Williamson v. US

• Decision Date: 21 April 1992
• Docket Number: No. 90-883.,90-883.
• Citation: 607 A.2d 471
• Parties: Clive WILLIAMSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

607 A.2d 471

Clive WILLIAMSON, Appellant, v. UNITED STATES, Appellee.

No. 90-883.

District of Columbia Court of Appeals.

Argued October 17, 1991.

Decided April 21, 1992.

George Harper, for appellant.

Kristan Peters-Hamlin, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Elizabeth Trosman, and JiYoung Bang, Asst. U.S. Attys., were on the brief, for appellee.

James Klein, Jo-Ann Wallace, and David Bos filed a memorandum on behalf of amicus curiae, the Public Defender Service.

Before FERREN, SCHWELB and FARRELL, Associate Judges.

PER CURIAM:

The judgment of the Superior Court is affirmed. Under the circumstances of this case, the stop of appellant was permitted by the Fourth Amendment. The reasoning in support of this conclusion is contained in all but part II.B.1. of the opinion of Judge FARRELL and in part II of the concurring opinion of Judge SCHWELB.

FARRELL, Associate Judge concurring:

This appeal presents a search and seizure issue arising in the context of "a rapidly moving street occurrence ... involving a dangerous weapon," a situation this court has observed makes "the need for immediate action" by police "more urgent" than in the case of less directly menacing offenses. Rushing v. United States, 381 A.2d 252, 256 (D.C.1978). See also Cauthen v. United States, 592 A.2d 1021, 1025 n. 8 (D.C.1991); Adams v. United States, 466 A.2d 439, 444 (D.C.1983); Galloway v. United States, 326 A.2d 803, 805 (D.C. 1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975); Cox v. United States, 256 A.2d 917, 918 (D.C.1969). Because the conduct of the police in stopping appellant was reasonable under the Fourth Amendment, the ensuing seizure of a handgun in plain view was also valid and the motion to suppress was properly denied.

I.

Following his indictment for carrying a pistol without a license,¹ possession of an unregistered firearm,² and unlawful possession of ammunition,³ appellant moved to suppress a gun and ammunition recovered from a car in which he was a passenger on the ground that he had been seized before-hand without articulable suspicion, in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At the suppression hearing the following testimony, credited by the trial judge, was given by the police officer involved.

On March 25, 1989, at 3:45 a.m., Officer Leland D. Schadt was on duty with a partner in an unmarked police cruiser, investigating a reported assault on the southwest corner of Georgia Avenue at Missouri Avenue, N.W., in the District of Columbia. Several shootings had occurred recently in the area, which was also known for its drug activity. While investigating the assault, Schadt heard several gun shots fired "across the street from the area of the southeast corner of Georgia and Missouri." He quickly walked to the corner and saw a car speed away on Missouri Avenue going east. He also saw appellant and two women "attempting to get into another car in what Schadt thought to be a very quick hurry." As Schadt approached this car, it began to back quickly out of a gas station parking lot. His gun still holstered, Schadt asked the driver to stop and directed the three occupants to raise their hands. He explained that he stopped the car because he was "unsure whether these others were tied in with the car speeding off and, perhaps Mr. Williamson's is the group where the shot was at, trying to get out of the area; or whether the car speeding off had been shot at by this group." He "was unsure who had fired the shots and whether they the occupants of this car were involved or not." Asked on cross-examination why he focused on this particular car when there were "people running all over the place," Schadt replied that the occupants of the car "seemed to be trying to get away more than anyone else," because others were leaving by "running sort of backwards" from the scene.⁴

Because he was uncertain who had fired the shots, Schadt asked the occupants to raise their hands. The two women complied but appellant, the front-seat passenger, "raised only one hand and reached down with the other hand as if he was trying to hide something." "Unsure of what appellant was doing, and having heard the gun shots," Schadt drew his pistol and again ordered appellant to raise his hands.⁵ Appellant continued to reach down, and raised his hands only after Schadt's third request to keep his hands in view. The officer ordered the occupants out of the car; when they had obeyed, he looked into the car and saw a pistol lying partially concealed under the floormat on the right front passenger side, near where appellant had lowered his hand.

In denying the motion to suppress, the trial judge credited Officer Schadt's testimony and made the following oral findings of fact and conclusions of law:

Schadt was diagonally across the corner investigating an assault that had taken place, very dangerous area, 3:00 in the morning, heard shots, from the diagonal corner, saw a car speed away, assuming that that car could have been the source of the shots, walked over to the area to investigate further.

Saw the car containing the defendant start to back up to pull away. At that point, he reasonably thought that that car could have been involved somehow in the shooting, either as the victim or as the shooter, certainly as a possible witness which, indeed, the people were.

He certainly had a basis to stop and question the people in the car, to stop the car. It was reasonable of him to ask the people to raise their hands, given his uncertainty, as to whether or not they had a weapon, given the fact that that shooting just took place when the defendant failed to obey his orders to raise both hands.

He saw the defendant reach down as if to hide something at that point. He ... certainly had grounds to pull his gun and to get the defendant out of the car for his own protection in order to neutralize the situation and to maintain his own safety.

In getting the defendant out of the car it was reasonable for him to look at the area where he reached and upon looking there saw the gun.

While I don't think there was probable cause of any sort of an offense being committed, ... there clearly was articulable suspicion and each of the acts the officer took was reasonably calculated to protect his safety and to further investigate what was clearly a serious criminal offense that had just taken place there.

The fact that the officer was alone on a dark corner in a dangerous area made his actions all the more reasonable under the circumstances.⁶

So I would find the actions he took to put him in a position to see the gun were reasonable under Terry to protect his safety and based on articulable suspicion. Emphasis added.

II.

A.

Appellant contends that when Officer Schadt "told the occupants to stop their vehicle and put their hands up, he effected a seizure under the Fourth Amendment," and that although Schadt then had "plenty of evidence that some crime had been committed, even if only the unlawful discharge of a firearm," he possessed no information "that indicated that Mr. Williamson had participated in the discharge of any firearm." According to appellant, at most the officer had cause to believe appellant had witnessed the shooting, which was inadequate to justify his seizure under Terry. The government responds first that, under California v. Hodari D., ___ U.S. ___, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), appellant was not seized until he finally put his hands up as ordered, so that his actions in furtively reaching down to the floor, combined with the other facts known to Schadt, gave the officer unassailable founded suspicion to detain appellant and order him out of the car. The government argues, alternatively, that even without the furtive gesture, the officer's conduct in stopping the car to investigate and directing the occupants to keep their hands in view was reasonable in the circumstances and satisfied the requirements of Terry.

The government's first argument based upon Hodari D. is unpersuasive. Appellant was seized when the car he occupied was stopped by a show of authority as it began backing out of the parking lot. E.g., Colorado v. Bannister, 449 U.S. 1, 4 n. 3, 101 S.Ct. 42, 43 n. 3, 66 L.Ed.2d 1 (1980) ("There can be no question that the stopping of a vehicle and the detention of its occupants constitute a `seizure' within the meaning of the Fourth Amendment"). As the trial judge concluded, Officer Schadt's direction to the car to stop, complied with by the driver and accompanied almost simultaneously by the officer's command to the occupants to raise their hands, was a seizure of the vehicle and its occupants.⁷ Therefore, the reasonableness of Schadt's conduct must be evaluated without regard to the grounds for suspicion furnished by appellant's furtive movements after the seizure.

B.

"The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, ___ U.S. ___, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Id. Derived from this underlying principle is the test for evaluating seizures of a person on less than probable cause, which "balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion." United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). One factor in the many informing this assessment is "whether the police are acting in a swiftly developing situation"; in such a case "the court should not indulge in unrealistic second-guessing." United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). Especially is that so, as our cases cited at the beginning point out, where police confront "a rapidly moving street occurrence involving a...