Smith v. United States, 84-1643.

• Decision Date: 29 April 1987
• Docket Number: No. 84-1643.,84-1643.
• Citation: 525 A.2d 200
• Parties: John H. SMITH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

525 A.2d 200

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

No. 84-1643.

District of Columbia Court of Appeals.

Submitted January 23, 1986.

Decided April 29, 1987.

Robert J. Murphy, was on the brief for appellant.

Joseph E. diGenova, U.S. Atty., with whom Michael W. Farrell, Judith Hetherton, Thomas E. Zeno, and Mark G. Cellar, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

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

PER CURIAM:

Appellant was convicted, following a bench trial, of carrying a pistol without a license, D.C. Code § 22-3204 (1981). On appeal, he asserts that the pistol should have been suppressed because the officers stopped him and seized the pistol without adequate basis, and that the evidence was insufficient to sustain his conviction. We affirm.

On March 22, 1984, an undercover officer purchased drugs from two individuals near 12th and U Streets, N.W., an area which is, according to the testimony, known for its high incidence of drug trafficking. Following the purchase, the undercover officer gave waiting arrest teams a description of the two persons from whom he purchased the drugs.

Officer Freddie Lawson, who had spent six of his sixteen years on the police force in narcotics-related activities, was a member of an arrest team. His team arrived at the scene within two minutes of the broadcast. He saw appellant conversing with the two persons who fit the descriptions of the narcotics traffickers given by the undercover policeman, and saw no one else in the immediate vicinity. Some other persons were "over on the other side of the parking lot." Lawson stopped his car and he and three other members of the team began to get out of it. Appellant started to leave at a very fast pace.

The three other officers approached the two persons who fit the descriptions given by the undercover officer. Lawson followed appellant. Thinking that appellant might have been involved in the drug transaction as the person who held the cash, and might be in possession of prerecorded funds, Lawson told appellant he was a police officer and asked him to stop. Appellant stopped and said he had nothing to do with the two people. When appellant attempted to walk away, Lawson placed his hand on appellant's shoulder. As Lawson did so, appellant spun around and swung his hand at Lawson's face. The two struggled and fell to the ground. After appellant repeatedly tried to reach for his right vest pocket, one of the other officers placed his hand on the pocket and felt the butt of a gun. A loaded .22 caliber pistol was found in the pocket. Appellant was then placed under arrest.

Appellant moved that the gun and other evidence not pertinent here be suppressed. The judge granted the motion in other respects, but denied as to the gun in question, concluding that "under [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] it was proper to stop and search and that thereafter, the seizure was proper."

On appeal, appellant argues that the circumstances did not provide sufficient basis for a Terry stop. We disagree. Deeming the officer's placement of his hand on appellant's shoulder a stop under the circumstances present here, see United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (circumstances tending to indicate a seizure include "some touching of the person of the citizen" by an officer), we are satisfied that the officer had sufficient articulable suspicion by that point to stop appellant.

We have recently noted that "in evaluating behavior for purposes of assessing whether there existed a basis for a stop or seizure, we must look to the totality of what the police observed." United States v. Bennett, 514 A.2d 414, 416 (D.C.1986). In this case, Officer Lawson observed these specific and articulable facts before stopping appellant: 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; no other persons were in the immediate area; the experienced police officer was aware that narcotics sales are often made by several persons working as a team; the neighborhood was a high narcotics trafficking area; and appellant attempted to leave hurriedly when the officers suddenly appeared on the scene.

We have previously recognized the significance of several of these factors. The experience of the officer with the modus operandi of narcotics transactions is relevant to whether he made a reasonable conclusion that criminal activity was afoot; here, that appellant was likely to be involved in the transaction. See Terry, supra, 329 U.S. at 23, 30, 88 S.Ct. at 1881, 1884; see also Harris v. United States, 489 A.2d 464, 466 (D.C.1985) (drug dealers often work in teams of two to three to minimize the dangers of robbery and arrest). The fact that this conduct occurred in a high narcotics trafficking area also increases the likelihood that it was criminal in nature. Price v. United States, 429 A.2d 514, 518 (D.C.1981). Furthermore, the flight of appellant when Lawson attempted to question him implies "consciousness of guilt" and weighs significantly in justifying the Fourth Amendment seizure. Bennett, supra, 514 A.2d at 416 (and cases cited therein). Although the matter is close, we regard the circumstances sufficient to warrant the stop.¹

Appellant's argument that the evidence was insufficient to support guilt is without merit. In re S.P., 465 A.2d 823, 826 (1983).

Affirmed.

NEWMAN, Associate Judge, dissenting:

"Presumptions 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). And yet, it is implicit in the majority opinion that an entirely innocent person, by "merely meeting" with other persons suspected of criminal activity in a high-crime area, may draw enough suspicion upon himself to justify his being detained by the police. I am deeply disturbed to see the principle of guilt by association taking foothold in our Fourth Amendment jurisprudence, and must, therefore, dissent.

I

To justify 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, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The majority, properly deeming Officer Lawson's act of placing his hand upon appellant Smith's shoulder to have constituted a seizure under Terry, points to several articulable facts which it considers to have warranted 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; (5) and the appellant attempted to leave hurriedly when the officers suddenly appeared on the scene." Majority Opinion at 201.

The majority's factors (2) through (5) are, at bottom, "makeweight" factors. The real issue here, of course, is Smith's presence in the parking lot with two people fitting the description given in the police lookout. This is the anchor of the "articulable suspicion" in this case, without which the other circumstances would have little importance.

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 content 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 later 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 warrant search 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 suggesting an attempt to conceal contraband, and said nothing suspicious to the police officers, 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. at 91, 100 S.Ct. at 342.¹

Courts in other jurisdictions have been faithful to Sibron and Ybarra in rejecting probable cause and articulable suspicion arguments based upon guilt by association. See, e.g., People v. Martin, 32 N.Y.2d 123, 245, 246, 343 N.Y.S.2d 343 N.Y.S.2d 343 (1973) ("mere presence at a narcotics transaction did not constitute probable cause"); People v. Ballejo, 114 A.D.2d 902, 495 N.Y. S.2d 75, 77 (1985) (police suspected defendant because he accompanied a person seen hiding cocaine; court held "no such inference of guilt by association is permissible"); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973) (no probable cause for search of property...