Smith v. United States

525 A.2d 200, 1987 D.C. App. LEXIS 344

Opinions

PER CURIAM:

Appellant was convicted, following a bench trial, of carrying a pistol without a license, D.C. Code § 22-3204 (1981). On appeal, he asserts that the pistol should have been suppressed because the officers stopped him and seized the pistol without adequate basis, and that the evidence was insufficient to sustain his conviction. We affirm.

On March 22,1984, an undercover officer purchased drugs from two individuals near 12th and U Streets, N.W., an area which is, according to the testimony, known for its high incidence of drug trafficking. Following the purchase, the undercover officer gave waiting arrest teams a description of the two persons from whom he purchased the drugs.

Officer Freddie Lawson, who had spent six of his sixteen years on the police force in narcotics-related activities, was a member of an arrest team. His team arrived at the scene within two minutes of the broadcast. He saw appellant conversing with the two persons who fit the descriptions of the narcotics traffickers given by the undercover policeman, and saw no one else in the immediate vicinity. Some other persons were “over on the other side of the parking lot.” Lawson stopped his car and he and three other members of the team began to get out of it. Appellant started to leave at a very fast pace.

The three other officers approached the two persons who fit the descriptions given by the undercover officer. Lawson followed appellant. Thinking that appellant might have been involved in the drug transaction as the person who held the cash, and might be in possession of prerecorded funds, Lawson told appellant he was a police officer and asked him to stop. Appellant stopped and said he had nothing to do with the two people. When appellant attempted to walk away, Lawson placed his hand on appellant’s shoulder. As Lawson did so, appellant spun around and swung his hand at Lawson’s face. The two struggled and fell to the ground. After appellant repeatedly tried to reach for his right vest pocket, one of the other officers placed his hand on the pocket and felt the butt of a gun. A loaded .22 caliber pistol was found in the pocket. Appellant was then placed under arrest.

Appellant moved that the gun and other evidence not pertinent here be suppressed. The judge granted the motion in other respects, but denied as to the gun in question, concluding that “under [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] it was proper to stop and search and that thereafter, the seizure was proper.”

On appeal, appellant argues that the circumstances did not provide sufficient basis for a Terry stop. We disagree. Deeming the officer’s placement of his hand on appellant’s shoulder a stop under the circumstances present here, see United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (circumstances tending to indicate a seizure include “some touching of the person of the citizen” by an officer), we are satisfied that the officer had sufficient articulable suspicion by that point to stop appellant.

We have recently noted that “in evaluating behavior for purposes of assessing whether there existed a basis for a stop or seizure, we must look to the totality of what the police observed.” United States v. Bennett, 514 A.2d 414, 416 (D.C.1986). In this case, Officer Lawson observed these specific and articulable facts before stopping appellant: appellant was engaged in a conversation with two men who less than two minutes before had been the subjects of a radio run for a narcotics transaction; no other persons were in the immediate area; the experienced police officer was aware that narcotics sales are often made by several persons working as a team; the neighborhood was a high narcotics trafficking area; and appellant attempted to leave hurriedly when the officers suddenly appeared on the scene.

We have previously recognized the significance of several of these factors. The experience of the officer with the modus operandi of narcotics transactions is relevant to whether he made a reasonable conclusion that criminal activity was afoot; here, that appellant was likely to be involved in the transaction. See Terry, supra, 329 U.S. at 23, 30, 88 S.Ct. at 1881, 1884; see also Harris v. United States, 489 A.2d 464, 466 (D.C.1985) (drug dealers often work in teams of two to three to minimize the dangers of robbery and arrest). The fact that this conduct occurred in a high narcotics trafficking area also increases the likelihood that it was criminal in nature. Price v. United States, 429 A.2d 514, 518 (D.C.1981). Furthermore, the flight of appellant when Lawson attempted to question him implies “consciousness of guilt” and weighs significantly in justifying the Fourth Amendment seizure. Bennett, supra, 514 A.2d at 416 (and cases cited therein). Although the matter is close, we regard the circumstances sufficient to warrant the stop.¹

Appellant’s argument that the evidence was insufficient to support guilt is without merit. In re S.P., 465 A.2d 823, 826 (1983).

Affirmed.

1 . We find inapposite Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), on which the dissent principally relies. In Sibron, the suspect was observed over a period of hours conversing with several known narcotics addicts. Neither Sibron nor his companions were observed engaging in any suspicious behavior. Id. at 45, 88 S.Ct. at 1893. In contrast, in the instant case, Smith was seen conversing with two persons who met the description of the two individuals observed, moments before, selling narcotics to an undercover officer. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), also relied upon by the dissent, is not controlling here, as it dealt not with police action within a few minutes of an observed transaction, but with a search of a person who happened to be in a tavern during the execution of a search warrant issued on the basis of an informant’s tip that the bartender would have heroin for sale that day.