Carr v. US

• Citation: 758 A.2d 944
• Decision Date: 31 August 2000
• Docket Number: No. 98-CF-38.,98-CF-38.
• Parties: Celot CARR, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

758 A.2d 944

Celot CARR, Appellant, v. UNITED STATES, Appellee.

No. 98-CF-38.

District of Columbia Court of Appeals.

Argued April 5, 2000.

Decided August 31, 2000.

Donald W. Whitehead, Jr., Ellicott City, MD, appointed by this court, for appellant.

Yvonne O. Lee, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Assistant United States Attorney, were on the brief, for appellee.

Before GLICKMAN, Associate Judge, and KERN and MACK, Senior Judges.

MACK, Senior Judge:

In this court, appellant Carr challenges his conviction on one count of possession with intent to distribute cocaine in a drug free zone (in violation of D.C.Code §§ 33-541(a)(1) and -547.1), and the denial of his motions to suppress evidence because of constitutional violations. Appellant argues here that the Fourth Amendment was violated when a police officer physically grabbed, and then questioned him, without having a reasonable, articulable suspicion that he was committing a crime. We agree with this contention and, therefore, reverse.

I.

Prior to trial, appellant moved to suppress, alleging that both his stop and his arrest were unjustified. After a hearing the motions court found the following facts.¹

On the evening of May 30, 1997, Officer Joseph Cabillo of the Metropolitan Police Department was on patrol in a high crime area with three other officers in an unmarked police car. The officers were in plain clothes, and wore bullet proof vests emblazoned with the word "Police." Following behind Officer Cabillo's vehicle was another unmarked police car with another four officers. Officer Cabillo spotted a car parked at an angle in a space in the parking lot at 2638 Birney Place, S.E.² Appellant stood outside of the car, on the driver's side, talking with the three occupants of the car. G.B., a juvenile, stood on the passenger side of the car, smoking what appeared to be a marijuana cigarette. The police noticed a very strong odor of burnt marijuana in the air, presumably attributable to G.B.'s cigarette. There did not appear to be any interaction between appellant and G.B. Appellant's behavior was innocuous, and the police had no grounds to believe that he was engaged in criminal activity. Moreover, the eight policemen, on regular patrol, had no reasonable basis to fear for their own safety. Nonetheless, upon their arrival, the police specifically intended not only to arrest G.B., but also to "pat down" everyone within the parking lot, including appellant.

As the police neared, appellant looked in their direction and G.B. flicked his cigarette to the ground. As Officer Cabillo alighted from his car, appellant put his hands in his pocket, and leaned into the window of the car, as if in conversation with the occupants. Appellant did not place any object into his pocket, nor was there any suspicious bulge in the pocket. Nothing about appellant's action could be considered furtive or threatening.

Officer Cabillo approached appellant, pulled him away from the door frame of the car, and asked him if he "had anything illegal on him." At this point, appellant appeared nervous and he did not reply. When Officer Cabillo reiterated his query, appellant then responded, "yes, in my right pocket." After this admission, Cabillo searched appellant's pockets and discovered fifty rocks of crack cocaine in the right pocket and a cellular phone and pager in the left pocket.

The motions court, considering it "a very close question," and indicating that it welcomed review, denied appellant's motion to suppress evidence, concluding: (1) based on Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the stop was justified because it was reasonable for the police to order appellant away from the door frame "the way it would be reasonable for an officer to order everybody out of the car to get him away from the scene;" (2) as a Terry³ stop, pursuant to Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the police questioning did not constitute custody for Miranda⁴ purposes; and (3) once appellant indicated that he had contraband, the police had probable cause to search. We review these legal conclusions de novo. See Hawkins v. United States, 663 A.2d 1221, 1225 (D.C. 1995).

II.

The police lacked reasonable articulable suspicion to stop appellant at all. For that reason, we need not reach the Miranda issues generated by these facts.⁵

A.

The Fourth Amendment provides in part, "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." "Unquestionably [appellant] was entitled to the protection of the Fourth Amendment as he" stood next to a car in the District of Columbia. Terry, supra note 3, 392 U.S. at 9, 88 S.Ct. 1868. We first consider when the Fourth Amendment protections were implicated.

"It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Id. at 16, 88 S.Ct. 1868. "The crucial test for determining whether a person has been seized is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Hawkins, 663 A.2d at 1225 (quoting In re J.M., 619 A.2d 497, 499-500 (D.C.1992) (en banc) (citations and quotations omitted)). Application of physical force is a seizure. See California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Thus, when a member of a large "jump-out" team pulled appellant from the door frame of the car into which he was leaning, the police "seized" appellant for Fourth Amendment purposes and appellant reasonably understood that he was not free to ignore the police presence.

"[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, supra note 3, 392 U.S. at 21, 88 S.Ct. 1868. This court must consider if the "facts available to the officer at the moment of the seizure . . . warrant a man of reasonable caution in the belief that the action taken was appropriate." Id. at 22, 88 S.Ct. 1868 (quotations omitted). The Supreme Court has stressed the importance of "individualized suspicion" as an essential prerequisite to a valid search or seizure under the Fourth Amendment (other than in exceptional circumstances not present here, e.g., administrative inspections of closely regulated businesses and fixed Border Patrol or sobriety check-points). See Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997).

In this case, we are faced with an officer who saw appellant standing next to a car, on the other side of which was G.B. smoking marijuana. Nothing connected the two. Nothing about G.B.'s nearby behavior provided reasonable suspicion as to appellant. The officer's suspicion was generated by appellant looking at the police, placing his hand in his pocket and then sticking his head in the open window of the car as if he were having a conversation with the occupants. The trial court expressed doubt as to whether this amounted to reasonable suspicion, but never reached the question, analogizing to Mimms.⁶ We hold that this innocent behavior in no way provided reasonable suspicion that justified the seizure.⁷

B.

We decline the government's invitation to find an exception to the reasonable suspicion requirement, based primarily on traffic stop cases and their rationale, that would allow police officers to "freeze the situation" and have court approval to act as they did in this instance.⁸ Mimms, and its progeny, Berkemer, and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), are all cases involving legitimate traffic stops. In those cases, the reasonable articulable suspicion that justifies the initial stop is the traffic violation. See Mimms, 434 U.S. at 109, 98 S.Ct. 330; Berkemer, 468 U.S. at 422, 104 S.Ct. 3138; and Wilson, 519 U.S. at 410, 117 S.Ct. 882. There is no automatic right for police to order occupants out of a car. Mimms, 434 U.S. at 111 n. 6, 98 S.Ct. 330 ("[W]e do not hold today that whenever an officer has occasion to speak with the driver of a vehicle, he may also order the driver out of the car. We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.") (internal quotations omitted). Thus, analogizing to Mimms ignores the fact that here the initial stop was unjustified, and focuses solely on the reasonableness of what happened in the encounter without considering why there was an encounter.

The government cites us to Welshman v. Commonwealth, 28 Va.App. 20, 32, 502 S.E.2d 122, 128 (1998) (en banc), but that case is distinguishable. There, police, who had probable cause to arrest two individuals for a drug transaction, and who were outnumbered in a high crime open-air drug market, ordered everyone in the vicinity to lie prone with their arms out, while the police arrested the two targeted individuals. When Welshman kept his arms at his torso, the police feared that he was reaching for a weapon, and patted him down, finding narcotics. Welshman "held that police officers with probable cause to arrest a suspected drug dealer did not violate the Fourth Amendment when they ordered bystanders to lie on the ground and frisked one bystander whose furtive actions caused an officer to believe he was armed and dangerous." Reittinger v. Commonwealth, 29 Va.App. 724, 732-33, 514 S.E.2d 775, 779 (1999). There, the justification for the seizure was a safety concern...