Smith v. United States

• Decision Date: 28 April 1989
• Docket Number: No. 84-1643.,84-1643.
• Citation: 558 A.2d 312
• Court: D.C. Court of Appeals
• Parties: John H. SMITH, Appellant, v. UNITED STATES, Appellee.

558 A.2d 312

John H. SMITH, Appellant, v. UNITED STATES, Appellee.

No. 84-1643.

District of Columbia Court of Appeals.

Argued En Banc November 12, 1987.

Decided April 28, 1989.

Robert J. Murphy, for appellant. Michael W. Farrell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, Judith Hetherton, Thomas E. Zeno, Washington, D.C., and Mark G. Gellar, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge,¹ and MACK, NEWMAN, FERREN, BELSON, TERRY, and STEADMAN, Associate Judges, REILLY and PRYOR,² Senior Judges.

NEWMAN, Associate Judge:

Following a suppression hearing and a bench trial, appellant was convicted of carrying a pistol without a license. On his appeal, a majority of a division of this court affirmed his conviction, rejecting appellant's argument that the pistol was seized in violation of his Fourth Amendment rights and that its admission into evidence was constitutional error. Smith v. United States, 525 A.2d 200 (D.C.App.), vacated, 581 A.2d 288 (D.C.App.1987). We granted appellant's petition for rehearing en banc and vacated the division's opinion and judgment. We hold the police did not have a sufficient basis to conduct a Terry³ stop. We reverse the conviction.

I.

On March 22, 1984, while working near 12th and U Streets, N.W., an area known for its high incidence of narcotics trafficking, an undercover police officer purchased narcotics from two individuals; he immediately broadcast a description of them to waiting arrest teams. Two minutes later, four officers, who were dressed in casual clothing and travelling in an unmarked police cruiser, arrived at the scene. There Officer Lawson, `an experienced officer in narcotics related activities, observed appellant Smith conversing in a parking lot with two persons fitting the descriptions in the broadcast. Although Officer Lawson observed other persons in the parking lot, Smith was the only person he observed in the immediate vicinity of the two suspects.

As the vehicle driven by Lawson arrived at a "fast clip," Smith began leaving at a "very fast" pace. While Officer Lawson followed Smith, the remaining officers followed the two other individuals. Believing that Smith might have participated in the narcotics transaction as the money man and might have possessed prerecorded funds, Officer Lawson testified that he identified himself as a police officer and asked Smith to stop. When Smith stopped, he responded that he had nothing to do with the two other men and then continued to walk away. It was at this point Lawson placed his hand on Smith's shoulder. Reacting, Smith spun away and attempted to hit Lawson in the face. A struggle ensued and the two men fell to the ground. Smith was subdued and a pistol was recovered from his pocket.

Appellant was charged with assaulting a police officer, and carrying a pistol without a license. He moved to suppress the weapon. The trial court refused to suppress the pistol, holding that the police had an adequate basis to conduct a Terry stop. Following a bench trial, Smith was acquitted of the assault charge but convicted of carrying a pistol without a license.

II.

In any challenge of a conviction based upon a claim of an improper Terry stop, we must initially determine whether a Fourth Amendment seizure has occurred. Here, such a seizure exists, since, as the trial court found, Lawson's show of authority by both announcing he was a police officer and ordering Smith to stop was an investigative seizure implicating Fourth Amendment protections. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); In re D.J., 532 A.2d 138, 140 (D.C.App.1987).⁴ However, to justify such an intrusion upon the constitutionally protected interests of a private citizen, a "police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted).

The United States points to several factors, which in its view, justified the stop: (1) appellant was engaged in a conversation with two men who less than two minutes before had been the subjects of a radio run for a narcotics transaction; (2) no other persons were in the immediate area; (3) the experienced police officer was aware that narcotics sales are often made by several persons working as a team; (4) the neighborhood was a high narcotics trafficking area; and (5) appellant attempted to leave hurriedly when the officers suddenly appeared on the scene. Terry compels us to evaluate the totality of the circumstances constituting articulable suspicion. See id. at 21, 88 S.Ct. at 1880; United States v. Bennett, 514 A.2d 414, 416 (D.C.App.1986). We thus examine all these factors individually and collectively, for to adequately evaluate the whole, it is helpful to evaluate the constituent parts.

The government attaches significant import to factor (1), i.e., Smith was engaged in conversation with suspected drug dealers. However, "[p]resumptions of guilt are not lightly to be indulged from mere meetings." United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948). In the context of probable cause for arrest, the Supreme Court has eschewed the notion of guilt by association. In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the companion case to Terry, the police approached and searched Sibron for the sole reason that he had been observed talking to several known narcotics addicts over a period of eight hours. The court ruled that the heroin found in the search of Sibron's person was inadmissible against him, stating:

It must be emphasized that Patrolman Martin was completely ignorant regarding the context of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed `have been talking about the World Series.' The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security.

Id. at 62, 88 S.Ct. at 1902.

This principle was reinforced in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), a case involving the illegal search of a man present at a tavern in which the police were executing a search warrant of the premises, and of the bartender who was suspected of distributing heroin. Emphasizing that "Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing suspicious to the police officers," id. at 91, 100 S.Ct. at 342, the Court, citing Sibron, reiterated that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id.⁵

Courts in other jurisdictions have been faithful to Sibron and Ybarra in rejecting articulable suspicion arguments based upon guilt by association. See, e.g., People v. Ballejo, 114 A.D.2d 902, 495 N.Y.S.2d 75, 71 (1985) (police suspected defendant because he accompanied a person hiding cocaine; court held that Terry frisk improper because "no . . . inference of guilt by association is permissible"); Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980) (Terry frisk improper when person's mere presence at premises which were being searched pursuant to a warrant), cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981); State v. Larson, 93 Wash.2d 638, 642, 611 P.2d 771, 774 (1980) (parking violation by driver is insufficient grounds for Terry stop of passenger).⁶

The courts in the District of Columbia have also rejected articulable suspicion arguments based upon guilt by association. See Hinton v. United States, 137 U.S. App. D.C. 388, 391-92, 424 F.2d 876, 879-80 (1969) (recognizing that "[c]ourts have never countenanced arrest by association," the circuit court found probable cause because of Hinton's flight after his companion had been searched and found to possess contraband, the fact that he was on his way to a suspected narcotics "pad," and his association with a known narcotic user who had an outstanding court attachment against him); U.S. v. Johnson, 496 A.2d 592, 597 n. 4 (D.C.App.1985) (Terry case stating that "one person's flight is imputable to another only if other circumstances indicate that flight from authority implies another person's consciousness of guilt. . . .") (emphasis added); see also Lyons v. United States, 221 A.2d 711 (D.C.App.1966) (pre-Terry probable cause case) (holding that defendant's association with a known narcotics user, who in fact possessed narcotics at the time of his arrest, did not constitute probable cause).

The first factor, standing alone, would be insufficient to pass Fourth Amendment muster. Indeed the government does not contend otherwise.

The second factor — the absence of other persons in the immediate vicinity of the two suspects — is merely a sub-set of the first factor. To give validity in any measure to the first factor, one would have to consider the number of persons conversing with or in the immediate vicinity of the drug suspects. This second factor, in fact, adds little, if anything, to the first factor. The third factor urged by the United States is Officer Lawson's knowledge that drug sales are often made in a team. The inference in this case that a reasonable police officer could rationally draw from this knowledge has limitations. Smith was not present at the drug transaction reported by the undercover agent. The radio call which subsequently went out contained no description of anyone resembling Smith. Officer Lawson testified that he...