Brown v. United States, 86-223.

• Decision Date: 05 August 1988
• Docket Number: No. 86-223.,86-223.
• Citation: 546 A.2d 390
• Parties: William E. BROWN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

546 A.2d 390

William E. BROWN, Appellant, v. UNITED STATES, Appellee.

No. 86-223.

District of Columbia Court of Appeals.

Argued October 20, 1987.

Decided August 5, 1988.

Charles E. Chisholm, appointed by the court, for appellant.

Clifford T. Keenan, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, and Michael W. Farrell, Helen M. Bollwerk, and Roscoe C. Howard, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MACK, BELSON, and STEADMAN, Associate Judges.

BELSON, Associate Judge:

A jury convicted William Brown of carrying a pistol without a license, a violation of D.C.Code § 22-3204 (1981). Brown raises two principal issues on appeal. First, he argues that the trial court erred in denying his motion to suppress certain physical evidence obtained during a purportedly illegal Terry stop. Second, he argues that the trial court erred in denying his motion for judgment of acquittal on the charge of carrying a pistol without a license. We affirm.

At about 1:00 a.m. on February 27, 1985, Officer Gallahan of the Metropolitan Police Casual Clothes Squad, assigned to work in the Georgetown area due to a number of street robberies, observed appellant and his two codefendants, Lucas and Bolling, walking in a "hurried manner" and dressed in jogging outfits. The three men had come from a block that was not well lit and contained only condominiums and a nightclub the officer knew to have a dress code. Gallahan called for assistance as he watched the three men, who got into Lucas' small Honda Prelude automobile and began to leave the area at a speed faster than the surrounding traffic and in excess of the speed limit. Officer Bender, another member of the casual clothes unit, also observed the defendants walk hurriedly to an automobile and then drive off in a hurried manner, faster than the surrounding traffic.

Lucas was driving, appellant was in the front passenger seat, and Bolling was in the back seat. Gallahan, who followed in his unmarked car, observed as Bolling appeared to lie down in the back seat, and periodically peer up over his shoulder to look out the back window. Gallahan, an experienced officer, considered such behavior consistent with actions typically taken by individuals seeking to secrete themselves while leaving a crime scene.

A marked police car responded to Gallahan's call for assistance in stopping the Honda and, as the marked police car attempted to pull the Honda over, Gallahan, who had pulled up directly alongside defendants' vehicle, observed Bolling sit up slightly, turn quickly forward, and bend down as if he were placing something on the floorboard. Bolling testified that as the car was being stopped he slid the gun under the driver's seat. Bolling estimated the amount of time between his sliding the gun under the seat and the stopping of the car by police to be "no less than a minute, if it was that much." Once the Honda was stopped and the defendants had gotten out of the vehicle, Gallahan observed a .25 caliber automatic handgun "lying in the rear of the vehicle, just to the left of what is a small hump . . . just behind and between the two front seats, which are bucket seats." The gun contained six live rounds of ammunition. Police also found a BB gun and pellet gun in the car's trunk.

At trial, the jury heard conflicting testimony as to events leading up to the presence of appellant, Bolling, and Lucas in Georgetown. Bolling, testifying as a government witness, asserted that on the evening in question he and the other two men met in Maryland. In due course, Bolling left the other two, went to his house to pick up a pistol, then rejoined appellant and Lucas, and showed them the pistol. The three men soon departed, driving around the Sheriff Road and Suitland areas of Maryland for some time before eventually heading into the District of Columbia. Upon arriving in the Georgetown area, they walked around together through dimly lit streets. As they walked, Bolling had the gun on his hip, and both Lucas and appellant were aware of that fact.

Lucas and appellant told a markedly different story. They testified that they set out alone from Maryland for the District of Columbia, and only after arriving in D.C. did they meet Bolling. Although the individual accounts of appellant and Lucas differ as to exactly what the three men did and where they went before they entered the Honda in Georgetown, both testified that at no time did they know that Bolling was carrying a pistol.

A jury convicted appellant of carrying a pistol without a license.¹ This appeal followed.

We first address appellant's argument that the trial court erred in denying his motion to suppress certain evidence taken from the automobile during what appellant contends was an illegal Terry stop. We disagree.

In denying appellant's motion to suppress, the trial court described the totality of what police observed as follows:

You have a police officer in Georgetown that sees two individuals who in his opinion and based upon his experience, are not properly attired to frequent the establishment in the particular block that the police officer is in. He sees the individuals hurriedly walk down the street and get into a car and drive off at a high rate of speed which exceeds the speed limit.

Being the prudent police officer that he is, he follows the vehicle and sees one in the back seat disappear and peek over the rear and out the rear window. It's pretty suspicious activity, isn't it, counsel?

* * * * * *

And you also have to add the element that the police officer has a personal experience with these types of situations before. He's encountered the situation before.

Based on the foregoing, the trial court denied appellant's motion to suppress.

It is well established that, "in evaluating behavior for purposes of assessing whether there existed a basis for a stop or seizure, [the court] must look to the totality of what the police observed." United States v. Bennett, 514 A.2d 414, 416 (D.C. 1986); see also Smith v. United States, 295 A.2d 64, 66 & n. 7 (D.C. 1972), cert. denied, 411 U.S. 951, 93 S.Ct. 1932, 36 L.Ed.2d 414 (1973). In this context, a "police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" an investigatory stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Lawrence v. United States, 509 A.2d 614, 615 (D.C. 1986). "Even if each specific action of appellant] was of itself susceptible of an explanation consistent with innocence of [criminal conduct], the observing police officer may see a combination of facts that make out an articulable suspicion." Bennett, supra, 514 A.2d at 416. In such a circumstance, "[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612 (1971). Rather, where a given combination of facts is present and results in an articulable suspicion, it is reasonable for police officers to initiate an investigatory stop.

In the instant case, the specific and articulable facts observed by the police officers include: (1) a high incidence of street robberies in the neighborhood; (2) the late hour in the evening; (3) appellant and his companions came from a dimly lit street; (4) they were walking in a hurried manner; (5) their clothing was out of character for the only public establishment in the area they were coming from; (6) they entered a car and drove off at an excessive speed; and (7) as the car drove away, one person lay or crouched in the back seat, peeking up and looking back several times. Viewing the facts in the instant case objectively as the officer knew them at the time, Coleman v. United States, 337 A.2d 767, 769 (D.C. 1975), we are persuaded that the combination of facts justified the police officer's suspicion and accompanying investigatory stop.

Appellant also assigns error to the trial court's denial of his motion for judgment of acquittal on the carrying a pistol without a license count. D.C.Code § 22-3204 (1981). In order to prevail on a motion for judgment of acquittal, "appellants must show that `there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.'" Easley v. United States, 482 A.2d 779, 781 (D.C. 1984) (quoting Curley v. United States, 81 U.S.App.D.C. 389, 392-93, 160 F.2d 229, 232-33, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947)). A motion for judgment of acquittal should not be granted where the evidence presented at trial is such that a reasonable person could find guilt beyond a reasonable doubt. See United States v. Hubbard, 429 A.2d 1334, 1337 (D.C.), cert. denied, 454 U.S. 857, 102 S.Ct. 308, 70 L.Ed.2d 153 (1981). The evidence must be viewed in the light most favorable to the government, Calhoun v United States, 369 A.2d 605, 607 (D.C. 1977), with due deference to the right of the jury to consider credibility, weigh the evidence, and draw reasonable inferences of fact. Hubbard, supra, 429 A.2d at 1337-38; Singletary v. United States, 383 A.2d 1064, 1069 n. 4 (D.C. 1978). On appeal, this court must review the evidence according to these same standards. Morrison v. United States, 417 A.2d 409, 412 (D.C. 1980). Accordingly, if "there [is] no evidence upon which a jury could base its conviction, then the conviction should be reversed." Hamilton v. United States, 395 A.2d 24, 28 (D.C. 1978); Patterson v. United States, 301 A.2d 67, 70 (D.C. 1973).

To support a conviction for carrying a pistol without a license, D.C.Code § 22-3204 (1981), the government bears the burden of proving possession, either actual or constructive. It is undisputed that appellant was not...