United States v. Cousar

349 A.2d 454, 1975 D.C. App. LEXIS 291

• Court: District of Columbia Court of Appeals
• Decided: December 18, 1975
• Docket: 9305
• Status: Published

Opinions

NEBEKER, Associate Judge:

This prosecution appeal¹ arises from an order of suppression of evidence in favor of defendant-appellees Frederick R. Cousar and Will Miller, Jr. The case presents the question whether the stopping of the accused and the continuing inquiry were justified such that the discovery of the weapon in plain view on the floor of Cousar’s car was not tainted by unreasonable and thus unconstitutional action by the state. We hold that the stopping of the automobile in question was reasonable, and, accordingly, we reverse.

On the afternoon of January 10, 1975, Officer Ronald Harvey heard a broadcast over his radio that the driver of a black and maroon Monte Carlo with reflectors down the door sill had been seen loading a forty-five automatic revolver and putting it into his waistband. During the hour that passed between the broadcast and the arrest, Officer Harvey did not see another car in that vicinity matching the description he had heard. When he saw such a car in the same general area, he stopped it and Cousar, the driver, got out. Officer Harvey patted him down for the automatic, and at this point Cousar volunteered that the policeman must be looking for his (Cousar’s) toy gun, which was in the trunk of the car. Cousar surrendered his trunk key to Officer Harvey, who opened the trunk and found a replica of a “forty-four” caliber pistol. While Officer Harvey was looking in the trunk, Officer John Monno, having heard that a car was being stopped for possible possession of weapons, arrived. As he was walking past the open driver’s door, he saw what appeared to him to be a pistol and ammunition lying in front of the driver’s seat. He seized the pistol, and Cousar and his passenger, Miller, were placed under arrest.

The government correctly contends that the stop of the Cousar automobile was reasonable. It should be noted that there is no contest over the subsequent seizure of the pistol and ammunition. The parties agree that if the stop was reasonable, the seizure of the pistol in plain view was proper.

The initial seizure of the accused is valid because it is based on information justifying an investigative stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Thomas, D.C.App., 314 A.2d 464 (1974); cf. Bates v. United States, D.C.App., 327 A.2d 542 (1974) and Galloway v. United States, D.C.App., 326 A.2d 803 (1974) (same holding although based on probable cause). The officer’s stopping of the Cousar car was proper where the officer had received a detailed description of the car, its occupants, and its location. The Supreme Court observed in Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), that while some information might not have sufficed for an arrest or a warrant, it was enough to justify further investigation entailing a stop of one reasonably subject to that investigation. The fact that the information came from an unknown or unidentified citizen does not preclude the police from acting. Galloway v. United States, supra; District of Columbia v. M. E. H., D.C.App., 312 A.2d 561, 565 (1973), citing United States v. Walker, D.C.App., 294 A.2d 376 (1972). For purposes of determining reasonableness of a momentary seizure to investigate, we pre-ceive no substantial difference between the first-hand report given the arresting officer in M.E.H. and the transmission of that report through the receiving officer and the police communication system. In either event the police must act promptly on information supplied. This is particularly so where, with the kind of detailed description of the unique automobile, there is even less possibility of an error through transmission.

The appellees contend that the information came from an anonymous telephone caller, but can point to no testimonial support to substantiate this assertion.² Officer Harvey testified that the information was given by a citizen to a radio unit on patrol and that the unit then broadcast the information.

The continued detention of Cousar to the point where the second officer saw the gun through the open car door was justified by the escalation of events. When Cousar volunteered that he had a toy gun in the trunk, it was reasonable for the officer to seek to resolve the possible conflict between the report of the citizen an hour earlier and the assertion that the gun was not a real one. Therefore, we hold that as to Cousar’s right to be free from unreasonable seizure of his person no violation thereof occurred at the time the gun was observed.

The order on review is reversed and the case remanded for further proceedings.

So ordered.

1 . D.C.Code 1973, § 23-104.

2 . It is true that in a prehearing opposition to the suppression motion the government alluded to a report by telephone. However, that is not the testimony given at the hearing, and we are bound by that part of the record. D.O.Code 1973, § 17-305(a).