Duhart v. US, 89-472.

• Decision Date: 03 April 1991
• Docket Number: No. 89-472.,89-472.
• Citation: 589 A.2d 895
• Parties: Reginald K. DUHART, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

589 A.2d 895

Reginald K. DUHART, Appellant, v. UNITED STATES, Appellee.

No. 89-472.

District of Columbia Court of Appeals.

Submitted November 15, 1990.

Decided April 3, 1991.

Robert E. Schulz, Palo Alto, Cal., appointed by this court, was on brief for appellant.

Jay B. Stephens, U.S. Atty., with whom Lynn Leibovitz, John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., were on the brief, Washington, D.C., for appellee.

Before ROGERS, Chief Judge, STEADMAN, Associate Judge, and MACK, Senior Judge.

ROGERS, Chief Judge:

Appellant Reginald K. Duhart appeals from his convictions on the ground that the trial court erred in denying his motion to suppress since the police lacked articulable suspicion justifying his seizure and frisk. We agree, concluding that the en banc decision in Smith v. United States, 558 A.2d 312 (D.C.1989) (en banc), is dispositive, and accordingly reverse.

I.

On September 28, 1988 at approximately 7:25 p.m., Sergeant Tompkins of the Third District tactical unit, in uniform, was riding his scooter the wrong way down the 1400 block of Fairmont Street, N.W., when he observed appellant display "something" to another man. The 1400 block of Fairmont Street had been the subject of "numerous complaints of illegal narcotics sales." Sergeant Tompkins, who was about 25 feet away from the two men, could not see what the "something" was, but believing that "a narcotics transaction was about to take place or had taken place," he stopped his scooter adjacent to the two men. The two men looked up and appellant put "whatever he was showing" into his pocket and the two men started walking in opposite directions as the officer approached on foot.

Sergeant Tompkins "went to stop appellant," and when he was a few feet behind him asked appellant whether he could talk to him. Appellant stopped and walked back to the officer. As he did, the officer asked him what he had in his pocket. Appellant did not respond, and the sergeant asked him to take his hand out of his pocket. When appellant did not comply, the officer repeated his request, and as appellant responded, "bringing his hand out real reluctantly," according to the officer, the officer grabbed appellant's hand around the wrist to see what he was bringing out of his pocket. As his hand came out of his pocket, the officer "could see that he didn't have anything in his pocket."¹ According to the officer, appellant then "began to act a little funny by turning his body sideways." When appellant did not respond to the officer's question, "What's wrong with you?" the officer said "Well, get up against the car."

The officer testified that because of the way appellant was acting and because he, the officer, was alone, he decided to check to see if appellant had any weapons. Appellant, however, "stiffened his body up and refused to stand so that the sergeant could pat him." The officer explained that appellant was "trying to put his right side up against something so I wouldn't frisk him." The officer then turned appellant around—"I used a little bit more force to get him to turn around so that I could pat him down." The officer felt a gun on appellant's right side, took a loaded gun out of appellant's waistband, and told appellant he was under arrest. Nine rounds of ammunition were found in appellant's pocket.

Later, at the police station, another officer asked appellant, "Hey, Shorty, what they got you for? I know you." Appellant then said, according to Sergeant Tompkins, "`I found a gun in the alley' or something," at which point the sergeant advised him of his Miranda rights for the first time, twenty minutes after he had been arrested. Appellant still insisted that he had found the gun in the alley.

On cross-examination Sergeant Tompkins admitted that he did not have a warrant for appellant's arrest, had not received any particular complaints about appellant's conduct, and did not see appellant exchange anything with anyone or hand anything to anyone. He also admitted that he did not see any drugs or money.

Amos Irving testified for the defense that while in the company of several others, he had seen appellant on the evening in question. Irving denied that appellant had showed him anything; he claimed that appellant was "giving us fives or something, like shaking our hands and then putting them back in his pockets." He explained that appellant, who did not live in the neighborhood, came there to visit Irving's sister. He also explained that because the area was a "heavy drug trafficking area" a lot of police are around, "checking somebody or harassing somebody. So by us holding a conversation all together, they probably thought we was having a drug traffic—transaction, which we wasn't." According to Irving, the police officer got off his scooter, put his hand on his gun and told everyone to take their hands out of their pockets and everyone did. The officer then approached appellant, who was closest to him, and said, "`Put your hands on the car,'" and started searching appellant.

Appellant also proffered the witness Felicia Scott and two other witnesses, whose testimony defense counsel admitted would have been cumulative, and the judge, therefore, declined to hear them.

The prosecutor argued that in view of the area and the police officer's experience,² he had articulable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to make an investigative stop and a pat-down search of appellant as a result of seeing appellant "showing an unknown object to another individual and a conversation that was taking place between the two." The judge agreed, noting that the officer's attention had been drawn to the two men, and that upon asking appellant to take his hand out of his pocket "it went from one thing to another." The judge viewed the defense as claiming that nothing was happening while Sergeant Tompkins' testimony was contrary and the judge credited the officer. The judge based his decision on the officer's testimony that (1) he saw appellant, in an area known for high narcotics activity, holding something in his hand which was being observed by another individual and having a conversation; (2) he had years of experience on narcotics cases; and (3) appellant was acting in an "unusual" manner in attempting to shield his right side from the officer's scrutiny.

As a result of a policy of the U.S. Attorney's office against allowing conditional pleas under Super.Ct.Crim.R. 11(a)(2) where a defendant seeks to preserve a suppression issue on appeal,³ a bench trial followed and appellant was found guilty of carrying a pistol without a license, D.C. Code § 22-3204 (1988), possession of an unregistered firearm, id. § 6-2311(a) (1989), and unlawful possession of ammunition, id. § 6-2361(3) (1989).

II.

Appellant contends that the trial judge erred in denying his motion to suppress since the government failed to meet its burden to show specific articulable facts sufficient to demonstrate Sergeant Tompkins' belief that a crime had been committed and that appellant was armed and dangerous, thereby warranting a Terry frisk before seeking identification and other information. He further contends that when the officer applied force in order to conduct a frisk and pat down, he was arrested without probable cause. Therefore, he contends that the weapon and ammunition seized from his person, and the statement he made at the police station, were fruits of an illegal seizure and should have been suppressed.

The central inquiry in every Terry stop controversy is whether, given the totality of the circumstances at the time of the seizure, the police officer could reasonably believe that criminal activity was afoot. Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1883-85, 20 L.Ed.2d 889 (1968). The threshold question is at what point did the seizure occur. Terry, supra, 392 U.S. at 16, 88 S.Ct. at 1877.⁴ The standard for determining whether a person has been seized within the meaning of the Fourth Amendment is, in turn, whether "in view of all of the circumstances surrounding the incident a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). A seizure occurs where the officer by force or by show of authority restrains the liberty of a citizen. Terry, supra, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. Not every encounter between a citizen and the police involves a "seizure;" some personal intercourse between the police and citizens produce merely consensual encounters. Id. "Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions...." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (plurality opinion). Rather, other circumstances, such as the physical touching of the suspect, display of a weapon, the use of language or tone of voice indicating compulsion may turn a consensual encounter into a seizure. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877. Thus, in Smith, supra, the court agreed with the trial court's finding that the police officer's show of authority by announcing that he was a police officer and ordering Smith to stop was "an investigative seizure implicating Fourth Amendment protections." 558 A.2d at 314.⁵

Here, Sergeant Tompkins, in police uniform, approached appellant, asked him to take his hand out of his pocket, and when he reluctantly complied, grabbed his wrist. While the requests by the officer that appellant take his hand out of his pocket may be considered merely a pre-seizure consensual encounter,⁶ once the officer grabbed appellant's wrist, appellant was seized within the meaning of Terry. The government does not disagree.⁷ The use of physical force by a law enforcement official is one of the intimidating circumstances...