Lead Opinion
Opinion for the court by Associate Judge SCHWELB.
Dissenting opinion by Associate Judge RUIZ at p. 614.
On August 10,1993, fоllowing the denial of his motion to suppress an out-of-court identification, tangible evidence, and statements, appellant David Womack was convicted of rape while armed,
STATEMENT OF FACTS
Following an evidentiary hearing at which several police officers and the defendant’s grandmother testified, the motions judge denied Womack’s motion to suppress and made oral findings as set forth below. On the night of November 29, 1992, at about 11:00 p.m., the complaining witness, N.H.,
N.H. called the police immediately after her assailant left. She advised the police that she believed that the man who had raped her was someone whom she had known since June 1992 as “D.” N.H. related that she did not know “D’s” full name, but that she had gone out with him on one occasion, and that she believed that he lived in thе area. N.H. also gave the police a photograph of the man she knew as “D.”
Based on statements made by the attacker to N.H. as related by N.H. to the police, the officers had reason to believe that one of N.H.’s friends might know the man’s name and address. The friend was unable to provide the police with a full name, but she gave the officers two telephone numbers for the individual whom she knew as “D.” The police, using a Haines or a Criss-Cross Directory, traced one of the telephone numbers to an address on Taylor Street in northwest Washington, D.C. This address turned out to be the home of Womack’s grandmother, Ms. Sylvia Steele.
The officers went to Ms. Steele’s home approximately two to three hours after the assault ended.
After the officers’ inquiry about “D,” Ms. Steele called to her grandson to come downstairs. Womack, who was wearing sleeping attire, came down the steps. Detective Co-bel placed handcuffs on Womack and took him outside the house to the porch. N.H., who was seated in a patrol car approximately thirty-five feet from the house, positively identified Womack as her assailant, and he was formally placed under arrest.
After the show-up identification, Ms. Steele went upstairs to retrieve clothing for her grandson. She brought down, among other things, a pair of boots. In her statement to the police, N.H. had described the
Having found the facts as described above, the motions judge ruled that, at the point when Womack came downstairs, the officers had reasonable and articulable suspicion that Womack was N.H.’s assailant. The judge found that the officers were legitimately on the premises by the invitation of Ms. Steele, and that the show-up procedure was reasonable because it would either clear Womack of suspicion or confirm that the police had found the right man. The judge specifically ruled that the police did not have probable cause to make an arrest before the show-up identification, but he concluded that articula-ble suspicion was sufficient at that stage. The judge held — and it is undisputed — that after N.H. had positively identified Womack, the police had probable cause to arrest him. The judge therefore denied Womack’s motion to suppress the out-of-court identification, the tangible evidence (including his boots), and certain statements which Womack made at the police station. Womack was tried and convicted as noted above, and this appeal followed.
II.
LEGAL DISCUSSION
A Scope of Review.
On appeal from the denial of a motion to suppress, the scope of our review is limited. Brown v. United States,
tions judge, establishes that Womack was seized in violation of his Fourth Amendment rights is a question of law, which we consider de novo. See Brown, supra,
B. Reasonableness, Proportionality, and the Fourth Amendment.
Womack’s claims in this case are grounded in the Fourth Amendment exclusionary rule, which vindicates the constitutional proscription against unreasonable searches and seizures. The basic question prеsented is whether, under all of the circumstances, the seizure and handcuffing of Womack were reasonable.
We do not assess reasonableness in a vacuum. The risk to the safety of the officers might not seem very great to a judge reviewing a transcript years after the fact, but the situation may reasonably have appeared far more dangerous to an officer who had just come into contact with a suspect in an armed rape and kidnapping which occurred only hours before. The evidence must be “weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” United States v. Cortez,
Even though we, sitting in the relative calm of a court or library, may have concluded otherwise, we are bound to give deference to the officer’s decision if it was reasonable under the facts as viewed by him.
Arrington v. United States,
When courts are called upon to decide whether the force used by an officer to restrain a suspect was excessive, “[t]he calculus of reasonableness must [also] embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham v. Connor,
The use in the Fourth Amendment of the adjective “unreasonable” imports a command of proportionality to that Amendment’s jurisprudence. Brown, supra,
We must also accord appropriate weight to the safety of the officers, as well as to their obligation to assure that a dangerous suspect does not flee. We recently adopted as our own these compelling words written by Judge Harold Leventhal:
As a society, we routinely expect police officers to risk their lives in apprehending dangerous people. We should not bicker if in bringing potentially dangerous situations under control they issue commands and take precautions which reasonable men are warranted in taking.
Cousart v. United States,
C. Terry Seizures, Arrests, and the Handcuffing of Suspects.
In Terry, the Supreme Court held that, consistent with the Fourth Amendment, the police may briefly detain an individual for investigative purposes, even if they lack probable cause to arrest, so long as the officers have a reasonable and articulable suspicion that the individual has committed or is about to commit a crime.
The question presented in this case is whether the use of handcuffs, which is a familiar feature of arrests, precluded the judge from finding that the seizure was no more than a permissible Terry stop. In M.E.B., which also involved the handcuffing of suspects prior to a show-up identification, wе described the difference between a full arrest and a Terry seizure in terms of their distinct purposes:
Generally, an arrest is effected when the police have made a determination to charge the suspect with a criminal offense and custody is maintained to permit the arrestee to be formally charged and brought before the court_ A Terry seizure, on the other hand, involves a more temporary detention, designed to last only until a preliminary investigation either generates probable cause or results in the release of the suspect.
Id. (citations omitted).
“The measure of the scope of permissible police action in any investigative stop depends on whether the police conduct was reasonable under the circumstances.” Id. at 1127 (citing United States v. Sharpe,
In the appellant and another individual were detained by two police officers because they matched a radio description of two men seen at the site of a murder. Id. at 1124-25. The two suspects were handcuffed, placed in the rear of a police vehicle, and transported to other locations for identification. The entire detention lasted between twelve and seventeen minutes. Id. at 1127. The appellant contended that the handcuffing was unnecessary and that it converted the seizure into a full arrest. This court disagreed. We held that, given the seriousness of the crime under investigation, the brevity of the detention, and the fact that the suspects were to be transported in a patrol car for several blocks, “handcuffing was a reasonable precaution under the circumstances.” Id. at 1128. We reiterated that the “protection of the officer making the stop ... is of paramount importance. It has been called the rationale of Terry.” Id. at 1127 (quoting United States v. Mason,
Decisions in other jurisdictions are to the same effect. As we noted in M.E.B., courts generаlly have approved the use of handcuffs “where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee.” Id. at 1128 (quoting Reynolds v. State,
The foregoing standard is an objective one. The question is whether the handcuffing of the suspect was an “objectively reasonable use of force in light of the totality of the circumstances.” Tom v. Voida, 963 F.2d 952, 958 (7th Cir.1992) (emphasis added); see also Graham, supra,
Courts have routinely held the use of handcuffs in the Terry context to be reasonable in situations where suspects attempted to resist police, made furtive gestures, ignored police commands, attempted to flee, or otherwise frustrated police inquiry. See, e.g., United States v. Taylor,
D. The Seizure of Womack.
We conclude that the foregoing authorities compel us to affirm the trial court’s decision. This is not a ease in which the police had decided, prior to Womack’s identification by N.H., to take him into custody and charge him with a crime — the conventional scenario when police make an arrest. supra,
We conclude that the handcuffing of Wom-ack did not change the result. The incremental intrusion on Womack’s liberty effect ed by the handcuffs was minimal. Even if Womack had not been placed in handcuffs, he would not have been free to leave until after N.H. had had an opportunity to identify him. The time that elapsed from the moment that he was handcuffed until the identification procedure was completed was, at most, a few minutes. The sum total of the restraint on Womack’s freedom now alleged to be excessive boils down to the complaint that, during a concededly lawful detention by the police, he was in handcuffs for a very short time.
Like the motions judge, we are not disposed to second-guess the officers who were on the scene with respect to a comparatively modest security measure which had only a brief and minimal effect on Womack’s freedom of action. The authorities cited in Part II.B of this opinion require us to consider the issue from the perspective of a reasonably prudent officer who had just arrived on the scene. The officers in this case were on Womack’s home turf. Womack was suspected of having committed violent and extremely serious crimes, including rape, kidnapping, and robbery, all while armed with a handgun. These offenses had been completed only a few hours earlier. The officers were not acquainted with Womack or with his family. They had no idea where his handgun might
It may be that, in the relative calm of his or her chambers, years after the fact, a judge might reasonably conclude that the risk that Womack would harm the officers or would flee was not vеry great. But especially in this area of the law, second-guessing of split-second decisions made by the officers on the scene is fraught with peril, and every effort must be made to “eliminate the distorting effects of hindsight.” Strickland v. Washington,
On the night in question, Detective Cobel and his colleagues had no idea of what might happen when they entered the house, nor could they foresee what a man suspected of armed rape and kidnapping might try to do to avoid apprehension. From their perspective, even a modest risk would reasonably appear altogether unacceptable. To hold, as Womack demands, that the handcuffing in this case was unreasonable and unconstitutional would be to require police officers confronting potentially dangerous suspects in unfamiliar surroundings to jeopardize their own safety, and the safety of the public, in order to avoid only a very brief and minimal incremental restraint on the liberty of a suspect who has already been legitimately detained. Such a result would be entirely out of keeping with the command of proportionality which is central to our Fourth Amendment jurisprudence. Brown, supra,
III.
RESPONSE TO DISSENT
A Seizure in the Home.
Judge Ruiz bases her dissenting opinion largely on the fact that Womack was seized in the home in which he lived with his grandmother. She maintains that “the exception to the constitutional probable cause requirement established in Terry v. Ohio, [supra ], do[es] not easily extend to seizures in one’s home.” Dissenting op. at 615. She asserts that a felony arrest based on probable cause, when effected in a public place, is a recognized exception to the Fourth Amendment’s warrant requirement, but that “the Supreme Court has not been similarly tolerant of seizures of suspects occurring in the suspect’s home.” Id. at 618. Further, according to Judge Ruiz, “[t]he fact that the seizure occurred in Womack’s home ... undermines, rather than helps justify, the police’s use of handcuffs under the circumstances presented in this case.”
Womack did not base his suppression motion or his appeal on any claim relating to the “respect for the sanctity of the home.” The principle that animates Judge Ruiz’ opinion — namely, that the Terry doctrine does not apply, or applies with substantially less force, to seizures in a home which officers have entered with the homeowner’s consent — was introduced into this case by our dissenting colleague. Womack, who is repre
Under these circumstances, the “diminished Terry exception” claim has not been preserved. “Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party’s thesis, will normally be spurned on appeal.” Miller v. Avirom,
But even the “plain error” scenario is more favorable to Womack than the present record. Here, Womack failed to present his “diminished Terry exception” claim not only in the trial court, but also on appeal. Where counsel has made no attempt to address an issue, an appellate court will generally decline to consider it. Rose v. United States,
[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.
Id.; accord, Rose,
B. “Least Intrusive Means. ”
Our dissenting colleague refers to the government’s obligation, under these circumstances, to “use the least intrusive means reasonable in light of the facts before the officers.” Dissenting op. at 620.
As Professor LaFave has indicated, “a ‘least intrusive means’ inquiry has a great potential for mischief. It is likely to result in unrealistic second-guessing of the police.” 3 LaFave, supra, § 9.2(f), at 389. We have concluded that the handcuffing of Womack was a reasonable seizure permitted by the Fourth Amendment. This being the decisive issue, we decline to engage in the kind of armchair quarterbacking against which the Supreme Court has warned.
C. “Appellate Fact-Finding. ”
Judge Ruiz asserts that the majority has engaged in “de novo fact-finding to justify its reasoning where the government has failed to prove its case.” Dissenting op. at 630. She complains that we have “observ[ed] without support in the record” that the officers “had no idea where Womack’s handgun might be, or whether there were other individuals on the scene who might endeavor to thwart his apprehension.” We respectfully disagree with our dissenting colleague’s characterization.
The motions judge having denied Wom-ack’s motion to suppress, we must view the evidence, and all reasonable inferences from the evidence, in the light most favorable to the government. See Pannell, supra,
The record discloses that the officers came to the home owned by Womack’s grandmother only a few hours after the commission of a brutal armed rape and kidnapping. The officers had reason to suspect that Womack was the man responsible. There is absolutely nothing in the record to suggest, if Womack was indeed the guilty party, how the officers could have had any information regarding the location of Womack’s handgun, or whether he might have received assistance from others if the officers attempted to take him into custody. How could they possibly have known? The truth of the statement in our opinion for which Judge Ruiz finds no support in the record is, in our view, obvious. Our recognition of the obvious does not constitute “appellate fact-finding.”
IY.
For the foregoing reasons, the motions judge correctly denied Womack’s motion to suppress evidence. Womack’s convictions must be and each is hereby
Affirmed.
. D.C.Code §§ 22-2801, -3202 (1989 & 1995 Supp.).
. D.C.Code § 22-3204(b) (1995 Supp.).
. D.C.Code §§ 22-1801(a), -3202 (1989 & 1995 Supp.).
. D.C.Code §§ 22-2101, -3202 (1989 & 1995 Supp.).
. D.C.Code §§ 22-2901, -3202 (1989 & 1995 Supp.).
. In order to preserve the complainant’s privacy, we identify her only by initials.
. According to the testimony of Detective Tyson Cobel at the suppression hearing, the following events occurred during this two-hour period. The intruder woke N.H. in her bed, covered her mouth with his hand, and told her to "shut up” and "not to say anything or he would kill her.” He forced N.H. to have sexual intercourse with him on the floor of her bedroom. He later ordered N.H. into her mother’s bedroom, where he demanded that the mother give him money. The attacker ordered both women into the basement and forced the mother to tie up and blindfold her daughter. He then forced the mother to drive to an ATM machine and withdraw four hundred dollars. When they returned to the house, the attacker ordered N.H. to take a bath. Finally, to eliminate his fingerprints, he forced both women to wash all the surfaces in the house and car that he believed he had touched.
. The police arrived at the Taylor Street address at approximately 4:00 a.m. According to Ms. Steele’s testimony at the suppression hearing, Detective Cobel was accompanied by two additional police officers when he lmocked on her door.
. Although her son Darrell also resided at the Taylor Street address, Ms. Steele referred to her grandson, David Womack, and not to her son, Darrell, in response to the officer’s inquiry about “D.”
. Detective Cobel was not asked whether he felt threatened during his encounter with Womack. Although inquiry into this subject might have been helpful to explain the context of the encounter from Cobеl’s point of view, the cited authorities establish that the lack of such testimony does not negate the motions judge’s finding.
. On cross-examination, Cobel was asked: "And you didn’t actually arrest Mr. Womack until you placed the handcuffs on him, right?” Detective Cobel responded: "Correct.” Given the detective's testimony on direct examination, it appears that he may have treated the word "until” as meaning "before” or "prior to.” In any event, viewing the evidence, as we must, in the light most favorable to the prosecution, Peay, supra,
. Significantly, the pre-identification period during which Womack was in handcuffs was far shorter than the corresponding period for the appellant in M.E.B., a case in which we held that the handcuffing did not convert the Terry seizure into an arrest. It goes without saying that this-case ”involve[s] neither the inconvenience nor the indignity associated with a compelled visit to the police station,” Michigan v. Summers,
. Detective Cobel also testified that Womack "attempted to resist,” but it is not at all clear from his testimony that this occurred prior to the handcuffing. The motions judge made no finding on the issue and, because the prosecutor failed to "nail down" the timing, this testimony should be accorded little if any weight.
. Indeed, Judge Ruiz quotes from a famous address by a British prime minister in which he insisted that even the King of England cannot enter a poor man's frail cottage without the poor man's consent. Dissenting op. at - n. 7 (quoting Miller v. United States,
. We use this phrase solely as an abbreviated reference to Judge Ruiz' contention that the officers were subject to greater constraints in the home of Womack's grandmother than they would have faced if the encounter had occurred on the street.
. See United States v. Jones,
. See United States v. Thompson,
. See Terry, supra.
. See Prophet v. United States, 602 A.2d 1087 (D.C.1992).
. Because the parties have neither briefеd nor argued the issue, the present case is not the appropriate occasion to debate the merits of the "diminished Terry exception" theory. We note only that "[t]he risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investi-gatoiy encounter." Maryland v. Buie,
.As we have noted in Part II. of this opinion, the sole claimed intrusion was the handcuffing of Womack for, at most, a few minutes, at a time when he was concededly lawfully detained.
.In Carducci, the court lucidly explicated the reasons for this premise:
Rule 28(a)(4) of the Federal Rules of Appellate Procedure requires that the appellant’s brief contain "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Failure to enforce this requirement will ultimately deprive us in substantial measure of that assistance of counsel which the system assumes — a deficiency that we can perhaps supply by other means, but not without altering the character of our institution. Of course not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing the contentions of counsel through our own deliberation and research. But where counsel has made no attempt to address the issue, we will not remedy the defect, especially where, as here, "important questions of far-reaching significance” are involved.
. Our dissenting colleague complains that the government "did not cite any case, from any jurisdiction” refuting the “diminished Terry excеption” theory. Dissenting op. at 622. We do not believe that a party can reasonably be faulted for failing to address an issue which its adversary conceded in the trial court and never raised on appeal.
. Judge Ruiz also asserts that "this case does not present a true Terry stop [because] ... [t]he officers ... were investigating a completed crime, rather than observing ongoing criminal activity_" Dissenting op. at 621. This issue, like the “diminished Terry exception" claim, was never raised or argued by Womack. Moreover, in M.E.B., as in this case, the officers were investigating a completed crime, but their seizure of the suspects and the use of handcuffs were sustained as a legitimate Terry stop.
. Judge Ruiz points out that the officers did not frisk Womack before handcuffing him, but “even a frisk does not ensure that weapons will be discovered.” M.E.B., supra,
. Our dissenting colleague also criticizes as “without support in or reference to the testimony” our observation that the officers could not “foresee what a man suspected of armed rape and kidnapping might try to do to avoid apprehension.” Dissenting op. at 628. We are at a loss to understand on what basis the officers could be expected to assume that Womack would respond peacefully to their arrival, or how they could anticipate what his reaction to possible apprehension would be. The most significant fact which the officers knew at the time of their seizure of Womack was that if he was the right man, then he had apparently committed rape, kidnapping and robbery a few hours earlier, and that he had used a handgun to force his victims to submit. Such a man was surely dangerous, and any failure by the officers to take immediate steps to protect themselves in such a situation would surely have been foolhardy to say the least.
. In light of our disposition, we do not reach the government’s alternative contentions that the evidence sought to be suppressed was not the fruit of the allegedly unlawful seizure and that, in any event, the officers had probable cause to arrest Womack.
Dissenting Opinion
dissenting:
By definition, every encounter between a police officer and a citizen suspected of a violent offense is accompanied by a hypothetical threat to the officer’s safety. That hypothetical threat, however, does not overcome the constitutional prohibition against unreasonable searches and seizures. A seizure pursuant to a warrant, requiring probable
In reaching my conclusion that the seizure was unlawful, I rely on several propositions which are well bome-out by established case law in the Supreme Court and in this jurisdiction. The first is that the reasons grounding the exception to the constitutional probable cause requirement established in Terry v. Ohio,
The majority chastises me for introducing a new legal principle — based on the argument that Terry does not justify Womack’s seizure in his home — not relied upon by the parties in the trial court nor argued on appeal. Not so: my analysis tracks Womack’s argument to the trial court in the motion to suppress and to us on appeal.
In any event, I cannot take credit for creating any “new principle” here. My point of departure is neither new nor different from the majority’s: the only possible justification for the detention in this case must be found in the Terry exception to the Fourth Amendment’s probable cause requirement. Where we disagree is that I believe that the Supreme Court’s reasoning in Terry, when viewed in the context of the Court’s well-established Fourth Amendment jurisprudence, is being stretched beyond recognition to justify the handcuffing in this case.
Judge Schwelb ealls my analysis the “diminished Terry exception.” I do not believe that the label fairly captures my objection to the majority’s opinion. My point is not, as Judge Schwelb asserts, that the Terry exception is “diminished” when police make intrusive contacts in the home. The Terry exception exists and it is not up to this court, whether the matter is raised or not, to “diminish” it. The question is whether the principles underlying the Terry exception apply to the in-home seizure in this ease and whether the record shows that the government met its burden under Terry. I believe that it is the majority’s holding that “diminishes” the Terry exception by ignoring the reasons that underlie it.
I.
Because any exception to the probable cause requirement must be supported by adequate facts, I first set out the facts of this ease, paying particular attention to the facts presented by the police at the suppression hearing to justify the officers’ actions. In the early morning hours of November 30, 1992, detectives of the Metropolitan Police Department knocked on the door at 324 Taylor Street, N.W., which was the home of the appellant, Womack, and his grandmother, Sylvia Steele. At the time of the knock, the detectives knew that N.H. had been raped, and that she and her mother had been kidnapped and robbed at gunpoint by a masked individual N.H. claimed to recognize as “D.” The police were led to the address on Taylor Street after a friend of N.H.’s gave the police two telephone numbers she said belonged to “D,” and one of the telephone numbers turned out to correspond to the Taylor Street address. The police had no other information regarding the identity of the perpetrator.
Steele responded to the knock on the door, and the detectives asked whether she had a son named “D.” Steele responded that she did not, but stated that she had a grandson named David. Steele admitted the police to her home and at their direction, called Wom-ack to come downstairs. Before Womack appeared, onе detective attempted to ascend the stairs to retrieve Womack himself. Steele told the detective that he did not need to go up, and called Womack again. Wom-ack then appeared in his sleeping attire, consisting of shorts and a t-shirt, with bare feet. Although N.H. had reported that a scar near the perpetrator’s eye had helped her identify him as “D,” the police did not testify that when they saw Womack, they noted any similar scar. Womack made no apparent attempt to resist or flee. The motions court concluded that at this moment, when the police encountered Womack in his home, they lacked probable cause to arrest him.
The police did not testify at the hearing that they ever thought Womack might be armed. They testified that they did not frisk him. Instead, the police immediately handcuffed Womack, and told him to step out onto the porch. At this time, Womack was in the custody of at least three but “fewer than ten” police officers.
II.
The core of Fourth Amendment protection is the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The Fourth Amendment requires that a search or seizure be conducted in compliance with the Constitution’s warrant clause. Arkansas v. Sanders,
A. Departure from the Warrant Requirement
The motions court in this case found that the officers handcuffing Womack had neither
There are “a few jealously and carefully drawn exceptions” to the warrant requirement that the government may rely on in justifying a warrantless seizure. Sanders, supra,
The Supreme Court has not been similarly tolerant of seizures of suspects occurring in the suspect’s home. See, e.g., Coolidge v. New Hampshire,
The Supreme Court has thus recognized that unlike an arrest in a public place, a warrantless entry into a home to effect the arrest of a suspect — even one whom the police have probable cause to believe committed a felony — is presumptively illegal.
This case presents not an absence of valid consent to enter the home, but an absence of probable cause to seize Womack when he came down the stairs of his home to meet the officers. See Robertson, supra,
1. Terry Stops
The facts of the Terry case are both significant and generally known.
In this case, because the officers could not validly place Womack under arrest when they encountered him in his home, the government needs to rely on the following legal inference: that officers who have consent to be on the prеmises of a private home, like officers who encounter a suspect outside, can effect a seizure by meeting some exception to the probable cause requirement. In other words, the government impliedly argues in this case that police officers with consent to be on private premises have the same right to restrain the liberty of a suspect they en
As the Court explained in Royer, supra: The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.11 Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.
Courts that justify compulsory detentions in public places by analogy to Terry, see, e.g., Royer, supra,
Cases upholding Teiry-like seizures invariably rely on the possibility that the suspect might flee in concluding that police conduct in restraining the suspect was reasonable. See, e.g., United States v. Place,
One point to bear in mind in assessing whether Terry fairly justifies Womack’s seizure is that this ease does not present a true Terry stop. The officers in the instant case were investigating a completed crime, rather than observing ongoing criminal activity or trying to prevent a crime still in the planning stage. See In re T.T.C.,
The Fourth Amendment balances the level of intrusion in a police encounter against the “importance of the governmental interests alleged to justify the intrusion.” Hensley, supra,
It would thus appear that the reasonable scope of a Terry-like investigatory detention — in its level of intrusion — must be more narrow when facts and exigencies similar to those in the Terry case are not present. Although the confluence of such exigencies in the home is not impossible to imagine, their presence in the home is surely the rare exception and not the rule.
Heretofore, this court had never identified the reasonable scope of an investigatory detention which takes place in a suspect’s home. The government did not cite any case, from any jurisdiction, upholding under Terry an investigatory detention which took place within a suspect’s home. Indeed, when asked at oral argument, the government indicated that it did not know of a case on
The majority also cites United States v. Brooks,
One compelling consideration in regard to when Terry can justify in-home seizures is that the Terry Court — and almost all courts following the Terry rationale in upholding police conduct — clearly intended that a Terry stop be in fact a stop, a characterization that could not fairly describe the actions of police encountering a person in his home who, until the arrival of the police, had apparently been asleep in his bed. See Keeter v. United States,
2. Handcuffs
Universally, courts have recognized that the use of handcuffs substantially increases the intrusiveness of a Terry stop and must be independently justified. See United States v. Melendez-Garcia,
Fourth Amendment jurisprudence, and common sense, do not view the use of handcuffs as an intrusion de minimis. United States v. Bautista,
B. The De Facto Arrest
Even a search or seizure carried out pursuant to a proper exception to the warrant requirement is illegal when the .search оr seizure exceeds the reasonable intrusion necessary under the circumstances. Dunaway,
Notwithstanding that Womack’s seizure bore all the objective indicia of an arrest, the majority relies on the fact that the police would have let Womack go if the identification procedure had not borne fruit — in other words, that the police were effecting “a temporary detention, designed to last only until a preliminary investigation either generate[d] probable cause or resulted] in the release of the suspect.” In re supra,
It is uncontroverted that the distinction between arrests and Terry stops does not depend on the subjective intent of the officers. Keeter, supra,
The Supreme Court has always maintained that the very premise of the permissible
The majority relies heavily on In re M.E.B., supra,
Similar reasoning applied in United States v. Bautista, supra. The court relied on the officer’s testimony in that case to identify the many facts which justified the use of handcuffs:
At that time a robbery of the bank had been committed and I believed that they were possibly the suspects and also because I observed tracks on their arms related to use of narcotics and also it was for officer safety as a precaution. I knew I was going to go to the front door of a residence to verify their story and I’d be leaving my fellow officer partner, John Gaspar, alone with the suspects. And because the suspects appeared extremely nervous and suspect Bautista kept pacing back and forth and looking, turning his head back and forth as if he was thinking about running.
Id. at 1288. The court credited the testimony of the officer and found that the handcuffing of the suspects “was not unreasonable.” Id. at 1289. The two suspects were to be left with one officer, the suspects would be in the back of the car, and they appeared to be “nervous;” thus, the government’s facts justified the intrusion. Id. The officers’ description of the circumstances surrounding the arrest was also central to the decision in Reynolds v. Florida,
In the present case, at least three officers were present when Womack was handcuffed. Although the law justifies Terry stops by
C. The Government’s Burden
The government always bears the burden not only of proving that the circumstances in a particular case came within a recognized exception to the warrant requirement, Sanders, supra,
This court has stated that lack of specificity or lack of evidentiary support for any intrusion, even a limited pat-down, during a Terry stop will render that intrusion illegal. See Roy, supra,
Valid concern for the safety of the officers must be apparent from a fair reading of the
D. The Role of the Reviewing Court
It is elementary that a reviewing court is bound by the lower court’s findings of fact, and should not engage in its own speculative fact-finding. Peay v. United States,
The majority does not identify any facts articulated by the police or found by the motions court as the basis for justifying the use of handcuffs. Without any support in the record, the majority assumes that the police officers were in a particularly dangerous situation because they were on Womack’s “home turf,” were not acquainted with Wom-ack or his family, and “had no idea where his gun might be, or whether there were other individuals on the scene.” See ante at 610-611. The majority further has decided to fill in the gaps in the government’s presentation and the court’s findings because, in the majority’s opinion, the fact that the police were investigating a violent rape and burglary made it “obvious” that it would be dangerous to try to deal with Womack without handcuffs. See id. at 614. In so doing, the majority has exceeded its role, deducing facts that were never elicited in the trial court, and thus relieving the government of its legal burden. Our proper role is to review the facts of record and all reasonable inferences therefrom in favor of sustaining the trial court’s ruling. It is not our role to boost the government’s case. Rather, because the government knows that it bears the burden to meet an exception to the warrant requirement, and had a fair opportunity to do so in the trial court, “[t]he fact that the government failed to present more evidence than it did only suggests to us that the government has exhausted the evidence favorable to its position.” Stewart v. United States,
Ironically in light of Supreme Court precedent stressing that persons in the home deserve maximum Fourth Amendment protection, one major justificatiоn the majority advances for handcuffing Womack in this ease is that the officers encountered him in his home. In this case, the officers chose the time and circumstances of the encounter;
If Terry is going to provide the justification for a seizure in the home, this court should require — as it always has under Terry — identification of specific facts about the suspect’s conduct and articulated concerns about the setting, which required the police to engage in the presumptively unlawful conduct. The fact that the seizure occurred in Womack’s home in this case is a factor that undermines, rather than helps justify, the police’s use of handcuffs under the circumstances presented in this case. Womack appears, from this record, to have been a remarkably sedentary suspect, returning home after an armed rape to go to bed. When called downstairs by his grandmother, Wom-ack dutifully obeyed. The facts of this case stand in stark contrast to the half-mile vehicular pursuit of a suspect who had been seen “hastily” entering and leaving a convenience store that led the Supreme Court to employ the language — quoted out of context by the majority in this case — that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham v. Connor,
It is difficult to understand, in light of the number of officers and the circumstances of their encounter with Womack, why handcuffs would be considered necessary or reasonable. While officers conceivably might feel apprehensive confronting a suspect in his home, the government in this case can offer no explanation as to why, if that were so, the officers did not frisk Womack before handcuffing him — except that it was clear that Womack was not armed. See In re
In sum, with no indicia of danger to the officers, no attempt to flee, and no evidence or testimony supporting the use of handcuffs, the majority engages in precisely the type of after-the-fact armchair musing it criticizes: de novo fact-finding to justify its reasoning where the government has failed to prove its case. See, e.g., Majority Opinion at 611 (observing without support in the record that the officers feared that other persons on the scene “might endeavor to thwart [Womack’s] apprehension”); but see Powell, supra,
Stripped of the majority’s unsuрported post-hoc rationalizations, the one justification advanced by the majority that is supported by the record is that the officers were investigating a violent crime. Cf. Oliver, supra,
It is difficult to conceive of any confrontation between an officer and a suspect of a violent crime — rape, robbery, homicide, kidnapping — where handcuffing would not be reasonable by the majority’s rule. It is without question that police officers must be allowed to take steps necеssary to protect themselves. However, the use of any intrusive measure must hinge upon more than the nature of the underlying crime. The bare assertion that the circumstances described in the majority opinion “could lead a reasonably prudent police officer to believe that ... the most reasonable course of action would be to
III.
In sum, I dissent from the majority opinion for several reasons. Because this investigative “stop” took place in Womack’s home several hours after the underlying crime had been completed, the scope of the seizure should have been carefully circumscribed, even if the initial entry into the home was consensual. The government in this ease failed to meet its burden of demonstrating that the level of intrusiveness was necessary, because it did not state any facts justifying the use of handcuffs.
A finding that Womack was illegally seized does not, in my view, demand reversal. Instead, this case should have been remanded for a finding whether the evidence sought to be suppressed was a “fruit” of the illegality. See United States v. Crews,
. Womack's brief on appeal states the issue presented as follows:
Whether the police exceeded the allowable scope of Terry, resulting in an unlawful arrest, by removing appellant from his home in handcuffs, without a reasonable necessity, requiring suppression of an out-of-court identification, physical evidence and statements as the fruits of that unlawful arrest.
Distinguishing the instant .case from cases applying Terry to justify detentions involving handcuffs, Womack's brief concluded:
Womack was a lone suspect, and there were three officers inside his home. He made no furtive gestures, and neither attempted to flee nor disobeyed police commands. He was inside his home, wearing only the shorts and shirt described as sleeping attire, which precluded any ability to hide a weapon on his person. Given the absence of any aggravating elements, the handcuffing was not justified by any facts creating a reasonable necessity to escalate the intrusiveness of the seizure. The conduct thus exceeded the scope of what was reasonable under Terry.
. I do not perceive any inefficiency or unfairness here in the sense that either the trial court or the litigants could rightly claim to have been blindsided by my analysis. Cf. Carducci v. Regan,
. There was evidence that N.H. provided the police with a photograph of an individual whom trial evidence later revealed to be the appellant Womack. There was no testimony, however, that the police officers who would later detain Womack at his home had the photograph, relied on the photograph in identifying Womack as a suspect, or thought that Womack resembled the individual in the photograph.
. Testimony among the police detectives appeared to vary on this question, and the motions court made no findings regarding the number of officers present.
. The different police officers involved in this identification procedure testified differently as to how far out of the house the police took Wom-ack. The trial court made no specific findings in this respect except to say that the police took Womack “outside.”
. The trial court made no findings regarding Womack's "scuffle.” Detective Tyson Coble’s testimony on this point varies on direct examination and on cross. The direct examination on this point was as follows:
Prosecutor: And when he came downstairs was he dressed?
Detective Coble: No, he was not fully dressed.
He was in his sleeping attire.
Prosecutor: And tell the Court what happened after you saw him in his sleeping attire?
Detective Coble: I told him that I needed him to step outside for a minute and talk to me. He attempted to resist but then he did step outside on the porch.
Prosecutor: And what happened on the porch?
Detective Coble: Once he stepped out on the porch, he was viewed by [N.H.].
Prosecutor: He was in handcuffs at that time, was he not?
Detective Coble: Yes.
On cross-examination, the detective testified:
Detective Coble: He had on like shorts.
Defense Counsel: Did you take him outside for the show-up with those shorts?
Detective Coble: Right outside the door, yes.
Defense Counsel: And you indicated on your direct testimony that you told him initially that you wanted to talk to him about something; is that right?
Detective Coble: Right.
Defense Counsel: And, you wanted to talk to him about getting into a show-up or being involved in a show-up identification.
Detective Coble: No, I didn't want to talk to him — I just wanted to talk to him.
Defense Counsel: But what you did was not talk to him. You took him outside for the show-up; right?
Detective Coble: He refused to talk. He started to scuffle, and I took him back inside.
Defense Counsel: And when you took him outside, hе was already handcuffed; is that correct?
Detective Coble: That’s correct.
Defense Counsel: And he was in your custody at that point; is that right?
Detective Coble: Yes.
Defense Counsel: Certainly because of the handcuff, he was not free to go.
Detective Coble: That’s right.
(Emphasis added.)
. This "respect for the sanctity of the home" is reflected in the Court’s opinion in Miller v. United States,
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter— all his force dares not cross the threshold of the ruined tenement.
Id. at 307,
. This rule is closely followed. In Payton, the Court struck down a New York law which allowed police, absent exigent circumstances, to enter a home and arrest a suspect without a warrant when the officers had probable cause to believe that the suspect had been involved in a crime.
. In Terry, an officer observed three individuals engaged in conduct which, in light of his thirty years of experience, appeared to be preparation for a robbery. Id. at 6,
.I think that it is a doubtful proposition. We have stated that "Fourth Amendment law presumes that warrantless searches and seizures inside a home are unreasonable absent exigent circumstances.” Oliver v. United States,
. Womack has not challenged the duration of the seizure in this case. I agree with the majority that it appears to have been relatively short. What is at issue is the reasonableness of the handcuffing in light of the circumstances confronting the police.
. I note also that the cases cited by the majority in support of abandoning a requirement for "least intrusive means" involved on-the-street or public place encounters where the police suspect ongoing crime. In those situations there is both a lessened interest in privacy and, because they occur in open spaces involving fast-moving situations outside of the control of the police, a greater need for vigilance in the police's action.
. Although the Supreme Court has recognized that "[t]he risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter,” Maryland v. Buie,
. In Dunaway, supra, police removed an individual from a neighbor’s home to question him at a police station. The Supreme Court relied upon the fact that the investigatory detention occurred in a private home in ruling that the officers had exceeded the scope of a Terry stop.
In Keeter v. United States,
. Attempting to address the lack of case law support in the government's brief for Terry detentions in the home, the majority notes that Wom-ack relied on Prophet v. United States,
. Footnote 20 of the majority opinion also cites Michigan v. Summers, supra,
. See, e.g., Michigan v. Summers, supra,