United States v. Barnes, 84-1433.

• Citation: 496 A.2d 1040
• Decision Date: 16 August 1985
• Docket Number: No. 84-1433.,84-1433.
• Parties: UNITED STATES, Appellant, v. Keith W. BARNES, a.k.a. Ricky 0. Barnes, Appellee.
• Court: D.C. Court of Appeals

Page 1040

496 A.2d 1040

UNITED STATES, Appellant, v. Keith W. BARNES, a.k.a. Ricky 0. Barnes, Appellee.

No. 84-1433.

District of Columbia Court of Appeals.

Argued March 28, 1985.

Decided August 16, 1985.

Bradley L. Kelly, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty. and Michael W. Farrell and Zinora M. Mitchell, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

James G. McGuire, Washington, D.C., for appellee.

Before PRYOR, Chief Judge, and FERREN and BELSON, Associate Judges.

FERREN, Associate Judge:

In this appeal, the United States challenges the trial court's order granting appellee's motion to suppress a pistol and ammunition seized from his person and used as the basis of the weapons charges against him. Because we conclude that the circumstances justified a Terry¹ stop and frisk, we reverse and remand for trial.

I.

On March 29, 1984, at about 10:00 p.m., Officers Robert Clark and Michael Turner were sitting in a marked police car parked on the 1000 block of 14th Street, N.W. Officer Clark had patrolled that location before and regarded it as a "high crime area." He observed appellee standing in front of a men's clothing store. Appellee was looking up and down the street while a companion went in and out of the store two or three times, exchanging words with appellee as he entered and exited. Officer Clark observed this behavior for five or ten minutes and found it "suspicious" because appellee's companion appeared to be "cas[ing]" the inside of the store before closing time while appellee was acting as a lookout.²

Officer Clark approached appellee and asked him to remove his hands from his pockets. Clark then inquired what appellee was doing there. He replied that he was "[b]asically just hanging around, had no business," and was "[j]ust basically wasting time." Clark asked appellee if he had ever been arrested; he replied that he had been arrested for armed robbery. Officer Clark testified that he then observed a bulge in the stomach area of appellee's windbreaker which "looked unusual."³ Clark touched the bulge and thought it felt like a gun. Clark asked appellee to put his hands on the police car and then removed a revolver from appellee's jacket. Clark arrested appellee and advised him of his rights.

After hearing testimony from the two officers and from appellee, the court concluded that the facts did not "justify a suspicion sufficient to stop [appellee] and to conduct a search." The court then granted the motion to suppress.⁴

II.

In every Terry controversy, the central question is whether the circumstances at the time of the seizure,⁵ were such that the police officer reasonably could conclude, in light of his or her experience, that there was impending criminal activity. Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Accordingly, there must be "some particularized and objective justification" for the seizure. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion).

In resolving the propriety of a seizure, the court often confronts a threshold question of considerable legal significance — When did the seizure occur? — for "not all personal intercourse between policemen and citizens involves `seizures' of persons." 392 U.S. at 19 n. 16, 88 S.Ct. at 1878 n. 16. Suppose, for example, that a police officer approaches someone on the street and, through questioning, elicits answers which, when added to other circumstances, would justify a Terry seizure and related frisk that could not constitutionally be justified by the other circumstances alone. If the approach and questioning produced merely a "consensual encounter," Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984), the eventual seizure and frisk, premised in part on the answers to police questions, would be lawful. But if the approach and questioning amounted to a seizure — i.e., physical force or a show of authority such that a reasonable person would not believe he was free to leave — that seizure would be unconstitutional, and thus the later, more formal detention and related frisk would be as well.

A.

In this case, the government argues — citing the facts in Terry itself — that the conduct of appellee and his companion in front of the clothing store presented a sufficiently objective basis for a Terry seizure before Officer Clark left his car to approach appellee; thus, says the government, we do not need to evaluate whether the seizure occurred before or after Clark asked questions. We disagree.⁶ We are satisfied that before Officer Clark asked appellee to take his hands out of his pockets and to answer two questions — "What are you doing here?" and "Have you ever been arrested?" — there was no "particularized and objective justification," Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, for a Terry seizure.

Appellee's standing in front of a store just before it closed, looking up and down the street while a companion went in and out a few times and conferred with appellee on each occasion, is not sufficiently suspicious — even in a "high crime" area — to warrant an investigative seizure of the person. Such behavior, while somewhat suspicious, is capable of too many innocent explanations to justify such an intrusion; for example, the two men could have been waiting impatiently for an employee friend to get off work, or they may have been manifesting a frustrated ambivalence about whether to make a particular purchase. See Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 2637, 2640-2641, 61 L.Ed.2d 357 (1979) (no justification for seizing appellant seen walking away from another man in alley in area known for drug traffic); Robinson v. United States, 278 A.2d 458, 459 (D.C.1971) (no basis for seizing appellant observed walking with another man down street at 2:00 a.m. and then standing with him in an apartment garage). Cf. United States v. Johnson, 496 A.2d 592, 594, 595 (D.C.1985) (persons parked in car late at night in high crime area do not, "`without more, present specific, articulable facts warranting suspicion of criminal activity'") (citation omitted). Accordingly, if the officer's approach and questioning constituted a seizure, it was unconstitutional, and the pistol and ammunition recovered from the ensuing frisk would have to be suppressed. See Robinson, 278 A.2d at 459.

B.

We therefore squarely confront the question whether Officer Clark's approach and questioning produced a "consensual encounter," Delgado, 104 S.Ct. at 1762, or a seizure. Recently, in Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (citations omitted), the Supreme Court stated:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.⁷

On the other hand, in Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, the Court had given "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave":

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.⁸

Putting Royer, Mendenhall, and other cases together, the Court last year in Delgado, 104 S.Ct. at 1762-63, summarized the current state of the law:

Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment . . . [it] is apparent . . . that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. [Citation omitted.] Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.

The Court has made clear, moreover, that the police also may ask a person to do something, such as produce identification or an airline ticket, see Royer and Mendenhall, without necessarily converting the encounter into a seizure.

Thus, for Terry purposes, the Court has virtually deemed a police approach for questioning on the street to trigger a "consensual encounter," Delgado, 104 S.Ct. at 1762, absent "intimidating" circumstances beyond the natural sense of obligation almost anyone would feel when a police officer begins asking questions.⁹

Although the Court has not said so, there may be a practical policy reason why it has gone so far to find consensual encounters, not seizures, when the police question persons on the street. As in this case, the conduct of appellee and his companion, while consistent with innocent explanations, was also consistent with potential criminal activity. Thus, "[i]t would have been poor police work" for Officer Clark, who was "experience[d] in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further." Terry, 392 U.S. at 23, 88 S.Ct. at 1881. On the other hand, the Court has characterized the Fourth Amendment guarantee against unreasonable searches and seizures as an ...