Appeal from the Superior Court of the District of Columbia (F-1477-00) (Hon. Robert I. Richter, Trial Judge)
Before Steadman and Farrell, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Farrell, Associate Judge
This appeal challenging the denial of a suppression motion presents the question of how Illinois v. Wardlow, 528 U.S. 119 (2000) ("flight" in Fourth Amendment analysis), applies to the facts of this case. We hold, primarily in light of Wardlow, that the police had a reasonable, articulable suspicion justifying the stop of appellant; and we affirm.
An indictment charged appellant with possession with intent to distribute PCP and possession of cocaine. *fn1 He moved to suppress drugs found on his person after police had stopped him in the corridor of an apartment building. At the motion hearing the evidence credited by the trial court was essentially as follows:
On March 6, 2000, at about 5:45 p.m., two Metropolitan Police (MPD) detectives were standing in the 1400 block of Fairmont Street, N.W., looking for a witness in connection with a homicide investigation. From his experience as an officer in the Third District, Detective Smith knew that the 1400 block of Fairmont Street was characterized by "a high level" of narcotics activity. Smith noticed two men walking toward the entrance to 1401 Fairmont Street, an apartment building. One, Dominic Ward, matched the description of the witness Smith was looking for; the other was appellant. Although Smith and his partner were in plain clothes, at least three marked police cars were parked in front of 1401 on unrelated business. Appellant and his companion looked at Smith and quickened their pace as "[he] paid more attention to them." Smith walked toward the men as they entered the building, and saw that "their pace quickened to the point where, once [he] got to the front door of the building, they were hurrying down the hallway and quickly went around the corner out of my sight." As Smith followed them down the hallway, he encountered uniformed MPD officers who were in the building on another investigation.
One of those officers, Sergeant Sporn, had been descending a flight of stairs when he saw appellant and Ward, followed at a distance by the two detectives. Seeing Sporn, appellant and Ward "quickly went around the corner" down another hallway. Of their movements Sporn testified: "If I was in a rush and needed to get somewhere quickly and not run, that's how I would describe it." Although now out of sight of appellant and Ward, Sporn suddenly heard "pounding on [a] door" from the direction in which the pair had moved; Detective Smith likewise heard a "commotion, some banging" from that direction, sounds he agreed resembled someone "banging on [a] door frantically." The police turned the corner and saw appellant standing next to the door to apartment 108. Ward was ten feet farther down the hallway and, on seeing Smith, seemed "agitated" and "spooked." A detective stopped Ward, who was near a stairwell, and other officers detained appellant by placing his hands against the wall. Ward was searched after Detective Smith saw him trying to hide tin foils in his pocket and smelled "the strong chemical odor of PCP" coming from his person. Sergeant Sporn then perceived that appellant too "reek[ed]" of PCP. He frisked appellant and felt a large bulge in his front pants pocket that, from the jagged edges of individual packets, he recognized as a bag containing tin foils of PCP. A full search of appellant revealed both PCP and cocaine in his possession.
At the hearing, the officers explained why appellant and Ward had been detained initially. Sergeant Sporn stated: "They were stopped because of the pounding on the door and the circumstances surrounding what was going on." Detective Smith elaborated: "[It was] based on both the defendants' actions at this point, they were very nervous that law enforcement was interested in them, they acted as if they had something to hide, the way they quickened their pace, and the way they basically attempted to [e]lude us once we got into the building."
In denying the motion to suppress, the trial judge found it reasonable to believe that appellant and Ward knew that police (and not unknown persons) had taken notice of their actions. *fn2 He also found reasonable the officers' belief that appellant and Ward were "trying to avoid [them]," first by quickening their pace as they walked down the apartment hallway and accelerating as they turned the corner, then by pounding on an apartment door in an attempt to be admitted. *fn3 Although the police had "no specific knowledge of a crime" appellant was suspected of having committed or being about to commit (emphasis added), the judge nonetheless found the issue to be whether the police "reasonabl[y] belie[ved] that [appellant] and Mr. Ward were fleeing [them] in a high drug area in what has to be a fairly tense environment in the hallway of this building," so as to justify a brief stop for investigation but not the further intrusion - at that point - of a frisk. He answered the question affirmatively, relying on Illinois v. Wardlow, supra. He went on to uphold the frisk on the basis of the intervening discovery of PCP on Ward and the smell of PCP coming from appellant's person.
Appellant then entered a conditional plea of guilty. See Super. Ct. Crim. R. 11 (a)(2).
To conduct a brief, investigatory stop of a person in keeping with the Fourth Amendment, a police officer must have a reasonable, articulable suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968); see United States v. Arvizu, 122 S. Ct. 744, 750 (2002). "While `reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop." Wardlow, 528 U.S. at 123 (citation omitted). Appellant contends that no such justification was shown here - that the police had only an "inchoate and unparticularized suspicion or `hunch'" of criminal activity. Terry, 392 U.S. at 27. He argues that the Supreme Court's approval of the stop in Wardlow does not govern here because the Court there regarded only evasion of the police consisting of "[h]eadlong flight" as sufficient to justify a stop, in contrast to the mere "quickened pace" exhibited here; and in his view no other circumstances brought the police over the reasonable suspicion threshold. Although the trial judge considered application of Wardlow to the facts here to be very close, we agree with the result he reached.
Wardlow resolved the issue, on which state courts had divided, of "whether unprovoked flight is sufficient grounds to constitute reasonable suspicion." 528 U.S. at 123 n.1. The Court held that the defendant's "unprovoked flight upon noticing the police," combined with his "presence in an area of heavy narcotics trafficking," was enough to "warrant further investigation" that properly included a brief stop to attempt "to resolve the ambiguity" in the situation. Id. at 124, 125. It began by stating that, although an individual's presence in an area of expected criminal activity, standing alone, will not support a stop, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Id. at 124. The Court further explained that its prior cases had "recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." And "[h]eadlong flight - wherever it occurs - is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive ...