United States v. Bennett, 85-469.

• Decision Date: 20 August 1986
• Docket Number: No. 85-469.,85-469.
• Citation: 514 A.2d 414
• Parties: UNITED STATES, Appellant, v. Henry BENNETT, Appellee.
• Court: D.C. Court of Appeals

Page 414

514 A.2d 414

UNITED STATES, Appellant, v. Henry BENNETT, Appellee.

No. 85-469.

District of Columbia Court of Appeals.

Argued June 27, 1985.

Decided August 20, 1986.

Ellen Bass, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Normal Paul Patterson, Asst. U.S. Attys., were on the brief, for appellant.

Christopher Stone, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellee.

Before MACK, BELSON and ROGERS, Associate Judges.

BELSON, Associate Judge:

Following an evidentiary hearing, the motions judge granted appellee Bennett's motion to suppress certain evidence, quantities of marijuana and phencyclidine (PCP). The United States appeals, asserting that the trial court erred in finding the government was unable to point to specific and articulable facts that warranted the police officers' actions that led to the seizure of the controlled substances. We agree, and reverse.

Undercover officers Morin and Young, members of a narcotics task force arrest team, were working in a high narcotics traffic area where PCP was known to be sold. They drove their car (apparently unmarked) into an alley and saw four men. They saw one passing money to another. They saw a third, appellee Bennett, sticking his hand into his waistband. The officers stopped the car near the suspects. Before the officers got out of the car the man who had received the money bolted in one direction and Bennett fled in the opposite direction, his hand still in his waistband, "trying to pull out whatever he had in there." The officers suspected that they had come upon a narcotics transaction. Officer Young testified that the normal pattern is for one drug seller to hold the money, and another to hold the narcotics. He was aware that sellers had previously used the same pattern and method he observed to sell drugs to undercover officers. Therefore, the officers gave chase.

Officer Young, while chasing Bennett, saw him pull on his pants zipper and finally manage to get an object out of his waistband. It was a bright and shiny object. Bennett ran between some cars and over a fence. Young ran around the end of the fence and observed Bennett apparently trying to hide the object near the base of the fence. The officer then came face-to-face with Bennett, and restrained him after a brief scuffle. A search of Bennett's person disclosed his possession of marijuana. The officers recovered the shiny object hidden near the base of the fence. It consisted of twenty-six tinfoil packets containing greenish brown weed and PCP.¹

Prior to trial, Bennett moved to suppress the tangible evidence recovered by the police as the product of an illegal search. The court held an evidentiary hearing, at which the sole witness, Officer Young, testified to the facts summarized above. Young made his observations as a member of a narcotics team familiar with the modus operandi of PCP purveyors in the area of the incident. Therefore, we know his observations were those of a person of some expertise, even though the record does not show the extent of his experience. After reviewing the evidence, the court concluded

that "under these circumstances the Police did not have any reasonable basis to chase—to initi[ate]: a chase of Mr. Bennett in this case. . . . [T]here was nothing wrong with the conduct of the defendant in this case particularly that gave the Police reasonable suspicion or any other basis on which to chase defendants." The court further concluded that Bennett's discarding the twenty-six tinfoil packets was the product of illegal police activity. Accordingly, the court ordered the suppression of the twenty-six tinfoil packets containing PCP. The court, though it did not specifically order the suppression of the marijuana found on appellee's person, clearly implied it should be suppressed.

On appeal, the government stresses that the motions judge did not conclude that the police officers had effected a stop by driving up to the four men and alighting from their car in order to approach them. Clearly, the officers did not violate the Fourth Amendment by merely approaching individuals in an alley. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (plurality opinion); Tyler v. United States, 302 A.2d 748, 749 (D.C. 1973). Instead, the government notes, the motions judge focused on the time at which the police officers began their chase, and concluded that as of that time the information possessed by the police, including the flight, did not afford adequate basis for a stop.² The government argues that as of the time the officers began to chase the fleeing Bennett, they had a particularized and objective basis for suspecting him of criminal activity. We agree.

The factors that had come to the officers' attention before they gave chase were these:

1. The events took place in a "high narcotics area" where the officers had been specifically detailed to intercept trafficking in PCP.

2. Coming upon four men standing in an alley, the officers saw one of them accepting money from another.

3. They saw a third man, Bennett, stick his hand into his waistband.

4. They knew that drug traffickers often worked in pairs, one holding the money, the other holding the drugs—sometimes in his pants.

5. Before the officers got out of their cars, the man with the money and Bennett bolted.

6. Bennett and the man with the money ran in opposite directions, (a tactic helpful to criminals working in pairs).

7. As Bennett began to run, he kept his hand within his waistband, still trying to remove something.

We are satisfied that the foregoing is an articulation of specific facts that warranted a stop.

Bennett argues that it is not "enough if the specific facts pointed out by the officer consist only of innocent behavior." Appellee overlooks the familiar precept 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. Smith v. United States, 295 A.2d 64, 66 & n. 7 (D.C. 1972) ("[c]onsidering the totality of the circumstances," including flight, Terry stop justified), cert. denied, 411 U.S. 951, 93 S.Ct. 1932, 36 L.Ed.2d 414 (1973). Even if each specific action of appellee was of itself susceptible of an explanation consistent with innocence of drug dealing, the observing police officer may see a combination of facts that make out an articulable suspicion. Here, for example, the fact that there are innocent reasons for gathering in an alley in a high narcotic area, for exchanging money, for placing one's hand in his waistband and even, perhaps, for running at the approach of persons who, though in plain clothes, are acting like police officers, it is the combination of those facts and the others listed above that we must evaluate as a basis for Bennett's stop. Id.

We note particularly the significance an officer could reasonably attach to Bennett's action in fleeing while still reaching into his waistband—before the officers even got out of their car. We are satisfied that in observing this occurrence, the officer reasonably could have believed that the fleeing suspect thought or feared that the officer was, indeed, an officer.³ Against the background of the events that had already unfolded, the officer could reasonably have regarded Bennett's flight as strongly suggesting that Bennett was a party to an illegal narcotics transaction.

In a host of opinions, this court has recognized the "general proposition that flight from authority—implying consciousness of guilt—may be considered among other factors justifying a Terry⁴ seizure." United States v. Johnson, 496 A.2d 592 597 (D.C. 1985), citing Stephenson v. United States, 296 A.2d 606, 609-10 (D.C. 1972), cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973). See also, Lawrence v. United States, 509 A.2d 614, 615-16 (D.C. 1986); United States v. McCarthy, 448 A.2d 267, 270 (D.C. 1982) (flight of defendant's companion was factor justifying investigative stop of defendant); Franklin v. United States, 382 A.2d 20, 22 (D.C. 1978) (flight from authority, first on foot, then in car, a factor in determining that there was adequate basis for stop), cert. denied, 440 U.S. 948, 99 S.Ct. 1428, 59 L.Ed.2d 637 (1979); Tobias v. United States, 375 A.2d 491, 494 (D.C. 1977) (several exchanges of small objects for money, replacement of one such object in shoulder bag upon warning that police were near, and flight gave adequate basis for stop); Smith v. United States, 295 A.2d at 66 (flight following suspicious activities regarding automobiles and their contents afforded adequate basis for stop).

We point out that the facts here are significantly different from those in Gray v. United States, 292 A.2d 153 (D.C. 1972), where we ruled that the trial court had erred in denying a motion to suppress. In Gray, the police officers approached and stopped Gray after seeing money exchanged in the street. Another man ran from the scene, but Gray did not. The police patted Gray down and found a gun. Unlike Gray, Bennett fled and while doing so kept his hand in his waistband. The grounds for stopping Bennett were stronger. In Tobias, supra, in affirming a conviction and approving a stop, we distinguished Gray on two bases, one of which was that unlike Tobias, Gray had not fled. Tobias, 375 A.2d at 494.⁵

The facts addressed at the hearing on the suppression motion were undisputed. The motions judge's findings of fact are unchallenged. But our analysis of the facts before the motions judge in the light of applicable principles of law leads us to conclude that the judge erred in concluding that there was an insufficient basis for a Terry stop, and in granting the motion to suppress. Accordingly, the order appealed from is reversed and the case remanded for further proceedings.

So ordered.

MACK, Associate Judge, dissenti...