Williamson v. United States

FERREN, Associate Judge,

concurring in part, dissenting in part, and dissenting from the judgment:

Today my two colleagues effectively announce that the possibility someone is merely a witness to a crime provides an appropriate basis, consistent with the Fourth Amendment, for seizing that person for questioning. No court has ever held this. 1 With all respect due, I believe that the majority’s analysis and result are unprincipled and unfounded — permitting a gross violation of constitutional rights— and that this court, sitting en banc, should swiftly vote to vacate.

I.

I join in Part II.A. of Judge Farrell’s opinion, for I agree that the analysis in California v. Hodari, D., — U.S. -, 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991), is irrelevant; appellant was seized the moment Officer Schadt stopped the car and asked appellant and his companions to put their hands in the air. But I reject Part II.B.l. of Judge Farrell’s opinion justifying appellant’s seizure as a suspect of criminal activity. Instead, I join Part I of Judge Schwelb’s opinion to the contrary, announcing the majority view on that issue: Officer Schadt failed to point to specific and articulable facts justifying reasonable suspicion that appellant had been engaged in criminal activity within the meaning of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). That should end this case, requiring a reversal and remand for erroneous denial of the suppression motion.

But my colleagues collaborate on a new and dangerous — and unconstitutional — rule of law to justify affirmance. I emphatically reject their approval of appellant’s seizure as a ‘possible witness, “victim,” 2 or suspect, without reasonable, articulable *482 suspicion that appellant had engaged in a criminal act.

Because my colleagues have failed to write one opinion, it is difficult to interpret the principle they announce. There appear to be clear differences between their approaches, and yet they purport to reconcile those differences without clear explanation. Judge Farrell, believing that Officer Schadt had a reasonable basis for seizing appellant under Terry , votes to affirm by relying primarily on Wold v. State, 430 N.W.2d 171 (Minn.1988). In Wold , the Minnesota Supreme Court considered, under Terry , a police patdown of a man who, along with another man, was standing next to the comatose body of a stabbing victim, harassing the paramedics who were trying to give help. As I understand that opinion, the court held the seizure was justified under Terry by reasonable suspicion that appellant may have been engaged in discernible criminal activity, even though it might have turned out that appellant had only “witnessed the crime.” Id. at 175. 3 Wold cannot be read to hold that someone may be lawfully seized during the investigation of a recently committed crime on less than reasonable, articulable suspicion of involvement in criminal activity.

In contrast, Judge Schwelb, concluding that Officer Schadt did not have reasonable suspicion that appellant had been engaged in criminal activity, focuses on dicta in Wold attributable to Professor LaFave. My colleague incorrectly relies on that dicta to justify “freezing” the “scene of a violent crime,” ante at 479, without having articulable facts showing that someone on the scene participated in criminal activity. 4 Putting aside the fact that, in this case, the most likely suspects had fled the scene before Officer Schadt approached appellant and his companions, and ignoring as well the fact that there was no sign of a violent crime when Officer Schadt approached the car, Judge Schwelb justifies appellant’s seizure, without Terry suspicion, on the speculative and elastic ground that he may have been a witness, a complainant, see supra note 2, or a suspect. But unlike Professor LaFave, see supra note 4, Judge Schwelb does not require reasonable suspi *483 cion that at least one of the persons stopped may have committed the crime.

In short, the principal authority on which each of my colleagues relies — Wold for Judge Farrell and LaFave for Judge Schwelb — does not support his particular approach.

Because Judge Farrell votes to affirm despite two votes against his Terry justification for the seizure, he necessarily joins Judge Schwelb’s analysis, which effectively says: If a police officer has no objective articulable basis for believing any particular person found near the scene of a crime may have engaged in criminal activity, but has a subjective hunch that a particular person may have done so, the officer may lawfully seize that person simply by coupling this subjective belief with a reason to believe that the less-than-suspicious person may at least have witnessed the crime.

We are therefore left with a dismaying and unprincipled result. Judge Schwelb and I see no objective basis for an investigative seizure based on suspected criminal activity, and yet Judge Schwelb and Judge Farrell sustain the investigative seizure of appellant, not because there was a reasonable, articulable basis under Terry , but because there was a possibility that he fit one of three categories: eyewitness, complainant, suspect. This means, I gather, that when there is merely a subjective, call it intuitive, basis — not a reasonable basis under Terry — for believing someone committed a crime, a seizure will be justified nonetheless if there is some reason to believe the seizee is a witness to a crime. This is directly contrary to the Supreme Court’s teaching in Terry that “[ajnything less [than reasonable articulable suspicion] would invite intrusions upon constitutionally guaranteed rights on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.” Terry, 392 U.S. at 22 , 88 S.Ct. at 1880 (citing cases). No court — until now— has challenged this fundamental principle. The few state court cases on which my colleagues hang their respective hats — including Wold — adhere to the principles announced in Terry and consistently affirmed thereafter; they require reasonable articu-lable suspicion that the person seized is a criminal suspect (in addition to the acknowledged possibility that the person seized may only be a witness). See infra pp. 487-88.

In announcing its new rule, the majority altogether ignores the Supreme Court’s teachings on investigative seizures, which Judge Schwelb calls not “in point.” Ante at 479-80. The majority’s decision not to look to those teachings for guidance is particularly troublesome because both Judge Farrell and Judge Schwelb acknowledge that Officer Schadt seized appellant during a criminal investigation. Neither judge in the majority adequately explains why investigative seizure principles under Supreme Court precedent do not apply.

For these reasons, elaborated below, I respectfully dissent from affirmance of appellant’s conviction. The gun and ammunition were the fruits of an unlawful seizure and search. There is no record basis for allowing a seizure based on reasonably suspected criminal activity, and there is no legal basis for a seizure based on appellant’s status merely as a possible witness.

II.

The trial court concluded that Officer Schadt

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.

Both Judge Schwelb and I agree that the seizure was not supported by objective ar-ticulable facts that appellant and his companions had been involved in criminal activity. The trial court’s conclusion, based on the officer’s impression that appellant “could have been involved somehow ... as the shooter,” is simply too speculative to meet the constitutional test of objective reasonableness under Terry .

I do not understand how my colleagues can combine (1) the possibility that appellant and his companions were witnesses to gunshots with (2) the unreasonable, nonar-tieulable suspicion that they “could have *484 been” shooters, and arrive at a reasonable seizure under the Fourth Amendment. I especially do not understand how the majority can arrive at this “constitutional” declaration without citing, interpreting, distinguishing, or grappling with even one Supreme Court case defining “reasonableness” under the Fourth Amendment in the context of investigative seizures. See ante at 476-78. In short, I decline my colleagues’ invitation to embark sua sponte, see supra note 1, on a “voyage” without a compass into “the comparatively uncharted ... waters” of constitutional jurisprudence they attempt to navigate. Ante at 479.

A.

I begin with several well established, consistently applied principles. “ ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his [or her] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ ” Terry, 392 U.S. at 9 , 88 S.Ct. at 1873 (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 , 11 S.Ct. 1000, 1001 , 35 L.Ed. 734 (1891)). The Supreme Court accordingly stressed in Terry that an “investigative seizure” — the type of seizure at issue in this case — must meet a constitutional test of reasonableness: “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the seizure. Id. 392 U.S. at 21 , 88 S.Ct. at 1880 .

Several years later, the Court specified that “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981) (emphasis added); see United States v. Montoya de Hernandez, 473 U.S. 531, 541 , 105 S.Ct. 3304, 3310 , 87 L.Ed.2d 381 (1985); Brown v. Texas, 443 U.S. 47, 51 , 99 S.Ct. 2637, 2640 , 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661 , 99 S.Ct. 1391, 1400 , 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884 , 95 S.Ct. 2574, 2581 , 45 L.Ed.2d 607 (1975); Adams v. Williams, 407 U.S. 143, 146-49 , 92 S.Ct. 1921, 1923-25 , 32 L.Ed.2d 612 (1972). And again: “the whole picture must yield a particularized suspicion ... that the particular individual being stopped is engaged in wrongdoing_ ‘[T]his demand for specificity is the central teaching of this Court’s Fourth Amendment jurisprudence.’ ” Cortez, 449 U.S. at 418 , 101 S.Ct. at 695 (citing Terry, 392 U.S. at 21, n. 18 , 88 S.Ct. at 1880, n. 18 ) (emphasis in Cortez). This court has observed and upheld this fundamental principle in numerous eases. See, e.g., Gomez v. United States, 597 A.2d 884, 888 (D.C.1991); Cauthen v. United States, 592 A.2d 1021, 1022 (D.C.1991); Galberth v. United States, 590 A.2d 990, 995 (D.C.1991); In re T.T.C., 583 A.2d 986, 989 (D.C.1990); Smith v. United States, 558 A.2d 312, 318 (D.C.1989) (en banc) (Ferren, J., concurring, with four other judges joining); District of Columbia v. Gandy, 450 A.2d 896, 900 (D.C.1982).

Judge Schwelb complains that the cases cited and quoted above are not on point because they do not involve facts similar to those in this case. He then asserts that this dissent reflects a misunderstanding of “the nature and uses of judicial precedent, and therefore makes far too much out of too little.” Ante at 480. All of those cases, however, announce fundamental constitutional principles in the same context we deal with here: investigative seizures by the police. I agree that the Supreme Court has never tested its Terry analysis by reference to the fact pattern at issue here, and thus the Court has not explicitly held that police seizure of suspected witnesses is unconstitutional. But this does not mean we can dismiss, without discussion, the Supreme Court’s Fourth Amendment jurisprudence establishing that an investigative seizure, without probable cause, must be justified by a reasonable, articula-ble suspicion that the person seized has, been, or is about to be, engaged in criminal activity. The majority has the burden to show why this Terry limitation no longer should be honored. It has not attempted to meet that burden.

*485 The part of Judge Farrell’s opinion Judge Schwelb joins does purport to rely on Terry caselaw to support the majority’s proposition that, consistent with the Fourth Amendment, the police may seize witnesses when confronted with “rapidly moving street occurrence[s].” Ante at 474. But every one of the cases Judge Farrell cites on pages 471 and 473-74 of his opinion involves investigative seizures of suspects of criminal activity, not witnesses.

Given the “sacred” and “carefully guarded” constitutional principles discernible from the Supreme Court’s Fourth Amendment jurisprudence, Terry, 392 U.S. at 9 , 88 S.Ct. at 1873 , I believe Officer Schadt was required — before seizing appellant and his companions — to have had some specific, objective basis for believing they had participated in some way in the firing of the four gunshots. But Officer Schadt had no objective basis for believing that. Immediately after someone fired the shots, he radioed a lookout for another car from which he thought the four shots had been fired. Furthermore, when Officer Schadt crossed the intersection to take a closer look at what might be happening, he had no objective basis for stopping anyone in particular. He merely saw “people running all over the place,” including appellant and his two companions who were getting into a parked vehicle. The officer explained that he had stopped appellant and his companions, rather than others who were also attempting to get away from the scene of the shooting, simply because they seemed to be trying to get away “more than anyone else.” This scenario does not provide a sufficiently particularized suspicion of anyone for anything.

Judge Farrell claims that this dissent “misapprehends” the facts of the case. He says that “Schadt heard gunshots from the direction of two cars fleeing (or attempting to flee) the scene” and that the officer, therefore, believed appellant was a member of one of two groups which had fired the shots. Ante at 475-76. An officer’s subjective reasons, however, will permit a seizure only if they are based on objective articulable facts. That is Terry’s message. Objectivity is in; hunches are out. Otherwise, any of us can be seized for anything on a police officer’s whim.

Officer Schadt’s own testimony establishes that he had no objective reason to stop appellant. Judge Farrell downplays the fact that, at the suppression hearing, defense counsel played a tape of Officer Schadt’s radio run in which the officer’s belief at the time of the shooting — as expressed on the tape — was that the shots had been fired from the car that had immediately raced away. When confronted with that tape, Officer Schadt admitted he believed that night that an occupant of the car speeding away had fired the shots. See ante at 472 n. 4. That car — the subject of his suspicions — was gone by the time the officer approached appellant and his companions. Furthermore, there is no evidence that appellant was attempting to “flee,” ante at 475, when the officer seized him, or that appellant had “the freshest information” about the shooting, ante at 477. In fact, Officer Schadt testified only that appellant was “standing by the car” when the officer first saw him and that appellant had just entered the car to drive away when the officer ordered him and his companions to stop and put their hands in the air.

I therefore agree with Judge Schwelb that Officer Schadt lacked reasonable, ar-ticulable suspicion for believing appellant or his companions could be suspected of criminal activity. They were merely three among many who were attempting to retreat from an area where four shots apparently had just been fired. The officer’s subjective impression that they were attempting to get away “more than” other bystanders was not a specific, objective fact giving rise to reasonable suspicion that any of them had been, or was about to be, “engaged in criminal activity.” Cortez, 449 U.S. at 417 , 101 S.Ct. at 695 .

B.

Despite this conclusion — reflecting a 2 to 1 vote that should require reversal for lack of a valid Terry stop — my colleagues offer a pragmatic justification for finding the *486 officer’s actions reasonable nonetheless. The majority looks for a way to empower the police with constitutional authority to seize citizens not reasonably suspected of anything more than being in the vicinity when someone else fired a gun four times. They search, in other words, for a way to make it constitutionally permissible for the police to seize citizens not reasonably suspected of any criminal, or even of any suspicious, behavior. This remarkable and far-reaching proposition is not based on any principled objective test that I can discern; rather, it is based on a rationale of “a rapidly moving street occurrence” backed by the scant authority of a sixteen-year-old model code never adopted by this jurisdiction, buttressed by one treatise, one state supreme court case, and several intermediate state courts of appeals decisions. These meager — and inapposite — authorities provide an insubstantial basis for the majority’s erosion of the Fourth Amendment prohibition against unreasonable searches and seizures, especially in light of the explicit and contrary words of the Supreme Court in cases such as Cortez, Prouse, Brignoni-Ponce, Montoya de Hernandez, Brown, and Adams .

After reviewing each of the majority’s authorities, I find no “firm constitutional basis,” ante at 477, for allowing seizure of citizens simply because they are near the scene of the crime and thus may be eyewitnesses or complaining witnesses. Furthermore, a close reading of the cases the majority relies on discloses that they — in one form or another — require reasonable, articulable suspicion the person seized was engaged in criminal activity. In other words, they are Terry cases. But even if this court were to adopt the principle that under certain limited circumstances the police could justifiably seize witnesses — a principle I cannot accept as consistent with the Constitution — the facts of this case do not even fit within the circumstances required by the few authorities the majority cites for this remarkable proposition.

Judge Farrell cites the Model Code of Pre-Arraignment Procedure — which neither Congress nor the Council of the District of Columbia has ever adopted — as constitutional authority for the permissible seizure of witnesses. See ante at 476-77. This 1976 Model Code states that witnesses near the scene of a crime involving danger to persons or property may be stopped if “the officer has reasonable cause to believe that [the witness] has knowledge of material aid in the investigation of such crime.” Model Code of Pre-Arraignment Procedure § 110.2(b) (1975) (emphasis added). Judge Farrell fails to cite one statute or case that specifically adopts this provision of the Model Code. Moreover, my colleague never addresses the Code’s “reasonable cause” requirement, which obviously imposes a higher standard for seizing witnesses than reasonable, articulable suspicion under Terry . Thus, Judge Farrell never attempts to apply the “reasonable cause” requirement to the facts of this ease. 5

Judge Schwelb, for his part, never expressly indicates what standard he adopts for seizing witnesses. Whatever it is, however, appears to be lower than a “reasonable cause” standard and seems to be based on dicta quoted from Wold, 430 N.W.2d at 174-75 . See ante at 479. The citations and footnote Judge Sohwelb has omitted from his extended quotation from Wold are telling. Those citations and footnote reveal that, in Wold , the Minnesota Supreme Court referred in dicta to the “freeze the scene” principle articulated in W. LaFave, 3 Search & Seizure § 9.3(d), at 461; the court did not cite the Model Code of Pre-Arraignment Procedure provision expressly adopted by Judge Farrell. Section 9.3(d) of LaFave’s treatise adds a limitation not found in the Model Code; it requires a “reasonable possibility” that at least someone among the small group of persons seized is a suspect of criminal activity. See supra note 4. Judge Schwelb *487 overlooks that limitation, for he does not claim, as Professor LaFave would require, that Officer Schadt had a reasonable basis for believing at least someone the officer seized — appellant or one of his companions — had engaged in criminal conduct. 6

Apparently, therefore, since Judge Schwelb ignores Professor LaFave’s § 9.3(d) limitation, both of my colleagues believe that the police, consistent with the Fourth Amendment, may seize any possible witness, within the limited constraints of the Model Code of Pre-Arraignment Procedure (1975), given reasonable cause (or less?) to believe that the seizee has witnessed a crime. No case — until this one— so holds.

C.

Even if we were to overlook the puzzling inconsistencies between the majority members in formulating the standard for seizing witnesses, the cases on which the majority relies do not meet the majority’s needs. They show, rather, that the police had objective, specific information that the persons seized had been directly involved in recently completed crimes.

In Metzker v. State, 797 P.2d 1219 (Alaska Ct.App.1990), a bystander had informed a police officer that a woman, who had just hitched a ride with appellant, had been assaulted and was probably injured. Based on that specific information and the exigent circumstances of the woman’s probable injury, the court upheld the stop of appellant’s truck and his unrelated arrest for drunk driving. See id. at 1221-22 . In Wold , on which the majority relies most heavily, and which I have already summarized, the court found a Terry basis for the appellant’s seizure and referred to seizing witnesses only in dicta. Similarly, in Appelgate v. Commissioner of Public Safety, 402 N.W.2d 106 (Minn.1987), cited with approval in Wold, the court relied on six factors for determining whether the police had sufficiently detailed information to justify stopping a vehicle near the scene of a recently committed burglary. Id. at 108 (citing W. LaFave, supra, § 9.3(d), at 460 (seizure of person near scene of recent crime when police have information or description that such person may have been involved)). The court concluded that the officers had “reasonable articulable suspicion” for stopping the appellant as a suspect. Id. at 107-108. Finally, Metcalf v. Long, 615 F.Supp. 1108 , 1114 & n. 5 (D.Del.1985), provides no support for the majority’s analysis. The court there noted the uncertain authority for seizing suspected witnesses and accordingly upheld the police seizure of appellant based on reasonable suspicion that appellant himself was engaging in criminal activity. 7

*488 The majority’s ruling, therefore, does not follow from the few authorities on which my colleagues rely.

D.

The matter gets even worse. The majority refuses to acknowledge the additional invasion of privacy many possible witnesses are likely to suffer after seizure. Upon restraining such witnesses’ liberty, the police — based on long-established Fourth Amendment principles arising from legitimate concerns for police safety — presumably may then “frisk” or search such witnesses for weapons. See, e.g., Terry, 392 U.S. at 25-26 , 88 S.Ct. at 1882 . Judge Farrell writes that the majority “expressly do[es] not consider whether a witness detained under the circumstances we describe could be searched.” Ante at 477 n. 16. In this case, of course, the appellant’s furtive gesture resulted in a search which the majority obviously sustains. But even absent a furtive gesture, it is inconceivable to me that a police officer — confronting a possible witness whom the officer is entitled to seize under the majority’s scheme— will not frisk that person out of a concern for personal safety when the confrontation takes place, for example, in a so-called high crime neighborhood at night. How can we realistically tell an officer yes, by all means feel free to seize without Terry justification, but do so at your own peril?

The regime announced by the majority has opened the proverbial Pandora’s box of unanswered questions that can only be addressed after the police push more and more beyond traditional constitutional protections. This court, today, not merely tolerates but invites governmental invasion of the freedom and privacy of citizens not reasonably suspected of any criminal activity, all in the name of investigative expediency. To this I cannot agree.

As the Supreme Court has emphasized: “it is simply fantastic to urge that [a pat down search or frisk] performed in public by a police officer while the citizen stands helpless, perhaps facing a wall with his [or her] hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” Terry, 392 U.S. at 16-17 , 88 S.Ct. at 1877 . With all due respect, this is precisely what the majority’s pragmatism does. It takes far too lightly the balance of reasonableness mandated by the Fourth Amendment, as interpreted by the Supreme Court, and in effect condones the seizure and resulting search of persons not reasonably suspected of anything but witnessing another’s crime.

E.

Although Officer Schadt may have legitimately believed there was a need for “immediate police action” because of a “rapidly moving street occurrence ... involving a dangerous weapon,” ante at 471 (quoting Rushing v. United States, 381 A.2d 252, 256 (D.C.1978)), a police officer’s need for action does not somehow take that officer’s conduct outside established principles delineating the scope of constitutionally permissible seizures. The entire rationale of constitutional reasonableness under Terry is premised on “rapidly moving street occurrences” where the police must act before waiting for probable cause to arrest in order to detect or deter criminal behavior. See Terry, 392 U.S. at 20 , 88 S.Ct. at 1879 (“[W]e deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observation of the officer on the beat_”). In fact, all of the cases Judge Farrell cites for the majority’s “exigent circumstances” rationale for seizing witnesses are cases involving reasonable suspicion of suspects, not witnesses.

Under Terry , if Officer Schadt reasonably had thought appellant and his companions were involved in criminal activity, he *489 would have had a legitimate justification for stopping them as suspects. On the other hand, because the officer’s objective information indicated only that they were possible witnesses because they were near the scene of a possible crime, other methods of police investigation short of seizing them were available. 8 Because “[a]n innocent person might have reacted no differently [from appellant] in the circumstances,” and because none of Officer Schadt’s observations before seizing appellant added any “independent information compensating for the generality” of his knowledge that someone in the area had just fired a gun four times, he had no legitimate objective basis for seizing appellant. Cauthen v. United States, 592 A.2d at 1025 .

Furthermore, this was not a situation where the police made “[a] brief stop of a suspicious individual, in order to determine his [or her] identity or to maintain the status quo momentarily while obtaining more information.” Adams v. Williams, 407 U.S. at 146 , 92 S.Ct. at 1923 (emphasis added), cited in Stephenson v. United States, 296 A.2d 606, 609 (D.C.1972), cert. denied, 411 U.S. 907 , 93 S.Ct. 1535 , 36 L.Ed.2d 197 (1973); see District of Columbia v. Gandy, 450 A.2d 896, 900 (D.C.1982) (purpose of privilege to stop suspicious persons under Terry “is to enable police officers to maintain the status quo while gathering more information”). Because the person or persons whom Officer Schadt suspected of firing the shots had fled the scene, and other persons were “running all over the place,” there was no “status quo” to maintain, and certainly no basis for believing appellant was a “suspicious individual.” Additionally, there was no evidence that appellant and his companions were fleeing the scene for any reason other than the common sense desire to leave after someone else had fired a gun nearby. And, there is no basis for inferring that they were attempting to flee a show of authority. Indeed, Officer Schadt’s first show of authority was to order them to stop and put their hands in the air. There accordingly was no implied consciousness of guilt to add to the reasonable seizure calculation.

Finally, the majority makes much of the fact that a “violent” crime had just taken place. Although gunfire obviously is strong evidence of a crime of violence, this is not a case like Wold , where the police officer arriving on the scene had observed (1) a wounded victim and (2) the person subsequently seized at the scene acting suspiciously. In any event, Terry and its progeny have always set the required constitutional standard to apply when “swift action” is required “predicated upon the on-the-spot observation of the officer on the beat.” 392 U.S. at 20 , 88 S.Ct. at 1879 . Officer Schadt saw nothing that would warrant the intrusion he imposed — which, in breaking new legal ground, the majority unfortunately justifies.

III.

In reaching out to establish a new constitutional principle for the District of Columbia, neither Judge Farrell nor Judge Schwelb acknowledges or explores the obvious slippery slope he creates, given “the reality of the street.” Ante at 481. In a city where, tragically, shots ring out all the time, this slope may lead to a dangerous descent from reasonable police actions to a point where the police can round-up for nonconsensual questioning anyone who lives in, who is visiting, or who is just passing through high crime (and hence im *490 poverished and non-white) areas at an unfortunate time when the police hear gunfire or, presumably, hear or observe any other incident indicating criminal activity. As the Public Defender Service points out in its amicus brief, the majority may be opening the door for the police to justify virtually any on-the-scene detention (and subsequent search) — later determined not to measure up to Terry standards — on the ground that it measures up to the lower “Williamson standard”: the person detained was nearby when a “violent” crime may have taken place and therefore might have known something about it. 9

Neither the Supreme Court nor this court has ever countenanced this vision of Fourth Amendment “reasonableness” where the government need only plead “fast-moving events” to justify seizing someone near the scene of a suspected “violent” crime merely because that person might know something about the crime. Cf. Ybarra v. Illinois, 444 U.S. 85, 91 , 100 S.Ct. 338, 342 , 62 L.Ed.2d 238 (1979) (a person’s mere proximity to others suspected of criminal activity does not give rise to reasonable suspicion justifying search and seizure); Brown, 443 U.S. at 51-52 , 99 S.Ct. at 2640-2641 (police had no justification for seizing appellant observed walking away from another man in area known for drug traffic); Smith v. United States, 558 A.2d 312, 314-15 (D.C.1989) (en banc) (discussing with approval cases in which courts have refused to justify seizures predicated upon proximity to suspicious individuals); Johnson v. United States, 468 A.2d 1325, 1327 (D.C.1983) (police had no legitimate basis for compelling driver of car to “come here” where driver and friends were sitting in car late at night in high crime area), rev’d on other grounds, 496 A.2d 592 (D.C.1985).

Let us be clear: in allowing seizures of possible witnesses — none of whose seizures could be justified under Terry by reasonable, articulable suspicion of participation in past or impending criminal activity — the majority today announces a new, radical rule of law. This ruling, with its implications, requires careful scrutiny and public discussion, for this court is eroding traditional constitutional rights without a signal from the Supreme Court.

The incredible, and truly sad, irony of the majority’s result is that it now appears easier for the state to seize someone as a “possible witness” in a “fast-moving situation” than it is to seize someone suspected of a crime under Terry’s reasonable articu-lable suspicion requirement. To that I must emphatically dissent and hope for a better day. I vote to reverse.

. That probably is the reason why the government neither briefed nor argued this proposition until this court asked for post-argument submissions.

. There is no indication whatsoever in the record that anyone had been injured. Thus, the reference to "victim," on the facts of this case, can only mean a possible complainant: an eyewitness at whom the shooter aimed and missed. *482 Rather than adopt — as the majority does — the trial court’s unsubstantiated conclusion that Officer Schadt could have reasonably believed appellant or one of his companions had been a "victim” of a crime, I will refer to appellant in the remainder of this opinion as a “possible witness,” either eyewitness or complaining witness, except when I quote from one of my colleague’s opinions.

. See W. Ringell, 2 Searches & Seizures, Arrests and Confessions, § 13.4(d)(2) at 13-46.1 — 13.47 (1991) (chapter on Terry stop and frisk) (discussion of Wold in section on suspect’s nearness to scene of crime as factor which, when combined with other factors, may justify Terry stop); see also In re J.G.J., 388 A.2d 472, 474 (D.C.1978) (per curiam) (noting proximity to scene of crime as one factor justifying Terry stop).

. In his treatise, Professor LaFave declares:

[ T]he power to stop may constitutionally be extended so as to encompass the brief detention of potential witnesses in at least certain situations.... [where] "an officer coming upon the scene of a recently committed crime [can] ‘freeze’ the situation and obtain identifications and an account of the circumstances from the persons present.”

W. LaFave, 3 Search & Seizure § 9.2(b) at 353-54 (quoting Model Code of Pre-Arraignment Procedure § 110.2(l)(b)). A reading of all relevant sections of LaFave’s treatise gives some definition to the "certain situations” in which he believes the police may "freeze the scene”:

In a situation such as [a recently committed robbery], ... the police must have some authority to freeze the situation. Even if the circumstances are such that no one person can be singled out as the probable offender, the police must sometimes be allowed to take some action intermediate to that of arrest and nonseizure scrutiny. This is not to suggest a "dragnet approach,” resulting in the temporary seizure of a large number of persons within the range of possible flight of the robber, is either permissible or desirable. What are needed and appropriate in this context are "selective investigative procedures" whereby seizures are made only of those as to whom there exists a “reasonable possibility" of their being the robber.

Id. § 9.3(d), at 461 (footnotes omitted) (emphasis added), cited with approval in Wold, 430 N.W.2d at 174 -75 n. 3, ante at 475 (Farrell, J., concurring). It is therefore clear that Professor LaFave himself justifies freezing the scene, permitting seizure of possible witnesses or suspects, only if there is a reasonable, objective basis— call it a Terry basis — for believing that at least one of the persons seized has committed a crime.

. Although it is not entirely clear, "reasonable cause” most likely requires the same quantum of proof as "probable cause.” From the record, it does not appear that Officer Schadt had reasonable or probable cause to believe appellant was doing anything but trying to get away from an area where four shots had just been fired.

. Judge Schwelb asserts that I have "juxtapos[ed] two unrelated passages located in different parts of the same treatise.” Ante at 480 n. 4. Those two passages, quoted supra at note 4, are related in this way: The first, from § 9.2(b) of Professor LaFave’s treatise, quotes from the Model Code on which Judge Farrell relies. The second, from § 9.3(d) of the same treatise, is quoted in the passage in Wold on which Judge Schwelb relies. Thus, Judge Schwelb himself relies on § 9.3(d) because he quotes from Wold , which relied on it. Although Judge Farrell, as well as Judge Schwelb, purports to rely on Wold , that case itself only cites § 9.3(d) of LaFave's treatise; Wold never mentions the Model Code. This suggests the question, which my colleagues never address, whether the Model Code and § 9.3(d) are reconcilable. It is unclear whether Professor LaFave, in § 9.3(d), intends to import into the Model Code (discussed in § 9.2(b)) a limitation not found there — that the police must reasonably believe at least one of the small group of persons seized committed a crime — or instead intends to say that in his own opinion, without reference to the Model Code, that a Terry- type limitation on seizing witnesses should apply.

Whatever Professor LaFave intends, it would appear that both of my colleagues would not require the § 9.3(d) limitation, since Judge Farrell purports to rely primarily on the Model Code, which does not expressly contain the limitation, and Judge Schwelb, even if relying on § 9.3(d) by citing Wold , effectively repudiates the limitation by acknowledging that Officer Schadt did not have reasonable, articulable suspicion that at least one of the persons seized, appellant or a companion, had engaged in criminal activity. As it turns out, therefore, both of my colleagues effectively adopt the Model Code, without limitation — and not the approach discussed in Wold .

. In Keeton v. State, 427 So.2d 231 (Fla.Dist.Ct.App.1983) (per curiam), the intermediate appellate court, in a three paragraph opinion, found *488 it reasonable for the police to detain appellant near the scene of a recently completed crime after appellant told police that he had witnessed the flight of persons fitting the description of the alleged perpetrators. The fact that appellant had “waived his constitutional rights” and that his answers to investigatory questions led to probable cause for the police to arrest him for the crime, id. at 232 , may have contributed to this ruling, which is far from clear.

. For example, the officer could have attempted a consensual encounter with appellant and his companions. Alternatively, the officer could have written down the car’s license number and later contacted the owner if further investigation on the scene, including consensual interviews of bystanders, showed that appellant or his companions had been directly involved in a shooting. That this allows an investigating officer to do more than "twiddle his thumbs” as Judge Schwelb puts it, ante at 481, is self-evident.

But even more to the point, there are constitutional norms — long adhered to — that prevent the police from seizing people short of reasonable suspicion, no matter how tempting an exception based on mere intuition may be. We impose constitutional limits on the police power to investigate crime in order to protect us all against an overly intrusive State Investigator.

. Judge Farrell suggests that by adhering to what I see as fundamental constitutional principles we would be encouraging the police to lie under oath and not admit they have seized citizens because they are not sure whether they are witnesses or suspects. See ante at 477. But if the police have reasonable articulable suspicion that someone is a suspect, they already have constitutional authority under Terry to stop them. Therefore, I believe it is the majority’s outcome that will encourage police officers to ignore the law: under the majority’s regime, the police can skip past the Terry requirement of reasonable articulable suspicion for investigative seizures and seize someone merely on the basis of "exigent circumstances” as a "possible witness.”