# Upshur v. United States > District of Columbia Court of Appeals · July 30, 1998 · 716 A.2d 981 URL: https://www.frixlaw.com/law-library/cases/9884174 ## Case - **Full name:** Reginald v. UPSHUR, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** July 30, 1998 - **Citations:** 716 A.2d 981; 1998 D.C. App. LEXIS 139; 1998 WL 425489 - **Precedential status:** Published - **Opinion:** Dissent by Farrell - **Judges:** Chun T. Wright - **Cited by:** 18 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/9884174 ## How later opinions describe it (automated extraction) - explaining that officers had not viewed narcotics in defendant’s hand and thus conducted an impermissible search when they grabbed his arm and forced his hand open ## Opinion text FARRELL, Associate Judge, dissenting: The majority holds that police officers who reasonably suspect they have seen a nighttime exchange of drugs for money in a neighborhood known for drug sales and “weapons offenses,” and so may stop and detain the buyer who, on seeing them, walks away with his fist balled up, nonetheless may not require him to open his fist unless they have objective reason to be concerned for their safety beyond the (for the majority) commonplace association of “drugs and weapons.” I disagree with that conclusion. Preliminarily, though, the issue is not properly presented, for appellant’s sole argument to the trial court was that the police lacked a reasonable basis to stop and therefore to search him; he never raised the issue of the scope of an allowable “protective search” under Terry v. Ohio, 392 U.S. 1, 26 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). As a result, the police officer who testified was never questioned about safety concerns that may have motivated him — even though his failure to voice such concerns is a critical reason the majority orders suppression. The majority thus reverses on a ground the prosecution had no occasion to meet and on which the trial court had no reason to make findings. In any event, on the facts before us, the action of the police in stopping appellant and “insisting] that he open his hand,” ante at 985, was proper under the Fourth Amendment. I. As the trial court found, the events all took place within seconds. Two officers in a marked scout car patrolling late in the evening in “an area known for open drug transactions, drug use [and] weapons offenses” saw appellant exchange money for unknown objects with the driver of a ear he was standing next to. As the officers pulled up, appellant looked at them and began walking away with his right fist “balled up ... as if he was holding something.” Believing they had just seen “a possible narcotics transaction,” the officers alighted and one stopped appellant by taking hold of his arm and directing him to open his fist. When appellant did not comply and “fidget[ed] around a *986 lot,” the officers tried to place his arms on the hood of the scout car. As they did so, the suspected seller sped off in his car, nearly striking another officer. As appellant resisted, he dropped objects from his hand which turned out to be crack cocaine. The trial court concluded that in the circumstances of this quickly-developing situation, 1 including a valid Terry stop supported by reasonable suspicion, the combination of the defendant stepping back, walking briskly away, his having his hand tightly clenched, the police approaching him, his being fidgety, then the ear zooming off with the driver, and the policemen being in the midst of trying to secure the situation, moving the defendant to a car, in the course of which he dropped ... the contraband, ... means that the contraband should not be suppressed. II. The facts as summarized reveal that the police had reasonable grounds to stop and briefly detain appellant for investigation. The majority does not reach this issue, although it implies with a “see ” citation, ante at 985 n. 4, that perhaps the police did not observe enough to warrant a stop. True, as this court said in Duhart v. United States, 589 A.2d 895, 899 (D.C.1991), “the mere passing of money on a street does not justify a Terry stop,” but we deal here with the exchange of money for objects followed by the recipient of the objects seeing the police and departing, with his fist balled up, in a neighborhood known for open-air drug sales. That this provided reasonable suspicion that a drug buy had taken place should require no discussion. See, e.g., United States v. Bennett, 514 A.2d 414, 416-17 (D.C.1986); Tobias v. United States, 375 A.2d 491, 494 (D.C.1977). The majority concludes, nonetheless, that the circumstances did not justify the police’ forcing appellant to open his closed hand during the investigative detention. There is a serious objection to this conclusion at the outset, which is that it rests on a ground not asserted by appellant below. Not in his written motion to suppress, nor in questioning the officer who testified, nor in argument to the trial court did appellant argue that the order for him to open his hand exceeded the scope of a lawful Terry detention. His entire argument was that the police had no reason to stop him in the first place. The point is made succinctly in defense counsel’s response to the court’s oral finding of reasonable suspicion: [O]ur contention is that [the] stop was unlawful, there was no warrant and there was no articulable suspicion, but your Hon- or has concluded there was [and] at that point we don’t have any further argument. Whether appellant preserved the ground on which the court now reverses is not just academic. The majority repeatedly says the testifying officer “did not indicate in any way that he apprehended danger....” Ante at 984. Importantly, in distinguishing Peay v. United States, 597 A.2d 1318 (D.C.1991) (en bane), the majority states that, unlike in Peay , the officer here “expressed no safety concerns” over what the detained person might be clutching in his hand. Ante at 984. But, as pointed out, the officer was never asked if he had any such concerns, and appellant never made that an issue below; had he done so even in argument after the hearing, the trial court would have had the option to recall the officer and explore his perception of any risks to personal safety that prompted him to want to deal with appellant while his fists were unballed. In any event, the Fourth Amendment test of reasonableness is an objective one, and “whether police officers in fact feared for their safety during an encounter with a suspect is not dispositive.” Womack v. United States, 673 A.2d 603, 609 (D.C.1996). I would hold that when police officers at night in an area known for drug sales and weapons offenses lawfully stop a suspect for a drug crime, requiring him to unball his fist while they talk to him is per se a “reasonable step[] to insure their safety,” Cousart v. United States, 618 A.2d 96, 100 (D.C.1992) (en banc), even if they think it most likely he *987 is holding contraband and not a weapon. A fist itself, of course, is more of a potential weapon than an open hand. More fundamentally, in regard to so limited an additional intrusion on personal freedom as ordering a detainee to unball his fist, the Fourth Amendment does not require the officer to calibrate his actions depending on the greater or lesser likelihood the detainee is concealing a weapon rather than drugs in his folded hand. Cf. United States v. Barries, 496 A.2d 1040, 1045 (D.C.1985) (no Fourth Amendment seizure, without more, in asking person to remove his hands from his pockets and answer two questions); Lawrence v. United States, 566 A.2d 57, 62-63 (D.C.1989) (same; request to tell what defendant held in his clenched hand); Cousart, supra (passenger in car stopped for speeding and evading police may be ordered to put hands on car ceiling). Unlike, say, an ordinary traffic stop, police who confront a suspected drug seller or buyer on the street at night are inherently exposed to the danger of force or weapons being used against them. 2 A natural and legitimate part of “ ‘freezing’ [such a] situation” in order to investigate, id., 618 A.2d at 100 , is insuring the detainee holds nothing concealed in his fist that could serve that purpose. That the officer also — or even primarily — believes the concealed object may be contraband is beside the point; the danger of such drug confrontations inherently justifies the limited intrusion beyond detention of an order to open one’s fist. That intrusion is not the sort of “arbitrary interference [with personal security] by law officers” that the Fourth Amendment condemns. Pennsylvania v. Mimms, 434 U.S. 106, 109 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975)) (emphasis added). The majority supplies itself with a crutch by pointing out several times that the police “grabbed” appellant in addition to ordering him to unball his fist. But the officer testified that he “grabbed [appellant] as he was walking away” after seeing the police approach in their marked car. It cannot be, and the majority does not appear to say, that the Fourth Amendment requires police to give a person reasonably suspected of an unlawful drug buy the choice to stop voluntarily as he moves to evade them, before they may seize his arm. That force and the additional struggle “to lift [appellant’s] arms and to place them onto the car” was necessary, as the trial court reasonably found, because appellant resisted the stop and the order to unclench his fist. The near-simultaneous act of the driver in speeding off further confirmed the reasonableness of the police taking command of the situation with the moderate amount of force they employed. I would sustain the denial of the motion to suppress and affirm the conviction. . The court credited the officer’s testimony that "these [events] were virtually contemporaneous. everything took place if not at once, within seconds ... of one another.” . Even in the traffic stop context, the Supreme Court has held that a passenger of a car stopped for a traffic violation may be ordered to get out of the car since the additional intrusion beyond the stop of the car is minimal and the fact "that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.” Maryland v. Wilson, 519 U.S. 408 , -, 117 S.Ct. 882, 885 , 137 L.Ed.2d 41 (1997). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9884174. Public record. Not legal advice.