Powell v. United States

FARRELL, Before KING SULLIVAN, Judges. Associate PER CURIAM: judgment trial court is reversed The opinion stated the lead the reasons * record, findings originally supplemental with additional submitted on the sum- The case calendar, however, subsequently court then invited mary was filed March 1994. The the court light findings supplemental argument memoranda in oral on the above date. Af- scheduled Appellant initially the court argument, advised that addi- on remand. ter oral the court concluded anything necessary further. findings and the that he did not wish to submit tional factual remanded, government 26, then filed a memorandum record was therefore on November response May Appellant 1994. then filed instructions to the trial court to with findings. government's June specific memorandum on additional make certain 35,

Judge concurring opinion of v. Sullivan and the United States (1972) J., 620, (Wright, 465 F.2d Judge Judge King Farrell. dissents from dissenting). Judge Wright’s statement is as opinion of the court for the reasons set timely today in and it accu- as was Green dissenting opinion. Accordingly, in forth his my rately reflects concern with the trial this case is remanded to the trial court for disposition suppression of the motion court’s proceedings opin- further consistent with this “disarmingly simple case.” On ion. here, that no consti- record I cannot conclude Reversed and remanded. appellant tutional violation occurred when Accordingly, the trial court’s was frisked. SULLIVAN, Judge: Associate judgment is reversed. separately my express write own rea- II. concluding sons for that the trial court erred Hearing The Motion by denying appellant’s suppress motion to evidence.1 Hernandez, an veter- Officer eleven-month Metropolitan Department,

an of the Police arrest, the time of was the I. hearing. testified at the motion who Introduction Essentially, that Officer Hernandez testified officers, he and two other while on routine Simply, this case is about a District of patrol morning o’clock in the ob- three who, operating Columbia citizen an while au- appellant abrupt served make an left-hand tomobile, being had the misfortune of alley. turn into The officers followed stopped by three officers at three appellant, appellant and when failed to ob- morning. o’clockin the The citizen did noth- stop sign, signaled for serve a the officers ing question more than to pull him to over. Hernandez testified Officer stop. about the reason for turning After vehicle, prior stopping appellant over his driver’s license and motor vehicle appellant he observed bend or duck towards registration, step the citizen was asked to appellant stopped seat. After car, which, concedes, from his appellant vehicle, Papricka requested appel- Officer legitimate. Pennsylvania See registration. lant’s driver’s license and After Mimms, hesitation, appellant a brief furnished the (1977). Thereafter, L.Ed.2d 331 he was requested Ap- officers with the documents. Hernandez, which, my frisked ear, pellant was then ordered out of the view, was not warranted under the circum- upon exiting the Officer Hernandez took stances because Hernandez lacked sufficient car appellant to the rear of the where grounds ap- to form a reasonable belief appellant of the officer conducted frisk pellant dangerous. Although armed pistol. recovered a citizen, pistol was recovered from the usually Appellant’s was that he previously court has that the held end result proceeded through alley because the al- justify constitutionality can never ley short-cut” to avoid “well-known leading circumstances to a seizure of evi- lights. Appellant not discredited traffic dence. Brown v. Further, point. on this (D.C.1991) (citation omitted). behind that he did not know the officers were Twenty-two years ago, Circuit J. alley, out him either in the or when he exited Skelly Wright dissenting opinion: wrote in a noticing alley Upon onto street. ease, disarmingly simple This is a but emergency lights activated it, disposition my judgment patrol appellant testified that he hesitat- jeopardizes privacy stopping and the constitu- because he wanted to ed before rights every pulling tional citizen him who drives make sure that it was testified, and this testi- capital. the nation’s over. The disagreement my concurring colleague. opinion 1. I have no substantial with the court, reasonably prudent man in the mony credited the trial circumstances vehicle, pur- would be warranted the belief approached once the officers danger.” Papricka’s request, appellant safety or that of others was in suant to Officer (citations omitted) 88 S.Ct. at 1883. reached for his motor vehicle added). (emphasis The officer must be “able glove compartment from the of his vehicle. specific articulable provided to to facts Appellant testified that after he Of- documents, which, together rational Papricka requested taken with infer- ficer with the vehicle, facts, reasonably warrant step to ences from those he was instructed from his danger.” he appellant the officer’s belief that is which time Officer Hernandez took 21, of his ear and conducted the frisk. 88 S.Ct. at 1880. the rear III. IV. of Review Standard Analysis Discussion scope Our of review for an order de the unusual The trial court found nying suppress a motion to evidence is set motorist, passage of time route of the 17-305(a) (1989).2 § forth D.C.Code “We vehicle, appel- appellant before findings are bound the trial court’s factual pas- reaching lant’s movements toward clearly supported unless erroneous or not vehicle, “hesitancy senger side of the States, the evidence.” Holston v. United part, and the lateness of nervousness” on his (D.C.1993)(citations 378,

A.2d 386 n. 10 omit hour, belief contributed to Hernandez’s3 ted). Moreover, reviewing the trial court’s dangerous. appellant armed and that the was grant suppress, denial or of a motion to shortcomings of fac- those will address the court’s review is de novo. Lewis v. United tors. (D.C.1993)(citations omitted). “Essentially, our role is to ensure A. The Route Unusual that the trial court had a substantial basis for support the trial The record does not concluding that no constitutional violation oc 4 ap- route” finding that the “unusual Brown, supra, curred.” See 590 A.2d at to Hernandez’s pellant had contributed taken case, findings In 1020. the trial court’s danger- armed and appellant belief that clearly supported by are erroneous and not testi- uncontroverted Appellant ous. offered the evidence. alley “to avoid mony that turned into the Ohio, Turning lights Missouri.” Terry

In at 3rd and (1968), according appellant, was a Supreme alley, into the L.Ed.2d 889 short- police practice,” and a “well-known Court held that a officer is authorized “common Hernandez, an eleven-month weapons to conduct a for cut.” “reasonable search Officer Depart- protection Metropolitan he has Police where veteran arrest, and dealing reason to believe that he is with an ment the time of dangerous only ... officers involved armed and individual one of three absolutely testify at the motion hear- officer need not be certain that the this incident to armed; testimony char- ing, any which individual is the issue is whether did not offer 2."[Wjhen ap- jury, Although present when officers were the case was tried without a 3. three over, only law, pellant pulled one court review as to facts and but both Thus, my hearing. suppression at the testified judgment may except not be set aside opinion only officer and his to that refers law, judgment appears errors of unless it that the beliefs. plainly wrong support or without evidence to 17-305(a) (1989) (emphasis § it." D.C.Code "One, route that the driver is the unusual added). scope pursuant § of review 17- taken, although may just be that the 305(a) interpreted has been to be identical to the purpose lights was to avoid ... of that route "clearly erroneous” standard under Su un- that does not mean that the officers were 52(a). per.Ct.Civ.R. Clayborne, See Vereenv. seeing reasonable in this as an unusual route (citations omitted). (D.C.1993) A.2d morning.” taking to be at three in the Findings of Fact. Moreover, alley as Hernandez testified turn into the

aeterizes trying get unusual. “it didn’t seem away ...,” Her- which was consistent with ruling appellant’s suppression testimony was not nandez’s motion, obligation had an the trial court respond emer- for failure to to the ticketed weigh of both witnesses con Further, gency signals. Hernandez cerning alley, route completed which that he had the PD-163 finding appropriate make an with consistent only approximately took stated that in the the evidence. Since the evidence stop. quarters three of a block to come to concerning record whether route hardly ingredients that com- These are non, appellant, usual vel comes from who by any prise flight chase scene — point, and testimo not discredited on this imagination. Again, the trial stretch of the route, ny that his the route was usual finding passage court’s that “the of time” finding the trial court’s that the route was to a belief somehow contributed reasonable clearly “unusual” is erroneous as it has not armed, warranting appel- that appellant was support one shred of in the record. Al frisk, supported by record. lant’s is not though required we are to draw all facts and sustaining inferences the trial favor States, ruling, Peay v. United 597 see Reaching C.Appellant’s Movements (en (D.C.1991) banc),

A.2d our The court ruled were “[t]here trial that certainly is not blanche deference carte and agrees to. reaching everyone that movements not warranted where the record devoid of And, certainly, reaching act of into back any evidentiary a finding. basis for such pocket may very one’s well look like — leaning, whatever, involve or that is some Passage Appellant B. The Time Before totally reaching with a toward inconsistent Stopped His Vehicle First, passenger side of the car.” there government my dissenting col- only suppression were witnesses at the two league attempt to create a dramatic situation hearing, Officer Hernandez. high-speed upon of a based chase people appel- Neither of these testified about passed court’s statement that “[s]ome time reaching any pocket lant into or to- back [Appellant] stopped_” Quite before the Second, passenger wards side of car. simply, great while such a scenario makes although that he Officer Hernandez testified drama, circumstances, may and in other as- bend or down to- observed duck in establishing suspicion,5 sist no seat, testimony was wards his this flight case, chase or in this occurred as rec- not addressed the trial court. likewise ognized by finding the trial court in its that testimony any reaching only regarding actually any flight, “there wasn’t kind of or chase, by appellant provided by appellant when making finding, involved....” In that, pursuant Papric- to Officer the trial court credited glove com- really making request, sure ka’s he reached into “[h]e that that was registration and partment his license and they [police] pulling that over.” [him] affirmed, found, States, (D.C. and this court The trial court 5. Cousart United (en denied, - U.S. -, 1992) banc), cert. that (1993), S.Ct. discussed just 123 L.Ed.2d than even a little bit more there is Cousart, significance flight factor. In violation, Bras- [Officer because he traffic officers, on-duty Massey Zerega, two re said, reasonably ... that and I think well] officer, Braswell, ceived a call from fellow attempt flee avoid and the driver to a.m., apprehension to of a car 3:30 assist in the officer, adds presence which from the chasing. process which latter was in compared a little more the case more the car make a reckless Braswell observed just having a traffic the officer seen with activated turn onto street. Id. 98. Braswell violation. emergency equipment, but the refused to 99; also McGee v. United Id. see stop. car was Id. After Braswell determined the (court (D.C.1970) reason- found A.2d going stop, called for assistance from not Massey cut the suspicion had to able later, Zerega. Six blocks the car Id. get stop). car off to him to defendant's stopped. Id. Mitchell, Papricka. In handed both documents to Officer contrast D.E.W. and Page, point, in its court United States v. 298 A.2d 233 On this the trial court stated (D.C.1972), ruling Fact, the trial court’s Supplemental Findings of Court affirmed “[t]he passenger’s furtive movement did Hernandez [the finds justify provide a reasonable testify suppression hearing] simply at the officers, sitting on Page, a frisk. In two did not remember the details of whether p.m., a ear their scooters at 5:00 observed [appellant] glove compart- had searched going high speed. Id. at east at a rate of not, any papers or or had handed over ment the car and over- 234. The officers followed Moreover, not,” Papricka. to Officer light. took it as the car for a traffic expressly trial court credited tes- time, Page, right At in the Id. seated timony produce give that he did seat, rear “looked at the officers and around driver’s license and to Officer right if then moved his arm and shoulder as Papricka. something, put something away, to hide Although present case is not a “furtive get something.”6 Upon being ques- Id. case, government movement” movement, by the officer about his tioned King rely on re A.2d Page hiding a beer answered he was (D.C.1992), case, as a “furtive movement” Fearing partner’s can. for his and his D.E.W., however, authority. The decision safety, Page from the car. the officer ordered holding requires that of that case reveals car, the officer did a Id. Once outside the contrary a result this case. pistol quick pat-down and recovered a and juveniles stopped by police two were a powder wrapped in tin foil from some white failing stop signs. Id. for to observe several Page’s person. Id. approached at 195. As no reasonable This court concluded that trying Officer Cullen observed D.E.W. suspicion existed to search the something part down the front “[s]hove stop. routine traffic stated after this We pants stopped under his coat.” Id. D.E.W. standing movements alone “[f]urtive that moving and “held his hands over the area ” hardly Id. at 237 warrant a search.... Observing pushing.” where he was Id. (citations omitted). Finally, the court stated actions, D.E.W.’s the officer believed D.E.W. vague suspicion largely on “[a] based Hence, concealing gun. a Id. the offi ambiguous conduct ... where the rea- gun cer drew his and ordered D.E.W. out of simple investigation son for the and is a the ear. Id. The officer frisked D.E.W. and any crim- traffic offense without indication of pistol pants. a Id. recovered from activity part inal on of the driver either passengers do[es] ... our view [i]n court, affirming This the trial court’s establish a reasonable basis for a frisk.” Id.

judgment, stressed that the movement at 237. gesture,” than a furtive D.E.W. “was more unambiguous “appeared to be an effort D.E.W., Mitchell, Page The cases of added). weapon.” (emphasis to conceal a ambiguous character of the show that Consequently, a we held that the officer had plays in the determi- movement a crucial role suspicion reasonable that D.E.W. was armed suspicion nation of whether reasonable ex- dangerous, for the case, however, and a frisk D.E.W. present appel- ists. In the weapons was constitutional. See also United unambiguous reaching lant’s movement into Mitchell, 24, a glove compartment, pursuant States v. di- (officer’s (1991) pas- officer, F.2d 1291 observation rective to retrieve his insufficient, moving registration even senger the window both license and is factors, jus- forward with the other hands inside his coat as he leaned combination frisk). tify supported suspicion for a his frisk. putting reaching the scene have been for a handkerchief “[i]t

6. The officer testified that on trying something.” pack pocket.” Page, obvious was to hide Dur- of matches in his however, hearing, ing suppression the officer 298 A.2d at 234. appellee possible testified that "it was could State, See, e.g., stopped.” Rogers v. Ga. Hesitancy and D. Nervousness (driver’s (1992) 654, App. 426 S.E.2d Next, appellant’s trial court found that answering repetition nervousness hesitancy supported the of- nervousness questions provide did not rea officer’s safety. The trial ficers’ concern that defendant en sonable included within court its calculation justify activity in criminal and did not gaged suspicion, officers’ reasonable Kramer, person); People v. of his search “hesitancy dis- and nervousness” which was 152 Ill.Dec. Ill.App.3d played only frisk him decision to after Dist.1991) (3 (pat-down N.E.2d requirement A made. had been fundamental occupants of vehicle search under the Fourth Amendment is zone, no-parking after officer parking upon must be in facts which frisk is based found identifications which were sat cheeked possession the frisk. See the officer’s before isfactory, justified, was not where officers (“A Brown, is supra, 590 A.2d at 1013 search part suspicious observed no behavior legal by up; good not made what it turns nervousness, occupants, other than change it starts or bad when and does danger might indicate armed and ...”) (quoting from its character success ous). Thus, possible scenario is that best Re, v. Di United States Papricka giving hesitated in Officer (1948)). 222, 228, 92 L.Ed. 210 S.Ct. documents, only after requested but ask regard, ordered to In this getting pulled ing “why get Papricka, out of the car who circumstances, I fail to over.” Under these approached vehicle from the had request by a citizen of the District see how point, side. At that as found driver’s officer, to a uniformed of Columbia court, appellant already given his officers, inquiring about the his two fellow Papricka. license and driver’s being stopped, can be termed reason for or- Once out of Officer Hernandez uncooperative provide a basis for frisk place on the car. appellant dered his hands citizen, ing especially when driver’s or- At this crucial when Hernandez already registration had license and been posi- appellant to search dered assume the me, by appellant. To such re produced tion, already Hernandez had made the deci- quest of the officer seems well within the Hence, appellant. appellant’s sion to frisk of reason. bounds which, hesitancy “admitted and nervousness” according unambiguous testi- Hernandez’s The Lateness the Hour E. of mony, occurred the frisk decision after by Appellant made, can not be—and should not have been morning. The in the lateness of three o’clock in the trial court’s determina- been —included not, hour, however, under should inclusion suspicion.7 tion of reasonable ease, suggest of criminal circumstances clearly of this after-the-fact information a belief in or form basis for conduct erroneous. fact that of suspicious behavior. The early in the pro- individual removing ficers encountered an

After from the deliberative provide a basis for morning hours does not appellant’s hesitancy and nervousness cess Williams, See, e.g., v. 407 Adams observed the decision to frisk seizure. which was after 1921, 1926, 32 made, 92 L.Ed.2d S.Ct. all that remains is U.S. (1972) (Marshall, J., dissenting); v. Jones hesitancy providing officers with initial (D.C. States, regard, 391 A.2d requested In this United documents. States, 1978); v. 379 A.2d United acknowledged appropriately in Crowder trial court (D.C.1977); v. Stephenson hesitancy “this and nervous- its decision (D.C.1972), denied, cert. A.2d people are may not be unusual when ness that, you say, to do got Q didn’t want happened [appellant] When Q out What said, say, surprised and fair to he was it’s the vehicle? charged why, am with? what [appellant] place his hands on I asked A No, surprised, was nervous. he wasn’t A do that. and he didn’t want to Defense Counsel. Hernandez and patrol. 197 other officers were on a routine L.Ed.2d (1973). Wright Moreover, recognized As in his no offered Green, dissenting opinion in “it seems clear area; stop high area of the was a crime otherwise innocent conduct cannot be trans prior knowledge appellant, no officers had culpable by simply formed into behavior vir appellant any descriptions nor did match tue of the lateness of the hour. It is no crimes; and, persons suspected any crime for a citizen to be out after dark.” court, expressly appellant found the trial at 41 n. attempt Upon request, ap- did not to flee. 465 F.2d at 626 n. 3. pellant Papricka furnished Officer with his registration. license and sum, simply the record this case amply support fails to the trial court’s deci Finally, if the officers feared for their safe- suspi sion that the officers had a reasonable ty, they certainly did act a manner danger cion that was armed and suggesting apprehension of harm. Officers ous, warranting person. thus a frisk Papricka Hernandez and exited their car af- Mimms, Supreme decision in Court’s stopping appellant’s ter their vehicle with supra, permits police mo officers order a holstered; guns without their hands on their pursuant torist out of a car to a lawful holsters; calling backup; without without for a being traffic violation. After detained ordering appellant out of his car via the violation, however, for a traffic an individual and, public system; address without even be frisked if an there arises either checking to determine if WALES9 activity,” “articulable of criminal reported there had been stolen whether 1879; Terry, supra, 392 U.S. at 88 S.Ct. at outstanding for the tickets or warrants Bellamy, see also United States vehicle or a look-out for this vehicle. Once (D.C.1993), or, a sufficient for a basis they reached the officers con- reasonable belief the individual window; open him an versed with dangerous.” “armed and In re su place him to where did not instruct hands Mimms, way, pra, 612 A.2d at 194. in no them; him could see and allowed every authorizes “automatic frisk” with glove compartment reach into the of his car Hence, traffic violation.8 consideration of registration. to retrieve his license and foregoing following, and the Officer Her nandez’s frisk of was unconstitu suggesting Rather than fear tional. safety, these actions the officers are police consistent with actions of reasonable safety The officers’ fear for their is belied just by testimony officers who have a routine traf- the record and their own violator, actions. that no fic not someone whom had Officer Hernandez testified reports reported danger- reason to was armed and of crime had been in the believe Further, Conversely, per- area. he stated that he and the ous.10 the Green court was 8. The frisk Mimms was found to be constitu- 10.The reader will recall that the trial court tional because once the defendant exited his ve- “bending” “ducking” never addressed the tes- hicle, police "large bulge officer observed a Hernandez, timony of either in the first instance jacket.” Fearing under [the defendant’s] 1085, page page supra. or after remand. See At might weapon, bulge a this the defendant and recovered a revolver. The be the officer frisked opinion, Judge King my "[i]n 1094 states of view, by the of the various factors considered upholding Supreme Court in the frisk stated that court, significance [appellant’s] of duck- jacket permitted bulge “[t]he in the the officer to paramount. ing passenger It toward the seat is and conclude that posed the defendant was armed act, act, circum- is that and in the danger safety In a to the of the officer. here, presented reasonably that could stances circumstances, any these man of ‘reasonable cau- give part rise to the conclusion on the of the likely pat-down." tion' would have conducted a [appellant] might officers that have armed him- Mimms, 112, 98 at 434 U.S. S.Ct. reading transcript, of the over and self.” A fair States, 542, 9. See Carter v. United 614 A.2d 543 n. again, findings— no trial court over discloses (D.C.1992) ("WALES, acronym 2 ington for Wash- any of this case—of "duck- even after remand System, Area Law Enforcement is a com- ing" by appellant toward the seat. puterized linking police information de- network signifi- Although may paramount this factor be of partments agencies and other law enforcement Judge King, paramount significance cance to its area.”). throughout Washington metropolitan

1089 739; also United bags see be- before.” that a frisk was constitutional suaded (4th Cir.1977) Bull, and the the officers 565 F.2d 869 “[t]he cause of v. States cred- precautionary (court [as action them long taken been en- noted that officer had clearly indicate[d] by the trial court burglaries ] ited investigating night-time gaged Green, su- apprehension harm.”11 constitutional). thus, stop and frisk 38, pra, F.2d at 623. officer, observing Also, in after y. movements, gun furtive drew D.E.W.’s In con- D.E.W. the car. and ordered from Conclusion trast, Page, supra, this court found where movement unconstitutional and the the frisk view, violation, my traffic a routine innocuous than by the motorist even less part slight on the coupled with a hesitance case, present reaching movements in the motorist does not establish reasonable any precau- police officers did take person danger suspicion that a is armed approaching the car. tions before Drawing all inferences in ous. Hernandez, Further, at the sustaining ruling the trial favor had been stop, rookie who time fact, not, not, require can does year. police force than a on the for less teachings Terry, ignore to which court officer, Pa- the more Significantly, seasoned “specific require that a officer ap pricka, requested received who and articulable” facts to establish reason pellant’s driver’s license and frisking justify of a able him, place did not instruct person. him to hands on the when he asked car; rather, made step out of the Hernandez requirement suspi- of reasonable While view request. We the events surround one,” “an Gomez v. Unit- cion is not onerous “through eyes frisk of a ing the (D.C.1991), States, any ed A.2d on the reasonable and cautious officer appellant un- sanctioning a frisk of decision scene, guided by experience' and train discussed herein would der the circumstances (cita ing.” Peay, supra, at 1322 body of a serious blow to the strike omitted). Thus, examining total tions Judge Wright Amendment. As rec- Fourth circumstances, ity that the trial I hold ognized in give weight due Hernandez’s court did not has unquestionably v. experience. States lack See United duty right and indeed the to take reason- (11th Cir.), Briggman, F.2d cert. against himself precautions protect able denied, 112 S.Ct. danger. important as this potential But as (1991). regard, In this L.Ed.2d 322 absolute, be, for the it is not interest noted that in Johnson court self-protection must al- interest in officer’s (D.C.1976), A.2d often ways against the com- be balanced years experience had four-and-a-half to free from right persons of all be peting may have fear that the that his defendant and seizures as unreasonable searches that he given been armed reasonable by in Fourth Amendment. finding weapons guaranteed “made arrests for had ap- approached the the officer re one officer be addressed in the instance cannot first standing peal. with one beside the cruiser mained on the on the radio the other hand on the Green, the defendant 11. In the officers observed Green, U.S.App. supra butt of his revolver. halt, stop sign. to a Before the car came run a Thus, strenuously 465 F.2d at 621. D.C. at arm make an the officers observed defendant Judge King’s disagree characterization of with body. in front of his Both movement dissenting page of his facts in Green at result, defendant armed. As believed the "virtually indistinguishable" opinion as (1) following precautions: officers took the stopped making present In char in the case. those and one-half vehicle one acterization, Judge King “found facts” confuses car; (2) lengths ordered behind defendant’s by, or sweeping testimony oth not credited with away from his out of the car and the defendant addressed, (3) by the trial court. public system; while erwise car via address conclude that it was 465 Our decisions lead me to out, F.2d at 626. Judge points not. As in United Sullivan (D.C.1972), Page, we States v. 298 A.2d 283 case, Balancing in these considerations seemingly held that “furtive movements” judgment of conviction must be re- more sinister than were insuffi- versed.12 ease, justify to As in this cient a frisk. FARRELL, of the defendant’s vehicle was for traffic Judge, concurring Associate violations, any indication criminal judgment: “without activity part driver or either on case,” “disarmingly This is not a simple as passengers.” 237. While one officer Id. at opines, requiring Sullivan hut it is one driver, talking another noticed to the us to do our fallible best to decide whether passenger, looked Page, seat rear police, viewing though per- events right arm moved his the officers “and then spective, objective suspect reason to something’ ‘put if to hide shoulder ‘as armed, to therefore frisk something.’” Id. at something away, get decision, edge him.1 The knife’s of that car, Page approached 234. As an officer (and I Judge King), appel- me believe “ ‘still the back of his had his arm towards gesture pursuing lant’s while the ” body.’ that these move- Id. Yet we held “ducking” him “bending” toward the ments, fact than the illuminated no other passenger side of the car. Without consider- stop, did resulting traffic violations fact, ation of that the evidence reveals that the frisk “not establish a basis for regulations breached several traffic [Page].” Id. at 237. (not asserted, however, to be arrestable in- fractions) initially and was nervous and unre- distinguished Page in In re We sponsive (say uncooperative) even in furnish- (D.C.1992), unlike “the 612 A.2d 194 because ing his registration. driver’s license and there, ambiguous movement” at issue furtive aggregate, enough that conduct was to in D.E.W. the action the officer observed allow the officers to order him out of the car unambiguous ef- “appeared him be an to documents, while checked his vehicle Spe- weapon.” fort to 198. conceal a check, did a WALES and issued him cita- cifically, had seen the defendant the officer enough tions. It was also for them to direct the front “trying something down to ‘shov[e] keep him his hands view while detained. coat,” then part pants’ under his See Cousart area where he “‘h[o]ld his hands over the (D.C.1992) (en banc). pushing.’” Id. at 195. We held additional, significantly greater But the in- enough tip action to the balance be ordering place trusion of him his hands on frisk. protective favor of a lawful patting justi- the car and him down2 can be present— explicit fied if in D.E.W. does not the sole additional fact movement body judging set a minimal whether a earlier movement before standard for stopping particular bodily gesture sufficient to arouse a reason- could induce an offi- —was Indeed, safety. able fear the officers that he was armed. cer’s for his reasonable fear Finally, Judge King permits states at 1094 of his 1. The Fourth Amendment an officer page patdown weapons opinion judge that he "[t]he observed Officer “conduct a to find testified, concluded, reasonably suspects in the believes or are then Hernandez when he observation, possession person Ybar he has accosted.” based on that as well other fac- Illinois, 338, 343, tors, ra v. that it was not unreasonable for the officers added). (1979) (emphasis 62 L.Ed.2d 238 purpose [appellant’s] to conclude that 'ducking' weapon.” was to obtain a I mean no however, disrespect my colleague, no such Cousart, ("The Compare 618 A.2d at 100 offi- indeed, appears conclusion in the record. If the passengers_"). cers did not touch the While “ducking” officers had concluded that the was to police “confronted a car in Cousart the officers weapon, approaching a just flight obtain their actions in a fellow offi- which had been in from id., cer,” meticulously, judge the which I have detailed see the in found "that there this case 1088-1089, pages totally actually any flight, inconsistent or chase in- wasn't kind of with that conclusion. volved. ...” I. ubiquitous

in the current era of semi-auto- pistols, I matic think of reach- the movement hearing suppression At the Officer Juan ing positioning arm the rear and one’s near 10,1990, at on June Hernandez body Page at issue in would arouse a.m. he and Officers Pa- approximately 3:40 officer, police apprehension natural in a and traveling pricka and Green were eastbound probably patting the of allow a of belt area police in a in the 300 block of Kenne- vehicle Page person the detained.3 But under Street, N.W., they a dy observed in ambiguous the movement Toyota, approximately or four brown three justifying case cannot be the fact a decisive them, lengths abrupt of car front make an Al- frisk that was otherwise unwarranted. alley. were no left-hand turn into There though looked the rear view Toyota. them and the other vehicles between pursuing judge mirror trial police, at the the caught abruptness the turn the offi- of attempting he to evade found that they into the cers’ attention and also turned them. He was then seen duck bend alley, following Toyota. As reached the toward the side of the car before midpoint Toyota alley the “was the By a later. stopping the vehicle block so alley] high exiting speed, at a rate of [the out of the the the time was ordered stop- buckled onto Missouri Avenue” without police through glove let him had search stop sign of he ping located the end compartment his registration,4 and his explained alley. that “buckled” Hernandez as hands were visible to them he surrendered Toyota means the “bottomed out” when it The gov- the documents and exited car. right-hand made the turn onto Missouri Ave- argue suspect- ernment does not that was Hernandez also nue. Officer observed any of other ed offense than the traffic viola- Toyota must have while in accelerated that, more, agree tions.5 I therefore without alley because distance between (even bending earlier movement lengthened a “few more” two vehicles calling reaching) it a was too weak an indica- i.e., lengths, Toyota five or car was about permit tion that he had armed himself to police lengths car ahead of the vehicle six frisk. additional intrusion Toyota alley. As the when the exited the al- police approached vehicle the end of KING, dissenting: Judge, Associate ley, emergency their the officers activated appears Judge It to me that both Sullivan siren, i.e., lights and in- equipment, substituting Farrell are speed. creased judgment judge for that of who went great lengths put place proceeded east on Missouri herself in the Both vehicles signifi- passing the intersection officers as she assessed Avenue green light and a at the inter- cance of the events observed them in the Third Street early morning with the gun hours when the was re- section at Kansas Avenue him, hitting our siren judge po- “right The trial ruled that behind covered. hitting our horn.” At the Kansas Ave- lice conduct was not unreasonable under the intersection, circumstances, was less vehicle adequate there is more than nue Toyota. finding, length behind the support record for that than half would During portion “ap- it. the chase not disturb permitting judge 4. The trial so found on remand. 3.In the class of furtive movements frisk would also be included those McGee (D.C.1970) (po- judge conduct 5. Had the found lice defendant “reach down below front saw stopping exhibited after several blocks apparently (and seat toward the floorboard and ... "flight" pursuing police a corre- seat”), place something "chase”), might under the and United sponding inference a reasonable guilt States v. drawn of his awareness have been find, (1972) (police graver judge "observed the driver F.2d But the did some offense. pulling though government argue, actions making that his furtive movements nor does the someone, engaged pos- placing bespoke example, something seat”). out his belt and it under his vehicle. session of a stolen car, peared” Toyo- that the went around he sitting Officer Hernandez was still exceeding speed Hernandez, was limit although ta According car.” “Officer actually speed Papricka said, that vehicle’s not you going was clocked step are to have to car, sir, otherwise or measured. out of the so he kind of smirked and got said, I put your out of the and hands Toyota The then made left-hand turn Powell, however, on the car here.” did not Street, and, Kennedy back onto because that immediately place his hands as directed: “he lighted, area is well Officer Hernandez was nervous, really acting kept toning looking able to observe the driver around, what, done, said, I why, what have I in his rear mirror. view Officer Her- put your hands on the car.” Powell then nandez could testified that he see the driver complied, began pat-down and Hernandez mirror, “look at us in the rear view and duck by going to Powell’s waistband where he seat, passenger towards down and look at pistol. found a nine millimeter Hernandez again, through kept going us he this6 —sec- pat-down testified he “[f]or conducted Hernandez, however, ond street.” Officer safety, safety, my partner’s our my what, anything, not could see if the driver safety, safety.” and for the defendant’s Her- doing pas- toward he ducked pat-down nandez conducted because he senger kept hitting seat. At that “[w]e might was convinced that Powell have some stuff, siren we thinking our started type weapon on him. run, guy might try obviously he was Finally, stopping....” edge at the Powell that he first noticed the Kennedy one hundred block of Street the police him while vehicle behind he was Toyota pulled stopped. Toyota over and Street, N.W., Kennedy 400 block of and that approximately had traveled two to three there was one other vehicle between his and stopping emergency blocks before after the police vehicle. When he turned into the equipment by was activated the officers. alley police approximately vehicle was Hernandez walked to side of one-half block him. He behind confirmed Toyota Papricka and Officer went to the that he by had taken the route described weap- side. driver’s Both officers Hernandez, by explaining cutting driver, ons holstered. The later identified through alley stop-lights avoid he would Powell, only occupant. was the Officer Pa- Kennedy Street at intersections of pricka then asked Powell for his drivers li- both Third Street and Kansas Avenue. He however, registration; cense and Powell did testified that this was a common route short- comply request with that and instead by cut made those familiar with the area. inquired why pulled he had been over. Pa- disputed aspects Powell several of the offi- pricka again produce asked Powell testimony, example cer’s For however. stating registration license and that once just emerging claimed the complied request Papricka Powell with the alley approached light from the when he explain stop. for the would the reason Pow- emergency Kansas Avenue that the again why Papricka ell asked he had been lights on the car where not activated stopped; Papricka opened then the driver’s until back Kennedy he had turned onto get door side and directed Powell to out of Street. He also testified neither the Hernandez, According the vehicle. Powell nor siren the horn on the vehicle were produced had not his license only “reaching” activated. The he did was when the order to exit the car was made just for his wallet before he Papricka. vehicle, glove compartment and for the after point, stop. Finally, Hernandez testified that “at that his vehicle had come to Papricka’s pulled went around to side of the testified that he his vehicle to the curb something happen, seeing flashing within case were to because he a half block of making lights. us of nervous.... When I kind gestures not, record does not reveal what the officer on the accompanied by part going meant his remark that Powell "kept the officer. this," was, whether 597 A.2d Peay officer v. United stopped, an After his vehicle omitted). (citations (en banc) (D.C.1991) We the and asked for

approached on driver’s side registration. principle Powell drivers license and it is a “well settled his have held that had in his hand and police testified he his license stop, a of a lawful that in the course containing the envelope that he retrieved an may search conduct glove compartment. from his registration protection has weapons where he for his own envelope to gave then the license and the He an dealing with that he reason to believe get that he out the officer who then directed In re dangerous individual.” armed and A took Powell of the car.7 second officer (inter (D.C.1992) D.E.W., rear his vehicle while the first the omitted). and citations nal quotations vicinity Toyota in the searched inside “Moreover, suspicion be must evidence of the seat. He was then ordered to of the front library in terms of weighed not seen and place his hands the and after he scholars, analysis by as understood but pistol on complied, the officer found the law those in the field of enforcement.” versed person. (internal citations omit quotations and ted). II. concluding judge, that The trial police, under

Powell concedes that reasonable, fac- Mimms, forth several action was set Pennsylvania v. U.S. (1977), belief that prop supported the officers’ could tors that S.Ct. 54 L.Ed.2d First, pursuant safety erly jeopardy. order him out of the vehicle stop valid for a traffic violation. Powell judge were reasonable found that frisk, however, challenges subsequent alley, through the viewing detour Powell’s claiming lacked sufficient Second, a.m., “some as unusual.8 3:40 grounds to form a reasonable belief that he stopped” in pass before [Powell] time did dangerous. was armed equip- response police emergency to the reaching Third, made move- ment.9 Powell a trial

Our standard review for car passenger side of the ments toward the evi- ruling suppress tangible on a motion to reasonably inter- could have that the officers requires that “the facts and all reason- dence registra- preted as an locate the effort must be viewed able inferences therefrom Fourth, ruling.” weapon.10 tion or to obtain sustaining favor of the trial court view, remand, an point route was in fact found on this officer’s 7. On trial court passage particularly since the that: unusual one “abrupt” began alley with an turn produce his Powell did driver’s license "bottoming vehicle out" and ended with Powell’s Papricka perhaps registration to Officer alley. as step it exited the asked out of the car. before Powell was Papricka But the Court also finds that exactly have been aware of what well not places weight Judge on the trial courts 9. Farrell provided to him. documents had been attempting to evade finding not that Powell was findings, making Pow- these the Court credits however, only finding, binds us police. That looking for ell’s that he was It respect motivation. does to Powell’s with glove registration among papers in failing question how enlighten Powell’s on the envelope compartment. He retrieved stop weighed in the minds promptly registration which he believed contained his "we officers. Hernandez pa- along and other with documents insurance run, might guy try to thinking, this started attempted pers. to find his He obviously stopping." have As it should was been, telling envelope, him to this hurry but the officer assessment, not Pow- it the officers’ simply up, handed the and he therefore ell's, trial account was taken into envelope entire to the officer. judge. that, since Powell Sullivan concludes others, he, "issue alley 10. We observed often used the testified that shortcut, concluding officer had articulable judge is whether the erred in as a trial steps taken was armed morning [that the defendant was an unusual one. that his route himself], defendant’s] [the not whether acknowledged to arm judge that Powell’s ex- The trial behav- innocent perfectly could be construed using rea- actions planation that route was (cita- D.E.W., supra, sonable; however, 612 A.2d at re perfectly ior.” In reason- also omitted). that, judge tion to find able for the early since, morning hour any reaching by was a factor that could Powell from the bend- Finally, be taken into account. ing position the officers probably would have not been to display were entitled consider trailing the of “hesi- visible to in the officers the vehicle. tancy part travelling nervousness on the of But high [Pow- drivers at a speed rate of ell].” through city streets do not down duck to- passenger ward the seat good for no reason. judge acknowledged The trial that hesitan- I seriously disputed, submit that it cannot be cy and peo- nervousness are not unusual for therefore, that such a could movement have ple violations; however, detained traffic by accompanied reaching, been as the trial judge certainly the observed that “it is found, court in gaining that resulted Powell for the unreasonable officers to take that into possession token, weapon. By same of a the determining account in or not they whether seriously it disputed cannot be that such a need protect to take some actions to them- movement have been more could no than an selves.”11 The judge trial concluded that by effort relating to obtain Powell documents adding when the hesitancy nervousness and issue, however, to his vehicle. The is not of the Powell to other circumstances that weapon whether Powell did obtain a preceded stop, justified the the officers ducking whether pur- the innocent some in frisking Powell safety.” “for their own pose; rather, (“Even the issue is whether under the Peay, See supra, 597 1320 A.2d at if it was circumstances unreasonable for the specific by each act a suspect per- could be by officer to conclude that that action act, ceived isolation as innocent the might Powell have armed observing police himself caused a officer see combina- weapon readily tion be available to him. of that facts make out an articulable (Internal suspicion.”) quotations and cita- significance hasten to that of note the the omitted). tions “ducking” factor does not make the other view, irrelevant; to, my they gave factors of the context various factors consid- court, out, by ered flesh significance perception by the the the the officers of ducking significance Powell’s the ducking toward the seat Powell’s move- paramount. act, It judge is that ment. The trial observed Officer Her- act, here, testified, concluded, the present circumstances nandez he reasonably give could observation, rise to a conclusion on based on that as well as the part might factors, the officers that Powell other that it was not unreasonable have armed himself. no There was testimo- for the purpose officers to conclude that the ny “ducking” accompanied that the by “ducking” Powell’s a weap- obtain reaching, but is not all surprising judges on.12 Trial by have been instructed hour, route, 11. On remand trial court elaborated: the unusual failure immedi- ately respond equipment, stop, emergency The to the Court finds that both reaching step prior stopping before and after he was movements asked to out of the asking questions why justified “pat Powell was about down” defen- being stopped. complied Powell with the dant. produce demands of officers that Alexander, 12. See United States v. registration, driver's license and and that he (D.C.1981) (noting reviewing 49-50 that "in However, place his hands on the car. findings suppress, ain motion to we immediate, must compliance was not and it was accept testimony, conflicting its resolution punctuated with his own demands to know will findings long disturb factual so why happening this was to him. they evidence") supported by are substantial any- did Court not find that there was (footnote omitted); Briggman, thing States v. particularly unusual about Powell’s re- (11th Cir.) ("In Indeed, examining 931 F.2d sponses. ruling denying [its circumstances, totality reviewing suppress], court motion to the Court stated that it give weight experience.”), must probably people due to the officer's was not unusual for to be denied, U.S. -, 112 S.Ct. hesitant or nervous when are - cert. (1991). believed, however, police. Michigan L.Ed.2d See v. Court also 3469, 3482, Long, was reasonable for the to take U.S. these (1983) (”[W]e deciding 77 L.Ed.2d facts into account in whether a stress that a frisk Terry investigation ... warranted. The Court concluded that involves a investi gation particularly when considered from the view of the ... when officer remains officers, facts, conjunction part these with the vulnerable in because a full custodial arrest in remarks finds comfort Sullivan in the shoes of place themselves our eases opinion in dissenting unfolding Judge Wright view the and to would have. at the scene as United States events however, (1972). case, See, e.g., Peay, supra, at 597 A.2d In that 465 F.2d instruc from the judge virtually indistinguishable followed those And the trial on facts hearing here, majority in this conducted the held that tions when she presented facts denying I am satisfied that ease. On this record err in did not the trial court judge, action viewing the true as was suppress. motion and cau “through eyes of a reasonable a here, lone driver police encountered scene, guided by police officer on early morning tious hours speeding a vehicle training,” Peay, supra, experience and light who at one who ran omitted), (citation could 597 A.2d at in this nor In neither Green over.” “leaned officers had properly visible, find but hands were the drivers case posed a the Powell articulable testified that both cases the to frisk safety risk and that it was reasonable actions, believed, driver’s result of the as a weapon. him for a Cousart United upheld court was armed. The Green that he (D.C.1992)(en banc) (finding A.2d the offi- determination that trial court’s supported trial court’s determi that record was not the driver was armed fear that cers’ reasonably perceived nation “that the officers do the same We should unreasonable. as more than a mere traf the circumstances this case. Ohio, violation”); Terry v. fic see also 1868, 1886, 20 L.Ed.2d U.S. (1968) (“There why an no reason offi confronting per

cer, rightfully forcibly but crime, should have suspected of serious

son question one take the risk that the

to ask bullet.”) J., (Harlan, might be a

answer

concurring). danger."). effected, possible and the officer must make others

has not been protect quick himself and decision as how

Case Details

Case Name: Powell v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Nov 10, 1994

Citation: 649 A.2d 1082

Docket Number: 91-CM-1402

Court Abbreviation: D.C.