Smith v. United States

FERREN, Associate Judge,

with whom ROGERS, Chief Judge, and MACK, NEWMAN and TERRY, Associate Judges, join, concurring in the opinion of the court:

Two minutes after a reported narcotics transaction, Officer Lawson — who was *318 driving an arrest team in an unmarked police cruiser — saw two" individuals who matched a lookout description of the suspects conversing with another individual in a parking lot at 12th and U Streets, N.W. The officer pulled the car into the driveway of the lot. As the four officers began to exit their vehicle, the three individuals in the lot began to disperse. According to Officer Lawson, appellant Smith, the man who had been talking with the two suspects, moved toward the parked car at a pace between a walk and a run on his way out of the lot. Lawson believed Smith “might have been involved in the transaction” as the “money person” because he had been talking with the two suspects and began to leave at a “fast pace” when Lawson pulled up and stopped the car. Lawson had reason to believe Smith recognized the unmarked vehicle as a police cruiser, he said, because “in that particular area, we go through quite frequently and we are also known by the colors of our cruisers and the fact that it is usually three to four people in the cruiser and usually whenever we come into the area, there is always a person that announces the fact that we are there.” Accordingly, as Smith headed away from the lot up the sidewalk along 12th Street, Officer Lawson “announced” he was a police officer and told Smith to “stop.” Smith did so and told Lawson “he had nothing to do with these people” in the parking lot. Smith then “attempted to walk continuing north,” but Lawson physically restrained him “[b]y placing my left hand on his shoulder.”

Officer Lawson effected a so-called Terry stop 1 — an investigative seizure — at the time he made a show of authority and ordered Smith to “stop.” See United States v. Johnson, 496 A.2d 592, 594-95 (D.C.App.1985); In re J.G.J., 388 A.2d 472, 474 (D.C.App.1978). The seizure did not occur later, as the government argues, when Officer Lawson physically restrained Smith. Thus, Smith’s arguably inculpatory statement — he “had nothing to do with these people” — cannot serve as a basis for the Terry seizure here; he made the statement after the seizure had occurred.

The question, then, is whether Officer Lawson, at the time he ordered Smith to “stop,” had “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); see also United States v. Bennett, 514 A.2d 414, 415-16 (D.C.App.1986). Put another way, did Officer Lawson have “a reasonable suspicion, based on objective facts, that the individual [was] involved in criminal activity”? Brown v. Texas, 443 U.S. 47, 51 , 99 S.Ct. 2637, 2641 , 61 L.Ed.2d 357 (1979).

Evaluation of Officer Lawson’s behavior must deal with the totality of what he observed. Bennett, 514 A.2d at 416 (citation omitted). I began with the most direct evidence: Officer Lawson saw Smith conversing with two others who fit a lookout description for a narcotics transaction broadcast two minutes earlier. This conversation in itself could well have served as a basis for the police to approach Smith for questioning if he had been willing — a so-called “consensual encounter,” see United States v. Barnes, 496 A.2d 1040, 1043-45 (D.C.App.1985). The conversation without more, however, did not justify a Terry seizure because it would have been based solely on guilt by association, which is not enough. See Ybarra v. Illinois, 444 U.S. 85, 91 , 100 S.Ct. 338, 342 , 62 L.Ed.2d 238 (1979); People v. Ballejo, 114 A.D.2d 902, 904 , 495 N.Y.S.2d 75, 77 (1985).

But Officer Lawson says there was more: he suspected appellant might have been the “money person” in a kind of narcotics transaction known to involve up to four persons on occasion. The problem here, however, is that until appellant began to leave the scene when the police arrived, there was no reasonable, objective basis for Lawson’s suspicion about a “money person” other than appellant’s mere association with the suspects. There were no gestures or other actions that indicated any transaction among the three beyond mere *319 conversation. There was nothing as yet to confirm Lawson’s suspicion.

The fact that other persons were in the parking lot, standing away from the three men who were conversing, adds nothing if the conversation itself was not sufficient for an investigative seizure. There is no indication that anyone else was involved with the three. Nor can any inference reasonably be drawn from the fact that the three men were not mingling with the others. Officer Lawson admitted, in fact, that it was possible one of the others in the lot might have been the “holder of the money.” Lawson’s focus on appellant, therefore, amounted to a hunch at best.

The fact that the parking lot was located in a so-called high narcotics area also is irrelevant under the circumstances. The police already had probable cause to arrest the two suspects whose descriptions they had received from the radio lookout, so the neighborhood adds nothing to the case against them. Nor can the general nature of the neighborhood reasonably be used, any more than the association with the suspects themselves, to enhance police suspicion that appellant in particular was the “money man.” I join my colleagues in the majority in refusing to brand anyone with a “locational taint” that makes him subject to a lawful seizure when, if seen in another neighborhood, he would not be.

The case, therefore, comes down to whether appellant’s attempt to leave the scene, when added to his observed conversation with the two suspects, was enough to create a “particularized and objective basis” for the seizure. Cortez, 449 U.S. at 417 , 101 S.Ct. at 695 . We have “recognized the ‘general proposition that flight from authority — implying consciousness of guilt —may be considered among other factors justifying a Terry seizure.’ ” Bennett, 514 A.2d at 416 (quoting Johnson, 496 A.2d at 597 ) (footnote omitted). But use of flight in this way presupposes two findings: (1) the party leaving the scene knows he is fleeing from police officers, and (2) the manner of flight suggests consciousness of guilt rather than a mere desire not to interact with the police — which is anyone’s right absent a valid seizure. See In re D.J., 532 A.2d 138, 141-42 (D.C.App.1987).

The latter issue is easily disposed of. If the police do not otherwise have a legitimate basis for a Terry stop, and if a person wants to exercise the right not to speak with an approaching police officer, then the fact that the person chooses to leave the scene, even at a brisk pace, cannot reasonably arouse suspicion. There are many legitimate reasons why anyone might want to avoid an encounter with the police. 2 The exercise of that right, therefore, should not be allowed to create the basis for a seizure that otherwise would not be lawful. For flight to suggest consciousness of guilt — a mentality other than a legitimate desire to avoid the police — that flight not only must be very clearly in response to a show of authority but also must be carried out at such a rate of speed, see id. at 141 (citing cases), or in such an erratic or evasive manner that a guilty conscience is the most reasonable explanation. Smith’s departure from the scene at a “fast pace” between a walk and a run does not meet that test.

But there is even a more fundamental reason why Officer Lawson could not rely on Smith’s flight to help justify the seizure: the record does not demonstrate clearly enough that, as of the time of the stop, Lawson could reasonably believe that Smith knew Lawson and his colleagues were the police instead of, for example, a gang of fast-driving toughs. Smith had already begun to leave the parking lot as Lawson and the others exited their car. The record could not sustain a finding, therefore, that Smith must have left because he saw a gun, or handcuffs, or a badge that indicated the men and women in plain clothes, in an unmarked cruiser, were the police. The dissenters apparently agree, for they acknowledge that, under *320 the circumstances, certain testimony indicating that Officer Lawson’s badge and revolver may have been visible as he left the car amounted to “a relatively inconsequential matter.” Post at 325.

The real issue, therefore — the issue that decides this case and divides the court — is whether the record would sustain a finding that Officer Lawson reasonably could believe that Smith knew Lawson and the others were police officers for another reason: “in that particular area,” according to Lawson, undercover police are “known by the colors of our cruisers,” by the fact that there are “usually three to four people in the cruiser,” and by the fact that “there is always a person that announces” the police are there. I find the record devoid of probative evidence to support this belief.

In the first place, Lawson’s belief is premised on Smith’s being from the “particular area” and presumably knowing what goes on there. Lawson, in fact, had no basis for knowing where Smith lived. And it is unsound to suggest, as the dissenters would have it, that anyone is presumptively from a “particular area” if, for example, he is not carrying a suitcase or happens to be standing in a parking lot instead of moving down the street.

Second, I do not believe the government can rely solely on Officer Lawson’s own broad statements about what is generally known and “always” announced in a neighborhood to establish that his beliefs were reasonable. It is farfetched to believe that everyone in a particular area knows these things and is alerted to undercover police on every occasion. The government did not even attempt to corroborate Lawson’s perceptions — and thus bring them to the level of reasonableness — by calling witnesses to back him up. The dissenters identify three trial witnesses who tend to confirm some of what Officer Lawson said. One of these witnesses was a suspected drug dealer; another, pending hearing on a drug charge at the time of her testimony, had been arrested twice at 12th and U Streets, N.W., by arrest squads similar to Officer Lawson’s; and the third had also previously been arrested at this same location. That the knowledge of these particular individuals should be used to establish the standard for judging what everyone in that area should be deemed to know is altogether untenable.

Untenable, that is, unless we tolerate the branding of particular neighborhoods, and everyone who goes into them, as examples of cultures apart from the rest of our community — as neighborhoods where everyone is more suspect because they live there, and where everyone can be expected to know all the ins-and-outs of criminal activity and police responses. Naive I may be in believing that not everyone in so-called high crime areas is altogether savvy about, if not a part of, the criminal milieu. But the fallacy of that belief has never been demonstrated to my satisfaction and certainly has not been shown on this record. 3

*321 So far as one can tell from the evidence, Officer Lawson premised his seizure of Smith on suspected guilt by momentary association with two suspects whom he had probable cause to arrest, coupled with an unreasonable belief that Smith was leaving the parking lot because of a guilty conscience. That does not suffice. Accordingly, I vote to reverse.

. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

. In In re D.J., we said: "An individual may be motivated to avoid the police by a natural fear or dislike of authority, a distaste for police officers based upon past experience, an exaggerated fear of police brutality or harrassment, a fear of being apprehended as the guilty party, or other legitimate personal reasons.” 532 A.2d at 142 n. 4.

. Judge Belson, in dissent, makes much of a distinction he perceives between the concepts of a "particular area” and of a "neighborhood." He states that Officer Lawson could have reasonably believed that people congregating in a " ‘particular area,’ the area around 12th and U Streets, N.W.," post at 326, would recognize an unmarked police car, even if the officer could not have reasonably believed that citizens living and working "in that general vicinity" would recognize his cruiser. Post at 327. I disagree; on this record, the distinction between "particular area" and "general vicinity" is not evident. In the first place, Officer Lawson’s testimony that unmarked cruisers frequently travel “through” the "particular area" where appellant was observed, and that undercover police are recognized and usually ”announce[d]” in "the area," did not necessarily refer only to the immediate environs of 12th and U Streets, N.W. Thus, the record does not assuredly confine Lawson’s belief about public recognition of undercover police to a narrowly circumscribed location. Second, the government never pressed such a distinction. In questioning a trial witness on whom Judge Belson relies for the proposition that undercover police could reasonably anticipate being recognized in this "particular area," the prosecutor asked: "But you didn’t have any doubt in your mind that the police had just come in to the neighborhood ?” Post at 327 n. 6 (emphasis added). Third, I make no distinction in this concurring opinion between the terms “area" or "particular area” and "neighborhood" because our case law does not do so and there is no clear indication Officer Lawson actually intended a narrower definition of "particular area” than is commonly meant by "neighborhood.” This court has equated an "area notorious for a high degree of *321 narcotics use" with a "neighborhood of high narcotics activity,” Price v. United States, 429 A.2d 514, 515, 518 (D.C.App.1981), and we have noted that “[tjhousands of persons live and go about their legitimate business in areas which are denoted “high narcotics areas’ by police.” In re D.J., 532 A.2d at 143 (citing Brown v. Texas, 443 U.S. at 52 , 99 S.Ct. at 2641 (referring to "neighborhood frequented by drug users”)). Accordingly, unless a police officer more specifically circumscribes the geographical area he is talking about, his imprecise references to a "particular area” presumably embrace a "neighborhood.” If, as the dissenters would have it, a "particular area” is smaller than a "neighborhood,” and if the residents and visitors in the former but not in the latter can be deemed conversant with undercover police responses to criminal activity, then I believe the government has the burden of defining terms and showing more precisely than it did here the basis for the evidentiary inference.