# Smith v. United States

> District of Columbia Court of Appeals · September 18, 1972 · 295 A.2d 64

URL: https://www.frixlaw.com/law-library/cases/9757543

## Case

- **Full name:** Milton James SMITH, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** September 18, 1972
- **Citations:** 295 A.2d 64; 1972 D.C. App. LEXIS 260
- **Precedential status:** Published
- **Opinion:** Dissent by Fickling
- **Judges:** Reilly, Fickling
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757543

## How later opinions describe it (automated extraction)

- stating “absent some showing of plain error, courts in this jurisdiction have refused to notice claims of error raised for the first time on appeal”

## Opinion text

FICKLING, Associate Judge
(dissenting) :
I have no disagreement with that part of the majority’s holding that the officer had a reasonable basis for believing that further investigation of appellant was required when he emerged from the zoo. In light of the course of conduct which he had observed, 1 the officer’s stopping of appellant was sound, commendable police action. However, when an officer confronts a citizen on less than probable cause grounds, 2 the scope of that confrontation must be severely limited. 3 When, as in this case, an officer has no fear 4 that the suspect may be armed, the officer should limit his actions to “[a] brief stop of [the] suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information. . . .” 5
In the instant case the officer’s conduct overreached the scope of an allowable Terry 6 stop. The officer’s own testimony indicated he had no fear that there was a weapon in the bag; he stated: “I had an idea what would be in the bag. [A] [sjtereo tape deck or a radio of some kind.” In this situation, requiring appellant to put the bag on the ground could serve no legally allowable purpose. The majority justified this request as an act “maintaining the status quo,” however, status quo is defined as “the state in which something is: the existing state of affairs.” 7 Here the officer required the appellant to alter the status quo — an alteration that, in my opinion, was tantamount to a search and seizure without probable cause. 8 The only purpose for ordering the appellant to put the bag on the ground was to give the officer an opportunity to confirm his suspicion.
The majority does not cite a single case, nor have I found one, in which a suspect was required to remove or put down his personal belongings unless the officer feared for his safety or probable cause existed for the search or arrest of the suspect. The delicate nature of a confrontation based on less than probable cause grounds has been highlighted in the hundreds of “stop and frisk” cases since Terry v. Ohio, supra. The fourth amendment will not allow that confrontation to include a search for the proceeds of a crime on mere suspicion; there must be probable cause. I therefore must respectfully dissent.
. See majority opinion at 65-66.
. There is no contention that probable cause for the arrest or search existed before the tape deck came into view.
. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968).
. See text, infra.
. Adams v. Williams, 407 U.S. 143, 145 , 92 S.Ct. 1921, 1923 , 32 L.Ed.2d 612 (1972).
. Terry v. Ohio, supra note 3 .
. Webster’s Third New International Dictionary (P.B.Gove ed. 1969).
. Cf. Gray v. United States, D.C.App., 292 A.2d 153 (1972); Irwin v. Super. Ct. of Los Angeles County, 1 Cal.3d 423 , 82 Cal.Rptr. 484 , 462 P.2d 12 (1969).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757543. Public record. Not legal advice.