Cousart v. United States

618 A.2d 96, 1992 D.C. App. LEXIS 321, 1992 WL 378845

• Court: District of Columbia Court of Appeals
• Decided: December 18, 1992
• Docket: 88-CF-1120
• Status: Published

Opinions

KERN, Senior Judge:

A jury convicted appellant of carrying a pistol without a license, D.C.Code § 22-3204 (1989), and related offenses. Prior to trial, the court refused to suppress as evidence the pistol which the police found wedged between the end of the front seat and the right front door of the auto in which appellant was riding as the front seat passenger.

The dispute in the instant case is 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 as they remained seated in the auto after a police chase effected its stop at 3:30 of a January morning. The record contains several different descriptions of the command given to the passengers. Essentially, it was to put their hands up where they could be seen.¹ We affirm.

I.

This court established in Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc), the proposition that “[i]n reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom'must be viewed in favor of sustaining the trial court ruling.” The record reflects that Officers Massey and Zere-ga were on duty on January 3,1988, at 3:30 a.m., when they received and responded to a radio call for help from a fellow officer. They knew that the officer who called for assistance was pursuing a car but did not know for what reason. As Massey later testified, [TR. 39-40] he had “monitored a Traffic Division cruiser chasing an auto for an unknown reason” [TR. 45] and responded “[t]o assist a fellow officer and to ensure his safety.” [TR. 39-40]

After a chase of what amounted to six blocks by the Traffic Division cruiser,² the auto finally came to a stop at First Street and New York Avenue, N.W. in a “high drug” area. [TR. 40] Massey and Zerega arrived on the scene moments later. The former was carrying a shotgun because of a recent rash of police shootings. They observed Officer Braswell, the officer who had radioed for assistance, exiting his patrol car and approaching the auto in which appellant and two other males were seated. Zerega later testified that as he approached the auto, “[he] advised the occupants [of the auto] to place their hands where we could see them up in the air.” [TR. 167] Appellant initially complied, but then immediately dropped his hands, “did something below the dash line ... and dropped his right shoulder down between the seat and the door, and came back up.” [TR. 42-43] After appellant dropped his hands, he was ordered to raise them again as Officer Zerega proceeded to open the car door. Appellant was then ordered to exit the car. [TR. 43] The officers discovered a pistol in a brown paper bag, [TR. 10-11, 31] “just inches” from where appellant’s hand had been as he sat in the front seat of the car.

The circumstances that had precipitated the chase were later explained in detail by Officer Braswell at the suppression hearing. Braswell testified that while riding in his patrol car he had observed the auto in which appellant was riding make a reckless turn from First Street, N.E. onto New York Avenue [TR. 13, 36-37], and begin to speed away. [TR. 14, 22] Officer Braswell, who was then following the auto, activated his cruiser lights several times, but the auto refused to stop. He further testified that [TR. 24] “[t]he speed increased much faster as I turned my lights on when it made the turn.” Once Braswell “made the determination that [the driver] did not intend to stop ... [Braswell] ... immediately called for some assistance.” [TR. 14]

The trial judge, in denying appellant’s suppression motion, found [TR. 55, 60]:

[T]here is even a little more than just a traffic violation, because he [Officer Braswell] said, and I think reasonably concluded from the actions of the driver ... that the driver was attempting to avoid and flee from the presence of the officer, which adds a little more to the case as compared to the officer just having seen a traffic violation. * * * The inference that I draw from the evidence that is unrefuted is that there was an attempt, after the officer [Braswell] pulled his car behind the suspect’s car ... to flee.

The court concluded [TR. 71-72]:³

[I]t just seems ... unreasonable ... to hold an officer to a requirement that in reference to the passengers in the car under those circumstances, the officer has to take his risks that those individuals [in the auto] had nothing to do with the driver attempting to flee, and therefore put his life in danger.... [I]t would not be unreasonable to require that the passengers merely raise their hands in the car so that their hands are in sight, while the officer does what he has to do in reference to the driver.

II.

Appellant asserts that Officer Zerega effected an unreasonable seizure and hence violated the Fourth Amendment to the Constitution when he ordered appellant and the other passenger to keep their hands in view because, as he argued to the trial judge at the hearing on his suppression motion, [TR. 76] “the conduct of the driver ... did not provide a reasonable basis for the officer [Zerega] to take any actions with respect to the passengers.... ” Appellant argues that as a consequence of this unlawful seizure, exacerbated by the fact that Zere-ga was accompanied by Officer Massey who carried a shotgun, the court should have suppressed the pistol the police recovered from the auto.⁴

The government contends to this court sitting en banc [Petition for Rehearing at p. 4, 6] that

[t]his case is governed by the principles articulated in Pennsylvania v. Mimms, 434 U.S. 106 [98 S.Ct. 330, 54 L.Ed.2d 331] (1977), where police officers had made a traffic stop of a vehicle occupied by two individuals. When the driver complied with the command to step out of the car, a pistol was discovered ... the [Supreme] Court did not require a reason to suspect that the particular individual was armed and dangerous. Rather “out of a concern for the safety of the police, the Court ... held that officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon.” New York v. Class 475 U.S. 106, 115 [106 S.Ct. 960, 967, 89 L.Ed.2d 81] (1986) (summarizing the holding in Mimms).

The government urges this court in this case to follow what it terms [p. 6] the presently-existing “substantial authority for the proposition that the principle of Pennsylvania v. Mimms applies to passen: gers as well as the driver.” However, the instant case, as the trial court found, “involves more than just a traffic violation” since “the driver was attempting to avoid and flee from the presence of the officer.” Mimms involved a traffic stop without any indicia of criminal activity. In contrast, this case is not a mere traffic violation, and so we must decline the government’s invitation to accept and apply the Mimms decision to declare that passengers may also be ordered to exit an auto stopped for a traffic violation only.⁵ Rather, we view this case as requiring a determination of the reasonableness of the officer’s command to the passengers to put their hands up in his view under the particular circumstances.

In the seminal case of Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968), the Supreme Court admonished:

[T]he specific content and incidents of [the Fourth Amendment] right must be shaped by the context in which it [was] asserted. For “what the Constitution forbids is not all searches and seizures, but unreasonable searches.... ” The question is whether in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.

(Emphasis added). In Terry, the Court expressly acknowledged that a part of the justification for the so-called stop and frisk process is the “immediate interest of .the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” Id. at 23, 88 S.Ct. at 1881. In Peay, we also concluded that a concern for the personal safety of an officer “need not be ignored when considering whether the ‘totality of circumstances’ permits an officer to ‘detain that person briefly in order to “investigate the circumstances that provoke suspicion”.’ ” See Peay, supra, 597 A.2d at 1322-23 (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, , 82 L.Ed.2d 317 (1984)).⁶ Moreover, the Supreme Court has “specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.” Pennsylvania v. Mimms, supra, 434 U.S. at 110, 98 S.Ct. at 333; accord, Thomas v. United States, supra note 5, 553 A.2d at 1207.

Thus, when we consider the totality of circumstances in the instant case, we are bound to take into account not only the time, the place and the circumstance, viz., the auto occupied by appellant seeking to flee from Officer Braswell, but also the personal safety of Officer Zerega and that of the other officers as they confronted the auto in response to Braswell’s call for assistance. In so doing, “the evidence of suspicion ‘must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’ ” Peay, supra, 597 A.2d at 1322 n. 9. “ ‘[I]n judging the reasonableness of the actions of the arresting officer,’ the circumstances ‘are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.’ ” Id. at 1322 (quoting United States v. Young, 194 U.S.App.D.C. 377, 379, 598 F.2d 296, 298 (1979)) (emphasis added); see United States v. Mitchell, 293 U.S.App. D.C. 24, 951 F.2d 1291 (1991).

III.

In the instant case, the time was 3:30 a.m. and the place was an area of the city which one of the officers characterized as “a high drug area.” [TR. 40] Police officers confronted a car which had just been in flight from a fellow officer and which contained two adult male occupants. The officers responding to the call for assistance were unaware of the nature of the crime in progress.⁷ However, the trial judge found, and the record supports such finding, that the officers reasonably perceived the circumstances as more than a mere traffic violation. In briefly freezing the situation while they ascertained the extent of the criminal activity in progress, the officers took reasonable steps to insure their safety. As Mr. Justice Harlan stated so aptly in his concurring opinion in Terry, supra, 392 U.S. at 33, 88 S.Ct. at 1886, “There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.”⁸

The police intrusion upon appellant and the other passenger in this case was minimal. The officers did not touch the passengers, much less roust them from the car. The police never engaged in any verbal abuse or taunting. Only after appellant dropped his hands out of the officers’ sight and moved his shoulder as if he were moving something did the police order him to alight from the car. We have characterized in the past a police command to a passenger to disembark from an auto lawfully stopped as a “very minor” intrusion. Thomas v. United States, supra, 553 A.2d at 1207 n. 7 (quoting King v. United States, 550 A.2d 348, 357 (D.C.1988)); see United States v. Ordway, 329 A.2d 776, 778 (D.C.1974). We are not persuaded that a police command to appellant, a passenger seated in an auto that has just stopped after first attempting to flee the police, is so intrusive as to constitute an unreasonable and unconstitutional seizure. The officers here complied with the mandate of Terry that justified their “freezing” the situation very briefly while an ongoing and fast moving criminal situation was clarified. As the Supreme Court noted in United States v. Sharpe, 470 U.S. 675, 686, 105 , 84 L.Ed.2d 605 (1985), “the court should not indulge in unrealistic second-guessing” when an apparently still-developing situation exists. See United States v. Hensley, supra note 7, 469 U.S. at 228, 105 S.Ct. at 680.

Appellant contends that the fact that one of the “responding” officers (Massey) carried a shotgun rather than a pistol transformed the command to appellant and the other passenger into an unreasonable seizure because it constituted an excessive police intrusion. This officer was carrying a shotgun, he testified, [TR. 42], because “at that particular time of the year, within the past 30 days, seven policemen had been shot by various people in the District.” No evidence was presented to suggest, much less show, that Massey’s explanation for carrying a shotgun on the night in question was “the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment.” Terry v. Ohio, supra, 392 U.S. at 28, 88 S.Ct. at 1883.

Appellant also asserts that Massey was “brandishing” the weapon. The officer expressly denied [TR. 48] that he pointed his shotgun at appellant when he approached the auto. Zerega testified [TR. 178] that Massey had been holding the shotgun in his arms. Massey himself testified [TR. 147] that he had the shotgun pointed up, resting on his knee. Only when appellant dropped his hands below the dashboard out of the officers’ view [TR. 50], and twisted his body in his seat did Massey point his shotgun at appellant. [TR. 42] We are not persuaded under these circumstances that the kind of weapon this officer happened to be carrying on the night in question and the particular use the officer made of his weapon so heightened the police intrusion as to render the seizure unreasonable and hence unconstitutional. See United States v. White, 208 U.S.App.D.C. 289, 295, 648 F.2d 29, 35, cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 70 L.Ed.2d 235 (1981). The officer’s response seems upon this record to be entirely justified.

Finally, appellant asserts that since the auto had ceased its flight Officer Zerega overreacted when he directed the passengers to place their hands up in the air where they could be seen. Surely, it would have been both unreasonable and unprofessional for Zerega, under the circumstances, to “simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). While the progress of the auto may have stopped at the time Zerega arrived, there was nothing to suggest or show to the responding officers the danger was over.⁹

IV.

In sum, the trial court adjudged that what the officers did under the circumstances was reasonable. We agree with a comment made a quarter of a century ago by Judge Harold Leventhal of the United States Court of Appeals for the District of Columbia. He observed with his usual acuity: “As a society, we routinely expect police officers to risk their lives in apprehending dangerous people. We should not bicker if in bringing potentially dangerous situations under control they issue commands and take precautions which reasonable men are warranted in taking.” Bailey v. United States, 128 U.S.App.D.C. 354, 364, 389 F.2d 305, 315 (1967) (concurring opinion).

Affirmed.

1 . Specifically, there was testimony: “[W]ell, we ordered all subjects in the car to raise their hands up" [TR. 10]; the two responding officers "ordered — the subjects in the automobile to put their hands up” [TR. 29]; “We had the persons in the auto place their hands on the head liner on the inside of the car” [TR. 40]; appellant was ordered “to put his hands up” [TR. 49]; “the passengers ... placed their hands where we could clearly see them ... above their heads” [TR. 152]; and “everybody was ordered to put their hands up” [TR. 162],

We note that the hands of persons seated in an auto are out of the sight of police approaching the auto. The hands of the occupants of the auto can be seen from the outside only if they are raised into view. Thus, a police command of "hands up” to a person seated in the auto is not a classic arrest "command” as it would be if directed to a person already standing erect.

2 . There was testimony [TR. 24] that eacK of the blocks of New York Avenue between First Street, N.E., where the chase began, and First Street, N.W. "are so long that it would be equivalent to three city blocks_”

3 . Contrary to the dissent’s suggestion, see post at 110, the majority relies upon the trial court’s conclusion and findings rather than engaging in fact-finding itself.

4 . The government in its Petition for Rehearing En Banc, while asserting that appellant lacks standing to contest the search of the vehicle in which he was riding, agrees (at p. 4) that appellant "may challenge seizures of his person and seek to suppress evidence which is the fruit of an unlawful seizure.” Accordingly, we are not confronted by an issue of standing.

5 . See Thomas v. United States, 553 A.2d 1206, 1207 n. 7 (D.C.1989) (police could properly order all the occupants out of a car lawfully stopped for a traffic violation). In the instant case, the police officer ordered the occupants of the car only to raise their hands in view rather than exit the car. Id. at 1212 (Newman, J., dissenting).

6 . However, we did not say that "a concern based on personal safety, standing alone, will necessarily suffice to warrant a Terry stop.” Peay, supra, 597 A.2d at 1322 (emphasis added).

7 . Police officers "cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 682, 83 L.Ed.2d 604 (1985) (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir.1976)).

8 .It is clear that since the validity of the stop of the auto is not in dispute, the officers were lawfully beside the car after it ceased its flight and came to a stop.

9 . Appellant strongly urged at oral argument that we adopt a rule that a police officer has no right to direct a passenger in a vehicle to place his hands in view unless such officer has first observed this passenger engage in suspicious conduct. Such a restrictive rule would run contrary to the well-established principle that the propriety of police action in a fast-moving street encounter must be determined by its reasonableness under all the circumstances.