United States v. Burrell

GALLAGHER, Before NEBEKER PAIR, Judges. Associate PAIR, Judge: Associate appeal This is an the Government suppressing an from order evidence1 operable pistol fol- seized public lowing a brief confrontation on a The sole whether the street. in- arresting (Officer Flournoy) upon appellee’s truded fourth amendment appellee’s rights by placing his hand on it, sir, “Hold could I saying, elbow and Finding second?” appellee’s violation of constitution- protected rights, ally we reverse. suppress, At on motion testimony there was uncontroverted p. April about the offi- 4:00 m. walking duty cer tour of shopping downtown district. observed He of 13th on the southeast corner N.W., Streets, group among F 1971). (1) (Supp. IV, (a) 1. D.C.Code §23-104 846 a approach appel- appropriate an manner stop. and in waiting When

people at bus uniform, investigating pos- purposes officer, person for who lee saw was though there sibly behavior even criminal his hand from nervously withdrew he an arrest.” began probable cause to make rub- of his trench coat pocket 22, Ohio, 1, Terry v. 392 88 U.S. that while The stated bing his face. 1880, Such itself, 1868, (1968). 20 L.Ed.2d appear 889 action, in and encounters do not constitute investigatory just seemed that significant, too be “[i]t States, 140 Young “arrests.” v. United something wrong.” was 405, 336, 408 U.S.App.D.C. 333, 435 F.2d officer then south on 13th The walked States, 129 Allen v. United (1970). See E 13th and Street toward corner of 61, 476, U.S.App.D.C. 64, 479 390 F.2d Streets, periodically looking over States, Bailey 128 v. (1968); United shoulder, appellee and observed that 305, n.9, 354, F.2d U.S.App.D.C. 364 389 peared watching he walked him as be opinion of (1967) (concurring 315 n.9 The turned and entire block. officer then States, Leventhal, J.); Brown v. United and, stop back toward the bus when walked 43, n.4, 365 F.2d U.S.App.D.C. 125 46 thereof, appel- approximately within feet 976, (1966). n.4 Street, corner, lee left walked crossed F north, west side of Moreover, one block crossed in Coates v. United Street, southerly back in a 13th started U.S.App.D.C. 413 F.2d court, direction. quoting approval (1969), the with Youngdahl’s opinion in Judge and, approach- The officer followed him McKethan, F.Supp. (D. v. States walked, placed ing from rear he 20,059 order, D.C.1965), (D.C. aff’d No. said, appellee’s hand on “Hold elbow and 1966), Cir. said: it, sir, speak could I a second?” with Appellee’s reply was, “It’s instantaneous test must not be what defend- [T]he registered, registered.” it’s asked When thought, himself . . but what ant registered, that his what was he answered crime, man, any innocent of reasonable pistol registered. officer then The thought would have had he been pistol conducted search for the defendant’s shoes. recovered. case, instant the conclusion Thus ruled The court that “when the officer Flournoy’s compelled that seems Officer put his [appellee] hands not initial confrontation with did pretty apparent that not [appellee] to a amount to an arrest nor did it amount free to move or in resist” “seizure”, purview Terry v. within probable the officer “did not have Ohio, 20 L.Ed.2d to do as he The cause did in this case.” appellee’s merely He touched (1968). granted suppress. court then the motion to elbow, an action used as a normal means coupled attracting person’s attention. He hearing judge apparently The touching with simultaneous view that an arrest or seizure Although, speak appellee. to a with placed occurred when his hand the officer mind, guilty request might be under appellee’s applied, elbow because expression stood as an of intent effect instant, probable cause. standard arrest, by the taken as a whole and tested think this was We error. United States reasonable, innocent normal reaction of D.C.Cir., James, (decided v. 452 F.2d 1375 so under person, it should not been 19, 1971), November it was observed request merely The communicated stood. supporting authority abundant that: these appellee. On desire therefore, facts, an uncon is well established that “a of- appropriate ficer cannot circumstances stitutional intrusion occurred interrogation men. After a brief (a) ing the sustained. 17-305 See D.C.Code § search, requested weapons the officers IV, (Supp. 1971). one of men to return them to Ohio, Court, Supreme building. apartment did They desk of the society’s in ef- supra, stated that interest not, however, advise him that he need prevention fective crime and detection “un- they or under that arrest. obey recognition police a officer derlies the proceeded, suspect the was observed appropriate circumstances and place pouch his in a leather hand small person appropriate an approach manner a carried on his belt and one of the officers possibly for purposes investigating of crim- hand, pouch his into seized reached the though inal there is no behavior even and discovered narcotics. probable cause to make an arrest.” U.S. at held in that case that the confronta- We illegal tion became an detention when the Lee, D.C.App., v. A.2d United States suspects re- involuntarily complied with the There, (1970), was to the same effect. quest they accompany police the of- police approached a officer a man and apartment building. to the ficers identification, him for on the basis asked patron’s of a delicatessen observations that Lee, investigation resulted supra, In subject acting a partner and were sus- proba- in an arrest held was with which we piciously. that this was “the We observed because, ble during cause the brief deten- momentary kind of contact which and identity, interrogation tion to determine and recognized must necessary be to a sound given the officer was reason believe police-community relationship and its com- Significant- carrying pistol. that Lee mensurate effective law enforcement.” We ly enough, police activity subse- quoted then adopted language quent to the initial confrontation which led Judge Prettyman’s separate opinion Robinson, opposite supra. to the result in Trilling States, v. U.S.App.D.C. United 260 F.2d Here, action, prior to the the officer’s reads: registered, it’s by appellee statement “It’s I think the of rule cases is registered”, any theory cannot under police

that the can person appellee. an arrest or seizure of considered a suspect or suspect, one who is a mere during action his ob Since officer’s so long period as the detention and of of involve servation the mode questioning reason- liberty, are unneces it is interference pur- able under the circumstances by for the sary reasonableness to test those actions pose obtaining of Ohio, supra, information. standards. Unlike physical (the contact” “initiation . Robinson v. D.C.App., touching was not “for elbow) A.2d by 458 (1971), strongly relied so searching” purpose appellee. Id. 392 appellee, distinguishable on its facts. In course, n.16, 1868. Of case, by two men were observed appellee was apparent it became once walking officers on the street at 2:00 a. m. armed, his and search were probably arrest later standing garage seen proper. apartment building. of an The men then therefore, past foregoing au- garage, left the walked two hold on the We complained ignored stop. thority, activity officers that the One dis- pursued of did not the circumstances the two men under inquired record, to an intru- while the other of the desk clerk closed amount apartment constitutionally pro- building concerning upon appellee’s sion them. clerk, rights. Accordingly, conferring After the order desk tected partner officer joined suppression who detain- record, Reversed remanded for lee. case agree On I cannot disposition. short, trial or other such criticism. en- this street

counter rise does not to constitutional dimensions. NEBEKER, Judge (concur- Associate ring) : GALLAGHER, (dis- Judge Associate colleague dissents from Whenever senting) : expressed opinion view or an which I majority I dissent because I believe the gives adopted that fact me cause sus- will, stands, opinion in this if case set pect validity reasoning. my In- own precedent city worrisome view, tractability, my hallmark is not the right constitutional area of privacy. to reso- those commissioned as we are Those who have of followed the trend legal questions arising lution of from hu- judicial years in past decisions the few to man I conflict. have thus undertaken know recognized the generally courts have reappraise reason- predicate, the factual leeway, that granted must be more Judge ing, in expressed and conclusion bounds, dealing within reasonable it opinion. remain convinced that Pair’s I years gone by street than when crimes prac- and our correct I fail to see how urban life was more secure all. reading tical of this record and realistic rights erosion of can create a worrisome recognition This highlighted by was unlikely even event that this factual Ohio, Supreme Court’s decision in holding is repeated. Our setting would 392 U.S. 20 L.Ed.2d 889 infringe- simply of law no that a matter which, essentially approved pro- rights appellee ex- ment on when occurred popularly “stop cedure and frisk.” known as gun. regarding registration of claimed view, my majority opinion But might with what are not concerned We Terry, case avoids the strictures had justifiable conduct have been goes hardly and to an contem- extreme alarming statement alarmed plated by Supreme in that deci- Court constitutionally Perhaps no been made. sion. on permissible intrusion was sanctioned none facts, these it is clear to me hut At during o’clock the afternoon supplied appellee’s outburst resulted until April policeman year, middle last an abundant basis. walking shopping beat in downtown city. F area of He went west on predicated on my the dissent is view N.W., Street, at 13th the corner turned gives too much which reading the record on the south E Street Street toward phrasing cer- significance to the literal side 13th As he east turned Street. It officer. asked of the questions tain standing glanced people the corner he at trial I also find which fault stop. appellee as bus He noticed by the as it was ruling, telegraphed court’s be- suspicious in a manner” “acting the dissent questions leading corner cause after he turned the holding in this constitutional clings. No pocket his hand out of his “snatched the com- area, commanding it all does rubbing his The officer con- started face.” man can reasonableness mon sense and Streets, & E way tinued all the to 13th bear, requires abandon bring to courts to He said turned around and came back. approach such practical realistic the street going down that while he was here. we human encounters as continuously looked next block it dissenting opinion I understand watch- over his shoulder and was constitution- tell the officer he would street.”1 ing him “all the down appel- ally wrong seeking busy long street. on a downtown block This people Normally, to within came back [OFFICER]: later officer When police- they saw that when do wouldn’t crossed appellee, the latter feet of about 25 man. street, 13th and G block to one went Streets, side the west 13th Street to crossed Oh, know. I don’t THE COURT: at which 13th Street south on and started basing that on? you What following had been point officer, who aroused fact that The him, himon laid his hand [OFFICER]: activity with my suspicion. suspicion criminal him. interrogating purpose announced he took The fact THE COURT: pocket ? only out of his witness his hand The and when suppress the motion Yes, sir. : [OFFICER] their examination had concluded counsel questions some the trial court asked Any fur- right. All THE COURT: the officer’s in an to understand effort questions? ther transpired: following conduct. No further COUNSEL]: [DEFENSE ques- I ask a THE COURT: want to questions. think that clear to tion. is not me—I Officer, you, Thank THE COURT: observed was testified while question. you step more down. One he stop that the Defendant the bus hold by taking you detained him Before pocket and hand out of his snatched his to arm, try to call to him you of his did did began scratching his face. What stop him? Why that seem you? that mean does to important ? No, : sir. [OFFICER] just seemed [OFFICER]: words, you THE COURT: other something It didn’t have wrong. was grabbed spoke arm and then to him. his any significant I turned value. When right, That’s Your Hon- [OFFICER]: the corner— or. you walking or THE COURT: Were Having argument heard the of counsel you patrol in a car. apparently feeling that it understood right. Walking, [OFFICER]: occurrence, the circumstances following findings: court made the you THE COURT: Were uni- form? Anything THE COURT: further? prepared The Court is It ac- to rule. Yes, sir.

[OFFICER]: cepts description pre- as events THE COURT: was about What by sented officer as his best your man that attracted attention? happened. recollection of what One, he took [OFFICER]: in a Court is called case of pocket turned his hand out of his when I this nature to reconstruct those events continuously the corner and watched to decision as to make whether street. me as I walked down the pru- the officer acted as a reasonable and dent officer would under these circum- anything THE Did he have COURT: confronting stances him and whether he in his hand? probable to did have cause do as he did No, in this case. sir. [OFFICER]: any way The Court does not in THE was it about tak- doubt COURT: What ing pocket you of his the officer had the best of intentions his hand out trying but was find felt Court to out was unusual ? did questions hearing judge the officer with re- The fact is the not to At placed it was that him sus- find under arrest. gard what made to find- picious, replied the officer that the man nor during time pocket of his the word ings judge took his hand out did the much as use so “The hearing judge his face. stated: scratched “arrest.” The make a upon ... to is called Court opinion prob- In the Court’s is not did ... have decision as to whether able cause in this case. As to the volun- he did in this case” probable to do as cause tary prob- admission the Court has some subsequently repeated, “This Court lems with that because when the officer probable cause he did not have feels that put his hands the Defendant ” (Em- . . as he did this case. do pretty apparent that the Defendant ques- his phasis At the end of supplied.) or move or in re- any way free officer, the court asked tions to the that, sist. I do not think that we are So taking him hold of “Before detained at a looking admission at all. voluntary stop arm, him to you try to call did indica- supplied.) All (Emphasis him?” The officer indicated that he did also initial court tions are the trial viewed try stop prior not call to him or but as a seizure as an arrest occurrence not putting his hand on hwc from of an arrest.2 short rear at the time that he him. accepts The Court the of- fact that holds the decision Insofar as court’s ficer acted in good faith. This Court than an arrest the trial court probable that he did not cause feels error, initially think I occurred going to do as he did this case so it’s finding never holding error a majority is grant (Emphasis sup- the motion. the matter does not end made. But this

plied.) as error the hear- holds because the court appellee that determination ing judge’s majority”opinion wrong I think the is any way re- in or move or go “not free to respects. place, several first In the be considered sist”, patently must states, hearing judge apparently “The “seized” within appellee was that of the view that an arrest or seizure of and, consequently, meaning Terry, pellee placed occurred when the officer be scru- required are actions the officer’s appellee’s applied, hand on because he elbow standard reasonableness tinized under the instant, probable at that the standard of quite “It fourth amendment.3 of the cause. We think this was error.” LaFave, relatively emergence the Con- 2. Encounters With the Street recent Ohio, supra, Sibron, Terry, Be- Peters : decisions after stitution v. ; (1968) yond, Com- 40 Mich.L.Rev. of a constitutional seizure short of arrest 67 Stop Why ment, for Cause Not Probable in which the must have a reason- (1969). Frisk, 141 seizure, 14 S.D.L.Rev. able for basis is under- F.Supp. Craven, Sawyer See also hearing judge 325 v. standable that chose to (C.D.Cal.1971). phrase 526, 530 his determination of the reason- ableness of such a seizure under well- See, g., James, e. D.C. terminology “probable v. States United known cause.” 19, (decided “[Sjince Cir., said, November 452 F.2d 1375 One commentator has [Terry U.S.App. Hines, approached 1971) ; case is to be States seizure] United v. 1, conceptu- 23391, (No. November fourth decided traditional amendment D.C. Harflinger, alizations, 1971) ; 436 v. the ultimate United States remains 1970), (8th probable 928, de cert. whether there is Cir. cause —not for F.2d 933 1660, 973, Cook, nied, 27 L. 91 S.Ct. arrest —but a detention.” 402 ; (1971) v. States 137 Varieties of Detention and the Fourth Ed.2d ; (1970) D.C.App., Dowling, 406 Amendment, A.2d 23 Ala.L.Rev. Hicks, (1971). advocating Pa. v. For articles the use Commonwealth (1969). “probable A.2d cause” to test the reason- detentions, ableness of non-arrest see constituted action the officer’s concluded governs Fourth Amendment plain that the at a loss to understand I am a seizure. It must person. ... ‘seizures’ of majority overturns upon what basis offi- that whenever recognized Hav- own. its finding and substitutes restrains an individual and cer accosts so, there conclusion it vaults to the ing done ‘seized’ away, he has freedom to walk intrusion.” is no “constitutional supra at person.” Terry, majority’s conclusion In view this, is the imagine, Implicit in I should officer’s seizure and there was no appellee’s action court’s realization intrusion any did not involve actions rub- pocket and taking his hand of his out issue the crucial rights, amendment fourth the street looking down bing plus his face find- hearing judge’s whether becomes walked, and later in the direction the officer clearly had seized been ing that up crossing the block the street to walk e., manifestly wrong. erroneous, i. across, be- innocent consistent with too any afternoon pedestrians havior to under- was careful The trial court short and falls shopping a downtown area why. Hav- transpired and stand what had warranting a seizure facts” “articulable so, due to the officer’s ing done it found that 21, 88 investigation. Terry, supra putting his hand on action Nicholas, 1868; see v. S.Ct. United States same time stopping at the the rear and 1971).4 (8th 448 F.2d 622 Cir. purposes of interro- saying “hold it” for view, in this my majority opinion or move free to gation, appellee “was not in Robin conflicts decision case with our finding seems or in resist.” That States, D.C.App., A.2d son reasonable, v. United certainly not mani- entirely where, (1971), circumstances under holding there festly wrong, and constitutes a activity as a suggestive more of criminal Terry, supra was a seizure. degree, matter of we held the facts at 1877. warrant a street detention But, error says majority, it was majority points to our officers. The be- (clearly erroneous) to find a seizure Lee, D.C.App., decision United States “merely appellee’s cause the officer touched supporting posi 271 A.2d 566 its “coupled touching elbow” and in But in Lee the tion. officers appel- simultaneous vestigating robbery and were of a store equates lee.” It action with the the officer’s activity suspicious part advised of right of a officer to seek information nearby, two men one of whom was con anyone. from truck, point parked cealed behind a at which the officers them for asked identification thing wrong There is one with that bulge and saw a as the reached defendant proach. upon ample The trial court found pocket. then The defendant was evidence and no- that there was a seizure person. pistol seized and a was found majority finding where the does meet that, here, I consider unlike the officers head-on, say wrong. let alone wherein is there were to a able articulate reasonable Surely, judges trial are owed that much. suspicion support the seizure. point The did officer testified at one puzzling majority I find it “grab not him if him” but that the relies as to snatch separate by late “merely stop opinion touched him him.” dicta a the trying to Judge Prettyman in occasions, being two other exam- Trilling On while court, 159,183, by U.S.App.D.C. ined the the 104 260 F.2d officer affirmed 677, “the following proposition after him he hold arm 701 the took of his for ques- police suspect the person rear and him for can a not a tioning. testimony suspect,^so After or long all the one who is a as the mere only and observing period the court witness of detention and mode of the 3, supra.

4. See also cases cited in note 852

questioning are under the cir essentials of a Terry (a) where on reasonable in purpose obtaining by cumstances for the show authority an officer a citizen formation.” I not say walking away would further and is effect restrained from only occurred, police may a any do cit a “seizure” has so but and (b) izen right upon has a to seek from “seizure” must be information founded an articula anyone suspicion. ble long get so as into he does restrict we will not person’s deep liberty, plaster water is to Trilling over a restraint “seize” him. liberty by authority problem police involve the in this show of we have with 5 case; presented solely ques touching innocuous label “a Mallory a with speak,” tion admissibility simultaneous as is involved the of con by done Furthermore, practical pit here passage quot court. One fessions. fall is that ed from the need of Trilling, Judge Prettyman dis self-protective may just frisk cussing activity great connection with but precluded. would be investigation Because it reported crime. Trill ing, evident “it supra, 183, Terry temporary de U.S.App.D.C. at 260 F. tention, circumstances, 2d warranted at There was no in reported crime chiefly which justifies protective volved frisk here. for weapons.” Terry, supra 392 U.S. at opinion The ultimate effect of the court’s at (White, J., S.Ct. concurring). in this case is to outflank Terry. Because If there is temporary no warranted de appellate if an may summarily court over tention person “certainly need sub turn a reasonable trial court that mit to a questioner’s pro frisk there investigative was an seizure one tection” as “. . . right to frisk suspected activity of criminal without a depends upon the reasonableness and, instead, simply reasonable basis classify of a stop suspected forcible investigate action merely gain an effort to 32-33, crime.” Terry, supra at at S.Ct. suspect’s purpose attention for the (Harlan, J., concurring). obtaining information from then the requirement I find it stop for a rather incredulous Terry that there be that the con- “specific which, curring opinion and articulable facts taken states I feel the officer was together “constitutionally wrong” speak rational inferences from those seeking facts, reasonably appellee for warrant that intrusion” is second. I said earlier, Terry, supra any person avoided. may at person other I think in this would lead on the street unless he seizes evitably to justification. unreasonable without investigative supra at Terry, seizures on the basis of an (White, J., concurring). “inarticulate S.Ct. 1868 hunch,” It sought pure would be guard fantasy say policeman against. that, could Terry, supra My not do so. main concern S.Ct. 1868. if hardly stands, should saying need decision that the sub we be embarked jective good faith of course focusing an officer cannot be where after on a were, suspect, here, test. Because if it pro “the “seize” simply tections of the Fourth Amendment would basis an “inarticulate evaporate, and hunch” people subjective good would be ‘secure faith of the persons, houses, their papers, quite officer. This is merely different from effects,’ only seeking police.” the discretion of the information. Ohio, Beck v. 379 U.S. people burdens on the 13 L.Ed.2d 142 (1964). city

this crime ridden are dreadful to con- Yet, I venturing template. think the court is danger- into give while we should ous constitutional waters if all blurs reasonable “elbow room” com- Mallory 1356, 1 (1967).

5. v. United 354 U.S. L.Ed.2d 1479 crime, bating stay this we must within

Constitution.6 findings

I think of the court trial manifestly certainly fair and

clearly erroneous, and I would affirm. C., Washington, D. Spencer, Jr., John J. appellants.

for ASSOCIATION, BONDED ADJUSTMENT Berlin, C., for Washington, D. Kurt Surety INC. National Cor pellee. poration, Appellants, HOOD, KERN Judge, Chief Before PAIR, Judges. Associate DOSS, Appellee. Peter C.

No. 6061. PER CURIAM: Appeals. District of Court Columbia Argued 20, 1971. presented by appeal Dec. The issue Superior whether the Clerk Court Decided Jan. properly acted District Columbia against appellants in entering default appear their counsel failure of upon no- scheduled settlement conference complaint tice and the an- after both case had filed. swer been At the we note the state outset in uncer appeal the record on enshrouds happened tainty exactly below.1 what we have we tell from what before best can us, litigation parties to this for the counsel settlement writing of a were notified judge held before a to be conference pursuant its Civil Superior Court attorney failed Appellants’ Rule 16-1.2 “that prepared appear and an order failure against Defendants for default ap counsel to defense appear and/or entered; conference be pear at settlement and, appeal; the default heart broad base now has such a crime Urban “Judgment” suppose but only is denominated could order would naive signed by giving gen- “Clerk proportions one his title aof reduced to the ago national of Court.” a massive without eration peacetime facets to several effort directed longer requires a set- court no The trial society, we have not seen our such as to be each held tlement conference before. case. complaint example, 1. For nor neither attorney did, however, a state- file us; are in the answer record before ment for the settlement conference. contain entries in the trial court docket entry is at of a default which

Case Details

Case Name: United States v. Burrell

Court Name: District of Columbia Court of Appeals

Date Published: Jan 31, 1972

Citation: 286 A.2d 845

Docket Number: 5923

Court Abbreviation: D.C.