Edwards v. United States, 7743.

• Decision Date: 13 October 1976
• Docket Number: No. 7743.,7743.
• Citation: 364 A.2d 1209
• Parties: Glenn R. EDWARDS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

364 A.2d 1209

Glenn R. EDWARDS, Appellant, v. UNITED STATES, Appellee.

No. 7743.

District of Columbia Court of Appeals.

Argued June 19, 1974.

Decided October 13, 1976.

Rehearing en Banc Granted January 12, 1977.

Frederick H. Weisberg, Washington, D. C., for appellant.

Garey G. Stark, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D.C., were on the brief, for appellee.

Before KERN, and HARRIS, Associate Judges and REILLY, Chief Judge, Retired.

KERN, Associate Judge:

This appeal presents for our determination a narrow question: Whether a police officer who confronts a citizen on a public street late at night lacking probable cause to arrest him, but having articulable grounds to suspect him to be engaged in on-going criminal activity, may pursue him from the street into private premises when he runs in response to the officer's request to stop and answer questions.

The facts of the case may be most accurately and comprehensively stated by quoting the testimony of Detective Jackson, the principal actor in this particular "moving street scene[s]," United States v. Frye, D. C.App., 271 A.2d 788, 790 (1970), and the sole witness at the pretrial hearing of appellant's motion to suppress items of personalty seized from his apartment after entry by the officer.

At about two o'clock on a March morning in the 1900 block of Savannah Street, S.E., a wholly residential area of apartment dwellings, Detective Jackson, in plain clothes, was riding with his partner, also in plain clothes, in a Plymouth sedan bearing no indicia that it was a police vehicle.

According to Detective Jackson:¹

The first time I noticed them [appellant and his codefendant], they were walking up the street at a moderate pace (Tr. 12).

* * * * * *

I recognized them carrying one stand, a tape recorder, and what appeared to be a tape player . . . [a]nd a pillow case . . . with other items in it (Tr. 9).²

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I rolled down the window from the cruiser in which I was riding, and advised the subjects I was a police officer and wanted to talk to them. At this time, the two subjects . . . took off running (Tr. 7).

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Q. So, you have no way of knowing whether they heard you.

A. No, not officially (Tr. 28).

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Q. [Y]ou don't know whether [appellant] even knew you were a police officer. . . .

A. That is true (Tr. 31).

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Q. Did you have, at that time, any report of burglary in the area ?

A. No, sir.

Q. Did you have any other kind of look-out for individuals meeting this description?

A. No, sir.

Q. Did you have any lookout for any property that might have been stolen, meeting any kind of description?

A. No, sir. . . . I alighted from my car, because the items they were carrying and their action of running made me curious to find out what was going on (Tr. 12). * * * I . . . chased the subjects into 1920 [sic] Savannah Street.³ . . .

[T]hey ran up a flight of stairs and pushed an apartment door open. At this time, I was directly behind them. . . . I did not engage in any conversation with them (Tr. 7).

* * * * * *

[T]hey placed no key into the apartment door; they did not turn the knob to go in the apartment. I used the same course of action (Tr. 10-11). * * * The apartment door had come back, but it hadn't been completely closed. . . . I could see that it wasn't locked. It hadn't made connection with the facing around it to lock it (Tr. 14-15).

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Q. When they got to the apartment door, how far behind were you, would you say ?

A. About five, six steps behind them.

* * * They were in front of me running and I could see their actions, this entire time, until they hit the apartment door and closed it (Tr. 9).

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Q. When you first went into the apartment . . . following these gentlemen up the stairs, did you identify yourself?

A. I don't recall, I really don't recall whether I identified myself or not (Tr. 22-23).

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Q. Now, when you got into the apartment, I take it you, at that time, seized the property?

A. I asked them whose property and I got no response. And at that time, I advised them that I was going to seize the property (Tr. 11).

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Q. Did you draw any conclusions from the nature of the property seized (Tr. 16)?

A. My conclusions were that the property seized was taken from a nursery.

Q. Why was that?

A. Because my son goes to a nursery and . . . each nursery kid . . . must take a sheet and on the sheet you write his . . . full name. And the property [a sheet] which contained the frozen food had the name of Theresa Blackwell on the top . . . [w]here my wife usually writes my son's name . . . and [t]he type of amplifier that was taken, its [sic] not the type of amplifier a person would listen to records. It's a type of amplifier that one might speak in as a public address system. And the type of food that was wrapped [inside the sheet] and the condition of the wrap (Tr. 17).

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Q. Did you place anybody under arrest at that time ?

A. No, I did not place anyone under arrest at that time (Tr. 11). * * * They were taken to the precinct with the property, advised of their rights, and their identity was learned. . . . And about 20 or 30 minutes elapsed and they were released (Tr. 16).

The story's epilogue is this: around seven o'clock the following morning a Day Care Center in the area reported to police it had been burglarized and its representative identified the items which Detective Jackson had seized from appellant's apartment as having been taken during the burglary. Appellant and his companion were arrested later the same morning.

Thereafter the government proceeded against appellant on a charge of receiving stolen property. Prior to trial the court denied a motion to suppress and appellant then agreed to have the court hear his case without a jury. The government and appellant entered into a stipulation as to the testimony witnesses on each side would present, including testimony that he and his companion had purchased from a stranger the items in question for $50. The court found appellant guilty after hearing testimony concerning the current value of certain of the items seized.

The government concedes, and the record requires this concession, that Detective Jackson did not have probable cause to arrest appellant at any time from the moment of their confrontation on the street until several minutes later when the detective caught up with appellant after he ran from the street into the apartment.⁴ On the other hand, as appellant assumes (Br. at 17, n. 8), the presence of appellant and his companion carrying items not usually seen at that hour on the street of a residential neighborhood and their response of flight when the detective identified himself and asked to talk to them supported a reasonable suspicion by the officer that criminal activity was in progress and justified a so-called Terry stop of appellant and his companion for brief questioning.⁵

The nub of this case, however, is whether the officer was justified, first, in pursuing appellant when he ran rather than stop and answer questions and, second, in carrying that pursuit from the street to the apartment building. Terry, in our view, makes clear that an officer who has articulable grounds to suspect a crime is in progress may use force to restrain the individual he suspects in order to maintain the status quo briefly until he can obtain additional information and determine exactly what is occurring. The Court in Terry (at 15, 88 S.Ct. at 1877) stated the question posed by that case to be "[w]hether it is always unreasonable for a policeman to seize a person . . . unless there is probable cause for an arrest"; and the Court (at 16, 88 S.Ct. at 1877) went on to define a seizure of a person to be "[w]henever a police officer accosts an individual and restrains his freedom to walk away"; and, finally, the Court (at 19, n. 16, 88 S.Ct. at 1879) amplified its meaning of restraint as "[w]hen the officer, by means of physical force or show of authority, has . . . restrained the liberty of a citizen." (Emphasis added.)

Mr. Justice Harlan's concurring opinion in Terry (at 31-34, 88 S.Ct. at 1885) is particularly instructive:

I am constrained to fill in a few gaps, as I see them, in . . . [the] opinion.

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In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. . . . [A police officer] must first have a right not to avoid him [a citizen suspect] but to be in his presence. That right must be more than the liberty . . . to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away. . . . I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.

* * * * * *

Officer McFadden's right to interrupt Terry's freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer's right to take suitable measures for his own safety followed automatically. (Emphasis added.)

Mr. Justice White's concurrence (at 34, 88 S.Ct. at 1886) also focuses on the right of the officer to use force to stop the suspect for questioning briefly:

There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent...