Hawkins v. United States

663 A.2d 1221, 1995 D.C. App. LEXIS 282, 1995 WL 489127

• Court: District of Columbia Court of Appeals
• Decided: August 17, 1995
• Docket: 93-CF-813
• Status: Published

Opinions

MACK, Senior Judge:

This appeal presents a seizure issue involving the victim of criminal activity who was approached by the police for questioning. Because the conduct of the police officers did constitute a “seizure” within the meaning of the Fourth Amendment and because the officers acted without “articulable suspicion,” probable cause, or any other legal justification for the seizure, the motion to suppress should have been granted.

I.

Following his indictment for carrying a pistol without a license,¹ possession of an unregistered firearm,² unlawful possession of ammunition,³ unlawful possession with intent to distribute cocaine while armed,⁴ unlawful possession of marijuana,⁵ and possession of a firearm during a crime of violence or dangerous offense,⁶ appellant moved to suppress all tangible evidence recovered from his person, and all statements made to the police,⁷ on the ground that he had been illegally seized by police officers acting without articulable suspicion or probable cause. At the suppression hearing, the following testimony, credited by the trial judge, was given by the officers involved.

Around 7:00 p.m., on June 25, 1992, Officers Douglas Reynolds and Diedre Barnes, assigned to the Metropolitan Police Department’s Warrant Squad, were at the intersection of Mount Olivet Road and Capital Avenue, N.E., in an unmarked police car, when appellant’s vehicle made a left turn in front of them. Reynolds, the driver, made a U-turn and followed appellant to the 1300 block of Galludet Street, N.E. Reynolds had recognized appellant as the complainant in a pending assault case involving two separate incidents which had occurred a few weeks earlier, and he wanted to ask appellant some questions concerning the identity of his attackers.⁸ By the time the officers reached appellant’s vehicle, the car was stopped and appellant was talking to some females.⁹ Reynolds “pulled casually alongside of him and asked if he could talk to appellant who “was cordial and said sure.”¹⁰ Reynolds, who was dressed in plain-clothes and was not displaying a weapon, approached appellant (who was still seated in the driver’s side of his car), and identified himself by flashing his badge.¹¹ Meanwhile, Officer Barnes, who was also in plain-clothes and who was not displaying a weapon, approached appellant’s car from the passenger side and remained there observing appellant.¹²

Reynolds asked appellant if he knew who had shot him or who had come to the hospital to “finish him off’ and appellant said “no.” Then, based on what Reynolds termed “instinct” and “past dealings with the situation with [appellant],” Reynolds asked appellant “was he packing anything.”¹³ Appellant said “no” and the conversation concerning the pending assault case continued. At this time, Barnes signaled Reynolds by patting her right thigh with her right hand (meaning she believed that appellant had a weapon on him). Understanding this signal, Reynolds asked appellant for a second time if he was “packing.” Appellant responded by removing some money from his pocket and telling Barnes that all he had was some money; he then returned the money to his right front pocket.¹⁴ Reynolds asked appellant for a third time, “[A]re you sure you’re not packing?” At that point, Barnes walked around to the driver’s side of the ear and told Reynolds to remove appellant from the car.¹⁵

As appellant exited the ear, Reynolds saw the butt of a gun in his right front pocket. He placed appellant’s hands on the top of the car and Barnes retrieved the gun. Subsequent to the arrest, Reynolds recovered six packs of marijuana and seventeen packs of crack cocaine from appellant’s left front pocket.

In denying the motion to suppress, the trial court credited the testimony of both officers and discredited appellant’s testimony. The trial judge made the following oral findings of fact and conclusions of law:

In my view, the issue really squarely is one of credibility....

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[T]he Court rejects the proposition that having asked Mr. Hawkins three times under the circumstances whether he was packing a gun was anything other than reasonable ... and certainly did not constitute any type of stop....

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Furthermore, there’s nothing else that these officers did ... which would make this encounter with Mr. Hawkins anything but legal.

[O]n the issue of credibility the Court resolves in favor of the Government. Frankly, the Court does not believe Mr. Hawkins’ recitation of these events.

The Court has taken into consideration matters which do impeach the testimony of the police officers_ Both officers testified or wrote that they stop and used the word “stopped” Mr. Hawkins.

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Frankly this police officer, Officer Reynolds, demonstrated in his use of words not the best ability to manipulate language. And the Court simply chooses to not have this inconsistency be a litmus test for credibility on this, on this issue.

The other inconsistency has to do with seeing the bulge, seeing the handle versus seeing the butt, bulge.... [The Court mentioned a third inconsistency.]

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[O]ne must also consider whether they [the inconsistencies] pertain to matters of important versus unimportant detail and re-suit from innocent error or intentional falsehood and the like.

And again, the Court having considered those inconsistencies just does not believe they undercut the truthfulness of these officers’ testimony.

On the other hand, I just must say Mr. Hawkins’ version of events just does not ring true in my view....

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[O]ne, Mr. Hawkins’ version of events simply was not corroborated. Two, Mr. Hawkins has been previously convicted of a crime. Three, ... [appellant’s] stake in this proceeding ... is much, much greater than the police officers.

II.

Our scope of review for an order denying a motion to suppress evidence is set forth in D.C.Code § 17-305(a) (1989).¹⁶ “We are bound by the trial court’s factual findings unless clearly erroneous or not supported by the evidence.” Powell, supra, note 16, 649 A.2d at 1084 (quoting Holston v. United States, 633 A.2d 378, 386 n. 10 (D.C.1993)) (emphasis added). Furthermore, in reviewing the trial court’s denial or grant of a motion to suppress, this court’s review is de novo. See, e.g., Lewis v. United States, 632 A.2d 383, 385 (D.C.1993); Gomez v. United States, 597 A.2d 884, 889 (D.C.1991).

III.

Our inquiry in this case is two-fold. First, we must determine whether appellant was “seized” within the meaning of the Fourth Amendment. And second, if appellant was in fact “seized,” we must determine whether there was “articulable suspicion” or probable cause of criminal activity, or some other legal basis for the seizure. As we recently stated in In re J.M., 619 A.2d 497 (D.C.1992) (en bane), “The crucial test for determining whether a person has been seized is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Id. at 499-500 (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991)) (internal quotations and emphasis omitted) (citations omitted).¹⁷ Moreover, an initially consensual encounter can be transformed into a seizure and detention within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).

Generally speaking, any restraint of a person amounting to a “seizure” is invalid unless justified by probable cause. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). However, certain seizures are valid if there is “articulable suspicion” that a person has committed or is about to commit a crime. Id. (discussing the limited exception, established by Terry v. Ohio, supra, note 17, and its progeny, to the probable cause requirement). In any event, the Supreme Court has made it clear that an individual “may not be detained even momentarily without reasonable, objective grounds for doing so.” Id.

In the present case, even assuming arguendo that appellant’s initial decision to speak with the officers was consensual, the officers, early in this encounter, adopted a posture displaying their authority which communicated very clearly to appellant that he was not free to simply ignore them and leave.¹⁸ According to the testimony of both officers, appellant’s car was double parked with its engine running when they initially approached him. It remained in that position after appellant agreed to speak with the officers. Officer Reynolds directed appellant to park his vehicle, and, at some point, asked appellant to turn off his ignition. Upon approaching appellant, Reynolds displayed his badge and then both officers positioned themselves on either side of the car. Noteworthy is Officer Barnes’ testimony that the officers’ positioning themselves on both sides of the car conformed with their training for making a traffic stop.¹⁹ Any objective belief that appellant was free to leave was further negated by Reynold’s repeated questioning about whether appellant was carrying a weapon.²⁰ Given the totality of the circumstances presented in this case, a reasonable person subjected to such a “show of authority” would not have felt free “to ignore the police presence and go about his business.” In re J.M., supra, 619 A.2d at 499-500; see also note 18, supra. One can only conclude that a “seizure” had occurred within the meaning of the Fourth Amendment.

Most cases examining the legalities of police seizures initiated for investigatory purposes focus exclusively on suspects and thus require at least “articulable suspicion.” See, e.g., Florida v. Royer, supra, 460 U.S. at 498, 103 S.Ct. at 1324 (“reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop”) (referring to United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (emphasis added)). Some courts, including ours, however, have examined situations in which police officers have initiated similar encounters with witnesses. In Williamson v. United States, 607 A.2d 471 (D.C.1992), cert. denied, — U.S. -, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993), we stated that “the police are justified in stopping witnesses only where exigent circumstances are present, such as where a crime has recently been reported.” Id. at 476 (internal quotations and citations omitted) (emphasis added). We also voiced our agreement with Professor LaFave’s characterization of the Model Code of Pre-Arraignment Procedure: Any authority to detain witnesses must be “much more narrowly circumscribed” than the authority to stop suspects. Id. Judges Farrell and Schwelb — a majority of the division — agreed that the officer’s action in stopping a fleeing Williamson to conduct an on-the-scene inquiry about a just-completed crime of violence was reasonable and, thus, did not violate the Fourth Amendment. Id. at 479 (Schwelb, J., concurring). In the lead opinion, Judge Farrell expressly declined to address the issue of whether a potential eyewitness could be stopped under circumstances less demanding of immediate police action.²¹ This is that ease. As we note below, here there was no fast-moving scenario, no just-completed crime, and no flight. Moreover, other methods of police investigation short of seizure were readily available.²²

It is very clear that there were no “exigent circumstances” in this case (as there were in Williamson) to justify the officers’ detention of appellant for questioning. In Williamson, when the officer on duty stopped the defendant’s vehicle, it was in the early morning hours and dark (3:45 a.m., on March 25th), a potentially violent crime had just been completed (the officer heard gun shots from the direction of two cars), and there was fleeing activity (one car immediately fled the crime scene and Williamson’s car was in the process of fleeing). Williamson, supra, 607 A.2d at 472, 475. By contrast, when the officers stopped appellant’s car, there was daylight (7:00 p.m., on June 25th), no crime of any nature had just occurred, and there was no fleeing activity. In fact, neither officer expressed any concern that appellant would leave the jurisdiction or that he had been uncooperative when questioned in the past about other matters.

Even where the police have reasonable suspicion of criminal activity, their seizure of a suspect must be temporary and their questioning must be limited to the purpose of the stop. Florida v. Royer, supra, 460 U.S. at 498, 103 S.Ct. at 1324 (citing United States v. Brignoni-Ponce, supra, 422 U.S. at 881-82, 95 S.Ct. at 2580).²³ In the present case, the police stopped appellant to question him about his attackers in his pending assault case.²⁴ Therefore, it logically follows that the scope and duration of then-questioning should have been limited to this purpose unless “articulable suspicion” or probable cause of criminal activity by appellant developed during the encounter. Officer Reynolds testified that he began his repeated questioning of appellant about whether he was carrying a weapon because of “instinct” and because of his “past dealings” with appellant. However, this falls short of the requisite “articulable suspicion” or probable cause: “There must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended.” Sibron v. New York, 392 U.S. 40, 73, 88 S.Ct. 1889, 1907, 20 L.Ed.2d 917 (1968) (Harlan, J., concurring).²⁵ Both officers admitted that appellant agreed to speak with them, was cooperative and remained seated in his car. Their testimony indicated no specific observations of appellant during this encounter which would reasonably lead to the conclusion that appellant had a weapon.²⁶

IV.

Appellant was the victim of, not a suspect of, criminal activity. Thus, especially in light of our analysis in Williamson and the fact that other less intrusive investigative methods were readily available to and had not been previously attempted by the police, the officers’ decision to stop or detain appellant created an illegal “seizure” of appellant. The police officers’ conduct in directing appellant to park his car and to turn off his ignition, and in positioning themselves as if they were engaging in a traffic stop, communicates to a reasonable individual that he is not simply free to ignore the police presence and go about his business. And given the totality of the circumstances presented by this case, the officers’ insistent and repeated questioning of appellant provides further evidence that appellant was “seized” within the meaning of the Fourth Amendment.

Finally, in my view, the trial court’s reasoning leading to its decision to basically ignore the factual inconsistencies in the officers’ testimony and to totally discredit appellant’s testimony is not persuasive. First of all, these inconsistencies — especially concerning the use of the word “stopped” and the use of the words “butt” and “bulge” — were matters of important detail whose accuracy was better judged as having been recorded shortly after the encounter occurred as opposed to subsequent recitations in the trial court setting. Second, while appellant was definitely not the ideal witness, the fact that his version of the events was not corroborated is of little, if any, significance since he was alone in his car during the encounter. Moreover, the fact that one has been previously convicted of a crime is not an absolute justification for totally discrediting one’s testimony. And finally, the fact that one charged with a crime might have a greater stake than police officers in the outcome of a proceeding should not operate per se to tilt the balance of credibility. Police officers likewise have a high stake in maintaining their good and respectable image as protectors of the public. Illegal searches or seizures are not to be taken lightly.

In any event, even assuming arguendo that the officers’ testimony is credible and that appellant’s testimony is not credible, I would find that the factual inconsistencies and other testimonial admissions are significant and that as a whole the record does not support the trial court’s factual findings. Moreover, I agree with Judge Farrell, most certainly, that the repeated questioning about the possession of a weapon resulted in a seizure in violation of the Fourth Amendment.

We hold that the trial court erred in denying appellant’s motion to suppress evidence. Accordingly, appellant’s conviction must be reversed.

So ordered.

1 . D.C.Code § 22-3204(a) (1995 Supp.).

2 . D.C.Code § 6-2311 (1989 Repl.).

3 . D.C.Code § 6-2361(3) (1989 Repl.).

4 . D.C.Code § 33-541(a)(1) (1988); D.C.Code § 22-3202 (1995 Supp.).

5 . D.C.Code § 33-541(d) (1988).

6 . D.C.Code § 22-3204(b) (1995 Supp.).

7 . We agree with the government that appellant's argument concerning the suppression of his statements made to the police is moot since these statements were not used by the government in its case-in-chief or in its rebuttal case.

8 . Appellant had been shot and then subsequently threatened by several men with ice-picks while he was being treated at a hospital for a gunshot wound. During cross-examination, Reynolds testified that he had not made any effort to interview appellant concerning these incidents prior to June 25th, although he knew appellant and had interviewed him previously about other matters.

9 . Although Reynolds denied that he "stopped” appellant, he admitted on cross-examination that the PD-163 report, which he prepared within twenty-four hours of arresting appellant, stated: "The undersigned officer and partner stopped the defendant who was operating a 1983 Volkswagen Rabbit_" (Emphasis added.) Reynolds further admitted during cross-examination that the same information was offered in a sworn statement and that it did not mention that appellant was already stopped and talking with some females when the officers approached him. Under questioning by the court about the use of the word "stopped,” Reynolds explained: "[T]he stop I believe I am trying to refer to in that was a contact 1ype of stop, not that he was stopped for any illegalities at that time.”

During his own testimony, appellant denied that he was already parked on Galludet Street talking to some females when the officers pulled alongside him. Appellant stated that he had not brought his car to a stop prior to being pulled over because he was on his way to the gas station.

10 . According to appellant's own testimony, Officer Reynolds pulled alongside appellant and yelled "pull it over, pull it over, I want to talk to you right now.”

11 . On cross-examination, Reynolds altered his version of the events. He testified that after appellant said he would speak with him, he asked appellant to pull his car over from the middle of the street and when appellant pulled his car into a parking space, both officers got out and approached him. Reynolds then excused himself to move his car out of the middle of the street and parked it "about a half a car length in front of” appellant’s car. Sometime after returning to appellant's car, Reynolds asked appellant to turn off the ignition. By contrast, Barnes, also dining cross-examination, denied that Reynolds moved the car after the officers alighted to speak with appellant.

12 . During cross-examination, Barnes admitted that her position at the passenger side of the vehicle and Reynold’s position at the driver’s side conformed with their training for making a traffic stop.

13 . According to appellant’s testimony, after Reynolds showed his badge, he asked appellant if he remembered him and appellant said, “yeah, I do, what seems to be the problem Mr. officer man?” Then, Reynolds began asking him questions about the shooting, demanding that he tell the officer who was trying to kill him. Reynolds was cursing and yelling and he told Barnes to look around because appellant was known to carry a gun.

14 . During her testimony, Barnes stated that at first she was smoking a cigarette and was not paying attention to the conversation between Reynolds and appellant. She claimed that the part of the conversation that got her attention was when she heard her partner ask appellant if he was packing (from the record taken as a whole, this would be the second time Reynolds had asked this question). At this point, appellant became “agitated” and pulled out some money. As appellant put the money back in his pocket, Baines testified that she saw "the butt of the gun in the right-hand side of his front pocket” (emphasis added). It was then that she signaled Reynolds by patting her pocket. However, according to Reynold’s testimony, as stated in the text, Barnes signaled Reynolds prior to appellant pulling the money out of his pocket.

Furthermore, Barnes admitted during cross-examination that the property record that she prepared after appellant's arrest correctly stated: “While standing on the passenger side of the vehicle observing the defendant I noticed a bulge on his right, on his side, which at that time I signaled my partner....” (Emphasis added.) After hearing this read to her, Barnes responded: "I left the part out about the money when he reached into his pocket and showed me the money and put it back in. That's the only thing that’s wrong with that statement.”

During his testimony, appellant denied taking any money out of his pocket while he was being questioned by Reynolds.

15 . According to appellant's testimony, Reynolds told Barnes to get him out of the car at which time Barnes came around to the driver's side of the car, put her gun in his face and told him to get out. This occurred after Reynolds told Bames to look around because appellant was known to carry a gun. See note 13, supra. Appellant stated: "I had already been shot and I didn’t want to get shot from close range like that, so I got out the car.”

16 . “When the case was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." D.C.Code § 17-305(a) (1989 Repl.) (emphasis added); see also Powell v. United States, 649 A.2d 1082, 1084 (D.C.1994).

17 . See also Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968) ("Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”) (emphasis added).

18 . While the test for determining a "seizure” is an objective one, whether a person has consented to a search (or a seizure) is a subjective one. In re J.M., supra, 619 A.2d at 500 ("all of the circumstances must be considered including both the nature of police conduct and 'the possibly vulnerable subjective state of the person who consents’") (citations omitted). Given appellant's prior criminal convictions (admitted to during cross-examination) and given appellant's testimony that he was told to pull over, appellant's "consent” was arguably not given voluntarily.

19 . See note 12, supra.

20 . Although police questioning in and of itself does not constitute a seizure, if this questioning loses its consensual nature or if the police “convey a message that compliance with their requests is required” then a seizure has occurred. Florida v. Bostick, supra, 501 U.S. at 435, 111 S.Ct. at 2386. The repeated questioning occurring within the context of the officers’ overall conduct restraining appellant's apparent freedom to leave, discussed above, certainly appears to convey a message that “compliance” was "required" because each time appellant answered the question in the negative the same question was asked a few moments later. It was as if the officers said to appellant, "we are going to ask you this question until you tell us the answer we want to hear.”

21 .Limiting police authority to stop witnesses to "exigent circumstances” is both necessary and essential because of "the additional invasion of privacy many possible witnesses are likely to suffer after seizure [i.e., the "frisk” or search of such witnesses for weapons].” Williamson, supra, 607 A.2d at 488 (Ferren, J., dissenting). Judge Ferren discussed the dichotomy between seizing individuals suspected of criminal activity and witnesses not so suspected. Id. at 488-89.

22 . Here it is particularly noteworthy that other investigative methods short of seizure had not even been attempted. During cross-examination, Officer Reynolds admitted that he had not made any effort to interview appellant concerning his pending assault case prior to June 25, 1992, although he knew appellant and had interviewed him previously about other matters. See note 8, supra.

23 . Furthermore, "[i]t is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Florida v. Royer, supra, 460 U.S. at 500, 103 S.Ct. at 1326.

24 . Although the police officers’ use of the term “stop” is inconsistent during the proceedings below, it is clear from the record that Officer Reynolds told appellant to park his car and turn off his ignition. And thus, it is fair to conclude that the officers stopped and/or detained appellant, at least temporarily.

25 . Although a gun and illegal substances were eventually recovered from appellant, this court has previously held that the end result can never justify the constitutionality of the circumstances leading to the recovery of the evidence. Brown v. United States, 590 A.2d 1008, 1013 (D.C.1991).

26 . Officer Barnes offered inconsistent testimony about whether she saw a "bulge” in appellant's pocket or whether she saw the "butt” of a gun prior to directing appellant to get out of his car. See note 14, supra. We do not need to resolve or address this inconsistency, however, because it is clear from the record that Officer Reynolds had asked appellant twice whether he was "packing” prior to Barnes’ observations of appellant; and thus, this repeated questioning had no legal justification. Id.