Cauthen v. United States

STEADMAN, Associate Judge,

dissenting:

Given our precedents and the posture of this case as presented to us, Judge Farrell’s opinion is not without considerable persuasive power. Nonetheless, I must register a dissent.

An examination of the record of this case suggests that, even accepting the analysis of Judge Ferren’s Smith concurrence, the manner of the appellant’s departure upon the arrival of the police officers was more than that of a person who “chooses to leave the scene, even at a brisk pace.” Smith v. United States, 558 A.2d at 319. It appears that so concerned was appellant with events and so heedless of his safety that, in departing from the scene while looking at the first squad car, he stepped directly into the street into the path of a second arriving squad car, which was forced to stop suddenly to avoid hitting appellant. 1 This strikes me as the sort of “erratic or evasive manner” of departure that could be inconsistent with that of someone merely seeking to avoid an innocent encounter with the police. While it is indeed true that the trial court made no specific finding in this regard, the court did make clear its awareness of the relevance of a “consciousness of guilt” to the departure. 2 Thus, I think that appellant’s depar *1027 ture could be a permissible factor to consider along with all the other circumstances here, enough taken together to justify a brief Terry stop. 3

I might add that I harbor considerable doubt about the proper scope and application of the test expressed in Judge Ferren’s concurrence in Smith. The majority opinion in Smith, written by Judge Newman, signals that caution must be applied in dealing with departures upon the arrival of police, and sets forth the proposition that “[t]o provide grounds for suspicion, therefore, the circumstances of the suspect’s efforts to avoid the police must be such as permit[] a rational conclusion that flight indicated a consciousness of guilt.” 558 A.2d at 316 (quotations omitted). 4 However, it is only in the concurring opinion by Judge Ferren, joined to be sure by the other members of the majority opinion, that the perhaps draconian requirement is set forth that for flight to suggest consciousness of guilt and thus be a permissible factor to be considered at all for Terry-stop analysis the departure “must be carried out at such a rate of speed, or in such an erratic or evasive manner that a guilty conscience is the most reasonable explanation.” 558 A.2d at 319 (emphasis added). Otherwise, says Judge Ferren, “if the police do not otherwise have a legitimate basis for a Terry stop ... then the fact that the person chooses to leave the scene, even at a brisk pace, cannot reasonably arouse suspicion.” 5 Id. (The consequence of this analysis, of course, is that the departure at a brisk pace can never be one of several relevant factors in Terry analysis. If the police “otherwise” have a legitimate basis for a Terry stop, there is no need to consider the manner of departure at all.)

It seems to me that there is a significant difference between a test that requires that the manner of departure “permit a rational conclusion that flight indicated a consciousness of guilt” 6 and one that requires that a guilty conscience be “the most reasonable explanation.” Inherently, Terry stops deal with articulable suspicions, not proven facts, and often with actions that bear perfectly innocent explanations. It is the “totality of circumstances” that controls. It seems inconsistent with that approach to cabin off one particular fact, the manner of departure upon the known arrival of police officers, and permit that fact to be considered at all only if the most reasonable explanation is a guilty conscience. This standard would only seem appropriate to, and indeed would justify, a Terry stop based on the manner of departure alone. See State v. Johnson, 444 N.W.2d 824 (Minn.1989) (police officer who observed motorist turn off main highway onto secondary road immediately after making eye contact and re-enter highway within one minute justified in concluding that motorist was attempting to avoid him and in subjecting vehicle to an investigative stop).

I think Judge Ferren’s articulation of the requisite standard that must be met before *1028 a departure instigated by the arrival of the police may be considered at all is further brought into question by the recent Supreme Court decision of California v. Hodari D., — U.S. -, 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). There two police officers in an unmarked car 7 came upon a group of youths who immediately took flight and were chased by the officers. The state had conceded that the officers did not have the requisite “reasonable suspicion” required for a Terry stop. Commented the Supreme Court: “That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 (The wicked flee when no man pursueth.)” While the Court found no need to decide the point, the skepticism expressed for a seven-judge majority where no basis whatever existed for a Terry stop other than the flight itself suggests that a less-compelling manner of departure might be permissibly taken into account along with other relevant factors in determining the justification for a Terry stop.

. The government in its statement of facts summarizes the happening as follows: "Appellant was seen walking at a brisk pace across the street as if to avoid Officer Morgan's car [the first squad car to arrive] and to avoid being intercepted. Officer Hassen, in the second and as-yet-unobserved marked cruiser, saw appellant watching Officer Morgan’s car as he tried to cross the street in front of the cruiser occupied by Officers Nauheimer and Hassen. Officer Hassen stopped the car abruptly.”

The trial court’s opinion recited the facts as follows: "As Officer Morgan’s car turned the corner, the Defendant, seeing that it was a police car, walked quickly from the sidewalk behind Officer Morgan’s car and in front of Officer Nauheimer’s car. Officer Nauheimer brought his automobile to a sudden stop.”

. The trial court, without making at that point any reference to the near-accident, stated that "when the defendant fled the scene, he clearly demonstrated a consciousness of guilt.” The comment was made in the process of distinguishing the Smith case, which the trial court *1027 did not do in the manner suggested above but rather on the grounds that 1) in Smith the defendant was under suspicion merely because of his association with other suspects, while here the police had a citizen’s descriptive tip, and 2) in Smith the officers were in plain clothes and thus not identifiable as such, while here the officers were in uniform and driving marked cars. However, earlier in the order, the trial court did recite some of the facts of appellant’s departure, see note 1, supra.

. As the majority opinion here notes, ”[t]he facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court’s ruling. Nixon v. United States, 402 A.2d 816, 819 (D.C.1979).”

. Earlier in the discussion, the majority opinion had recognized "as a general proposition that flight from authority — implying consciousness of guilt — may be considered among other factors justifying a Terry seizure.” 558 A.2d at 316, quoting United States v. Johnson, 496 A.2d 592, 597 (D.C.1985).

. In truth, strictly viewed, this whole discussion was unnecessary to the holding, since the underlying assumption seemed to be that the departure at the brisk rate was meaningless if Smith did not in fact know that the men who had just arrived were police officers. The major focus of the disagreement between the majority and the dissent was whether the police officers could reasonably think that Smith knew of their presence.

. I do not here inquire into any issues about the formulation or application of this particular test.

. The officers were in street clothes, but wore jackets with "Police" embossed on both front and back.