Lawrence v. U.S., 87-313.

Citation566 A.2d 57
Decision Date15 November 1989
Docket NumberNo. 87-313.,87-313.
PartiesEzzard C. LAWRENCE, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

Borge Varmer, for appellant.

Su Zann Lamb, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, and Helen M. Bollwerk, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before NEWMAN and SCHWELB, Associate Judges, and REILLY, Senior Judge.

SCHWELB, Associate Judge:

Ezzard Charles Lawrence appeals from his conviction of possession of heroin, in violation of D.C.Code § 33-541(a) (1981 & 1989 Supp.). His sole contention is that the trial judge committed reversible error in denying his pretrial motion to suppress the heroin. Concluding that the judge correctly held that the contraband was recovered as a result of a contact between Lawrence and a police officer which did not constitute a seizure within the meaning of the Fourth Amendment, we affirm Lawrence's conviction.

I THE EVIDENCE

The only witnesses at the suppression hearing were Officer Ronald H. Ward of the Metropolitan Police Department and Appellant Lawrence. Officer Ward, a thirteen year police veteran, testified that on August 22, 1986, he was participating in a police operation designed to apprehend violators of the drug laws in the 1500 block of Alabama Avenue, S.E., an area known for narcotics activity. Ward and his partner drove their car off 15th Place, S.E., into an alley that parallels Alabama Avenue. The vehicle stopped in front of a paved passageway between the buildings facing Alabama Avenue, S.E. Ward observed a group of five to seven people on the sidewalk by the fence on Alabama Avenue. Lawrence was one of these individuals.

Officer Ward testified that, at approximately the same time, a police vice cruiser turned off Stanton Road, S.E. into the 1500 block of Alabama Avenue, S.E., and stopped near the individuals who had gathered on the sidewalk. The members of that group rapidly dispersed in different directions. Lawrence walked up the passageway directly towards Ward, who had begun to walk down the same passageway in the direction of Alabama Avenue. Noticing that Lawrence's left hand was clenched, Officer Ward thought that he might be concealing drugs. Ward testified that he stopped directly in front of Lawrence and identified himself as a police officer. Using what he described as a conversational tone, Ward asked Lawrence what he had in his hand.

Officer Ward stated that although the passageway was narrow, Lawrence could have walked around him on the sidewalk, which was approximately three feet wide. According to Ward, however, Lawrence chose not to do so. Rather, he stopped and opened his hand, which contained one clear plastic packet of white powder. Officer Ward recognized, on the basis of the packaging, that the powder was probably heroin. He seized the packet and, after a field test of the contraband on the scene produced a positive reaction for opiates, he arrested Lawrence.1

Lawrence testified that he had come to the area from his home in Alexandria, Virginia in order to retrieve a tool set which he had lent to someone whom he knew from a drug treatment clinic. He explained that he had asked some people where he could find his friend, but he was unable to locate the man. He then walked across the street, passing through a group of people on the sidewalk, and continued down the passageway. Seeing some money on the ground, he picked it up. At this point, he noticed Officer Ward and another man "shaking down" a third man against a fence in the walkway. Lawrence did not know who Ward was, but heard him say that he had seen the third man drop something on the ground.

According to Lawrence, Officer Ward then hollered, "Hey, big boy, come here." After Lawrence turned to see who was calling, Ward approached him, inquired what he had in his hand, and "asked" him to open it. Believing that his hand contained nothing more than two tightly rolled bills, Lawrence opened it. Unfortunately for Lawrence, however, Officer Ward took the money from him, and the package of white powder fell out. Ward then returned the money to Lawrence and another officer apparently field-tested the substance. The officers discovered that he had failed to pay a fine for a traffic violation and placed him under arrest. They also told him that the powder had tested positive for heroin.

Lawrence did not claim that Officer Ward compelled him to open his hand. Indeed, he asserted that he had done so because he felt that he had done nothing Wrong. He testified that he did not know that there were illegal drugs with the dollar bills which he had found. There was some confusion in his testimony as to whether he even knew, at the time that he was asked to open his hand, that Ward was a police officer. In response to the prosecutor's inquiry whether the officer had physically restrained him in any way or had forced him to open his hand, Lawrence stated simply: "No, he didn't."

II THE TRIAL JUDGE'S RULING

The trial judge, Honorable Luke C. Moore, denied the motion to suppress. He found that the defendant was unsure that Ward was a police officer, and that he had "practically admitted or conceded that he was not restrained." The judge stated that "it was the defendant's belief that he had done nothing [wrong] and he had no reason not to open his hand." He found that Lawrence could have remained "mum" and kept walking, but instead "elected" to open his hand. He concluded that, under the circumstances, a reasonable person would not have believed that he was required to respond to the officer's request.

[1] Noting that there was some divergence in the accounts of the two witnesses, and explicitly crediting the testimony of the officer,2 Judge Moore found that "this was a police-citizen encounter no more intrusive than what was done in Gomez v. Turner,3 and United States v. Barnes."4 The judge concluded that since the officer had determined that Lawrence was in possession of what appeared to be heroin, there was probable cause for the arrest. Accordingly, the judge denied the motion to suppress.5 Lawrence was subsequently convicted by a jury of unlawful possession of heroin, and this appeal followed.

III LEGAL DISCUSSION
A. The authorities

Lawrence claims that the trial judge erred in ruling that his encounter with Officer Ward did not amount to a Fourth Amendment seizure. In particular, he argues that it constituted an unlawful detention because, under all of the circumstances, a reasonable person would have concluded that he was not free to leave the scene or to refuse the officer's request. Measuring Lawrence's contentions against the record developed at the motions hearing and Judge Moore's factual findings, however, we are constrained to disagree and affirm.

On appeal from the denial of a motion to suppress evidence, this court's scope of review is limited. Peoples v. United States, 395 A.2d 41, 43 (D.C. 1978), cert. denied, 442 U.S. 911, 99 S.Ct. 2826, 61 L.Ed.2d 277 (1979). We give deference to the trial judge's findings of fact, Giles v. United States, 400 A.2d 1051, 1054 (D.C. 1979), and must accept his resolution of conflicting testimony. United States v. Alexander, 428 A.2d 42, 49-50 (D.C. 1981). Moreover, the judge's factual findings will not be disturbed unless they are clearly erroneous, i.e., without substantial support in the record. Id. Nevertheless, the ultimate determination as to whether a seizure occurred remains a question of law. Richardson v. United States, 520 A.2d 692, 69E; (D.C.), cert. denied, 484 U.S. 917, 108 S.Ct. 267, 98 L.Ed.2d 224 (1987). As a result, "we must review independently the trial court's conclusion, giving due deference to the trial court's findings of fact concerning appellant's encounter with the police." Id.

In reviewing this ultimate question of law, we have recognized that "[t]he touchstone regarding whether a person has been `seized' within the meaning of the Fourth Amendment is whether a reasonable person would have felt free to leave." Id.; Barnes, supra, 496 A.2d at 1044. See also Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (White, J., plurality opinion); United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (Stewart, J., plurality opinion); Turner, supra, 217 U.S.App.D.C. at 288, 672 F.2d at 141. The test is an objective one, focusing on a reasonable person's interpretation of the conduct in question, and thus allowing the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. Chesternut, supra, 108 S.Ct. at 1980.

Under the applicable case law, however, the inquiry whether a reasonable person would feel free to leave when approached by a police officer under a variety of circumstances has become an increasingly sophisticated one. In Barnes, supra, 496 A.2d at 1044, this court noted that the Supreme Court, opting in favor of public safety in relation to such encounters between citizens and police officers, has raised the threshold of what constitutes a seizure. Indeed, the Court has concluded that reasonable persons would feel free to leave under circumstances in which many of us would discern the existence of considerable pressure not to do so. See, e.g., Mendenhall, supra.

In other areas of the law, the concept of freedom of choice is an expansive one. In racial discrimination cases, for example, courts have long held that freedom of choice can exist only if the choice is free in the practical context of its exercise. Coppedge v. Franklin County Bd. of Educ., 273 F.Supp. 289, 299 (E.D.N.C. 1967), aff'd, 394 F.2d 410 (4th Cir. 1968). "If choice influencing factors are not eliminated, freedom of choice is a fantasy." Lee v. Macon County...

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