Ramsey v. United States

RUIZ, Senior Judge,

concurring:

Judge Thompson’s opinion for the court “assume[s], without necessarily deciding” that Officer Lally had a reasonable suspicion that would have permitted him to stop appellant when first encountering him in the alley, because “upon seeing appellant standing, facing a wall, with his zipper down and his hands in his crotch area, the officer could reasonably believe that appellant was committing disorderly conduct by urinating in public.” See ante at 144. Judge Thompson concludes, however, that because any suspicion was “dispelled” in short order, the officer could not continue *150 to hold appellant. Id. at 145. Judge Fisher’s dissenting opinion, on the other hand, concludes that once appellant was properly stopped, the officer’s subsequent actions were reasonable under the Fourth Amendment. See post at 152-53. Although I agree with Judge Thompson’s ultimate conclusion that there was a Fourth Amendment violation, I disagree with the underlying assumption — made express in the dissenting opinion — that the officer was justified in seizing appellant in the first instance.

In order for a police officer to engage in a Terry stop, the officer must have “a reasonable and articulable suspicion that the individual has committed or is about to commit a crime.” Womack v. United States, 673 A.2d 603, 608 (D.C.1996). Although “[t]he requirement of articulable suspicion ... ‘is not an onerous one,’ ” Joseph v. United States, 926 A.2d 1156, 1160 (D.C.2007) (citation omitted), it “must be ‘objective,’ so that a ‘gut’ feeling or ‘hunch’ will not do.” Brown v. United States, 590 A.2d 1008, 1014 (D.C.1991). And, critically in this case, the suspect action must actually be “a crime.” United States v. Bellamy, 619 A.2d 515, 523 (D.C.1993) (actions that “fell just shy of’ conduct punished by statute could not form a basis for reasonable suspicion).

It is important to note that at the time appellant was stopped, the act of public urination — by itself — did not constitute the crime of disorderly conduct, see ante at 145, n. 11, which is the only justification proffered by the government for the officer’s suspicion of criminal conduct. It was not until the disorderly conduct statute was amended in 2011, that public urination was statutorily identified as an act of “disorderly conduct.” In order for public urination to constitute disorderly conduct under the law that existed at the time appellant was stopped, he had to be posing some actual or potential threat to public order. Compare Scott v. District of Columbia, 184 A.2d 849, 851 (D.C.1962) (disorderly conduct by protestors who refused to move from a public sidewalk directly in front of entrance to White House); Rockwell v. District of Columbia, 172 A.2d 549, 551-52 (D.C.1961) (leader of the American Nazi Party properly arrested for disorderly conduct after racist speeches caused rioting and fighting between his followers and spectators), with In re W.H.L., 743 A.2d 1226, 1229 (D.C.2000) (no disorderly conduct where defendant’s obscene comments and insults were directed solely at police officer and did not urge bystanders to commit violent acts).

Under the “disorderly conduct” statute then in existence, appellant would not have been committing a crime had he, in fact, urinated on the wall in the alley as the officer suspected. Our “public-urination-as-disorderly-conduct” case law has shied away from a categorical conclusion that any urination in public spaces constitutes disorderly conduct. Rather, we have required, as the previous version of the statute provided, that in order for the conduct to be deemed a crime, there must be some member of the public who would be sufficiently provoked by the defendant’s conduct to engage in a breach of the peace. Scott v. United States, 878 A.2d 486, 488 (D.C.2005) (“The officer saw Scott urinate on the front bumper of a van parked in a gas station parking lot and could have considered such conduct to be an act sufficiently annoying and offensive to others that it might occasion a breach of the peace.” (emphasis added) (internal quotation marks and citation omitted)); see also United States v. Williams, 754 F.2d 1001, 1002 (D.C.Cir.1985) (“We think it self-evident that fixing one’s pants over a puddle of urine in the hallway of a partially occupied building at 7 p.m. is an act sufficiently annoying and offensive to others that it *151 might occasion a breach of the peace.” (emphasis added)).

The record in this case does not reveal an “other” who might have been so annoyed and offended by appellant’s conduct that it would have or could have “destroy[ed] or menac[ed] public order and tranquility.” Cantwell v. Connecticut, 310 U.S. 296, 308 , 60 S.Ct. 900 , 84 L.Ed. 1213 (1940) (defining “breach of the peace”); cf. Shepherd v. District of Columbia, 929 A.2d 417, 418 (D.C.2007) (reversing disorderly conduct conviction where defendant’s “cursing and screaming” was not “likely to produce violence on the part of others” (internal citations and quotation marks omitted)). According to Officer Lally, the only other civilian present on the scene had exited or was leaving the alley (was “coming out of the alley”) as appellant entered it. Otherwise, according to Lally, there was “nothing” in that area, “no businesses or residences” on the “dead-end” alley, just “a park that’s closed after dark.” And, at 7:45 p.m. in late November, it was dark outside. In short, appellant’s suspected act of urination would have taken place in almost complete seclusion, 1 and in an area where others were unlikely to encounter him standing over an upsetting “puddle of urine” near their threshold. Williams, 754 F.2d at 1002 . As a result, I see no objective basis from which the officer reasonably could have thought that a breach of the peace was likely to be occasioned by appellant’s conduct. See also Martinez v. District of Columbia, 987 A.2d 1199 , 1201 n. 3 (D.C.2010) (suggesting government’s case had failed to identify an offended member of the public).

To be sure, cases on urination as disorderly conduct also evince a concern for the potential reaction of the owner (or lessors) of the property being urinated on, even if not present at the time. See Scott, 878 A.2d at 488 (holding that, in addition to disorderly conduct, defendant could have been arrested for “defacing private property in violation of D.C.Code § 22-3312.01”); Williams, 754 F.2d at 1001-02 (repeatedly mentioning that the apartment building in question was “partially occupied”). But even assuming that the “others” mentioned in the statute could be extended to include those who, at some point after the fact, encounter the results of public urination and are consequently offended to the point of posing a menace to public order and tranquility, the facts in this case contain no more than a hypothetical possibility that such a person might exist.

Although a nearby convenience store had a wall bordering the alley, Officer Lally did not specify whether appellant was threatening to urinate on that wall or on the wall of the “closed ... carryout restaurant next to it.” Even assuming that someone owned the alley wall in question and that that person would have been offended or annoyed had he or she discovered, at some point, that appellant had urinated on it, there are no objective facts to support a conclusion that this hypothetical person would have become so incensed as to pose a menace to public order. Dumpsters were stored near or in this *152 alley, which, according to Officer Lally, contained essentially nothing. 2 It is difficult to imagine a person who would pose a threat to public order upon discovering urine in such an out-of-the-way place at some point after appellant left, and certainly no facts in this record would lead to a reasonable suspicion that such a person existed here. See Martinez, 987 A.2d at 1202 (explaining that a “bare possibility” that conduct could have posed threat to public order is insufficient, and requiring a “likelihood or probability” of a disturbance (internal quotation marks and citation omitted)).

Here, the record reveals that appellant, although outdoors, was about as far out of the public eye as one can get in our urban jurisdiction. Moreover, there was nothing in the manner in which appellant acted that identified him as a provocateur of a breach of the peace. Officer Lally testified that although he suspected appellant was about to urinate because he was “facing the wall with his hands in his crotch area with his zipper down,” the officer also testified that appellant was not publicly exposing himself (“genitalia” not “outside his pants”). Indeed, it is difficult to conceive of a more discrete location, time, and manner. I perceive no threat of public disturbance on these facts. Accordingly, as the act of urination in a public area was the only conduct of which the officer reasonably could have suspected appellant, Officer Lally did not have a reasonable articulable suspicion that appellant was about to commit the crime of disorderly conduct.

. Excepting, of course, the presence of Officer Lally. In line with the assumptions made by this court in other disorderly conduct cases, this court could safely assume that the officer would not have breached the peace over the discovery of someone urinating in an alley after dark. Cf. Shepherd, 929 A.2d at 419 (explaining that the focus must be on the reactions of civilians, not police officers, “because a police officer is expected to have a greater tolerance for verbal assaults") (internal alterations and quotation marks omitted); In re W.H.L., 743 A.2d at 1228 .

. Indeed, other than appellant, Officer Lally testified that the alley contained only "broken glass,” "litter,” and "a strong smell of urine.”