United States v. Burrell

GALLAGHER, Associate Judge

(dissenting) :

I dissent because I believe the majority opinion in this case will, if it stands, set a worrisome precedent in this city in the constitutional area of the right to privacy. Those who have followed the trend of judicial decisions in the past few years know the courts generally have recognized that police must be granted more leeway, within reasonable bounds, in dealing with street crimes than in years gone by when urban life was more secure for all.

This recognition was highlighted by the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), which, essentially approved a procedure popularly known as “stop and frisk.” But in my view, the majority opinion in this case avoids the strictures in Terry , and goes to an extreme hardly contemplated by the Supreme Court in that decision.

At 4 o’clock in the afternoon during the middle of April last year, a policeman was walking his beat in the downtown shopping area of this city. He went west on F Street, N.W., and turned the corner at 13th Street to go south toward E Street on the east side of 13th Street. As he turned the corner he glanced at people standing at the bus stop. He noticed appellee as he was “acting in a suspicious manner” because after he turned the corner appellee “snatched his hand out of his pocket and started rubbing his face.” The officer continued all the way to 13th & E Streets, turned around and came back. He said that while he was going down the street to the next block he continuously looked over his shoulder and appellee was watching him “all the way down the street.” 1 *849 When the officer later came back to within about 25 feet of appellee, the latter crossed the street, went one block to 13th and G Streets, crossed 13th Street to the west side and started south on 13th Street at which point the officer, who had been following him, laid his hand on him and stopped him on suspicion of criminal activity with the announced purpose of interrogating him.

The officer was the only witness at the hearing on the motion to suppress and when counsel had concluded their examination of him, the trial court asked some questions in an effort to understand the officer’s conduct. The following transpired:

THE COURT: I want to ask a question. It is not clear to me — I think that it was testified that while you observed the Defendant at the bus stop that he snatched his hand out of his pocket and began scratching his face. What did that mean to you? Why does that seem important ?

[OFFICER]: It just seemed that something was wrong. It didn’t have any significant value. When I turned the corner—

THE COURT: Were you walking or were you in a patrol car.

[OFFICER]: Walking, right.

THE COURT: Were you in uniform?

[OFFICER]: Yes, sir.

THE COURT: What was it about this man that attracted your attention?

[OFFICER]: One, the way he took his hand out of his pocket when I turned the corner and he continuously watched me as I walked down the street.

THE COURT: Did he have anything in his hand?

[OFFICER]: No, sir.

THE COURT: What was it about taking his hand out of his pocket that you felt was unusual ?

[OFFICER]: Normally, people wouldn’t do that when they saw a policeman.

THE COURT: Oh, I don’t know. What were you basing that on?

[OFFICER]: The fact that it aroused my suspicion.

THE COURT: The fact that he took his hand out of his pocket ?

[OFFICER] : Yes, sir.

THE COURT: All right. Any further questions?

[DEFENSE COUNSEL]: No further questions.

THE COURT: Thank you, Officer, you may step down. One more question. Before you detained him by taking hold of his arm, did you try to call to him to stop him?

[OFFICER] : No, sir.

THE COURT: In other words, you grabbed his arm and then spoke to him.

[OFFICER]: That’s right, Your Hon- or.

Having heard the argument of counsel and apparently feeling that it understood the circumstances of the occurrence, the court made the following findings:

THE COURT: Anything further? The Court is prepared to rule. It accepts the description of events as presented by the police officer as his best recollection of what happened.

The Court is called upon in a case of this nature to reconstruct those events and to make a decision as to whether the officer acted as a reasonable and prudent officer would under these circumstances confronting him and whether he did have probable cause to do as he did in this case.

The Court does not in any way doubt that the officer had the best of intentions but as the Court was trying to find out *850 in the questions to the officer with regard to what it was that made him suspicious, the officer replied that the man took his hand out of his pocket and scratched his face.

In the Court’s opinion this is not probable cause in this case. As to the voluntary admission the Court has some problems with that because when the officer put his hands on the Defendant it was pretty apparent that the Defendant was not free to go or move or in any way resist. So that, I do not think that we are looking at a voluntary admission at all.

The officer also indicated that he did not call to him or try to stop him prior to his putting his hand on hwc from the rear at the time that he stopped him.

The Court accepts the fact that the officer acted in good faith. This Court feels that he did not have probable cause to do as he did in this case so it’s going to grant the motion. (Emphasis supplied.)

I think the majority”opinion is wrong in several respects. In the first place, it states, “The hearing judge was apparently of the view that an arrest or seizure of ap-pellee occurred when the officer placed his hand on appellee’s elbow because he applied, at that instant, the standard of probable cause. We think this was error.”

The fact is the hearing judge did not find appellee was placed under arrest. At no time during the hearing nor in the findings did the judge so much as use the word “arrest.” The hearing judge stated: “The Court is called upon ... to make a decision as to whether ... he did have probable cause to do as he did in this case” and subsequently repeated, “This Court feels that he did not have probable cause to do as he did in this case. . . . ” (Emphasis supplied.) At the end of his questions to the officer, the court asked him, “Before you detained him by taking hold of his arm, did you try to call to him to stop him?” (Emphasis supplied.) All indications are the trial court viewed the initial occurrence not as an arrest but as a seizure short of an arrest. 2

Insofar as this court’s decision holds the finding of the trial court than an arrest occurred initially was error, I think the majority is holding as error a finding never made. But this does not end the matter because the court holds as error the hearing judge’s determination that appellee was “not free to go or move or in any way resist”, which patently must be considered a finding that appellee was “seized” within the meaning of Terry , and, consequently, the officer’s actions are required to be scrutinized under the reasonableness standard of the fourth amendment. 3 “It is quite *851 plain that the Fourth Amendment governs ‘seizures’ of the person. ... It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry, supra at 16 , 88 S.Ct. 1877 . In view of the majority’s conclusion that there was no seizure and that the officer’s actions did not involve any intrusion upon fourth amendment rights, the crucial issue becomes whether the hearing judge’s finding that appellee had been seized is clearly erroneous, i. e., manifestly wrong.

The trial court was careful to understand what had transpired and why. Having done so, it found that due to the officer’s action in putting his hand on appellee from the rear and stopping him, at the same time saying “hold it” for purposes of interrogation, appellee “was not free to go or move or in any way resist.” That finding seems entirely reasonable, and certainly not manifestly wrong, and constitutes a holding there was a seizure. Terry, supra at 16 , 88 S.Ct. at 1877 .

But, says the majority, it was error (clearly erroneous) to find a seizure because the officer “merely touched appellee’s elbow” and “coupled this touching with the simultaneous request to speak with appel-lee.” It equates the officer’s action with the right of a police officer to seek information from anyone.

There is one thing wrong with that approach. The trial court found upon ample evidence that there was a seizure and nowhere does the majority meet this finding head-on, let alone say wherein it is wrong. Surely, trial judges are owed that much. The officer testified at one point he did not “grab him as if to snatch him” but “merely touched him trying to stop him.” On two other occasions, while being examined by the court, the officer affirmed that after following him he took hold of his arm from the rear and stopped him for questioning. After hearing all the testimony and observing the only witness the court concluded the officer’s action constituted a seizure. I am at a loss to understand upon what basis the majority overturns this finding and substitutes its own. Having done so, it vaults to the conclusion there is no “constitutional intrusion.”

Implicit in this, I should imagine, is the court’s realization that appellee’s action in taking his hand out of his pocket and rubbing his face plus looking down the street in the direction the officer walked, and later crossing the street to walk up the block and across, is too consistent with innocent behavior of pedestrians on any afternoon in a downtown shopping area and falls short of “articulable facts” warranting a seizure for investigation. Terry, supra at 21 , 88 S.Ct. 1868 ; see United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971). 4

In my view, the majority opinion in this case conflicts with our decision in Robinson v. United States, D.C.App., 278 A.2d 458 (1971), where, under circumstances more suggestive of criminal activity as a matter of degree, we held the facts did not warrant a street detention by the police officers. The majority points to our decision in United States v. Lee, D.C.App., 271 A.2d 566 (1970), as supporting its position. But in Lee the officers were investigating a robbery of a store and were advised of suspicious activity on the part of two men nearby, one of whom was concealed behind a parked truck, at which point the officers asked them for identification and saw a bulge as the defendant reached in his pocket. The defendant was then seized and a pistol was found on his person. I consider that, unlike here, the officers there were able to articulate a reasonable suspicion to support the seizure.

I find it puzzling that the majority relies on dicta in a separate opinion by the late Judge Prettyman in Trilling v. United States, 104 U.S.App.D.C. 159 , 183, 260 F.2d 677, 701 (1958), for the proposition that “the police can question a person not a suspect or one who is a mere suspect,^so long as the period of detention and the mode of the *852 questioning are reasonable under the circumstances for the purpose of obtaining information.” I would go further and say not only a police officer may do so but any citizen has a right to seek information from anyone so long as he does not restrict the person’s liberty, or “seize” him. Trilling did not involve the problem we have in this case; it presented solely a Mallory 5 question and involved the admissibility of confessions. Furthermore, in the passage quoted from Trilling, Judge Prettyman was discussing police activity in connection with the investigation of a reported crime. Trilling, supra, 104 U.S.App.D.C. at 183, 260 F. 2d at 701 . There was no reported crime involved here.

The ultimate effect of the court’s opinion in this case is to outflank Terry . Because if an appellate court may summarily overturn a reasonable trial court finding that there was an investigative seizure of one suspected of criminal activity without a reasonable basis and, instead, simply classify the police action as merely an effort to gain the suspect’s attention for the purpose of obtaining information from him, then the requirement for a Terry stop that there be “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion” is avoided. Terry, supra 392 U.S. at 21 , 88 S.Ct. at 1880 . I think this would lead inevitably to unreasonable investigative seizures on the basis of an “inarticulate hunch,” which Terry sought to guard against. Terry, supra at 22 , 88 S.Ct. 1868 . It should hardly need saying that the subjective good faith of an officer cannot be the test. Because if it were, “the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97 , 85 S.Ct. 223, 229 , 13 L.Ed.2d 142 (1964).

I think the court is venturing into dangerous constitutional waters if it blurs essentials of Terry that (a) where on a show of authority by an officer a citizen is in effect restrained from walking away a “seizure” has occurred, and (b) the “seizure” must be founded upon an articulable suspicion. The way we will get into deep water is to plaster over a restraint of liberty by show of police authority with the innocuous label of “a touching with the simultaneous request to speak,” as is done here by the court. One practical pitfall is that the need of the police for a self-protective frisk may be just as great but would be precluded. Because it is evident in Terry that “it is temporary detention, warranted by the circumstances, which chiefly justifies the protective frisk for weapons.” Terry, supra 392 U.S. at 34 , 88 S.Ct. at 1886 (White, J., concurring). If there is no warranted temporary detention the person “certainly need not submit to a frisk for the questioner’s protection” as “. . . the right to frisk . depends upon the reasonableness of a forcible stop to investigate a suspected crime.” Terry, supra at 32-33 , 88 S.Ct. at 1886 (Harlan, J., concurring).

I find it rather incredulous that the concurring opinion states I feel the officer was “constitutionally wrong” in seeking to speak with appellee for a second. As I said earlier, any person may speak with any other person on the street unless he seizes him without justification. Terry, supra at 34 , 88 S.Ct. 1868 (White, J., concurring). It would be pure fantasy to say a policeman could not do so. My main concern is that, if this decision stands, we may be embarked upon a course where after focusing on a suspect, as here, a police officer may “seize” him simply upon the basis of an “inarticulate hunch” or the subjective good faith of the officer. This is quite different from merely seeking information.

The burdens on the people and police in this crime ridden city are dreadful to contemplate. Yet, while we should give the police all reasonable “elbow room” in com *853 bating this crime, we must stay within the Constitution. 6

I think the findings of the trial court were manifestly fair and certainly not clearly erroneous, and I would affirm.

. This is a long block on a busy downtown street.

. With the relatively recent emergence in the decisions after Terry v. Ohio, supra, of a constitutional seizure short of arrest in which the officer must have a reasonable basis for the seizure, it is understandable that the hearing judge chose to phrase his determination of the reasonableness of such a seizure under the well-known terminology of “probable cause.” One commentator has said, “[Sjince the case [Terry seizure] is to be approached in traditional fourth amendment conceptualizations, the ultimate question remains whether there is probable cause — not for an arrest — but for a detention.” Cook, Varieties of Detention and the Fourth Amendment, 23 Ala.L.Rev. 287, 299 (1971). For articles advocating the use of “probable cause” to test the reasonableness of non-arrest detentions, see LaFave, Street Encounters and the Constitution : Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40 (1968) ; Comment, Why Not Probable Cause for Stop and Frisk, 14 S.D.L.Rev. 141 (1969). See also Sawyer v. Craven, 325 F.Supp. 526, 530 (C.D.Cal.1971).

. See, e. g., United States v. James, D.C.Cir., 452 F.2d 1375 (decided November 19, 1971) ; United States v. Hines, U.S.App.D.C. (No. 23391, decided November 1, 1971) ; United States v. Harflinger, 436 F.2d 928, 933 (8th Cir. 1970), cert. denied, 402 U.S. 973 , 91 S.Ct. 1660 , 27 L.Ed.2d 137 (1971) ; United States v. Dowling, D.C.App., 271 A.2d 406 (1970) ; Commonwealth v. Hicks, 434 Pa. 153 , 253 A.2d 276 (1969).

. See also cases cited in note 3, supra.

. Mallory v. United States, 354 U.S. 449 , 77 S.Ct. 1356 , 1 L.Ed.2d 1479 (1967).

. Urban crime now has such a broad base that only the naive would suppose it could be reduced to the proportions of a generation ago without a massive national peacetime effort directed to several facets of our society, such as we have not seen before.