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In re D.T.B.

March 11, 1999

IN RE D.T.B., APPELLANT.


Before Wagner, Chief Judge, and Reid, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Mack, Senior Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia (Hon. John H. Suda, Trial Judge)

Argued January 5, 1998

Appellant entered a conditional guilty plea to firearm offenses pursuant to Super. Ct. Juv. R. 11 (a)(2). On appeal, he argues that police obtained the evidence used against him as a result of an unlawful Terry seizure *fn1 and that, therefore, the evidence should have been suppressed. We agree and reverse.

I.

At approximately 1:30 a.m., on October 15, 1995, Officer Leo Cannon was patrolling the 1500 block of 7th Street, N.W. From the street, the officer looked inside an open, well-lit, 24-hour laundromat where he saw washers and dryers, video game machines, a change machine, and four or five people. He observed appellant, the youngest of the people, "fidgeting" with his waist area. The officer did not notice any bulge or other facts consistent with the concealment of a firearm; nonetheless, he entered the laundromat and, while standing near the building's only exit in full uniform (with his service firearm at his waist), ordered appellant (then eighteen years old) to "come here." Appellant protested, explaining that he was only attempting to obtain change for a twenty dollar bill (which he was holding in his right hand) from a change machine. Officer Cannon, undaunted, again stated his request, this time in an even more stern and commanding tone. There being no other means to exit the laundromat or otherwise avoid the police officer, appellant reluctantly approached Officer Cannon. The officer testified that appellant was walking in a manner consistent with the concealment of a weapon; he therefore escorted appellant outside the building and frisked him. When the officer found a concealed weapon in appellant's waistband, appellant was arrested.

Prior to trial, appellant filed a motion to suppress tangible evidence, arguing Officer Cannon violated his Fourth Amendment freedom from an unauthorized search and seizure. A hearing on appellant's motion was held on April 22, 1996. At that hearing, the trial court found that Officer Cannon did not have an articulable reasonable suspicion to detain appellant upon entering the laundromat. The trial court found as a matter of fact that the officer's greeting was a command rather than a salutation. The court went on to conclude, however, that the stern commanding tone employed by Officer Cannon when he twice ordered appellant to "come here" did not constitute a detention. According to the trial court, appellant was not detained until he was frisked outside the laundromat and, by that time, the officer had sufficient justification for the stop and search. Appellant entered a conditional guilty plea and this appeal followed.

II.

We begin our analysis of appellant's Fourth Amendment claim by considering first when Officer Cannon's actions constituted a seizure. The government contends Officer Cannon's actions did not amount to a seizure until outside the laundromat when the frisk occurred. Appellant contends that, to the contrary, he was seized while still inside the laundromat by the commanding tone of Officer Cannon's voice.

A "seizure" arises "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). Of course, every police investigation involving contact between an officer and a citizen does not amount to a seizure. Terry v. Ohio, supra note 1, 392 U.S. at 19 n.16. Rather, a seizure occurs where a show of authority or actual force by an officer would lead a reasonable person to conclude he was not free to leave. In re J.M., 619 A.2d 497, 500 (D.C. 1992) (en banc); Johnson v. United States, 468 A.2d 1325, 1327 (D.C. 1983). Thus, we must decide when Officer Cannon exerted a sufficient show of authority such that a reasonable person would have felt that he was not free to leave.

The government relies heavily upon Richardson v. United States, 520 A.2d 692 (D.C.), cert. denied, 484 U.S. 917 (1987), in support of its argument that a seizure did not arise until outside the laundromat. In Richardson, plain clothes officers in an unmarked car observed Richardson exit a known drug location holding a small white object and looking nervous. The officers exited their vehicle and called out "Police, wait a second. We want to talk to you." We concluded that the officers' request for Richardson to "wait" did not amount to a seizure. By analogy, the government argues Officer Cannon's statement, "come here," did not amount to a seizure inside the laundromat.

We find this case to be factually distinguishable from Richardson and conclude that a seizure occurred while appellant was still within the laundromat. In Richardson, we expressly relied, in part, upon the fact that there was no indication that the "officers used threatening language or a commanding tone." Id. at 697. In the instant case, our decision is guided by the often cited Mendenhall factors opined by the Supreme Court:

"Examples of circumstances that might indicate a seizure . . . would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be ...


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