Before Glickman, Associate Judge, and Kern and Mack, Senior Judges.
Appeal from the Superior Court of the District of Columbia (Hon. Stephanie Duncan-Peters, Trial Judge)
Opinion for the court by Senior Judge Mack.
Dissenting opinion by Senior Judge Kern at p. .
Mack, Senior Judge: In this court, appellant Carr challenges his conviction on one count of possession with intent to distribute cocaine in a drug free zone (in violation of D.C. Code §§ 33-541 (a)(1) and -547.1), and the denial of his motions to suppress evidence because of constitutional violations. Appellant argues here that the Fourth Amendment was violated when a police officer physically grabbed, and then questioned him, without having a reasonable, articulable suspicion that he was committing a crime. We agree with this contention and, therefore, reverse.
Prior to trial, appellant moved to suppress, alleging that both his stop and his arrest were unjustified. After a hearing the motions court found the following facts. *fn1
On the evening of May 30, 1997, Officer Joseph Cabillo of the Metropolitan Police Department was on patrol in a high crime area with three other officers in an unmarked police car. The officers were in plain clothes, and wore bullet proof vests emblazoned with the word "Police." Following behind Officer Cabillo's vehicle was another unmarked police car with another four officers. Officer Cabillo spotted a car parked at an angle in a space in the parking lot at 2638 Birney Place, S.E. *fn2 Appellant stood outside of the car, on the driver's side, talking with the three occupants of the car. G.B., a juvenile, stood on the passenger side of the car, smoking what appeared to be a marijuana cigarette. The police noticed a very strong odor of burnt marijuana in the air, presumably attributable to G.B.'s cigarette. There did not appear to be any interaction between appellant and G.B. Appellant's behavior was innocuous, and the police had no grounds to believe that he was engaged in criminal activity. Moreover, the eight policemen, on regular patrol, had no reasonable basis to fear for their own safety. Nonetheless, upon their arrival, the police specifically intended not only to arrest G.B., but also to "pat down" everyone within the parking lot, including appellant.
As the police neared, appellant looked in their direction and G.B. flicked his cigarette to the ground. As Officer Cabillo alighted from his car, appellant put his hands in his pocket, and leaned into the window of the car, as if in conversation with the occupants. Appellant did not place any object into his pocket, nor was there any suspicious bulge in the pocket. Nothing about appellant's action could be considered furtive or threatening.
Officer Cabillo approached appellant, pulled him away from the door frame of the car, and asked him if he "had anything illegal on him." At this point, appellant appeared nervous and he did not reply. When Officer Cabillo reiterated his query, appellant then responded, "yes, in my right pocket." After this admission, Cabillo searched appellant's pockets and discovered fifty rocks of crack cocaine in the right pocket and a cellular phone and pager in the left pocket.
The motions court, considering it "a very close question," and indicating that it welcomed review, denied appellant's motion to suppress evidence, concluding: (1) based on Pennsylvania v. Mimms, 434 U.S. 106 (1977), the stop was justified because it was reasonable for the police to order appellant away from the door frame "the way it would be reasonable for an officer to order everybody out of the car to get him away from the scene;" (2) as a Terry *fn3 stop, pursuant to Berkemer v. McCarty, 468 U.S. 420 (1984), the police questioning did not constitute custody for Miranda *fn4 purposes; and (3) once appellant indicated that he had contraband, the police had probable cause to search. We review these legal conclusions de novo. See Hawkins v. United States, 663 A.2d 1221, 1225 (D.C. 1995).
The police lacked reasonable articulable suspicion to stop appellant at all. For that reason, we need not reach the Miranda ...