Jones v. United States, 12620.

• Decision Date: 18 September 1978
• Docket Number: No. 12620.,12620.
• Citation: 391 A.2d 1188
• Parties: Donald E. JONES, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

391 A.2d 1188

Donald E. JONES, Jr., Appellant, v. UNITED STATES, Appellee.

No. 12620.

District of Columbia Court of Appeals.

Submitted June 8, 1978.

Decided September 18, 1978.

Simon L. Weker, Washington, D. C., appointed by this court, was on the brief for appellant.

Earl J. Silbert, U. S. Atty., John A. Terry, Robert F. O'Neill and John H. Korns, II, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before YEAGLEY, MACK and FERREN, Associate Judges.

YEAGLEY, Associate Judge:

Appellant was convicted of possession of marijuana (D.C.Code 1973, § 33-402). The sole question presented for review is whether the trial court erred in denying appellant's motion to suppress the marijuana found in his car by a police officer. In answering this question, we are faced with another of "the myriad daily situations in which policemen and citizens confront each other." Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968).

The testimony introduced at the hearing on appellant's motion to suppress indicated the following. Shortly after 1 a. m. on October 31, 1976, Officer Carl H. Schanberger of the Metropolitan Police Department, was alone in his police cruiser checking the parking lots in the 2200 block of Wisconsin Avenue, N.W. In recent months there had been problems in the area with drug trafficking and robberies. The officer did not, however, have a report of any crime having been committed in the area on the night in question.

Officer Schanberger was driving at a slow pace with his lights off when he saw appellant and another man sitting in a car at the rear of 2213 Wisconsin Avenue, N.W., with the inside dome light on. The passenger was smoking a cigarette, and as the officer attempted to get closer to the car, the passenger made a quick movement as though he was trying to hide something under the seat. The officer suspected that he was trying to hide "some type of weapon." After turning on his headlights and spotlight, and calling for a backup unit, the officer got out of his cruiser, approached the right side of the vehicle, and immediately ordered the two occupants out. When the man on the passenger side got out, the officer saw a greenish weed on the right front seat in a brown transparent wrapper, and numerous small brown envelopes on the rear seat. From his drug-related experience, the officer knew that such envelopes were used to package marijuana for sale. He also saw pinkish pills on the rear seat. The officer arrested the two men. For reasons discussed herein, we reverse.

In Terry v. Ohio, supra at 16, 88 S.Ct. at 1877, the Supreme Court held that "whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person" within the meaning of the Fourth Amendment. The Court recognized, however, that not every confrontation between a police officer and a citizen results in a "seizure." Id. at 19 n. 16, 88 S.Ct. 1868. See Coleman v. United States, D.C.App., 337 A.2d 767 (1975). In this case, Officer Schanberger did not "seize" appellant and his companion merely by walking to their car and speaking to them. At that point, their liberty had not been restrained by either physical force or a show of authority. Although the officer was acting largely on suspicion aroused as a result of his experience, we have no problem with his approaching the car to make inquiry of the occupants. The Supreme Court has said:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.

. . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (citations omitted).]

Here, however, the officer immediately ordered the two men out of the car without acquiring additional information. Terry and its progeny established that the police may stop a person for brief detention and questioning when the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, 88 S.Ct. at 1880. In the instant case, the "specific and articulable facts," if any, were limited. Pending further examination, it would appear that when the officer ordered the two men from the car, he "seized" them for Fourth Amendment purposes. See In re J.G.J., D.C.App., 388 A.2d 472, 474 (1978).

The government attempts to justify the officer's decision to order appellant and his companion out of the car by utilizing a two-step analysis. First, the government claims that in light of the time of the day, the type of crime in the particular area, and the passenger's furtive gesture, the officer acted reasonably in approaching the car to speak to the occupants. We agree with this part of the government's analysis. The government further maintains, however, that under the doctrine of Pennsylvania v. Mimms, 424 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the officer could order the occupants out of the car for his own protection once he had reason to speak to them. We disagree with this second prong of the government's argument and find its reliance on Mimms to be misplaced.

In Mimms, two police officers observed a man driving an automobile with an expired license plate. The officers stopped the vehicle for the purpose of issuing a traffic citation. One of the officers approached the vehicle and ordered the man out of the car. When the officer saw a large bulge under the man's sports jacket, he frisked him and discovered a revolver in his waistband.

In Mimms, the Court noted that there was no question as to the "propriety of the initial restrictions on respondent's freedom of movement." Mimms had been validly detained by the police for a traffic violation. Hence, the sole question was the reasonableness of "the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped." Id. at 332. In upholding the actions of the officer, the Court held "only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Id. at 333-34 n. 6. Contrary to the government's position, the Court specifically noted that "we do not hold today `that whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car.'"

In our view, Mimms does not support the government's contention that Officer...