stating that the fact that confrontation occurred in a high crime area was one factor to consider in determining whether the police used the least restrictive means under the circumstances
How later courts described this case
- stating that the fact that confrontation occurred in a high crime area was one factor to consider in determining whether the police used the least restrictive means under the circumstances
- noting that the stop occurred in “high drug area” but explaining that the issue on appeal was “not over the lawfulness of the police stop of the auto, which appellant concedes, but the constitutionality of the police command to appellant and the other passenger to raise their hands into view”
- finding that record supported trial court's determination "that the officers reasonably perceived the circumstances as more than a mere traffic violation"
- passenger in car stopped for speeding and evading police may be ordered to put hands on car ceiling
Written by the judges who cited it.
Distinguished
Distinguished by Upshur v. United States, 1998 D.C. App. LEXIS 139 (1998)
Cousart is also distinguishable on its facts.
The opinion
FERREN, Associate Judge,
with whom ROGERS, Chief Judge, joins, dissenting:
I join in Chief Judge ROGERS’ dissent. This is simply a case in which a police officer, responding to a radio run, observed that a fellow officer — whose gun was not drawn — was questioning the driver of a parked car. The driver was already stand *110 ing outside the car with the first officer. The second officer had no discernible basis whatsoever — and certainly nothing said over the radio run provided a reason — for seizing any passenger of the car. As a precaution, the second officer, without effecting a seizure, could have requested the passengers to keep their hands in sight. Instead, holding a shotgpn, he ordered them to raise their hands in a manner typical of an arrest. This was a seizure — no one disputes that — without a reasonable, articulable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868, 1884 , 20 L.Ed.2d 889 (1968). The fruit of that unlawful seizure, the pistol, should have been suppressed.
The majority simply asserts, without the benefit of any evidence or finding, that the approaching officer could not have assured that the passengers kept their hands in sight short of a “hands up” command tantamount to a seizure. See at 97 n. 1. An appellate court does not have authority to make such a finding ex cathedra.
As I have feared, see Peay v. United States, 597 A.2d 1318, 1325-26 (D.C.1991) (en banc) (Ferren, J., joined by Rogers, C.J., and Schwelb, J., dissenting), this court is now justifying a Terry seizure solely on the basis of a police officer’s concern for personal safety, without regard to any other, objective circumstance warranting a seizure. “A Terry seizure, rather, must be reasonably premised on the suspect’s behavior, not on a police officer’s subjective state of mind.” Id. at 1325.
“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.” Duhart v. United States, 589 A.2d 895, 897 (D.C.1991) (emphasis added). The police officer here, with shotgun at the ready, seized appellant before the officer had any “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); see also Terry, 392 U.S. at 21 , 88 S.Ct. at 1879 . 1 At the moment the officer gave the “hands up” command — a show of authority restraining liberty, see Duhart, 589 A.2d at 897 — that seizure was not warranted by the totality of the circumstances. It violated the Fourth Amendment. See, e.g., id. at 901.
Respectfully, therefore, I dissent.
. The "demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." Cortez, 449 U.S. at 418 , 101 S.Ct. at 695 (quoting Terry, 392 U.S. at 21 n. 18, 88 S.Ct. at 1880 n. 18) (emphasis in Cortez).