Purce v. United States, No. 83-222.

• Docket Nº: No. 83-222.
• Citation: 482 A.2d 772
• Case Date: October 01, 1984
• Court: Court of Appeals of Columbia District

482 A.2d 772 Farrish M. PURCE, Appellant,
v.
UNITED STATES, Appellee. No. 83-222. District of Columbia Court of Appeals. Argued December 15, 1983. Decided October 1, 1984.

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Marjorie E. Murphy, Washington, D.C., appointed by this court, for appellant.

John H. Palmer, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell, Thomas J. Tourish, Jr., Robert J. Behm, and Terence J. Keeney, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before TERRY and ROGERS, Associate Judges, and KERN, Associate Judge, Retired.^*

TERRY, Associate Judge:

Appellant was convicted of carrying a pistol without a license,¹ possession of an unregistered firearm,² and possession of unregistered ammunition.³ On appeal he challenges only the trial court's denial of his motion to suppress evidence. We find his challenges without merit and affirm the conviction.

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I

Shortly before sunrise on a Sunday morning in October 1982, at about 6:45 a.m., Officer Sal Lauro of the United States Park Police was patrolling near the Carter Barron Amphitheater in Rock Creek Park when he decided to make a routine check of the amphitheater's parking lot. The lot is used by several bus companies to pick up and discharge passengers who take overnight trips, and as a result unattended automobiles are frequently left in the lot for extended periods of time. Officer Lauro knew that there had been recent larcenies from some of these parked cars, so he drove through the lot to make sure that "everything was okay." There were about forty or fifty cars in the lot, and in one of them Officer Lauro discovered appellant seated in the right front seat. His eyes were closed, and his head was slumped to one side. He appeared to be either asleep or unconscious. The officer stopped his cruiser about ten feet away from the car in which appellant was sitting. By radio he checked its license number through the police computer to see if it had been reported stolen. He found that it had not been, but he also found that it was registered to a female owner.

Officer Lauro then got out of his cruiser and walked over to the car with a flashlight in his hand. He tapped on the window next to appellant to find out whether he might need some assistance. At the sound of the tapping appellant woke up. The officer asked him to roll down the window; when he did so, Lauro asked him for some identification and an explanation of what he was doing there. Appellant replied that he was waiting for his girl friend to return from a bus trip, but he failed to identify himself, so the officer asked him again for identification. Appellant began to rummage through his pockets and the glove compartment of the car while Officer Lauro waited for a response. As he stood there next to the car, the officer saw a package of cigarette papers and a brown manila envelope, of the sort "commonly used to package marijuana," lying on the console between the two front seats. He asked appellant to hand him the envelope and the cigarette papers, and appellant passed them to the officer through the open window. Officer Lauro then asked him a third time for identification, and at the same time he opened the envelope, looked inside, and recognized its contents by sight and smell as marijuana.

After asking appellant a fourth time for identification, Officer Lauro spotted what appeared to be a "small telephone book"⁴ in appellant's back pocket when appellant leaned forward. Thinking that he was attempting to conceal his identity, Officer Lauro ordered him to get out of the car so that he could examine what was in his back pocket. Appellant stepped out of the car without his shoes on. As he leaned back into the car to get them, the officer shined his flashlight into the front seat area and saw what appeared to be the butt of a gun protruding from under the floor mat on the passenger's side, where appellant had been sitting. Lauro grabbed appellant and took him to the rear of the car, where he patted him down for weapons but found none. He then went back to the open front door, reached into the car, lifted the floor mat, and found a .22 caliber automatic pistol loaded with six rounds of ammunition. Officer Lauro placed appellant under arrest, searched him, and found eight more rounds of ammunition for a .22 automatic in his pocket. Appellant then told the officer that he had the gun for protection because he had to wait in a dark parking lot for his girl friend.

Appellant moved to suppress the gun, the ammunition, and the statement.⁵ The

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trial court denied the motion on the ground that the officer had seen the gun in plain view when appellant got out of the car, and that the gun gave him probable cause to arrest appellant. We affirm the denial of the motion, but on different grounds.⁶

II

Appellant's principal contention is that Officer Lauro's request for identification constituted a detention or seizure, and that it was unlawful because the officer had no articulable suspicion that appellant had committed or was about to commit a crime. The government argues, to the contrary, that the officer's request was not a seizure, a detention, or even a stop. We think the government has the better argument.

This court has intimated on several occasions that a police officer's request for identification does not invade rights protected by the Fourth Amendment. E.g., Sanders v. United States, 339 A.2d 373, 376 (D.C. 1975); United States v. Lee, 271 A.2d 566, 567-568 (D.C. 1970). See also United States v. Wylie, 186 U.S.App.D.C. 231, 236-237, 569 F.2d 62, 67-68 (1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978) (distinguishing between mere police-citizen "contacts," which are not subject to Fourth Amendment limitations, and investigative stops). Only when there is some restraint on a person's liberty, either by force or by a show of authority, is there a seizure of that person. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Very recently the United States Court of Appeals for this circuit has held, in a case quite similar to this one, that "as a matter of law, a request for identification cannot constitute a show of authority sufficient to convert an innocent encounter into a seizure." United States v. Castellanos, 235 U.S.App.D.C. 277, 281, 731 F.2d 979, 983 (1984). We agree with that holding and adopt it in this case.

The Supreme Court was confronted with this question in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In that case two drug enforcement agents saw the defendant alight from a plane at the Detroit airport. After concluding that her conduct fit the so-called "drug carrier profile," the agents approached her, identified themselves, and asked to see her identification and airline ticket. In rejecting the argument that this encounter had amounted to a seizure of her person, Justice Stewart observed that a seizure occurs "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. 554, 100 S.Ct. at 1877 (footnote omitted).

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Id. (citations omitted). Justice Stewart then concluded:

On the facts of this case, no "seizure" of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent's identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions.

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Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. . . . In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents' initial approach to her was not a seizure.

Id. at 555, 100 S.Ct. at 1877-78 (citation omitted).

Although this view did not command the support of a majority...