Tyler v. United States, 6206.

• Decision Date: 29 March 1973
• Docket Number: No. 6206.,6206.
• Parties: Jesse A. TYLER, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

302 A.2d 748

Jesse A. TYLER, Appellant v. UNITED STATES, Appellee.

No. 6206.

District of Columbia Court of Appeals.

Argued May 10, 1972.

Decided March 29, 1973.

Rehearing en Banc Denied June 7, 1973.

Salvatore A. Romano, Washington, D. C., appointed by this court, for appellant.

Ruth R. Banks, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Peter C. Schaumber, Asst. U. S. Attys., were on the brief, for appellee.

Before REILLY, Chief Judge, and PAIR and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

This is an appeal from a conviction of a charge of carrying an unlicensed weapon in violation of D.C.Code 1967, § 22-3204. Appellant assigns as error the trial court's denial of his motion to suppress the gun as evidence claiming that its seizure resulted from an illegal search of his car. Finding that the warrantless search was unreasonable, we reverse.

On September 21, 1971, at approximately 3:30 a. m., the arresting officer responded to a call for assistance from Sergeant John Hendrick who was in the alley in the rear of the 1300 block of Kenyon Street, Northwest. The sergeant did not testify on the motion to suppress, but did testify at trial substantially corroborating the officer's testimony. On the motion to suppress the arresting officer testified that when he arrived he saw the sergeant talking to appellant in front of a 1963 Pontiac. The sergeant told the officer that while he was cruising the alley, he came upon appellant sitting in the automobile on the passenger side with its engine and lights off. The sergeant said that he talked to appellant and he noticed that appellant began to get nervous and "appeared to be attempting to conceal, or was fumbling with something . . . in the area of his seat." He told the officer that he summoned help on the radio and asked appellant to get out of the vehicle. When the officer and his companion arrived on the scene, the sergeant and appellant were standing in front of the Pontiac talking.

The sergeant told the officer to get his flashlight and to shine it inside the car. The appellant and another officer, who had accompanied the arresting officer to the scene, were standing in front of the car at the time. The sergeant went to the driver's side of the car and looked in as the arresting officer opened the car door on the passenger side shining his flashlight in the interior. He testified that he saw a part of a handle of what proved to be a .32 caliber pistol protruding from under the front seat. After retrieving the gun, he placed appellant under arrest.

The appellant's testimony was not unlike the officer's in any material respect except he testified that the sergeant asked for his driver's license and car registration. However, he said that before he could look for them the sergeant ordered him out of the car and he "didn't get a chance" to produce them. There was no evidence offered on the motion to suppress as to ownership of the car, but there is no contention that it was stolen.

Appellant moved to suppress the gun contending it had been seized in violation of his rights under the fourth amendment. The Government argued that the investigation began as a lawful momentary detention for information "for which probable cause is not required". We have no problem with this¹ for the officers clearly had a right to investigate and inquire as to what the car and its occupant were doing there. However, the Government argued further that "[a]ppellant's furtive actions near the floorboard of the automobile in light of the time and the location in a high crime area must have aroused [the sergeant's] suspicions" and that it was therefore reasonable for the officers to open the car door "so that they could see the area where appellant `fumbled'."

Although furtive movements of a suspect when combined with other significant factors may warrant further investigation or even a search, there are very few articulable facts here indicating "that criminal activity may be afoot". Terry v. Ohio, 392 U.S. 1, at 30, 88 S.Ct. 1868, at 1884, 20 L. Ed.2d 889 (1968). While appellant's presence in the alley may indicate a parking violation, the surrounding facts are meager at best to establish appellant as a criminal suspect. The sergeant's observation, that appellant was beginning to get nervous and that he appeared to be fumbling with something in the area of his seat, without other grounds to believe the suspect might be engaging in criminal conduct, is not sufficient to support a warrantless search. Watts v. United States, D.C.App., 297 A.2d 790 (1972); United States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969); People v. Superior Court of Yolo County, 3 Ca1.3d 807, 91 Cal.Rptr. 729, 739, 478 P.2d 449, 459 (1970); People v. Pitts, 40 Mich.App. 567, 199 N.W.2d 271 (1972).

Neither do the facts bring this case within any of the exceptions to the warrant requirement set forth in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See generally Annot., 10 A.L.R.3d 314 (1966). We must deem the opening of the car door after appellant had exited the car the beginning of a search. But appellant here had not been accused of any criminal activity, nor had he been charged with illegally parking. In short, before the officers opened the car door there was no indication appellant had done anything for which he would be taken into custody. The Government's reliance on McGee v. United States, D.C.App., 270 A.2d 348 (1970), where there was a search incident to an arrest for the purpose of protecting the officers, is misplaced. Here the search could be described as a search prior to an arrest which may not be sustained if made without a warrant or probable cause, or the owner's consent.² In a companion case to Terry v. Ohio, supra, the Supreme Court said: "It is axiomatic that an incident search may not precede an arrest and serve as part of its justification." Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968).

The Government contends that the evidence came into the plain view of the officer and is therefore within an exception to the requirement of a warrant to search. It relies on United States v. Johnson, 143 U. S.App.D.C. 215, 442 F.2d 1239 (1971); Davis v. United States, D.C.App., 284 A.2d 459 (1971); and Dorsey v. United States, 125 U.S.App.D.C. 355, 372 F.2d 928 (1967).

None of these cases would seem to offer much, if any, support for the Government's position. United States v. Johnson, supra, presented a situation of the police giving chase to a car that did not have a 1970 license sticker. The vehicle did not stop when the officers turned on their siren and dome light and it ran a red light before the car stalled. The United States Circuit Court for the District of Columbia held that the officer was lawfully entitled to approach the car, to require the driver to get out (if that would have been necessary, which it was not because appellee [Johnson] did so voluntarily) and to conduct a protective frisk for weapons. The court stated that "the [narcotic] capsules were thereby put in plain view of anyone approaching the car on lawful business" since Johnson got out of the car leaving the door open and the car floor illuminated by the automatic lighting of the interior dome light. The officer had a right to be where he was when the evidence came into plain view. Additionally, there was no search or intrusion such as occurred here.

Davis v. United States, supra, also stands on a different footing than the case at bar. In Davis the police had received a radio message that a man named Davis was sitting in a car in the vicinity with a gun. The car was identified as a white Rambler and its location and license plate number were given. The police checked out all of these factors before they asked appellant to get out and then opened the other car door. The court in Davis said that because the man in the car was reported to have a gun, asking him to get out constituted a reasonable investigative precaution. The court added that it was prudent police work for the officers to protect themselves by keeping a constant view of the man by opening the other car door as he exited. Such a justification does not exist in the case at bar as there was no police report accusing appellant of having a gun, nor was there any reason to believe a crime other than a parking offense had been committed. Further, appellant had already exited the car.

In Dorsey v. United States, supra, the officers were in an area at night where the squad constantly received complaints about narcotic peddling and the court held that when they recognized appellants (sitting in a car) as persons with narcotics records, they were entitled to extend the preventive patrolling mission to the extent of approaching the car and observing what was going on inside. The narcotics were seen by the officers in plain view through the car window. No doors were opened by the officers in Dorsey and the officers had a right to be where they were when they saw the narcotics. We have no problem with those decisions, but they are inapposite here.

The United States Supreme Court has said that the plain view doctrine applies to

. . . objects falling in the plain view of an officer who has a right to be in the position to have that view. . . . [Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968).]

This raises the question as to whether or not the arresting officer had the right to be in the position he was in when the gun came into plain view. This court relied on the Harris opinion in deciding Wise v. United States, D.C.App., 277 A.2d 476 (1971), where the officers' interest was prompted by a radio run regarding a robbery. There the court observed

. . . there was no search here. The narcotics were observed in plain view . . . . when appellant unsuccessfully attempted to conceal them. It follows that the legality of...