single request-"[h]old it, sir, could I speak with you a second?"-coupled with a touch to the elbow did not constitute a seizure
How later courts described this case
- single request-"[h]old it, sir, could I speak with you a second?"-coupled with a touch to the elbow did not constitute a seizure
- where officer placed his hand on appellee’s el bow and asked to speak with him this “initial confrontation with appellee did not amount to ... a ‘seizure’, within the purview of Terry"
- where officer placed his hand on appellee’s el *199 bow and asked to speak with him this “initial confrontation with appellee did not amount to ... a ‘seizure’, within the purview of Terry"
- referring, for the first time in a published opinion, to a “Terry-stop”
Written by the judges who cited it.
Later courts went against this
Questioned by Smith v. United States, 1989 D.C. App. LEXIS 70 (1989)
To the extent, if any, that Burrell may conflict with our holding here, we note that its continuing vitality has been called into question by United States v. Mendenhall, supra.
The opinion
NEBEKER, Associate Judge
(concurring) :
Whenever a colleague dissents from a view or an opinion which I have expressed or adopted that fact gives me cause to suspect the validity of my own reasoning. Intractability, in my view, is not the hallmark of those commissioned as we are to resolution of legal questions arising from human conflict. I have thus undertaken to reappraise the factual predicate, reasoning, and conclusion expressed in Judge Pair’s opinion. I remain convinced that it is correct and I fail to see how our practical and realistic reading of this record can create a worrisome erosion of rights even in the unlikely event that this factual setting would be repeated. Our holding is simply that as a matter of law no infringement on rights occurred when appellee exclaimed regarding registration of the gun. We are not concerned with what might have been justifiable police conduct had that alarmed and alarming statement not been made. Perhaps no constitutionally sanctioned intrusion was permissible on these facts, hut it is clear to me that none resulted until appellee’s outburst supplied an abundant basis.
In my view the dissent is predicated on a reading of the record which gives too much literal significance to the phrasing of certain questions asked of the officer. It is this fault which I also find with the trial court’s ruling, telegraphed as it was by the leading questions to which the dissent clings. No holding in this constitutional area, commanding as it does all the common sense and reasonableness man can bring to bear, requires courts to abandon a realistic and practical approach to such human encounters as we have here. As I understand the dissenting opinion it would tell the officer he was constitutionally wrong in seeking to speak with appel-lee. On this record, I cannot agree with such criticism. In short, this street encounter does not rise to constitutional dimensions.