Henighan v. United States, No. 80-169.

Docket NºNo. 80-169.
Citation433 A.2d 1059
Case DateJune 10, 1981
CourtCourt of Appeals of Columbia District

Page 1059

433 A.2d 1059
Richardean HENIGHAN, Appellant,
v.
UNITED STATES, Appellee.
No. 80-169.
District of Columbia Court of Appeals.
Argued November 12, 1980.
Decided June 10, 1981.

Page 1060

Linda Jacobson, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., was on the brief, for appellant.

Ronald Dixon, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEBEKER, HARRIS and PRYOR, Associate Judges.

NEBEKER, Associate Judge:


Following a suppression hearing, appellant was convicted in a stipulated trial before the court of carrying a pistol without a license, D.C.Code 1973, § 22-3204, and was placed on probation for three years after receiving a twelve-month suspended sentence. She appeals on the grounds that her motion to suppress the pistol was improperly denied. We affirm.

In the early morning hours of June 7, 1979, two officers in a patrol car answered a radio run asking for two cars to respond to the 1700 block of 14th Street, N.W., for a woman with a gun. The radio communication described the woman as a tall, black female wearing an orange shirt, white blouse, blue pants, and carrying a blue bag in which were a gun and narcotics. This information was obtained from an anonymous phone caller. The officers were two blocks away from the location and responded to the scene within twenty seconds where they identified the woman standing in a crowd. They observed her walk into a nightclub, followed by two other officers. She emerged fifteen seconds later at which time the officers alighted from their vehicle and confronted her in the middle of 14th Street. They each took hold of an arm and one then removed the blue bag from her shoulder. He passed the bag to his partner who looked inside to discover a Savage .32 caliber automatic pistol. There were no narcotics in the bag. They then placed appellant under arrest.

Appellant urges reversal on the grounds that the arrest was without probable cause and the subsequent search of the blue bag violated her reasonable expectation of privacy.

While many cases of police conduct may clearly be resolved either on a theory that there was or was not offense probable cause or on a theory that there were or were not articulable facts justifying a stop and protective frisk, some cases permit an alternative analysis. We think this is such a case, for under the facts one cannot, with stopwatch precision, say whether this police reaction must be supported by offense probable cause or merely by warnings of a specific ongoing offense. Accordingly, we decline the implicit invitation of the appellant to treat this police conduct solely as an arrest which must be based on probable cause. To distinguish the precise moment of arrest from the less intrusive incidents of a stop and frisk would be misleading to law enforcement. It would also instill unwarranted rigidity in judicial review of police conduct under the necessarily plastic concept of what is reasonable under the circumstances. Therefore, we analyze the facts of this case and apply the relevant case law with a view toward determining the reasonableness of the police response in terms of both an arrest and a protective frisk.

In some circumstances, in contrast to the approach we adopt here, determination of the exact moment of arrest is important. See Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) (arrest must be valid at moment of arrest to justify a search incident to arrest); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (arraignment must take place as quickly as possible after arrest and without delay to facilitate interrogation); Fuller v. United States, 132 U.S.App.D.C. 264, 271-72, 407 F.2d 1199, 1206-07 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969) (Mallory issue); Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967) (search incident to arrest); Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (1961), cert. denied, 369

Page 1061

U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962) (felony murder conviction upheld provided that arrest did not conclude the felony prior to the murder).

Since Terry v. Ohio, 329 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), however, determination of the moment of arrest is often an unnecessary exclusion. Where the police must respond rapidly to an ongoing situation which provides little opportunity for reflection, events blur together in terms of motivation and justification. Under such circumstances, the courts must abandon the antiquated test of whether the suspect reasonably believed he was under arrest, see Henry, supra, and focus instead on a unitary analysis of whether the police acted reasonably under all the circumstances. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The propriety of their conduct is measured not by its classification as an arrest, a stop and frisk, or an investigatory stop. It is measured by the reasonableness under the particular circumstances of the case. Otherwise, the courts will be dictating specific police procedures rather than permitting the police to employ what tactics might be reasonable under the circumstances. The judicial imagination is incapable of anticipating the myriad circumstances of police-citizen confrontations and the appropriate responses thereto. Precedential case law is a guide, not a police manual.

Though judges may disagree in upholding particular police conduct as to whether it is an arrest or a stop and frisk, they must at the same time be agreed on one thing — the reasonableness of the response. Thus, an alternative approach is often justified.

I

In their briefs and at oral argument, the appellant and the government argued the precedential value of several cases from this jurisdiction, none of which, predictably, is even in essential elements. Implicit in this approach to Fourth Amendment issues is the argument that prior cases of factual similarity guarantee a stare decisis quality binding the court in the matter at hand. This approach is wrong, reflecting a narrow vision of the Fourth Amendment which — over time — necessarily and inevitably constricts the limits of permissible police conduct to a point where only very formalistic and artificial responses will be permitted under the Constitution.

In only one significant Supreme Court decision have two cases been sufficiently alike that the first obtains a binding effect on the second. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). In that case, the Supreme Court accepted this identity proposition in reversing the decision of the Tenth Circuit. The Tenth Circuit Court of Appeals had overturned a conviction on the grounds that the federal agents making the arrest had lacked probable cause to stop and search; however, the circuit court did so without reference to the prior decision of the Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which the Supreme Court later considered "almost exactly on point." Brinegar, supra, 338 U.S. at 165, 69 S.Ct. at 1305. In addition, neither counsel in argument before the Supreme Court had discussed the application of Carroll. Clearly, the Supreme Court's acceptance of the binding factual nature of Carroll was necessitated by the failure of the Tenth Circuit to apply that decision.

This court has expressly rejected the idea that prior cases establish a factual precedent for the finding of probable cause. Price v. United States, D.C.App., 429 A.2d 514 at 518-519 (1981); Tobias v. United States, D.C.App., 375 A.2d 491, 493 (1977); Arrington v. United States, D.C.App., 311 A.2d 838, 839-40 (1973). No doubt, similar cases are instructive. But courts must always return, in the first instance, to the reasonableness standard of the Fourth Amendment — whether the facts and circumstances known to the officer and of which he had reasonably reliable information are sufficient to warrant a reasonable person in responding as the officer did. Factual similarity is not the test.

Page 1062

II

Although each case requires the application of the Fourth Amendment standard to the facts at hand, we are not without guidance. The Supreme Court has decided specific cases arising under the Fourth Amendment which dealt with particular elements of police-citizen confrontation. In an attempt to manage the plasticity of reasonableness and probable cause, the Court — to the extent humanly possible — has mechanized the principles of human reason into formulae which should guarantee uniform application of the Fourth Amendment in cases where these elements appear. This case presents three elements of police-citizen confrontation which have always pressed the judicial system to its analytical limits in applying the Fourth Amendment. For each of these elements, the Supreme Court has established a framework for principled decision-making which we must apply at the outset. The ultimate controlling elements in this case are: police response to an anonymous tip; a report that a citizen is in possession of contraband (here, a potentially death-dealing weapon); and, a police on-the-street decision immediately to search the suspect.

The Supreme Court has addressed all three of these elements. Where police obtain information from a citizen informant, the reasonableness of their subsequent response is examined under the rubric of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The informant's communication must meet the tests of reliability and veracity set out in that case. Intervening decisions of this court are merely instructive in the analysis and...

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11 practice notes
  • State v. Williams
    • United States
    • Superior Court of New Jersey
    • 4 Septiembre 1991
    ...involving contraband, it is reasonable to conclude that the citizen informant has eyewitness reliability. [Henighan v. United States, 433 A.2d 1059, 1064 (D.C.1981); emphasis Two Commonwealth v. Anderson cases are illustrative of general descriptions and the fact that an individual is alleg......
  • State v. Ortiz, No. 8636
    • United States
    • Hawaii Supreme Court
    • 23 Mayo 1984
    ...v. State, 427 A.2d 884 (Del.1981) (cardboard box); Nash v. State, 295 A.2d 715 (Del.1972) (small box); Henighan v. United States, 433 A.2d 1059 (D.C.App.1981) (purse); State v. Thompson, 3 Kan.App.2d 426, 596 P.2d 174 (1979) (purse); Williams v. State, 19 Md.App. 204, 310 A.2d 593, 598 (197......
  • Servis v. Com., No. 0984-86-2
    • United States
    • Virginia Court of Appeals of Virginia
    • 5 Julio 1988
    ...immediate control); United States v. Riggs, 474 F.2d 699 (2d Cir.1973) (Terry search of camera case upheld); Henighan v. United States, 433 A.2d 1059 (D.C.1981) (Terry search of purse upheld); State v. Ortiz, 67 Hawaii 181, 683 P.2d 822 (1984) (Terry search of knapsack upheld); Williams v. ......
  • U.S. v. Zucco, No. 187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 24 Noviembre 1982
    ...v. Baker, 577 F.2d 1147, 1149-50 (4th Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 154, 58 L.Ed.2d 153 (1978); Henighan v. United States, 433 A.2d 1059, 1064 (D.C.App.1981). That same concern applies where it is not clear from the affidavits who the informants are, what their motives are, or......
  • Request a trial to view additional results
11 cases
  • State v. Williams
    • United States
    • Superior Court of New Jersey
    • 4 Septiembre 1991
    ...involving contraband, it is reasonable to conclude that the citizen informant has eyewitness reliability. [Henighan v. United States, 433 A.2d 1059, 1064 (D.C.1981); emphasis Two Commonwealth v. Anderson cases are illustrative of general descriptions and the fact that an individual is alleg......
  • State v. Ortiz, No. 8636
    • United States
    • Hawaii Supreme Court
    • 23 Mayo 1984
    ...v. State, 427 A.2d 884 (Del.1981) (cardboard box); Nash v. State, 295 A.2d 715 (Del.1972) (small box); Henighan v. United States, 433 A.2d 1059 (D.C.App.1981) (purse); State v. Thompson, 3 Kan.App.2d 426, 596 P.2d 174 (1979) (purse); Williams v. State, 19 Md.App. 204, 310 A.2d 593, 598 (197......
  • Servis v. Com., No. 0984-86-2
    • United States
    • Virginia Court of Appeals of Virginia
    • 5 Julio 1988
    ...immediate control); United States v. Riggs, 474 F.2d 699 (2d Cir.1973) (Terry search of camera case upheld); Henighan v. United States, 433 A.2d 1059 (D.C.1981) (Terry search of purse upheld); State v. Ortiz, 67 Hawaii 181, 683 P.2d 822 (1984) (Terry search of knapsack upheld); Williams v. ......
  • U.S. v. Zucco, No. 187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 24 Noviembre 1982
    ...v. Baker, 577 F.2d 1147, 1149-50 (4th Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 154, 58 L.Ed.2d 153 (1978); Henighan v. United States, 433 A.2d 1059, 1064 (D.C.App.1981). That same concern applies where it is not clear from the affidavits who the informants are, what their motives are, or......
  • Request a trial to view additional results

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