Appeal from the Superior Court of the District of Columbia (M-20493-07) (Hon. Zinora M. Mitchell-Rankin, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before KERN, TERRY, and SCHWELB, Senior Judges.
Opinion for the court by Senior Judge TERRY.
Opinion by Senior Judge SCHWELB, concurring in the judgment but dissenting in part, at p. 9.
Appellant was charged by information with possession of cocaine, in violation of D.C. Code § 48-904.01 (d) (2001). She filed a motion to suppress tangible evidence and statements. The trial court held a combined hearing on appellant's motion and non-jury trial, and at its conclusion the court denied the motion and found her guilty as charged. Appellant's only contention on appeal is that the court erred in denying her motion to suppress. We find no error, and accordingly we affirm the conviction.
The government's evidence established that on August 30, 2007, Metropolitan Police Officers Sarah Hoffman and David Wildey were on routine patrol in the 1600 block of North Capitol Street when they saw five or six persons standing on the sidewalk. The officers, wearing vests with the word "Police" written across the front, and with their guns holstered, walked up to the group. Officer Hoffman approached "the female" (appellant) while Officer Wildey spoke with "two males." The other members of the group walked away.
Officer Hoffman stopped approximately two or three feet behind appellant and, speaking in a normal tone, without placing her hand on her gun and without making any threatening gesture, asked, "Do you have any guns, drugs, or narcotics on you?" Appellant turned around and said, "I'm not doing anything. I'm counting my money." When Officer Hoffman repeated her question, appellant reached into her purse and handed the officer a brown pill bottle. Officer Hoffman opened the bottle, and inside it she found three small ziplock bags. The substance in the bags field-tested positive for cocaine.*fn1
Appellant did not testify or present any evidence. The court found that there was "no Fourth Amendment violation here [in] any respect."
Appellant contends that she was illegally seized by the officers and that the officer's examination of the pill bottle was an illegal search. In reviewing the denial of a motion to suppress, we defer to the trial court's findings of evidentiary fact, but the court's legal conclusions are subject to de novo review. See Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007). We consider both of appellant's arguments and find no error.
A Fourth Amendment seizure occurs when an individual's liberty is restrained by physical force or a show of authority. E.g., Kelly v. United States, 580 A.2d 1282, 1285 (D.C. 1990) (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). The focus of the "seizure" inquiry is whether, under all the circumstances, "a reasonable person would have believed that [she] was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). "Factors which 'might indicate a seizure' would include, for example, '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 compelled.' " Kelly, 580 A.2d at 1286 (citing Mendenhall, 446 U.S. at 554).
The trial court did not err in concluding that no seizure occurred in this case. Officer Hoffman stood two or three feet away from appellant, and Officer Wildey was farther away and did not interact with appellant in any way. See Kelly, 580 A.2d at 1286 (second officer, who stood four feet away from defendant and did not interact with him, was not a "threatening presence"). Although the officers were wearing police clothing, they did not make any motions toward their holstered guns, touch appellant, give any orders, or otherwise act threatening or make any "show of authority" which might have suggested that appellant was not free to leave. See Ware v. United States, 672 A.2d 557, 561 n.8 (D.C. 1996) (officer's approach in uniform and on a police motorcycle, by itself, does not constitute a seizure). None of the factors which "might indicate a seizure" listed in Mendenhall, 446 U.S. at 554, are present in this case. In addition, other members of appellant's group walked away unimpeded, a fact that further indicates the encounter was not a seizure. See California v. Hodari D., 499 U.S. 621, 626 (1991) (no seizure unless suspect yields to show of authority). Officer Hoffman asked appellant a question in a "normal tone" of voice and repeated her question only after appellant gave a non-responsive answer. See Casey v. ...