Powell v. United States , 1994 D.C. App. LEXIS 221 ( 1994 )

KING, Associate Judge,

dissenting:

It appears to me that both Judge Sullivan and Judge Farrell are substituting their judgment for that of a trial judge who went to great lengths to put herself in the place of the police officers as she assessed the significance of the events observed by them in the early morning hours when the gun was recovered. The trial judge ruled that the police conduct was not unreasonable under the circumstances, there is more than adequate record support for that finding, and I would not disturb it.

I.

At the suppression hearing Officer Juan Hernandez testified that on June 10,1990, at approximately 3:40 a.m. he and Officers Pa-pricka and Green were traveling eastbound in a police vehicle in the 300 block of Kennedy Street, N.W., when they observed a brown Toyota, approximately three or four car lengths in front of them, make an abrupt left-hand turn into an alley. There were no other vehicles between them and the Toyota. The abruptness of the turn caught the officers’ attention and they also turned into the alley, following the Toyota. As they reached the midpoint of the alley the Toyota “was exiting [the alley] at a high rate of speed, and buckled onto Missouri Avenue” without stopping at the stop sign located at the end of he alley. Hernandez explained that “buckled” means the Toyota “bottomed out” when it made the right-hand turn onto Missouri Avenue. Officer Hernandez also observed that the Toyota must have accelerated while in the alley because the distance between the two vehicles had lengthened by a “few more” car lengths, i.e., the Toyota was about five or six car lengths ahead of the police vehicle when the Toyota exited the alley. As the police vehicle approached the end of the alley, the officers activated their emergency equipment, i.e., the lights and siren, and increased speed.

Both vehicles proceeded east on Missouri Avenue passing through the intersection at Third Street and a green light at the intersection at Kansas Avenue with the police officers “right behind him, hitting our siren and hitting our horn.” At the Kansas Avenue intersection, the police vehicle was less than a half car length behind the Toyota. During this portion of the chase it “appeared” to Officer Hernandez that the Toyota was exceeding the speed limit although that vehicle’s speed was not actually clocked or otherwise measured.

The Toyota then made a left-hand turn back onto Kennedy Street, and, because that area is well lighted, Officer Hernandez was able to observe the driver looking at the officers in his rear view mirror. Officer Hernandez testified that he could see the driver “look at us in the rear view mirror, and duck down towards his passenger seat, and look at us again, he kept going through this⁶ — second street.” Officer Hernandez, however, could not see what, if anything, the driver was doing when he ducked toward the passenger seat. At that point “[w]e kept hitting our siren and stuff, and we started thinking this guy might try to run, he was obviously not stopping....” Finally, at the edge of the one hundred block of Kennedy Street the Toyota pulled over and stopped. The Toyota had traveled approximately two to three blocks before stopping after the emergency equipment was activated by the officers.

Hernandez walked to the passenger side of the Toyota and Officer Papricka went to the driver’s side. Both officers had their weapons holstered. The driver, later identified as Powell, was the only occupant. Officer Pa-pricka then asked Powell for his drivers license and registration; however, Powell did not comply with that request and instead inquired why he had been pulled over. Pa-pricka again asked Powell to produce his license and registration stating that once Powell complied with the request Papricka would explain the reason for the stop. Powell again asked Papricka why he had been stopped; Papricka then opened the driver’s side door and directed Powell to get out of the vehicle. According to Hernandez, Powell had not produced his license and registration when the order to exit the car was made by Papricka.

Hernandez testified that “at that point, I went around to Papricka’s side of the car, in case something were to happen, because he was making us kind of nervous.... When I went around the car, he was still sitting in his car.” According to Hernandez, “Officer Papricka said, you are going to have to step out of the car, sir, so he kind of smirked and got out of the car, and I said, put your hands on the car here.” Powell, however, did not immediately place his hands as directed: “he was really acting nervous, and kept toning around, what, why, what have I done, I said, put your hands on the car.” Powell then complied, and Hernandez began a pat-down by going to Powell’s waistband where he found a nine millimeter pistol. Hernandez testified he conducted the pat-down “[f]or our safety, for my safety, and my partner’s safety, and for the defendant’s safety.” Hernandez conducted the pat-down because he was convinced that Powell might have some type of weapon on him.

Powell testified that he first noticed the police vehicle behind him while he was in the 400 block of Kennedy Street, N.W., and that there was one other vehicle between his and the police vehicle. When he turned into the alley the police vehicle was approximately one-half block behind him. He confirmed that he had taken the route described by Officer Hernandez, explaining that by cutting through the alley he would avoid stop-lights on Kennedy Street at the intersections of both Third Street and Kansas Avenue. He testified that this route was a common shortcut made by those familiar with the area. Powell disputed several aspects of the officer’s testimony, however. For example he claimed the police car was just emerging from the alley when he approached the light at Kansas Avenue and that the emergency lights on the police car where not activated until he had turned back onto Kennedy Street. He also testified that neither the siren nor the horn on the police vehicle were activated. The only “reaching” he did was for his wallet just before he stopped his vehicle, and for the glove compartment after his vehicle had come to a stop. Finally, he testified that he pulled his vehicle to the curb within a half block of seeing the flashing lights.

After his vehicle was stopped, an officer approached on the driver’s side and asked for his drivers license and registration. Powell testified he had his license in his hand and that he retrieved an envelope containing the registration from his glove compartment. He then gave the license and the envelope to the officer who then directed that he get out of the car.⁷ A second officer took Powell to the rear of his vehicle while the first officer searched inside of the Toyota in the vicinity of the front seat. He was then ordered to place his hands on the car, and after he complied, the officer found the pistol on his person.

II.

Powell concedes that the police, under Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), could properly order him out of the vehicle pursuant to a valid stop for a traffic violation. Powell challenges the subsequent frisk, however, claiming that the police lacked sufficient grounds to form a reasonable belief that he was armed and dangerous.

Our standard of review for a trial court’s ruling on a motion to suppress tangible evidence requires that “the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling.” Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc) (citations omitted). We have held that it is a “well settled principle that in the course of a lawful stop, a police officer may conduct a reasonable search for weapons for his own protection where he has reason to believe that he is dealing with an armed and dangerous individual.” In re D.E.W., 612 A.2d 194, 195 (D.C.1992) (internal quotations and citations omitted). “Moreover, the evidence of suspicion must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id. (internal quotations and citations omitted).

The trial judge, concluding that the police action was reasonable, set forth several factors that supported the officers’ belief that their safety was in jeopardy. First, the judge found that the officers were reasonable in viewing Powell’s detour through the alley, at 3:40 a.m., as unusual.⁸ Second, “some time did pass before [Powell] stopped” in response to the police emergency equipment.⁹ Third, Powell made reaching movements toward the passenger side of the car that the officers could have reasonably interpreted as an effort to locate the car registration or to obtain a weapon.¹⁰ Fourth, the early morning hour was a factor that could be taken into account. Finally, the officers were entitled to consider the display of “hesitancy and nervousness on the part of [Powell].”

The trial judge acknowledged that hesitancy and nervousness are not unusual for people detained for traffic violations; however, the judge observed that “it is certainly not unreasonable for the officers to take that into account in determining whether or not they need to take some actions to protect themselves.”¹¹ The trial judge concluded that when adding the nervousness and hesitancy of Powell to the other circumstances that preceded the stop, the officers were justified in frisking Powell “for their own safety.” See Peay, supra, 597 A.2d at 1320 (“Even if each specific act by a suspect could be perceived in isolation as an innocent act, the observing police officer may see a combination of facts that make out an articulable suspicion.”) (Internal quotations and citations omitted).

In my view, of the various factors considered by the trial court, the significance of Powell’s ducking toward the passenger seat is paramount. It is that act, and only that act, in the circumstances present here, that could reasonably give rise to a conclusion on the part of the officers that Powell might have armed himself. There was no testimony that the “ducking” was accompanied by a reaching, but that is not at all surprising since, any reaching by Powell from the bending position probably would not have been visible to the officers in the trailing vehicle. But drivers travelling at a high rate of speed through city streets do not duck down toward the passenger seat for no good reason. I submit that it cannot seriously be disputed, therefore, that such a movement could have been accompanied by a reaching, as the trial court found, that resulted in Powell gaining possession of a weapon. By the same token, it cannot seriously be disputed that such a movement could have been no more than an effort by Powell to obtain documents relating to his vehicle. The issue, however, is not whether Powell did obtain a weapon or whether the ducking had some innocent purpose; rather, the issue is whether under the circumstances it was unreasonable for the police officer to conclude that by that action Powell might have armed himself or caused a weapon to be readily available to him.

I hasten to note that the significance of the “ducking” factor does not make the other factors irrelevant; they gave context to, and flesh out, the perception by the officers of the significance of Powell’s ducking movement. The trial judge observed Officer Hernandez when he testified, and concluded, based on that observation, as well as the other factors, that it was not unreasonable for the officers to conclude that the purpose of Powell’s “ducking” was to obtain a weapon.¹² Trial judges have been instructed by our eases to place themselves in the shoes of the police officer and to view the unfolding events at the scene as the officer would have. See, e.g., Peay, supra, at 597 A.2d at 1322. And the trial judge followed those instructions when she conducted the hearing in this ease. On this record I am satisfied that the trial judge, viewing the police action “through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training,” Peay, supra, 597 A.2d at 1322 (citation omitted), could properly find that the officers had reasonable articulable suspicion that the Powell posed a safety risk and that it was reasonable to frisk him for a weapon. Cousart v. United States, 618 A.2d 96, 100 (D.C.1992) (en banc) (finding that record supported trial court’s determination “that the officers reasonably perceived the circumstances as more than a mere traffic violation”); see also Terry v. Ohio, 392 U.S. 1, 33, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968) (“There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.”) (Harlan, J., concurring).

Judge Sullivan finds comfort in remarks by Judge Wright in his dissenting opinion in United States v. Green, 151 U.S.App.D.C. 35, 465 F.2d 620 (1972). In that case, however, on facts virtually indistinguishable from the facts presented here, the majority held that the trial court did not err in denying the motion to suppress. In Green, as was true here, the police encountered a lone driver of a speeding vehicle in the early morning hours who ran a stop light and who at one point “leaned over.” In neither Green nor in this case were the drivers hands visible, but in both cases the officers testified that they believed, as a result of the driver’s actions, that he was armed. The Green court upheld the trial court’s determination that the officers’ fear that the driver was armed was not unreasonable. We should do the same in this case.

6 . The record does not reveal what the officer meant by his remark that Powell "kept going through this," or whether the testimony was, or was not, accompanied by gestures on the part of the officer.

7 . On remand, the trial court found on this point that:

Powell did produce his driver’s license and perhaps his registration to Officer Papricka before Powell was asked to step out of the car. But the Court also finds that Officer Papricka may well have not been aware of exactly what documents had been provided to him. In making these findings, the Court credits Powell’s testimony that he was looking for his registration among the papers in his glove compartment. He retrieved an envelope which he believed contained his registration along with insurance documents and other papers. He attempted to find his registration in this envelope, but the officer was telling him to hurry up, and he therefore simply handed the entire envelope to the officer.

8 . Judge Sullivan concludes that, since Powell testified that he, and others, often used the alley as a shortcut, the trial judge erred in concluding that his route that morning was an unusual one. The trial judge acknowledged that Powell’s explanation for using that route was perfectly reasonable; however, it was also perfectly reasonable for the trial judge to find that, from the officer’s point of view, the route was in fact an unusual one particularly since the passage through the alley began with an “abrupt” turn and ended with Powell’s vehicle "bottoming out" as it exited the alley.

9 . Judge Farrell places weight on the trial courts finding that Powell was not attempting to evade the police. That finding, however, only binds us with respect to Powell’s motivation. It does not enlighten on the question of how Powell’s failing to promptly stop stop weighed in the minds of the police officers. Hernandez testified "we started thinking, this guy might try to run, he was obviously not stopping." As it should have been, it was the officers’ assessment, not Powell's, that was taken into account by the trial judge.

10 . We observed in D.E.W., supra, that the "issue is whether the officer had articulable suspicion [that the defendant was armed or had taken steps to arm himself], not whether [the defendant’s] actions could be construed as innocent behavior.” In re D.E.W., supra, 612 A.2d at 197 (citation omitted).

11 . On remand the trial court elaborated:

The Court finds that through the stop, both before and after he was asked to step out of the car, Powell was asking questions about why he was being stopped. Powell complied with the demands of the officers that he produce his driver's license and registration, and that he place his hands on the car. However, his compliance was not immediate, and it was punctuated with his own demands to know why this was happening to him.

The Court did not find that there was anything particularly unusual about Powell’s responses. Indeed, in [its ruling denying the motion to suppress], the Court stated that it probably was not unusual for people to be hesitant or nervous when they are stopped by the police. The Court believed, however, that it was reasonable for the officers to take these facts into account in deciding whether a frisk was warranted. The Court concluded that when considered from the point of view of the officers, these facts, in conjunction with the hour, the unusual route, the failure to immediately respond to the emergency equipment, and the reaching movements prior to stopping the car, justified the “pat down” of the defendant.

12 . See United States v. Alexander, 428 A.2d 42, 49-50 (D.C.1981) (noting that "in reviewing the court’s findings in a motion to suppress, we must accept its resolution of conflicting testimony, and will not disturb the factual findings so long as they are supported by substantial evidence") (footnote omitted); United States v. Briggman, 931 F.2d 705, 709 (11th Cir.) ("In examining the totality of the circumstances, a reviewing court must give due weight to the officer's experience.”), cert. denied, - U.S. -, 112 S.Ct. 370, 116 L.Ed.2d 322 (1991). See also Michigan v. Long, 463 U.S. 1032, 1052, 103 S.Ct. 3469, 3482, 77 L.Ed.2d 1201 (1983) (”[W]e stress that a Terry investigation ... involves a police investigation ... when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger.").