Brown v. United States

tifying detail. SCHWELB, Before FERREN that he was al- GALLAGHER, testified Judges, and Officer Walker Associate vicinity when he immediate Judge. ready in the Senior fifty testified that in He Officer Walker report radio. heard the over seventy drug in which sixty arrests time, approxi- at that observed said that drugs had dis- participated,3 been he had quickly mately fifty He people area. He in film canister. stated however, covered two, suspects all but ruled out apparently the canister point, one while only potentially two matched thought pocket, he had still in Brown’s description.1 Having so nar- broadcast explained Elaborating, he was a knife. requested field, over the officer rowed past he had discovered num- that in the description be re- radio lipstick containers and of knives ber hearing it for a second After broadcast. alone, that, since he was he was concerned time, remain- one of the two eliminated testified safety. his Officer Walker about suspects that individ- ing potential canister, ex- opened then film that he height wear- 6'2" in and was ual was about he so because he did not plaining that There ing a shirt and white shorts.2 white canister, in it. From the know what was who, according only person one left was packets four the officer extracted tin-foil Walker, description matched the Officer proved mar- later to contain POP and which had been broadcast over the radio. which placed He Brown under arrest. ijuana. That man was Marvin Brown. principal issues which arose One of the that he walked Officer Walker testified during hearing wheth- suppression was up to Brown and called out “sir!” Brown er, extent, matched the and to what Brown away crisp began to walk turned seller. Officer description of the broadcast out to Brown pace. officer called subject by questioned on the Walker was more, finally eye con- twice established counsel, were inconclu- but the results both respond. with him. still did not tact Brown that, so far as sive. The officer testified Brown, told stopped Walker then Officer knew, photograph was no taken of he there somebody him that he fit the his He Brown in connection with arrest. selling drugs, alleged to be who was writing or could not recall what said he requested produce him to some identifica- design, appeared shirt. any, if on Brown’s Brown stated that he did not have tion. police report on his that He had written any. he wearing pants; ex- Brown was maroon jeans discrepancy plained the from blue having stop, Officer After made the indicating lookout that reported object noticed an Walker Brown’s from a pants might looked blue object pocket. He stated that the “looked initially could not distance. Officer Walker [long],” to be about four inches and that which Brown the trousers recall whether pocket his “just extruded from a little bit.” long wearing pants or shorts. was was, object He asked twice Brown what examination, how- He testified on redirect reply. Brown did not Officer Walker ever, shorts, he would had been that holding on to patdown, then conducted report. noted have so extruding object clothing. over Brown’s sup- briefly that at the He testified he asked Brown for also testified Brown he was object hearing. was. When He stated pression third time what he was again officer tall. He testified respond, Brown failed to to 5'9" 5'8" shirt which described pocket. wearing It turned a tan seized it Brown’s and that Pacific shirt”4 “just like an Ocean a film out canister. eighty- roughly seventy to people 3. This translates The officer stated that the whom promptly percent. eliminated from consideration includ five ladies, young as men ed a number of well shorts, wearing windbreakers sweat suits. (or perhaps subject of this remarkable 4. The following unremarkable) vi- generated the shirt asked, was not and did not ex- 2.The officer gnette: why eight plain, an individual who inches it an OP shirt? COURT: Was THE tip, person taller than the described in the PROSECUTOR]: BY Q: wearing [THE who white shorts rather than blue shirt? is an OP What jeans, a viable candidate even remained after Ocean Pacific. A: That's had been most of those eliminated. come from suspicion on it.5 articulable has to nothing there was at all written account, he did not And this offi- According to Brown’s the officer’s observations. area, description at all—his in the match the broadcast cer said that he was there shirt, height, and shorts all differed from paid at all to this but had no attention seller’s, alleged and no other informa- up got until the time he the radio man tip. provided that, tion had been run. And after all he saw was description, the man somewhat fit the II away from him when he and walked him. called THE TRIAL COURT’S DECISION paradoxical result of this The somewhat judge explicitly The trial disbelieved Offi- analysis found was that suspected testimony that he cer Walker’s cause to arrest Brown but articulable that Brown had a knife.6 The him. inability also troubled the officer’s wearing on the recollect what Brown was Ill night question. Observing deter- mining tip a citizen’s is trustwor- whether CAUSE, PROBABLE ARTICULABLE thy, the “has to look how detailed the court SUSPICION, AND TOTALITY OF contains,” tip information is ... THE CIRCUMSTANCES judge expressed concern that the de- scription seller “somewhat lack- probable cause to arrest An officer has Nevertheless, ing specificity.” he denied in reason an individual when he or she has suppress Brown’s motion to ably trustworthy information at the mo testimony that he

the officer’s observed a ment of arrest “sufficient to warrant descrip- people two who seemed to fit the believing prudent [person] in reasonably tion, singled this defendant due but out [suspect committed or has] [is] height closely approximating to his more Ohio, committing an 379 offense.” Beck possible the radio run than other 225, 228, 89, 91, 96, 223, 13 U.S. 85 S.Ct. suspect, as well as his individual recollec- (1979); 142 see also Gerstein v. L.Ed.2d suspect the other white 854, tion that wore 103, 111, 861, Pugh, 420 U.S. 95 S.Ct. shorts, reason, mind, my is a to credit (1975). 54 “This standard ... 43 L.Ed.2d he, fact, testimony, and find that represents necessary accommodation be a probable arrested Marvin Brown with right liberty tween the individual’s cause believe that he was the ... duty [t]o to control crime.” Ger the State’s run. person described the radio 112, stein, 95 S.Ct. at supra, 420 U.S. at Supreme stated 862. As the Court judge against ruled 160, States, 338 U.S. Brinegar v. United theory, namely, on its alternative that Offi- 1311, 176, 1302, L.Ed. 1879 93 69 S.Ct. cer Walker’s actions could be viewed as (1949), investigatory stop pursuant to Ter- proper practical, Ohio, 1868, probable cause is 20 rule of ry v. 392 U.S. [t]he conception affording the (1968), that articulable nontechnical L.Ed.2d 889 compromise that has been found probable suspicion ripened into cause as best opposing in- accommodating often these subsequently unfolded. The events unduly Requiring more would ruling terests. based this on his belief that stated, things, Oh, among that "I other Q: 6. The Ocean Pacific? thought a knife really the officer on, [Prosecutor], don’t think get THE COURT: Come Ms. that "I He remarked was in the film canister.” wave with it! New stuff! testimony.” de- buy angle He of his don't credibility "high and Officer Walker’s scribed response question to a whether there was low,” interpretation gave to that a charitable but shirt, on the Brown states that "[i]t’s cartoon intentionally finding: tried to de- "Not that pictures, even a cartoon. Just like like—not like all, court, you are after ceive the colors, goes way pictures. Just and it all the arrests, get you confused making tend a lot of around." sometimes....” 1013 liberty jealously interests which must be hamper law enforcement. To allow less law-abiding guarded, bring citizens at their would be leave lest erosion a tear mercy whim or ca- guard of the officers’ eye lady who stands price. York Harbor. New requirement apply par These considerations with deep in our histo cause has roots that are where, here, ticular force the arrest was suspicion ry, for arrest on mere collides “The informed made without warrant. violently human basic magis and deliberate determinations of States, liberty. Henry v. United 361 empowered trates to issue warrants as 168, 170, 98, 100, 101, L.Ed.2d are permissible what searches and seizures (1959). Dec years Thirteen before the preferred under the Constitution are Independence, laration of Lord Chief Jus officers and oth over the hurried action of “to termed tice Pratt arrests may happen ers to make arrests.” who tally liberty sub subversive v. Lefkowitz, United States 285 U.S. Wood, ject.” 19 How.St.Trials Wilkes — 420, 423, (1932). 1153, 1167, (K.B. 76 L.Ed. 877 Eng.Rep. warrant, 1763). the burden The “forefathers” wrote our Absent of establish who Rights agreed; ing probable prosecution, Bill of searches sei is on the cause “are the em zures without there otherwise would be little incentive bryo tyranny, it.” well knew agencies for law enforcement to bother U.S.App. Wrightson v. moreover, United warrant; formality with the of a 390, 393, D.C. F.2d comprising probable the evidence cause is recog concept probable The cause is peculiarly knowledge within the and con protection nized central to “the police. trol of the Malcolm v. United right to comprehen be left alone—the most 917, (D.C.1975). States, 332 A.2d 918 rights sive of and the most valued civi Constitution, however, proscribes The 1 [people].” lized W. LaFave, Search and searches and seizures. unreasonable 3.1, (2d 1987), quoting at 540 ed. Seizure, § imports a adjective italicized command States, 438, v. 277 Olmstead United U.S. proportionality juris- to Fourth Amendment 478, 564, 572, (1928) 48 S.Ct. 72 L.Ed. 944 prudence. An arrest constitutes a substan- (Brandeis, J., dissenting). It is the chief upon liberty, tial intrusion an individual’s against investigative pro bulwark arrests lawfully not be effected unless by the Fourth scribed Amendment. Unit comparatively can meet the ex- Short, 142, U.S.App.D.C. ed v. States 187 A acting probable standard of cause. less- 145, 1051, 1054(1978). F.2d 570 Good faith intrusion, hand, requires a er on the other the part arresting officer is not showing. At least correspondingly lesser 102, enough, Henry supra, 361 80 U.S. settled law Terry, since has been 171, may probable S.Ct. at nor cause “stop” briefly or police may detain predicated on v. a hunch. Lathers United warrant, and, if circumstances individual States, 524, (5th Cir.1968). 396 F.2d 531 A her, frisk him or even absence legal search is not to be made what it cause, provided have an probable up; good turns it is bad or when it starts suspicion” criminal conduct “articulable change and does character from its sought to be part of the individual on the success, Re, v. U.S. United States Di 332 As the Court remarked detained. 581, 595, 222, 228, 68 92 L.Ed. 210 S.Ct. 143, 145, Williams, 92 v. 407 U.S. Adams (1948), from evidence discovered subse (1972), 1921, 1923, 612 32 L.Ed.2d S.Ct. quent to the arrest. Smith United require does not Fourth Amendment States, 1, 300, U.S.App.D.C. 122 302 n. 353 “[t]he precise level lacks the [police who 838, (1965), denied, officer] F.2d 840 n. 1 384 cert. probable necessary for 910, 1350, information 86 16 U.S. S.Ct. L.Ed.2d 362 and shrug his shoul- simply denied, 974, 1867, to arrest cause cert. 384 U.S. 86 S.Ct. 16 to occur or crimi- sum, allow crime probable L.Ed.2d 684 In ders escape.” requirement protects fundamental nal to 1014

Although 147, 1924, precise the term eludes 92 expressly S.Ct. Court definition, suspicion” “articulable is and “rejected] respondent’s contention that substantially intended less than stop reasonable cause for a and frisk can Supreme As the cause. Court only on the personal be based officer’s ob- recently reiterated Alabama v. servation, rather than on sup- — —, 2412, 2416, 110 plied by person.” another This court has (1990), quoting L.Ed.2d 301 United States upheld previously stops and frisks on the 1, Sokolow, 490 U.S. tips, requiring, basis of informants’ without (1989): 104 L.Ed.2d 1 here, evidently as the requires arresting Fourth Amendment personally suspi- some officer observe

[t]he objective justification minimal level of conduct. cious Allen v. United (D.C.1985) making stop.... cases); That A.2d (citing level of suspicion considerably Johnson, proof less than see also United States v. (D.C.1988). wrongdoing by preponderance of the A.2d Accordingly, evidence. “totality we look to the same of the circum- assessing stances” in govern- both the (Citations Id. S.Ct. at 2416. and inter- ment’s claim that prob- Officer Walker had omitted). quotation predi- nal marks able cause to arrest Brown and its alterna- “objective,” cate for the must be so tive contention that the facts before the “gut” feeling that a or “hunch” will not do. officer warranted an articulable exists, however, If objective justification justified of unlawful conduct which an ini- unreasonably high. the threshold is not set detention, ripened prob- tial and which into prosecution pred- able occurring cause as a result of events icated its claim of cause and artic- stop. after the suspicion primarily ulable on information provided police by to the an anonymous

tipster. Gates, Since Illinois v. 462 U.S. IV 213, 230, 2317, 2328, 76 L.Ed.2d THE ANONYMOUS INFORMANT- (1983), methodology ordained RELIABLE HOW IS HIS REPORT? determining probable cause in cases of this kind totality has been to assess the abandoning In “two-pronged test” of White, recently, circumstances. More in Texas, 108, Aguilar 378 v. Supreme Court, applying approach 1509, (1964) 12 Spinelli L.Ed.2d 723 and Gates, adopted which it in stated that the States, 410, 584, 393 U.S. 89 United suspicion7 existence of reasonable in anon- (1969), 21 L.Ed.2d 637 it had which sub- ymous depends informant cases likewise years, scribed for fifteen the Court made it quantity quality and of the clear in that the factors that had Gates officer, available to the and that these cir- Aguilar been considered critical under and cumstances in must be considered the “to- veracity Spinelli informant’s or relia- —an tality pic- of the circumstances—the whole bility, and the of his or her basis knowl- ture.” 110 S.Ct. at 2416. edge “highly relevant” in deter- —remain light White, In agree mining report. of we cannot of the informant’s the value Gates, 230, judge’s apparent conception with the trial 103 supra, 462 U.S. S.Ct. at that, 2328; White, in deciding question supra, of 110 articulable see also S.Ct. at suspicion, evaluating totality was restricted to a considera In case, tion of those of Brown’s activities in this we must there- which circumstances observed, personally credibility Officer informant’s Walker had fore consider the reliability or her exclusion the information contained and and basis for his knowledge. light particular in the radio communication which In the he had Adams, us, supra, monitored. we must also address is- 407 U.S. at facts before that, present purposes, Terry 7. We assume "rea- Court in White referred to as a "reason- suspicion” sonable as used in White is identical suspicion" 110 S.Ct. at able case. suspicion” Terry. to "articulable as used in The

1015 sufficiency presumption “The of the credi- by Brown as to the favor sues raised bility of is based on the citizen informants and the de- informant’s it, assumed absence ulterior motives.” gree to Brown which matched as well supra, 255 n. 3. Rushing, 381 A.2d at any in- Brown’s conduct on the scene and testimony presented by government in may fairly ferences that be drawn case, however, present revealed abso- these topics that. We deal with each of lutely nothing tipster’s about the motiva- turn. public- He or tion. she have been Reliability. Credibility A. Alternatively, spirited individual. the call somebody’s might have come from menda- as- In the difficult to “Indeed, enemy. and mortal for all cious reliability credibility or because we sess us, tipster may that this record tells infor- virtually nothing know about have been another officer who well mant. As the Court observed White, supra, 110 ‘hunch’....” 2415, supra, 110 S.Ct. at (Stevens, dissenting). J. Paid opinion recognized Gates [t]he supposed informants are to be less reliable anonymous tip seldom demon alone ordinary than citizens because knowl strates the informant’s basis of generally from the criminal milieu. drawn edge veracity ordinary inasmuch Rushing, 255 n. supra, A.2d at 3. We provide generally citizens do not exten however, idea, the infor- whether sive their recitations the basis of (e.g., mant here was or was not a criminal everyday given observations and terrain). seeking protect drug dealer veracity persons supplying anonymous considerations, In light of these unknown, tips hypothesis largely is “by wary sustaining sei properly courts are ] unknowable.”[8 tips, of anonymous zures on basis government tip- contends that the require a of corrobora substantial measure volunteering “citizen” ster informa- provided. anonymously tion of information informant, a “paid” tion rather than tip by an An uncorroborated informer “a prima citizen is credi- more identity reliability are both un whose facie paid police ble source than a informant.” known does not constitute Allen, 1048, quoting A.2d to make an arrest. Contee United States, Rushing v. United A.2d U.S.App.D.C. 215 F.2d (D.C.1977). Although, technically, (1954); Wrightson, supra, also see con- counsel U.S.App.D.C. at 222 F.2d at 558. —Brown's court, listening ceded the trial after prefers anony remain citizen who “[A] run, by report the radio was made than citi less reliable a mous would seem tipster’s anonymity willing accept personal responsibility such a “citizen”—the to zen precludes any productive exploration Rushing, supra, his 381 of his accusations.” its is known arguably her at 255. informant credibility.9 or enhanced A.2d Where ever, engages quoted appear the here 8. The words from Gates at 462 Commonwealth 237, conjecture, admittedly at 2332. as it has no evi- sheer was that informant either dence the unknown Betrand, 381, 387, 9. See In re 451 Pa. 303 A.2d typical a It or citizen-informant. a stoolie 486, (1973): 489 absolutely of no indication the infor- thus has urges The Commonwealth that reliability. mant’s anony- cause established here the (Emphasis original). LaFave has Professor significant telephone mous call in- contained "[pjolice their infor- suggested claims that important reliability, of ner of details indicia average citizen from an mation was received arresting the offi- which were corroborated or, likely, to a witness a of more who was victim knowledge. Apparently cers’ Com- own the healthy activity be with viewed should criminal contending is that the informant monwealth criminal con- skepticism nature of the when the inherently anony- reliable since was an relationship alleged of the ‘citizen’ the duct mous citizen-informant who was too scared to typical of that found activity more is to that identity police. reveal an his to the Such milieu are informant, Commonwealth, from the criminal informants argues is 3.4(a), supra, typical § W. more than reliable stoolie. How- utilized.” LaFave, 1016 870-71, 253, government (1979). the police,

to has “a 253 S.E.2d By contrast, stronger anonymous telephone than in the of an an tip case obtains case is of Adams, anonymous telephone tip.” reliability,” supra, People Crea, the “weakest v. 146, 1923; accord, 556, 559-60, 876, 407 U.S. at 92 S.Ct. at 126 A.D.2d 510 N.Y.S.2d States, 602, (2d Dept.1987), v. 605 880 Groves United unverified one (informant’s (D.C.1986) credibility support prob- enhanced not or contribute a “do[es] himself). willing identify where able cause determination.” Burks v. State, 378, person 374, 399, “A named and identified not a 293 Ark. 738 S.W.2d (1987). ‘faceless informer’ whose inarticulated self- 402 his information auto interest would render say, course, is not This matically suspect.” At Commonwealth v. person not known to chue, 346-47, 393 Mass. 471 N.E.2d police may never taken into account. (1984). person A who does not hide 3.4(a), at LaFave, supra, 724. Gates and § anonymity, behind the cloak of but who contrary; in White demonstrate voluntarily comes forward and identifies substantially formation has been corrobo herself, likely himself more to be rated, may the tip be sufficient. Where the telling pre the truth because he or she is only provides informant information as not sumably possibility being aware by anyone to facts or events observable making report. arrested for a false State that man in T-shirt (e.g., a white and blue Lindquist, 398, 399-400, v. 295 Minn. corner) standing given jeans is at a but also N.W.2d generally See W. predicts successfully events that have not 3.4(a), supra, at 722-725. LaFave, § time yet tip occurred but In present tip by police, was which are thereafter verified police by telephone, may provide communicated sufficient indicia of infor person. “[Ajnonymity credibility (as rather than takes mant’s well as or her greater significance justify stop. even knowledge) where there basis of 2415, Gates, has not been see supra, even a face-to-face confronta person giving tion between the the infor at 2335. supra, U.S. at police.” supra, mation and There is no such evidence LaFave, 3.4(a) record, however, tipster at 723. A establishes his and to still substantial § credibility “by credibility plays anas interested citizen iden extent that the informant’s tifying totality cooperating himself and otherwise role in the assessment circumstances, anonymous law in a tele enforcement officials manner consistent with the near the less reliable phone best interest socie caller remains State, ty.” Ga.App. Rohrig spectrum.10 end of the specifically According government, occupants to the “it is of a well set officer that the pistol, anonymous report and the tled that an described vehicle had citizen’s describ sufficient, ing apparently and should have obtained perpetrator could have a crime name, alone, so. failed to do Id at standing the informant's establish 244 A.2d 483 805. In Carter United arrest.” The cases cited do (D.C.1968), police received information Allen, support proposition. eye-wit- pistol an unknown Carter had a anonymous only the was in the citizen sense detail, ness; although opinion little the contains name; police that ty did not know her a communi that the witness had traffic, there was no indication against drug campaigner she fre had anonymity. In Brown v. United insisted on States, given quently police accurate information in the 43, (1966), U.S.App.D.C. 976 365 F.2d 125 past, leading to the seizure of narcotics. 496 police the description of a robber which the States, Carey A.2d at v. 1049. United 377 robbery, the came from a victim of monitored (D.C.1977), A.2d 40 not the lookout was based know; police did not the albeit one whose name anonymous tipster, on information from an being virtue of the court stressed that it "the robbery; report a of the from victim an armed 46, at personal Id. based observation.” "demonstrably personal was based on observa at F.2d Galloway tion.” Id. at 45. United 979, Moreover, (D.C.1974), denied, vio- most these cases involved A.2d 803 cert. 421 U.S. of true, (1975) Where this is as did lent crimes or firearms. L.Ed.2d likewise Rushing, tip supra, the anonymous 381 A.2d not involve an in the same sense we held in does; part action on the of that case citizen a need for immediate a told selling drugs, might Knowledge. suspect B. one ordi- Basis of narily him her to able expect or be anonymous tip An seldom demonstrates identify lettering on the shirt. Never- knowledge. informant’s basis of theless, provided as to no information Here, supra, 110 S.Ct. at 2415. tip the one fact that would make the dis- no “there was evidence indicat- Rushing, words or letters on the sus- tinctive—the ing how the caller obtained her [his or] clothing pect’s anything said —nor grounds she information or on what [he or] facial features or about about seller’s person described in the concluded that [the distinguishing any other characteristics. selling tip tip narcotics. Nor was] general proposition, may it activity describe the criminal sufficient “As a greater of said that the the number ... remedy Rushing, detail to this defect.” be identifying characteristics which are avail supra, 381 A.2d at 256-57. able, likely inore it is there will be If a or appears citizen “claims to person grounds to arrest a found with all eyewitness or an to a victim of crime most these or of characteristics.” La crime, reliability of her his or informa- 3.4(c), supra, Descriptions Fave, § Allen, is greatly tion enhanced.” large applicable people numbers of will 496 A.2d at 1048. such made No claim was support finding of cause. here,11 tipster appearances are Jackson, Pa. Commonwealth altogether ambiguous. tip could have 673-74, but, been based first-hand information government argues that Officer was, absent even a claim that it also is immediately Walker ruled out all but two possible the tipster’s purported knowl- persons possible in the area as sus- edge sup- or was second-hand third-hand or of pects, that one those two was eliminated position product or rumor or of rebroadcast, as soon as the lookout was grudge against vengeance a rival or only that Brown was therefore the against enemy. knowledge” “Basis person the area who matched de- might arguably from an accu- be inferred discrepancies scription. But aside from the prediction events, White, rate future appear- lookout and Brown’s between the supra, 110 no but there is paucity identifying ance and the charac- otherwise, prediction, accurate or teristics, prosecutor failed to establish present record. probably the seller would still have Description Adequacy C. The Brown’s in the area at the time of been the Seller. Although Officer Walker testified arrest. The trial was troubled the fact more less location” that he was “on that the informant’s sell- run, he monitored the radio er in case lacking this was “somewhat to when government offered no evidence as specificity.” So we. police. had called the We the informant Walker, According to Officer the radio speculate to how are therefore left to run which he monitored described the seller informant’s elapsed much time between the male, 5'6", approximately Logically, as a black sighting white of Brown. call shirt, writing jeans, suppose blue with dark on the one would tip dispatch upon receipt front If of a of the shirt. the informant was move with however, Supposition, sub- enough close able to discern kind. only public safety tipster testified saw. Officer Walker the interest of substan- midnight, tially urgent. "a I received a that at minute after more location, subject selling radio run for that During testimony argument drugs.” 11. the course of the the relevant the before No other judge, prosecutor trial the prosecutor's stated that claim was adduced. "we anonymous tipster, says an who calls in and case, substantial engaged present there is a seen In the she has this defendant in the 12. PCP, (Em- most or selling gives Brown had all or description.” question the whether of pages added). See phasis of these characteristics. We have found no record basis even 1018-1019, representation regarding for this whatever what infra. Although precision required of less proof.13 scenes the is ar- stitute Street suspicion, rapidly; problems the ticulable similar change kind us seller arise before gone jiffy.14 in a in that context. can be description in the radio If the trans fatal; every discrepancy Not “mis male mission had been of black whose if there is takes irrelevant sufficient P-A-C-I-F white shirt had O-C-E-A-N particularized to constitute lettering, and printed on it in dark I-C Brown, probable supra, cause.” U.S. spotted a black male wear the officer App.D.C. at F.2d at 979. fact shirt in immediate area ing such a who is, not part description that a does fit description, fit then otherwise one however, obviously negative factor. conclude, reasonably spite of could State, 76, 81-82, Mobley v. 270 Md. government’s proof in the lacuna (1973), denied, 416 A.2d cert. call, time of the informant’s sus 40 L.Ed.2d 564 pect probably the individual described must be into account is the taken “[W]hat supra, in the lookout. points comparison strength of the of which Cf. government’s inadequate 2417. The up and do match also whether nature cured, showing could not and was those which match such that did not [is] however, by police’s independent “the veri error could occur.” LaFave, readily su person fact fication of the that there was 3.4(c), at pra, § wearing area a white T- in the indicated noted, description As we have shirt,” 381 A.2d at Rushing, supra, to which Walker testified lookout Officer and, pants. in this dark remarkably skimpy, especially since the Match. Sufficiency D. shirt alleged writing on the seller’s following chart summa- question which causes the not identified. The “One courts as to the probable cause rizes the state of the record difficulties is whether match-up description up when the match some but between the alleged to be the seller person male who was not all of black 3.4(c), Brown: appearance the actual arrested.” LaFave, § however, not, resolve conclusory judge run. The did The trial make a ulti- testimony. remaining in the conflicts finding that Officer Walker arrested mate Brown with cause believe color Brown’s discrepancy A as to the in view the explainable person pants he was described radio (Galla- suspect wore white Rushing, supra, “the other [who] A.2d at 258 eliminated 13. See dissenting) Galloway, supra, operating gher, apparently J. 326 dis- He was shorts.” thus dissenting), (Gallagher, J. necessarily A.2d at 806-07 assumption a sound one— —not put cussing need for its suspect been still have must suppression hearing. forward best foot at the began to look for when Officer Walker scene him. finding 14. The based his substantially on the fact that the officer

1019 night. policeman uniform. The trial hour observations “[Where] morning no early occurred in the hours found no more16 and there was more. conditions, lighting a mis under artificial legal obligation to Citizens have pants] taken is belief color [the D.J., re 138, police. to A.2d talk 532 People Washington, v. understandable.” (D.C.1987); see Cobb v. Standard 141 734, 925, 927, Ill.App.3d 44 Ill.Dec. Co., Drug (D.C.1982). 453 A.2d A (1980). Assuming that N.E.2d may approach police officer a citizen height Brown his and that is knows own if speak street to him the citizen is and tall, 5'8" an error of two and half or three listen, willing to but the latter has the not describing inches in him is conclusive in proceed way answering to on his without discrepancies with re and itself. The question listening, the officer’s without lettering, to take spect height, color solely doing not detained however, greater significance, where no D.J., supra, so. A.2d at 142. meaningful positive similarities have been Brown, ly except that like the established an [Departure ... from imminent intru seller, is a black male. bootstrap illegal sion cannot detention legal. E. permit into one that is To Brown’s Conduct the Officer’s such Presence. justification effectively would be to cre ate to to duty respond police, The government contends that additional seriously upon liberty intrude support provided by for the seizure was privacy interests which the Fourth attempt what it describes as Brown’s to designed protect. Amendment was to particular “evade” the officer. On the signifi- facts of (citations we think that the Id. quotation and internal marks cance of the evidence of “evasion” was omitted). marginal most. To attach substantial held en banc that recently We importance improperly penalize to would hastily may inspired [l]eaving a scene Brown for the exercise of his constitutional fear, legitimate de- innocent rights. police. sire avoid contact with the A allegedly evasive conduct to which prerogative citizen has as much to avoid alludes15 consisted of other he does avoid attempt away Brown’s to walk when Offi- so, person, and his efforts do without spoke cer Walker him. The officer ac- more, may not justify detention. knowledged stop that after Brown 316; accord, Smith, supra, A.2d at pressed point. recently officer We ob- 491, 498, Royer, 460 U.S. Florida v. States, Smith United served in 558 A.2d (1983) 1319, 1324, (plu 75 L.Ed.2d (D.C.1989) (en banc) 316-17 that rality opinion). say To that a citizen free “[topically, in those cases in which we responding to leave to the officer’s without flight have found indicated a con- questions, see Lawrence United guilt, clearly sciousness accused (D.C.1989), meaning 60-62 and reacted knew that gener less the exercise of freedom by immediately running the scene authority a seizure where none ates alleged (Emphasis added). crime.” previously existed.

That is not what occurred here. Brown did say that a sus This is not “flight”. There run. was no Officer no conse on the scene is of pect’s behavior testimony Walker’s established that Brown by the individual which quence. “Conduct eager was not a discussion with a fit the claim that was that somewhat [Brown] 15. Brown’s actions after —his away to dis- when he officer] had no identification and his refusal from [the and walked pocket close discussed at what was in his judge did remark called him.” The —are pages in,” 1024-1025 & n. 24. perhaps probably uncon- “factored officer Brown, sciously, fact like numerous no articulable concluded that sus- presence responded to the persons, other picion conduct Officer arose from Brown’s away. by walking policeman in uniform presence "all [the officer] Walker's saw 1020 in provided the court United

suggests attempting he is to flee from a States v. 1089, (8th into account with 843 may Campbell, crime also be taken F.2d 1092 Cir. description.” supra, LaFave, the available 1988): 3.4(c), suspect in reacts at 748. Where a § proba- reasonable or Whether way investigation to police an unusual justify is cause exists to a seizure ble detention, may properly of short this question fact mixed of and law. The Baldic, v. included in the calculus. State findings respect with to the historical 225, 226-27, 977, A.2d 978 131 N.H. 551 clearly under the erro- facts reviewed Souter, J.). (1988) (opinion per Brown’s standard; conclusion, neous ultimate attempt to exercise

brief however, subject review. de novo in an participate encounter Officer Mendenhall, v. 446 See United States Walker, however, did not constitute 544, 1870, n. 5 551-52 [100 kind of scene that could conduct 5, n. 64 L.Ed.2d 1875-76 497] government’s significantly bolster showing or articulable probable cause v. 868 Hoyos, United F.2d See also States suspicion.17 (9th Cir.1989) (determination 1131, 1135 probable ques- cause is mixed existence

V legal law and fact which issues tion of predominate, subject to and is therefore de APPLIED THE PRINCIPLES review; underlying facts are re- novo A, Scope The Review. error). We must there- viewed clear appeal On from the denial of motion judge’s independently fore review the trial evidence, suppress scope of court’s this existed, conclusion Lawrence, supra, review limited. 566 not, giving suspicion did that articulable role en- Essentially, A.2d at our is to 60. underlying deference to his factual due sure that the trial court had substantial Lawrence, supra, A.2d findings. 566 concluding basis for constitutional 60. violation occurred. Goldston United us, upon It is incumbent States, (D.C.1989). A.2d We other, appellate accept judge’s findings must the trial eschew case Nevertheless, evidentiary fact and his resolution of con- fact-finding. the absence of Lawrence, flicting testimony. supra, disputed findings on most of the explicit A.2d at 60. opportunity fact our issues of reduces both obligation As to be deferential. and our stated, perhaps courts have Some 1018, supra, page we have noted at problem, oversimplifying that “our re testimony which the only conflict in the view of a district court’s determination whether judge specifically resolved was is limited probable cause arrest long pants; wearing shorts or Brown See, e.g., clearly standard.” erroneous on that Officer Walker he elected credit Purham, 725 F.2d United States never addressed the point.18 (8th Cir.1984); United States v. Vani discrepancies, especially the specific (7th other chromanee, 742 F.2d Cir. regarding color of Brown’s 1984). dispute precise articulation was A more drug” "high make it area occurred in a also contends tion narcotics, expertise, likely fact the area the char- officer's that it entailed more apprehended high questions was one of which Brown to the of the area is irrelevant acter finding drug activity, support whether a lookout and Brown matched whether respect to cause. this "familiar talismanic With else, he, alleg- who someone rather than it litany,” United Curtis v. A.2d drugs given edly location. sold Smith, (D.C.1975), and see how we fail to see Officer Walker’s claimed length pants, the Even as measurably expertise could assisted him testimony contrary mention Brown's did not determining matched broad- whether Brown weigh against Walker’s ad- Officer expressly Moreover, description of the while cast seller. mittedly sketchy recollection. ambiguous the fact that an otherwise transac- 1012-1014, pages there was dark our discussion shirt and as to whether cause. lettering on it.19 there was event, During pendency appeal, even if we treat the deter- of this the In the Supreme Court has considered Alabama mination that cause existed White, supra, necessarily including, by implication, find- question the whether rea- on dis- ings prosecution to the favorable based on an anon- sonable can be judge explic- the did not puted issues which case, police In that received an ymous tip. e.g., itly whether Brown was tip advising them anonymous telephone address — wearing lettering— shirt with dark a white leaving would be a that Vanessa White be constrained would nevertheless we particular a time in a apartment certain suppress evidence the motion hold that wagon the Plymouth station brown granted. ought to have been broken, right taillight that she would be Prosecution’s Sufficiency B. Motel, she proceeding Dobey’s and that Evidence. possession of an ounce of co- would be in a attache case. The officers caine brown principles apply the de We now parking out the lot in front of the staked before us. Al scribed above to the record building question and observed brown though parties have concentrated their Plymouth wagon with a station broken proba largely question attention on the proved taillight. A woman who later cause, ble we first assess the evidence of the to be Vanessa White came out build- determine whether the facts before Officer ing Supreme Court at a time which Walker formed basis for reasonable pre- frame estimated to be within the time st,op suspicion justifying initial carrying because, dicted the caller.20 She was proceed Brown. in this order We nothing in hand. Ms. White entered her analysis, under our if there was no articula- fortiori, then wagon the most di- suspicion, light in the the station and drove ble witness, Moreover, judge expressed presumption reservations there was a that each 19. regarding including parties, truth Officer Walker's truthfulness in con- has sworn to the professed duty jury nection with the officer’s concern of the to reconcile and was could, supposed possibility conflicting they about the that there was a but if statements not, judge judges they knife in the film canister. The was also the exclusive could scanty credibility weight troubled the officer’s recollection of and the of witnesses wearing. Despite testimony. the clothes which Brown was given to their The Court overwhelming his less than confidence Offi- jury presumption was that the instructed credibility, cer Walker’s made no allu- outweighed by rebuttable findings testimony. testified, sion at all in his to Brown’s by the which the witness manner in Jury testimony given byor Criminal contra- character of the Instructions of the District Cf. (3d 1978): determin- 2.11 ed. "In dictory evidence. Columbia, No. ing whether the has established appellate the conviction court sustained charge against beyond the defendant a reason- instruction, notwithstanding challenge doubt, you weigh able must consider and language provides quoted and we think testimony ap- of all the witnesses who have fact-finding jurors a useful framework peared you.” before . Botts, judges See also United States alike. (Super. Daily L.Rptr. n. 4 Wash suggest judge did We do not that the trial 4, 1982). Ct.D.C. March testimony simply consider Brown’s because he interest, we note it, As a matter of academic recognize did not mention and we sentencing represented Brown's counsel had an obvious interest in the outcome Brown purchased he had had told him that his client proceedings. Instruction No. of the Nevertheless, See 2.27. generally matched drugs who from someone potentially affect- in a close case citizen, asked about this Brown was not prefer- the lookout. ing liberty we think it suppression testimony during at the findings his brief explicit the court to make able for hearing, there was thus no cross-examina- disputed points basis for and to articulate the even- The sentence film canister. tion about the them. Eilers v. Columbia Bureau District Cf. Servs., probation tually imposed was six months Motor Vehicle 684-86 of (D.C.1990) judgment unremarkable sentence (fact-finding by hearing examiner in without —an license). purchaser. proceedings to revoke driver’s for a Hoffa, In 349 F.2d 52-53 United States v. gap in this there was (6th Cir.1965), aff’d, testimony regarding the relevant (1966), trial had in- 17 L.Ed.2d 374 110 S.Ct. at jury times. structed the emphasized rect Dobey’s route toward Motel. This here. The Court that an uncor- anonymous tip, alone, “standing route included turns. several Officers roborated stopped [person] the vehicle not warrant a when Ms. White was of reasonable located, Dobey’s appro- the road on which that a caution belief (citations reached motel. Ms. priate.” before she With at 2416 consent, they omitted). White’s searched her attache quotation marks The internal inside, Finding marijuana case. required therefore “more than the Court placed her under arrest. A search tip itself,” id., incident to “totality looked and of discovery to her resulted in the circumstances,” id., arrest to determine purse. cocaine in Ms. White’s tip anonymous whether “the had been suf- ficiently corroborated to furnish reasonable contrary Reversing holding suspicion respondent engaged that was Appeals,21 Alabama Court Criminal activity the investigative criminal and that held, Supreme justices three Court dissent- stop therefore did not violate the Fourth ing, stop and that the was lawful that The Amendment.” Id. Court found support evidence was sufficient to a rea- required tipster’s pre- in the corroboration suspicion sonable that Ms. White was activity police of future which the dictions possession The noted of contraband. Court verify.22 could—and The Court cred- did— substantially is a suspicion reasonable proposition ited “the that because an infor- demanding less than standard mant is shown to be about some cause, stop may that a therefore Terry and probably right things, he about other that is reliable based less alleged, including facts that has required than that to show cause. tip engaged object claim that that, 2416. S.Ct. at The Court held activity.” criminal S.Ct. at 2417. although every not detail mentioned verified, tipster anonymous had been “the to the that reason- Critical determination tip sufficiently had been corroborated established, therefore, suspicion able was suspicion respon- furnish reasonable anonymous tipster’s reference to was the engaged activity dent in criminal future, completed, activity. As merely not investigative stop therefore did not White, said in the Court violate the Fourth Amendment.” Id. that, as in important think also [w]e Summarizing holding, its the Court stated Gates, [tip] contained anonymous “the relating just easily not range of details case, is a we [ajlthough it close conclude existing at facts conditions obtained totality that under of the circum- actions to future tip, the time of the but tip, as anonymous stances the corrobo- ordinarily easily pre- parties not of third rated, exhibited sufficient indicia of relia- Gates, U.S. at 245 dicted.” [103 justify bility investigatory offi- fact that the at The 2335-36]. respondent’s car. matching the precisely a car cers found added). (emphasis Id. at 2417 front of the description in caller’s decision, of the former. example In reaching Supreme building its is an fact “predicted” that effectively distinguished could have Anyone Court the situa- presumably tion in such as one it was a condition cases White the call. What plain holding existing time of depended made it that its at the ability to the caller’s presence wholly lacking important of factors (brown wagon Plymouth (Ala.Cr.App.), station State v. 550 So.2d 1074 about her car denied, sus- taillight), also with the cert. 550 So.2d 1081 with broken (Do- departure pect’s and destination time (a drugs Motel) plus tip specific, bey’s of illicit the location The White included factual data " Id., case). 'veracity', ‘reliability’ at 2414. attache 110 S.Ct. from which knowledge’”, and basis brown id., provided only a tipster at could predictive details specifically, tipster More inferred. minimal White selling, drug provided reported which Officer police only suspect’s not with the aside from address, verify seizure. before the Walker did name and as well salient details behavior, totality parts of the of the circumstances. predict respondent’s be- future informa- might cause it demonstrated inside police had facts sufficient familiarity respon- special tion—a tipster for reasonable general public dent’s would affairs. Adams, anonymous, supra, 407 not been way knowing respon- have had no (tipster 92 S.Ct. at 1923 known U.S. shortly building, dent leave the officer), Groves v. United car, get in described and drive the (D.C.1986)(tip reliable Dobey’s most direct route Motel. Be- because informant called twice identi- people only a small number himself), pro- fied or if the informant had to an individual’s itiner- generally privy past, vided reliable information ary, it is reasonable for believe Adams, supra, 407 person that a with access to such infor- 1923; States, 496 Allen v. United A.2d likely also mation is to have access to (D.C.1985)(tipster po- known to reliable that individu- information about lice and calls to of previous led seizures Gates, illegal al’s activities. See narcotics), tip accurately if the had dem- or signifi- at 245 S.Ct. at When [103 2335]. special familiarity onstrated some with predictions the aspects cant of caller’s affairs, White, supra, Brown’s see verified, to there was reason be- at if the or officer’s own obser- only lieve not that the caller was honest stop supported vations the had before informed, he was but also that well suspicion activity, of criminal reasonable enough to the justify stop. least well see Lawson United (emphasis original). Id. (D.C.1976) (suspect’s ef- noticeable case, present prior In the to at least the police “to something” fort hide as arrived seizure, only acted in- static possessing was with a concealed consistent tipster’s description formation —the weapon), tipster reported if that or had seller—which afforded no basis itself for Johnson, pistol, suspect had a see su- suspicion was reasonable that Brown sell- pra, (emphasizing A.2d at 1091-92 drugs. ing on the was thus based police investigation tips prompt need for portion tip appellant’s description— of the — firearms), none of these involving gave “easily which facts ... obtained exist- present factors here. was ing Anyone the tip.” the time of Id. could have the corner of 17th and observed proposition stands for White Euclid, N.W., phoned appellant’s and de- that, more, an uncorroborated without scription. tipster predict did not anonymous correctly tip that a described alleged anything seller would do ex- engaged activity is in narcotics individual might cept, perhaps implicitly, that he still providing “minimal level falls short arrived, selling drugs objective justification,” 110 S.Ct. at doing there was no evidence that he was stop. required Terry which is pre- that. the absence accurate conduct, no corrobo diction of is no In the there was future there rea- conduct; tipster any prediction son to believe that the had the sort of future ration of “special familiarity af- moreover, of the seller was [Brown’s] evidently fairs” which the Court in White match-up that de scanty between to viewed as essential its conclusion that scription appearance Brown’s was corroborated, tip, anonymous “the exhib- If was flawed. White some measure reliability justify to ited sufficient indicia of it case,” Supreme Court said “close ” investigatory stop.... Id.23 was, here government’s evidence then the matter of law insufficient as a surely was predic- suggest We do accurate suspi show the existence of articulable talismanic tion future events has some suspicion, nowas articulable quality cion. If there outweighs other constituent tipster pro- acutely details few which Familiarity suspect lack- match the with the 1018-1019, here; supra. pages ing appearance vide. See actual failed to Brown’s GALLAGHER, Judge, there Senior necessarily then dissenting: cause.24 splendid appellate In the isolation of the VI court, search and seizure cases sometimes get over-refined take a different CONCLUSION in the real crimi- appearance than world of reasons, foregoing order For law This is often nal enforcement. probation placing judg- Brown on without magnified is to the some of the evidence reversed, case remanded ment is totality review detriment of a of all grant the trial court with instructions Here, earthy presented. circumstances suppress tangible evi- Brown’s motion examined real- once the crucial facts are dence. totality, ap- istically and in their So ordered. opinion conflict with pear majority urges probably not Judge Gallagher I believe in his dissent that in defendant go point. determining free ex- reasonable whether Noting what that the officer had not been asked ists, totality courts should look to the leave, he would have done Brown tried agree. He also contends circumstances. We probably pur- but that it have served would bulge in the saw the Brown’s that when officer him, pose to ask the continued: pocket, stop protective justi- a and a frisk were me, testimony, hearing clear It’s to from the By the the officer became aware of fied. time up he arrest him. that Understandably, went there to however, bulge, already been the Brown had foregoing, light the in stopped had and a Fourth Amendment seizure contended, appeal prosecution never either on occurred. court, rely facts that it could or trial length Judge Gallagher quotes at from Officer stopped had discovered after Officer Walker key emerged testimony, facts but the Walker’s suspi- finding support to a of articulable Brown According early very Walker, in officer’s account. to capsu- the contrary, On cion. the the him position Brown tried to avoid contact with as to court lized its in its brief this depart, stopped Brown and to but the officer follows: more, sum, war- prevented doing tip, without him from so: In the citizen’s and defendant, Now, stop. investigatory ranted an you Q. the walked to court, prosecutor that what, the the insisted In trial anything, if did he do? "flight" supported Well, time, him, the defendant’s called he—he A. first I—I cause, directly the idea a at odds with notion away. walked liberty Walker after Officer that Brown was you Q. And what did do? dissenting colleague’s stopped had him. Our acknowledge, to A. As to—in order I called later position at some the seizure occurred again, away. he walked So I walked him and own; solely prosecution has the time thus pretty quick. stopped up him at that to I him it, trial pressed and the not even mentioned point. contrary. to court’s views were the what, anything, you Q. once And do suspi We hold that no reasonable therefore stopped you him? seizure, which the cion existed at the time of him, why stopping him I was A. I advised account, officer, by his own occurred when "stopped description of told him that he fit the and away,” started walk Brown after he him, drugs. somebody selling And I asked suspect description of a told he fit and him any point, At that did he have identification. after, aas drug and indeed It was ed dealer. stated, he no. of, became aware officer result Judge Gallagher apparently a believes that bulge. which the cases on We think that of Judge Gallagher person position in Brown's reasonable relies, United Lawrence considered himself free to leave even have (D.C.1989)and United States 566 A.2d so, though, attempted to do he had when he had Barnes, (D.C.1985), are distin A.2d 1040 stopped by a uniformed officer and been instance, that, discovery guishable in each in been told that he matched the drugs in suspicious circumstance —the selling drugs. We who had been of someone 58-59, bulge Lawrence, and a A.2d at however, opinion, are of the officer’s Barnes, time at a at 1041-45—occurred depart, leave, fol- frustration of Brown's efforts and thus was free when defendant suspected by of a notification that he was lowed crime, v. Hodari preceded seizure. California Cf. 1549-51, — attempt U.S. —, —, any D, made further would have (1991). away testi as well as futile. officer’s own walk ill-advised The 113 L.Ed.2d 690 event, by the mony reinforced trial remarked remarks, analysis inapplica approached judge’s renders this Officer Walker Brown after lookout, here. having ble listened to rebroadcast of the precedents, plaints regarding moving street scenes in- prudent our and with a inter- pretation trafficking. Fourth Amendment. volving And I narcotic believe square requirements can constitutional we complaint from a citizen’s The case arises discouraging police in- reasonable without trafficking. The of street corner narcotics vestigative in these traf- initiative street typical undoubtedly are sim- facts are ficking cases. ilarly repeated year in hundreds of cases a A po- citizen calls jurisdiction. began midnight call This case with a drug complain trafficking lice at a citizen, identified, report from a here neighborhood provides corner and street ing selling narcotics at 17th that man was trafficker; suspected description of the Streets, height Euclid N.W.1 patrol responds car officer given. infor dress of the man were Phone proceeds begins to the street corner and citizen, standing mation an unidentified investigation person of a the officer sus- itself, constitutes neither him; pects provided arrest nor a sufficient basis to conduct a from the scene and individual retreats seizure, Terry2 under established law. retreating the officer calls out to the sus- —White, U.S. —, 110 Alabama v. him, pect; and when comes abreast of 2412, 2416, 110 L.Ed.2d 301 There addressing questions to the sus- starts opinion majority is no difference pect. investigation, Terry After further on this score. The difference we place, frequently seizures often take that, view, my really this is not the basic in a result search and later an arrest. Rather, issue in this case. the issue is This court and the trial see that sce- court facts, totality whether on the year. nario in cases countless each police investigation progressed step-by-step importance particular typical of this officer, information, the the initial holding case is the court now is that an gradually the circumstances unfolded at place the unconstitutional arrest took when end, to the had arrest. arresting performed officer a reasonable investigation complaint prior put way, the it from the time the to To another arrest when the narcotics were discovered. the call to the time of officer received radio the defen- discovery the of narcotics on the I impor- believe this decision an creates dant, did unreasonable the officer take precedent jurisdiction tant in this steps in Amendment sense dur- the Fourth (a) typical the facts are so of innumerable investigation? his If ing the course of he (b) drug cases, street arrest it not, arrest then this an indication the discourage police investigative in initiative valid, totality was if the circumstances typical drug really It no cases. up I think finally to cause. that, added nevertheless, say final answer to the way approach the to this that is sensible necessary preserve decision is to order Supreme As has instruct- case. the Court requirements. Fourth Amendment I be- ed, considering or in- probable cause square require- lieve we can constitutional totality of investigation vestigative stop issues “the ments with sensible of com- began ascendancy knowledge sharp crime 1. It a matter urban which of common locality drug that in cases initial informa- net of Chief middle 1960’s. The effect giving police investigations frequent- tion ly rise to recogni- opinion Terry was a Justice Warren’s neighborhood comes from a resident who application the Fourth Amendment tion that police. telephones commonly It is also reality of take into consideration should department known that the change. Subsequently, been we have societal encourages phone it such calls and has made airport measures as visited with such unusual publicly protect known that the will fact, checks, security security and in even identity for this such callers. The reason courthouse, along with oth- our checks to enter protection might injury well is to avoid buildings. procedures reflect public er These drug if come to the merchants callers from the and, them as we now find societal conditions their identities made known. naturally, conditions have taken these the courts construing Fourth consideration in Ohio, into Terry 392 U.S. (1968). be recalled that Amendment. L.Ed.2d 889 It will long Terry was not decided in after picture complaint” drug selling. on circumstances—the whole The officer —must be taken into account.” had United States asked he identification and the defen- Cortez, 411, 417, 449 U.S. said “no." He then dant observed ob- review, 695, 66 In this L.Ed.2d ject bulged right pocket. in his which He factfinding we of course bound are was, the defendant what it twice asked court, trial unless conclude it is we the defendant would answer. The offi- erroneous, and there is no clearly such was, course, drug aware that cer dealers finding by this court.3 weapons. carry thereup- The officer often protective “pat-down, holding on did phone call to

We start out with object.” He who, asked a third time what it police midnight describing a it man said, response, so he selling got narcotics at the cor- was and “went Streets, ner The pocket, of 17th and Euclid N.W. his took it inside out.” reason male, description was black about five “experience he did so was based on feet, inches, shirt, wearing with six a white area, people being by my- me writing dark on the front of the shirt and self, precaution department it’s relayed jeans. blue This information was use, taught protecting me so far as has patrol in a car whose “beat” an officer myself.” happened It included that location. so canister, object film The hard was a approaching officer 17th and Eu- was then during fifty sixty previ- had the officer clid patrol Streets in the car. He testified seen film containers used to ous arrests corner, familiar with that as he had this, he transport drugs. Because of then patrolled years, it to for two knew there opened container and were four drugs corner where sold.4 When packets, proved tin foil which to be the there, he his on-the-scene arrived started narcotics. arrest followed. investigation. totality of the circum- Looking at the a group He that there was observed stances, point me at the it seems to women men He corner. saw the citizen com- investigation which his might description. two persons who fit thereupon plaint progressed when he saw the “challenged dispatcher He grounds dispatcher bulge, confirm lookout.” he had then reasonable After believe) repeated (not as the officer suspect the identification to defendant scene, in surveyed selling drugs reported he noticed some in as engaged sweatsuits, in group dressed in some protect to himself to him he had a shorts, description He narrowed the etc. weapon frisk for a because down to the defendant. object, hard bulge. he felt the When object proved to it and the then extracted investigation Continuing his of the infor- canister, and, upon his based be a film citizen, mation from the he walked toward arrests, drug in knew experience extensive him, approached he defendant. As drug as contain- frequently are used and, as he continued the officer said “sir” circum- ers, adding all the I believe that around, approach, dis- the defendant turned proba- far, there was together thus stances walking. regarded kept The offi- him and Upon the canister. to search here,” ble cause again, cer said “sir” “come but he canister, he discovering the contents kept he walking away. He had made said to It seems to arrest. had cause “eye time” contact” he to “double in his took step the officer up. me that each keep caught up The officer with the in the consti- investigation was reasonable him to talk defendant and told he wanted sense, measures these various description he “fit of a to him because tutional naturally reality, dealing one should conflicting testimony with about 3. There was some dress, disregard example, for does not expect his officer that a pants lights this, of his seen under color street it is for what worth. specific such factor night. the dark of The trial resolved the government’s pants issue in the color factfinding. favor you I ultimately up thing, would like cover one other added Rosenthal, you yield Ms. before this wit- arrest. he ness. This witness testified called the While it established under Alabama v. twice, and defendant the defendant didn’t stop. get you Can into that little bit. did not telephone call from citizen prosecutor proceeded to do that at Terry5 justification constitute itself seizure, length: some arrest, probable cause to let alone BY MS. ROSENTHAL: given say is not to it should not be this Officer, Q. say you exactly could investigative weight. police would be you you calling what did when were open justifiable criticism if such informa- this defendant? seriously.6 tion was not taken A. First time when I confirmed the The critical the ma- difference between look-out, he, defendant, he was on point jority and dissent is the at which the the—it was on the west—he was on Terry majority seizure occurred. The corner, and when I northwest crucially important part claims its him, I him approaching started called (see opinion, maj. op.), that no footnote sir, and, said, said, he like I turned reasonable existed when the de- around, he acted like he didn’t ac- stopped as the fendant officer drew him, I knowledge saying what was That, says the majority, abreast. was the kept walking. and he “stop” testified officer he sir, said, again. I Come here. He “stopped after he to walk Brown started around, kept he walking. turned He away.” stopped. hadn’t specific This is the issue that divides the officer, Q. sure, you How I majority problem and the dissent. you him defendant knew it was majority opinion juncture this somebody addressing, and not else? its crucial 24.7 The court footnote sets Well, point, point A. at one at one only a portion forth officer’s eye made contact. It was—it was testimony transpired relation to what brief, but, say, pretty like I at one began after he arrived at the scene and point, you yeah, know—. investigating. get Consequently, one acknowledged He was—he was—he impression an erroneous the evidence. I me, pretty that he I am sure did be- will therefore forth the remainder set him, I cause the second time called testimony by pertinent the officer so walking totally. And I away, started misunderstanding there will be what jog, up to had to—not but double-time actually in this As it com- transpired case. initially. stop, him him to get mences, seeking judge the trial to learn Officer, Q. mo- specifically, at actually transpired leading up to what approach you began ment that seizure.8 defendant, did the defendant start away you point, at that walking stated: from The trial Ohio, progresses, investigation. investigation it Terry supra As an note 2. 5. weight. carry supported be more earlier, are 6. As related we well aware that digress, paragraph last of the court’s neighbors being To 7. concerned fearful of identi- interesting implications. rather being footnote 19 has dealers fied narcotics infor- grasping sup- mant, seems for safety. The court there say for reasons of This is not to be, is, port made from the straw statements such or should con- sentencing at the defendant’s counsel Terry stop, adequate sidered to warrant a defense hearing, improbable support for however, source a rather say nothing say, of an arrest. It is to evidentiary issue. in relation to that neither it be factored down zero should investigative weight. I believe it should be rec- misled, worth, quoted regard majority’s ognized mus- due Lest what it is one all, during hearing ings the Fourth First of it of the trial Amendment. obvious- findings. part ly weight carries to cause a sufficient A. you to him No. it not until talked

or was walking away? he started Q. say it in a voice that was you Did Objection, Your you? KROLLMAN: he could hear enough MR. loud leading, little a little It’s a Honor. Objection, MR. Your KROLLMAN: compound— Honor; speculative. THE COURT: Sustained. say it you loudly, THE Did COURT: BY MS. ROSENTHAL: you you’re talking like now? say did it defendant Q. At what time like THE Not I’m talk- WITNESS: walking away you? start good ing say pretty I’ve would —I a— I time called him.

A. First voice, pretty good tone voice. So, start Q. the defendant did not commanding it a THE COURT: Was you away until had called walking what I mean voice? you Do know him? commanding sayI Was it a when that: A. Correct. voice? Now, called to Q. you at the time that No. THE WITNESS: him, eye contact at was there people THE there other COURT: Were point? him, proximity, very stand- close to time, yes. A. First ing same northwest corner? on that you repeat what Q. again, And would THE Yes. WITNESS: was, you while exactly, what said they THE Did all turn and COURT: him. eye contact with you had way? walk said, time I sir. Sec- First —first A. THE Yes. WITNESS: time, time, said, I I sir. Third ond Well, THE saw COURT: said, sir, him. and advanced towards uniform, you up, police officer walk back, pull that each time. Q. Let me walking away? everybody just started said, sir, you you first time THE Yes. WITNESS: defendant, with the eye contact BY MS. ROSENTHAL: what, anything, did the defendant stay all in that Q. anybody at Did do? place? say, did he do? Like I we A. What peo- I about three say, A. I’d believe say, for eye briefly, contact I’d made ple. around, He turned a second. about ap- Q. stayed? And people Three walking. kept many away? proximately walked how Now, sitting, or Q. was the defendant locat- defendant was A. From where standing at the time? ed, about Standing. A. walking Q. started people About said, sir, your Q. you And he saw away? around, eyes, and then turned A. Yeah. walking; is that correct? started you say your Q. How loud A. Correct. voice was? turn so that his Q. Did he around enough say, loud I’d A. How loud? facing you? was back to be heard. A. Yeah. you Q. to whom it clear And was follow Q. point, you at that Now did comment, sir? directing the him? Objection. MR. KROLLMAN: Yes.

A. THE Sustained. COURT: you say, then? Q. And what did BY MS. ROSENTHAL: said, time, kept He I sir. A. Second said, sir, you did direct Q. you When walking. the defendant? specifically towards it point, did he turn Q. And, at A. No. you at all? around to look it, meaning merely specifically approaching them Q. you ment Who did direct asking questions. In public and United towards? Mendenhall, 446 U.S. States v. I the defen- A. directed towards (1980), 64 L.Ed.2d 497 the Su- asking what are me? you dant. Is that guidelines in preme laid down some Court Yes, time, there like I said the first this area of law. eye That’s when I knew contact. every encounter me, [C]haracterizing first I street acknowledged he time police a and the as a citizen called him. between jority the seizure took to answer stopped no command to That was the officer hands, defendant told him he occurred. when The crucial difference between the BY MS. ROSENTHAL: him, A. A. him. He selling drugs. say anything else. I A. fendant A. At do that caused him Q. still and one-on-one steps, MS. Q. Okay. Q. Q. Q. And, gence. said, crucial later laid his I And Nothing; And I Officer, picking him try caused and let him know ROSENTHAL: stop told There was then no and dissent “stayed for I’m here one wanted say what, what, my stayed specifically, evidence up took with the point, him I keep of a obstruction, stop. place him to at that when basis for at that stopped. questions, or if anything, did the de- to talk to place, hands walking? out. complaint, this case whether yes, anything, when That is established. wanted Iwhy what is, therefore, you stop? defendant, point? what finally he took point, reason the being Court’s what on him.9 the defendant talked, I laying him I officer you to talk to did told there somebody told him. up stopping you fit the did he couple didn’t indul- him.” stop? on of there first, stop you ma- do physical force or that “[a] (D.C.1990), Id. at Id. at States ted). curs some decisions, ... gado timidating” circumstances one would feel when natural gins has vestigation, guilty has on other occasions referred to ing as a tool in the effective enforcement tions would ished. short, and might law “consensual In acknowledged est “seizure,” ’” Kelly police officers ‘[o]nly when the way construing questioning on secured many virtually enforcement asking [80 [466 upon might wholly escape prosecution, impose Barnes, Supreme criminal Fourth restrained sense of “[i]t L.Ed.2d v. United this court stated falsely this court once security crimes would be unsolved. while not a wide questions. encounter,” those who were innocent deemed wholly need show relevant Amendment 210], the Fourth laws. accused, Court obligation almost practices. of all variety enough officer, by enhancing for police (1984)], inherently figures unrealistic restric- liberty street Without authority, police Supreme [I.N.S. those who were (citations again ... Amendment, beyond ‘seizure’ oc- of citizen absent (D.C.1985), officer be- A.2d 1282 legitimate means be dimin- trigger approach ^[1758] to assert question- such in- v.] United stated has Court Court inter- omit- any- Del- “in- In re- presence authority, that their police do of acknowledged has that It been Id. at encounters.” non-consensual sults in persons within Fourth Amend- not seize the White, stated, supra. hardly v. a conflict Alabama As I have there is as in us to whether the law is stated between as peating police report offi- “There must be more than mere of the when the corner, questioning court will find that cer arrived at the street the before a a belief the that met the seizure has occurred.” Id. at 1286. officer the defendant complaint, in given the the con- Here, police there was no command to during duct of street the defendant the stop, police touching obstruction and no investigation things lent reasonable —these prior point defendant to the at which the corroboration to the initial information and occurred, i.e., the seizure when the officer justified suspicion to articulable sufficient bulge feeling laid his hands on him in the support Terry a seizure when the officer pants questioning pocket him. while bulge the pocket saw when first stood Yet, holding is the court nevertheless Furthermore, beside the defendant. when a officer seizure occurred before the saw person leaving upon seeing a the a is scene bulge the had pocket no success in and an officer a re- arrive directs defendant, by ques- finding out from the quest to opportunity the individual for the tions, bulge. what caused questions, person person to ask It to is unwise over-refine these on-the- depart thereby rejects continues to investigative do street issues as to so request, officer’s the individual at “unnecessary difficulty dealing causes legal point to do so. But that has relatively concepts simple with one of the not to say that this conduct not be Amendment,” in the embodied Fourth as factored the officer into the reasonable Supreme Court has observed. United suspicion equation. legitimate It would be Sokolow, States v. 490 U.S. 109 S.Ct. do particular to so under those circum- 1581, 1582, (1989). 104 L.Ed.2d Other- stances. This court’s decision in v. Smith wise, may prosecutor, po- cause the (D.C.1989),for United 558 A.2d 312 public lice to be considerable example, contrary, I is not as under- permissible a Terry confusion what is stand it. constantly recurring practical seizure—a inconsistency There is a certain internal problem in contemporary criminal law en- majority opinion. The main thrust of forcement, certainly jurisdiction. in this opinion presents case concept of suspicion, reasonable like issue, i.e., White, supra, Alabama v. cause, probable “readily, is not or even anonymous justifies Terry tip whether an a usefully, legal to a neat reduced set stop, Supreme which the Court answered Gates, rules.” Illinois v. 462 U.S. Yet, majority negatively. comes 2317, 2329, 76 L.Ed.2d 527 acknowledge in its crucial footnote Supreme As the Court reminded us presents issue of actually case whether White, supra, Alabama v. 110 S.Ct. at (not totality of on the the circumstances suspicion less “reasonable is a de tip) premature just initial there was manding probable standard than cause not by the police. seizure defendant only suspicion in the sense that reasonable If, believe, a as I seizure occurred when can be established with information that is pocket subsequently saw the quantity different or content than that the officer cause, pro- required bulge, investigation had then probable to establish he had gressed point also in the sense to a where articulable that reasonable suspicion. subsequent can from less reli search arise information that is stage (the hard came at a required object) able canister than show White, supra, cause to search cause.” Under then Alabama arrest, ex- know, for the reasons phone from and then later we call requires plained earlier. citizen not additional identified investigation in order corroboration from hardly circumstances this is Under these support Terry seizure. holding in Ala- case turned to be anony- relating drug trafficking bama complaint The initial com- tips standing The initial plus investigation mous alone. subsequent which re- surely corner, citizen the unidentified plaint the re- particular vealed the street not stand alone uncorroborated adequate record. There was corrobo- holding case of that ration take this out White, supra, into rea-

in Alabama v. grounds at the time

sonable occurred; reasonable

seizure and there was committing

ground for he was belief arrest subsequent

crime when the oc-

curred. the trial court.

I would affirm

Tony KELLY Homer a/k/a Palmer, Appellant, STATES, Appellee.

UNITED

No. 87-840. Appeals.

District of Columbia Court of

Argued March May

Decided Johnson, appellant. P.

Bradford Atty., U.S. McKinney, Asst. Linda Otani Atty., Stephens, B. U.S. Jay with whom Tourish, J. Fisher and Thomas and John R. brief, for Jr., Attys., on the Asst. appellee.

Case Details

Case Name: Brown v. United States

Court Name: District of Columbia Court of Appeals

Date Published: May 8, 1991

Citation: 590 A.2d 1008

Docket Number: 86-1276

Court Abbreviation: D.C.