Smith v. United States

unlawful, and that all evi- was likewise BELSON, Before NEWMAN drugs concerning the was inadmissi- dence REILLY, Judges, and Senior Associate suppressed. have been ble and should Judge. Reversed.

PER CURIAM: convicted, following Appellant was trial, carrying pistol bench license, (1981). D.C. Code On was pocket. Appellant found § was appeal, he pistol placed asserts that the then under should arrest. suppressed have been because the officers Appellant gun movеd that the and other stopped him and pistol seized the pertinent evidence suppressed. here be adequate basis, and that the evidence was judge granted the motion in other re-

insufficient to sustain his conviction. We spects, gun but denied ques- as to the affirm. tion, concluding that “under [Terry v. Ohio, 392 U.S. 22,1984, On March an undercover officer (1968)] proper it was stop and purchased drugs from two individuals near thereafter, search and that the seizure was Streеts, N.W., is, 12th and U an area which proper.” according testimony, known for its appeal, appellant argues On that the cir- high incidence trafficking. Follow- provide cumstances did not sufficient basis ing purchase, the undercover officer for a Terry stop. disagree. Deeming We gave waiting arrest teams a placement the officer’s of his ap- hand on persons the two purchased whom he pellant’s stop shoulder a under the cirсum- drugs. here, stances see United States v. Lawson, Officer Freddie spent who had Mendenhall, 544, 554, years six of his sixteen on the force 1870, 1877, (1980) (circum- 64 L.Ed.2d 497 activities, in narcotics-related was a mem- tending stances to indicate a seizure in- ber of an arrest team. His team arrived at touching clude “some person of the of the the scene within two minutes of the broad- officer), citizen” we are satisfied that appellant cast. He saw with the officer had suffiсient suspi- articulable persons the two descriptions fit the cion point stop appellant. the narcotics given traffickers by the un- recently We have noted that “in evaluat- policeman, dercover and saw no one else in ing purposes assessing behavior for vicinity. immediate per- Some other whether there existed a basis for a sons were “over on the other side of the seizure, we must look to totality stopped lоt.” Lawson his car and observed.” United States what the he and three other members of the team v. get Appellant out of it. started to In this Officer Lawson observed very leave at a pace. fast specific these and articulable facts before stopping three other approached appellant: appellant engaged was two who fit the a conversation descriptions given with two men who less than before hаd been the undercover officer. fol- sub- Lawson jects of a radio run for a appellant. lowed narcotics transac- Thinking appellant tion; no other the immedi- might have been involved the trans- area; experienced ate police officer was action cash, who held the aware that narcotics sales are often made possession be in prerecorded team; persons working funds, appellant po- Lawson told he was a narcotics traffick- lice stop. officer and asked him Appel- area; appellant attempted to leave lant and said he had to do hurriedly suddenly ap- when the officers people. with the When at- peared on the scene. tempted away, placed to walk Lawson appellant’s hand on shoulder. As previously recognized sig- We have so, appellant spun did swung around and nificanсe of several of these factors. The strug- his hand at Lawson’s face. The two experience of the officer with the modus gled ground. and fell to appel- After operandi of narcotics transactions is rele- repeatedly right lant tried to reach for his he made a con- vant to whether reasonable pocket, afoot; vest one of the other officers clusion that criminal placed pocket here, his hand on likely and felt the to be in- gun. the transaction. See su- pistol butt of a A .22 loaded caliber volved which, pra, specific 329 U.S. at 88 S.Ct. at and articulable facts tak- 1884; see also Harris v. United together en with rational inferences from (D.C.1985)(drug dealers of- facts, reasonably those warrant that intru- ‍​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌​‌‌‌​​​​​​‌​‌‌‍mini- ten work in teams of two to three to Ohio, sion.” arrest). dangers robbery mize the (1968). The fact that this conduct occurred in a majority, properly deeming Officer trafficking high narсotics area also increas- placing upon ap- of Lawson’s act his hand es the likelihood that it was criminal in pellant Smith’s shoulder to have constitut- nature. Price v. 429 A.2d United points Terry, ed a seizure under to several 514, (D.C.1981). Furthermore, 518 the articulable facts which it considers to have attempted of when Lawson “(1) stop: the warranted was en- question implies him “consciousness of gaged in a conversation with two men who weighs guilt” significantly less than two bеfore had been the the Fourth Amendment seizure. subjects of a radio run for a narcotics (and A.2d at 416 cases 514 cited transaction; (2) persons no other were in close, therein). Although the matter is we area; (3) experienced the immediate regard the circumstances sufficient to war- police officer that narcotics was aware stop.1 rant the persons sales are often made argument Appellant’s that the evidence team; (4) working as a support guilt was insufficient to is without area; (5) trafficking narcotics S.P., 823, (1983). merit. In re 826 appellant attempted and the to leave hur- riedly suddenly appeared Affirmed. Majority Opinion on the scene.” at 201. NEWMAN, Judge, dissenting: Associate (5) are, (2) through majority’s factors “Presumptions lightly of not are bottom, “makeweight” The real indulged meetings.” from mere factors. be Re, here, course, Di 332 U.S. 68 S.Ct. States v. is Smith’s issue (1948). yet, 92 L.Ed. 210 And it is fitting people parking lot with two implicit mаjority opinion in the that an en- given lookout. description person, by tirely “merely innocent meet- suspi- of the “articulable This is the anchor ing” persons suspected other of crimi- case, which the other cion” in this high-crime nal draw importance. would have circumstances enough suspicion upon justify himself to probable In the context of cause for ar- being police. I am detained rest, has eschewed the Court principle sеe the deeply disturbed to guilt by In notion of association. Sibron v. taking foothold in our by association 40, 1889, York, 20 392 U.S. New jurisprudence, Amendment Fourth (1968), 917 case to must, therefore, L.Ed.2d dissent. police approached and searched sole reason that he had been Sibron for the talking to several known narcot- observed upon the constitu- To an intrusion period hours. ics addicts over a tionally protected private interests of a citi- zen, thе heroin found point must be able to The court ruled that “police York, officer. inapposite to an undercover Ybarra We find Sibron v. New narcotics 1889, (1968), 85, 338, Illinois, S.Ct. on Sibron, principally dissent, (1979), dissent relies. which the upon also relied period suspect was observed over a of hours here, controlling as it dealt not with conversing with several known narcotics ad- of an observed action within a few minutes transaction, nor his dicts. Neither Sibron person who but with a search engaging any suspicious behavior. observed during happened the execution to be in a tavern contrast, Id. at 88 S.Ct. at 1893. of an warrant issued on the basis of a search Smith was seen instant tip that the bartender would informant’s persons who met the day. sale that heroin for before, observed, selling moments individuals person search of Sibron’s was inadmissible 343 N.Y.S.2d 343 N.E.2d against him, stating: (1973) (“mere presence at narcotics trans cause”); action did constitute emphasized It must be Patrolman Ballejo, regard- People v. 495 N.Y. A.D.2d completely ignorant

Martin was conversations, (police suspected S.2d defend ing the content these accompanied ant seen pass and that he saw because between cocaine; “no such infer hiding addicts. as he court held Sibron and the So far knew, permissi indeed “have talk- ence of association Platou, Commonwealth v. ble”); about the World Series.” The infer- 455 Pa. (1973) (no ence that who talk to narcotics engaged in belonging addicts are the criminal traf- property for search simply fic in sort of happen prem narcotics not the required warrant), reasonable inference pursuant being ises searched police upon an intrusion indi- personal security. Commonwealth v.

vidual’s (1974); L.Ed.2d 1146 Luddy, 541, Pa.Super. A.2d 601 Id. 62, at at 1902. Terry (1980); (same; frisk), This in principle was later reinforced 825, 114, Illinois, Ybarra v. 85, Larson, 638, State (1981); 93 Wash.2d (1979), involving a case (1980) (parking 611 P.2d viola illеgal of a man at a search grounds by tion for driver insufficient police executing tavern in which the a were passenger). premises, warrant search of and suspected bartender who was of distribut- precedent jurisdic- this There is in Emphasizing heroin. Ybarra that concerning inferring propriety gestures made no indicative of criminal ‍​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌​‌‌‌​​​​​​‌​‌‌‍activity criminal from association with sus- conduct, suggesting made no movements pected wrongdoers; the few cases which do contraband, attempt an to conceal and said major- issue address this do officers, suspicious police to the Hinton v. ity’s holding in this case. Sibron, court, citing that “a reiterated U.S.App.D.C. person’s propinquity mere inde- to others (1969), way their to F.2d 876 pendently suspected of criminal apartment execute a warrant search of not, more, give proba- does rise to drugs, and his com- for encountered Hinton Id. person.” ble cause to search that at Ford, panion, lobby route to the en 100 S.Ct. at 342.1 apartment. same Ford a known nar- user, cotics and court attachment was jurisdictions Courts in other been have Sibron Ybarra in outstanding against ar- rejecting faithful to and him. gun and found suspicion cause and articulable ar- rested Ford a loaded guments upon guilt drugs possession. point, his that based in At association. See, Martin, e.g., People v. detained, Hinton, 32 N.Y.2d had not been who because, majority distinguish majority inapposite 1. The finds Sibron likewise seeks nor his were while neither Sibron at in because the action issue that Ybarra behavior, engaging suspicious in observed case did occur within a few of a conversing Smith suspected transaction, was seen drug suspected did in the case as it having sold under- narcotics to an is, mind, my a distinction This hand. Opin- Majority cover moments before. rejects principle that without a difference. A ion at 202 note 1. The seems take applicable guilt by equally association remains drug ad- the view that while association with wrongful "propinquity” activ- whether the grounds suspicion, dicts observa- not be ity spatial temporal. venture a I would suspected drug presence tion in the recent talking guess had Ybarra been found that grounds. provide such But the dealers does Supreme bartender, been re- and had the bartender no Court made such distinction selling drugs, cently result in Ybar- observed where, case, Ybarra, had have been the ra same. would propinquity inferred from his the accused's suspected suspected dealer at to a distribution site. searched, Lyons’ run. He was arrested and only Spriggs connection with quantity pos- of heroin was found in his they occupants were both of the same Recognizing session. Id. at 712.2 car.” “[c]ourts association,” never countenanced arrest Johnson, However, in Unitеd States v. the circuit court nevertheless held that the (D.C.1985), Terry-shop 496 A.2d 592 combination of Hinton’s association with we person’s flight imput- held that one Ford, flight, fact that he was on able to another if other circumstances indi- his way “pad,” to a narcotics cate authority implies that his up were sufficient to add person’s guilt. another consciousness of U.S.App.D.C. his arrest. 137 necessary “other circumstances” 424 F.2d at 879-80. case was the of three the court’s rеticence to coun- (including appellant and the tenance association was overcome fled) together damaged later in a car at a unambiguous Hin- nature both late hour crime companion’s ton’s own conduct and his police’s conclusion in- Ford, all, wrongdoing. after just Id., volved a common “venture.” possess searched and found to a loaded Mack, Judge A.2d at dissent in that Here, contrast, gun and heroin. at the casе, rightfully pointed incompatibil- out its time stopped, Smith was the two men with ity with Lyons, and found that the whom he was were not known had legitimacy upon an infer- “confer[red] anything they merely fit — ence of entirely by created associa- description given in the radio lookout. tion, repugnant principle today a until that While Hinton “bolted” when his court.” Id. rejected by has this been arrested, was Smith’s conduct (Mack, J., dissenting). agree. present ambiguous; case was he lеft the needlessly now confers fur- walk, may lot a may at or legitimacy upon “repugnant prin- ther this accosting have known that the man him terms, ciple.” Even on its own Johnson no was supra, p. See officer. supports validity more the of Smith’s sei- short, Hinton is not determinative here; In Hinton any zure than does or other case in warning against guilt by its association is jurisdiction: our Smith’s mere act of con- of more relevance to the circumstances of deаlers, versing suspected drug espe- this case than is its result. cially ten other This court has twice addressed seizures present also did not indicate justified “suspicion by on the basis of asso- any that he in common ven- was involved ciation,’.’ with inconsistent results. In holding majority’s ture with them. The States, Lyons (D.C. v. United 221 A.2d 711 caselaw, here finds support our 1966), we eschewed association as contrary princi- is to Fourth Amendment basis for cause to arrest. ples enunciated the Court and case, Lyons that seen in a was car my jurisdictions. followed whom, persons, with two other one of view, guilt by rejected association must be Spriggs, was known to the as a thief as a for Smith’s seizure. basis and a convicted narcotics user. The observing acting suspiciously, the latter ar- II occupants rested all three of the car. We government’s Once the anchor of the held that the had no cause removed, suspicion” the oth- Lyons, “аrticulable arrest since was no evi- “[t]here Lyons any knowledge dence er enumerated factors are left to float that possession by Spriggs. knowledge of the narcotics adrift. As to Officer Lawson’s years analysis Lyons Lyons have 2. Because was decided two before to the facts of would result, dissenting Terry-stop changed its member dis- relevance to the situation Johnson, specu- agreeing. ambiguous. question provoked supra, A.2d at 598 n. 5 hаs J., court, (Mack, part (majority opinion) dis- lation on the of this and 600 n. 6 a division senting). opined applying Terry of which that drug team, more, great that sales are often made in a out a deal cannot itself, knowledge, by appellant engaged would no more be inference that suspect anyone else in criminal conduct.” Curtis v. United Smith than lot,3 or, matter, A.2d For neighborhood. present is necessary again Smith was not at “it to remind that thou- reported by gо transaction the under- sands of citizens live about their agent. legitimate cover call which day-to-day radio subse- activities in areas quently went out contained no which surface in court testimony, ... anyone resembling being high neighborhoods. Smith. Officer Law- crime The fact testified that may son Smith that the events at issue took here at “juggler” ‘high been or “money per- allegedly have or near an narcotics activi- son,” a ty’ member of a distribution team area does objectively any lend sinis- not be ter actual trans- connotation to facts that are innocent Bennett, supra, But action. Lawson did not see Smith han- their face.” money (Mack, J., also dissenting). dle make other movement or at 419 n. 3 See Texas, gesture he was Brown v. which indicated Compare money United States (“The man. fact (D.C.1986) (offi- appellant A.2d 414 was in a fre- accepting quented users, observed one money by drug standing alone, сers man from another and concluding saw stick his not a basis for waistband). into his sup- conduct.”). hand As a engaged factor himself was criminal porting Officer suspicion Lawson’s Finally, as to fact that Smith “at Smith, the “money theory man” flimsy tempted hurriedly,” to leave it is true this at best. Divorced from the fact that Smith recognized, general court has propo “as a was found other two sition, authority imply — weight suspects, it was of no at all. Offi- consciousness guilt may be con оf — cer admitted as much.4 among sidered other factors Johnson,

Similarly, fact that a occurred in seizure.” high drug has, added) Stephen trafficking (emphasis (quoting in ‍​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌​‌‌‌​​​​​​‌​‌‌‍some area cases, v. United of our into son taken account (D.C.1972), determining reasonableness of the offi- 93 suspicion. See, Price (1973)).5 e.g., v. United S.Ct. cer’s 36 197 L.Ed.2d But it States, flight imply 429 A.2d obvious How- cannot con ever, emphasize guilt Flight we have to may been careful sciousness of in all cases. fear, inspirеd litany, legit familiar talismanic innocent with- be “[t]his Although only person prerecord- Q. standing they Smith was the Could not have had some subjects jugglers? near lookout, of the radio ed funds? Could not have been were, according there to Officer Law- testimony, eight son's to ten other They people A. were not with the parking lot. lookout. So, you Q. 4. essentially, the reason that following colloquy on cross-ex- took stopped he was near the Mr. Smith is because amination: people been described as the who have Q. you I ... believe that testified that Mr. suspects that were involved in the transac- stopped your experience Smith because tion? you people there are who are sometimes what A. the reasons. That was one of jugglers as in these call transactions? jure [T. 33-34.] people A. There are sometimes yes sir. called that — never, however, sustained a We have you Q. possible And that for was a reason police flight from the alone. on the basis of Smith, stopping your mind? Mr. flight indicator of “For is not ‘a reliable I feel he A. him because import to make its without other circumstances prerecorded have had the funds. ” Johnson, ambiguous.’ supra, 496 A.2d at less But, any you Q. of these other did not talk J., (Mack, dissenting) (quoting Hinton v. people or ten and have lot] [in States, U.S.App.D.C. you? any conversation with Did them? (1969)). F.2d No, A. sir.

imate desire to po avoid contact with the When Officer Lawson then called to him to lice. A citizen has prerogative as much stop, (according to his testimony) iden- police avoid the as he does to avoid police officer, tified himself aas Smith person, so, and his efforts to do with continued to walk at a pace until fast more, may out justify his detention. put shoulder, his hand on his mak- Royer, Florida v. 103 ing the Terry stop. (plu Second, the meaning of this “fast walk” (a rality opinion) person approached by a ambiguous under the circumstances. police officer “need any ques not answer According to Officer Lawson’s own testi put him; indeed, may he decline to mony, gave Smith no indication that he listen questions may go at all and police officer until after Smith had his way.”); Texas, supra; Brown v. see left driveway, lot when he Johnson, supra, also 496 A.2d at 601 and Indeed, called to stop. Smith to Smith jurisdictions cases from other cited n. 8 never have known that these men were (Mack, J., dissenting). police right up until his arrest: provide grounds To suspicion, there- Judge King, finding Smith not fore, suspect’s circumstances of the assaulting officer, police “was satisfied police efforts to avoid the must be such as government that the prove failed to ha[d] “permit[] a rational flight conclusion that beyond a reasonable doubt that [Smith] guilt.” indicated a consciousness of Law- knew that these police men were officers.” rence v. United 509 A.2d If Smith did not know that the men in the (D.C.1986)(Newman, J., dissenting); John- unmarked car were the his “fast son, supra, 496 A.2d at 597. Typically, in walk” does not a conclusion of con those cases in which we have found that guilt. Lawrence, sciousness of supra, Cf. guilt, indicated a consciousness of (Newman, J., 509 A.2d at 618 dissenting) clearly the accused police knew that (“if pedestrian likely to know that by immediately reacted patrol wagon thе officer in the signaling running from the alleged scene of the him stop, how running does his evince a See, crime. e.g., supra, 514 A.2d guilt?”). consciousness of Smith could not (appellant at 414 “bolted” “be detained momentarily even without arrived); Lawrence, car supra, reasonable, objective grounds doing so; (appellant sight ran at and his refusal to listen police car or answer does emergency lights); Tobias v. Un- not, more, grounds.” (D.C.1977) ited furnish those (appellant began Royer, supra, to run when U.S. at 103 S.Ct. at such); identified himself 1324 (plurality opinion). A “fast walk” U.S.App.D.C. 424 F.2d at 879 justifiably could not lead inference of (appellant “bolted” ‍​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌​‌‌‌​​​​​​‌​‌‌‍when searched consciousness of when it could be companion). his explained by equally plausible circumstanc instance, es consistent with innocence: for important respects, Smith’s that he knew to be conduct after the arrival of the did dealers, and possibility wanted avоid the paradigm, not fit the as outlined in the being arrested force of his cases, flight indicating above conscious- parking long lot with them. “It guilt. First, has ness of at no time did he run; knowledge been ‘a matter of most, common “bolt” or he walked at a fast entirely men are pace. innocent do some Officer Lawson testified that when fly through times from the scene a crime plainclothes his arrest team of officers ar- being apprehended fear оf rived in the lot where the sale place parties began taken ...’” to exit from car, App.D.C. their unmarked 424 F.2d compan- Smith and his disperse. (quoting ions past Alberty Smith walked v.

the unmarked car and continued out of the 40 L.Ed.. 1051 driveway leading (1896)). lot.

III sum, justifica- has found primarily Smith’s seizure in his act persons suspected with other wrongdoing. implications of the

majority’s holding are sinister: to be free seizures,

from unreasonable searches and enough it law-abiding is not —one only

must also take care to associate

“unsuspicious” persons. I fear in con-

tinuing to sanction Terry seizures founded

essentially upon guilt association, principle has further advanced a

which has no in Fourth Amendment view,

jurisprudence. In my “repug- ‍​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌​‌‌‌​​​​​​‌​‌‌‍principle,” properly rejected by

nant day Court the same decided, rejected by should be us to- reason,

day. For this I must dissent. STORES, INC., Appellant,

SAFEWAY COLUMBIA, Appellee.

DISTRICT OF 84-1639,

Nos. 85-675 to

85-1024 to 85-1026.

District of Appeals. Columbia Court of

Argued April 1986. 1,May

Decided

Case Details

Case Name: Smith v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 29, 1987

Citation: 525 A.2d 200

Docket Number: 84-1643

Court Abbreviation: D.C.