Peay v. US

• Decision Date: 10 October 1991
• Docket Number: No. 88-678.,88-678.
• Citation: 597 A.2d 1318
• Parties: John Thomas PEAY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

597 A.2d 1318

John Thomas PEAY, Appellant, v. UNITED STATES, Appellee.

No. 88-678.

District of Columbia Court of Appeals.

Argued En Banc December 11, 1990.

Decided October 10, 1991.

John M. Copacino, Washington, D.C., with whom Shailly P. Agnihotri, New York City, Georgetown Crim. Justice Clinic, was on the brief, for appellant.

John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Thomas J. Hibarger and Robert C. Little, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, FERREN, TERRY, STEADMAN, SCHWELB and WAGNER, Associate Judges, and BELSON, Senior Judge.^*

On Rehearing En Banc.

STEADMAN, Associate Judge:

This case involves an encounter between a lone police officer and the appellant, clutching in his hand something that "could possibly have been a weapon, a small knife, possibly a gun," on the third floor of an apartment building known for narcotics trafficking. We affirm the trial court's ruling that the officer's stop of the appellant for further investigation was reasonable within the meaning of the Fourth Amendment.

I

Fourteen twenty-nine Girard St., N.W., Washington, D.C., was an apartment building which the police would routinely enter and check for the illegal drug trafficking for which the building was known. On the afternoon in question, Officer Emmett Queen and two fellow officers, in plain clothes, pulled up to the entrance of the building to make such a routine check.¹ Appellant was standing in the doorway of the building; as he looked at the officers exiting their car, he "left the scene rather hurriedly" and went inside the building.

The team of officers entered the building and fanned out to engage in the drug patrolling.² Officer Queen mounted the staircase to the third floor, where he came upon appellant in the hallway some three feet away. Queen noticed appellant clutching something in his left hand. Queen could not tell exactly what it was but thought it "could possibly have been a weapon, a small knife, possibly a gun." As Queen approached, appellant turned away from Queen. Thereupon, in a roughly simultaneous time frame,³ Queen identified himself as a police officer, asked appellant to stop, inquired what appellant had in his hand, and, as appellant started walking away without responding, followed and put his hand on appellant's shoulder, at which time, as he pulled away from Queen, appellant dropped some thirteen small plastic bags to the floor. These subsequently were found to contain marijuana.

Following a suppression hearing, the trial court found that on the facts here, Queen had "articulable suspicion of criminal activity and danger to himself" upon which to base the stop. Hence, the trial court denied the motion to suppress. At trial, a jury found appellant guilty of possession with intent to distribute cannabis in violation of D.C.Code § 33-541(a)(1) (1988). On appeal, a panel of this court reversed the denial of the motion to suppress, 575 A.2d 279 (D.C.1990). We granted the government's petition for rehearing and vacated the panel opinion. 580 A.2d 1331 (1990).

II

The basic legal framework here is a familiar one. To justify an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. This "minimal level of objective justification" is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). In determining whether a Terry stop is lawful, the court must look to the "totality of the circumstances." Alabama v. White, ___ U.S. ___, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981).⁴ Even if each specific act by a suspect could be perceived in isolation as an innocent act, "the observing police officer may see a combination of facts that make out an articulable suspicion." United States v. Bennett, 514 A.2d 414, 416 (D.C.1986). See Sokolow, supra, 490 U.S. at 9-10, 109 S.Ct. at 1586-87 ("Indeed, Terry itself involved `a series of acts, each of them perhaps innocent' if viewed separately, `but which taken together warranted further investigation'" (citation omitted)); Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983) ("innocent behavior frequently will provide the basis for a showing of probable cause"). In reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling. Nixon v. United States, 402 A.2d 816, 819 (D.C.1979); Brooks v. United States, 367 A.2d 1297, 1304 (D.C.1976) (where no express findings, appellate court is to "determine if the denial of the motion to suppress is supportable under any reasonable view of the evidence").

We agree with the trial court that the case before us presented sufficient "specific and articulable facts" to make constitutionally reasonable the police officer's decision to "detain appellant briefly in order to `investigate the circumstances that provoked suspicion.'" Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (citation omitted). We review the circumstances surrounding the Terry stop.

A

The officers arrived for the routine patrol of a specific building known for its narcotics trade. As they arrived, the defendant, upon seeing them, rapidly went into the building. Appellant argues that this fact should be discounted, since the defendant may not have been aware that they were police officers and since appellant "merely walked" away, citing Smith v. United States, 558 A.2d 312, 316-17 (D.C.1989) (en banc), and In re D.J., 532 A.2d 138, 141 (D.C.1987). However, the instant case is significantly different. Here, the defendant did not depart from the area of suspected activity but on the contrary went directly toward it, in a manner described at the suppression hearing as "leaving the scene rather hurriedly." Moreover, the movement of appellant occurred previous and not subsequent to the immediate event leading to the stop. The reaction of the appellant thus bears upon the issue as not only a possible reflection of "consciousness of guilt" but also as related to the possible on-going narcotics trafficking within the building itself (such as a warning to such participants of approaching strangers).⁵ Moreover, the place to which the appellant hurried and where the subsequent confrontation took place was not some generalized neighborhood or even public street where drug activity was rife but rather a specified identified and isolated private locale, known for such trafficking and regularly patrolled by the police.

Thus, when Queen mounted the apartment stairway to the third floor and entered the third story hallway, he came upon appellant not as a total stranger, not as an apartment dweller just leaving his quarters or strolling the halls, but as an individual who had hastily entered the building shortly before. Furthermore, appellant had not, as might be expected were he a resident, entered the apartment in which he lived but instead was standing in the hallway "clutching something in his hand" at a distance of some three feet from Queen, who was by himself. Queen testified that he thought the object appellant was clutching "could possibly have been a weapon, a small knife, possibly a gun."⁶

B

In the District of Columbia, it is an offense to carry "either openly or concealed on or about one's person ... an unlicensed pistol ... or any deadly or dangerous weapon capable of being so concealed."⁷ D.C.Code § 22-3204 (1990 Supp.). Moreover, as has been often observed, drugs and weapons go together. See, e.g., United States v. Payne, 256 U.S.App.D.C. 358, 361, 805 F.2d 1062, 1065 (1986) (collecting cases); Irick v. United States, 565 A.2d 26, 31 (D.C.1989) (expert testimony that "when you relate to drugs and guns it's like a marriage"). Therefore, Queen might reasonably suspect not only that a criminal violation was taking place but that his own personal safety was at peril.⁸ As the trial court stated, when Queen stopped appellant and asked what he had in his hand, Queen "was only addressing what for him was an articulable suspicion of criminal activity and danger to himself."

It is suggested that such a belief of Queen was not objectively reasonable because no pistol or switchblade knife is capable of concealment by someone who is "clutching something in his left hand." We cannot as an appellate court make such a finding of fact in contradiction of the stated belief of a trained police officer and in the absence of any such showing in the record or finding by the trial court. See Davis v. United States, 564 A.2d 31, 35 (D.C.1989) (en banc); Wilson v. United States, 444 A.2d 25, 29 (D.C.1982); Giles v. United States, 400 A.2d 1051, 1054 (D.C.1979); D.C.Code § 17-305(a) (1989). Moreover, with respect to other objects which might constitute dangerous or deadly weapons if carried with an intent to so use them and which could be readily concealed, considering the surrounding circumstances discussed above, we do not think that Queen's concern that appellant might use whatever was concealed in his hand in that manner can be labeled objectively unreasonable as a matter of law. As our sister federal court has cautioned "in judging the reasonableness of the actions of the arresting officer," the circumstances "are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." United States v. Young, 194 U.S.App.D.C. 377, 379, 598 F.2d 296, 298 (1979).⁹

C

Appellant makes much of the fact...