POWELL v. U.S., 91-CM-1402

• Citation: 649 A.2d 1082
• Decision Date: 10 November 1994
• Docket Number: No. 91-CM-1402,91-CM-1402
• Parties: Garfield A. POWELL, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

649 A.2d 1082

Garfield A. POWELL, Appellant, v. UNITED STATES, Appellee.

No. 91-CM-1402.

District of Columbia Court of Appeals.

Argued November 22, 1993.

Decided November 10, 1994.

^*.

The case was originally submitted on the summary calendar, however, the court subsequently scheduled oral argument on the above date. After oral argument, the court concluded that additional factual findings were necessary and the record was therefore remanded, on November 30, 1993, with instructions to the trial court to make certain specific additional findings. The supplemental record, with additional findings was filed March 4, 1994. The court then invited supplemental memoranda in light of the findings on remand. Appellant initially advised the court that he did not wish to submit anything further. The government then filed a memorandum on May 26, 1994. Appellant then filed a response to the government's memorandum on June 7, 1994.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, PATRICIA A. WYNN, J.

Thomas Engle, Washington, DC, for appellant.

Larry Gusman, Asst. U.S. Atty., Washington, DC, with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Roy W. McLeese, III, and Robert J. Spagnoletti, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before FARRELL, KING and SULLIVAN, Associate Judges.

PER CURIAM:

The judgment of the trial court is reversed for the reasons stated in the lead opinion ofJudge Sullivan and the concurring opinion of Judge Farrell. Judge King dissents from the opinion of the court for the reasons set forth in his dissenting opinion. Accordingly, this case is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

SULLIVAN, Associate Judge:

I write separately to express my own reasons for concluding that the trial court erred by denying appellant's motion to suppress evidence.¹

I. Introduction

Simply, this case is about a District of Columbia citizen who, while operating an automobile, had the misfortune of being stopped by three police officers at three o'clock in the morning. The citizen did nothing more than to question the police officers about the reason for the stop. After turning over his driver's license and motor vehicle registration, the citizen was asked to step from his car, which, as appellant concedes, was legitimate. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Thereafter, he was frisked by Officer Hernandez, which, in my view, was not warranted under the circumstances because Hernandez lacked sufficient grounds to form a reasonable belief that appellant was armed and dangerous. Although a pistol was recovered from the citizen, this court has previously held that the end result can never justify the constitutionality of the circumstances leading to a seizure of evidence. Brown v. United States, 590 A.2d 1008, 1013 (D.C. 1991) (citation omitted).

Twenty-two years ago, Circuit Judge J. Skelly Wright wrote in a dissenting opinion:

This is a disarmingly simple case, but the court's disposition of it, in my judgment jeopardizes the privacy and the constitutional rights of every citizen who drives a car in the nation's capital.

United States v. Green, 151 U.S. App. D.C. 35, 40, 465 F.2d 620, 625 (1972) (Wright, J., dissenting). Judge Wright's statement is as timely today as it was in Green and it accurately reflects my concern with the trial court's disposition of the suppression motion in this "disarmingly simple case." On the record here, I cannot conclude that no constitutional violation occurred when appellant was frisked. Accordingly, the trial court's judgment is reversed.

II. The Motion Hearing

Officer Hernandez, an eleven-month veteran of the Metropolitan Police Department, at the time of appellant's arrest, was the only officer who testified at the motion hearing. Essentially, Officer Hernandez testified that he and two other officers, while on routine patrol at three o'clock in the morning observed appellant make an abrupt left-hand turn into an alley. The officers followed appellant, and when appellant failed to observe a stop sign, the officers signaled for him to pull over. Officer Hernandez testified that prior to appellant stopping his vehicle, he observed appellant bead or duck towards the passenger seat. After appellant stopped his vehicle, Officer Papricka requested appellant's driver's license and registration. After a brief hesitation, appellant furnished the officers with the requested documents. Appellant was then ordered out of the car, and upon exiting the car, Officer Hernandez took appellant to the rear of the car where the officer conducted a frisk of the appellant and recovered a pistol.

Appellant's testimony was that he usually proceeded through the alley because the alley was a "well-known short-cut" to avoid traffic lights. Appellant was not discredited on this point. Further, appellant testified that he did not know the officers were behind him either in the alley, or when he exited out of the alley onto the street. Upon noticing the emergency lights activated on the police patrol car, appellant testified that he hesitated before stopping because he wanted to make sure that it was him they were pulling over. The appellant testified, and this testimonywas credited by the trial court, that once the officers approached his vehicle, pursuant to Officer Papricka's request, appellant reached for his motor vehicle registration from the glove compartment of his vehicle. Appellant testified that after he provided Officer Papricka with the requested documents, he was instructed to step from his vehicle, at which time Officer Hernandez took appellant to the rear of his car and conducted the frisk.

III. The Standard of Review

Our scope of review for an order denying a motion to suppress evidence is set forth in D.C. Code § 17-305(a) (1989).² "We are bound by the trial court's factual findings unless clearly erroneous or not supported by the evidence." Holston v. United States, 633 A.2d 378, 386 n. 10 (D.C. 1993) (citations omitted). Moreover, in reviewing the trial court's denial or grant of a motion to suppress, this court's review is de novo. Lewis v. United States, 632 A.2d 383, 385 (D.C. 1993) (citations omitted). "Essentially, our role is to ensure that the trial court had a substantial basis for concluding that no constitutional violation occurred." See Brown, supra, 590 A.2d at 1020. In this case, the trial court's findings are clearly erroneous and not supported by the evidence.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer is authorized to conduct a "reasonable search for weapons for the protection of the officer where he has reason to believe that he is dealing with an armed and dangerous individual . . . the officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 29, 88 S.Ct. at 1883. (citations omitted) (emphasis added). The officer must be "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer's belief that he is in danger." Id. at 21, 88 S.Ct. at 1880.

IV. Discussion and Analysis

The trial court found that the unusual route of the motorist, the passage of time before appellant stopped his vehicle, appellant's reaching movements toward the passenger side of the vehicle, the "hesitancy and nervousness" on his part, and the lateness of the hour, contributed to Hernandez's³ belief that the appellant was armed and dangerous. I will address the shortcomings of those factors.

A. The Unusual Route

The record does not support the trial court's finding that the "unusual route"⁴ appellant had taken contributed to Hernandez's belief that appellant was armed and dangerous. Appellant offered uncontroverted testimony that he turned into the alley "to avoid the lights at 3rd and Missouri." Turning into the alley, according to appellant, was a "common practice," and a "well-known shortcut." Officer Hernandez, an eleven-month veteran of the Metropolitan Police Department at the time of appellant's arrest, and the only one of three police officers involved in this incident to testify at the motion hearing, did not offer any testimony which characterizesappellant's turn into the alley as unusual.

In ruling on appellant's suppression motion, the trial court had an obligation to weigh the testimony of both witnesses concerning the route through the alley, and make an appropriate finding consistent with the evidence. Since the only evidence in the record concerning whether the route was usual vel non, comes from appellant, who was not discredited on this point, and his testimony was that the route was his usual route, the trial court's finding that the route was "unusual" is clearly erroneous as it has not one shred of support in the record. Although we are required to draw all facts and inferences in favor of sustaining the trial court's ruling, see Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc), our deference is not carte blanche and certainly not warranted where the record is devoid of any evidentiary basis for such a finding.

B. The Passage of Time Before Appellant Stopped His Vehicle

The government and my dissenting colleague attempt to create a dramatic situation of a high-speed chase based upon the trial court's statement that "[s]ome time passed before the [Appellant] stopped. . . ." Quite simply, while such a scenario makes great drama, and in other circumstances, may assist in establishing reasonable suspicion,⁵ no chase or flight occurred in this case, as recognized by the trial court in its finding that "there wasn't actually any kind of flight, or chase,...