561 F.2d 875 (D.C. Cir. 1977), 75-1715, United States v. Montgomery

Docket Nº:75-1715.
Citation:561 F.2d 875
Party Name:UNITED STATES of America v. Kevin L. MONTGOMERY, Appellant.
Case Date:May 26, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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561 F.2d 875 (D.C. Cir. 1977)

UNITED STATES of America

v.

Kevin L. MONTGOMERY, Appellant.

No. 75-1715.

United States Court of Appeals, District of Columbia Circuit

May 26, 1977

Argued Nov. 19, 1975.

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John D. Ferrell, Washington, D.C. (appointed by this court), for appellant.

Mary H. Weiss, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Stuart Gerson, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.

Before WRIGHT, LEVENTHAL and WILKEY, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

Dissenting opinion by WILKEY, Circuit Judge.

LEVENTHAL, Circuit Judge:

Defendant Montgomery claims on his appeal that the "routine traffic stop" that resulted in the discovery of an unregistered firearm in the car he was driving was a "seizure" lacking the justification required by the Fourth Amendment. Because we find that the stop was not based on an articulable suspicion of criminal behavior as required by the Supreme Court's decisions, nor sufficiently justified as part of a systematically random program of traffic stops, we order the evidence suppressed and reverse defendant's conviction for possession of an unregistered firearm.

I. FACTS

Metropolitan Police Officers Brown and Exum first observed defendant Montgomery driving a 1963 Ford in the vicinity of 11th and K Streets, S.E., between 5:30 and 6:30 p. m. on Friday, January 24, 1975. The area is mostly residential with several corner

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grocery stores. A few minutes after the initial sighting, the officers again saw defendant driving in the same general area. They followed him around the block in their marked police car and decided to stop him.

The officers acknowledged at trial that defendant was traveling at a moderate speed, not violating any traffic laws. The officers had already checked out the license plates the car he was driving had not been reported stolen and they did not have any adverse prior information about either the driver or vehicle before making the stop.

Officer Exum approached the defendant and requested his driver's permit and the registration of his vehicle. When defendant stated that he did not have the permit and registration with him, the officer relayed his name and date of birth through their police radio to obtain computer information from the WALES system (Wide Area Law Enforcement Service). This permitted verification of defendant's claim that he had a valid permit. Five minutes later, the officers were told that there was an outstanding traffic warrant on defendant, and they proceeded to arrest him. During a search pursuant to the arrest, the officers recovered a .38 caliber bullet from appellant's pants' pocket. A subsequent search of the vehicle uncovered a .38 caliber revolver and an unregistered sawed-off shot gun. The trial judge denied a motion to suppress this tangible evidence. Defendant was convicted of possession of an unregistered firearm, and possession of a firearm not identified by serial number.

Both officers described the stop of defendant's car as a routine traffic stop to check the possession and validity of the driver's permit and automobile registration. However, both officers also put it that the defendant had aroused their suspicions. Officer Brown testified: "He aroused our suspicion, sir, in the manner in which he was encircling the area." And later: "it seemed unusual that he would be circling like that. There was really no business places around and . . ." Officer Exum testified: "I observed him appeared to be watching us in the rear view mirror and looking around" Q. And what did you think at that time? A. Well, you know, wondering why, you know, why . . . (pausing) he was riding around the area." (Tr. 62-63)

If the officer's initial stop of the car was proper, so were the subsequent arrest and searches. So the trial judge held, and that finding is supported by the record. If, however, the initial stop was a violation of defendant's constitutional right, then all the evidence discovered as a result of the stop must be suppressed.

After oral argument, we asked government counsel to provide us with copies of any regulations or instructions bearing on the subject of these traffic stops, and any records made for police department use. In addition we held this case in abeyance pending the Supreme Court's decision in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Subsequently, memoranda were received from a defendant in another case, given leave to file amicus curiae, and the government.

II. STOP FOR SUSPICION OF WRONGDOING

The stop of a moving vehicle even if the period of detention is brief involves a "seizure" within the meaning of the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 878-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); cf. Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such a seizure depends on a balance between the public interest and the individual's right to privacy free from arbitrary interference by law officers. Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. 2574; Terry, 392 U.S. at 20-21, 88 S.Ct. 1868.

In Brignoni-Ponce the Supreme Court held impermissible under the Fourth Amendment stops for questioning by the Border Patrol which were not based on a reasonable suspicion. Although recognizing that a stop was a lesser intrusion than a search, the Court was unwilling to leave the

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use of such stops to the unlimited discretion of the Border Patrol. 422 U.S. at 882, 95 S.Ct. 2574. The principle established by Brignoni-Ponce, on analogy to the "stop and frisk" decision in Terry, 392 U.S. at 21, 88 S.Ct. 1868, is that a vehicle may be stopped for questioning of the occupants when an officer has specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant suspicion of criminal conduct on the part of the occupants. United States v. Torres-Urena, 513 F.2d 540, 542 (9th Cir. 1975).

In reviewing an officer's grounds for suspicion, courts are to use an objective standard: "would the facts available to the officer at the moment of the seizure or the search 'warrant a (person) of reasonable caution in the belief' that the action taken was appropriate?" Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Torres-Urena, supra, at 542. Any lesser standard, the Supreme Court has observed,

would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result which this Court has consistently refused to sanction. (citations omitted). "If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers and effects,' only in the discretion of the police."

Terry, 392 U.S. at 22, 88 S.Ct. at 1880, quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

The stop in this case appears to have been made in "good faith." But in Terry and Brignoni-Ponce the Supreme Court made it clear that good faith, accompanied only by inarticulate hunch, is not enough for even the temporary "seizure" of a stop. And that is all that appears on this record. The officers saw defendant some four or five minutes after they originally noticed him, concluded that he had driven around the block, pulled their marked police car behind him and noted that defendant watched them in his rear view mirror and looked around. This may have been reason for an officer to become suspicious enough to keep an eye on defendant. But it can hardly be deemed to be an objective indicator of reasonable suspicion of criminal conduct. There are perfectly legitimate reasons for circling a block, perhaps looking for an address in an unfamiliar neighborhood, or for a parking place close to the address sought, or waiting to meet a friend when parking at or near the location is unavailable. We are no further influenced by the assertion that " defendant appeared to be watching us in the rear view mirror and looking around." To consider mirror glance as enough for a seizure, however temporary, is to accept the adequacy of "inarticulate hunches." Drivers simply do take notice when the police are nearby, and a person circling a block for whatever reason would take notice of a police car following him.

The inarticulate hunch, the awareness of something unusual, is reason enough for officers to look sharp. Their knowledge and experience identify many incidents in the course of a day that an untrained eye might pass without any suspicion whatever. But awareness of the unusual, and a proper resolve to keep a sharp eye, is not the same as an articulated suspicion of criminal conduct. Defendant's acts, as reported, were too innocuous to warrant the intrusion of a temporary seizure for questioning. [*]

The general principle that the police may stop for questioning when they have a founded suspicion of criminal behavior includes as a necessary corollary the rule that the police may stop and question the driver of a vehicle when an infraction of the motor vehicle code is seen or suspected. It may be enough that the license plates of the car are partially obscured, or are clean when the rest of the car is dusty, or that some defect in the car is visible, or that the

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car is being driven in an erratic manner. Even a relatively minor offense that would not of itself lead to an arrest can provide a basis for a stop for questioning and inspection of the driver's permit and registration. 1...

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