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In re T.L.

June 3, 2010

IN RE T.L., APPELLANT.


Appeal from the Superior Court of the District of Columbia Family Court (No. DEL-2728-05) (Hon. Juliet J. McKenna, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued April 9, 2009

Before REID, GLICKMAN, and FISHER, Associate Judges.

T.L. appeals his juvenile delinquency adjudication for disorderly conduct and for possessing cocaine with the intent to distribute it. His claims require us to construe the term "breach of the peace" in the District's disorderly conduct statute, D.C. Code § 22-1321 (2001). Sixteen-year-old T.L. was arrested for loudly yelling in protest and calling for his mother, on the street in a residential neighborhood in the middle of the night, after a police officer confiscated his money without permission or right. We hold that T.L.'s loud words, though they may have annoyed or disturbed nearby residents, did not threaten a breach of the peace or manifest an intent on T.L.'s part to provoke one. The police therefore lacked probable cause to arrest T.L. for disorderly conduct, and the trial court should have granted his motion to suppress the drugs discovered on his person in a search incident to his arrest. And because the evidence at trial did not suffice to prove disorderly conduct, the court should have acquitted him of that charge. Accordingly, we reverse T.L.'s juvenile delinquency adjudication on both counts.

I.

On the night of December 22, 2005, at about 11:50 p.m., Officer Robert Elliott was on uniform patrol in the vicinity of the Sursum Corda housing cooperative, a densely populated residential area known to him for high drug activity and gun violence. While driving down the 1100 block of 1st Place, N.W., Elliott noticed a group of men standing on the corner. T.L. was in that group. Elliott recognized several of the other men there and knew they had prior drug-trafficking arrests. The location, Elliott testified in the hearing below, was "notorious" for drive-by shootings and drug dealing.

As the officer passed by, T.L. saw him and called out, "Hey Elliott, what's up?" Elliott stopped, got out of his car, and approached T.L. At that time, the other people on the corner walked away, leaving the officer alone with T.L., who did not attempt to leave. Elliott asked T.L. whether he lived there, and T.L. said he did not. Elliott then asked him, "You got any drugs or guns on [you]?" T.L. replied, "Yo, Officer Elliott, you know me. I ain't got no drugs or guns. . . . Go ahead and search me." According to Elliott, T.L. was friendly and cooperative.*fn1

Accepting T.L.'s invitation, Elliott started to search him. Almost immediately, the officer removed two large "wads" of cash from T.L.'s coat and pants pockets. Elliott told T.L. he was seizing the money because "it was in a high-drug trafficking area and it was a large amount of currency to have on your person."*fn2 Elliott said he would place the cash "on the book" at the police station and T.L. "possibly" could get it back if he could produce a pay stub.

At this point, Elliott testified, T.L.'s "demeanor completely changed." He began yelling, "They're taking my money. I work at McDonald's. I got that money working at McDonald's," and loudly calling for his mother to come help him. In response to the clamor, some ten to fifteen people left their town houses and approached T.L. and Elliott to see what was happening.

T.L. did not call upon the onlookers to intervene, and none of them tried to do so. Elliott considered it "very dangerous" to attract a crowd, however, "especially in Sursum Corda." He explained in his testimony that suspects sometimes incite crowds to divert and overwhelm the police in order to escape. Elliott stopped searching T.L. and told him three or four times to "quit yelling" and "relax" because it was late at night and people were trying to sleep. A second officer in the vicinity, Officer Johnson, heard the noise, stopped what he was doing, and ran over to assist Elliott.

Ignoring Elliott's entreaties to be quiet, T.L. continued yelling that the money was his, he worked at McDonald's, and he wanted his mother. Elliott then placed T.L. under arrest for disorderly conduct. At the hearing below, Elliott explained that he based the arrest on T.L.'s non-compliance with his requests to be quiet, the time of night, and the number of people who were attracted by the commotion. In a search of T.L.'s person following his arrest, Officer Johnson recovered 24 zip-lock bags of crack cocaine hidden in T.L.'s pants.

T.L. was charged by petition with disorderly conduct, in violation of D.C. Code § 22-1321 (3), and possession of cocaine with intent to distribute, in violation of D.C. Code § 48-904.01 (a). Prior to trial, he moved to suppress the cocaine on several grounds, among them that the police lacked probable cause to arrest him.*fn3 The trial court denied the motion, reasoning that T.L.'s protestations furnished probable cause to arrest him for disorderly conduct because he "just continued to scream and shout and began drawing a crowd of people to come out from the neighborhood."

At the conclusion of his trial, T.L. moved for a judgment of acquittal on the disorderly conduct charge on the ground that he did not incite the crowd of onlookers or threaten to occasion a breach of the peace. The prosecutor countered that T.L. violated subsection (3) of D.C. Code ยง 22-1321 by making a loud disturbance during the nighttime hours that drew people out of their homes. Agreeing with the government, the trial court found T.L. guilty on both counts of the petition. With respect to the disorderly conduct charge, the court said it found the evidence sufficient based on Officer Elliott's testimony "that people were coming out of their homes and congregating around," and on his ...


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