Cousart v. United States

ROGERS, Chief Judge,

with whom FERREN, Associate Judge, joins, dissenting:

Appellant, an automobile passenger about whom the police had no information to suggest that he was armed or dangerous or involved in any criminal activity, was confronted by a police officer holding a shotgun in the “ready” position and told to *102 put his hands on the ear ceiling. This occurred after the car had stopped for exceeding the speed limit by 15 miles an hour in a 30 miles per hour zone, and the first officer, whose gun had remained in its holster, had escorted the driver to his police car in order to issue the driver a traffic citation. Appellant had not been observed moving in any suspicious manner. Nor as the majority posits, did the second police officer simply insist that appellant keep his hands in view. See majority opinion at 97. If that were all that happened, this would be a different case, and an easy case. The trial judge, however, did not view the case as easy — ruling that appellant had been seized and observing that this was a “very close case” — and the record does not permit this court to do so either.

Undoubtedly, the police must be able to take reasonable precautions for their safety. But the Supreme Court has emphasized that the degree of police intrusion that can be constitutionally sustained under the Fourth Amendment depends on consideration of the public interest served, the nature and scope of intrusion, and objective facts upon which officer relied in light of his knowledge and experience the level of police intrusion. See United States v. Mendenhall, 446 U.S. 544, 561 , 100 S.Ct. 1870, 1880 , 64 L.Ed.2d 497 (1980) (citations omitted). Here, in the absence of articulable suspicion that appellant was armed or dangerous or engaged in criminal activity, appellant was ordered to assume the classic arrest posture by the second police officer who was holding a shotgun in the ready position after parking his car to block the car in which appellant was a passenger. See id. at 554 , 100 S.Ct. at 1877 (seizure occurs when “a reasonable person would have believed he [or she] was not free to leave”). Contrary to the majority’s suggestion, see majority opinion at 101, this is hardly the same type of intrusion as occurs when an officer requests a passenger to get out of the car. See Thomas v. United States, 553 A.2d 1206 , 1207 n. 7 (D.C.1989). Nor can it be equated with an officer requesting a passenger merely to keep his hands in view. See In re T.T.C., 583 A.2d 986 , 988 & n. 2 (D.C.1990) (prior decisions uphold Terry stop where officer’s gun drawn involved police stop of persons about whom police had information that the suspect was armed).

The majority concludes, nevertheless, that appellant was not unlawfully seized, ignoring the dictates of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). See United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 694 , 66 L.Ed.2d 621 (1981) {Terry requires “particularized and objective basis for suspecting the particular person stopped of criminal activity”). Instead the majority adopts a standard of reasonableness that is torn asunder from the history and purpose of the Fourth Amendment. Cf. United States v. Rabinowitz, 339 U.S. 56, 82 , 70 S.Ct. 430, 442 , 94 L.Ed. 653 (1950) (dissenting opinion of Mr. Justice Frankfurter, joined by Mr. Justice Jackson) (“By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent.... It may safely be asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon police action are most scrupulously observed”). 1

Thus, the majority has given priority over all other considerations to an officer’s *103 perception of personal safety, as Judge Ferren points out in his separate opinion, in a context where the officer had “no discernible basis whatsoever ... for seizing any passenger of the car.” 2 Post at 110. But, in Terry, supra, the Court specifically rejected “inarticulate hunches” and “simple good faith” of the officer as sufficient bases for “intrusion upon the constitutionally protected interests of the private citizen,” observing that “[i]f subjective good faith alone were the test, 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” (quoting Beck v. Ohio, 379 U.S. 89, 97 , 85 S.Ct. 223, 229 , 13 L.Ed.2d 142 (1964)). 392 U.S. at 21-22 , 88 S.Ct. at 1879-80 ; see Duhart v. United States, 589 A.2d 895, 897 (D.C.1991) (“The central inquiry in every Terry stop controversy is whether, given the totality of the circumstances at the time of the seizure, the police officer could reasonably believe that criminal activity was afoot”) citing Terry, supra, 392 U.S. at 30 , 88 S.Ct. at 1884 . Under the en banc majority's new analysis, for certain citizens in certain parts of the District of Columbia, associational and locational taints will suffice; protection under the Fourth Amendment will be at the police officer’s discretion. But see Smith v. United States, 558 A.2d 312 (D.C.1989) (en banc) (rejecting associational and locational taints as sufficient justification for a Terry stop).

Accordingly, for the reasons set forth in my opinion of September 20, 1991, before the division which Judge Newman 3 joined, reprinted below, and the dissenting opinion of Judge Ferren, post, I respectfully dissent.

Before the Division:

ROGERS, Chief Judge:

Appellant James Cousart appeals his convictions for carrying a pistol without a license, D.C.Code § 22-3204 (1989), possession of an unregistered firearm, id. § 6-2311, and unlawful possession of ammunition, id. § 6-2311, on the ground that the trial judge erred by denying his motion to suppress a gun found in the car in which he was a passenger. We hold that absent articulable suspicion regarding the passenger, the seizure was unlawful and accordingly, we reverse.

I

On January 3, 1988, at approximately 3:30 a.m., Officer Thomas Braswell of the Traffic Branch of the Metropolitan Police Department was on patrol in a marked police cruiser. At the intersection of First Street and Florida Avenue, Northeast, he observed a grey Pontiac driving southbound on First Street toward New York Avenue at a normal speed of thirty miles per hour. 1 As the car approached New York Avenue, the driver made a wide U-turn onto New York Avenue. Braswell followed the car westbound on New York Avenue. When the car’s speed approached 45 miles per hour, Braswell “activated his emergency equipment,” and pursued the car for two long blocks. 2 He also radioed for assistance, stating he was pursuing the car. The car pulled over immediately when Braswell was behind the car at First Street and New York Avenue, Northwest. Officer Braswell testified that his only purpose in stopping the ear was to issue a traffic *104 citation; he had no information to indicate that the people in the car were armed and dangerous or were engaging in criminal activity, and he only wanted to find out if the driver had a valid driver’s license and registration and to issue a traffic citation. At no point did he pull his gun out of its holster.

Officer Joseph L. Massey, who monitored the radio broadcast that a Traffic Division cruiser was chasing an automobile for an unknown reason and then later that the auto had stopped, responded to “assist a fellow officer and to ensure his safety,” being aware that the area was a high drug area. When he arrived at First Street and New York Avenue, the Pontiac had already pulled over. Massey parked his cruiser in front of the Pontiac. Two other police units also arrived on the scene. Massey saw Officer Braswell at the window of the Pontiac talking to the driver and then saw him order the driver out of the car and direct the driver to walk over to his scout car, which was behind the Pontiac.

As Officer Braswell questioned the driver near his scout car, Officer Massey walked over to the front of the Pontiac with his shotgun pointed up in the air. Like Braswell, Massey had no information that the people in the car were armed and dangerous or engaged in criminal activity; nor had he seen appellant (or anyone else in the car) do anything suspicious. Nevertheless, Massey ordered the two passengers to place their hands on the ceiling. Appellant dropped his hands below the dashboard, his right shoulder dropping down between the seat and the door, and then came back up empty handed. Massey pointed his shotgun at appellant and ordered him to put his hands up in the air. Appellant complied, and Massey requested Officer Zerega to remove appellant from the car. As Officer Zerega did so, he noticed a brown paper bag between the passenger seat and the door, and upon touching it, he felt a hard object, which proved to be a gun. Massey explained that he had his shotgun in his hands as he approached the Pontiac because “within the past 30 days seven policemen have been shot by various people in the District.”

The trial judge ruled that appellant had standing to move to suppress the gun and that he was seized when Officer Massey initially ordered him to raise his hands to the ceiling. Noting that this was a “very close case,” the judge concluded that in order to ensure their own safety, it was reasonable for the police to require appellant to raise his hands and keep them in sight. The trial judge noted that at the time the driver stopped the car, Officer Braswell knew that the car had attempted to flee the police in a high narcotics area. This information, although not communicated to the other officers, could, the trial judge ruled, be imputed to them. While Officers Massey and Zerega had no idea what had transpired, the judge concluded that it would be unreasonable to expect the officers to approach the ear without doing “anything to protect themselves until they [could] find out what the situation is.”

II

The central inquiry under Terry v. Ohio, 892 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), is whether the police action in seizing appellant was reasonable. This requires “a comparison between the degree of police intrusion and the level of police justification.” In re T.T.C., 583 A.2d 986, 989 (D.C.1990) (citing United States v. Mendenhall, 446 U.S. 544, 561 , 100 S.Ct. 1870, 1880 , 64 L.Ed.2d 497 (1980)). Police conduct will only be justified under the Fourth Amendment when “a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry, supra, 392 U.S. at 30 , 88 S.Ct. at 1884 (emphasis added). Nonetheless, at a minimum, the police officer must have “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981). *105 “[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, supra, 392 U.S. at 21 , 88 S.Ct. at 1880 . 3

Appellant contends that he was unlawfully seized when Officer Massey approached the car with a drawn shotgun and ordered him to raise his hands to the ceiling because the officer lacked specific and articulable suspicion to believe that appellant was armed and dangerous or engaging in criminal activity. 4 He maintains that he exhibited no suspicious activity of his own, but was merely a passenger in a car whose driver had exceeded the speed limit by 15 miles per hour. The government does not contend that appellant was not seized, but rather responds that the seizure was justified because Officers Braswell and Massey reasonably believed that the driver and occupants posed a potential threat to their safety, and Massey’s order that the passengers raise their hands and, after appellant’s furtive gesture, exit the car was a reasonable precaution. 5 It relies on the circumstances that the police were pursuing a fleeing ear in a high narcotics area at a time when, within the last months, seven police officers had been shot. Further, the government maintains that Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977), should apply to passengers so that whenever an automobile has been detained for a traffic violation, the police may order the passenger to keep his hands in view. It relies on the circumstance that the evading car and “appellant’s furtive movement within the car, clearly gave rise to the suspicion that approaching and detaining the vehicle and its occupants was not without risk.”

A

The difficulty with the government’s reliance on a fleeing car as a basis for seizing a passenger arises, of course, from the fact that the passenger is not in control of the movement of the car. “[A]s a general proposition^] ... flight from authority— implying consciousness of guilt — may be considered among other factors justifying a Terry seizure.” Smith v. United States, 558 A.2d 312, 316 (D.C.1989) (en banc) *106 (quoting United States v. Johnson, 496 A.2d 592, 597 (D.C.1985)). However, a desire to avoid the police, without more, cannot support an inference of consciousness of guilt. In re D.J., 532 A.2d 138, 141 (D.C.1987). To provide a basis for reasonable suspicion, the facts surrounding the efforts to avoid the police must lead rationally to the conclusion that the individual’s flight indicated consciousness of guilt. 6 See Smith, supra, 558 A.2d at 317 (and eases cited). In the context of an automobile passenger, the court has recognized that “one person’s flight is imputable to another only if other circumstances indicate that the flight from authority implies another person’s consciousness of guilt as well.” Johnson, supra, 496 A.2d at 597 .

Appellant’s consciousness of guilt cannot be inferred from the fact that the driver did not stop the car immediately when Officer Braswell activated his emergency equipment. The driver was traveling at a normal speed before he made the U-turn and at only 45 miles per hour thereafter; there was no evidence regarding the point at which the driver realized that he was being pursued by the police. See Smith, supra, 558 A.2d at 316-17 (“in those cases in which we have found that flight indicated a consciousness of guilt, the accused clearly knew that the police were present and reacted by immediately running from the scene of the alleged crime”). Even though a passenger could be deemed to have been aware of a police siren and flashing lights, any inference of consciousness of guilt on the part of the passenger is considerably weakened where the driver voluntarily stops the ear.

Even if the driver’s flight implied a consciousness of his own guilt, the evidence, as the trial judge recognized, did not support imputation of the flight to appellant. 7 There was no evidence of a joint venture such that the driver’s flight “reflected the mind set and activity of those with whom he was associated under somewhat suspicious circumstances.” Johnson, supra, 496 A.2d at 597 (citations omitted). There also was no evidence that appellant gave any instructions to the driver to flee the police, nor anything to suggest that appellant was more than an unwitting participant in the driver’s flight. Nor did the officers note anything unusual about the car or the number of persons in the car. The circumstances known to the officers— the driver’s flight in a high crime area at a time when seven police officers had been shot in the last months — cannot, therefore, justify appellant’s seizure, particularly when the officer most knowledgeable of the circumstance stated that he intended only to issue a traffic citation to the driver and never drew his gun.

Appellant’s seizure also cannot be justified because the flight occurred in a high narcotics area. The high narcotics area “ ‘familiar talismanic litany, without a great deal more, cannot support an inference that appellant was engaged in criminal conduct.’ ” Smith, supra, 558 A.2d at 316 (quoting In re D.J., supra, 532 A.2d at 143 ). “[A] great deal more,” id,, is missing here. Appellant’s movement, on which the government relies, did not occur until after Officer Massey, with his shotgun in hand, had ordered the passengers to raise their hands to the ceiling of the car. Moreover, the circumstances and location of the seven police shootings were never identified, not even as involving traffic stops.

B

The government’s further contention in justification of appellant’s seizure rests on *107 Pennsylvania v. Mimms, in which a police officer stopped the driver of the car for driving an automobile with an expired license plate. Mimms, supra, 434 U.S. at 107 , 98 S.Ct. at 331 . The officer approached the driver to write a ticket and asked him to get out of the car. Id. As the driver alighted, the officer noticed a large bulge under his jacket. Id. Fearing that the bulge was a weapon, the officer frisked the driver, found a gun, and arrested him. The Court upheld the seizure, holding “that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” Id. at 111 n. 6, 98 S.Ct. at 333 n. 6. They may do so even though “the officer[s] had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior.” Id. at 109 , 98 S.Ct. at 333 . The Court balanced, on the one hand, the interest in diminishing “the possibility, otherwise substantial, that the driver can make unobserved movements” and, on the other hand, the minimal intrusion on the driver’s liberty interest since the driver is already detained once the police pull him over for a traffic violation and it makes little difference that he is detained in his seat or outside the car. Id. at 110 , 98 S.Ct. at 333 .

The rationale articulated in Mimms with respect to the driver of a car is not readily extended to a passenger in appellant’s circumstances. 8 The intrusion on the passenger’s privacy interest is clearly greater than on the driver. A driver who is lawfully detained for a traffic violation can reasonably expect to be ordered out of the car or temporarily detained in connection with the traffic infraction. By contrast the passenger is an innocent bystander who has no reason to expect that the stop of the car will result in his seizure. In addition, the officer’s safety can be assured by insisting that the passengers keep their hands in sight, while the police inquire about events, and by having the law-violating driver accompany the police to a police vehicle. 9

Finally, the risk of accidental injury from passing traffic, of concern to the Court in Mimms , is less likely when the officer is on the passenger side of the car.

Because of these concerns, a number of courts have declined to extend Mimms to all passengers:

[B]y stopping the automobile the police have decided that the driver will be detained. Such is not the case for the passenger, who has broken no law and who may walk away from the scene unless the police officer has some other legitimate reason to detain him. Certainly the passenger has a higher expectation of privacy than the driver, because the passenger plays no part in the routine traffic infraction and has reason to suppose that any exchange with the authorities will be conducted by the driver alone.

*108 State v. Williams, 366 So.2d 1369, 1374 (La.1978); see People v. Maxwell, 206 Cal. App.3d 1004 , 254 Cal.Rptr. 124 (1988); State v. Becker, 458 N.W.2d 604 (Iowa 1990); Johnson v. State, 601 S.W.2d 326 (Tenn.Ct.App.1980); State v. Schlosser, 774 P.2d 1132 (Utah 1989). See generally 3 W. LaFave, supra, (disapproving the extension of Mimms to passengers). 10 These courts have, in sum, declined to recognize an exception to Terry’s requirement of particularized suspicion for a passenger in a car stopped for a traffic violation.

Even were the rationale underlying the balance of interests by the Court in Mimms applied to a passenger seized after the vehicle is stopped for a traffic violation, •the government’s reliance on Mimms is misplaced. In Jones v. United States, 391 A.2d 1188, 1190-91 (D.C.1978), the court rejected the government’s argument that the police officer could order the occupants out of a car for his own protection once he had reason to speak to them. “Mimms does not ... hold that a police officer may similarly intrude upon a person’s right to personal security in a situation where he is not detaining him for a violation of law, but merely desires to make inquiry of circumstances which are only marginally suspicious.” Id. 11 Here, after the car had stopped of its own accord, Officer Bras-well, the first officer to approach the car, spoke with the driver and took him to a scout car twenty-five feet away. At no time did Braswell remove his gun from his holster; neither did any other officer. By the time Officer Massey approached the passengers, there was nothing to indicate that Braswell did not already have the situation under control. Contrary to the observation of the trial judge, that the officer could reasonably insist that the passengers keep their hands in sight, a proposition with which we do not disagree, Massey’s first reaction was to take his shotgun and order the passengers to grab the ceiling. Yet, Massey, like Braswell, had no information that appellant or any one else in the car was engaged in criminal activity and did not recall anyone suggesting that appellant had done anything suspicious with his hands before he was ordered to grab the ceiling. By contrast, our decisions upholding Terry stops where the police have drawn their guns have involved suspects whom the police had reason to believe were armed. T.T.C., supra, 583 A.2d at 988 & n. 2 (citations omitted). 12

While Officer Massey could reasonably conclude that high drug areas present potential danger for the police, neither the Supreme Court nor this court have sanctioned the seizure of citizens in the absence of articulable suspicion required by Terry, *109 supra, 392 U.S. at 1 , 88 S.Ct. at 1868 ; e.g., Smith, supra, 558 A.2d at 312 ; Jones, supra, 391 A.2d at 1191 (“[t]o hold otherwise would allow the government to bootstrap its way to a full blown ‘seizure’ in the absence of articulable facts indicating that ‘criminal activity is afoot’ ” (quoting Terry, supra, 392 U.S. at 30 , 88 S.Ct. at 1884 )). The intrusion on appellant’s liberty interests was more intrusive than that which occurred in Mimms , where the driver, after being lawfully detained, was ordered out of the car for a brief period; “the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it.” 434 U.S. at 111 , 98 S.Ct. at 333 . 13 As the trial judge acknowledged, appellant was not seized “based upon his own conduct, ... [but because he] only happened] to be with somebody who ha[d]” committed a traffic violation. Such a departure from Terry’s requirement of particularized individualized suspicion would not be warranted by the doctrine of Mimms. See United States v. Di Re, 332 U.S. 581, 593 , 68 S.Ct. 222, 228 , 92 L.Ed. 210 (1948) (“[p]resumptions of guilt are not lightly to be indulged from mere meetings”); Smith, supra, 558 A.2d at 314 (eschewing the notion of “guilt by association”). 14 Were a stop of a driver for a routine traffic violation sufficient ground for seizing all of the passengers, the constitutional protections of the passengers under the Fourth Amendment would be ephemeral and concern about police security, as a result of unidentified events at other times and in other places, would be elevated above all other important societal interests. 15

Accordingly, we hold that the trial judge erred in denying appellant’s motion to suppress the gun, and the judgments of conviction are reversed.

Reversed.

. See id. at 83, 70 S.Ct. at 443 :

To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an "unreasonable search” is forbidden — that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response. * * * It is for this Court to lay down criteria that the district judges can apply. It is no criterion of reason to say that the district court must find it reasonable.

Quoted (with the exception of the last two sentences) in the majority opinion in Chimel v. California, 395 U.S. 752, 765 , 89 S.Ct. 2034, 2041 , 23 L.Ed.2d 685 (1969).

. In fact, according to the testimony of the second officer, it was the safety of the first officer that was his concern. The second officer testified that his purpose in responding to the scene was to "assist a fellow officer and to ensure his safety."

. Judge Newman was a member of the division, but did not participate in the en banc proceedings.

. Officer Braswell originally testified that the car was proceeding at a high rate of speed, but in response to a question by the trial judge stated that the car was going forty five miles an hour after making the U-turn, and the car had been driving normally, at thirty miles an hour, when the officer had first spotted the car.

. Braswell explained that the car only went two blocks, but they were long blocks that he estimated to be the equivalent of three city blocks.

. As summarized by the Court, its holding in Terry was that:

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id., 392 U.S. at 30 , 88 S.Ct. at 1884-85 (emphasis added).

. We agree with the trial judge that appellant has standing to challenge the seizure of the gun, although for a different rationale. The trial judge focused on the fact that circumstances indicated appellant was in possession of the gun. However, appellant is challenging the seizure of his person and any fruit thereof. Contrary to the government's contention, Rakas v. Illinois, 439 U.S. 128, 150-51 , 99 S.Ct. 421, 434 , 58 L.Ed.2d 387 (1978) (Powell, J., concurring opinion), does not preclude a passenger in a car from objecting to his seizure and seeking to suppress evidence that is a fruit of the seizure. See United States v. Manbeck, 744 F.2d 360, 380-81 (4th Cir.1984) (ship passenger has standing to suppress evidence that may have been tainted by illegal arrest), cert. denied, 469 U.S. 1217 , 105 S.Ct. 1197 , 84 L.Ed.2d 342 (1985); United States v. Durant, 730 F.2d 1180, 1182 (8th Cir.) (car passenger has standing to challenge evidence attained as a direct result of an illegal stop), cert. denied, 469 U.S. 843 , 105 S.Ct. 149 , 83 L.Ed.2d 87 (1984); 1W. LaFave and J. Israel, Criminal Procedure § 9.1(d) (1984) (occupant of another’s car has standing to allege that evidence recovered from car was "tainted fruit” of an allegedly illegal seizure of the occupant).

. In California v. Hodari D., - U.S. -, 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991), the Supreme Court clarified that a person is seized only as the result of the application of physical force or the actual submission to the officer's show of authority. Id., — U.S. at -, 111 S.Ct. at 1550-51 . It is undisputed that appellant was seized when Officer Massey, with his shotgun drawn, ordered appellant to place his hands on the ceiling.

. Officer Braswell's knowledge regarding the driver’s conduct is properly imputed to the other police officers. See Whiteley v. Warden, 401 U.S. 560, 568 , 91 S.Ct. 1031, 1037 , 28 L.Ed.2d 306 (1971).

. The trial judge stated:

Admittedly here, there is no indication that the passenger in the vehicle turned around to look, or did anything prior to the vehicle stopping or after the vehicle was stopped, before the police gave them an instruction that would suggest that the passengers were in any way associated with any type of illegal activity that could be imputed to them, based upon the acts of the driver.

. United States v. White, 208 U.S.App.D.C. 289 , 648 F.2d 29 , cert. denied, 454 U.S. 924 , 102 S.Ct. 424 , 70 L.Ed.2d 233 , 70 L.Ed.2d 235 (1981), is not to the contrary. In White , the United States Court of Appeals for the District of Columbia Circuit stated that there was individualized suspicion with respect to all of the occupants of the car:

Based on the particular facts of this case, we conclude that an anonymous tip about an ongoing [drug distribution] transaction, detailed as to time and place, including a specific description of one of the participants and their vehicles as well as their modus operandi, and verified by the officers through surveillance in all details except for the actual possession or exchange of narcotics provides a sufficient basis for a legitimate Terry stop to question the occupants as to their identity and visually check inside the car. Where necessary, this approach to the car may be enforced — as it was here — by an order to the occupants to get out of the car.

208 U.S.App.D.C. at 303 , 648 F.2d at 43 .

. See LaFave, Search and Seizure A Treatise on the Fourth Amendment § 9.4(a) (2d ed. 1987) at 515 ("the potential danger to police engaged in traffic enforcement could be adequately met if the police allowed passengers to remain in the stopped vehicle and instead had the driver accompany them to the police vehicle while the citation is prepared") (footnote omitted).

. Contra, State v. Williams, 371 So.2d 1074 (Fla.Dist.Ct.App.1979), cert. denied, 381 So.2d 771 (Fla.1980); State v. Ferrise, 269 N.W.2d 888 (Minn.1978).

. In Jones , the court reversed the conviction for possession of marijuana on the ground that when the police ordered the driver and passenger out of the car, the police did not have individualized, particularized, suspicion. The court discussed Mimms , but noted that Mimms did not control because the police had not detained the driver after observing a traffic violation, but only after observing "marginally suspicious” circumstances. Id. at 1191. Two men had been seated in a parked car late at night in an area known for illegal drug trafficking and robberies; as the police officer moved closer to the car, one man had attempted to hide something under the seat.

. On several occasions this court has addressed situations where a car passenger challenges his seizure. The court upheld such seizures on the ground that the police had particularized suspicion with respect to the passenger. See, e.g., Byrd v. United States, 579 A.2d 725 , 729 n. 9 (D.C.1990) (passenger dropped or laid an object on floor of car and threw an object into rear seat after arrest of driver for failing to produce driver’s license); Thomas v. United States, 553 A.2d 1206 , 1207 n. 7 (D.C.1989) (ordering occupants out of car after car stopped for two traffic violations, running a stop sign, and exceeding the speed limit, enabling police to see bag with ski masks in summertime). And the court has held that after a car is driven to the police station, the police can order the passengers out of a car in order to ensure that items in the car are not removed. United States v. Ordway, 329 A.2d 776, 778 (D.C.1974); cf. King v. United States, 550 A.2d 348, 357 (D.C.1988) (probable cause for arrest; suspected drug distributors, upon identification by arresting officer based on broadcast description, were ordered out of the car in order to allow police to obtain a better view, "a very minor intrusion indeed").

. Davis v. United States, 498 A.2d 242, 245 (D.C.1985), and White, supra, 208 U.S.App.D.C. at 294 n. 27, 648 F.2d at 34 n. 27, do not help the government. These cases do not hold that an approach of an officer with his gun drawn, but not pointed at the suspect, is a minimal intrusion. Ordway, supra note [13], 329 A.2d at 778 , also provides no assistance to the government since in that case the passengers were ordered out of the car in connection with police efforts to take temporary custody of the car after the driver had been stopped for a traffic violation. The Ordway court stated that "the intrusion was different and even less severe than in the so-called 'stop' cases." Id. Nor is the intrusion here comparable to that in King, supra note [13], 550 A.2d at 357 , where the defendants were identified as suspected drug distributors and then asked to get out of the car.

. The trial judge’s alternative rationale for departing from the individualized suspicion requirement of Terry bodes no better. In discussing the actions of Officers Massey and Zerega, the trial judge suggested that since they did not know why Officer Braswell had stopped the Pontiac they were entitled to seize appellant:

And in light of the fact that they didn't know about what had taken place, all they knew based upon the radio run they received, was that a fellow officer was in pursuit of an individual in a vehicle that, according to the officer, was fleeing from the officer, and then these officers get on the scene, they don’t have any idea what has transpired, what the circumstances were, to under the circumstances, it would seem to me, [to be unreasonable to] require the officers to basically get out and approach the car, not knowing what has transpired and not do anything to protect themselves until they find out what the situation is.

This might be fine if the officers had done only that. Instead, Officer Massey, before finding out anything, seized appellant.

. Contrary to the suggestion by the dissent, the majority does not suggest that the police may not take reasonable precautions to protect themselves. The circumstances here, which the dissent downplays, involved the confrontation of a passenger in a stopped car by a police officer holding a shotgun and ordering him to raise his hands to the ceiling after the traffic-violating driver had been removed from the car by another officer who saw no reason to take out his own gun at any time, even when he spoke to the driver while the passenger was in the car. What happened here involves more than the police simply insisting that car passengers keep their hands in sight.