.Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990), quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). Even if each specific act by a suspect could be perceived in isolation as an innocent act, "the observing police officer may see a combination of facts that make out an articulable suspicion." United States v. Bennett, 514 A.2d 414, 416 (D.C. 1986). . . . 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.
(Footnotes and citations omitted.) The issue in this case is whether the specific and articulable facts were sufficient to make constitutionally reasonable the police officer's decision to frisk appellant.
The government asserts that the officer had an articulable suspicion that criminal activity was afoot and that appellant was armed and dangerous. We look to many factors justifying a Terry stop or search for weapons in considering what may constitute an articulable suspicion that criminal activity was afoot or the person was armed and dangerous. These factors include, among others, the time of day, flight, the high crime nature of the location, furtive hand movements, an informant's tip, a person's reaction to questioning, a report of criminal activity or gunshots, and the viewing of an object or bulge indicating a weapon. See, e.g., Adams v. Williams, 407 U.S. 143, 147-48, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); Cousart v. United States, 618 A.2d 96(D.C. 1992); Williams v. United States, 607 A.2d 471 (D.C. 1992); Gomez v. United States, 597 A.2d 884(D.C. 1991); Duhart v. United States, 589 A.2d 895(D.C. 1991); Stephenson v. United States,296 A.2d 606(D.C. 1972). The government points to the following facts, in their totality, as achieving a sufficient articulable suspicion to justify the frisk: (1) the area was a high crime area where drug transactions take place; (2) appellant was standing with another man in the backyard of a house on a alley during a cold winter night around midnight; (3) appellant quickly walked away from the police; (4) neither appellant nor the other man resided in the house; (5) appellant denied that he had been in the backyard despite being seen by the ...