Womack v. United States

RUIZ, Assоciate Before SCHWELB GALLAGHER, Judge. Senior Judges, and Judge Associate Opinion the court SCHWELB. Judge

Dissenting opinion Associate p. 614. RUIZ at SCHWELB, Judge: Associate 10,1993, following the denial of August On suppress an identi- motion to out-of-court his statements, fication, evidence, tangible convicted appellant David Womack was armed,1 possession of a firearm rape while dangerous during crime of violence offense,2 first-degree burglary two counts armed,3 kidnapping while counts of two while armed,4 robbery.5 armed and three counts of was appeal, contends he On Womack probable and that the cause arrested without denying motion to judge erred in trial alleged fruits of that arrest. suppress that his initial Although concedes Womack lawful, he claims that was handcuffing him ex- the officers’ action legitimate investigative scope of a ceeded the into the encounter detention transformed requiring cause. full arrest judge concluded that the seizure motions complain- effected enable him, it there- identify and that ing witness to investigative detention fore constituted Ohio, pursuant (1968), rather agree affirm. We a full arrest. than 22-2101, (1989 22-2801, (1989 §§ & -3202 §§ & 1995 4. D.C.Code -3202 D.C.Code Supp.). Supp.). 22-3204(b) (1995 Supp.). § 2. D.C.Code (1989 §§ & 1995 -3202 5. D.C.Code (1989 22-1801(a), §§ & Supp.). -3202 3. D.C.Code Supp.). name,

I. vide the gave with full but she telephone the officers two numbers for STATEMENT OF FACTS individual whom she as “D.” po- knew lice, using a Haines a Criss-Cross Directo- Following evidentiary hearing ry, telephone traced one of the numbers several officers and defendant’s Taylor an address on Street northwest testified, grandmother judge the motions de- Washington, out D.C. This address turned suppress nied Womack’s motion and made grandmother, be the of Womack’s home findings oral as set forth On below. Sylvia Ms. Steele. night of November about 11:00 p.m., witness, N.H.,6 complaining The officers went Ms. Steele’s home confronted at her home a man who was approximately two to three hours after the handgun armed with a and whose face was assault ended.8 Ms. answered the Steele type covered some of hood or scarf. N.H. door and invited them into the house. One presence up was the intruder’s for to twо of the officers asked her whether or not she hours, during raped which time he her and responded had a “D.” son named Ms. Steele committed a number other unlawful acts.7 “D,” that she did not have a son named Although she was blindfolded for some of grandson that she had a David.9 The named time, recognize N.H. was able to her that, judge motions on this concluded based his assailant based on features and scar conversation, it was reasonable for the offi- eye, around his left which she could see recognized cers to believe that Ms. Steele through eye holes in the attacker’s face grandson, “D” name and that Ms. Steele’s covering. David, was the individual known “D.” as police immediately N.H. called the after “D,” inquiry After the officers’ about Ms. her assailant left. She advised the grandson Steele called to her to come down- that she believed that the man who had Womack, wearing sleeping stairs. who was raped her was someone whom she had known attire, steps. came down Detective Co- since June 1992 as “D.” N.H. related that placed bel handcuffs on Womack and took name, she did not “D’s” know full but that N.H., porch. him outside the house to occasion, gone she had out him with on one patrol approximately who was seated in a car and that she that he believed lived thirty-five house, positively feet from the gave photo- area. N.H. also assailant, as he identified Womack her and graph of man “D.” she knew as formally placed was under arrest. identification, show-up

Based on statements made the attacker After Ms. police, upstairs to N.H. as related N.H. to the clothing the Steele went to retrieve for down, grandson. brought among officers had reason believe that one of her She might things, N.H.’s pair friends know the man’s name other In her boots. state- pro- police, and address. The friend unable ment to the N.H. had described house, preserve complainant’s privacy, 6. In order the attacker N.H. to take a ordered bath. identify only by fingerprints, we her initials. Finally, to eliminate his he forced both womеn to wash all the in the house surfaces According testimony Tyson 7. of Detective car he believed he touched. hearing, suppression following Cobel at the during period. events occurred this two-hour Taylor 8. The arrived at the Street address bed, The intruder woke N.H. in her her covered approximately According 4:00 a.m. to Ms. hand, up” mouth with and told her to "shut testimony suppression hearing, Steele’s at the say anything and "not to or he would her.” kill accompanied by two Detective Cobel addi- He forced N.H. to have sexual intercourse tional officers when he lmocked on her on him the floor of her bedroom. He later door. bedroom, into ordered N.H. her mother’s where give money. he demanded that the mother him Although her son Darrell also resided at the The attacker ordered both women into the base- address, Taylor up Street Ms. Steele referred to her tie ment and forced the mother to and blind- son, Womack, grandson, daughter. David and not her fold her He then forced mother Darrell, response inquiry ATM to the officer’s about drive machine and withdraw four “D.” hundred dollars. When returned boots, judge, that Womack was suspected tions establishes rapist’s and Detective Cobel of his Fourth Amendment brought seized in violation that the boots which Ms. Steele had law, previously rights question which we consider pair that N.H. had be the Brown, supra, told Ms. Steele that de novo. See described. officers get have to some other shoes she would

Womack, the boots evi- seized Reasonableness, Proportionality,

dence. B. the Fourth Amendment. above, Having found the facts as described that, point judge the motions ruled grounded claims this case Womack’s downstairs, came the officers rule, when Womack exclusionary in the Fourth Amendment suspicion that had reasonable and articulable proscrip- vindicates the constitutional judge was N.H.’s assailant. The against and sei- tion unreasonable searches legitimately were found presented zures. The basic Steele, premises the invitation of Ms. circumstances, whethеr, all of the under procedure show-up and that the was reason- of Womack Womack of able because would either clear reasonable. police had suspicion or confirm in a reasonableness do assess We right judge specifically man. The found safety of the offi risk to the vacuum. The probable did not have ruled that very judge great to a cers not seem show-up make arrest cause to before fact, transcript reviewing years a after the identification, he but concluded that articula- may reasonably ap situation stage. suspicion was sufficient at that ble dangerous who officer peared far more undisputed judge The it is held —and —that just suspect contact a had come into Womack, positively had after N.H. identified rape kidnapping which oc an armed probable cause to arrest him. only hours The evidence curred before. judge The therefore denied Womack’s motion library “weighed not terms must be identification, suppress the out-of-court scholars, by analysis but as understood boots), tangible (including his evidence in the field of law enforcement.” those versed which made and certain statements Cortez, 411, 418, 449 U.S. United States police station. Womack was tried and at the (1981). L.Ed.2d 621 66 above, appeal as noted and this convicted we, sitting in the relative though Even followed. library, may have con- of a court or calm otherwise, give bound to we are cluded II. decision if was to the officer’s deference LEGAL DISCUSSION the facts as viewed reasonable under him. Scope A Review. States, A.2d Arrington v. United appeal from the of a mo On denial (D.C.1973). is suppress, scope tion to of our review decide upon called courts are 590 A.2d When limited. Brown to re an officer (D.C.1991); the force used v. United whether Lawrence excessive, (D.C.1989). calculus suspect “[t]he We must strain a embody allow [also] must judge’s findings of eviden- reasonableness defer to the trial are often Lawrence, fact that tiary ance for the supra, 566 A.2d at fact. judgments split-second sup make presented forced to We view evidence —in tense, uncertain, and that are favorable circumstances hearing most pression evolving of force below, the amount prevailing rapidly party and we draw to the —about necessary particular in a situation.” fa that is party’s in that all reasonable inferences 396-97, 109 Connor, Graham v. Peay 597 A.2d vor. v. United (1989). (en (D.C.1991) banc); 104 L.Ed.2d colleagues (D.C.1978). and his Pannell, Detective Cobel When and saw sus- evidence, Steele’s home mo- arrived Ms. as found Whether peeted rapist Mdnapper armed coming S.Ct. at 1879-81. thus out carved downstairs, they had to immediately, act exception narrow to the Fourth Amend luxury thoughtful probable extended ment’s requirement. cause To regarding reflection purview whether it within come excep of the absolutely would necessary place tion, justified action must be at its suspect in handcuffs. From per- inception, officers’ and must also be relat spective an unreasonable one—it was scope ined to the circumstances ini —not sorry. better to be than safe tially justified the detention. Id. at Thus, S.Ct. at 1878-79. when officers sub use the Fourth Amendment of ject a detained to greater restraint adjective imports “unreasonable” a com liberty permissible than legiti in a proportionality mand of to that Amendment’s seizure, mate suspicion articulable jurisprudence. Brown, supra, 590 A.2d at sufficient, requires and the Constitution greater 1013. The the restriction on the showing See, e.g., cause. In re liberty, seized individual’s the more substan M.E.B., (D.C.1993), cert. justification tial the for such restriction — denied, -, intrusion, must “A be. lesser on the other hand, requires a correspondingly lesser showing.” Id. question presented in this case is

We appropriate handcuffs, must also accord whether the use of which is a weight officers, safety arrests, as well as precluded familiar feature of obligation to their dangerous assure that a judge finding recently does not flee. adopted We permissible than Terry stop. more our compelling M.E.B., own these words written which also involved by Judge Harold Levеnthal: of suspects prior identification, show-up

As routinely expect police we we described difference between a full society, apprehending Terry officers risk their lives in arrest and a of terms their dangerous people. We should not bicker if purposes: distinct in bringing potentially dangerous situa- Generally, an is arrest effected when the they tions under control issue commands police have made determination to precautions and take which reasonable charge suspect with a criminal offense men taking. are warranted in custody and is permit maintained to Cousart United formally arrestee be charged (D.C.1992) (en banc), denied, cert. 507 U.S. court_ brought before the A (1993) 113 S.Ct. 123 L.Ed.2d 496 seizure, hand, on the other involves more (quoting Bailey v. United detention, temporary designed to last 354, 364, U.S.App.D.C. 389 F.2d preliminary investigation until a either (1967) (concurring opinion)). Where the in generates probable cause or results upon suspect’s compara trusion liberty is suspect. release of the tively duration, minor of brief officers (citations omitted). Id. constitutionally compelled to take even a modest risk of harm. scope per “The measure of the of Seizures, Arrests, C. the Hand- police any investigative missible action in cuffing Suspects. depends stop on whether the conduct Terry,

In Court held was reasonable under the circumstances.” that, Amendment, consistent with the (citing Fourth Id. Sharpe, at 1127 United States v. police may briefly 1568, 1573, detain an individual for 470 U.S. investigative purposes, (1985)). even if lack “[H]andcuffing the de arrest, tainee, detention, long length place cause to so offi like of de suspi tention, considerations, cers have reasonable and simply articulable and other factor, cion that the among many, individual has or is judge committed one that the trial about to commit a crime. 392 at weighing must consider in whether a deten- “objectively cuffing of the was line into the investigation crossed the tion for totality light of the of force reasonable use Id. at 1128. realm arrest.” Voida, Tom v. the circumstancеs.” appellant and another indi- Cir.1992) (7th (emphasis add- F.2d police officers detained two vidual were Graham, supra, ed); see also description matched radio because To at 1872-73. determine Id. a murder. men seen at the site of two violated, Amendment the Fourth handcuffed, suspects The were 1124-25. two ac- the officers’ must “whether court decide vehicle, placed in the rear of ‘objectively reasonable’ [were] tions transported to other locations for identifica- confronting and circumstances of the facts The entire detention lasted between tion. them, underlying in- regard to Id. at 1127. minutes. twelve and seventeen Graham, supra, 490 or motivation.” tent appellant contended that the Thus, wheth- U.S. at unnecessary and that converted in fact for their feared er full This court disa- seizure into a arrest. suspect is safety during an with a encounter that, given greed. the seriousness heldWe critical dispositive.10 brevity investigation, crime under reasonably prudent officer would whether detention, fact that the sus- and the using justified in handcuffs have been transported patrol pects in a car potential his or her safe- threats to neutralize blocks, “handcuffing was a rea- for several attempt by the ty or to inhibit precaution under the circumstances.” sonable escape. “protec- Id. at 1128. reiterated that We stop ... is of making tion of the officer routinely held use Courts have paramount importance. It has been called context be reason- handcuffs in Terry.” (quoting at 1127 the rationale of Id. attempted suspects in situations where able Mason, United States v. ig- gestures, police, made furtive to resist curiam)). (D.C.1982)(per flee, commands, attempted to nored jurisdictions are to the Decisions other See, police inquiry. e.g., otherwise frustrated M.E.B., same As noted courts effect. we Taylor, 716 F.2d States United generally approved of handcuffs the use Bautista, (9th Cir.1983); F.2d necessary pro “where it was 1289; U.S.App. Purry, States v. safety to thwart a sus tect officers’ 139, 141-42, 217, 219-20 545 F.2d D.C. attempt (quoting pect’s Id. at 1128 flee.” Waynе (1976); LaFave, R. Search (Fla. State, Reynolds v. 592 So.2d (2d 9.2(d), & § ed. 1987 SEIZURE 1992)); Bautista, v. see also United States part of a Supp.). conduct on the Such (9th Cir.1982) (“police 684 F.2d however, not, qua a sine particular suspect is conducting investigations in on-the-scene Indeed, no evidence there was non. dangerous suspects may volving potentially anything un- suspect did M.E.B. that either precautionary if are rea take measures young men de- two were toward after the denied, sonably necessary”), cert. 459 U.S. in that concluded tained. We nevertheless (1983); 1206, 75 L.Ed.2d 447 “ handcuffing of [defendant] ‘the case that (Colo. Weeams, People v. P.2d reasonable, corollary of the lawful as a was (en (“Officers 1983) banc) conducting an in the status stop,’ in order to maintain [Terry ] vestigatory stop may amount of use that sought officer more informa quo while the scope reasonably which is related force (quoting Purry, su 638 A.2d at 1128 tion.” during ensuring safety and character to 142, 545 F.2d at U.S.App.D.C. at pra, 178 detention.”). period 220) (alteration original). Other courts the use of handcuffs objec have likewise held that foregoing standard is an where, here, crime of justified question whether the hand- was tive one. The view, point authori- the cited whether he felt ter from Cobel’s 10. Detective Cobel was not asked during testimony with Womack. his encounter does threatened Although inquiry that the lack of such ties establish subject into finding. negate judge’s the motions explain helpful of the encoun- context suspected which the handcuffing, defendant was was a the detention of Womack violent one and the reported prior defendant was to N.H.’s him identification of constitut- See, e.g., to have been armed. perhaps States ed the paradigmatic— even classic— Tilmon, (7th 19 F.3d concedes, n. 4 & seizure. Womack and the Cir.1994) (“handcuffing highly found, prob judge motions the officers had —once becoming acceptable lematical —is quite suspicion articulable sense. Weeams, Terry analysis”); the context of a We conclude of Wom- Allen, 622; People P.2d change ack did not the result. The incre- 971, 971-72, N.Y.2d 540 N.Y.S.2d mental liberty intrusion on Womack’s effect 323, 323-24 (1989) curiam). N.E.2d (per ed if handcuffs was minimal. Even D. The Seizure Womack. placed handcuffs, Womack had not been he would not have been free leave until We conclude that foregoing au identify after had opportunity N.H. had an compel thorities us affirm the trial court’s elapsed him. The time that from the mo- decision. This is not a ease which the ment that he was handcuffed until the identi- decided, prior had to Womack’s identi was, procedure fication completed N.H., fication custody to take him into most, a few minutes. The sum total of the charge him with a crime—the conven restraint on Womack’s alleged freedom now tional scenario when make arrest. complaint be excessive boils down to the supra, 638 A.2d at 1126. On the that, during a concededly lawful detention contrary, “tempo- effecting police, very he was in handcuffs for detention, rary designed only to last until a short time.12 preliminary [here, investigation show-up procedure] identification generate[d] either judge, Like the motions are not we dis- probable posed cause or result[ed] the release of to second-guess the officers who were suspect.” Royer, Id. See also Florida on respect comparatively the scene with to a 491, 506, security only modest measure which (1983), L.Ed.2d in which the Court noted brief and minimal effect on Womack’s free- expedi- the officers had used more dom of action. The authorities cited Part investigative procedure tious opinion consistent II.B require with of this us to consider Terry, ushering Royer rather than perspective issue from the aof interrogation questioning, neg- prudent just room for “[a] officer who had arrived Royer ative result would have freed short scene. The officers in this case were on order; discovery [while of contraband] would Womack’s suspect- home turf. justifiable have resulted in having arrest on ed of committed violent extreme- ly crimes, cause.” including Detective Cobel testified rape, kidnapping, serious on direct examinatiоn robbery, that “once Mr. handgun. Wom- all armed while identified, ack was placed he was then under These completed offenses had been added). (Emphasis arrest.” The motions few hours earlier. The officers were not judge evidently testimony.11 acquainted credited his family. with Womack with his Putting legal presented They handgun might to one side the issue had no idea where his cross-examination, period On corresponding 11. Cobel was asked: shorter than the for the you actually "And didn’t M.E.B., arrest Mr. Womack appellant in in we case which held that him, you placed right?” until the handcuffs on handcuffing not did convert the seizure responded: Detective Cobel the detective's it "Correct.” Given goes saying into an arrest. It that this- examination, testimony on direct ”involve[s] case neither ‍‌‌‌‌​‌‌‌​‌​​‌​‌‌‌​​​‌​​​‌‌​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌‌‍the inconvenience nor appears may that he have treated the word indignity compelled associated with visit to meaning "prior "until” as "before” or to.” In Summers, station,” Michigan event, evidence, must, any viewing the as we 101 S.Ct. 69 L.Ed.2d prosecution, Peay, to most favorable (1981), and is therefore unlike both Duna supra, 597 A.2d at we treat Cobel's testi- York, way v. New 99 S.Ct. mony supporting judge’s finding as that the Florida, (1979), Hayes identification, arrest came after the not before. (1985), L.Ed.2d Significantly, pre-identification period Judge repeatedly on which Ruiz relies. during which Womack was far in handcuffs was already legitimately de-

be, pect who has other individuals or whether there were entirely out result would be might to tained. Such a endeavor thwart on scene who proportion- complaining keeping with the command apprehension. The witness his outside, our Fourth Amend- necessary ality to is central to it would be Brown, supra, 590 A.2d porch jurisprudence. so that an ment suspect out on the take the accomplished; would at 1013. could be identification at- for him to

obviously have been easier porch than from

tempt escape from the III. All circum- house.13 of these inside the TO RESPONSE DISSENT po- reasonably prudent stances could lead that, in the interest lice officer believe Home. A Seizure safety, of action most reasonable course opinion dissenting Judge her Ruiz bases Womack, until at least would be handcuff was seized largely on the fact that Womack whether he was the N.H. could determine grand- with his he lived the home which right man. exception “the mother. maintains that She that, may in the calm of his It relative require- probable cause to the constitutional fact, chambers, years judge or her after the ], Ohio, [supra ment established might reasonably conclude risk easily one’s not extend seizures do[es] or would would harm the officers Womack Dissenting asserts op. home.” 615. She very especially in great. But flee was cause, on felony arrest based law, second-guessing split- this area of the recog- public is a place, in a when effected on decisions made the officers second Amendment’s exception to the Fourth nized every peril, and effort fraught scene is with that “the requirement, warrant but distorting must be made to “eliminate the similarly tolerant sei- Court has not been hindsight.” Strickland v. effects of Wash suspects occurring suspect’s zures ington, 466 Further, according to home.” Id. 2065, L.Ed.2d 674 Ruiz, oc- Judge fact that “[t]he undermines, ... home curred Womack’s night in question, Detective Cobel On justify, police’s use helps than rather colleagues of what idea presented handcuffs under circumstances house, nor happen when entered the Judge point Id. at 629. this case.”14 suspected of foresee a man could what one, interesting it is is an Ruiz raises try kidnapping might rape armed do us. properly before apprehension. perspec- to avoid From their suppression mo- tive, did not base his a modest risk would Womack even relating hold, appeal claim altogether To tion or his appear unacceptable. sanctity of demands, the home.” “respect for the Judge opin- Ruiz’ principle that animates unreasonable and unconstitu- this case was namely, Terry doctrine does require police tional would be to ion— substantially less apply, applies confronting potentially dangerous suspects in not force, in a home which officers to seizures surroundings jeopardize unfamiliar con- homeowner’s public, in entered with the safety, safety of the own and the by our into this case only very sent —was introduced avoid brief and minimal order to Womack, repre- colleague. who liberty dissenting of a sus- incremental restraint poor cottage poor without the man's frail that Womack enter 13. Detective Cobel also testified resist,” (quot "attempted Dissenting op. but at all clear 7 to not at - n. consent. man's prior testimony to the States, that this occurred from his 78 U.S. ing v. 357 Miller United handcuffing. judge no find- The motions made (1958)). 1190, 1194-95, 2 L.Ed.2d 1332 S.Ct. and, prosecutor because the on the issue one, application principle but its is a noble timing, testimony this failed to "nail down" tempered by surely present be case must to any weight. if should be accorded little Ruiz, fact, by Judge recognized undisputed with the con entered home Indeed, Judge quotes from famous Ruiz 14. owner, grandmother. of Womack's sent its in he prime minister which address a British King England of cannot insisted that even the 612 circumstances,

sented this ease able counsel from the Under these Service, Terry exception” Public Defender did “diminished claim not not include such preserved. “Questions properly contention —we will call it the “diminished preserved during proceedings raised and Terry exception” claim15—in his motion to examination, points under not asserted suppress, in his appeal, reply brief on in his precision to indicate distinct brief, argument. or at oral sufficient He dted none of thesis, ly party’s normally will the cases Judge on which Ruiz relies her spurned Avirom, on appeal.” v. Miller 127 Terry exception” theory. “diminished In- 367, 369-70, U.S.App.D.C. 319, 384 F.2d 321- deed, Womack relied his brief on decisions (footnotes (1967) added) 22 (emphasis omitr addressing Terry-type issues which arose at ted). Even Womack had raised the issue Greyhound station,16 during bus a traffic court, not, in this did which he he would street,18 and, case, stop,17on the one judge demonstrate that the trial commit apartment,19 suggestion that (or, error) plain indeed, ted error invited greater restrictions placed should be оn the initiative, failing, grant on his own police where the seizure followed a consensu- suppress theory motion to of a basis entry Furthermore, al into a home. presented him the de support memorandum of his motion to See, States, e.g., fense. Irick v. United 565 suppress, Womack asserted in the trial court (D.C.1989). 26, A.2d 32-33 To plain establish that, according Terry, the Fourth Amend- error, Womack would have to show that the right ment to be free from unreasonable application principles conventional searches and “belongs seizures as much to following entry a seizure a consensual into the citizen on the streets of our cities as to “obviously” wrong, a home was and that the study homeowner closeted to dis- judge, sponte, adopt failure of the sua pose of 8-9, his secret affairs.” 392 U.S. Terry exception” theory “diminished would' equated 88 S.Ct. at 1873. He thus a seizure miscarriáge justice. result in a clear See street, in the home with a seizure on the Baxter v. United thereby affirmatively purported invited the (D.C.1994) Olano, (citing United States v. dissenting colleague error which our finds in 725, 730-37, 113 1770, 1776-79, 123 U.S. S.Ct. disposition. the trial court’s See District (1993)). L.Ed.2d 508 Because the correct Partnership, obvious,20 Columbia v. Wical Ltd. theory anything 630 ness of that (D.C.1993) (discussing A.2d “in- and because result this case is not doctrine). vited error” unjust,21 Womack would not have even phrase solely Buie, 15. We gatoiy 325, Maryland use this as an abbreviated encounter." Judge Ruiz' reference to contention that the offi- 108 L.Ed.2d 276 (1990). subject greater dissenting colleague’s cers constraints in Our observation grandmother contrary notwithstanding, home of Womack's than the truth of this logically would have faced if the common-sense observation cannot de encounter occurred pend effecting on whether the the street. ar rest or a more limited See seizure. also Michi Jones, Summers, 16. U.S.App.D.C. gan See United States v. (discussing applicability F.2d S.Ct. at 2593-96 principles to the detention of a defendant in his Thompson, warrant); pursuant See United States v. 597 F.2d 187 pending home a search to a (9th Cir.1979). Brooks, see also United States v. F.3d 841- (8th denied, - U.S. -, Cir.1993), cert. Terry,supra. 18. See (1994) (applying 127 L.Ed.2d 427 “following standards a consensual or other Prophet See 602 A.2d 1087 private dwelling”); entry wise lawful into a Hill (D.C.1992). 1995), (D.C. v. United 664 - denied, -, cert. parties 20. Because the have neither briefed nor (1996) (citing Summers and issue, argued present case is not the Brooks). appropriate occasion debate the merits of the Terry exception" theory. opinion, "diminished We note 21.As we have Part noted in II. danger "[t]he risk of in the context sole claimed intrusion was the as, for, most, minutes, great greater an arrest in home is if not the as Womack at a few at a time than, concededly lawfully it is on-the-street or roadside investi- when he was detained.

613 the of the facts before sustaining un- reasonable prospect of his burden remote Dissenting op. at Whether 620.25 plain error doctrine. officers.” der handcuffing the “least intrusive” alterna- “plain But even the error” scenario however, officers, not available to the tive pres than the is more favorable Womack inquiry. appropriate Fourth Amendment Here, present failed to ent record. Indeed, repeatedly has Court Terry exception” claim not his “diminished rejected analysis. logic of of “The type court, appeal. only in trial but also on ar- less-restrictive-altemative such elaborate attempt ad counsel has made no Where guments insuperable could raise barriers issue, appellate gener court will dress an virtually all search-and-sei- exercise ally v. decline to consider it. Rose United powers.” v. Martinez- zure (D.C.1993); 626, A.2d 536 Card 629 543, Fuerte, n. 556-57 S.Ct. 80, 86, Regan, U.S.App.D.C. ucci (1976); 12, see 3082 n. L.Ed.2d Justice) (1983). (now 171, 177 Judge As F.2d n. Wolfish, Bell 559-60 also U.S. Carducci, Scalia reiterated 1885 n. 60 L.Ed.2d 99 S.Ct. system premise our adversarial [t]he (1979); Montoya De Her- States not sit self- appellate courts do as nandez, 531, 542, 105 legal inquiry re- directed boards of “A creative 87 L.Ed.2d search, essentially legal as arbiters of po- post hoc judge engaged evaluation presented by questions argued always imagine can some lice conduct almost parties before them. objectives of means which the alternative accord, Rose, Id.; (quot- at 536-37 accomрlished.” been have ).22 ing ex- Carducci “diminished Sharpe, supra, 470 U.S. ception” has coun- issue not been briefed protection at 1575-76. “The fact government any sel. never abstract, might, in public Ac- it.23 opportunity occasion or to address does accomplished by ‘less intrusive’ means cordingly, it.24 we decline consider itself, not, by seizure] [or render the search ” B. “Least Intrusive Means. Dombrowski, Cady v. unreasonable.” 2523, 2531,37 L.Ed.2d dissenting colleague Our refers to (1973); Sharpe, supra, 470 see cir also government’s obligation, under these cumstances, (quoting Cady)-, at 1576 to “use the least intrusive means Carducci, colleague complains lucidly explicated dissenting 23. Our 22.In the court case, any not from premise: "did cite for this reasons refuting jurisdiction” ex- the “diminished 28(a)(4) Appellate of the Federal Rules of Rule Dissenting theory. op. at do ception” 622. We requires appellant’s brief Procedure party be faulted that a can not believe appellant with contain "the contentions of adversary failing issue which its to address an respect presented, and the rea- the issues raised on trial court and never conceded therefor, authorities, sons citations appeal. parts of relied on." statutes and the record requirement will ulti- Failure enforce this Judge case does Ruiz also that "this asserts deprive mately us in substantial measure stop present [because] [t]he ... not true system that assistance of counsel which investigating completed ... were officers crime, deficiency perhaps that we can assumes—a ongoing observing criminal rather than means, issue, alter- supply but not without other activity_" Dissenting op. at 621. This claim, our Of course the character of institution. Terryexception" the “diminished like Moreover, legal arguments bearing upon the issue argued by not all Womack. never raised or M.E.B., case, always question will identified coun- the officers were inves- as in this crime, sel, precluded supple- tigating completed and we are not but their through menting suspects were sus- contentions of counsel and the usе handcuffs legitimate Terrystop. and research. But where tained as a our own deliberation attempt made no to address the counsel has issue, remedy defect, especially Judge points that the officers did we Ruiz out will him, where, here, "important questions but “even frisk Womack before of far- weapons will be ensure that reaching significance” frisk does not are involved. M.E.B., (empha- U.S.App.D.C. 714 F.2d at 177 discovered.” (citing authorities). added) (citations omitted). sis Tilmon, (1968), denied, supra, (explaining 19 F.3d at cert. language (1969)) (second

the “least intrusive means” in Flor- 21 L.Ed.2d 560 Royer, supra, ida v. original). Black alteration robes are not relies). Judge S.Ct. at on which Ruiz supposed to eviscerate our common sense. indicated, As Professor LaFave has “a The record discloses that the officers came inquiry ‘least great intrusive means’ has a grandmoth- to the home owned Womack’s potential for to likely mischief. It is result er a few hours after the commission police.” unrealistic second-guessing rape brutal armed kidnapping. and The offi- 9.2(f), § LaFave, at 389. We have cers had to reason that Womack was concluded that of Womack responsible. absolutely the man There is permitted a reasonable seizure nothing suggest, if the record to Fourth being Amendment. This the decisive guilty party, indeed the how officers issue, engage we decline to the kind of any could regarding have information quarterbacking against armchair which the handgun, the location of Womack’s wheth- Supreme Court has warned. might er he have received assistance ” Fact-Finding. C. “Appellate attempted others him officers to take custody. into possibly How could Judge Ruiz majority asserts that the known? The truth of in our the statement engaged in fact-finding justify “de novo its to opinion Judge sup- for which Ruiz finds no reasoning where the has failed is, view, port in the record in our obvious. prove to Dissenting op. its case.” at 630. recognition Our con- obvious does not complains She that we have “observ[ed] with- “appellate fact-finding.”26 stitute out support in the record” that the officers handgun “had ideа where Womack’s be,

might or whether there were other indi- IY. viduals on who the scene endeavor to reasons, foregoing For the the motions apprehension.” respectfully thwart his We judge correctly denied to Womack’s motion disagree colleague’s our dissenting with char- suppress evidence. Womack’s convictions acterization. hereby must and be each judge having The motions denied Wom- Affirmed.27 motion suppress, ack’s to we must view evidence, and all reasonable inferences from RUIZ, Judge, dissenting: Associate evidence, in light most favorable definition, Pannell, By every government. encounter between See Moreover, suspected officer and a “[w]hen at 1080. we take citizen accompanied hypothet- our seats on the bench we are not struck violent offense is blindness, safety. hypo- and ical threat to That forbidden to know the officer’s judges threat, however, What we [or women].” see as men thetical does not overcome Columbia, prohibition against Poulnot District 608 A.2d the unrea- constitutional 134, 141 (D.C.1992) A (quoting Edwards v. Ha sonable searches and seizures. bib, warrant, U.S.App.D.C. probable pursuant requiring 397 F.2d to a earlier, dissenting robbery colleague kidnapping 26. Our also criticizes as and few hours handgun support “without that he had used a to force his victims or reference to the testimo- dangerous, ny” surely to submit. Such a man was our observation that the officers could not any suspected rape failure the officers take immediate “foresee what man of armed steps protect themselves in such situation kidnapping might try appre- to do to avoid surely foolhardy say would have been op. Dissenting hension.” at 628. We are at a least. loss to understand basis the on what expected could assume that Womack would arrival, respond peacefully how disposition, our we do reach possible anticipate could what his reaction government’s alternative contentions that apprehension significant would be. The most sought suppressed evidence to be was not that, fact which the officers knew at the of their allegedly time fruit of the unlawful seizure event, right seizure of Womack was that if he was the the officers had cause to man, rape, apparently then he had committed arrest Womack. by supported scope not cause, All whose is reasonable. oth- presumptively police, the specific concerns articulated presumed unreasonable. seizures are er arrest, its a and Thus, of will be considered de government the burden the bears facto proposi- suppressed. The third fruit must be actions were neces- proving that the officer’s or is no warrant that, totality, there in tion is that where sary in of facts their the arrest, government to probable to cause reasonably led the officer believe showing which facts the burden of actively engaged in criminal ac- bears suspect was reaching safety, relied on tivity, posed danger police officers a to the officer’s investigative particular de- likely to articulat- conclusion that was flee. Without such or the least intrusive justification, handcuffing procedure im- tention was suspect is ed under circumstances. scope of an investi- means reasonable proper within the limited I which illegal proposition, I add a fourth believe gatory to detention amounts opinion, lacking majority’s that where justification is violated in the Because such arrest. any such case, provide to I uncon- fails in this conclude that the facts, may reviewing not introduce court stitutionally David when arrested present- that were never him in home before facts and inferences handcuffed his to any argued or in the trial court order probable This ed cause. means of the seizure. justify fruit the reasonableness that was the evidence seized illegality suppressed. must be Instead introducing majority me for chastises however, reversing, I case would remand this argu- legal principle new —based to the trial court for a determination whether justify not Womack’s ment that does the unlaw- the evidence that taken after upon by the in his home —not relied illegal ful seizure was the fruit of the arrest. ap- argued nor on parties in the trial court my analysis reaching peal. tracks Womack’s my In conclusion that the seizure Not so: unlawful, in the motion rely propositions argument to the trial court I on several appeal.1 us Like the suppress case and to on which are well bome-out established parties I eases that the juris- majority, have cited law the Court and this to, ground- have included some did not alert us diction. first is that reasons per- provide a clearer ing exception proba- support historical to the constitutional is, all, requirement consti- spective on what after bedrock ble cause established Ohio, job our as law. I assume that it is 20 L.Ed.2d tutional (1968), fully as appellate judges reasoned easily do not to seizures write extend trial opinions for the benefit of proposition one’s The second is that as we are able home. cause, Unfortunately, ma- litigants.2 courts and seizure without a warrant pre- of the seizure. The appeal the intrusiveness 1. Womack's brief on states the issue escalate scope of what was thus exceeded the sented conduct as follows: Terry. reasonable under Whether the exceeded the allowable arrest, inefficiency perceive any scope Terry, resulting I unfairness unlawful do not by removing trial court or appellant hand- here the sense that either the from his home in cuffs, litigants rightly blind necessity, requiring claim have been could my analysis. reasonable identification, Regan, 230 Carducci v. suppression sided of an out-of-court Cf. (1983) U.S.App.D.C. physical 714 F.2d and statements as the fruits evidence upon ("Of legal arguments bearing all course not of that unlawful arrest. always ap- be identified Distinguishing will the instant .case from cases issue counsel, supple precluded from Terry justify involving and we are not plying hand- detentions cuffs, through menting our of counsel contentions Womack's brief concluded: where suspect, research. But own deliberation and Womack was a lone and there attempt to address the has made no inside home. He made no counsel issue, three officers his defect, remedy especially gestures, attempted we to flee will furtive neither where, here, ‘important questions of disobeyed police far-reach He was in- nor commands. involved.”) (internal home, citation wearing significance' are the shorts and side his case, attire, omitted). clearly pre- In counsel addressed sleeping shirt described as do, argued, facts ability weapon as I any to hide issue cluded handcuffing. justify presented See person. any aggravating did not Given absence (D.C. Cooter, elements, n. justified by was not Mills 1994) parties (noting limited any creating necessity facts a reasonable jority spends Street, N.W., more castigating time forme lor which was the home of the my appellant, Womack, making argument grandmother, and his than with the merits Sylvia knock, Steele. At the my analysis. time of raped, detectives knew that N.H. had been event, I cannot take credit for and that she and her had mother been kid- any creating principle” My point “new here. napped gunpoint by and robbed a masked of departure is neither new nor different recognize individual N.H. claimed to as “D.” majority’s: only possible justifi- from the the police Taylor The to were led the address on cation for the detention this case must be gave police Street after a of friend N.H.’s the found in exception the to the Fourth telephone belonged two numbers she said to probable requirement. Amendment’s cause “D,” and one of the telephone numbers disagree Where we I is that that believe the turned out correspond Taylor to to the Street Terry, reasoning Court’s when police The address. had no other informa- viewed the context of the Court’s well- regarding identity tion perpetra- the established Fourth jurispru- Amendment tor.3 dence, being beyond recognition stretched door, responded Steele to the knock on the to justify in this case. and the detectives asked shе had whether my Judge analysis Schwelb ealls the “di- responded son named “D.” Steele that she Terry exception.” minished I not, do believe that grandson did but stated she had a fairly objection label captures my to police named David. Steele admitted the to direction, majority’s My not, opinion. point is her home and at their Wom- called Terry excep- asserts, ack to come Judge downstairs. Before Schwelb that the Womack appeared, attempted one detective police tion ascend is “diminished” when make intru- the stairs retrieve himself. Womack Terry excep- sive contacts in the home. The Steele told the detective that he did not need court, tion up exists and it is not to this go up, again. and called Womack Wom- not, whether the matter is raised or to “di- attire, appeared sleeping ack then in his con- prin- minish” it. The is whether the sisting t-shirt, shorts and with bare feet. ciples underlying exception apply Although reported N.H. had that a scar near to the in-home seizure this ease and perpetrator’s eye helped identify her govern- whether the record shows that the “D,” testify police him as did not Terry. ment met its burden I under believe Womack, they any they when saw sim- noted majority’s holding it is the that “dimin- apparent ilar scar. Womack made no at- Terry exception ishes” ignoring tempt to resist or flee. The motions court reasons that underlie it. moment, concluded that at this when the home, police encountered Womack I. probable they lacked cause arrest him. any exception probable Because police testify hearing did at the requirement supported by cause must be ad- thought ever Womack facts, equate I first set out the facts of this They armed. did not frisk testified ease, paying particular attention to the facts Instead, immediately police him. hand- presented by police suppression at the Womack, step cuffed told him to out hearing justify the officers’ actions. time, porch. onto the At this Womack was morning the early hours November custody of at least three but “fewer Metropolitan detectives Police than ten” officers.4 After Womack Department Tay- outside, stepped porch knocked on the door at 324 at least onto below”) precise arguments they (citing photograph, made Yee Womack at his home had the relied Escondido, Cal.) 519, 529, City photograph identifying Womack as a 1522, 1529, (1992)). suspect, thought L.Ed.2d that Womack resembled photograph. individual in the provided 3. There was evidence that N.H. photograph Testimony among ap- with a of an individual detectives whom appellant vary question, peared trial evidence later revealed be the on this the motions however, testimony, findings regarding Womack. There was no court made no the number of present. officers would later who detain Sanders, clause. Arkansas possibly to the street into the head- tion’s warrant down N.H.,5 lights occupied squad of a car N.H. (1979). purpose of Either identified Womack as her assailant. an inde interpose is to requirement warrant immediately immediately after this before or be cause pendent assessment identification, he was event after engaged a citizen and an “officer tween handcuffed, there is evidence that Womack ferreting enterprise competitive the often attempt “scuffled” in a brief to resist States, 333 out crime.” Johnson procedure.6 identification After N.H. identi- 367, 369, 92 L.Ed. Womack, fied the detectives announced requirement aof To underscore the accompanying would be them to cause, upon probable a war- warrant issued thereafter, Shortly retrieved station. Steele in context or seizure rantless search wear, which, pro- when boots for Womack to presumed Katz v. United unlawful. duced, on the were seized the officers 507, 514, 347, 357, 19 389 U.S. description ground that matched a N.H. (1967). Thus, if warrantless 576 L.Ed.2d given of the boots worn her assailant. the produced evidence that search Metropolitan the Womack was then taken to trial, at government seeks to introduce Office, Department Offense where Police Sex government to is on the overcome burden booking to the he made several remarks by justifying the presumption illegality against used him officer that would later be bring it search based on facts that could at trial. exceptions recognized, limited within certain Roy v. requirement. to warrant Florida II. er, 491, 500, 103 1319, 1325-26, S.Ct. 460 U.S. protection The core of Fourth Amendment (1983); Roy v. 75 L.Ed.2d United “right people to secure is the be (D.C.1987). 742, 743 houses, effects, persons, papers, Departure Require- A. Warrant against seizures.” unreasonable searches and ment Const, The Amend- U.S. amend. IV. Fourth requires found that ment that a search or seizure The motions court this case had neither compliance conducted in the Constitu- the officers Womack this Coble: He had on like shorts. The different officers involved in Detective you him outside for procedure differently Counsel: Did take as to Defense identification testified show-up with those shorts? how far out of the house the took Wom- door, yes. Right Detective Coble: outside specific findings in ack. The trial court made no you your indicated on Defense Counsel: And respect except say this took to initially testimony you told him direct “outside.” something; you to about wanted to talk him right? findings regarding trial court made no Right. Detective Coble: Tyson Womack's "scuffle.” Detective Coble’s And, you to to him wanted talk Defense Counsel: point testimony this on direct examina- on varies show-up being getting involved into a about on tion and on cross. The direct examination show-up identification. point was as follows: No, to talk to I didn't want Detective Coble: just And he came was to talk to him. Prosecutor: when downstairs him—I wanted you But what did not talk he dressed? Defense Counsel: No, show-up; fully him. You took him outside for Detective Coble: he was dressed. to right? sleeping his attire. He happened to talk. He started Detective Coble: He refused Prosecutor: And tell the Court what you sleeping scuffle, and I took him back inside. after saw him in attire? you took him out- I I Defense Counsel: And when Detective Coble: told him that needed him handcuffed; side, already is that cor- step He he was outside for a minute and talk me. step attempted he did outside rect? resist then porch. That’s correct. Detective Coble: custody your happened porch? And he was Defense Counsel: Prosecutor: And what on right? stepped point; out is that Coble: Once he on Detective porch, Yes. Detective Coble: [N.H.]. he was viewed time, Certainly of the hand- Counsel: because in handcuffs at that Defense Prosecutor: He was cuff, go. not free to he was was he not? right. Detective Coble: That’s Yes. Detective Coble: added.) cross-examination, (Emphasis testified: On detective See, suspect’s warrant nor cause to e.g., believe Coolidge home. 443, 477-78, Womack had Hampshire, committed an offense the New (1971) (reaf- Therefore, time that him. handcuffed S.Ct. L.Ed.2d 564 firming find, motions required court was “searches and seizures in required per un- agree, police’s we man’s house without warrant are se reasonable”); Harris, recognized seizure of excep- Womack met a (D.C.1993). approach This has requirement tion of a warrant. roots; overriding respect historical “the jealously carefully There are few“a sanctity the home ... been em- exceptions” drawn require to the warrant origins bedded our tradition since government may ment that rely York, Republic.” Payton v. New Sanders, justifying a warrantless seizure. 573, 601, 1371, 1388, 99 S.Ct. at 2590- frequently-noted L.Ed.2d 639 This (citing Jones special protection constitutional confirms that 493, 499, setting protected privacy is the “zone of (1958)). commonly-recognized One exception clearly more defined than when bounded requirement felony warrant is a arrest physical unambiguous dimensions of public place on probable cause. individual’s home.” Id. at suggests, Constitution Supreme itself and the 1381-82.7 repeatedly recognized, Court has that such Supreme The recognized Court has thus Const, permissible. an arrest is amend. U.S. that unlike an public place, arrest person seized, (noting may IV that a not be entry warrantless into a home effect the issue, upon “and Warrаnts shall but prob suspect ‍‌‌‌‌​‌‌‌​‌​​‌​‌‌‌​​​‌​​​‌‌​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌‌‍of a po- arrest one whom the —even cause”); Watson, able v. 423 probable lice have cause to believe committed 411, 820, (1976) U.S. 96 46 S.Ct. felony illegal.8 presumptively See New —is (holding that an officer arrest a suspect could Harris, 14, 17, York v. 495 U.S. 110 S.Ct. public place upon probable in a based cause (1990). 1640, 1642-43, 109 L.Ed.2d 13 The exigent circumstances); even without see only recognized exceptions rule are 108, 854, Pugh, Gerstein v. 420 95 U.S. S.Ct. circumstances, exigent based those on includ- (1975) 43 L.Ed.2d 54 (demonstrating that emergency render aid an officer police may suspect upon prob arrest a based necessary. such is believes aid cause, only able while an on arrest based Hayden, 294, See v. 87 Warden 387 U.S. suspicion illegal). reasonable is 1642, (1967); S.Ct. 18 L.Ed.2d 782 United Booth, (D.C.1983). similarly The Court has not been v. States 455 A.2d 1351 Notably, tolerant of suspects occurring seizures announcing because cases these "respect sanctity distinguishing permissible public 7. This is In for home" ar opinion Watson, reflected in the Court’s Miller v. Unit- supra, Payton rest in the Court stated in States, 301, 1190, ed 357 U.S. 78 S.Ct. 2 L.Ed.2d "[t]o be arrested in the home involves not There, (1958). quoted, length, 1332 Court at only the invasion attendant to all arrests but also speech by “pre- Pitt William to underscore the Pay sanctity an invasion of the of the home.” cious interest” of free of individual his own home ton, 588-89, at 445 U.S. at 100 S.Ct. be warrantless searches: Reed, (quoting United 1381-82 States v. 572 F.2d poorest may cottage The man in his bid defi- 412, (2d Cir.1978)). stated The Court may ance to all the forces of the Crown. It is "[a]t core of the Fourth Amendment ... frail; shake; may may its roof wind the enter; blow concept any governmental the fundamental it; through may may storm the rain intrusion into an ... must be individual's home enter; King England cannot enter— 17, strictly circumscribed.” Id. at 582 n. his force all dares not cross threshold of omitted); (citations at S.Ct. 1377-78 see Hilliard the ruined tenement. States, 698, (D.C.1994) 307, v. United at Id. 78 S.Ct. (requiring probable exigent both cause cir closely Payton, 8. This rule is followed. justify a cumstances to warrantless and non-con struck a New law al- Court down York suspect's entry sensual into to effect an home ar circumstanсes, police, exigent lowed absent 1314, rest); Derrington United enter a home and arrest a (D.C.1985) (same), denied, 1322-23 1009, cert. probable warrant when the officers had cause 108 S.Ct. 100 L.Ed.2d 201 believe that the involved crime. 445 U.S. at 1380- stop investigative is less special protection that a brief principles are based arrest, a traditional intrusive than intrusion afforded individual therefore, home, implications proportionally needs less do not address the an officer stop. Id. at entry police. justification such a of valid consent to to effect Court thus inter v. United at 1882-83. The Robertson 88 S.Ct. (D.C.1981) (distinguishing Payton, requirement preted the “reasonableness” brief, on- permit the Fourth Amendment to U.S.App.D.C. the-street, investigato relatively Dorman unintrusive (1970) ground on upon 435 F.2d ry officers’ observa detentions based entry into cases involved nonconsensual both prospective crime. ongoing tions of home). date, Terry, not to and has Court did not for the con substituted mere reasonableness presents This case not an absence valid requirement probable for an stitutional cause home, consent to enter the but an absence Summers, Michigan arrest. See probable seize when he cause to 692, 697, 101 69 L.Ed.2d 340 down the stairs of his home to meet came (1981) (“Indeed, any ‘exception’ that could Robertson, supra, 429 A.2d officers. See [one as that “was cover a seizure intrusive entry (holding that consensual into the respects indistinguishable from important home to effect a warrantless arrest consti would threaten swal arrest’] a traditional cause). probable tutional where there general that Fourth Amendment low the rule majority support its sei seeks Womack’s on if based seizures are ‘reasonable’ Terry. A mainly relying in cases zure cause.”) (quoting Dunaway v. New probable “stop and frisk” constitutes one of York, most-recognized exceptions (1979)); Dunaway, see also L.Ed.2d requirement when a seizure is effected cause (“For 214, supra, 442 at Terry, supra, public place. in a intrusions, narrowly all defined but those 20, outset, ques 88 S.Ct. at 1879. At the I in requisite ‘balancing’ performed has been Terry analysis properly tion a whether is in the precedent of and is embodied centuries here, applied is no because there indication principle seizures are ‘reasonable’ that that the concerns which led the cause.”). supported by probable “stop Court to validate the and frisk” in investigative procedure used and its case, not In because the officers could this police-initiated progeny apply to the kind of validly place Womack under arrest when of actions that led to the search and seizure home, gov- him in his encountered Womack in his home in this case. That rely following legal to ernment needs my hesitation is not to conclusion essential to officers who have consent inference: seized, unconstitutionally that Womack was home, like private of premises be on the however, Terry analy applying even because outside, can encounter officers who sis, government to its has failed meet exception to meeting some effect a Womack, justifying its burden seizure of requirement. In other probable cause in as discussed Section C below. words, argues in government impliedly Terry Stops to this officers with consent case right private premises same signif- case both be on have the The facts liberty suspect they en- to of a generally icant and known.9 The Court held restrain handgun, Terry, which the officer removed from an officer observed three individuals which, thirty light engaged in in conduct then searched individual. Id. The officer years experience, appeared preparation to be one other two individuals and discovered other 6, robbery. After for a Id. at 88 S.Ct. at 1872. trial, sought gun. to defendants Id. Before observing outwardly suspicious conduct for sev- production gun suppress the fruit of an of the as minutes, the himself and eral stopped officer identified illegal 88 S.Ct. at 1872-73. arrest. Id. Id. at 88 S.Ct. at 1872. the men. claimed that The defendants in case questions, suspects failed to answer his When officer, grabbing and frisk- in the first individual grabbed patted- one the officer individual him, seized the individual with neither clothing gun of a or down his outer in search Id. nor cause. warrant pat-down yielded weapon. fact other Id. The Martinez-Fuerte, counter there as would if that United States 428 U.S. in public place. This court has never 556-57 n. n. (1976) question way, resolved the framed in (rejecting, this 49 L.Ed.2d 1116 may may legally it posi- be a correct compulsory stops context of at border check- Nevertheless, tion.10 gov- in order for the points designed illegal immigration, stem rely legal assumption, ernment to means, claim that defendant’s other such as does, agreed it it must be the facts prohibiting employers illegal hiring im- presented stringent trial court meet migrants, accomplish would also the same outweighing presumption factual criteria legislative goal impheating person enjoys heightened his home Amendment). Rather, Fourth the Court has protection. constitutional explained further the Fourth Amend- must use the least intrusive means reason- yardstick ment’s reasonableness also able of the facts before the officers. employed evaluating should be whether used the means as least intrusive explained Royer, supra: As the Court perceived by them. “The scope permitted of the intrusion will simply whether some other alternative was vary particular some extent available, but whether the acted unrea- facts and circumstances of each case. This sonably failing recognize pursue toor much, however, investigative is clear: an Sharpe, it.” United States temporary detention must be last 84 L.Ed.2d 605 longer necessary than is to effectuate the

purpose stop.11 Similarly, the inves- tigative employed methods should be the justify compulsory Courts that detentions least intrusive means available see, public places by analogy Terry, e.g., verify dispel suspicion the officer’s Royer, supra, 460 S.Ct. at period a short of time. It State’s (Brennan, J., (describing concurring) burden to demonstrate that the seizure investigatory “Terry-type as a ‘in- detention justify seeks on the basis a reason- ”); Alston, vestigative stop’ suspicion sufficiently able limited (D.D.C.1993) (characterizing F.Supp. scope satisfy and duration to the conditions police stop “Ten-y-like”), ear follow the investigative anof seizure. Terry, explicitly rationale of relies (inter- exigencies 460 U.S. at upon 103 S.Ct. at 1325-26 the inherent of “on-the- omitted). subsequent nal In Terry, supra, citations cases encounters. 392 street” U.S. not, 12, majority Court (stating has as the at 88 S.Ct. at 1875 that “we at-, rejected suggests, require- approach ante the issues in this case mindful of police employ judicial ment that the least intru- of the in con- limitations function trolling investigatory myriad daily sive means in the context of an in situations which Compare Royer, supra, policemen detention.12 460 and confront each citizens other ” 500, judicial opinion 103 at 1325-26 and “[n]o with the on the street that case, variety upon by majority, comprehend protean relied of earlier can of the proposition. challenged think it is not 10.I that a doubtful We 11. Womack has the duration of agree majori- seizure pre- the ty in this case. I have stated law that "Fourth Amendment appears relatively that short. sumes that warrantless searches seizures is at is the of the What handcuffing issue reasonableness exigent a inside home unreasonable absent of the con- in circumstances States, v. circumstances.” Oliver United fronting police. 1159, (D.C.1995) (defining “exigent A.2d situation, pursuit” as a circumstances” "hot like- by majority 12. I note also that the cases cited evidence, ly protection per- of destruction of support abandoning requirement for However, residence). despite sons inside "least intrusive means" involved on-the-street or dissent, my majority's do not criticism X be- public place police suspect encounters where the briefed, lieve this narrow has been ongoing situations crime. those there both case, or needs to be resolved in this because the and, privacy a lessened interest in because not, event, any met the re- spaces fast-moving open involving occur in situa- Terry. quirements of police, great- tions outside of control police's vigilance er need for action. conduct ”) added); concluding police flee (emphasis street encounter 1053, States, reasonable. restraining the 392 A.2d Bridges v. United Place, (D.C.1978) See, (noting e.g., vali- v. States 1055-56 United “‘on-the-seene’ 696, 704, 103 limited detention for 77 L.Ed.2d dated Dunaway, investigation”); (1983) see also for seizures (noting the need 210, (stating that 99 S.Ct. at 2255 442 U.S. of the suspected drug “[b]ecause couriers “Terry ... a limited on-the-street involved activity nature” inherently transient States, weapons”); Harris v. United for frisk affirming of conviction airports; reversal (discuss- (D.C.1978) A.2d 1018-19 unreasonably ground that encounters”); Coo- ing the nature “street Williams, broad); supra, 407 v. Adams States, A.2d 556-57 per v. United 1922-23; Brown v. 145-46, 92 S.Ct. at (D.C.1977) (observing Terry’s, change (D.C. States, 546 A.2d United encounters” relating to “street law 1988) suspects were (noting stopped detentions”). recog- regularly Courts “street speed, attempting to drive off at excessive police would be that the function nize typically taken “actions consistent with undermined, pro- our confidence in their seeking themselves to secrete individuals compromised, if not able officers were tection scene”); States leaving a United crime while investigation adequate where to conduct (not (D.C.1986) Bennett, 414, 414 514 A.2d See, activity actively indicated. criminal when ar suspects “bolted” Williams, 143, 145- e.g., Adams v. States, rived); 375 A.2d Tobias United 1921, 1922-23, 32 L.Ed.2d (D.C.1977) (noting suspect ran (1972) stop conducting Terry (stating that himself); Hin after officer identified work”); “may good be the essence of States, U.S.App.D.C. v. United ton (D.C.1979) M.M., 698, 700 In re 407 A.2d (1969) (noting 424 F.2d (“[W]e persuaded that officer are not of his search after “bolted” simply shrugged his should have shoulders contraband); see also companion revealed appellees proceed on and allowed 1082, 1085 649 A.2d Powell v. United way.”); Davis v. United curiam) Sullivan, (D.C.1994) (opinion of (per (D.C.1971); King see v. United also J.) evidence of (reversing conviction where (D.C.1988); Harris help justify attempted flight inadequate to 1019; States, supra, 382 A.2d at Terry stop). danger Cooper, at 557. The police, society’s assessing interest mind point One bear crime, suspected diligent investigation aof justifies sei Terry fairly Womack’s whether provide permitting foundation for present true zure is that this ease does investigate suspected stop individuals instant case The officers stop. officers, number crime, offenses where investigating completed rather reasons, might get chance. second activity observing ongoing criminal than Williams, 145- 407 at v. U.S. Adams planning a still in the trying prevent to crime 1922-23; 46, at v. United 986, 92 S.Ct. T.T.C., 989 stage. In re See Offutt (D.C.1987) 936, 2n. 938 (“The (D.C.1990) to Terry exception the A.2d 38 (citing v. United 360 Lawson to cir requirement is limited probable cause (D.C.1976) opportuni- lost (seeking to avoid observes police officer “where a cumstances investigation), citations additional ties for leads him unusual conduct which omitted); supra, 470 U.S. at Sharpe, see also experience that of his conclude 1573-77; 682-88, 105 at S.Ct. afoot.’”) (quoting activity may be criminal 675, 226, 221, Hensley, 469 U.S. S.Ct. v. 30, at at 88 S.Ct. Terry, supra, 392 U.S. (1985) 678-79, (observing that 83 L.Ed.2d omitted). 1884) Although the Su (emphasis mov- may constitutionally apprehend may de has that preme noted Court possess a reason- ing if the officers vehicles stop Terry-like a fleeing suspect in tain a activity). suspicion of criminal able suspected of a com individual is when the sug crime, holding, the Court in so pleted upholding invari- Teiry-like seizures Cases government on suspect gested the burden ably rely possibility justify likely completed the detention would present increase in tion of a did crime not absence exigencies interest thwart- ongoing inherent in investigating ing ongoing Hensley, supra, crime; crime. prospective without additional ar- 228-29, 680-81; at 105 S.Ct. at see also exigencies, stop New ticulated of defendant’s car Spencer, York v. 84 N.Y.2d 622 N.Y.S.2d illegal). was Supreme 646 N.E.2d 785 It appear would thus that the reasonable suggested Court also that where officers scope Terry-like of a investigatory deten crime, are investigating past detention for tion —in its level of be intrusion —must more purpose obtaining evidence is not exigencies narrow facts when similar to likely destroyed time —such as fin- present. those in the case are not gerprint samples (or, by analogy, obvious an Although exigencies of such confluence complainant) identification rarely —is impossible imagine, home is

justifiable. Mississippi Dаvis v. 394 U.S. presence surely in the home is the rare ex 721, 727, 1394, 1397-98, S.Ct. 22 L.Ed.2d Florida, ception Hayes v. rule.13 (1969); Hensley, supra, see also 469 U.S. 3, 105 1643, 1647 817 n. S.Ct. n. (specifically 105 S.Ct. at 680-81 de- (1985) (noting the absence clining to decide undecided “wheth- exigent of asserted circumstances necessitat Terry stops investigate crimes, er past all ing warrantless removal from his serious, permitted”). however are reversing home in conviction on Fourth The Fourth Amendment balances the level grounds). fact, Amendment in the few in police intrusion against ‍‌‌‌‌​‌‌‌​‌​​‌​‌‌‌​​​‌​​​‌‌​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌‌‍encounter eases in detained “importance of governmental interests private place investigation, home or in a alleged justify Hensley, the intrusion.” location the seizure has been evidence 680; 469 U.S. at scope officers exceeded the aof States, supra, Harris v. United 382 A.2d at Terry stop.14 Thus, governmental 1018. if the interest Heretofore, this exigent

less court never identified investigating when officers crime, scope completed investigatory of an permissible reasonable de- then the intru- place suspect’s sion tention which takes during ¡Terry-like stop completed for a government any home. ongo- crime is more did not cite limited than that for case, jurisdiction, from Hensley, supra, upholding crime. under 469 U.S. at 680; Spencer, supra, investigatory S.Ct. at see also detention which took 486-87, Indeed, 788-89; N.Y.S.2d place suspect’s 646 N.E.2d at within home. when Hubbard, State argument, 861 P.2d 1054-55 asked at oral indi- (Utah App.1993) (concluding investiga- cated that it did not know of a on case Although recognized private ruling Court has in a home in that the officers had danger "[t]he risk of scope Terry stop. context of an exceeded the of a U.S. at as, great greater arrest in the home is Similarly, Hayes if not than, Florida, 811, 814-18, it is an on-the-street or roadside investi- encounter,” Buie, gatory 325, 333, Maryland (1985), singled 84 L.Ed.2d 705 108 L.Ed.2d 276 principal suspect out an individual as the before (1990), this observation made in the context confronting porch individual of his protective during accompa- of a search an arrest home. The officers then removed the individual by probable scope nied The reasonable po transported that home him the cause.. police activity upon probable based cause is far questioning fingerprinting. lice station for upon broader than action based reason- upon Id. The Court relied the of the removal case, suspicion. able In there this because was suspect during investigatory from his home the cause, probable no the the bur- finding detention in that the officers had effected showing justified Terry- den of a the facts that illegal an arrest. Id. type in seizure Womack’s home. States, (D.C. In United Keeter v. A.2d 903 1993), Dunaway, supra, police 14. In an removed indi- this court reversed a conviction Fourth on neighbor’s grounds suspect vidual from home to him at Amendment where was removed upon station. The Court relied from his and taken the bed station for investigatory suspicion the questioning fact that the occurred detention on reasonable alone. case) (like this in police, the officers majority’s independent re who The point.15 consent, by had cases, premises devel- cited ante at two were search uncovered government sought person oped in the note which reason believe private dealing in a home under committed an justify a detention had whom support and, These do the Terry.16 cases from a “noticeable robbery armed in this In Hill v. majority’s conclusion case. de- which was later pocket in his bulge” (D.C.1995), United gun,” of a bearing “the outline as scribed very proposi assumed the appear we have Al- Id. at 841. to be armed. continued may is consti tion I claim correct: what in Brooks does though Eighth the Circuit Terry out on the proper tute a detention to an appear applied Terry standards illegal may well be if it occurs street search, strictly po- the scrutinized in-home individual is Hill held that where an home. police’s articulat- in of the lice’s conduct is object suspicion, the reasonable very justification applying the fact-based ed — party at the home of another where found factu- scrutiny lacking I here. The believe interest, privacy no “the suspect the had in situation al the differences between any or search of the legality of detention us are strik- and the situation before Brooks judged appellant’s person within would ‘be view, and, my in in determinative terms citizen the context of confrontation between First, police’s actions. legality the authority public in a enforcement law the patdown; not use Brooks involved a ” standard, i.e., by place,’ because infra, the As level handcuffs. discussed place (citing Id. take in his home. it did not handcuffing is so involved intrusiveness McNeal, F.2d requires par- that it with arrests associated (6th denied, Cir.), 1074 — 76 cert. justification temporary in a detention. ticular (1992)). 3039,120 1223, 112 L.Ed.2d See Hood United holding clearly implied its court (D.C.1995) (noting that 1084-85 interest in the suspect privacy had had a specific as as the search can be broad premises, properly be detention could it). Second, justify even exigencies that judged See also under standards. committed crime that had been though the McNeal, (upholding F.2d here, one, was, the court a violent as in a equivalent Terry stop public as of a critical the officers deemed it Brooks place protective for con a “limited search “reasonable, suspicion that particularized weapons” suspect apart in an cealed on Id. 842. suspect armed.” [was still] expectation had no ment which the supported the officers’ suspicion was This interest, explicitly privacy possessory bulge in sus- testimony regarding the tending facts the officers testified to because case, was pect’s the instant there pocket. In “armed and to show that was suspicion articulated particularized omitted). dangerous”) presently (quotations got when he that Womack was armed came the stairs his bed and down majority cites States v. out from also (8th them, fact Cir.1993), part as Brooks, evidenced meet 2 F.3d — Hood, su- denied, frisk him. See U.S. -, did not cert. (requiring (1994), pra, A.2d at 1084 upheld a limit which L.Ed.2d concluding “objective justification for provide suspect’s ed in a home after “patdown” handcuffing involving is that a seizure Attempting law which to address the lack case government's Terry deten- case support brief for to those circumstances similar under home, majority that Wom- being proposition, conducted. Prophet cites for different suspect] might [the that be armed and dan- was underlying unwarranted due nature of ”) added). gerous at the time (emphasis crime present and number of officers on the scene). compelling regard One consideration in Terry justify

when can in-home jurisprudence, seizures is Fourth Amendment and Terry sense, Court —and almost all common courts do not view the use of hand following Terry upholding rationale in cuffs as an de intrusion minimis. United clearly Bautista, (9th 1286, intended that a States v. 684 F.2d conduct — stop Cir.1982), denied, be in fact stop, a characterization 1211, that cert. 459 U.S. fairly (1983) (“handcuff not 1206, could the actions of describe 75 L.Ed.2d 447 encountering person who, in his home substantially until aggravates the intrusive police, apparently the arrival of the ness of an investigatory otherwise routine asleep in his part bed. See Keeter v. United detention and is of typical States, (D.C.1993). 903, stop”). For This has court never allowed hand example, justify compulsory place cases that cuffing Terry stop. as a incident to a routine complainant’s in a manacled, ment view for show-up To be especially in one’s home and procedure always identification family, in front humiliating con of one’s is a expe stops See, rience, suspects cerned of surely street. stigma one carries the M.E.B., e.g., (D.C.1994); guilt. Wheeler, re Washington 638 A.2d 1123 of See King, supra, 357; M.M., 550 A.2d at In re Wash.2d P.2d short, supra, Thus, 407 A.2d 698. In although the Fourth use handcuffs of is governmental Amendment balancing legally arrests, of restricted this court privacy in Terry requires interests struck carefully government’s scrutinized the scope of proffered justification the detention case be when the use place narrow because it during took handcuffs investigative Womack’s detention. See, M.E.B., for purpose investigating home e.g., a com In re 638 A.2d pleted crime. (finding 1127-28 suрported that facts the offi suspects cers’ fear necessitating use 2. Handcuffs handcuffs); Allison v. United Universally, recognized courts have (D.C.1993) (sustaining A.2d 590 use of hand- substantially the use of handcuffs increases cuffs without gov- cause where the Terry stop the intrusiveness of a and must be ernment established at- independently justified. United See States v. tempted escape); Prophet v. United Melendez-Garcia, (10th 28 F.3d (D.C.1992) 1089-90 Cir.1994) (“[T]he use of ... handcuffs ... (assuming, holding, “handcuffing greater intrusion.”); a far level of turned an stop otherwise valid into an Vizo, (9th States Del 918 F.2d 824-25 arrest,” concluding that the arrest was Cir.1990) officers, (finding that armed or cause). supported by probable Thus, where dering suspect ground and handcuffing used, handcuffs govern- have been and the him, scope Terry stop exceeded the distinguish ment seeks to investigatory arrested defendant where defendant was arrest, detention heavy from an burden compliant only suspected drug-traf justification properly for that use lies ficking); Delgadillo-Velas United States v. government. Royer, See (9th Cir.1988) quez, 856 F.2d 1295-96 (requiring 1325-26 S.Ct. at (holding that the use of handcuffs was not demonstrate that it used the justified circumstances); under the Craw cf. effecting least intrusive means an investi- v. United ford detention). gative (D.C.1977) (reaffirming that “detention must B. The De Arrest Facto limited”); properly Mayer, Oliveira v. (2nd Cir.1994), F.3d cert. Even a search pur- de or seizure carried out —nied, -, exception suant proper to a to the warrant (1995) (in § requirement 1983 action illegal when the .search arrest, unlawful seizure exceeds the reasonable intrusion nec- degree essary amounted to arrest because of force under Dunaway, the circumstances.

625 elicited”). problem is A 216, ting be second 2258-59. will supra, 99 S.Ct. at 442 U.S. at subjective scope intent it the officers’ that exceeds a reasonable that renders A detention an deten being in the deemed of the issue whether will determinative result Florida, supra, at intrusive be Hayes v. 470 U.S. an arrest. The tion constitutes arrest. 816, (adhering at to the view is not made police 105 S.Ct. 1647 in this case of the havior “are suffi- investigative that seizures in constitutionally certain because the permissible traditional ciently arrest, like arrests to invoke the was not to police tent constitutionally may be rule arrests that suspicion merely dispel or confirm their Keeter, cause”); su- only probable on made As the rapist. Court that Womack was (holding pra, A.2d at that evidence 635 904 Summers, supra, Michigan emphasized in v. from suppressed resulted must be because permitted the detention a ease which arrest”); an see amounted to [that] a “seizure on pending the execution occupant of a house 868, 872- Gayden, v. warrant, “of a valid premises search (D.C.1985); Offutt, supra, 534 74 see also permitting tempo importance” prime States, v. United (citing A.2d at 938 Davis the fact that rary detention that case was (D.C.1985); 242, 498 245 States A.2d United magistrate,” rather detached neutral and “[a] 294-95, White, 648 U.S.App.D.C. v. 208 goal officer whose than a law-enforcement denied, 924, 102 29, 34-35, 454 F.2d cert. U.S. apprehend develop sus was to evidence (1981)); Thomp 233 70 L.Ed.2d probable cause believe pects, “had found States, 636, 638-39 kins v. United being violated the law was (D.C.1969). 452 at 101 S.Ct. at house.” Notwithstanding that Womack’s seizure the distinction It is uncontroverted that arrest, objective bore all the indicia Terry stops not does between arrests police majority relies on the fact that subjective intent of the offi depend on the go let identifica would have Womack (revers Keeter, supra, 635 A.2d at 906 cers. tion other procedure had not borne fruit —in supported by de evidence ing conviction as words, effecting “a tem seizure even from unconstitutional rived detention, porary designed to until last suspicion had articulable where preliminary investigation generate[d] either not un that he was repeatedly told probable cause or the release resulted] arrest) Gayden, supra, 492 A.2d (citing der A.2d suspect.” supra, In re 638 872); A.2d at 638 Thompkins, 251 at problem quoted at ante at 610. One (“It point an arrest is true that the at which justifying logic approach with the of this simply when the controlled occurs initial seizures —that would it.”) (citations arresting announces officer did not released Womack if cause omitted); Mississippi, supra, Davis see justifies police develop procedure that it —is (rejecting 1397 89 S.Ct. at 394 U.S. logic on its result. It is a based investigatory pur claim that seizures for explicitly by the Court held justification from poses differ in their needed Amend- incompatible with the Fourth stage”); “accusatory but see at the seizures Re, Di United 332 U.S. ment. See States (relying Majority Opinion at 610 & note 228-29, L.Ed. 210 subjective estimate officer’s (1948); Brown v. placed under arrest until Womack was (D.C.1991); Bailey v. United identified). Womack’s had been F.2d 305 U.S.App.D.C. seizure, perspective of from the viewed Summers, (1967); Michigan v. su see also circumstances, person reasonable 696-97, 101 pra, S.Ct. at indistinguishable arrest: likely Dunaway, supra, 442 (citing police, he direction of the awakened at the 2256-57); Johnson United out immediately and forced handcuffed 10, 16-17, street, appar not an side and onto the M.E.B., (1947); A.2d at L.Ed. get chance to dressed. ent (conceding impropriety the clear n. always maintained Supreme Court has interroga- seizing persons purposes “for permissible very premise of the hopes something tion incrimina- Terry stop is that substantially it is “so less part relied in upon the fact that the officers intrusive than arrests that general the rule appellant frisked the before him. requiring probable to make cause Fourth Id. Amendment ‘seizures’ reasonable could be reasoning applied in Similar replaced by Dunaway, balancing test.” Bautista, supra. on court relied the 442 U.S. at 99 S.Ct. at 2255 testimony identify officer’s that case to the added). (emphasis good A indicator of many justified facts of the use hand- whether a seizure was an or a arrest cuffs: stop part must least in be whether the officers constrained themselves the level of robbery At that time bank had the intrusion effected before cause de- they been committed and I believed re In veloped. 638 A.2d at possibly suspects were the also and be- (“In short, detainee, handcuffing the cause I observed tracks on their arms detention, length detention, place like related to use narcotics also it was аnd considerations, and simply other one fac- safety precaution. for I officer as a knew tor, many, among judge that the trial must go I going was to the front door of a weighing consider in whether detention for verify story and I’d residence to be investigation crossed the line into the realm leaving my partner, fellow officer John arrest.”). In this case is no there evidence Gaspar, suspects. alone with the And be- suggests police on the record that suspects appeared extremely cause the anything did different than restrained suspect kept pacing nervous and Bautista doing from anything themselves looking, turning back and and forth his normally would have the done in course of an thinking head back forth as if and he was arrest. running. about on In re majority heavily relies Id. at 1288. The court the testimo credited M.E.B., supra, For I 1123. reasons ny of the handcuff officer and found that the sought discussion, In identify have in this suspects of the “was not unreasonable.” re M.E.B. presented circumstances so differ- Id. at 1289. The two suspects to be left were points ent on presented critical from those officer, suspects with the one would be the application present here that analy- its car, back appeared to be value, questionable sis is any. if it is of In “nervous;” thus, government’s jus the facts M.E.B., In re police the learned a radio Id. The officers’ de tified the intrusion. matching transmission an individual the scription surrounding of the circumstances appellant’s description suspected was of a decision in arrest was also central to the just homicide that had occurred over one Florida, (Fla. Reynolds 592 So.2d Id. hour stopped earlier. at 1124. Police 1992). case, justified In that court appellant street, companion and his upon day use of based the time of handcuffs “a location consistent with the direction re- (“a (“night”), neighborhood location portedly taken when shooter he left high known for a incidence of cocaine traf the scene.” Id. at 1134. The frisked ficking use”), experi specific officers’ suspects, then handcuffed them order (“[a]n drug-related ence officer arrests transport them ten to fifteen blocks for an testified that in such she been hurt procedure. Id. identification at 1125. Given situation”) finally, underlying na the fact that there were two officers (cocaine distribution). Id. ture of the crime detaining suspects, the two location on a importantly, spe at 1085-86. court Most street, public and the officer’s articulation of cifically was found that use handcuffs subjective suspects fear that the homicide proper when facts demonstrated reason advantage traveling would actually to believe that back provided pro- of a car which no Id. dangerous. armed officers, upheld tection for the the court case, Id. case, present In use of handcuffs. at least three replete present justifying the record with facts when Womack was handcuffed. intrusion; fact, justifies stops by explicitly Although court the law crime). presented to a concern that the Once reference armed,17 justifying stop, frisked this court currently officer some evidence his of the totali- Womack before he was removed from that evidence considers yard, ty to the front where additional Anderson Unit- home of the circumstances. (D.C.1995) offi- waiting cars. No officers were ed safety thought White, cer articulated fear (quoting Alabama v. Hensley, 2416, su- might 330, 2412, that See run. 110 110 S.Ct. 234-35,

pra, (1990)). 469 U.S. at 105 S.Ct. at 683-84 may justify ... “Factors that testimony (relying on officers’ that the sus- use of force include the time escalated large to be pect had been at and was believed area, an day, ‘high-crime’ nature of the armed). currently There facts might tips persons that informant’s record in this case from which could be armed, movements, flight or furtive hand that even considered inferred attempted flight person sought by to be necessary precau- were whether handcuffs a Laing, States v. 281 detained.” United investigatory effecting tion in this detention. 266, 271, 281, U.S.App.D.C. 889 F.2d 286 States, (1989); v. also United see Cousart C. The Government’s Burden banc) (stat- (D.C.1992) (en 96, 100 618 A.2d always government bears the burden ing that the fact that confrontatiоn occurred only proving that the circumstances high factor in a crime area was one to con particular recognized case came within in determining sider whether the used exception requirement, to the warrant Sand circumstances) the least restrictive means under ers, supra, 442 at 99 at U.S. S.Ct. denied, 1042, t. 507 113 U.S. cer (citing Jeffers, v. 342 United States (1993); 1878, 123 L.Ed.2d 496 Minnick S.Ct. 51, 48, 59 U.S. 96 L.Ed. (D.C.1992) A.2d v. United 607 519 (1951)), proving that but also of the subse relying upon (partially officer’s statement was, quent fact, search or seizure reason “high that confrontation occurred in narcot able under the circumstances. Id. Even search); Terry validating ics area” in United justifying where the a true (9th 701, Taylor, v. F.2d Cir. States crime, Terry stop for ongoing an is the “[i]t 1983) (justifying during use of handcuffs sei State’s burden to demonstrate that the keep stop where refused justify zure it of a seeks to on the basis air furtive hands in the and made move suspicion sufficiently was limited reasonable ments); Purry, v. satisfy scope duration to the condi 142, 217, U.S.App.D.C. 545 F.2d investigative Royer, tions of an seizure.” (1976) (concluding that an officer’s decision 500, 103 1326; at 460 U.S. at S.Ct. see part as of an to handcuff defendant investi Mayes also United A.2d because, justified gatory when detention was (D.C.1995) (“The prosecution thus area of an armed rob contacted within the required prove by a preponderance of the occurred, robbery bery minutes after stop that firisk evidence both away attempted pull from the defendant constitutionally permissible.”). officer). justi- dispositive No one factor is specifici- court stated that lack of This States v. fying the use force. See United ty evidentiary support or lack of for 873, 885-86, Brignoni-Ponce, 422 intrusion, during a pat-down, even a limited (1975) 2574, 2582-83, 45 L.Ed.2d 607 stop illegal. will render that intrusion investigatory stops by (invalidating border (holding Roy, supra, at 744 See factor). single patrol officers based on illegal investigative stop of individuals five safety suspicion for the upon when an inarticulable Valid concern based reading a fair apparent in a must be one individual been involved crime, Summers, See, e.g., Michigan ‍‌‌‌‌​‌‌‌​‌​​‌​‌‌‌​​​‌​​​‌‌​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌‌‍fronting person suspected supra, 452 of a sеrious 2591-92; 101 S.Ct. at Cousart take should to ask one the risk banc) (en (quot- denied, ”), cert. answer be bullet' Terry, Harlan’s concurrence Justice 123 L.Ed.2d " ‘[tjhere is no U.S. at officer, forcibly why rightfully con- reason cuffs, evidence adduced before trial court. See ruled that Womack ar- (holding id. 95 S.Ct. at 2579-80 show-up rested after identification. That prior stop, must officer be able prompt failure alone should court identify “‘specific and articulable facts least to remand the case for additional find- which, together taken rational infer- ings regarding the police’s basis of the al- facts, reasonably ences from those warrant’ a leged need to handcuff a under the safety belief that his or that of others is in they appeared circumstances offi- danger”) (quoting Terry, supra, 392 U.S. at cers. M.M., 1880); 88 S.Ct. at In re majority identify any does not facts (noting at 701 officer testified articulated found safety frisk); effecting Terry concern motions court as the basis for justifying the Crawford, supra, 369 A.2d at 598-601 & n. 6 any support use of handcuffs. Without (quoting police testimony officers be- record, majority the assumes the that armed). suspect lieved that the might be police officers were in a particularly danger- police an ongoing officers must have they ous situation because were on Womack’s suspect that belief whom have en- turf,” acquainted “home were not with Wom- countered is both potentially armed and dan- family, ack or his and “had no idea where Powell, gerous. supra, 649 A.2d at 1084 be, gun or whether there were other (D.C.1994) (quoting Terry, supra, 392 U.S. at individuals on scene.” See ante at 610- 1879-80). event, any police S.Ct. at In majority 611. The further fill has decided to testimony describing perceived necessity gaps government’s in presentation in for handcuffs has been essential where the findings because, and the court’s in the ma- objective do not facts evidence a clear need jority’s opinion, the fact were Bautista, for supra, handcuffs. 684 F.2d at investigating a rape burglary violent and (relying on officer’s restatement of facts made it that it dangerous “obvious” would be justifying upholding usе of force in the use of try to deal with Womack without hand- during Terry stop); handcuffs but see Ma- cuffs. id. at 614. In doing, See so jority Opinion (noting support at 611 role, majority has exceeded its deducing facts or testimony in reference that court, were never elicited the trial officers this case could “foresee relieving government legal and thus of its suspected what a man rape of armed and proper burden. Our role is to review kidnapping might try appre- to do avoid facts of record and all reasonable inferences perspective, hension. From their even a sustaining therefrom in favor of the trial appear modest risk would alto- ruling. It is court’s not our role to boost gether unacceptable”). govern- It is with Rather, government’s case. gov- because the burden in ment’s mind that court should this ernment that it knows bears the burden to consider whether the record it can before exception adequately require- meet an to the warrant support the trial failure to court’s ment, opportunity a fair and had to do suppress contested so evidence. court, govern- “[t]he the trial fact that the Reviewing D. The Role Court of present ment failed to more evidence than elementary reviewing It is that a court is only suggests did to us that the fact, findings bound the lower court’s of its exhausted evidence favorable to should engage speculative in its own position.” Stewart United fact-finding. Peay v. United (D.C.1995). 857, 868 1318, 1320(D.C.1991)(en banc) (citing Nixon (D.C. Ironically pre- v. United Court 1979)). stressing persons cedent This court is reverse the home bound to deci denying Fourth pro- sions deserve maximum Amendment suppress motions to the evi tection, major justification presented support majority dence one adequately does not motions findings court’s of fact and con advances for Womack in this Powell, clusions of law. A.2d at ease is that the officers encountered him case, case, 1088-90. this the motions court his home. In this the officers chose necessity encounter; finding made as to the for hand- the time circumstances of forced officers often at Womack’s home fact the number circum- squad split-second judgments and the number cars make —in Compare tense, uncertain, present preparation. rapidly this reflects stances that are 234-36, Hensley, supra, that is evolving the amount force —about 680-81, (affirming conviction S.Ct. at necessary particular situation.” Gra- admittedly wanted 396-97, where Connor, ham v. time, for was for- questioning (1989) some 1865, 1872, 104 L.Ed.2d 443 tuitously driving spotted through town with a far quoted ante at 607. This would be felon; explicitly another known court relied police officers had testi- case if the different inability police’s prior to locate the having experienced court to fied trial Davis, suspect) supra, 394 at 727- uncertainty, having actu- or to tension (reversing conviction ally thought determined that the about and alleged Terry stop where effected used on Womack amount of force fingerprint samples, obtain necessary. is no indication There procedure “need not constituted that the use record the officers believed at an inconvenient unexpectedly come intrusive means handcuffs was least time”); Hensley, see also Fur- under the circumstances. reasonable (noting that “offi- ther, that the situa- I note that extent making stop investigate past cers was, fact, one, “rapidly evolving” tion may range opportuni- crimes have wider attributable neither such circumstances are ty the and to choose time circumstances Womack, to to who had been chance nor stop”). Particularly the where the officers offi- asleep, attributable to the suspect to look for a in his have chosen having employed investigative tech- cers’ warrant, house, obtaining first a this without nique and seizure in confrontation —direct court should hesitate to allow the location of cause, re- the absence of without Terry “stop” in home a the so-called obtaining investigation to course further that the factual basis demonstrate en- traditionally warrant —that courts have accompanied by Terry-likе counter was exi- unconstitutional, or, to be to be con- deemed gencies. stitutional, necessarily based articulated going provide justifica- If is the justification. factual home, for a in the this court tion understand, in It is difficult require always should has under Ter- —as of officers the circumstances number ry specific about the facts —identification Womack, why handcuffs their encounter with suspect’s conduct and articulated concerns necessary or reasonable. would be considered setting, required about conceivably might appre- feel While officers engage presumptively unlawful con- home, confronting suspect in his hensive The that in duct. fact the seizure occurred in case can offer no this home this case a factor that Womack’s so, explanation why, if that as to were undermines, helps justify, rather than hand- did not frisk Womack before officers police’s under the circum- use of handcuffs except it was clear that cuffing that presented ap- this case. Womack stances him — In re Womack not armed. See record, pears, from re- this have part (relying markably sedentary returning suspect, home police followed “undisputed that [fact] rape go to bed. When after armed appel- practice frisked both their usual grandmother, Wom- called downstairs accomplice] [his lant and before obeyed. dutifully The facts of case ack stop); upholding valid handcuffed” to the half-mile vehic- stand stark contrast Powell, (reversing supra, 649 A.2d at who had been seen pursuit ular despite trial Terry where under conviction “hastily” entering leaving a convenience reasonably, officers acted finding court’s that employ Court to store led safety, they their “if feared for the officers language quoted out context — suggesting in manner certainly did not act majority in this case—that calculus of “[t]he harm”). Indeed, facts in no apprehension of embody must allowance for reasonableness crime, more, this record should lead to believe the nature of cаn might currently validate an be armed. otherwise unlawful seizure. See See Keeter, Anderson, supra, (reversing A.2d at A.2d at (citing cases, Barnes, grounds conviction on including Fourth Amendment United States v. where detained on (D.C.1985); reasonable Peay, A.2d 1040 supra, 597 A.2d homicide). suspicion that 1318; he had committed Duhart v. United 589 A.2d 895 underlying possi- Insofar as the crime could (D.C.1991); Curtis United bly have led officers to fear for (D.C.1975)); A.2d 469 Crowder v. United safety, ensuing facts the record should (D.C.1977). No substantially necessity obviated for having safety; officer alluded to feared for his Illinois, this intrusion. Ybarra v. See traditionally absence of such evidence 342-43, led this court to trial court reverse decisions (1979) (finding that the actions Powell, suppress. Compare not to suspect during stop of the did not even (reversing 649 A.2d at 1084-85 conviction justify weapons); Terry, supra, a frisk for only where officer had testified one fact (stating 392 U.S. at at 1884 relied on effecting stop was the weapons justified even a limited frisk suspect’s alley, turn into an but trial court only “nothing stages when in the initial went further and characterized turn as “un- dispel encounter serves to [the officer’s] rea- usual”) Barnes, supra, 496 A.2d at 1041 safety”). sonable fear for his own or others’ (validating Terry where frisk officer had fac- officers testified were allowed suspect might tual reason to believe opposition into the house with little armed). grandmother. grandmother Womack’s sum, danger with no indicia of Womack, appeared “sleep- summoned who officers, flee, attempt and no evidence consisting attire” of shorts and a t- testimony handcuffs, supporting the use of questioning shirt. Before Womack and with- majority precisely engages type him, frisking out handcuffed him musing after-the-fact armchair criticizes: removed him from home. There is justify de novo fact-finding reasoning its him, no evidence that before handcuffed government prove where the has failed to its police the thought appeared that Womack See, (ob- e.g., Majority Opinion case. at nervous, any resistance, mounted or made serving support in the record that any Majority threats to оfficers. the Cf. persons the officers feared that other on the Opinion (correctly noting at 609 “might scene to thwart endeavor [Womack’s] routinely “[e]ourts have held the use of hand- Powell, apprehension”); supra, but see in cuffs the context to be reasonable (reversing A.2d at conviction where suspects attempted situations where to resist trial court’s consideration furtive police, gestures, ignored police made furtive record). movements supported was not commands, flee, attempted to or otherwise example, majority For notes that it was (citations omitted). police inquiry”) frustrated police reasonable for to handcuff Wom- any It is difficult to conceive confronta- outside, ack taking before him because it tion and a between an officer of a escape would have been easier from the robbery, homicide, rape, violent kid- crime— porch. porch There is no evidence that the napping handcuffing would not be —where provided path would have better to an majority’s reasonable rule. It is with- escape allegedly contemplated by Womack; out police officers must be al- fact, shoeless, Womack was and there necessary protect lowed to steps take police were several ears front of the home. However, themselves. the use of intru- Stripped majority’s unsupported hinge upon sive measure must more than the rationalizations, justification post-hoc the one underlying nature of the crime. The bare majority supported advanced that is assertion that the circumstances described majority the record is that the officers were opinion inves- “could lead a Oliver, tigating prudent a violent crime. to believe that ... officer Cf. I 656 A.2d at 1167 n. cannot believe that most reasonable course of action would be to 15. (1984); Womack,” L.Ed.2d 377 104 S.Ct. handcuff does not establish Illinois, 422 U.S. use of hand- particular factual basis for the Brown (1975); York v. I New case. believe that cuffs this 18-20, 110 standard, Harris, requiring governmеnt state 1643-44; Wong use of particular necessitating facts hand- Sun v. United cuffs, As met in this case. Justice 9 L.Ed.2d 441 was not Royer, supra, must regarding “[w]e Brennan stated which evidence The current record inadequate allow our for law enforce- zeal effective the initial seizure is derived peril us to to our free ment blind court to make that determination. for this case, yet society disregard Thus, of the Fourth and not that lies” remand this I would multiple Amendment. U.S. at convic or affirm Womack’s reverse (Brennan, J., (quoting concurring) Cool- tions. idge Hampshire, supra, v. New 2032). Although agree I 91 S.Ct. at majority that the need to be able crime, the Fourth investigate violent requires

Amendment that we balance

investigative means used provided by

against protections the Constitu-

tion to an individual do not whom cause to arrest. HUMMER, Appellant, Ann Judith

III. LEVIN, D.M.D., Martin D. sum, majority opin- I dissent from the reasons. this

ion several Because investi- gative place “stop” took in Womack’s home Levin, Cohen, Goodman & Drs. underlying several after the hours crime Siegel, P.A., Appellees. completed, scope circumscribed, carefully should have been No. 93-CV-721. entry initial even into the home was Appeals. of Columbia Court of District ease consensual. demonstrating failed to meet its burden of Argued Oct. necessary, level intrusiveness Decided March justifying it did not state facts because the use of handcuffs. illegally

A finding that Womack was seized view, not, my In

does demand reversal.

stead, this case should have been remanded sought to finding

for a whether the evidence suppressed illegality. of the “fruit” Crews, 463, 100

See States (consider (1980) 1244, 63 L.Ed.2d 537 illegality). as a identification fruit show-up ‍‌‌‌‌​‌‌‌​‌​​‌​‌‌‌​​​‌​​​‌‌​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌‌‍sought suppress victim, clothing

identification and foot scene, at the and statements

wear seized evening.

made to an later that Much officer spite be admissible evidence could illegality, inevitably dis

prove it would have been

covered, or if it were free of taint of Williams,

illegality. See Nix v. notes tions in arrest this court to considered Prophet v. United ack relied requiring cause. involved, (D.C.1992), according regarding majority, "Terry-type sei- issues” majority opinion cites also 20 of the 16. Footnote apartment. & Ante at 612 note in an zures 700-01, Summers, supra, Michigan Prophet we so. held there That is not probable In infra, which discussed support apart- cause to an arrest proposition that officers different stands justify did not ment. This court may executing detain search warrant valid Prophet suspects a reasonable inci- premises the search event, occupants of while Terry stop. dent to correctly

Case Details

Case Name: Womack v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Mar 14, 1996

Citation: 673 A.2d 603

Docket Number: 93-CF-1548

Court Abbreviation: D.C.