Appeal from the Superior Court of the District of Columbia (F2425-97) (Hon. Linda D. Turner, Trial Judge)
Before Wagner, Chief Judge, and Terry and Schwelb, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appellant, Louis Jackson, was indicted for carrying a pistol without a license (D.C. Code § 22-3204 (a) (1981)), *fn1 possession of an unregistered firearm (D.C. Code § 6-2311 (a) (1981)), *fn2 and possession of unregistered ammunition (D.C. Code § 6-2361 (3) (1981)). *fn3 Following denial of a pretrial motion to suppress the pistol and ammunition that the police recovered from him in a street encounter, Jackson entered a conditional plea of guilty to carrying a pistol without a license, reserving his right to appeal from the order denying his motion to suppress. On appeal, Jackson argues that the police seized the evidence in violation of his Fourth Amendment rights, and therefore the trial court erred in denying the motion to suppress. The government contends that the police conduct was lawful under the Fourth Amendment because the police ascertained through an inadvertent touching, during a consensual encounter, that Jackson appeared to be armed. We conclude that the seizure was not warranted under the totality of the circumstances. Therefore, we reverse and remand.
At the hearing on the motion to suppress, there was only one witness, Officer Harry Allen, of the Metropolitan Police Department. Officer Allen testified that, while at the police station, he received a telephone call from a woman who said that a man had been standing in front of her apartment at 824 18th Street, N.E., and blocking the walkway. The caller provided a description of the man and "mentioned something to [the officer] about a lookout." Officer Allen testified that the caller said that she feared for her safety because there had been a number of shootings in the area in the past week. The officer testified that he had spoken to the woman, who sounded like an elderly person, on at least three prior occasions, and that she had provided information that led to search warrants for drug activity. He testified that the caller, who did not give her name, made no mention of the presence of a gun that evening and provided no information linking the man she described to the shootings or to drug transactions. Officer Allen said that the area had been his "beat" for two or three years and that he was aware of some of the shootings on that block. He testified that he had made drug and gun lockups in the area.
Officer Allen waited at the station for his partner for about an hour before going out to investigate. At about 5:30 p.m., he and his partner went to the 18th Street area where they saw Jackson, who matched the description given by the caller, standing in front of the apartment address she had given. *fn4 The record is not clear whether the officers were in uniform, but they had their weapons within view. *fn5 The two officers, who drove up in an unmarked car, walked over to Jackson, and Officer Allen asked him if he had any drugs or weapons on him. Jackson responded that he did not. Officer Allen then asked, "could" or "can" "you raise your jacket for me," and Jackson complied. The officer testified that he did not see anything, and he continued to engage Jackson in conversation. The officer asked Jackson how long he had been there, and Jackson said for a "while." He asked whether Jackson lived in the neighborhood, to which Jackson responded that he did not. Officer Allen then asked Jackson if he was visiting anyone, and Jackson pointed to 828 18th Street, N.E., and said that he was visiting Adrian. He asked Jackson for Adrian's last name, and Jackson responded, "Thomas." Officer Allen testified that he knew an Adrian Mosbray whose mother lived at that address and that he was the only Adrian who was at that address; therefore, the officer concluded that Jackson was not being candid. According to the officer, reliable sources had reported that Mosbray dealt drugs in the neighborhood. Officer Allen testified that at that point, he became concerned for his safety and decided to "pat down" Jackson. The two men were standing about a foot apart at the time.
Officer Allen testified that he said to Jackson, "please turn around for me." The officer said that his hands were in front of him, and when Jackson began to turn, his "hand hit the right of [Jackson's] pocket and kind of like gripped it and [he] felt a gun." *fn6 At another point, the officer indicated that he felt the hard object when he patted Jackson's right front pants pocket. He also testified that he had not started to touch Jackson at the time he felt the object because he was waiting for him to turn around. After the officer gripped the object, Jackson looked at him and then ran, and the officer gave chase, caught him within a half block, and removed the weapon.
Initially, the government argued that Jackson had not been seized until the officer reached to pat down Jackson. However, before the trial court ruled on the motion, the government argued that the encounter between Jackson and the police was consensual and that the Fourth Amendment was not implicated until Jackson was apprehended after the officer felt the weapon. Based on Officer Allen's testimony, which the trial court credited, it found that Jackson's compliance with the officer's request to raise his jacket and turn around was consensual and that the officer had made no show of authority up to that point. The trial court concluded that a Fourth Amendment seizure did not occur until the officer squeezed Jackson's pocket. The court held that a combination of factors known to the officer, including the information provided by the caller, Jackson's suspected lack of candor about Adrian, information about Adrian's drug activities, and feeling a hard object, provided the officer with an articulable suspicion supporting his action in squeezing Jackson's pocket. Finally, the court concluded that once the officer felt the weapon and Jackson ran, the officer had probable cause to arrest Jackson and seize the gun.
Jackson argues that the trial court erred in denying the motion to suppress because Officer Allen seized him without reasonable grounds to believe that he had committed a crime. He contends that by the time he complied with the officer's request that he "turn around," he had already been seized because no reasonable person would have felt free to leave under the circumstances. Jackson concedes that the officer had the right to approach him and ask questions about drugs and weapons; however, he contends that the encounter ceased to be consensual when Officer Allen requested that he lift his jacket and that, undoubtedly, a seizure had occurred by the time the officer asked him to turn around in order to pat him down. The government argues that the trial court properly ruled that no seizure occurred until the officer squeezed the gun, and given the knowledge available to him at the time, the officer had reasonable, articulable suspicion to believe that Jackson might be armed and dangerous. Therefore, the government contends, the officer acted lawfully under the Fourth Amendment when he squeezed the hard object in order to determine if it was a weapon.
The Fourth Amendment of the Constitution protects individuals from unreasonable seizures by governmental authorities. Terry v. Ohio, 392 U.S. 1, 9 (1968) (citing Elkins v. United States, 364 U.S. 206, 222 (1960)). Generally, "any restraint of a person amounting to a `seizure' is invalid unless justified by probable cause." Hawkins v. United States, 663 A.2d 1221, 1225 (D.C. 1995) (citing Florida v. Royer, 460 U.S. 491, 498 (1983)). The police may conduct an investigatory stop on less than probable cause provided that, "under the totality of the circumstances, the police officer could reasonably believe that criminal activity was afoot." Duhart v. United States, 589 A.2d 895, 897 (D.C. 1991) (citing Terry, 392 U.S. at 29-30). Where there is a challenge to an improper Terry stop, the threshold question is whether a seizure has occurred. See Smith v. United States, 558 A.2d 312, 314 (D.C. 1989) (en banc). "A seizure occurs where the officer by show of authority restrains the liberty of a citizen." Durhart, 589 A.2d at 897 (citing Terry, 392 U.S. at 19 n.16). A seizure does not occur simply because a law enforcement officer approaches a person on the street and asks him or her questions; the officer may engage in such encounters without violating the Fourth Amendment if the person approached is willing to listen and answer questions. See Florida v. Bostick, 501 U.S. 429, 434 (1991); Guadalupe v. United States, 585 A.2d 1348, 1354 (D.C. 1991) (citing Royer, 460 U.S. at 497). Such an encounter will not trigger Fourth Amendment protection unless it ceases to be consensual. Bostick, 501 U.S. at 434. Where the encounter loses its consensual nature, scrutiny under the Fourth Amendment is triggered. Id. (citing Terry, 392 U.S. at 19, n.16). In determining whether the person has been seized, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would `have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Id. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988) (other citation omitted)); In re J.M., 619 A.2d at 497, 499-500 (D.C. 1992) (en banc) (citation omitted). If the person stopped is free to leave, then he has not been seized within the meaning of the Fourth Amendment. Applying these principles, we consider when Jackson was seized within the meaning of the Fourth Amendment.
The evidence was undisputed that there were two officers who approached Jackson with weapons in view, and that Officer Allen stood within a foot of Jackson as he questioned him. The officer did not inform Jackson that he could refuse to answer questions or decline the initial request to look under his shirt. However, Officer Allen testified that his tone was conversational during questioning, and his request that Jackson raise his jacket was not stated in the form a command.
Jackson argues that the trial court erred in denying the motion to suppress evidence because the police officer seized him within the meaning of the Fourth Amendment without reasonable grounds to believe that he had committed a crime. Jackson concedes correctly that "a seizure does not occur simply because a police officer approaches an individual and asks a few questions." Bostick, supra, 501 U.S. at 434. For such consensual encounters, reasonable suspicion is not required. Id. However, where the encounter loses its consensual nature, scrutiny under the Fourth Amendment is triggered. Id. (citing Terry, supra, 392 U.S. at 19 n.16). Jackson argues that the contact in this case ceased to be consensual when Officer Allen requested him to lift his jacket. He contends that under the totality of the circumstances, no reasonable person would have felt at liberty to decline the officer's request and terminate the encounter with the officer, and therefore, an unlawful seizure occurred. ...