BROWN v. U.S.
Decision Date | 08 May 1991 |
Docket Number | No. 86-1276,86-1276 |
Citation | 590 A.2d 1008 |
Parties | Marvin BROWN, Appellant, v. UNITED STATES, Appellee. |
Court | D.C. Court of Appeals |
Appeal from the Superior Court, Michael L. Rankin, J.
THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.
John C. Krollman, appointed by this court, for appellant.
Leslie Blackmon, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., were on the brief, for appellee.
Before FERREN and SCHWELB, Associate Judges, and GALLAGHER, Senior Judge.
On August 26, 1986, following the denial of his motion to suppress tangible evidence, appellant Marvin Brown entered a conditional plea of guilty to unlawful possession of PCP and of marijuana, in violation of D.C.Code § 33-541(d) (1988). He was placed on probation without judgment on each count for a period of six months, pursuant to the provisions of § 33-541(e). The judge ordered that the two probationary terms run concurrently. On appeal, Brown contends that the trial judge should have granted his motion to suppress because police lacked probable cause to arrest him or reasonable suspicion to stop him. We agree and reverse.
The government's evidence at the suppression hearing consisted exclusively of the testimony of Officer Wayne B. Walker of the Metropolitan Police Department. Officer Walker introduced himself by stating that he had been a police officer for two years and had made or participated in approximately seventy "drug arrests." He identified Brown and turned to the events that led to Brown's arrest.
On the evening of June 27, 1986, Officer Walker was alone in a marked police cruiser, patrolling his assigned area of northwest Washington. He was wearing his police uniform. Shortly after midnight, he monitored a police "radio run" for an individual who was said to be selling drugs at the corner of 17th and Euclid Streets, N.W. The radio run was based on an anonymous telephone tip to the police. According to Officer Walker, the seller was described in the lookout as a black male, approximately 5'6" in height, wearing a white shirt with dark writing on the front and blue jeans. The writing on the shirt was not further identified, nor was there any information provided in relation to the seller's age, build, facial hair, features, or other identifying detail.
Officer Walker testified that he was already in the immediate vicinity when heheard the report over the police radio. He said that at that time, he observed approximately fifty people in the area. He quickly ruled out as suspects all but two, however, because only two potentially matched the broadcast description.1 Having so narrowed the field, the officer requested over the police radio that the description be rebroadcast. After hearing it for a second time, he eliminated one of the two remaining potential suspects because that individual was about 6'2" in height and was wearing a white shirt and white shorts.2 There was only one person left who, according to Officer Walker, matched the description which had been broadcast over the radio. That man was Marvin Brown.
Officer Walker testified that he walked up to Brown and called out "sir!" Brown turned and began to walk away at a crisp pace. The officer called out to Brown twice more, and finally established eye contact with him. Brown still did not respond. Officer Walker then stopped Brown, told him that he fit the description of somebody who was alleged to be selling drugs, and requested him to produce some identification. Brown stated that he did not have any.
After having made the stop, Officer Walker noticed an object in Brown's right pocket. He stated that the object "looked to be about four inches [long]," and that it "just extruded from his pocket a little bit." He asked Brown twice what the object was, but Brown did not reply. Officer Walker then conducted a patdown, holding on to the extruding object over Brown's clothing. He testified that he asked Brown for a third time what the object was. When Brown again failed to respond, the officer seized it from Brown's pocket. It turned out to be a film canister.
Officer Walker testified that in fifty or sixty of the seventy drug arrests in which he had participated,3 drugs had been discovered in a film canister. He stated that at one point, apparently while the canister was still in Brown's pocket, he had thought it was a knife. Elaborating, he explained that in the past he had discovered a number of knives in lipstick containers and that, since he was alone, he was concerned about his safety. Officer Walker testified that he then opened the film canister, explaining that he did so because he did not know what was in it. From the canister, the officer extracted four tin-foil packets which later proved to contain PCP and marijuana. He placed Brown under arrest.
One of the principal issues which arose during the suppression hearing was whether, and to what extent, Brown matched the broadcast description of the seller. Officer Walker was questioned on the subject by both counsel, but the results were inconclusive. The officer testified that, so far as he knew, there was no photograph taken of Brown in connection with his arrest. He said he could not recall what writing or design, if any, appeared on Brown's shirt. He had written on his police report that Brown was wearing maroon pants; he explained the discrepancy from the blue jeans reported in the lookout by indicating that the pants might have looked blue from a distance. Officer Walker could not initially recall whether the trousers which Brown was wearing were long pants or shorts. He testified on redirect examination, however, that if they had been shorts, he would have so noted in his report.
Brown also testified briefly at the suppression hearing. He stated that he was 5'8" to 5'9" tall. He testified that he was wearing a tan shirt which he described as "just like an Ocean Pacific shirt"4 and thatthere was nothing at all written on it.5 According to Brown's account, he did not match the broadcast description at all — his height, shirt, and shorts all differed from the alleged seller's, and no other information had been provided in the tip.
The trial judge explicitly disbelieved Officer Walker's testimony that he suspected that Brown had a knife.6 The judge was also troubled by the officer's inability to recollect what Brown was wearing on the night in question. Observing that in determining whether a citizen's tip is trustworthy, the court "has to look how detailed the information is . . . that the tip contains," the judge expressed concern that the description of the seller was "somewhat lacking in specificity." Nevertheless, he denied Brown's motion to suppress because
the officer's testimony that he observed two people who seemed to fit the description, but singled out this defendant due to his height more closely approximating the radio run than any other possible suspect, as well as his individual recollection that the other suspect wore white shorts, is a reason, in my mind, to credit his testimony, and find that he, in fact, arrested Marvin Brown with probable cause . . . [t]o believe that he was the person described in the radio run.
The judge ruled against the government on its alternative theory, namely, that Officer Walker's actions could be viewed as a proper investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that articulable suspicion ripened into probable cause as events subsequently unfolded. The judge based this ruling on his belief that
articulable suspicion has to come from the officer's observations. And this officer said that he was there in the area, but had paid no attention at all to this man up until the time he got the radio run. And after that, all he saw was that the man somewhat fit the description, and walked away from him when he called him.
The somewhat paradoxical result of this analysis was that the judge found probable cause to arrest Brown but no articulable suspicion to stop him.
[t]he rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would undulyhamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.
The requirement of probable cause has roots that are deep in our history, for arrest on mere suspicion collides violently with the basic human right of liberty. Henry v. United States, 361 U.S. 98, 100, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959). Thirteen years before the Declaration of Independence, Lord Chief Justice Pratt termed arrests on suspicion "totally subversive of the liberty of the subject." Wilkes v. Wood, 19 How.St. Trials 1153, 1167, 98 Eng.Rep. 489, ___ (K.B. 1763). The "forefathers" who wrote our Bill of Rights agreed; searches and seizures without probable cause "are the embryo of...
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