United States v. Jones

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2009 Decided October 23, 2009

No. 07-3025

UNITED STATES OF AMERICA,

APPELLEE

v.

JEROME H. JONES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 05cr00441-01)

Dennis M. Hart, appointed by the court, argued the cause

and filed the brief for appellant.

Leslie A. Gerardo, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney at the time the brief was filed, and Roy W.

McLeese III and Chrisellen R. Kolb, Assistant U.S. Attorneys.

Before: ROGERS, TATEL and BROWN, Circuit Judges.

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Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: In the District of Columbia it is a

misdemeanor to drink alcoholic beverages in a public place.

Specifically, “no person in the District [of Columbia] shall drink

an alcoholic beverage or possess in an open container an

alcoholic beverage in or upon . . . [a] street . . . [or] sidewalk.”

D.C. Code § 25-1001(a)(1). The question on appeal is whether

there was a proper investigative stop of appellant under Terry v.

Ohio, 392 U.S. 1 (1968), to determine whether he was violating

the statute. See Ornelas v. United States, 517 U.S. 690, 697

(1996).

I.

Around midnight on Saturday, October 15, 2005, Officer

Leroy Rollins of the Metropolitan Police Department arrived, on

duty, in an unmarked vehicle at the 1100 block of Talbert Street

SE, Washington, D.C., an area he “felt” was a high crime area,

Hr’g Tr. 10, July 19, 2006. He was on patrol with

approximately five other officers, some of whom were in a

separate vehicle. Rollins was wearing a black utility vest with

“POLICE” in large letters on the front and back. Officer Rollins

testified that upon arrival he “observed approximately 15 or 20

[people] gathered throughout the block” in what “appeared to be

somewhat of a party atmosphere.” Id. at 4. Rollins parked his

car in the middle of the street, and the officers got out of their

vehicles.

The group of people began to disperse as the police

approached, and, according to Officer Rollins, appellant, unlike

the others, “began to walk away at a very fast pace.” Id. at 4.

Rollins “noticed that [appellant] had a large, white styrofoam

cup” in his hand, id., as well as “a brown paper bag . . . in his

arm,” id. at 4–5. Rollins walked toward appellant and,

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according to Rollins, appellant stated: “I ain’t doing nothing.

I’m just drinking.” Id. at 5. Appellant did not appear to be

stumbling, and Rollins did not notice whether appellant was

slurring his words, nor did Rollins pay attention to whether

appellant smelled of alcohol. Rollins also could not see what

was in the cup or the brown bag. However, based on the

styrofoam cup, the brown bag, and appellant’s statement that he

was drinking, Rollins “believed that [appellant] was in

possession of a container of alcohol,” id. at 7, an arrestable

offense, id.

Continuing to walk toward appellant and intending to

“investigate further,” id. at 14, Officer Rollins instructed

appellant to “Come here,” id. at 5. They were less than ten feet

apart when Rollins first encountered him. Appellant then

“pushed [Rollins] in the chest area and reached toward the right

side of his waist band.” Id. Once appellant reached toward his

waist band, Rollins “believed he was in possession of a gun” and

therefore “immediately grabbed him and pushed him up against

the police car.” Id. Appellant again reached toward the right

side of his waist, and Rollins “tr[ied] to pull his hand away from

his waistband.” Id. at 6. The struggle ensued for approximately

thirty to forty seconds, after which several police officers came

to assist and wrestled appellant to the ground. While on the

ground, appellant’s shirt came up above his waist, revealing “a

large caliber handgun in the right side of his waist.” Id. Rollins

took the gun from appellant’s waist and saw it was loaded with

“ten rounds in the magazine, and . . . one round in [the]

chamber.” Id. at 7. Upon recovery of the gun, appellant was

placed under arrest. Afterwards, Rollins discovered that inside

the brown paper bag were a bottle containing vodka and another

containing cranberry juice, and both had been “opened.” Id. at

23. The top of the styrofoam cup had come off; there was ice in

the cup, but nothing else.

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The district court denied appellant’s motion to suppress the

gun and ammunition and his statement. Appellant then pleaded

guilty, conditioned upon his right to bring the instant appeal, to

the indictment charging one count of unlawful possession of a

firearm and ammunition by a person convicted of a crime

punishable by imprisonment for a term exceeding one year, in

violation of 18 U.S.C. § 922(g)(1).

II.

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons . . . against unreasonable searches

and seizures, . . . and no Warrants shall issue, but upon probable

cause . . . .” A narrow exception to the warrant requirement

exists under Terry, whereby “the police can stop and briefly

detain a person for investigative purposes if the officer has a

reasonable suspicion supported by articulable facts that criminal

activity ‘may be afoot,’ even if the officer lacks probable cause.”

United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry,

392 U.S. at 30). The required level of suspicion is “considerably

less than proof of wrongdoing by a preponderance of the

evidence,” and “obviously less demanding than that for probable

cause,” but “[t]he officer, of course, must be able to articulate

something more than an ‘inchoate and unparticularized

suspicion or “hunch.” ’ ” Id. (quoting Terry, 392 U.S. at 27). In

determining whether reasonable suspicion existed, the court

considers “the totality of the circumstances as the officer on the

scene experienced them.” United States v. Edmonds, 240 F.3d

55, 59 (D.C. Cir. 2001); see Sokolow, 490 U.S. at 8–9.

“[A] stop [or seizure] takes place ‘[o]nly when the officer,

by means of physical force or show of authority, has in some

way restrained the liberty of a citizen,’ Terry, 392 U.S. at 19

n.16, or, put differently ‘only if, in view of all the circumstances

surrounding the incident, a reasonable person would have

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believed that he was not free to leave,’ California v. Hodari D.,

499 U.S. 621, 627–28 (1991),” United States v. Goddard, 491

F.3d 457, 460 (D.C. Cir. 2007) (alteration in Terry). Not all

interactions between police and citizens are stops, and this court

has considered several factors in determining whether a stop has

occurred: “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be

compelled,” United States v. Mendenhall, 446 U.S. 544, 554

(1980) (plurality opinion), as well as the approaching officer’s

demeanor, whether the officer was wearing a uniform, and the

time and place of the purported stop. Goddard, 491 F.3d at 460.

The evidence showed that it was a Fall Saturday night,

around midnight, and fifteen to twenty people were outside in a

block of a residential neighborhood. According to the officer

who testified at the suppression hearing, there “appeared to be

somewhat of a party atmosphere.” Appellant was carrying a

large white styrofoam cup in his hand and a brown paper bag

under his arm. Five or six police officers exited two cars. The

group of people started dispersing in a direction away from the

officers.

At this point, we agree with appellant, there was not a basis

for a Terry stop. There was no report of possible criminal

wrongdoing by him. The police were not responding to a citizen

complaint of any kind, much less one for unlawful conduct. The

police were not in the process of conducting an investigation

that was focusing on appellant or any of the other “partying”

people. Hence, the fact that the officer considered the

neighborhood to be a high crime area, due to illegal narcotics

trafficking, might explain why the officers were on patrol there

that night but otherwise does not enter into the calculus of

whether the officer had articulable suspicion for a Terry stop of

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appellant for possible violation of D.C. Code § 25-1001.

Moreover, the officer neither saw or smelled alcohol nor

testified that appellant or anyone else in the group appeared to

be drunk. There was not even evidence there was anything in

the cup appellant was holding, much less the color or smell of its

contents; the cup and the brown bag were opaque, and the

officer’s testimony that he observed afterward that “the top had

c[o]me off the cup,” Hr’g Tr. 23, is consistent with appellant

holding a covered cup when the officer first saw him.

It cannot be gainsaid that the Fourth Amendment protects,

as Justice Brandeis’ oft-cited observation points out, “the right

to be let alone,” Olmstead v. United States, 277 U.S. 438, 478

(1928) (Brandeis, J., dissenting), in a party atmosphere or

otherwise. See Terry, 392 U.S. at 8–9. Merely walking away,

even quickly as appellant did, upon the arrival of the uniformed

police officer would not provide articulable suspicion of

criminal wrongdoing by appellant. Cf. Illinois v. Wardlow, 528

U.S. 119, 124–25 (2000). The officer did not testify he thought

appellant was fleeing from the police, only that his pace of

movement, in contrast with others in the group, was what caused

the officer to notice him. Merely holding a styrofoam cup,

covered or uncovered, would not tip the balance, even when the

same person was also holding a paper bag under his arm. Cf.

United States v. Powell, 483 F.3d 836, 838 (D.C. Cir. 2007).

However, before appellant was seized by the police, he

voluntarily stated to a uniformed officer who had just exited his

car, “I ain’t doing nothing. I’m just drinking.” In response, as

the officer approached he ordered appellant to “Come here,” i.e.,

“to reverse his line of travel, [and] stop his exit from the scene,”

Appellant’s Br. 14. The parties agree, as counsel for the

government acknowledged during oral argument, that at this

point appellant was seized for purposes of the Fourth

Amendment. Terry, 392 U.S. at 16. Appellant’s voluntary

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statement tipped the balance from providing a mere hunch to

articulable suspicion of possible ongoing criminal wrongdoing.

With appellant’s statement the officer had a reasonable

suspicion supported by articulable facts to make a Terry stop in

order to investigate whether or not appellant was violating D.C.

Code § 25-1001. Even though appellant may have intended to

avoid any police interaction by asserting he was not violating the

law, his statement was in the present tense about an activity that

is criminal in certain circumstances. And it was late on Saturday

night and people were gathered outside in a “party” atmosphere.

The crowd was moving away from the police, and one of the

partying persons had acknowledged while on the street and

moving away quickly that he was drinking. That person also

had the means to do so: a styrofoam cup in his hand into which

to pour the contents of the brown bag under his arm.

It takes little imagination to suspect that there might be

alcohol in the styrofoam cup or the brown paper bag that

appellant was holding. But it also is possible that appellant was

merely drinking fruit juice or some other non-alcoholic

beverage, or that the cup was empty and the bag contained

closed containers or non-alcoholic items. So the officer pursued

the minimal investigative step by approaching appellant and

ordering him to “Come here” in order to determine whether or

not appellant was drinking or possessing an open container of

alcohol, and if so to place him under arrest for violation of D.C.

Code § 25-1001. In Terry the Supreme Court reaffirmed that

“courts still retain their traditional responsibility to guard against

police conduct which is over-bearing or harassing . . . ,” while

“approv[ing] of legitimate and restrained investigative conduct

undertaken on the basis of ample factual justification,” 392 U.S.

at 15, as occurred here. In urging district court error, appellant

states that “the only observation by [the] police was the

possession of a white styrofoam cup in the hand of the

[a]ppellant,” Appellant’s Br. 8, which ignores the brown bag, a

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place to carry bottles, as well as the effect of his own potentially

incriminating statement, see Terry, 39 U.S. at 15. By focusing

on what the officer did not know at the time he ordered appellant

to “Come here” and approached, appellant ignores that

articulable suspicion under Terry need not rise to the level of a

preponderance of the evidence or even probable cause, see

Edmonds, 240 F.3d at 59 (quoting Illinois v. Wardlow, 528 U.S.

119, 123 (2000)).

Because, under the totality of the circumstances, the police

officer’s action in seizing appellant was reasonable under the

Fourth Amendment, appellant fails to show that the stop was

unlawful. Once appellant pushed the officer and went for his

own waistband, the officer had probable cause to arrest appellant

for assaulting a police officer, D.C. Code § 22-405, and to

search for a gun and lawfully seize it pursuant to an arrest, see,

e.g., Chimel v. California, 395 U.S. 752, 762–63 (1969); United

States v. Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007); see also

Terry, 392 U.S. at 27. Accordingly, we affirm the judgment of

conviction under 18 U.S.C. § 922(g)(1).