Williamson v. United States

STATES, Aрpellee. UNITED FERREN, Before SCHWELB and FARRELL, Judges. Associate

No. 90-883. of Appeals. District Columbia Court PER CURIAM: Superior judgment Argued 17, 1991. Oct. the circumstances of this affirmed. Under 21, 1992. April Decided case, permitted reasoning by the Fourth Amendment. The support of this conclusion is contained opinion part all of the but II.B.l. part concurring II of FARRELL and in opinion Schwelb.

FARRELL, Judge concurring: Associate presents and seizure appeal search arising rapidly context issue in the of “a moving involving a street occurrence ... dangerous weapon,” a this court situation for imme has observed makes need “[t]he urgent” “more than diate action” directly menacing less of case of States, Rushing fenses. 381 252, (D.C.1978). A.2d 256 See also Cau States, v. 592 A.2d then United States, (D.C.1991); n. 8 v. Adams United (D.C.1983); Galloway 466 A.2d (D.C.1974), States, 326 A.2d United denied, rt. ce 1981, (1975); L.Ed.2d Cox v. United (D.C.1969). Be 256 A.2d stopping cause the conduct under the Fourth was reasonable Amendment, ensuing a hand seizure of plain also valid and view was denied. suppress properly motion I. carrying a indictment

Following his license,1 possession of an pistol without a George Harper, appellant. firearm,2 pos- unregistered and unlawful ammunition,3 appellant Peters-Hamlin, moved Atty., Asst. session of Kristan U.S. recovered Atty., suppress gun and ammunition Jay Stephens, whom B. Trosman, passenger Fisher, he was John R. Elizabeth from car which Attys., ground he had been seized before- JiYoung Bang, Asst. U.S. were suspicion, in brief, viola- hand appellee. on the without 6-2361(3) (1989). 22-3204(a) (Supp.1991). D.C.Code 3.D.C.Code § § 2. D.C.Code 6-2311 Ohio, 1, 88 he was uncertain who had fired Because

tion of shots, occupants Schadt asked the to sup- the the 20 L.Ed.2d At com- their hands. The two women raise testimony, hearing following the pression passen- plied appellant, the front-seat but by given by judge, the trial was credited only and ger, “raised one hand reached the officer involved. the as if he was down with other hand a.m., Officer On March at 3:45 something.” to hide “Unsure of trying duty part- Leland D. Schadt was on [appellant] doing[,] having and was what cruiser, investi- in an unmarked ner shots,” pis- his gun the drew heard Schadt gating reported assault on the southwest to raise again appellant and ordered his tol Georgia Missouri Ave- corner of Avenue at reach Appellant continued to hands.5 nue, N.W., in the District of Columbia. down, raised hands after and his shootings recently had occurred Several request keep his hands in third to Schadt’s area, its was known for the also occupants officer the The ordered view. the as- drug activity. investigating While car; they obeyed, had he of the when out sault, fired gun heard shots Schadt several pistol lying into the car and saw a looked of the the street from the area “across concealed the floormat on partially under Georgia corner of Missouri.” side, southeast passenger near where right the front to and saw a quickly He walked the corner hand. appellant had lowered his away going speed on Missouri Avenue car suppress, the denying the motion to two wom- He also saw east. testi- credited Schadt’s judge trial get to car “attempting into another en findings following mony made the oral quick thought very to be what [Schadt] fact and conclusions of law: car, it approached As this hurry.” Schadt the cor diagonally across [ Schadt] quickly gas station began to back out of investigating had tak an assault that ner holstered, gun Schadt lot. His still parking area, place, very dangerous 3:00 the en stop to and directed the the driver asked shots, the'diagonal from morning, heard He occupants to hands. raise their three corner, away, assuming a car speed saw stopped that he the car because explained the source that car could have been that these others whether shots, he was area “[u]nsure walked over to the to and, off speeding in with the car were tied investigate further. group Mr. is the perhaps Williamson’s containing car the defendant the Saw at, get trying to the shot was At up away. pull to back start area[;] speeding off or whether the car thought point, he He “was group.” had been shot this somehow in could have been involved car fired and wheth- had the shots shooting, unsure who the victim or'as either as occupants shooter, possible this were wit- they certainly as a er car] [the which, indeed, people were. not.” on cross-examina- Asked ness involved particular he focused car why tion certainly had a He basis over running car, all “people there were people when question the that the occu- ask place,” replied Schadt of him to It was reasonable car. hands, given trying the car “seemed to to raise their pants people else,” or not uncertainty, as to whether away anyone more than get given that that weapon, the fact leaving “running sort had a others were the defen- shooting just place took when scene.4 backwards” whether, gun, drew his he acknowledged Asked later when radio broad- that in his Schadt following people immediately any almost had "indication cast made act,” fired dangerous had been that four shots he indicated shots car had committed a fleeing Mis- east on car he had seen from souri Avenue. a man reach- replied: shots fired. I had "I had hearing: explained "I at the He something get trying ing if he was down as fired, heard shots sir. not see the did something.” hide apparently since [that] assumed them. speeding away, had fired [it] vehicle shots.” obey dant failed to his orders to raise officer had cause to believe had shooting, both hands. witnessed the which was inade quate justify his seizure under Terry. He saw the defendant reach as if down that, government responds first something point. to hide at that He ... —D., U.S. -, v. Hodari certainly grounds pull and California 1547, (1991), 113 L.Ed.2d appel S.Ct. 690 get to the defendant out of the car for finally put until he lant was not seized his protection his own in order to neutralize ordered, up hands so that his actions the situation and to maintain his own floor, furtively reaching down to the com safety. Schadt, the bined with other facts known getting the defendant out of the car gave the officer unassailable founded sus it was reasonable for him to look at the picion him to detain and order out upon looking area where he reached and government argues, of the car. The alter gun. there the saw natively, ges without the furtive even probable While I don’t think there was ture, in stopping the officer’s cоnduct the any being cause of sort of an offense investigate directing car to occu the committed, clearly ... there articu- pants keep their hands in view was suspicion lable and each of the acts the in the circumstances and reasonable satis officer took was calculated to requirements Terry. fied the protect safety and to further investi- government’s argument first based gate clearly what was a serious criminal upon unpersuasive. Appel- is Hodari D. place offense that had taken there. occupied lant he was seized when the car The fact that the officer was alone on stopped by authority a show as it a dark in dangerous corner area made began backing parking the E.g., out of lot. his actions all the more Bannister, v. 449 U.S. 4 n. Colorado circumstances.[6] the (1980) 101 S.Ct. 43 n. 66 L.Ed.2d So I find the would actions he took to (“There question can be no put position him in to see the were stopping of a vehicle and the detention of protect reasonable under occupants its constitute a ‘seizure’ within safety suspicion. and based on articulable Amendment”). meaning of the Fourth [Emphasis added.] concluded, judge As the trial Officer stop, the car to com- Schadt’s direction to II. plied accompanied with driver A. simultaneously by the com- almost officer’s hands, occupants mand to the to raise their Appellant contends that when Officer of the vehicle and its occu- was a seizure occupants Schadt “told the their Therefore, pants.7 the reasonableness of put up, vehicle and their hands he effected conduct must be evaluated with- Schadt’s Amendment,” a seizure under the Fourth regard grounds to the although “plenty and that Schadt then had by appellant’s furtive movements furnished of evidence that some crime had been com- after the seizure. mitted, discharge if even the unlawful firearm,” possessed of a information B. “that indicated that Mr. had Williamson participated discharge any fire- Fourth Amend- “The touchstone of the v. According appellant, arm.” at most the ment is reasonableness.” Florida Jime- police yelled Although partner Officer Schadt had a with no seizure had occurred when time, “Police, street, apparently walking along him at the the other officer wait to a man remained at the corner of inter- southwest you.” Id. at 696- a second. We want to talk to complainant section with the in the assault case. combination of In this case it is the and, to the car to Schadt’s direction agree 7. All three members of the division instant, same his command to the almost the this conclusion. Richardson occupants constituted to raise their hands that (D.C.1987), govern- 520 A.2d on which the the seizure. relies, ment is a different case. There we held — no, Williams, 1801, 1803, v. U.S. -, 143, 145-46, Adams 407 U.S. 1921, 1923, (1972).8 Amend L.Ed.2d “The Fourth 32 L.Ed.2d 612 proscribe ment does not all state-initiated Appellant argues “intermediate seizures; merely proscribes searches response” quo to “maintain status mo- Id. De those are unreasonable.” mentarily obtaining while more informa- underlying principle from this rived justified present tion” was not case evaluating of a on test seizures because, according appellant, probable cause, less than which “balances Schadt conceded that he no reason to quality nature and of the intrusion individual, specific personal security against importance of See, out, car or had committed a crime. alleged governmental justi interests Cortez, e.g., United States fy the intrusion.” United States v. Hens 690, 417, 695, 101 66 621 S.Ct. L.Ed.2d 228, 105 221, 675, 680, ley, 469 U.S. 83 S.Ct. (“An (1981) stop jus- investigatory must be (1985). L.Ed.2d 604 factor One objective tified some manifestation that many informing this is assessment “wheth person stopped is, be, the or is about acting swiftly develop police er the are in a activity”) (emphasis situation”; ing in such a case “the court added). contrary, inability To Schadt’s indulge not in should unrealistic second- precise origin identify of the shoot- Sharpe, States v. guessing.” United 470 ing stop did not unreasonable in make 675, 686, 1568, 1575, 84 of this circumstances case. so, (1985). 605 is Especially L.Ed.2d beginning point as our cases cited at the out, police rapidly mov confront “a requires “The Fourth Amendment ‘some involving danger ing street occurrence a objective justification’ minimal of level report fu weapon,” ous rather than “a of stop.” Immigration & Natu making activity activity posing ture criminal or of Delgado, v. 210, ralization Serv. 466 U.S. Adams v. United public.” threat to the 1758, 1763, 217, 104 80 L.Ed.2d 247 States, S.Ct. Hensley, also 466 A.2d at 444. See (1984). recognized that this “re We 228, at 105 at 680. In these suspicion’ is quirement of ‘articulable not circumstances, Supreme as the has Court States, v. one,” Gomez United an onerous explained: 884, (D.C.1991), A.2d does 597 888 not require The Fourth Amendment does not require possibility “to officers rule policeman precise level a who lacks behavior, ‘suspicious con of innocent necessary for probable of information very ambiguous, duct its nature is shrug simply cause to arrest to his shoul- investigative principal of the function a ders and allow crime to occur or ” ambiguity.’ quickly resolve Ter- escape. contrary, criminal to On the Anderson, Id. v. 890, quoting State ry recognizes be the essence 763, (1990). 454 N.W.2d Wis.2d good police adopt work an interme- unmistakably had founded Here response. suspi- A diate brief committed; suspicion a crime had been individual, in cious order to determine did know was whether what Schadt identity quo or to maintain status discharge of a fire an unlawful obtaining infor- crime was momentarily while more or, worse, shooting attempted mation, light in arm may be most reasonable shooting persons. Schadt known to the officer at the of the facts anyone had been also did not know whether time. Adams, dangerous people. spoke hending We should not 8. Before the in year dangerous bringing potentially v. Ohio decid- indeed the before in bicker if ed, Judge anticipated the kind Leventhal issue commands under control situations writing: posed by problem this case in precautions ‍‌​​​‌​​​​‌​‌‌​​​​‌​​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌‌​​‌​‌‌‍men which reasonable take dealing psychological taking. We are not gamesmanship here are warranted staged in the backroom U.S.App.D.C. Bailey routinely society, ex- As a we station. F.2d appre- pect police officers risk their lives in scarcely wounded. These are the sort of activity”). and nonseizure also See Wold ambiguities State, 171, 174 that should have caused a re- (Minn.1988).10 430 N.W.2d sponsible police “shrug officer to his shoul- misapprehends dissent FerREn’s forgo investigation. ders” and immediate presenting the facts as a situation which Moreover, identity while the of the shoot- reasonably suspect Officer Schadt did not ers) ambiguous, impermissi- it was not anything being “of more than bly so. Schadt heard shots from the di- vicinity when someone else fired a cars, rection of two one of which immedi- times”; best, according four ately quickly fled and the other of which appellant was one of a half dozen Ferren, began to do so. The latter car contained people “suspected or more witness- ... appellant. two women and Either car 485-86, ing another’s crime.” Post at could have contained the shooter But describes a different Ferren view, Schadt’s but both were a more natu- gunshots case: Here Schadt heard object ral than other (or fleeing the direction of cars at- two sought in the area who to leave less flee) scene; tempting to and one of hurried fashion.9 Thus the direction from only immediately suggesting two scenarios which the shots came and the fact that speed- themselves to him was that “the car companions and his were the ing by group off had been shot at this leaving by appeared others car to link them [entering appellant’s Judge Ferren car].” fleeing with the car down Missouri Avenue. asserting thus misreads the record in that gave objective Schadt an reason to person “the whom Officer suspect appellant, part as of a distinct and suspected firing Sсhadt of the shots had individuals, group taking part small of of scene,” post fled the at and other shooting My colleagues a seconds before. persons including appellant simply disagree knowledge and this view as mere- — —were removing way. themselves from harm's “hunch,” ly thereby eradicating a the dis- saw, On the basis of what he heard and tinction suspicion between suspected groups Schadt that of two either probable cause on In these facts. the shooting, only source but “swiftly developing presented, situation” escape. one made its And even if had not Sharpe, supra, already which violence he had certain the other car contained been bloodshed, might produced Schadt’s shooter, he could not certain that suspicion required was not to meet the appellant’s in” the other car—“tied with individual-specific level of precision needed not contain a victim. Far from one—did support probable cause to arrest. See 3 being arbitrarily singled stop, out for a 9.3(d), W. at LaFaVE, § SEARCHAND SEIZURE it, (2d 1987) appellant and (“Even Ferren would have ed. if the circum- narrowly group of others were person stances are such that no one a defined can be offender, singled probable out as the the direct focus of the officer’s reasonable police a violent crime had been commit- must sometimes be allowed to take belief that some action intermediate to that of arrest ted.11 companions police Unlike had reason to believe that

9. who time when the car, quickly jumped persons, for sale.” Id. into a the other the bartender would have heroin Schadt, according rejected argument but had ran “sort of backwards" The Court very situation to consider the different from the scene. occasion this, presented circum- in a case such as where Illinois, 85, 100 10. In Ybarra v. i.e., discharge of a firearm —com- stances— (1979), Supreme Court 62 L.Ed.2d 238 inquiry police pel and the immediate probable is reiterated standard “[w]here briefly occupants attempt of detain cause, person a search or seizure of a must be upon articulated reason to car based by supported probable particularized cause with shooting. in the their involvement respect person.” to that Id. at Ybarra, tape apparently sought justify would hold the In the state 11. Ferren perceived: patdown though of what he even of Schadt’s radio decisive search of the defendant were agents nothing particular there that four shots knew about since he had stated "the away, speeding in- except present, along fired from the vehicle [him] customers, testimony been public car could have in a tavern at a court either several other .476 view, (i) the has my to hold that Schadt’s knowl- officer reasonable cause to felony, that a misdemeanor or perceptions of a believe

edge, measured involving danger injury per- of forcible on the scene conscientious officer danger appropriation sons or of of or judge poring over the record in and not propеrty, has been committed near objective, library, failed the test of ar- place person, he finds such suspicion flunks the ultimate test ticulable reasonableness under the Fourth (ii) the officer has reasonable cause to Amendment. knowledge believe that such has investigation in the of material aid crime, such assuming Even (iii) neces- such action lacked reasonable sary verify to obtain or the identification participant believe was a person, of such or to obtain an account of shooting, the Fourth Amendment did not such crime. bar the decision to him. In Schadt’s Pre-Arraignment Proce Model Code mind, occupants appellant’s car were 110.2(l)(b) (1975). points LaFave dure § participants shooting wit- either genuine provision meets a “[t]his provide nesses to it could material who need, provides a lawful basis where possi- information about the event and the coming upon the scene of a ‘an officer identity was not ble shooter. Schadt recently crime “freeze” committed [can] required appellant’s to sort out exact role— identifications and the situation and obtain participant stopping or witness—before from the an account of the circumstances inquire just-completed him to crime about ” LaFave, 9.2(b), persons present.’ of violence. No Court decision commentary to 110.- (quoting § Judge by cited FerREN has addressed the 2(l)(b)).12 time, LaFave cor At the same in police may issue detain a whether provision “is much rectly observes that long enough clarify such circumstances than thе re narrowly more circumscribed and ask about his knowl- involvement dealing stopping provisions lated with body authority, A of edge. substantial suspects, of which is as it should be.” Id. however, supports the reasonableness of frequent Although the has not arisen issue stop. a such decisions, courts have ly reported in several Professor LaFave observes that the Mod- Penal agreed position of the Model Pre-Arraignment Procedure police el Code of are stressing that “the Code while power position only that the stopping “takes the sensible in witnesses justified constitutionally so stop may present, be extended are such as exigent circumstances po- reported.” encompass recently the brief detention of has been as to where a crime State, in least certain situa- 797 P.2d tential witnesses Metzker v. (Alaska cases). 9.2(b), (citing The Ct.App.1990) at 353. See tions.” § LaFave, Metcalf (D.Del. F.Supp. Long, allowed to proposes that an officer be Code 1985) Metcalf (“[T]he stop initial of stop [the make a whenever added). (or (emphasis possible shooting a witness” was inaccurate the source of the of law untruthful) simply conclude as a matter court cannot of law. But the trial as a matter by- was believed surely required that Schadt judge to hold the officer was Judge character- stander or witness—in his radio statement —one to the literalness of Ferren’s record, "just passing someone fleeing ization permit apprehension aof intended to high unfortu- through crime at an area[ ] ... [a] after shots were heard. seconds —made gunfire.” court, police Post at hear nate time when explained in the radio statement thought 490. supra; if we the radio and even note actually perceived, we do he run reflected what Judge was no situa- belief that there Richter resolved as factfinder. not sit Ferren’s quo’ to main- ‘status tion here to stabilize—"no the officer’s state- between inconsistencies tain,” appel- simply how post at illustrates by finding believed an occu- that Schadt ments 489— from the judges remove themselves can been involved late pant appellant’s car could have shooter, certainly reality of a case. or as the "either as the victim (who scene were less rea- asked others on the justified by the officers’ driver] information. Post quick departing) in suspicion that either the driver of sonable objectively 8. But that is unrea- at 489 n. fleeing the vehicle was Dennis Ponder [a requiring to risk loss sonable or that the driver had Ponder felon] just- information about a of the freshest whereabouts”); vehicle or knew of his crime; penalizes and it committed violent State, supra.13 v.Wold as to split-second decision the officer for a 110.- reasoning which underlies ambigu- clarify necessary to an the means 2(l)(b), adopting the court decisions and of involving danger to human ous situation it, provides firm constitutional basis encourage such candor life. Courts should (a) case where the brief detention by admitting displayed as Officer Schadt discharge firearm in- repeated of a appel- he not be certain whether could injury possibility volved the of forcible shooting or instead lant was involved (b) persons; had reason to be- the officer witness; encourage the dissent would partic- lieve that not himself a opposite by instructing the officer just the —if in- ipant knowledge material to the briefly only may stop an individual —had (c) appel- vestigation; pinpoint the detention him profess he can later when occupants necessary in the former role. lant and the other prompt their account of the shoot- to obtain to decide here We have no occasion ve- ing.14 appellant’s Short of the eyewitness may be potential whether hicle, way there was other, less violent forms stopped when the officer could obtain immediate are or circumstances crime are involved shooting information about the which these demanding police action less of immediate occupants expected could Nor need we presented here. than those disagrees by sug- provide.15 explore proper scope of the detention FeRren length gesting regards could have recorded either its such a witness as In this plate consensually intensity of the intrusion.16 appellant’s license or the Ward, (9th ly with the Fourth this area in accordance 13. In United States v. 488 F.2d Cir.1973) (en banc), ordering suppression Amendment. stop, evidence the result of a the court seized as asserting issue Ferren confuses the pointed significantly, out that "most ap- "reasonable cause” to believe there was no agent’s pursuant was not made to the founded shooting knowledge that pellant about a had suspicion that the detainee was involved or yards only from him seconds earlier occurred activity," about to be involved in criminal but appellant know "was the officer did not purpose questioning made for the rather "was get away doing anything area_” trying from [the] but to appellant person" about a id. at 169 third added). (emphasis at 486 n. 5 Post Ward, however, original). (emphasis view, logic requires apparently, In the dissent’s agents did "there was no crime 'afoot.' The FBI shooting before he person’s in a involvement stop appellant’s any car in connection with not thought reasonably be to have information can crime, particular pursu but rather the was or the circumstances. about the shooter investigation general to a that had ant begun months before. There was no several he states Judge in error when Ferren is thus emergency any need for immedi situation nor majority the addi- refuses to consider that “[t]he states, ate Id. As LaFave “Ward is action.” many ‘suspected privacy wit- tional invasion of encompassed quite from the situations different seizure,” likely includ- to suffer after nesses’ are provision, which Model Code as to within the weap- for ing and searches frisks of their contrary result.” courts have reached LaFave, expressly do not consider at 488. We ons. Post 9.2(b), at 355. the circum- detained under a witness whether could be searched. we describe stances Service, curiae, the Public Defender 14. Amicus inevitable such searches are is convinced Ferren Congress declined to points that in 1969 apparently police, only that because he believes proposed legislation courts, au- that would have "push enact more and by activist will aided protec- police in the District of Columbia to beyond thorized constitutional traditional more up twenty agreement minutes for with detain witnesses for to reiterate our Id. We tions.” provision investigation. purposes See H.R. 91st Model Code drafters of the authority must Cong., any be in- detain witnesses Sess. No more can 1st narrowly than legislative circumscribed” than that more inaction "much ferred from stop suspects. authority develop judicial- Congress decided to let the law case, ever before Officer Schadt could him, question in move with quarrel have no Farrell’s causing legitimate concern ments description far as it of the evidence so safety, justifying officer for his in turn his goes, measure but I think it in some weapon to draw decision direct more. plot advance the to mention a little occupants to leave the ear. In re See cross-examination, describing his On after (D.C.1990) T.T.C., n. A.2d Ford occu- approach to the 1983 automobile behavior, (“supervening such a furtive women pied Williamson his two during movement the course of an investi friends,1 that he Officer Schadt testified gatory stop, may reasonably lead an officer everyone please “to their hands asked raise justify his safety to fear for an escala colloquy following I can so see them.” used”); Marbury in the level tion of force ensued: (D.C. A.2d Q. you point, had no indication At this 1985). рlace From a he was entitled people of these had committed be, gun partly Schadt then saw the crime, is that correct? on the of the car below the concealed floor A. more or less correct. That’s occupied. seat had Q. them raise their you But asked hands? dissent, we do not believe the

Unlike general Yes, its Fourth Amendment and com- A. I did. require mand reasonableness courts Q. point then some after that And at essentially an reduce a officer to weapon? you pulled your recorder events at the scene of a passive Yes, I A. did. life. shooting involving danger to human indica- Q. point you had no And at that here, the circumstances Under commit- anybody tion in the car had permitted by and its was occupants the car ted a crime? Constitution, properly and the point I was more concerned A. At that into admitted evidence. worrying than about my safety done.[2]

what had SCHWELB, Judge, concurring: Associate acknowledged Essentially, Officer Schadt suspecting Wil- he basis FerREN and I—a crime, and he indicated liamson of a that the informa- division—do believe criminality lack thereof detainees’ suffi- available Officer Schadt was tion significant then a concern. was not support cient to an articulable Moreover, tape recording of Officer had committed personally that Williamson radio request over Essentially do so. Schadt’s crime or was about to ap- assistance, prior which made by Judge the reasons stated Ford, played proaching the pages opinion, 476-78 of his Part II.B.2 at that hearing, revealed however, suppression at the agree I the seizure rea- that was that dispatcher had advised the specific infor- the officer spite the lack sonable vehicle fired from a part on “four shots were regarding wrongdoing mation on Missouri speeding east looks like it’s [it] of Williamson. Schadt, "may Ellis, Ford, that well be” that found cer also Daydria and one the owner "telling evening companions Ms. on Ellis were of Williamson's both the officer Ellis question, also Ms. denied testified. it.” remember truth as hurry, to leave in a and her friends tried she insisting they stayed and waited for around recently noted in 2. As we Gomez “nosey” approaching because she was officer (D.C.1991), "if the A.2d happening. was Ac- to know what and wanted cording suspicion to seize officer lacked Ellis, stationary Ms. the car justified [Williamson], not be the seizure could approached, and the offi- when Schadt dangerous to upon that it would be notion saying anything. pistol Ms. his before cer drew companions chat with [Williamson] repeatedly her told stated that the officer Ellis restricting liberty.” their without happen- up inquired what was when to shut she crediting judge, specifically Offi- ing. The while applied to Williamson Avenue.” Officer Schadt testified at the dent witness— hearing apparently Plainly, he had assumed his friends. as the officer effec- that, speeding acknowledged, attempt he made no tively since this first vehicle was away, shooting. it was the source of the to do so. perhaps voyage Our would be smoother sure, explained

To be the officer also comfortably if we could fit this case within companions Williamson and Terry principles and more conventional trying get away “seemed to be more sailing comparatively uncharted avoid anyone Surely, though, than else.” this is (in jurisdiction) waters described predicate a slim reed indeed on which to opinion. In part II.B.2 of finding suspicion. Anyone of articulable Farrell’s however, my opinion, require us this would eager long enough enjoy to survive fur pegs round and to square to fit into holes opportunities ther to smell the roses could testimony part of ignore dispositive on the reasonably depart view the need to officer, arresting key as well as being “pregnant that scene as with an ur finding by judge. the trial gency” unnecessary delay. that brooks ‍‌​​​‌​​​​‌​‌‌​​​​‌​​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌‌​​‌​‌‌‍no Harris v. District Columbia Comm’n of 562 A.2d II (D.C. Rights, Human 1989). I know would. however, fully agree, for the reasons seizure stated Farrell, part company I must therefore of the Fourth Amendment did not run afoul Judge FaRRELL when he insists that Officer if, indicates, as the here the offi- evidence objective Schadt “had an reason to that Williamson cer believed appellant, part of a distinct and small companions have vic- and his could been individuals, group taking part in a tims, witnesses, though suspects, even shooting seconds before.” All that is re- these yet he could not tell into which of quired stop minimal Terry3 for a is “some categories they belonged. As the making objective justification” level of explained in Court of Minnesota Wold v. it. Immigration & Naturalization Serv. State, (Minn.1988), 174-75 430 N.W.2d 210, 217, Delgado, court, as well as courts of other 1758, 1763, [ o]ur 80 L.Ed.2d 247 Mini- states, recognized that order mal, yes, but not thаt minimal! The record situation, per of a “freeze” the compels in this case conclusion recently present at the scene of a son really Williamson was not seized because per crime of violence committed suspect. judge the trial sensi- As trampling on the Fourth without missible found, bly the officer prohibition against unrea Amendment reasonably thought that that car could seizure_ Espe sonable search and have been involved somehow permissible cially is such a deemed shooting, either as the victim or as the only a limited number of shooter, certainly possible aas witness of a violent present are at the scene which, indeed, people were. crime. added.) testimony (Emphasis The officer’s omitted). (Citations and footnote that Officer had no demonstrates reveals, Wold, foregoing passage of these three as the time to determine which victim, point;4 the authorities cited categories perpetrator, indepen- — 1987) 9.3(d), (2d Ohio, 1, 1868, ed. at 461 20 v. 392 U.S. 88 Fourth Amendment dissenting 4 to his L.Ed.2d 889 in the second half of footnote opinion, proposition that Williamson for the Any objective reader of the Minnesota Su- if the could be seized conclude, preme Court's decision in Wold will companions of suspected of his him or one view, part my quoted passage is a pages in activity. passage comes 107 holding, Judge and not dictum as the court’s discussion of the Professor LaFave’s after Model suggests. 9.2(b) §id. Ferren Code Pre-Arraignment Procedure, 353-54, scope authori- Moreover, of an officer’s and of the Waynе Judge quotes 3 R. Ferren without a crime scene ty an individual at A Treatise Search Seizure LaFave, on the and 480 timely again to remind counsel that United States quotes

FeRREN are not. He It is Cortez, 417, 690, 411, v. 449 101 S.Ct. opinions are to be read in words of our 695, (1981), 66 L.Ed.2d 621 as well as sever- light of the facts of the case under cases, proposition al other for the that an keep opinions discussion. To within “investigatory stop justified by must be precludes writing reasonable bounds per- objective some manifestation every or variation into them limitation is, stopped be, son or is about might suggested by which the cir- added.) activity.” (Emphasis cumstances cases not before apparently that the itali- He takes view expressions transposed Court. General language the issue on which cized resolves misleading. to other facts are often he and the other of the division members added.) Moreover, (Emphasis as we first part company, and that the are there- 910, Kraft, in A.2d stated Kraft individual, precluded stopping fore an (D.C.1959), recently and more reiterated immediately apparent com- even after Alston, A.2d at 594 n. and first crime, first mission of a serious without Khiem, slip op. then in at 8. (within sorting fleeting moment significance is remember that well to depart) it would take that individual to [ i]t general wrong- given is to broad and statements suspected or is a whether he she possible only by comparing or the facts doer rather than a victim third of the law Judge Fer- party my opinion, In they witness.5 arise with those facts to from which predicated position “is on a miscon- they supposedly apрly. which ren’s judicial ception of the nature and uses Judge heeded these has not Ferren far too precedent, and therefore makes can warnings. suggest, He does not nor much out of too little.” Khiem v. United (or he, any opinion cited Cortez other 91-1028, (D.C. slip op. at 7-8 No. him) by a scenario similar to the involved 1992). 20, Mar. question present presented or with one Judge points As out in the lead Farrell disagrees Judge respect he to which Judge opinion, by none of the cases cited was, very me. That issue presented question which Ferren however, prosecution’s favor decided in the settled, Judge claims that Ferren now Judge by cited Wold the decisions consider nor did the courts have occasion to Farrell. says which he these deci the contention point surely uncontestable that It Khiem, supra, Both in sions foreclosed. raised in the cases on which which was not previously in United 8, slip op. at have been Judge relies could not Ferren Alston, n. 12 States v. 580 A.2d Moreover, since in those cases. decided quoted (D.C.1990), noted and this court has panel now divides the issue which meaningful caution in Court’s Cortez presented to the court Wantock, Armour & Co. v. Judge cited Ferren, the other cases 132-33, L.Ed. 118 opportunity to never had the (1944): United States my between an obvious difference being a witness 5. There is that individual is sure whether juxtaposition suspect. views at- position basis of his above and the or a On the as articulated passages located in different paragraph of two unrelated of the fourth tributed to me in the treatise, Judge parts Ferren mаin- dissent, of the same to discern Ferren claims in which that Professor LaFave tains that "it is clear” approach inconsistency between Farrell’s possible witnesses would authorize seizure regarding There my the issue at hand. own reasonable, objective suspects "only if there is inconsistency. To eliminate is no such per- believing least one of the basis for that at record, my this is doubt as to assessment clari- a crime." Such sons seized has committed that William- the officer knew not a case where beholder; person’s eye ty one is in the but had an not a son was fact, luminosity opaqueness. is another's might or victim. suspicion Rather, be a witness po- "sensible to the Professor LaFave subscribes basis for a reasonable the officer had sition,” 9.2(b), taken id. § Model of those fell into one suspecting that Williamson limitation of the kind contains no Code, yet although de- categories, he could not three (or foist seeks to attribute to Ferren which. termine distinguished Amendment upon) Fourth this scholar. present merely provides to a crime an its law enforcement interest for the a witness consideration, Judge FeRREn’s court’s and basis, the appropriate consistent with not tested “the fires of ad thesis was Amendment, seizing for that Fourth versary presentation.” Allen v. United questioning. court has ever held No 1219, 1229 (D.C.1992) States, 603 A.2d n. 20 due, respect all I believe that this.1 With (quoting Crawley, v. United States majority’s analysis the and result are un- (7th Cir.1988)). F.2d all of Under principled permitting a and unfounded— circumstances, these the authorities on rights— gross violation of constitutional Judge “may relies not be Ferren court, banc, sitting and that this en should converted, by ingenuity judi barristerial swiftly vote to vacate. alchemy, sweeping rejection cial into a of contentions which were neither before the court nor relevant to the issues then at I. Khiem, supra, slip op.

hand.” at 9. Judge join all in Part II.A. of Constitution does not bar sei- Farrell’s prohibits only It zures. unreasonable ones. opinion, agree analysis for I — designed The Fourth Amendment was not Hodari, D., -, California consign impotence to virtual (1991), 113 L.Ed.2d 690 is attempting investigate officer who is an irrelevant; appellant seized the mo- apparent armed offense moments after it stopped ment the car and occurred, and who needs information to companions put asked and his help apprehend perpetrator him to the reject their in the air. But I Part hands injury thus to reduce the risk of opinion justify- II.B.l. of Farrell’s property. It no sense me to makes crim- ing appellant’s seizure as a suggest in the situation which con- Instead, activity. join Part I of inal immediately fronted Officer Schadt after opinion contrary, to the Schwelb’s shooting, lawfully nothing the he could do announcing majority the view on that issue: perhaps but twiddle thumbs6 and write point specific Officer Schadt failed to down license number of the car justifying and articulable facts which Williamson and his friends were appellant had been adoption seated. Our of such a notion meaning reality activity would so from removed within right obligation street and from the Ohio, 1, 88 S.Ct. Terry v. investigate violent crime as (1968). That should end this L.Ed.2d 889 public to invite understandable ridicule of case, requiring a reversal and remand judiciary. Accordingly, I vote to affirm suppression motion. erroneous denial of the judgment. a new my colleagues collaborate on But FERREN, Judge, concurring Associate dangerous unconstitutional —rule —and part, dissenting dissenting part, emphatical- justify affirmance. I of law to judgment: approval appellant’s sei- ly reject their witness, “victim,”2 or ‘possible zure aas Today my colleagues effectively an- two reasonable, articulable possibility suspect, without nounce someone surely pru- pants keep view was approve their hands in Ferren would the "consensual interviewing bystanders." Dissenting op., dent rather than irrational. Although judge reasonably note 2. viewed why govern- occupants probably is the reason Officer Schadt’s direction to the 1. That argued proposi- and to let him see their hands as neither briefed nor the car to ment post-argument "stop," between a until this court asked for a Fourth Amendment the line tion can be seizure and a consensual encounter submissions. Here, fuzzy. example, if Officer somewhat indication whatsoever and his 2. There is no Schadt wished to interview Williamson Thus, basis, anyone injured. been a consensual he would have record friends on case, "victim," Moreover, of this signal stop. on the facts reference to had to to the driver to time, eye- possible complainant: an place, can mean a that stances, and under those circum- aimed and missed. at whom the shooter insistence that the occu- witness officer's suspicion appellant engaged may during had lawfully a be seized the investi- gation recently criminal act. of a committed crime on reasonable, less suspicion than my colleagues Because have failed to activity. of involvement in criminal opinion, one interpret write it is difficult Schwelb, contrast, concluding In principle appear announce. There that Officer Schadt did not have reasonable ap- to be clear differences between their suspicion appellant had been proaches, yet they purport to reconcile activity, focuses on dicta in explanation. those differences without clear Wold attributable to Professor LaFave. Farrell, believing that Officer My colleague incorrectly relies dic- on that seizing Schadt had a reasonable basis justify “freezing” ta to the “scene of a Terry, appellant under votes to affirm ante crime,” having violent without State, Wold relying primarily on showing articulable facts on someone Wold, (Minn.1988). N.W.2d 171 In participated activity.4 scene criminal considered, Minnesota un- that, case, Putting aside the fact in this Terry, who, police patdown der a of a man likely suspects most had fled the scene man, along standing with another next approached appellant before Officer Schadt victim, body stabbing to the comatose of a companions, ignoring and his as well harassing paramedics trying who were sign the fact that there was no ‍‌​​​‌​​​​‌​‌‌​​​​‌​​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌‌​​‌​‌‌‍of a violent give help. opinion, As I understand that approached crime when Officеr Schadt justified the court held the seizure was car, Judge appellant’s justifies sei- Terry reasonable Terry suspicion, zure, spec- without on the appellant may engaged in have been discer- may ground ulative and elastic that he activity, though see nible even witness, complainant, a been supra might have turned out that suspect. note or a But unlike Id. at 175.3 supra see only LaFave, “witnessed the crime.” note Professor Wold suspi- require cannot be read to hold that someone Schwelb does not 110.2(l)(b)). adopt reading Rather than does—the A of all relevant § dure —as gives trial court’s unsubstantiated conclusion that Of- defini- sections of LaFave’s treatise some ap- ficer Schadt could have believed tion to the "certain situations” in which he be- pellant companions or one of his had been a police may "freeze the scene”: lieves the crime, "victim” of a I will refer to recently In a situation such as committed [a opinion “possible the remainder of this as a robbery], have some au- ... must witness,” eyewitness complaining either wit- thority the situation. Even if freeze ness, except my quote when I from one of person can circumstances are such that no one colleague’s opinions. offender, singled probable as the be take must sometimes be allowed to 3. See W. Searches & arrest and some action intermediate to that of Ringell, Seizures, Arrests 13.4(d)(2) § 13-46.1—13.47 suggest scrutiny. This is not to Confessions, nonseizure frisk) (1991) (discus- (chapter Terry stop and resulting tempo- "dragnet approach,” suspect’s nearness to sion of Wold in section on large persons rary seizure of a number of which, scene of crime as factor when combined range possible flight of the rob- within the ber, factors, justify Terry stop); see with other permissible or desirable. What is either J.G.J., (D.C.1978) also In re 388 A.2d appropriate are are needed and in this context curiam) (per (noting proximity to scene of investigative procedures" whereby "selective justifying Terry stop). crime one factor only those as to whom are made seizures possibility" their there exists “reasonable treatise, Professor LaFave declares: being the robber. omitted) 9.3(d), (footnotes (empha- Id. at 461 § stop may constitutionally power [ T]he Wold, added), approval sis cited encompass so as to the brief deten extended J., (Farrell, at 174-75 n. ante at 475 N.W.2d potential witnesses in at least certain tion of concurring). It is therefore clear that Professor coming "an officer situations.... upon [where] scene, per- justifies freezing the LaFave himself recently scene of a committed crime possible suspects, mitting witnesses or seizure of identifi ‘freeze’the situation and obtain [can] reasonable, objective basis— there is a if circumstances and an account of the cations believing that at least basis—for persons present.” call it from the 9.2(b) committed a seized has at 353-54 one W. Search Seizure LaFave, & (quoting crime. Pre-Arraignment Code Proce- Model thereafter; they require articu- cion that at least one of the person seized is a lable stopped may have committed the crime. (in to the ac- criminal addition short, principal authority In on which person knowledged possibility that colleagues for my each of relies—Wold witness). may seized See infra Judge Judge and LaFave Farrell pp. 487-88. support particular not Schwelb—does his rule, announcing its new approach. Supreme Court’s altogether ignores Judge Because votes to affirm Farrell seizures, teachings investigative which on despite against Terry justifi- two votes Judge point.” calls not “in Ante Schwelb seizure, necessarily joins cation for the majority’s The decision not to at 479-80. analysis, Judge Schwelb’s which effective- teachings guidance is look to those ly says: objective If a officer has no both particularly troublesome because believing any particu- articulable basis Judge ac- Judge Farrell and Schwelb person lar found near the scene of a crime ap- knowledge that Officer Schadt seized activity, may have in criminal but investigation. pellant during a criminal particular subjective has a hunch that a majority adequately judge Neither so, may have done the officer princi- why investigative seizure explains lawfully person simply by cou- seize that precedent do not ples Supreme under subjective pling this belief with a reason to apply. less-than-suspicious person that the believe reasons, below, I For these elaborated may at least have witnessed the crime. ap- respectfully dissent from affirmance of dismaying We are therefore left with a ammuni- pellant’s and conviction. unprincipled and result. Schwelb fruits of an unlawful seizure tion were the objective and I an investi- see no basis for There is no record basis for and search. gative suspected seizure based on allowing reasonably on sus- a seizure based yet Judge activity, activity, Schwelb is no pected criminal and there investigative seizure sustain appel- seizure based on legal basis for a appellant, not there was a rea- possible witness. merely as a lant’s status sonable, Terry, articulable basis under but II. possibility fit because there was a that he categories: eyewitness, com- one three concluded that Officer The trial court means, plainant, suspect. gather, I This merely subjective,

that when there is call thought that car could intuitive, basis—not a reasonable basis somehow have been involved believing Terry under someone com- or as the shooting, either as the victim —for crime, shooter, possible witness justified certainly mitted a a seizure as a will be which, indeed, people were. if there some reason to be- nonetheless is crime. lieve the seizee is a witness to a agree Both directly contrary to the is by objective ar- supported seizure was teaching Terry “[ajnything Court’s and his com- ticulable facts suspicion] reasonable articulable activ- less panions had been involved [than conclusion, on upon based ity. would invite intrusions constitutional- The trial court’s impression that rights nothing sub- ly guaranteed on more the officer’s somehow ... involved hunches, “could have been inarticulate a result stantial than shooter,” speculative simply too consistently has refused to sanc- this Court objective test of meet the constitutional 22, 88 S.Ct. at Terry, tion.” 392 U.S. Terry. reasonableness cases). (citing court—until now— No principle. colleagues challenged my this fundamental has how I do not understand appel- my (1) possibility state court cases The few can combine companions were witnesses hang respective their hats—in- colleagues lant and unreasonable, (2) nonar- principles gunshots an- cluding to the Wold—adhere they “could suspicion that consistently affirmed tieulable nounced in Brignoni-Ponce, shooters, States a reasonable been” and arrive at 45 L.Ed.2d 607 seizure under the Fourth Amendment. Williams, Adams v. (1975); the ma- especially do not understand how 146-49, 1921, 1923-25, 32 L.Ed.2d jority can arrive this “constitutional” picture again: And “the whole citing, interpreting, dis- declaration without particularized suspicion yield a ... must tinguishing, grappling even one with being stopped particular that the individual Supreme defining case “reasonable- Court wrongdoing_ de- engaged in ‘[T]his under the Fourth Amendment ness” teaching is the central specificity mand seizures. See ante investigative context of juris this Fourth Amendment Court’s short, of my I decline col- at 476-78. ” Cortez, 418, prudence.’ at 101 449 U.S. sponte, invitation to embark sua leagues’ 21, (citing Terry, 392 U.S. at n. at 695 S.Ct. 1, supra see “voyage” note on a without 1880, 18) 18, (emphasis n. 88 at S.Ct. compass comparatively uncharted into “the Cortez). up This court has observed jurisprudence ... waters” of constitutional in numer principle held this fundamental Ante navigate. at 479. they attempt See, e.g., Gomez v. United eases. ous (D.C.1991); States, Cau 884, 888 597 A.2d A. States, 1021, 1022 then v. United 592 A.2d established, begin with several well States, (D.C.1991); Galberth v. United 590 “ principles. right ‘No consistently applied T.T.C., (D.C.1991); In re 990, 583 A.2d 995 sacred, carefully or is more is held more 986, (D.C.1990); Smith A.2d 989 law, than the guarded, by the common (en 312, (D.C.1989) A.2d 318 558 right every possession to the of individual (Ferren, J., banc) concurring, with four oth person, own free and control of his [or her] v. judges joining); District Columbia er of others, interference of from all restraint or 896, (D.C.1982). Gandy, 450 A.2d 900 authori- by unquestionable clear and unless complains that the cases Judge Schwelb ” 9, Terry, 392 88 S.Ct. ty of law.’ U.S. point are not on quoted above cited and v. Pac. R. Co. Union (quoting at 1873 facts similar they do not involve 1000, 250, 251, Botsford, 141 11 S.Ct. U.S. case. He then asserts those this (1891)). Supreme L.Ed. 734 The 35 misunderstanding of dissent reflects a this Terry that an accordingly stressed Court precedent, judicial “the nature and uses “investigative type of seizure seizure” —the far too much out therefore makes meet a constitu- at issue this case —must All those too little.” Ante at 480. police “the test of reasonableness: tional however, con- cases, fundamental announce specific point officer must be able context principles in the same stitutional which, together facts taken investigative seizures here: deal with we facts, those rea- inferences from rational Supreme agree by police. Id. 392 U.S. sonably the seizure. warrant” Terry analysis tested its has never 21, 88 S.Ct. at 1880. pattern at issue the fact by reference to later, specified years the Court explicitly Several here, has not and thus the Court justi investigatory must be suspected wit- police seizure “[a]n held manifestation that objective some does fied But this is unconstitutional. nesses be, is, stopped dismiss, person or is about discus- without mean we can not activity." United Amend- sion, Fourth Court’s Cortez, 411, 417, 101 in- v. establishing 449 that an States jurisprudence ment cause, (1981) (em 690, 695, seizure, probable L.Ed.2d 621 vestigative without S.Ct. reasonable, articula- v. Monto States added); see United justified phasis must be has, Hernandez, 531, 541, seized ya de 473 U.S. ble (1985); be, engaged in criminal been, 87 L.Ed.2d or is about 47, 51, has the burden Texas, The activity. 99 S.Ct. Brown v. 443 U.S. longer Terry limitation no Dela (1979); why 2637, 2640, L.Ed.2d 357 show attempted to It has Prouse, 648, 661, be honored. should ware (1979); meet that burden. United 59 L.Ed.2d Otherwise, part opinion of us can be seized for Farrell’s rely joins purport to anything does on a officer’s whim. majority’s support caselaw to testimony establish- Officer Schadt’s own that, Fourth proposition consistent with the objective that he had no reason to es Amendment, may seize witnesses downplays appellant. Farrell “rapidly moving when confronted with that, hearing, suppression fact at the de- 474. But street Ante at occurrence[s].” played tape counsel of Officer fense every cases Judge one of the cites run the officer’s Schadt’s radio in which on pages opinion 471 and of his 473-74 shooting at the time of the ex- belief —as investigative suspects involves seizures tape pressed on shots —was activity, of criminal not witnesses. fired from car that had imme- had been “carefully guard- the “sacred” Given away. diately raced confronted with When ed” principles constitutional discernible tape, Officer admitted that Schadt be- Amend- Court’s Fourth night occupant of that that an lieved jurisprudenсe, at Terry, ment away speeding car had fired the shots. See at S.Ct. believe Officer Schadt subject n. 4. ante at 472 That car—the required seizing appellant and was —before suspicions gone by the time the his —was companions specific, have had some —to approached and his com- appellant officer objective believing they par- for had basis Furthermore, panions. there is no evi- ticipated way firing some in the attempting appellant that to dence gunshots. four But Officer had no Schadt “flee,” the officer seized ante when objective believing for Immedi- basis that. him, appellant had “the or freshest shots, he ately after someone fired the shooting, information” about the ante at radioed a lookout for car from another fact, testified thought which he the four shots had been appellant “standing by the car” Furthermore, fired. when Officer Schadt the officer first saw him when the intersection to take a closer crossed appellant entered the car to drive might be he had happening, look at what him and his away when the officer ordered anyone for objective stopping basis put to their hands in companions particular. merely “people He run- saw the air. ning place,” including appellant all over the companions getting agree and his two who were I therefore with reasonable, parked officer ex- into a vehicle. The ar- Schadt lacked that Officer plained he had stopped believing appellant ticulable companions, rather than others who suspected of companions could be or his attempting get away to from the were also merely activity. They were three criminal shooting, they simply scene of the among many attempting re- who were trying get away “more seemed to be appar- shots from an area where four treat anyone else.” does not than This scenario The officer’s just been fired. ently had provide particularized suspi- sufficiently they were at- subjective impression that anyone anything. cion of other get away “more than” tempting to objective specific, was not a bystanders Judge Farrell claims that this dissent suspicion that rise to giving fact case. He “misapprehends” facts of the be, been, about any them had or was gunshots from says that “Schadt heard Cortez, activity.” “engaged in (or attempting fleeing two cars direction of officer, at 695. flee) 449 U.S. at scene” and that therefore, member believed was a groups had fired of two one B. sub- at 475-76. An officer’s shots. Ante reflecting a 2 to Despite this reasons, however, a sei-

jective permit will conclusion— for lack require should reversal 1 vote that objective are only if based zure colleagues offer Terry stop my Terry’s mes- of valid facts. That is — finding the justification pragmatic out. in; hunches are sage. Objectivity officer’s actions reasonable nonetheless. cites the Model Code of Farrell The majority looks way empower for a Pre-Arraignment Procedure —which nei- authority constitutional Congress ther nor the Council of the Dis- seize citizеns not reasonably suspected of trict of Columbia adopted has ever con- —as anything being more than vicinity authority permissible stitutional for the sei- when someone else fired a four times. zure of witnesses. See ante 476-77. search, They words, way other for a to This 1976 Model Code states that witnesses make it constitutionally permissible for the near the scene of a crime involving danger police to seize citizens not sus- property stopped if pected criminal, any even of “the officer has reasonable cause to be- suspicious, behavior. This remarkable and lieve that has knowledge of [the witness] far-reaching proposition is not based on investigation material aid in the of such any principled objective test can dis- Pre-Arraignment crime.” Model Code of cern; rather, it is based on a rationale “a 110.2(b)(1975) (emphasis add- Procedure rapidly moving street occurrence” backed ed). Judge fails to cite one stat- by the authority sixteen-year-old scant of a ute or specifically adopts case that this model adopted by code never jurisdic- provision Moreover, of the Model Code. tion, treatise, buttressed one one state my colleague never addresses the Code’s supreme case, court and several interme- requirement, “reasonable cause” which ob- diate appeals state courts of decisions. viously imposes higher standard for seiz- meager These inapposite —and —authorities ing reasonable, witnesses than articulable provide an insubstantial basis for ma- suspicion Thus, Terry. under Judge Far- jority’s erosion of the Fourth Amendment attempts rell never apply the “reason- prohibition against unreasonable searches able requirement cause” to the facts of this seizures, especially light in of the ex- ease.5 plicit and contrary Supreme words of the Judge Cortez, Prouse, part, cases such for his Schwelb, as never ex- Brignoni-Ponce, Hernandez, pressly Montoya adopts indicates what de standard he Brown, seizing and Adams. for is, witnesses. Whatever it how- ever, appears to be lower than a “reason- reviewing After each of majority’s cause” able standard and seems to be authorities, I find “firm constitutional quoted Wold, based on dicta from basis,” at allowing ante seizure N.W.2d at 174-75. at 479. The See ante simply citizens they are near the citations and footnote Sohwelb has scene of may the crime and thus eye- quotation omitted from his extended from complaining witnesses or witnesses. Fur- telling. Wold are Those citations and foot- thermore, reading a close of the cases the that, Wold, note reveal the Minnesota majority they relies on discloses that —in Court referred dicta to the reasonable, require one form or another — principle “freeze the scene” articulated in person seized was 9.3(d), W. LaFave, engaged activity. In § other & Search Seizure 461; the did words, court not cite the Model Code Terry are cases. But even if Pre-Arraignment provision Procedure adopt principle this court were to expressly adopted by Judge Fаrrell. Sec- po- certain limited circumstances the 9.3(d) tion of LaFave’s treatise a limi- justifiably lice could adds seize witnesses—a Code; tation not found in the principle accept I cannot Model as consistent with requires possibility” the Constitution—the facts of do a “reasonable that at this case among group not even fit within the circumstances re- least someone the small quired by majority persons the few authorities the seized is a of criminal ac- proposition. tivity. supra cites for this remarkable note 4. See Schwelb clear, Although entirely probable appellant it is not "reasonable sonable or cause to believe likely requires quantum cause” most the same doing anything trying get away but record, proof "probable as cause.” From the an been fired. ‍‌​​​‌​​​​‌​‌‌​​​​‌​​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌‌​​‌​‌‌‍area where four shots had appear it does not had rea- Officer Schadt limitation, specific overlooks that Based on for he does not information and the claim, require, as Professor exigent LaFave would the woman’s circumstances of that Officer Schadt had a reasonable basis upheld probable injury, the court believing at least someone the officer appellant’s unrelated ar truck and his compan- or one of his driving. rest for drunk id. at 1221-22. See seized— ions—had in criminal conduct.6 Wold, majority on which the relies most heavily, already and which have summa therefore, Apparently, since rized, the court found a basis for ignores Professor LaFave’s seizing appellant’s seizure and referred to 9.3(d) limitation, my colleagues both of § Similarly, Ap witnesses in dicta. police, believe consistent with the Amendment, may any possible pelgate Safety, Fourth seize Public Commissioner of witness, (Minn.1987), within the limited constraints of ap 402 N.W.2d 106 cited with Pre-Arraignment the Model Code of Wold, Proce- proval the court relied on six (1975), given (or dure reasonable cause determining factors for whether the less?) to believe that the seizee has wit- sufficiently jus detailed information to nessed a crime. No case—until this one— tify stopping a vehicle near the scene of a so holds. recently burglary. committed Id. at 108 9.3(d), (citing supra, W. LaFave,

C. (seizure person near scene of recent crime when have information or de puzzling Even if we were to overlook scription inconsistencies between the mem- that such have been formulating bers in involved)). the standard for seiz- The court concluded that witnesses, ing the cases on which the ma- suspi officers had “reasonable articulable jority majority’s relies do not meet the stopping cion” sus show, rather, They police needs. pect. Finally, at 107-108. Id. Metcalf objective, specific had information that the (D. Long, F.Supp. 1114 & n. 5 persons directly seized had been in involved Del.1985),provides support for the ma recently completed crimes. jority’s analysis. The court there noted the authority seizing suspected uncertain for State, (Alas

In Metzker v. 797 P.2d 1219 accordingly upheld police witnesses and Ct.App.1990), bystander ka a had informed woman, appellant on police a seizure of based officer that a who had engag appеllant, hitched a ride himself was had been probably injured. ing activity.7 assaulted and was Judge opinion, "juxtapos[ed] say asserts that I have instead intends to that in his own Schwelb Code, passages parts two unrelated located in Model that a different without reference to the Terry-type seizing of the same treatise.” limitation on witnesses Ante 480 n. 4. Those passages, quoted supra apply. two at note are related should first, 9.2(b) way: in this The from of Profes- § intends, Professor LaFave it would Whatever treatise, quotes sor LaFave’s from the Model appear my colleagues of would not that both Judge Code on which ond, relies. The sec- limitation, 9.3(d) Judge require since § Far- treatise, 9.3(d) quot- from § of the same rely primarily purports on the Model rell passage Judge ed in Wold on in which Code, expressly the limi- which does not contain Thus, Judge relies. himself Schwelb tation, relying on even if Schwelb, Wold, 9.3(d) quotes relies on § because he from 9.3(d) Wold, effectively repudiates by citing § Although Judge Farrell, which relied on it. as by acknowledging Officer the limitation Wold, purports rely well as reasonable, articulable sus- Schwelb, Schadt did not have 9.3(d) that case itself cites of LaFave's seized, § persons picion that at least one of the treatise; Wold never mentions the Model Code. companion, in crim- or a suggests question, my colleagues therefore, which out, activity. both of inal As turns address, Code, never whether the Model Code and colleagues effectively adopt my the Model 9.3(d) are reconcilable. It is unclear whether § approach dis- not thе without limitation —and LaFave, 9.3(d), import intends to § Professor cussed in Wold. (discussed 9.2(b)) into the Model Code State, (Fla.Dist.Ct. police In Keeton v. 427 So.2d limitation not found there—that the must curiam), appel App.1983) (per intermediate reasonably believe at least one of the small court, opinion, paragraph found group in a three seized committed a crime—or late public therefore, performed ruling, down search does not majority’s frisk] The stands officer while the citizen by police on which from the few authorities follow facing a wall with his helpless, perhaps my colleagues rely. [or raised, ‘petty indignity.’ It hands is a her] sanctity of upon intrusion is a serious D. indigni- great inflict person, which gets major- The matter even worse. resentment, strong and it is ty arouse ity acknowledge the additional refuses lightly.” Terry, 392 undertaken not to be many possible witness- privacy invasion of 16-17, 1877. With all 88 S.Ct. at U.S. at Upon likely es to suffer after seizure. are ma- precisely what the respect, this is due liberty, po- restraining such witnesses’ It takes far too pragmatism does. jority’s long-established Fourth lice—based on man- lightly the balance reasonableness arising legit- principles Amendment Amendment, inter- by the Fourth dated police safety presum- imate concerns for — Court, effect preted such wit- ably may then “frisk” or search resulting search the seizure and condones See, weapons. e.g., Terry, nesses for suspected persons not 25-26, 88 S.Ct. at 1882. witnessing another’s crime. anything but “express- majority Farrell writes that consider whether witness ly E. do[es] de- under the circumstances we detained legit- may have Although n. Ante at 477 scribe could be searched.” “im- a need for imately there was believed case, course, appellant’s 16. In this “rapid- aof police mediate action” because gesture resulted a search furtive involving a moving occurrence ... ly street obviously sustains. But even (quoting weapon,” at 471 dangerous ante gesture, it is inconceivable absent a furtive States, 381 A.2d Rushing v. United confronting a me that a officer— (D.C.1978)), need officer’s is enti- the officer possible witness whom that officer’s somehow take does not action majority’s scheme— to seize under the tled principles delin- established conduct outside person out of a concern will not frisk that permis- constitutionally eating scope safety the confrontation personal when con- rationale of The entire sible seizures. high example, in a so-called place, takes Terry is reasonableness stitutional night. How can we neighborhood at crime moving street occur- “rapidly premised on means yes, by an officer all realistically tell before police the must act rences” where justifica- Terry to seize without feel free cause to arrest waiting probable for tion, your peril? own do so at but deter criminal behavior. to detect or order 20, 1879 at 392 U.S. at S.Ct. majority Terry, by the See regime announced rubric of an entire (“[W]e deal here with of proverbial Pandora’s box opened has the necessarily action swift police only ad- questions that can unanswered conduct— on-the-spot observation upon the predicated push more and police the dressed after fact, beat_”). In officer on the pro- of the constitutional beyond traditional more the cites for of the cases court, merely to- all today, not Farrell tections. ratio- “exigent circumstances” majority’s governmental invasion invites lerates but involv- are cases seizing witnesses nale for privacy of citizens not of the freedom suspects, not suspicion of ing reasonable any activi- reasonably suspected of expedi- witnesses. investigative name of ty, all the agree.

ency. To this cannot reason- if Officer Schadt Terry, Under compan- and his thought appellant ably had emphasized: has As the he activity, pat ions were involved urge that simply “it is fantastic [a rights” his constitutional appellant had “waived police to detain it reasonable for the investigatory questions led to answers to recently completed crime the scene of a near police arrest him probable cause for the police witnessed that he had after told 232, crime, contributed at description id. fitting of the flight persons of clear. ruling, is far from this alleged perpetrators. The fact justification common sense desire to leave after legitimate have had would nearby. stopping suspects. gun them as On the else had fired a someone hand, objective And, inferring other officer’s is no there basis they indicated were information a show they attempting to flee of were possible Indeed, were near witnesses because authority. Sсhadt’s first Officer crime, possible meth- the scene of a other authority to order them to show of police investigation seizing of ods of short put their in the air. There stop and hands inno- them were available.8 Because accordingly implied “[a]n consciousness person might no differ- cent have reacted guilt to add to the reasonable seizure of ently appellant] in the circum- [from calculation. stances,” and because none of Officer Finally, majority makes much seizing appel- observations Schadt’s before just taken that a “violent” crime had fact any “independent lant added information obviously Although gunfire place. for the of his compensating generality” violence, strong this evidence a crime knowledge that in the area had someone Wold, police case like is not a times, fired a four he had no arriving officer on the scene observed legitimate objective seizing appel- basis for (2) person (1) victim a wounded States, 592 A.2d lant. Cauthen United acting subsequently seized at the scene at 1025. event, In suspiciously. Terry its Furthermore, a situation was not always required progeny have set the con- where the made brief “[a] apply standard to when “swift stitutional individual, determine suspicious in order to required upon the on- “predicated action” is identity maintain the or to [or her] the-spot officer on the observation of the obtaining quo momentarily status while 20, 392 U.S. at 88 S.Ct. beat.” Williams, more information.” Adams v. nothing that would Schadt saw (emphasis 407 U.S. at 1923 imposed which, the intrusion he warrant — added), Stephenson cited in breaking legal ground, new (D.C.1972), 296 A.2d cert. unfortunately justifies. denied, (1973); L.Ed.2d 197 see District Colum III. (D.C.1982) Gandy, 450 bia v. A.2d privilege suspicious per reaching out to a new consti- (purpose In establish principle for District of Colum- “is to offi tutional sons enable bia, nor quo gath maintain the neither cers to status while explores the information”). acknowledges ob- ering more Because creates, slope given “the slippery persons whom Officer Schadt vious at 481. firing reality fled the of the street.” Ante suspected of the shots had where, ring all scene, “running city tragically, all shots and other were dangerous time, slope a quo” may lead to place,” the there was no “status this over police actions a maintain, from reasonable certainly and no basis be descent round-up for police can point individ lieving appellant “suspicious was a anyone questioning who Additionally, there was no evidence nonconsensual ual.” is in, visiting, or who who companions and his were lives (and through high hence im- crime passing reason other than fleeing any the scene it, puts attempted is self-evi- example, ante at have 8. For officer could appellant and his dent. consensual encounter with Alternatively, could companions. point, the officer are constitu- more to there But even prevent long number and to—that written down car’s license adhered have tional norms — investiga- seizing people of reason- police short the owner if further contacted later scene, tempting an ex- including suspicion, no how consensual inter- mаtter on the able ception tion may be. We bystanders, based mere intuition views of showed police power on the directly impose in a constitutional limits companions had involved been protect us all investigating investigate crime shooting. offi- in order That allows an Investigator. overly State against an intrusive than his thumbs” cer to do more "twiddle Terry by reason- non-white) justified at an un- could be poverished ‍‌​​​‌​​​​‌​‌‌​​​​‌​​‌‌‌‌​​​‌​​​​​​‌​‌​‌​‌‌​​‌​‌‌‍and areas able, participation gun- suspicion of hear fortunate time when or, activity presumably, past impending hear or observe criminal fire —the new, indicating activity. today incident radical other announces points out ruling, implica- As the Public Defender Service its rule of law. brief, majority may its amicus tions, scrutiny public requires careful justify opening the door for the discussion, eroding tradi- for this court is (and virtually any detention on-the-scene signal rights without tional constitutional search) subsequent determined Supreme Court. from the —later up to measure standards —on sad, incredible, irony truly up to the lower ground that it measures appears it now majority’s result is that de- “Williamson standard”: as a for the state to seize someone easier a “violent” crime nearby tained was when “fast-moving situa- “possible witness” might therefore place have taken suspected to seize someone tion” than it is something it.9 known about articu- Terry’s reasonable of a crime under this court Court nor Neither requirement. To that suspicion lable of Fourth countenanced this vision has ever hope for a emphatically dissent and must “reasonablеness” where Amendment reverse. day. vote to better “fast-moving only plead need government seizing someone near justify events” to mere suspected of a “violent” crime

scene person might know some ly because that Ybarra v. Illi thing about the crime. Cf. 338, 342, nois, 85, 91, (a (1979) person’s proxim mere L.Ed.2d activity suspected of criminal ity to others ANDERSON, Jr., Appellant, Richard give rise to reasonable does not seizure); Brown, justifying search v. 51-52, (police 2640-2641 99 S.Ct. at STATES, Appellee. UNITED seizing appellant justification for had no No. 90-196. walking away from another man observed traffic); Smith drug in area known for Appeals. District Columbia (D.C. States, 314-15 558 A.2d United approval 1989) (en banc) (discussing with Argued Feb. justi have refused

cases in which courts April Decided proximity to predicated upon fy seizures individuals); Johnson suspicious (D.C.1983) (po 468 A.2d compelling legitimate basis

lice had here” where driver to “come driver of car night sitting in car late were and friends on other rev’d area), high crime (D.C.1985). grounds, 496 A.2d 592 allowing seizures clear: Let us be of whose seizures possible witnesses —none Therefore, majority’s is the I believe it adhering them. suggests encourage police princi- officers will constitutional fundamental outcome what I see as ples encouraging regime, majority’s to lie ignore would be under the we the law: they citi- have seized requirement admit past Terry oath and not skip police can they are whether are not sure investiga- suspicion zens articulable But if suspects. ante at 477. See witnesses or merely on the someone and seize tive seizures have reasonable "possible "exigent circumstances” basis they already suspect, someone is witness.” authority under constitutional

Case Details

Case Name: Williamson v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 21, 1992

Citation: 607 A.2d 471

Docket Number: 90-883

Court Abbreviation: D.C.