Appellant R.M.C. challenges the trial court’s denial of his motion to suppress tangible evidence. He entered a conditional plea of guilty to carrying a pistol without a license, in violation of D.C.Code § 22-3204 (1996); possession of an unregistered fire
FACTUAL SUMMARY
During the hearing on R.M.C.’s motion to suppress, the government presented the testimony of Officer Michael P. Ursiny of the United States Secret Service Uniformed Division. At approximately 1 a.m. on November 18, 1995, Officer Ursiny and his partner were on “perimeter security” duty at the parking lot in the rear of 1308 Clifton Street, N.W. Their mission was “to provide any kind of security procedures for the officers [who] were conducting a sweep inside of [the] Clifton Terrace [apartments],” in response to “a tip that an individual who was wanted by [the Secret Service Uniformed Division] and [the] Metropolitan Police Department [for armed assault on police officers] ... was ... in the [Clifton Terrace] complex.”
Both male subjects had the girl literally sandwiched in between them. That, alone, I found to be a suspicious behavior; it’s not normal to walk down the street in a group and be smashed up against one another, it’s just not normal.
As [R.M.C.] and his associates, his friends, when they were approaching my partner and I, I didn’t consistently and constantly stare at the three people; I would look and look away, and look and look away. I noticed how [R.M.C.] and the adult gentleman ... displayed a nervousness. A couple of times I made eye contact with [R.M.C.], and he would abruptly look away, which displayed nervousness to me.
When asked by the prosecutor whether “[he] notice[d] anything about [R.M.C.’s] age which drew [his] attention,” Officer Ursiny said: “After I noticed his physical behavior— with it being dark outside, I wasn’t able to establish the fact that he was a juvenile until he was approximately 10 feet away from me.” Officer Ursiny “made a stop” on R.M.C. When asked the purpose of the stop, Officer Ursiny stated: “It was a combination of me being able to identify him as a juvenile and the fact that he was out pas[t] the time limit. It was a weekend, so it would have been midnight, and this incident occurred after 1 a.m. in the morning.” In response to the question as to whether his intent in stopping R.M.C. was to confirm his juvenile status, the officer stated: “Based on the observations I had made as [R.M.C.] and his associates were approaching my partner and I, based on my experience as a police officer and participation with [the Metropolitan Police Department’s] Gun Recovery Unit, I had suspicions already that [R.M.C.] was armed.” Government counsel asked what the officer did, and Officer Ursiny replied: “After I established the fact that he was a juvenile, I immediately effected a stop on him.” When asked how he made the stop, Officer Ursiny said: “I took one step forward in his direction, reached out with my left hand, I believe, and I grabbed him by his left jacket sleeve_And spun him around.”
Because he believed R.M.C. “was armed,” Officer Ursiny “placed him up on top of a car.” The officer “checked [R.M.C.’s] waistline on the right side, from the front where his navel would be, around to his right hip.” He found nothing. While he was conducting his “brief check of [R.M.C.’s] waistband on
On cross-examination, Officer Ursiny admitted that he made no attempt to determine whether R.M.C. was with a parent or legal guardian, and that he had received no “radio run” or police broadcast concerning R.M.C. He made no effort to determine R.M.C.’s actual age, saying only: “Based on his physical features, it was obvious that he was not [eighteen years of age].” Defense counsel used Officer Ursiny’s November 18,1995 testimony at the probable cause hearing to show that details given during his suppression motion testimony were different from those given during the probable cause hearing. In addition, he attempted to demonstrate that the narrative section of the PD-379 form, which Officer Ursiny completed, differed in detail from his trial testimony. When he was asked about his PD-379 narrative statement that R.M.C. “seemed to clutch his rib cage with his right arm,” Officer Ursiny replied: “Clutch or be protective. I didn’t — with him being sandwiched up against his female companion, there was no swinging of his right arm, there was no natural movements, which I would describe as clutching.” In response to additional cross-examination questions, Officer Ursiny agreed that R.M.C. did not run away from him; the officer did not see R.M.C. put anything in or take anything out of his pocket; the officer did not see a bulge in R.M.C.’s waist, or view anything in his hands. The officer acknowledged that the female in R.M.C.’s company was not being threatened; and that R.M.C. made no threatening gestures to the officer or to anyone else.
After discussion between the trial judge and counsel, the court denied R.M.C.’s motion to suppress. The judge credited the testimony of Officer Ursiny and stated: “I think he stopped him lawfully for an apparent or suspected violation of the curfew law.” He added: “I think ... it was not wrong ... for him to stop [R.M.C.] for violating the curfew law, even if he had it in mind that what was more important was that [R.M.C.] may have had a pistol on his person.” He continued:
Well, I think the police here were legally permitted and objectively authorized to have stopped [R.M.C.] for an apparent violation of the curfew act. And even if they had another motive in mind, even an overwhelmingly more pressing motive, or a second motive, ... I don’t think that the stop was unlawful. I do not think it was unreasonable. And I don’t think what occurred, given the circumstances after that, was unreasonable either.
The trial court did not consider “the pistol [to be] the fruit of unlawful search or seizure.” After additional discussion with counsel, the trial judge added:
[I] do not find that this case calls upon me to pass upon the constitutionality of the curfew law, and I decline to do so. But I must add ... that it seems to me that the reasonableness of the police’s aetion[s] in enforcing the curfew statute are derived, at least in part, from the law in respect of searches and seizures, as is derived, at least in part, from the Terry3 standard.
I think that what happened here is that the policeman, when he stopped him under Terry ... could have maintained the status quo and made sure he didn’t have a weapon. And in the course of doing it, ... before he’d even completed doing that, he was called away by an emergent situation, ... [when] he reasonably turned to assist his partner, and because he was going to*494 do that, he secured [R.M.C.] by cuffing him and was going to move him to a place where he could lay him down on the ground so he couldn’t run away. In the course of doing that, the gun came into sight.
And I don’t think that anything the police officer did was unconstitutional or excessive or unreasonable; I think it was all reasonable and therefore all lawful. And I think, in particular, that securing him before he could pursue the matter of the curfew law violation was understandable entirely.
After the trial court’s ruling on the suppression motion, R.M.C. entered a guilty plea, but preserved his right to appeal the trial court’s denial of his suppression motion.
ANALYSIS
R.M.C. contends that: (1) Officer Ursiny did not have a reasonable, articulable suspicion, or probable cause, to believe that he was armed or in violation of the Juvenile Curfew Act; (2) the manner in which Officer Ursiny stopped him violated both the Juvenile Curfew Act and the Fourth Amendment; and (3) the seizure and handcuffing of his person constituted an unreasonable intrusion on his liberty. The government argues that the seizure and handcuffing of R.M.C. were reasonable.
Our review of the trial court’s denial of a motion to suppress is mixed. “ ‘[T]he facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial ruling.’” In re D.A.J.,
Substantively, “[t]o justify an investigative detention under Terry v. Ohio, [supra, note 3] ..., the police ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” Peay, supra,
The Initial Stop and the Juvenile Curfew Act
The trial court found that Officer Ursiny stopped R.M.C. for an apparent violation of the Juvenile Curfew Act, D.C.Code § 6-2181, et seq. (1998 Supp.),
D.C.Code § 6-2183(c)(1) specifically states in part that: “Before taking any enforcement action under this section, a police officer shall ask the apparent offender’s age and reason for being in the public place.” Officer Ursi-ny never asked R.M.C.’s age before proceeding to frisk him, place him on the car, and handcuff him. Moreover, he did not inquire as to the reason R.M.C. was out during the statutory curfew hours. Accordingly, under the curfew law, it was improper for the officer to take any enforcement action. Under our case law, Officer Ursiny could take additional action, without asking the statutory questions, only if he had a reasonable and articulable suspicion that R.M.C. was armed and dangerous.
The Suspicion of Dangerousness and the Frisk and Handcuffing
When asked whether his intent in stopping R.M.C. was to confirm that he was a juvenile, Officer Ursiny stated: “Based on the observations I had made as [R.M.C.] and his associates were approaching my partner and I, based on my experience as a police officer and participation with [the Metropolitan Police Department’s] Gun Recovery Unit, I had suspicions already that [R.M.C.] was armed.” After he stopped R.M.C., the officer “grabbed him by his left jacket sleeve ... [a]nd spun him around [and] placed him on top of a car.” To determine whether the officer
had an articulable suspicion that criminal activity was afoot and that [R.M.C.] was armed and dangerous[, w]e look to many factors justifying a Terry stop or search for weapons in considering what may constitute an articulable suspicion that criminal activity was afoot or the person was armed and dangerous. These factors include, among others, the time of day, flight, the high crime nature of the location, furtive hand movements, an informant’s tip, a person’s reaction to questioning, a report of criminal activity or gunshots, and the viewing of an object or bulge indicating a weapon.
Anderson v. United States,
Womack is a vastly different ease. The appellant there entered the home of a woman armed with a gun. He raped her, and she recognized him by his physical features despite the fact that he had a hood over his face. The police found Womack at his grandmother’s house and handcuffed him while he was wearing sleeping attire. We concluded that “the use of handcuffs was justified [because] ... the crime of which the defendant was suspected was a violent one and the defendant was reported to have been armed.” Womack, supra,
In D.E.W., supra,
Based upon our decision in Anderson, supra, and other cases, we conclude that walking very close to other people, displaying nervousness, clutching or protecting one’s side, and failing to swing an arm, individually and together, are insufficient factors to demonstrate a reasonable and articulable suspicion “that criminal activity was afoot [beyond the curfew violation] and that appellant was armed and dangerous.” Anderson, supra,
We reversed the convictions in Anderson even though, inter alia, “appellant quickly walked away from the police; ... placed his hands back in his pocket after being asked to remove them; ... became nervous, rocked back and forth, and got wide-eyed upon questioning.” Id. We said: “The Fourth Amendment requires that there must be more than a person being seen in an alley late at night, walking away from the police in a high crime area, who upon being questioned puts his hands back in his pockets and acts in a strange manner.” Id. at 1040. In Duhart, supra, we also reversed the convictions even though the police officer saw the appellant showing something to another person in a high crime area; the appellant walked away when the police arrived; had his hands in his pockets, slowly and reluctantly took them out; and “began to act a little funny by turning his body sideways.”
In sum, we are left with a police officer observing two individuals standing on the sidewalk examining “something.” Their conduct was not unusual, nor even suspicious, but activity engaged in by citizens as a matter of course. [The police officer’s] seizure of appellant was not based upon particularized facts, but an “inchoate and unparticularized suspicion or ‘hunch.’ ”
Id. at 901 (citing Terry, supra,
Accordingly, for the foregoing reasons, we reverse the judgment of the trial court.
Reversed.
Notes
. The suspect was known to the officers by name. Both Uniformed Secret Service officers and Metropolitan Police Department officers were on the scene of the Clifton Terrace Complex, including the parking lot.
. R.M.C. had the gun underneath his right arm in a "shoulder rig .”
. Terry v. Ohio,
. After R.M.C.’s arrest and conviction, the District of Columbia Juvenile Curfew Act was held unconstitutional by the federal courts of this jurisdiction. Hutchins v. District of Columbia,
. In addition to the rationale used to justify the handcuffing in Womack, "Courts have routinely held the use of handcuffs in the Terry context to be reasonable in situations where suspects attempted to resist police, made furtive gestures, ignored police commands, attempted to flee, or
