In re DAD, 99-FS-393.

• Decision Date: 21 December 2000
• Docket Number: No. 99-FS-393.,99-FS-393.
• Citation: 763 A.2d 1152
• Parties: In re D.A.D., District of Columbia, Appellant.
• Court: D.C. Court of Appeals

763 A.2d 1152

In re D.A.D., District of Columbia, Appellant.

No. 99-FS-393.

District of Columbia Court of Appeals.

Argued September 14, 2000.

Decided December 21, 2000.

Rosalyn Calbert Groce, Supervisory Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on brief, for appellant.

Robert E. Schulz, appointed by the court, for appellee.

Before STEADMAN, REID, and WASHINGTON, Associate Judges.

WASHINGTON, Associate Judge:

At a motions hearing, appellee, D.A.D., prayed that the court suppress physical evidence used to charge him with carrying a pistol without a license in violation of D.C.Code § 22-3204 (1996 Repl.), and possession of an unregistered firearm in violation of D.C.Code § 6-2311(a) (1995 Repl.). The trial court granted the motion to suppress physical evidence recovered from his person based on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The government filed a timely notice of appeal, arguing that the trial court erred in suppressing the physical evidence and concluding that the officers did not have reasonable suspicion to stop and frisk D.A.D. We reverse and remand.

I.

The defendant in this matter, D.A.D., is a juvenile. The trial court heard the testimony of two officers of the District of Columbia Metropolitan Police Department and credited their testimony. The trial court found that on September 25, 1998, Officer Davis and Sergeant Perrin were investigating a report of repeated gunfire near South Capitol Street. At approximately 11:00 p.m., the officers heard gunshots and received information from the station as to where the shots were fired. The radio contact operator stated that the gunfire occurred in the rear of the 4511 South Capitol Street, S.W. apartment complex near a trash can.¹

When the officers arrived on the scene, they saw a black man near the dumpster wearing a dark cap and a light shirt. Officer Davis testified that when he spotted the man he was approximately thirty-five to forty yards from where the man was standing. He asked the man to stop, but the man began to run away. Officer Davis ran down a flight of stairs and into the area where the suspect had originally been spotted. By the time Officer Davis got there, the suspect had disappeared. Officer Davis testified that the man was ten to fifteen feet from the aforementioned dumpster and about two feet from where the shell casings were subsequently found.

As the officers were assessing the area to determine where the individual may have run, another individual began walking through the alleyway between the apartment complexes located at 4511 and 4513 South Capitol Street, S.W. The officers immediately drew their guns and ordered the second man to put his hands up against the wall. In his testimony, Officer Davis stated that the man was sweating and breathing heavily. The officers asked for identification, but the individual did not have any. The officers patted the man down and did not recover anything. The man was later released. Officer Davis resumed searching the area and found shell casings on the side of apartment complex 4511, and observed several bullet holes in the wall and windows of apartment complex 4513.

Approximately ten minutes after the gunshots were heard, Officer Davis saw D.A.D. on his tiptoes "in a semi-crouch position" moving up the steps that he and Sergeant Perrin had descended earlier.² D.A.D. was approximately thirty-five yards from Officer Davis and was carrying a light shirt and dark cap, the same clothing that the officer believed the first suspect who fled was wearing. Officer Davis testified that he was suspicious of D.A.D. because in his experience suspects often change their clothes after committing a crime. Officer Davis asked D.A.D. to stop and come over to him. D.A.D. moved the clothing from his left hand to his right hand, and placed his left hand in his left pants pocket. The trial court found that the reason D.A.D. placed his hand in his pocket was to provide Officer Davis with the identification he requested.³ When D.A.D. placed his hand in his pocket, Officer Davis pulled out his gun and told D.A.D. to remove his hands from his pocket.⁴ Officer Davis repeated this command three times before D.A.D. complied.⁵

Officer Davis and D.A.D. conversed and moved toward each other at the officer's request. D.A.D. responded that he knew he had been stopped because of the sound of the gunshots. The Officer walked D.A.D. to the side of the building and ordered D.A.D. to place his hands against the wall. D.A.D. put one hand up against the wall and then lowered the other hand to his side and repeated this gesturing several times. Officer Davis ordered D.A.D. to give him his coat, and in response, D.A.D. threw it on the ground several feet away. When the officer reached to get the coat, D.A.D. placed his left hand back in his left pocket and began to "fidget." Officer Davis then slapped D.A.D.'s hand away and grabbed D.A.D.'s left pants pocket. Officer Davis felt a pistol in the pocket and quickly placed D.A.D. on the ground. The gun was removed from D.A.D.'s pants pocket and he was arrested. Officer Davis testified that he did not believe that D.A.D. had a gun until he actually felt the pistol in his pocket.

II.

After reviewing the record, we agree with the government that the police officer had reasonable articulable suspicion to stop and frisk D.A.D. In reviewing a motion to suppress, we view all of the facts and reasonable inferences in a light favorable to sustaining the trial court's rulings. See Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc)

(citations omitted). We defer to the trial court's findings of fact and we will not disturb the trial court's factual findings unless they are clearly erroneous. See Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989). However, we review the trial court's conclusions of law de novo, see Holt v. United States, 675 A.2d 474, 478 (D.C.), cert. denied, 519 U.S. 866, 117 S.Ct. 176, 136 L.Ed.2d 117 (1996), and whether there was sufficient reasonable suspicion to validate the officer's conduct is a matter of law which this court must decide. See Green v. United States, 662 A.2d 1388, 1389 (D.C. 1995). Moreover, reasonable suspicion to stop an individual is "a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence...." Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Finally, certain factors considered separately may seem innocent; however, this court has announced that taken together they may provide sufficient articulable suspicion. See Peay, 597 A.2d at 1320.

On appeal, the government asserts that the trial court erred in suppressing the evidence because there was reasonable suspicion to stop and frisk D.A.D. To prove that the officers reasonably stopped D.A.D., the government must "point to specific articulated facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. 1868. In order to determine whether a search and seizure is reasonable, there needs to be a dual inquiry into "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 19-20, 88 S.Ct. 1868.

In Anderson v. United States, 658 A.2d 1036, 1038 (D.C.1995), this court articulated that to justify a Terry stop or a search for weapons, factors a court should consider include, but are not limited to: (a) time of day, (b) flight, (c) high crime and nature of the location, (d) furtive hand movements, (e) informant's tip, (f) a person's reaction to questioning, (g) a report of criminal activity, and (h) viewing of an object or bulge indicating a weapon. These factors are to be considered as part of the trial court's assessment of the totality of the circumstances. See Peay, 597 A.2d at 1320

. Each factor assists in determining whether there were articulable facts, but they are not elements of a conjunctive test, nor is any one factor outcome determinative. Thus, whether all of the Anderson factors are met does not completely measure whether the totality of circumstances establishes reasonable suspicion. See id.

To determine whether there was reasonable suspicion to stop D.A.D., we evaluate each factor individually and then as a whole to determine whether the combination of facts establishes the grounds for articulable suspicion. See id. We also view the situation through the lens of a reasonable police officer, guided by his training and experience. See Green, 662 A.2d at 1390

. In the instant matter, the following Anderson factors support a finding of reasonable suspicion: (1) Officer Davis was responding to a report of criminal activity and heard gunshots relating thereto, (2) the officers were directed to a specific location where the shots were fired, and (3) it was approximately 11:00 p.m. at night. Additional factors also support a finding of reasonable suspicion: (4) D.A.D. was found walking near the crime scene not long after the crime had been committed; (5) D.A.D. was carrying clothes similar to a suspect who had previously fled the scene minutes before;⁶ and (6) D.A.D. was observed by Officer Davis tiptoeing in a suspicious semi-crouched position.

D.A.D. argues, and the trial court agreed, that there were insufficient facts which justify the stop because many of the above-mentioned Anderson factors were not met. However, as we have said, the factors listed in Anderson are not part of a conjunctive test. In Anderson a police officer encountered the appellant in a high crime area late at night. 658 A.2d at 1037. The officers, however, were not responding to a specific report of criminal activity, but happened to see Anderson and a companion in an alleyway....