noting empirical research that, in high-crime areas, people stop and answer police questions for reasons including fear of the police, but indicating that, under Supreme Court case law, such observations “cannot affect the result”
How later courts described this case
- noting empirical research that, in high-crime areas, people stop and answer police questions for reasons including fear of the police, but indicating that, under Supreme Court case law, such observations “cannot affect the result”
- explaining that “the judge’s factual findings will not be disturbed unless they are clearly erroneous, i.e., without substantial support in the record”
- single officer's approach of a defendant walking down the sidewalk coupled with his question in "a calm, conversational tone of voice, [about] what [defendant] had in his clenched hand" was not a seizure
- explaining “the judge’s factual findings will not be disturbed unless they are clearly erroneous, i.e., without substantial support in the record.”
Written by the judges who cited it.
The opinion
NEWMAN, Associate Judge,
dissenting:
Because I cannot accept the majority’s view that calling to a man, “Hey, big boy, come here,” before confronting him in a three-foot wide alley and demanding to know what he has in his hand, is an effort “to seek cooperation,” I dissent.
The police may lawfully approach persons on the street and ask for their cooperation in answering a few questions, even without reasonable suspicion; however, persons so encountered must remain free to ignore the questions and continue on their way. Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319, 1323 , 75 L.Ed.2d 229 (1983). If they are not free to continue on their way, because police have restrained them by means of physical force or a show *64 of authority, then a seizure within the meaning of the Fourth Amendment has taken place and the police must show the presence of an articulable reasonable suspicion or probable cause to support the restraint. United States v. Mendenhall, 446 U.S. 544, 552, 554 , 100 S.Ct. 1870, 1876, 1877 , 64 L.Ed.2d 497 (1980); Terry, supra 392 U.S. at 19-20, 88 S.Ct. at 1878-79; Brown v. United States, 542 A.2d 1231, 1235 (D.C.1988). Since the trial judge properly rejected the government’s argument that the police had an articulable reasonable suspicion or probable cause for stopping Mr. Lawrence, the only issue before us is whether the police officer who approached Lawrence put on a show of authority that justified Lawrence in believing that he was not free to leave. For reasons I will discuss below, I believe that a reasonable person would have been justified in holding that belief.
As Justice Stewart has said, a show of authority may include “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, supra 446 U.S. at 554 , 100 S.Ct. at 1876 . However, when applying the Mendenhall test to determine whether such a show of authority has been made, courts must bear in mind that:
[t]he test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.
Michigan v. Chesternut, 486 U.S. 567 , 108 S.Ct. 1975, 1979 , 100 L.Ed.2d 565 (1988).
Taken as a whole, the circumstances in this case belie the majority’s characterization of the encounter between Lawrence and the police as non-coercive. The record shows that Officer Ward first encountered Lawrence as Lawrence was making his way toward the officer along a three-foot wide alley running between two buildings and bordered by fences. 1 Officer Ward, who is described in the record as a large, well-built man, thus stood between Lawrence and the end of this narrow alley. As Lawrence was moving through the alley, he observed Officer Ward and another officer “shaking down” a man against the fence bordering the alley. Lawrence testified that as he approached the officers, Officer Ward “hollered, ‘Hey, big boy, come here.’ ” Officer Ward testified that he identified himself as a police officer, and that Lawrence “stopped right in front of me because he couldn’t go around because of other people.” Lawrence testified that after stopping in front of the officer, the officer said “Open your hand.” Officer Ward testified that he used a conversational tone. Lawrence complied.
*65 This encounter in a narrow alley has all the earmarks of a show of authority. First, Officer Ward identified himself as a police officer both by his actions in “shaking down” the man against the fence and by his words of identification. Second, Officer Ward lacked an articulable reasonable suspicion for stopping Lawrence. Third, Officer Ward summoned Lawrence to him, rather than approaching Lawrence with a question, using words and a tone indicating that he was ordering Lawrence to stop. Fourth, Officer Ward physically blocked Lawrence’s egress from the alley. Fifth, Officer Ward spoke to Lawrence in such a way as to convey the impression to a reasonable person that he was ordering Appellant to reveal what was in his hand. 2
Contrast this with the situation in Men-denhall, in which officers approached the subject in the public concourse of a major airport, instead of summoning the subject to them, and requested, but did not demand, to see her identification. Moreover, although the majority is satisfied that the physical element of this seizure, the blocking of Lawrence’s egress, did not occur, that finding is based on a selective reading of the record. Officer Ward stated several times that the width of the alley was three feet. In his initial description of the encounter, he stated that Lawrence was unable to go around him because of the presence of other people. It was only in response to subsequent questions by the court that the officer asserted that Lawrence could have walked around:
THE COURT: Did he — if he had kept walking, I take it, he would either have to walk around you or he’d walk into you, is that right?
OFFICER WARD: Well, the sidewalks are, you know, about that big, three-foot sidewalk. He could have walked around.
Questioned further on this point by defense counsel, Officer Ward added: “[H]e had enough room to walk around me instead of squeezing by.”
Although the laws of physics permit two bodies to pass without touching in a three-foot wide alley, when one of them is a policeman and he is saying to the other, “Hey, big boy, come here,” the law of search and seizure, as interpreted by Men-denhall, requires something more than mere possibility. The majority is correct in pointing out that all police-initiated encounters with citizens are accompanied by some degree of anxiety on the citizens’ part, as well as what Professor LaFave called “moral and instinctive pressures to cooperate.” 3 And it is true that the “freedom to walk away” must be understood in the context of real-life police-citizen encounters. However, it is undeniable that in this case Lawrence was required to exercise his freedom to walk away in a three-foot wide alley with a large, well-built policeman between him and the alley’s end, a policeman in the process of “shaking down” another man, who shouted or said to Lawrence, “Hey, big boy, come here.” Because I find that the circumstances of the encounter were such that a reasonable person would not feel himself free to leave, I would reverse.
. Although Officer Ward tried mightily to define the area in which the encounter took place as a "sidewalk,” his own description of the area on cross-examination belies his attempt:
MR. VARMER: Well, that’s another thing. Where you marked sidewalk [on the diagram], isn't that really the alley?
OFFICER WARD: No, sir. The sidewalk — it’s projects on each side with a sidewalk going right between them.
MR. VARMER: Well, a sidewalk usually goes along the street. Every street I’ve ever seen, including Alabama Avenue, the sidewalk runs along with the street, not at a ninety-degree angle of the street.
OFFICER WARD: Yes, sir, but you’ve got a sidewalk that goes right between the buildings. It’s a path — it’s a passageway.
THE COURT: It's a passageway that is paved; is that right?
OFFICER WARD: Yes, sir.
THE COURT: And you refer to it as a sidewalk.
OFFICER WARD: Yes, sir.
THE COURT: And it goes from Alabama over to the alley.
OFFICER WARD: Yes, sir.
MR. VARMER: Well, it’s a narrow sidewalk, right, with a fence on each side?
OFFICER WARD: Yes, sir.
MR. VARMER: OK. Well, then, we agree_
Lawrence also described the area as an alley:
MR. VARMER: Did a police car arrive or did you learn that a police car had arrived?
MR. LAWRENCE: Yes, sir, a police car did arrive as I was walking through the alley. ******
THE COURT: Now, when you are saying ‘alley’ you are referring to what the officers (sic) call a walkway?
MR. LAWRENCE: Yes, sir, walking toward that.
. Testimony on this point was somewhat inconsistent as to the words used. Lawrence first testified that Officer Ward said "What’s that you got in your hand;” Later, he said the officer’s words were: "Open your hand.”
. Supra at 62.