Docker v. U. S., 11040.

• Decision Date: 26 April 1978
• Docket Number: No. 11040.,11040.
• Citation: 385 A.2d 767
• Parties: Aubrey A. DOCKERY, a/k/a Aubrey A. Brown, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

385 A.2d 767

Aubrey A. DOCKERY, a/k/a Aubrey A. Brown, Appellant, v. UNITED STATES, Appellee.

No. 11040.

District of Columbia Court of Appeals.

Argued May 17, 1977.

Decided April 26, 1978.

Warren C. Nighswander, Public Defender Service, Washington, D.C., for appellant. Frederick H. Weisberg, Public Defender Service, Washington, D.C., at the time the brief was filed, also entered an appearance.

Sallie H. Helm, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry, and E. Lawrence Barcella, Jr., Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee. Steven D. Gordon, Asst. U. S. Atty., Washington, D.C., also entered an appearance.

Before KERN, NEBEKER and MACK, Associate Judges.

PER CURIAM:

By a three-count indictment filed on September 17, 1975, appellant was charged with first-degree murder while armed (D.C. Code 1973, §§ 22-2401, -3202), first-degree murder, (id. § 2401), and possession of a sawed-off shotgun, a prohibited weapon (id. § 3214(a)). Appellant moved to suppress evidence and to sever the count charging unlawful possession of the shotgun. These motions were heard pretrial and denied by the court. Trial began on April 22, 1976, and ended on April 27, when the jury found appellant guilty of the lesser-included offense of second-degree murder while armed, and the offense of unlawful possession of a prohibited weapon. On June 14, 1976, appellant was sentenced to a term of 15 to 45 years for second-degree murder while armed, and to a term of one year, to run consecutively, for possession of the prohibited weapon. Appellant challenges on appeal (1) the denial of his motion to suppress, and (2) the denial of his motion to sever the third count of the indictment involving the illegal possession of the shotgun. We affirm.

The government's evidence established the following. During the evening hours of Friday, September 5, 1975, between 8:30 and 9:30 p. m., Detectives Michael Gallahan and Thomas Selby, both Metropolitan Police Department plainclothes detectives assigned to the Second District, were on foot patrol in the Georgetown area of Northwest Washington. They were assigned to give particular attention to street robberies and larcenies from automobiles occurring in the lower end of the Georgetown area. They were standing on the northeast corner of 29th and O Streets when they observed two individuals dressed in jeans, one of whom was wearing a brown scarf and carrying a straw bag. The officers followed the individuals for a short distance until they moved out of sight; the officers then resumed their general patrol of the area. At approximately 11:30 that evening, the same two officers were walking along a foot path near the C & O Canal when they observed a group of between seven and ten white individuals standing along the foot bridge that crosses the canal at 34th Street. The officers observed the individuals passing around what appeared to be a marijuana cigarette, and could smell the odor of marijuana smoke.¹ A young black male joined the whites, but as the officers approached the group began to disperse. A second black individual joined the first, and the two walked off the foot bridge up 34th Street. As they passed, Officer Gallahan told his partner that they were the same two individuals the officers had seen earlier at 29th & O Streets, N.W. They noted that in both instances the two people were walking in a poorly lighted area and that the straw bag one was carrying appeared to be heavier. Believing that a narcotics transaction might have taken place, the officers followed the two as they walked east on M Street, N.W. The officers could observe that one, a man, was walking at a very brisk pace, that he kept looking back nervously and kept shifting the bag from hand to hand as if it were heavy. The officers, aware of the tremendous number of larcenies from automobiles in the Georgetown area, decided to check the identification of the two individuals. Near the intersection of Wisconsin Avenue and M Street, N.W. Officer Gallahan stepped in front of the pair, identified himself and displayed his credentials, while Officer Selby positioned himself next to and slightly behind the man with the straw bag. The officers explained that they were investigating automobile larcenies in the area. The man appeared to the officers to become very nervous, and positioned himself between Officer Selby and the bag. Officer Selby asked the man, now identified as appellant, what was in the bag. Appellant said that it was just his clothing. On the other hand appellant's companion, a woman identified as Ms. Smith, stated that it was her clothing in the bag, and grabbed the bag and opened it. When she did so, Officer Gallahan could see the wood-grained stock of what appeared to be a gun. As Ms. Smith withdrew her hand from the bag, Officer Gallahan could also see the front end of a sawed-off shotgun protruding from the clothing. The officers immediately drew their weapons, searched the bag and patted down appellant and Ms. Smith, recovering a broken down, three-piece sawed-off shotgun from the bag, several shotgun shells from the jacket Ms. Smith was wearing, and a large folding knife from appellant's pocket. Appellant was initially charged with possession of a prohibited weapon (the shotgun) and carrying a dangerous weapon (the knife). After further investigation, appellant was also charged with first-degree murder.

Ms. Smith, appellant's companion on the night in question, testified for the government. She indicated that she and appellant had gone out together for the first time that evening, and had been walking in the vicinity of 24th & P Streets, N.W. when appellant began complaining about white people and the way they used black people. Duncan McCrea, a young white man, walked down P Street; appellant pointed him out to Ms. Smith and then grabbed him by the throat. Appellant hit McCrea, who doubled over. Appellant took a knife from his right pocket and stabbed McCrea. At the time, Ms. Smith was standing approximately 2½ feet away. Ms. Smith started running; at some point appellant ran after her. The two went to the bridge at the C & 0 Canal, where appellant rinsed the knife in the water, folded it up and put it back in his right pocket.² He then asked Ms. Smith for her straw bag, and took it with him into some bushes where Ms. Smith could not see what he was doing. When appellant returned, the rolled up jeans jacket that he had been carrying under his arm all evening was in Ms. Smith's bag. Ms. Smith testified that the first time she saw the gun was when the police officers later removed it from her bag.

Appellant presented no evidence at the pretrial hearing. At the close of the hearing, the court concluded that both the initial stop and the subsequent search were reasonable, and that the motion to suppress should be denied.

As the trial court recognized, any discussion of the reasonableness of the initial stop in this case must begin with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Supreme Court recognized that a police officer's temporary stop of a person is not violative of the Fourth Amendment if based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. "Each case of this sort will, of course, have to be...