Smith v. United States

NEWMAN, Associate Judge:

Following a suppression hearing and a bench trial, appellant was convicted of carrying a pistol without a license. On his appeal, a majority of a division of this court affirmed his conviction, rejecting appellant’s argument that the pistol was seized in violation of his Fourth Amendment rights and that its admission into evidence was constitutional error. Smith v. United States, 525 A.2d 200 (D.C.App.), vacated, 531 A.2d 288 (D.C.App.1987). We granted appellant’s petition for rehearing en banc and vacated the division’s opinion and judgment. We hold the police did not have a sufficient basis to conduct a Terry³ stop. We reverse the conviction.

I.

On March 22, 1984, while working near 12th and U Streets, N.W., an area known for its high incidence of narcotics trafficking, an undercover police officer purchased narcotics from two individuals; he immediately broadcast a description of them to waiting arrest teams. Two minutes later, four officers, who were dressed in casual clothing and travelling in an unmarked police cruiser, arrived at the scene. There Officer Lawson, an experienced officer in narcotics related activities, observed appellant Smith conversing in a parking lot with two persons fitting the descriptions in the broadcast. Although Officer Lawson observed other persons in the parking lot, Smith was the only person he observed in the immediate vicinity of the two suspects.

As the vehicle driven by Lawson arrived at a “fast clip,” Smith began leaving at a “very fast” pace. While Officer Lawson followed Smith, the remaining officers followed the two other individuals. Believing that Smith might have participated in the narcotics transaction as the money man and might have possessed prerecorded funds, Officer Lawson testified that he identified himself as a police officer and asked Smith to stop. When Smith stopped, he responded that he had nothing to do with the two other men and then continued to walk away. It was at this point Lawson placed his hand on Smith’s shoulder. Reacting, Smith spun away and attempted to hit Lawson in the face. A struggle ensued and the two men fell to the ground. Smith-was subdued and a pistol was recovered from his pocket.

Appellant was charged with assaulting a police officer, and carrying a pistol without a license. He moved to suppress the weapon. The trial court refused to suppress the pistol, holding that the police had an adequate basis to conduct a Terry stop. Following a bench trial, Smith was acquitted of the assault charge but convicted of carrying a pistol without a license.

II.

In any challenge of a conviction based upon a claim of an improper Terry stop, we must initially determine whether a Fourth Amendment seizure has occurred. Here, such a seizure exists, since, as the trial court found, Lawson’s show of authority by both announcing he was a police officer and ordering Smith to stop was an investigative seizure implicating Fourth Amendment protections. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); In re D.J., 532 A.2d 138, 140 (D.C.App.1987).⁴ However, to justify such an intrusion upon the constitutionally protected interests of a private citizen, a “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted).

The United States points to several factors, which in its view, justified the stop: (1) 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; (2) no other persons were in the immediate area; (3) the experienced police officer was aware that narcotics sales are often made by several persons working as a team; (4) the neighborhood was a high narcotics trafficking area; and (5) appellant attempted to leave hurriedly when the officers suddenly appeared on the scene. Terry compels us to evaluate the totality of the circumstances constituting articulable suspicion. See id. at 21, 88 S.Ct. at 1880; United States v. Bennett, 514 A.2d 414, 416 (D.C.App.1986). We thus examine all these factors individually and collectively, for to adequately evaluate the whole, it is helpful to evaluate the constituent parts.

The government attaches significant import to factor (1), i.e., Smith was engaged in conversation with suspected drug dealers. However, “[pjresumptions of guilt are not lightly to be indulged from mere meetings.” United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948). In the context of probable cause for arrest, the Supreme Court has eschewed the notion of guilt by association. In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the companion case to Terry, the police approached and searched Sibron for the sole reason that he had been observed talking to several known narcotics addicts over a period of eight hours. The court ruled that the heroin found in the search of Sibron’s person was inadmissible against him, stating:

It must be emphasized that Patrolman Martin was completely ignorant regarding the context of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed ‘have been talking about the World Series.’ The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.

Id. at 62, 88 S.Ct. at 1902.

This principle was reinforced in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), a case involving the illegal search of a man present at a tavern in which the police were executing a search warrant of the premises, and of the bartender who was suspected of distributing heroin. Emphasizing that “Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing suspicious to the police officers,” id. at 91, 100 S.Ct. at 342, the Court, citing Sibron, reiterated that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id.⁵

Courts in other jurisdictions have been faithful to Sibron and Ybarra in rejecting articulable suspicion arguments based upon guilt by association. See, e.g., People v. Ballejo, 114 A.D.2d 902, 495 N.Y.S.2d 75, 77 (1985) (police suspected defendant because he accompanied a person hiding cocaine; court held that Terry frisk improper because “no ... inference of guilt by association is permissible”); Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980) (Terry frisk improper when person’s mere presence at premises which were being searched pursuant to a warrant), cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981); State v. Larson, 93 Wash.2d 638, 642, 611 P.2d 771, 774 (1980) (parking violation by driver is insufficient grounds for Terry stop of passenger).⁶

The courts in the District of Columbia have also rejected articulable suspicion arguments based upon guilt by association. See Hinton v. United States, 137 U.S. App. D.C. 388, 391-92, 424 F.2d 876, 879-80 (1969) (recognizing that “[cjourts have never countenanced arrest by association,” the circuit court found probable cause because of Hinton’s flight after his companion had been searched and found to possess contraband, the fact that he was on his way to a suspected narcotics “pad,” and his association with a known narcotic user who had an outstanding court attachment against him); U.S. v. Johnson, 496 A.2d 592, 597 n. 4 (D.C.App.1985) (Terry case stating that “one person’s flight is imputable to another only if other circumstances indicate that flight from authority implies another person’s consciousness of guilt....”) (emphasis added); see also Lyons v. United States, 221 A.2d 711 (D.C.App.1966) (pre-Terry probable cause case) (holding that defendant’s association with a known narcotics user, who in fact possessed narcotics at the time of his arrest, did not constitute probable cause).

The first factor, standing alone, would be insufficient to pass Fourth Amendment muster. Indeed the government does not contend otherwise.

The second factor — the absence of other persons in the immediate vicinity of the two suspects — is merely a sub-set of the first factor. To give validity in any measure to the first factor, one would have to consider the number of persons conversing with or in the immediate vicinity of the drug suspects. This second factor, in fact, adds little, if anything, to the first factor.

The third factor urged by the United States is Officer Lawson’s knowledge that drug sales are often made in a team. The inference in this case that a reasonable police officer could rationally draw from this knowledge has limitations. Smith was not present at the drug transaction reported by the undercover agent. The radio call which subsequently went out contained no description of anyone resembling Smith. Officer Lawson testified that he suspected Smith may have been the “juggler” or “money person,” a member of a drug distribution team who may not be present at the actual transaction. But neither Lawson nor any other officer saw Smith handle money or make any other movement or gesture which might have indicated he was the money man. Compare United States v. Bennett, supra (officers observed one man accepting Lawson’s money from another and saw appellee stick his hand into his waistband). The reasonableness of suspicion is further weakened by the presence of other persons in the parking lot, any one of whom may have been the money man.

Similarly, the fact that the activity occurred in a high drug trafficking area has, in some of our cases, been taken into account in determining the reasonableness of the officer’s suspicion. See, e.g., Price v. United States, 429 A.2d 514, 518 (D.C.App.1981). However, we have been careful to emphasize that “[t]his familiar talismanic litany, without a great deal more, cannot support an inference that appellant was engaged in criminal conduct.” In re D.J., 532 A.2d 138, 143 (D.C.App.1987) (quoting Curtis v. United States, 349 A.2d 469, 472 (D.C.App.1975)). For “it is necessary to remind again that thousands of citizens live and go about their legitimate day-to-day activities in areas which surface ... in court testimony, as being high crime neighborhoods. The fact that the events here at issue took place at or near an allegedly ‘high narcotics activity’ area does not objectively lend any sinister connotation to facts that are innocent on their face.” Bennett, supra, 514 A.2d at 419 n. 3 (Mack, J., dissenting); see also Hemsley v. United States, 547 A.2d 132, 134 (D.C.App.1988) (“Appellant’s sitting with two others in a parked car with the windows rolled up and a lot of smoke inside ‘is not sufficiently suspicious’ — even in a ‘high crime’ area — to warrant an investigative seizure of the person.”) (quoting United States v. Barnes, 496 A.2d 1040, 1043 (D.C.App.1985)); Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (“The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.”)

We note, in addition, that where the suspected criminal activity is drug dealing, based on a purchase by an undercover police officer, to give significant weight to the character of the neighborhood as an additional factor seems of doubtful validity.

In our view, the preceding four factors, taken collectively, fall short of constituting “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” a Fourth Amendment intrusion. Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted). Thus, we must evaluate the so-called “flight” factor in this case and determine whether it adds enough to the total calculus to make the seizure valid. We have recognized, “as a general proposition that flight from authority — implying consciousness of guilt — may be considered among other factors justifying a Terry seizure.” Johnson, supra, 496 A.2d at 597 (emphasis added) (citing Stephenson v. United States, 296 A.2d 606, 609-10 (D.C.App.1972), cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973)).⁷ However, it is obvious that flight cannot imply consciousness of guilt in all cases. Hemsley v. United States, supra, 547 A.2d at 134. Leaving a scene hastily may be inspired by innocent fear, or by a legitimate desire to avoid contact with the police. A citizen has as much prerogative to avoid the police as he does to avoid any other person, and his efforts to do so, without more, may not justify his detention. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion) (a person approached by a police officer “need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way....”); Brown v. Texas, supra; In re D.J., supra, 532 A.2d at 142-43.

To provide grounds for suspicion, therefore, “the circumstances of the suspect’s efforts to avoid the police must be such as ‘permit[ ] a rational conclusion that flight indicated a consciousness of guilt.’ ” In re D.J., supra, 532 A.2d at 141 (quoting Lawrence v. United States, 509 A.2d 614, 618 (D.C.App.1986) (Newman, J., dissenting)); Johnson, supra, 496 A.2d at 597. Typically, in those cases in which we have found that flight indicated a consciousness of guilt, the accused clearly knew that the police were present and reacted by immediately running from the scene of the alleged crime. See, e.g., Bennett, supra, 514 A.2d at 414 (appellant and companion “bolted” when police car arrived); Tobias v. United States, 375 A.2d 491, 492 (D.C.App.1977) (appellant began to run when police officer identified himself as such); Hinton, supra, 137 U.S. App.D.C. at 391, 424 F.2d at 879 (appellant “bolted” after police searched his companion and found contraband).

In several important respects, Smith’s conduct after the arrival of the police did not fit the paradigm, as outlined in the above cases, of flight indicating consciousness of guilt. First, at no time did Smith “bolt” or run; at most, he walked at a fast pace. Officer Lawson testified that when his arrest team of plainclothes officers arrived in the parking lot where the drug sale had taken place and began to get out of their unmarked car, Smith and his companions began to disperse. Smith walked past the unmarked car and continued out of the driveway leading from the parking lot. When Officer Lawson then called to him to stop, and (according to his testimony) identified himself as a police officer, Smith (although stopping briefly and stating he had nothing to do with the other men) continued to walk at a fast pace until Lawson put his hand on his shoulder, making the Terry stop.

Of at least equal importance, there was no basis for the officer to draw a rational and reasonable belief that Smith himself believed they were police officers. The officers were dressed to blend into the environment so as to conceal their identity as police officers. Officer Lawson did not identify himself to Smith as an officer until moments before the seizure and after Smith had already begun leaving the scene at a fast pace. The government points to two circumstances which it contends make Lawson’s belief about flight appropriate. Lawson testified that his police badge was on his belt and his service revolver was on his waist. However, Lawson testified he had on a coat; there was no evidence that the coat was open. Specifically, there was no evidence from which one could conclude that Lawson rationally and reasonably believed that Smith saw his badge or service revolver before Lawson identified himself to Smith as a policeman. The government’s second contention is that Lawson could rationally and reasonably believe that Smith believed it was the police arriving in the vehicle because it was an unmarked car of a particular color in a particular neighborhood with four people inside. In essence, the government says, Lawson could rationally and reasonably believe that Smith recognized the officers as an arrest team — a so-called “jump-out” team. The record is totally devoid of any evidence which would support a rational and reasonable belief as to Smith’s knowledge that they were police officers. Nevertheless, the government would have us conclude that when a sufficiently high percentage of people in some neighborhoods may recognize jump-out squads, an officer can rationally and reasonably conclude that one particular person has made such an identification. For reasons similar to those causing us to reject associational taint, we reject this notion of locational taint whereby an individual’s behavior is explained by reference to what others in that area or neighborhood may know about the arrest procedures of the police department.

In sum, the circumstances of Smith’s departure upon the arrival of the car at a “fast clip,” when coupled with the absence of evidence on which one could rationally and reasonably believe that Smith recognized the arrival of police, deprive the fifth factor (“flight”) of any impact in the Fourth Amendment equation.

We hold there were insufficient “specific and articulable facts ... taken together with rational inferences from those facts,” Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, (footnote omitted), to give constitutional validity to the seizure in this case.

Reversed.

3 .Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

4 . The government relies on cases such as United States v. Burrell, 286 A.2d 845, 846 (D.C.App.1972), to support its contention that there was no seizure. To the extent, if any, that Burrell may conflict with our holding here, we note that its continuing vitality has been called into question by United States v. Mendenhall, supra.

5 . We recognize that the burden on the government under the Terry standard is less than the probable cause standard. See Dunaway v. New York, 442 U.S. 200, 207-11, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

6 . Courts have likewise rejected probable cause arguments based upon guilt by association. See, e.g., People v. Martin, 32 N.Y.2d 123, 125, 296 N.E.2d 245, 246, 343 N.Y.S.2d 343, 345 (1973) ("mere presence at a narcotics transaction did not constitute probable cause"); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973) (no probable cause for search of property belonging to other persons who happen to be present on premises being searched pursuant to warrant), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974).

7 . We have never, however, sustained a Terry stop on the basis of flight from the police alone. “For flight is not ‘a reliable indicator of guilt without other circumstances to make its import less ambiguous.’ ” Johnson, supra, 496 A.2d at 602 (Mack, J., dissenting) (quoting Hinton v. United States, supra, 137 U.S. App.D.C. at 391, 424 F.2d at 879).