Kenion v. United States

302 A.2d 723, 1973 D.C. App. LEXIS 255

• Court: District of Columbia Court of Appeals
• Decided: March 29, 1973
• Docket: 6354
• Status: Published

Opinions

PAIR, Associate Judge:

After a trial by the court, appellant was found guilty of carrying on November 24, 1971, a pistol without a license¹ and because he was a third-time offender he was sentenced to a term of not less than three years and not more than nine years. On appeal he makes several claims of error. We reach only one — the contention that his motion to suppress as evidence the pistol should have been granted. We agree and reverse.

At the hearing on the motion to suppress, the Government’s only witness was Officer Horan, the arresting officer, who at that time was assigned to a “casual clothes unit” of the Metropolitan Police Department. His testimony was that at approximately 3 :30 p. m., accompanied by two other police officers, he was driving his private automobile in a southerly direction in the 1800 block of 13th Street, N.W. As the automobile passed an alley running alongside the Whitelaw Hotel on the southeast corner of 13th and T Streets, he “ . observed three gentlemen standing in the alley appearing to be engaged in some sort of meeting or conference of some kind. Two of the gentlemen were standing off to one side, while the other . . . was facing them. It was snowing and raining very hard and I immediately became curious as to why people would engage in a meeting in such inclement weather.”

Officer Horan turned into another alley which ran parallel with the one in which he had just observed the three men and, after proceeding a short distance, encountered— much to his surprise — two of them walking towards the automobile in which the officers were riding. Officers Horan and Love got out of the car, approached appellant and his companion, displayed their badges and identified themselves. Officer Horan then — and for the first time — recognized appellant as a man he had seen before in the neighborhood, and whom he believed had a record for narcotics and robbery. He did not, however, know appellant’s name. Before engaging appellant in conversation, the officer performed a Terry frisk, during which he felt a hard bulge which proved to be an unloaded .32-caliber pistol.

The Government, over objection, elicited from the officer that the locale was one characterized as “the heart and center for vice activity within [the third] district.” Further testimony by Officer Horan was that the circumstances led him to believe that a possible robbery was in progress. However, on cross-examination the officer stated, “I couldn't think for certain of any one thing. It was just suspicious circumstances.” Later the officer testified that when he stopped appellant he did not believe appellant had committed or was committing any felony.² While the officer had testified that he had seen appellant perhaps a dozen times and had previously stopped him, he” could not remember when because “I stop dozens of people daily.” Appellant’s version of the incident comported substantially with that of the officer, except that he stated that he had not previously been stopped by the officer.

Whatever view we might take of appellant’s credibility is of no consequence for the trial court chose to believe the officer, and credibility is for the trier of facts. Cooper v. United States, D.C.App., 248 A.2d 826 (1969). The only question presented therefore is 'whether, accepting the testimony of the officer in its entirety, there existed the “ . . . specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, at 21, 88 S.Ct. 1868, at 1880, 20 L.Ed.2d 889 (1968). See also Gray v. United States, D.C.App., 292 A.2d 153 (1972).

We recognize at the outset that while any question as to when a Terry stop-and-frisk is warranted is perplexing and not subject to a mathematical formula, the touchstone is always one of reasonableness. However it is basic, as pointed out by Mr. Justice Brennan speaking for the Court in Davis v. Mississippi, 394 U.S. 721, at 726-727, 89 S.Ct. 1394, at 1397, 22 L.Ed.2d 676 (1969), that:

Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed “arrests” or “investigatory detentions.” We made this explicit only last Term in Terry v. Ohio (citation omitted) when we rejected “the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a ‘technical arrest’ or a ‘full-blown search.’ ” [Footnote omitted.]

In our view the action of the police officer in this case cannot be justified as reasonable on any Fourth Amendment ground. There had been no report of a crime and it is difficult to understand how the action of appellant, as described by the officer, could have given him reason to believe that appellant was possessed of a weapon or that a crime had been committed or was in the process of commission.

The incident occured at 3:30 p. m. and, although the weather was inclement,³ it was not an unusual hour for a citizen to be abroad. And even though the area may have been a “center for vice” within the “high crime area” concept, that fact, without a great deal more, would not support an inference that appellant was engaged in criminal conduct. Cf. Gray v. United States, supra.

All that remains, therefore, to justify the police action is the officer’s belief that appellant was possessed of a criminal record. The Government has cited no case and we have found none which countenances an invasion of a person’s fourth amendment rights upon a showing, without more, of a police officer’s good faith belief that such person had a criminal record. Cf. Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

The conclusion is thus compelled that the police officer was not possessed of the articulable facts mandated by Terry v. Ohio, supra, as a condition precedent to the frisk of appellant and the seizure of the pistol from his person.

The observation of Judge Nebeker (concurring) in Gray v. United States, supra, is equally relevant here:

We have come too far in law enforcement and police-community relations, to permit officers to be so untrained in the basic law as to operate on the misapprehensions revealed herein .... Moreover, we cannot fail to recognize that the continued vitality of Terry . . . rests on the assumption that law enforcement will sparingly use and apply police power recognized in that decision and not attempt to disguise harassment in its mantle. . .

It follows that the pistol seized was the fruit of an illegal search and should have been suppressed.

Reversed.

1 . D.C.Code 1967, § 22-3204.

2 . It does not appear from the record that the officer had a report of a robbery in the area, or that he was investigating any criminal act.

3 . The misfortune of being caught in bad weather is one to which all citizens are l)rey, and we can see little weight to attach to such circumstance.