Williamson v. United States

SCHWELB, Associate Judge,

concurring:

Judge FerREN and I — a majority of the division — do not believe that the information available to Officer Schadt was sufficient to support an articulable suspicion that Williamson personally had committed a crime or was about to do so. Essentially for the reasons stated by Judge Farrell in Part II.B.2 at pages 476-78 of his opinion, however, I agree that the seizure was reasonable in spite of the lack of specific information regarding wrongdoing on the part of Williamson.

I

I have no quarrel with Judge Farrell’s description of the evidence so far as it goes, but I think it may in some measure advance the plot to mention a little more. On cross-examination, after describing his approach to the 1983 Ford automobile occupied by Williamson and his two women friends, 1 Officer Schadt testified that he asked everyone “to please raise their hands so I can see them.” The following colloquy ensued:

Q. At this point, you had no indication that any of these people had committed a crime, is that correct?

A. That’s more or less correct.

Q. But you asked them to raise their hands?

A. Yes, I did.

Q. And at some point after that then you pulled your weapon?

A. Yes, I did.

Q. And at that point you had no indication that anybody in the car had committed a crime?

A. At that point I was more concerned with my safety than worrying about what they had done. [2]

Essentially, Officer Schadt acknowledged that he had no basis for suspecting Williamson of a crime, and he indicated that the detainees’ criminality or lack thereof was not then a significant concern.

Moreover, the tape recording of Officer Schadt’s request over the police radio for assistance, which he made prior to approaching the Ford, and which was played at the suppression hearing, revealed that the officer had advised the dispatcher that “four shots were fired from a vehicle and [it] looks like it’s speeding east on Missouri *479 Avenue.” Officer Schadt testified at the hearing that he had apparently assumed that, since this first vehicle was speeding away, it was the source of the shooting.

To be sure, the officer also explained that Williamson and his companions “seemed to be trying to get away more than anyone else.” Surely, though, this is a slim reed indeed on which to predicate a finding of articulable suspicion. Anyone eager to survive long enough to enjoy further opportunities to smell the roses could reasonably view the need to depart from that scene as being “pregnant with an urgency” that brooks no unnecessary delay. Harris v. District of Columbia Comm’n on Human Rights, 562 A.2d 625, 626 (D.C.1989). I know I would.

I must therefore part company with Judge FaRRELL when he insists that Officer Schadt “had an objective reason to suspect appellant, as part of a distinct and small group of individuals, of taking part in a shooting seconds before.” All that is required for a Terry 3 stop is “some minimal level of objective justification” for making it. Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 217 , 104 S.Ct. 1758, 1763 , 80 L.Ed.2d 247 (1984). Minimal, yes, but not that minimal! The record in this case compels the conclusion that Williamson was not really seized because he was a suspect. As the trial judge sensibly found, the officer

reasonably thought that that car could have been involved somehow in the shooting, either as the victim or as the shooter, certainly as a possible witness which, indeed, the people were.

(Emphasis added.) The officer’s testimony demonstrates that Officer Schadt had no time to determine which of these three categories — perpetrator, victim, or independent witness — applied to Williamson and his friends. Plainly, as the officer effectively acknowledged, he made no attempt to do so.

Our voyage would perhaps be smoother if we could comfortably fit this case within more conventional Terry principles and avoid sailing the comparatively uncharted (in this jurisdiction) waters described in part II.B.2 of Judge Farrell’s opinion. In my opinion, however, this would require us to fit square pegs into round holes and to ignore dispositive testimony on the part of the arresting officer, as well as the key finding by the trial judge.

II

I fully agree, however, for the reasons stated by Judge Farrell, that the seizure did not run afoul of the Fourth Amendment if, as the evidence here indicates, the officer reasonably believed that Williamson and his companions could have been victims, witnesses, or suspects, even though he could not yet tell into which of these categories they belonged. As the Supreme Court of Minnesota explained in Wold v. State, 430 N.W.2d 171, 174-75 (Minn.1988),

[ o]ur court, as well as courts of other states, have recognized that in order to “freeze” the situation, the stop of a person present at the scene of a recently committed crime of violence may be permissible without trampling on the Fourth Amendment prohibition against unreasonable search and seizure_ Especially is such a stop deemed permissible where only a limited number of persons are present at the scene of a violent crime.

(Citations and footnote omitted).

Wold , as the foregoing passage reveals, is in point; 4 the authorities cited by Judge *480 FeRREN are not. He quotes United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981), as well as several other cases, for the proposition that an “investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Emphasis added.) He apparently takes the view that the italicized language resolves the issue on which he and the other members of the division part company, and that the police are therefore precluded from stopping an individual, even immediately after the apparent commission of a serious crime, without first sorting out (within the fleeting moment that it would take that individual to depart) whether he or she is a suspected wrongdoer rather than a possible victim or third party witness. 5 In my opinion, Judge Fer-ren’s position “is predicated on a misconception of the nature and uses of judicial precedent, and therefore makes far too much out of too little.” Khiem v. United States, No. 91-1028, slip op. at 7-8 (D.C. Mar. 20, 1992).

As Judge Farrell points out in the lead opinion, none of the cases cited by Judge Ferren presented the question which Judge Ferren now claims that they settled, nor did the courts have occasion to consider the contention which he says these decisions foreclosed. Both in Khiem, supra, slip op. at 8, and previously in United States v. Alston, 580 A.2d 587 , 594 n. 12 (D.C.1990), this court has noted and quoted the Supreme Court’s meaningful caution in Armour & Co. v. Wantock, 323 U.S. 126, 132-33 , 65 S.Ct. 165, 168 , 89 L.Ed. 118 (1944):

It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.

(Emphasis added.) Moreover, as we first stated in Kraft v. Kraft, 155 A.2d 910, 913 (D.C.1959), and more recently reiterated first in Alston, 580 A.2d at 594 n. 12 and then in Khiem, slip op. at 8.

[ i]t is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.

Judge Ferren has not heeded these warnings. He does not suggest, nor can he, that Cortez (or any other opinion cited by him) involved a scenario similar to the present one or presented the question with respect to which he disagrees with Judge Farrell and me. That very issue was, however, decided in the prosecution’s favor in Wold and in the decisions cited by Judge Farrell.

It is surely uncontestable that a point which was not raised in the cases on which Judge Ferren relies could not have been decided in those cases. Moreover, since the issue which now divides the panel was not presented to the court in Cortez or in the other cases cited by Judge Ferren, the United States never had the opportunity to *481 present its law enforcement interest for the court’s consideration, and Judge FeRREn’s thesis was not tested by “the fires of adversary presentation.” Allen v. United States, 603 A.2d 1219 , 1229 n. 20 (D.C.1992) (quoting United States v. Crawley, 837 F.2d 291, 293 (7th Cir.1988)). Under all of these circumstances, the authorities on which Judge Ferren relies “may not be converted, by barristerial ingenuity or judicial alchemy, into a sweeping rejection of contentions which were neither before the court nor relevant to the issues then at hand.” Khiem, supra, slip op. at 9.

The Constitution does not bar all seizures. It prohibits only unreasonable ones. The Fourth Amendment was not designed to consign to virtual impotence a police officer who is attempting to investigate an apparent armed offense moments after it occurred, and who needs information to help him to apprehend the perpetrator and thus to reduce the risk of injury to persons or property. It makes no sense to me to suggest that in the situation which confronted Officer Schadt immediately after the shooting, he could lawfully do nothing but twiddle his thumbs 6 and perhaps write down the license number of the car in which Williamson and his friends were seated. Our adoption of such a notion would be so removed from the reality of the street and from the right and obligation of the police to investigate violent crime as to invite understandable public ridicule of the judiciary. Accordingly, I vote to affirm the judgment.

. Daydria Ellis, the owner of the Ford, and one of Williamson's companions on the evening in question, also testified. Ms. Ellis denied that she and her friends tried to leave in a hurry, insisting that they stayed around and waited for the approaching officer because she was “nosey” and wanted to know what was happening. According to Ms. Ellis, the car was stationary when Officer Schadt approached, and the officer drew his pistol before saying anything. Ms. Ellis stated that the officer repeatedly told her to shut up when she inquired what was happening. The judge, while specifically crediting Officer Schadt, also found that it "may well be” that both the officer and Ms. Ellis were "telling the truth as they remember it.”

2. As we recently noted in Gomez v. United States, 597 A.2d 884, 891 (D.C.1991), "if the officer lacked articulable suspicion to seize [Williamson], the seizure could not be justified upon the notion that it would be dangerous to chat with [Williamson] and his companions without restricting their liberty.”

. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

. Any objective reader of the Minnesota Supreme Court's decision in Wold will conclude, in my view, that the quoted passage is a part of the court’s holding, and not dictum as Judge Ferren suggests.

Moreover, Judge Ferren quotes 3 Wayne R. LaFave, Search and Seizure A Treatise on the Fourth Amendment § 9.3(d), at 461 (2d ed. 1987) in the second half of footnote 4 to his dissenting opinion, for the proposition that Williamson could be seized only if the police reasonably suspected him or one of his companions of criminal activity. This passage comes 107 pages after Professor LaFave’s discussion of the Model Code of Pre-Arraignment Procedure, id. § 9.2(b) at 353-54, and of the scope of an officer’s authority to stop an individual at a crime scene without *480 being sure whether that individual is a witness or a suspect. On the basis of his juxtaposition of two unrelated passages located in different parts of the same treatise, Judge Ferren maintains that "it is clear” that Professor LaFave would authorize seizure of possible witnesses or suspects "only if there is a reasonable, objective basis for believing that at least one of the persons seized has committed a crime." Such clarity is in the eye of the beholder; one person’s luminosity is another's opaqueness. In fact, Professor LaFave subscribes to the "sensible position,” id. § 9.2(b), at 353, taken by the Model Code, which contains no limitation of the kind Judge Ferren seeks to attribute to (or foist upon) this distinguished Fourth Amendment scholar.

. There is an obvious difference between my position as articulated above and the views attributed to me in the fourth paragraph of the dissent, in which Judge Ferren claims to discern inconsistency between Judge Farrell’s approach and my own regarding the issue at hand. There is no such inconsistency. To eliminate any doubt as to my assessment of the record, this is not a case where the officer knew that Williamson was not a suspect but had an articulable suspicion that he might be a witness or victim. Rather, the officer had a reasonable basis for suspecting that Williamson fell into one of those three categories, although he could not yet determine which.

. Judge Ferren would approve the "consensual interviewing of bystanders." Dissenting op., note 2. Although the judge reasonably viewed Officer Schadt’s direction to the occupants of the car to stop and to let him see their hands as a Fourth Amendment "stop," the line between a seizure and a consensual encounter can be somewhat fuzzy. Here, for example, if Officer Schadt wished to interview Williamson and his friends on a consensual basis, he would have had to signal to the driver to stop. Moreover, at that place, at that time, and under those circumstances, the officer's insistence that the occupants keep their hands in view was surely prudent rather than irrational.