Before Steadman and Schwelb, Associate Judges, and Ferren, Senior
The opinion of the court was delivered by: Ferren, Senior Judge
Appeal from the Superior Court of the District of Columbia (Hon. Linda Turner Hamilton, Trial Judge)
Submitted October 28, 1999
Opinion for the court by Senior Judge Ferren.
Concurring opinion by Associate Judge Schwelb, with whom Associate Judge Steadman joins, at p. ___.
Appellant, Pamela Jackson, pleaded guilty to unlawful possession of heroin, D.C. Code § 33-541 (d) (1998 Repl.), while reserving her right to appeal the trial court's denial of her motion to suppress evidence. *fn1 Jackson contends that (1) the police lacked reasonable suspicion to make an investigative stop under Terry v. Ohio, 392 U.S. 1 (1968), and, alternatively, that (2) assuming the stop was warranted, the police conducted an unlawful search when - without fear for their they own safety and concerned only about searching for evidence - they ordered Jackson to open her hand (disclosing heroin). We reverse and order suppression of the evidence seized.
On February 14, 1997, the trial court heard Jackson's motion to suppress. The court found the following facts, which essentially were uncontested. On June 26, 1996, Officers Epps and Farmer observed Jackson, David Carthens, and two others walking in a group in a high drug trafficking area. The group stopped, and Carthens reached into his buttocks area and pulled out a small blue object. He handed the object to Jackson, who clutched it in her right hand. Carthens then retrieved another similar object, also from his buttocks area, and gave it to another member of the group. No money exchanged hands. The officers approached to make an investigative stop. Officer Epps asked Carthens to hand over "what was in his butt, " and Carthens produced eighteen blue ziplock baggies that field-tested positive for heroin. Officer Farmer told Jackson to "open [her] right hand." Jackson complied. Her open hand disclosed two blue ziplock baggies, later shown to contain heroin.
At the hearing on the motion to suppress, the government conceded that the police did not have probable cause to arrest, but argued that the search of Jackson's right hand was either consensual or justified by Terry. The trial court found that appellant's opening her hand and disclosing the ziplock bags, upon police command, was not consensual, but that when the officers approached the group, they had the specific articulable suspicion required for a legitimate investigative stop under Terry. *fn2 The trial court further found that the officers had not been concerned about their safety when they ordered Jackson to open her right hand. Nonetheless, the court interpreted Cousart v. United States, 618 A.2d 96 (D.C. 1992) (en banc), cert. denied, 507 U.S. 1042 (1993) - or, alternatively, the Fourth Amendment generally - to say that Terry permits a police officer - in every case of a proper investigatory stop - to order a suspect to open her hands without regard to concerns about police safety. The court accordingly denied the motion to suppress.
On appeal, the government declines to defend on Terry grounds but offers to justify the search on grounds of probable cause to arrest. This court may sustain the trial court's decision for record-based reasons different from those on which the trial court relies. Alston v. United States, 518 A.2d 439, 440 n.2 (D.C. 1986). During the motions hearing, however, the government affirmatively conceded the lack of probable cause to arrest. The record, therefore, does not reflect development of the issue, and we accordingly decline to address it. See, e.g., In re D.A.J., 694 A.2d 860, 863 (D.C.1997). We evaluate appellant's motion - as the government asked the trial court to do - solely on the basis of Terry and related case law.
Because of its revised approach on appeal, limiting its analysis to probable cause, the government no longer advances its argument that appellant had consented to opening her hand. Nor does the government advance a record-based argument that the resulting "search" of appellant's hand was justified by concern for the police officers' safety. *fn3 The narrow issue before us, therefore, is whether - as the trial court held - Terry justifies a non-consensual search of a closed hand absent a concern for police officer safety. We believe - as the government effectively concedes by declining to defend on Terry grounds - that the answer must be no, given our controlling analysis in Upshur v. United States, 716 A.2d 981 (D.C. 1998) (decided after the trial court ruled in this case).
In Upshur, this court reversed a conviction for possession of cocaine. Two officers, patrolling in a high drug trafficking neighborhood, had observed Upshur leaning into a car and receiving an unknown object in exchange for money. Upshur, 716 A.2d at 982. When Upshur saw the police cruiser, he walked away "with his fist balled as if he was holding something." Id. Based on the officers' experience that led them to believe an illegal drug transaction had taken place, they grabbed Upshur and "told him to open his hand." Id. While one officer was attempting to place Upshur's hands on the cruiser, the driver of the other car began to speed off. Id. After the other officer tried unsuccessfully to stop the driver, that officer looked back and noticed "objects falling" from Upshur's hand. Id. These objects later tested positive for crack cocaine. Id.
In moving to suppress admission of the cocaine in evidence, Upshur argued that the police had lacked probable cause; the government replied that the police had been justified in conducting an investigatory stop and related protective search. Based on the two-way exchange, the trial judge found "reasonable, articulable suspicion for a Terry stop," then "probable cause to arrest" Upshur "after he ...