Peay v. United States

575 A.2d 279, 1990 D.C. App. LEXIS 122, 1990 WL 69113

• Court: District of Columbia Court of Appeals
• Decided: May 23, 1990
• Docket: No. 88-678
• Status: Published

Opinions

NEWMAN, Associate Judge:

John Thomas Peay appeals his conviction for possession of marijuana with intent to distribute in violation of D.C.Code § 33-541(a)(l) (1988) on grounds that evidence seized from him and admitted against him at trial was seized in violation of the Fourth Amendment of the United States Constitution. Specifically, Peay charges that the evidence, consisting of several plastic bags of marijuana, was seized by an officer who, without proper justification, ordered him to stop. Because we conclude as a matter of law that the officer lacked a reasonable articulable suspicion that Peay was engaged in criminal activity when he ordered Peay to stop, we reverse.

I.

According to the testimony of Emmett G. Queen, on the afternoon of January 26, 1988, Queen and two other plainclothes officers of the Metropolitan Police Department were on routine patrol in the 1400 block of Girard Street, N.W., when they parked their vehicle in front of a building known to the officers as a place where illegal narcotics were sold.¹ There they observed John Thomas Peay standing in the doorway to the building. As they exited the car to begin their routine check of the building for illegal narcotics sales, they saw Peay look in their direction before hurrying into the building.

Queen went immediately to the third floor to begin his part of the routine check. There in the third floor hallway, he encountered Peay standing about three feet away in good light. Peay was clutching something in his left hand, and Queen testified that he thought it might be “a weapon, a small knife, possibly a gun.” Queen identified himself as a police officer, then approached Peay and asked what was in his hand. Peay turned and began to walk away. Queen ordered Peay to stop. Peay continued walking, and Queen ran towards him and grabbed him by the shoulder, at which time Peay dropped several small plastic bags containing a greenish weed. Another officer arrived and the contents of the plastic bags were field tested. When the contents of the bags proved to be marijuana, Peay was placed under arrest. He was subsequently charged with possession of marijuana with intent to distribute.

Peay moved for suppression of the bags of marijuana at a pre-trial hearing, arguing that police had begun to pursue him from the moment they first saw him standing outside the building, at which point in time they lacked a reasonable articulable suspicion that would justify seizing him. When the trial court rejected his interpretation of events, concluding instead that the police had entered the building not to chase Peay but on routine patrol, Peay argued that Queen did not have a reasonable articulable suspicion when he stopped Peay in the third floor hallway, since Queen admitted he had no idea what Peay had in his hand. The trial court rejected his argument as well, holding that Queen did indeed have a reasonable articulable suspicion. As the trial court put it:

I also find that if there was a stop here — and I’m not certain that there was — there was an articulable suspicion upon which to base the stop, which included more than this being a building where the police officer testified there was a traffic in narcotics.

The activity of the defendant prior to the actual question which was lodged by the police officer, was such that when the police officer saw that the defendant had something in his hand, he could reasonably have a suspicion of there being a problem. Therefore, when he said, “Stop. What is in your hand?” he was indeed minimizing the impact of this stop, if indeed it was a stop, and he was minimizing it to the point where he was addressing what for him was an articula-ble suspicion of criminal activity and danger to himself.

He and two other officers were in a building where they knew there was a traffic in drugs, and they also know of the dangers to their own safety inherent in drug trafficking and being in areas where drugs are being sold.

On appeal, Peay has abandoned his argument that a chase ensued from the moment he entered the building. Moreover, the government concedes that Queen conducted a stop within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) by ordering Peay to stop. This concession was proper. See Michigan v. Chesternut, 486 U.S. 567, 573-74, 108 S.Ct. 1975, 1979-80, 100 L.Ed.2d 565 (1988); Smith v. United States, 558 A.2d 312, 314 (D.C.1989) (en banc). Because we hold that prior to observing Peay’s clenched fist Queen had no justification for conducting a Terry stop, the only issue we face is whether the trial court erred in holding that Queen had justification for a Terry stop after observing Peay’s clenched fist.

II.

We begin with a fundamental premise expressed in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971):

the most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576] (1967). The exceptions are “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499 [78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514] (1958), and there must be “a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456 [69 S.Ct. 191, 193, 93 L.Ed. 153] (1948). “[T]he burden is on those seeking the exemption to show the need for it.” United States v. Jeffers, 342 U.S. 48, 51 [72 S.Ct. 93, 95, 96 L.Ed. 59] (1951).

Id. at 454-55, 91 S.Ct. at 2031-32.

One of the “specifically established and well-delineated exceptions” was created in Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868. Under the Terry exception, in order to justify forcibly stopping a citizen, an officer “must be able to point to specified and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880. The definition of what constitutes articulable suspicion necessarily has depended upon the facts available to the officer in each of the particular situations that have come up for review. Nonetheless, we have expressed general principles to be followed in reviewing the nexus between available facts and the inference drawn from them. For example, in Stephenson v. United States, 296 A.2d 606 (D.C.1972), cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973), we identified the following factors:

(1) the particular activity of the person stopped for questioning which the investigating officer has observed, (2) that officer’s knowledge about (a) the activity and the person observed and/or (b) the area in which the activity is taking place, and (3) the immediate reaction or response of the person approached and questioned by the officer.

Id. at 609. Moreover, we have said that in reviewing the judgments of police officers making such stops in the field, we must consider the “totality of what the police observed.” United States v. Bennett, 514 A.2d 414, 416 (D.C.1986). See, also, United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981) (“the totality of the circumstances — the whole picture — must be taken into account.”). However, we have also made clear that there must be more than mere suspicions or hunches to justify such a stop. See Jones v. United States, 391 A.2d 1188, 1191 (D.C.1978); Coleman v. United States, 337 A.2d 767, 772 (D.C.1975). As Justice Harlan put in his concurring opinion in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), which was handed down the same day as Terry:

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. (Emphasis added).

Id. at 73, 88 S.Ct. at 1907. Further, the subjective belief of the police officer must be an objectively reasonable one, Terry, supra, 392 U.S. at 21-22, 88 S.Ct. at 1879-1880 for “[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964). And here is the heart of the matter before us: whether the facts available to Officer Queen, taken in the totality of the circumstances before him, justified an objectively reasonable and articulable suspicion that Peay was engaging or had engaged in “particular criminal activity.”

At the suppression hearing, Queen articulated his suspicion to be that Peay was engaged in carrying and concealing “a weapon, a small knife, possibly a gun.” Such activity is proscribed by D.C.Code § 22-3204 (1989 Repl.), which provides in relevant part:

No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed.

and by D.C.Code § 22-3214 (1989 Rep.), which provides in relevant part:

(a) No person shall within the District of Columbia possess any machine gun, sawed-off shotgun, or_ switchblade knife....

(b) No person shall within the District of Columbia possess, with intent to use unlawfully against another, an imitation pistol, or a dagger, dirk, razor, stiletto, or knife with a blade longer than three inches, or other dangerous weapon.

Since Queen testified in the disjunctive, stating that he believed Peay’s clenched hand might conceal “a small knife, possibly a gun,” we will consider the effect of these statutes on both of these suspicions in turn.

Queen’s suspicion that Peay carried a gun.

Although § 22-3204 could apply to a gun concealed in Peay’s hand, and thus provide the necessary legal basis for Queen’s suspicion that Peay was engaged in criminal activity, there was no objectively reasonable basis for concluding that Peay was so engaged. We know of no pistol so small as to permit such concealment from a trained police officer standing three feet away in a well-lit hallway. We reach the same conclusion regarding the possibility that Peay was concealing an imitation pistol, as prohibited by § 22-3214. Furthermore, it was unreasonable for Queen to believe that Peay might have been in violation of § 22-3214 by carrying any of the other guns mentioned in the statute, specifically machine guns and shotguns. Therefore, we hold that Officer Queen’s suspicion that Peay was involved in the type of criminal activity proscribed by §§ 22-3204 and 22-3214 with respect to guns was not reasonable under the totality of the circumstances and, thus, afforded him inadequate justification for a Terry stop.

Officer Queen’s suspicion that Peay carried a small knife.

Of the knives listed in §§ 22-3204 and 22-3214, only the possession of a switchblade is a strict liability offense; that is, it requires no intent. All other knives described in the two statutes require possession with intent to use unlawfully against another.

As was the case concerning Queen’s suspicion that Peay’s clenched hand concealed a gun, we hold that any belief that Officer Queen may have had that Peay could conceal a switchblade in a clenched hand in a well-lit hallway when Queen was standing three feet away was unreasonable. Besides, Queen stated that he suspected the presence of a “small knife,” which would for all practical purposes rule out a switchblade. Furthermore, this description would very likely rule out as well a dirk, dagger, stilletto, razor, or knife with a blade longer than three inches.

But even if such knives might fit within Peay’s clenched hand, possession of them, without more, would not be enough to violate § 22-3214, because the statute requires that such possession be “with intent to use unlawfully against another.” Queen did not testify that he suspected Peay of harboring such intent. But even if it can be inferred that Queen did form such a suspicion, we hold that there was no reasonable basis to support it. When Queen inquired about the contents of Peay’s clenched fist, Peay turned and walked away. Even when Queen ordered Peay to stop, Peay continued to walk away. Under such circumstances we hold as a matter of law that there was no reasonable basis for suspecting that Peay harbored an intent to use whatever knife may have been concealed within his clenched hand as a weapon unlawfully against another. Thus, Queen’s suspicion that Peay was in violation of § 22-3214 was not reasonable.²

Finally, there is the category of knives that may fit the category of “deadly or dangerous weapons capable of being so concealed” described in § 22-3204. Our decisions defining which knives constitute “deadly or dangerous” weapons have focused upon the intent of the person carry-mg the knife, as well as upon the size or type of knife carried. Thus, a kitchen knife can be a deadly and dangerous weapon when carried as a weapon. Clarke v. United States, 256 A.2d 782 (D.C.1969). The same is true of a hawk-bill knife. Perry v. United States, 230 A.2d 721 (D.C.1967). A knife that is ten-inches long when extended, with a blade slightly over four-inches long, may also fit the statutory definition. Scott v. United States, 243 A.2d 54 (D.C.1968). In the end, the test for determining dangerousness is the purpose for which the knife is carried. Nelson v. United States, 280 A.2d 531 (D.C.1971); Clarke, supra, 256 A.2d 782; Leftwitch v. United States, 251 A.2d 646 (D.C.1969). Of course, the carrying of a knife for a legitimate purpose is not prohibited by the statute. Scott, supra, 243 A.2d 54.

Thus, Queen’s bare suspicion that Peay’s clenched hand might conceal a knife fitting the description of deadly or dangerous weapons in § 22-3204, without more, was not enough to bring Peay’s conduct within the purview of the statute. As is the case concerning knives described in § 22-3214, possession must be accompanied by intent; in this case the requisite intent is to use the knife unlawfully as a weapon. Having held that there was no reasonable basis for suspecting that Peay had the intent to use the “knife” unlawfully within the meaning of § 22-3214, we reach the same conclusion under § 22-3204.

Thus, we hold as a matter of law that Officer Queen did not have a reasonable articulable suspicion for stopping Peay in the hallway. We reverse his conviction and remand for further proceedings consistent with this opinion.³

Reversed and remanded.

1 . Officer Queen, the only officer to testify at the suppression hearing, could not recall whether the vehicle was marked or unmarked.

2 . Unlike our dissenting colleague, we are unwilling to sanction a Fourth Amendment intrusion, using a Terry justification, on the possibility that, given the locale, Peay intended to use the "small knife” unlawfully someday against somebody.

3 . Our dissenting Brother, while professing his fidelity to the Fourth Amendment, is simply willing to hold reasonable that which we hold unreasonable.