Peay v. United States

FERREN, Associate Judge,

dissenting:

The sole issue on appeal is whether Officer Queen had a reasonable, articulable suspicion of criminal activity within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), when he stopped appellant in the hallway of a building known for drug sales, believing he saw appellant clutching something that might be a weapon. The trial court assessed Officer Queen’s testimony and concluded the officer had such a reasonable suspicion. The majority today reverses that ruling in a decision that turns — improperly—on appellate court fact-finding. My colleagues use words such as “unreasonable” to mask the fact that they essentially make a credibility determination, effectively discrediting Officer Queen’s articulated suspicion that appellant was clutching a weapon (a knife or gun). The majority’s actions are particularly inappropriate in light of the fact that defense counsel did nothing at the suppression hearing to demonstrate that it would have been unreasonable for Officer Queen to have suspected a concealed weapon. Indeed, that was not even an issue contested at the hearing. Thus, I do not understand how my colleagues can reverse essentially on a factual ground that did not even suggest itself to those — including appellant’s own counsel — who heard the testimony first-hand. Based on a legal analysis which I elaborate below, I would sustain the denial of appellant’s motion to suppress and thus would affirm his conviction.

I.

As the majority states, in order to justify intruding upon constitutionally protected interests by compelling a citizen to stop, 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, 392 U.S. at 21, 88 S.Ct. at 1880. In appellant’s brief to this court — a document the majority ignores — he cites In re D.J., 532 A.2d 138 (D.C.1987), for the proposition that Officer Queen lacked a reasonable suspicion of criminal activity when he stopped appellant. In In re D.J., we rejected the government’s claim that the defendant's attempt to avoid police officers in a “high narcotics area,” id. at 141, by putting his hands in his pockets and *284walking away, created a reasonable suspicion of criminal activity.

Appellant argues that the facts here are indistinguishable from those in In re D.J. He claims, more specifically, that like D.J. he was merely exercising his legitimate right to avoid contact with the police. He stresses, moreover, that clutching something in his left hand was no more suspicious than D.J.’s putting his hands in his pockets. Finally, like D.J., appellant maintains that the fact that he was in an area known for drug trafficking did not make his otherwise innocent actions sinister.

I agree “that an attempt to evade the police, without more, is insufficient grounds to justify a Terry stop. Such conduct on the part of a suspect must be ‘corroborated by other suspicious circumstances _’ ” In re D.J., 532 A.2d at 142 (citation omitted). But, appellant’s analogy to In re D.J. is otherwise misplaced. Aside from his evasiveness, appellant’s actions, as well as his location, gave rise to a more particularized and reasonable suspicion of criminal activity than in In re D.J. I turn initially to the actions the police observed in each case.

In In re D.J., the police had nothing more than a nebulous suspicion about D.J.’s involvement in criminal activity — exactly the sort of “inarticulate hunch[ ]” the Supreme Court has said does not justify a fourth amendment seizure, Terry, 392 U.S. at 22, 88 S.Ct. at 1880. There was no evidence, for example, that the police feared D.J. might have been reaching for a weapon when he put his hands in his pockets and began walking away. Here, in contrast, the officer articulated his fear that appellant was holding a weapon. When asked what he thought when he saw appellant clutching something in his left hand, Officer Queen testified that “it could possibly have been a weapon, a small knife, possibly a gun.” Officer Queen’s fear that appellant was carrying a gun or a knife was not the sort of hunch found insufficient in In re D.J.; it was a “particularized suspicion” that justifies a Terry stop, see generally United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981), provided (1) carrying a gun or knife constitutes criminal activity and (2) Officer Queen’s suspicion was reasonable under the circumstances.

II.

I next address whether carrying a gun or a knife constitutes criminal activity in the District of Columbia and where my colleagues’ analysis of this issue goes astray.

A.

The majority concedes that carrying a gun without a license is criminal activity, proscribed by D.C.Code § 22-3204 (1989). Ante at 281. Indeed, there is no question under our caselaw that when a police officer has a reasonable basis for believing a suspect is carrying a gun, the officer has an articulable suspicion of criminal activity within the meaning of Terry. In several cases involving an informant’s tip that a suspect was carrying a gun, we concluded the tip provided a reasonable basis upon which the police could form a suspicion that a person was armed, and, as a consequence, we upheld the officer’s right to stop the suspect.1

The majority, however, disposes of Officer Queen’s suspicion that appellant was concealing a gun in his hand by stating that “there was no objectively reasonable basis for concluding that Peay was so engaged.” Ante at 281-82. Although they employ the language of objectivity, there is no hiding the fact that my colleagues in the majority have assumed the role of fact-finder and, without the benefit of any evidence on the matter, have discredited Officer Queen’s testimony on the ground that they personally “know of no pistol so small as to permit such concealment from a *285trained police officer standing three feet away in a well-lit hallway.” Ante at 282. Although the reasonableness of Queen’s suspicions may well have been fertile ground for cross-examination — especially because Officer Queen was only three feet away from appellant in a well-lit corridor— defense counsel did not pursue that avenue of inquiry at the suppression hearing. Not surprisingly, therefore, the trial court credited Queen’s testimony.2

Unlike the majority, I believe that as an appellate court we must defer to the trial court’s implicit determination that Queen subjectively believed appellant may have been clutching a gun. See Giles v. United States, 400 A.2d 1051, 1054 (D.C.1979); D.C.Code § 17~305(a) (1989). The only situation in which an appellate court may properly make a credibility determination is in the extremely rare case when testimony is “inherently incredible.”3 I do not believe it is “inherently incredible” that a clutched hand, even one with no metal visible from the angle of observation, could be holding a small gun. There is no record basis for believing — and the majority does not explain why — the barrel of a gun (or for that matter the blade of a knife) could not have been blocked from view by the forearm, for example.

B.

Because Officer Queen suspected that appellant was clutching either a gun or a small knife, I believe a court can conclude that the officer had a sufficient basis for a seizure only if, under the circumstances, a knife gives rise to the same suspicion of criminal activity as a gun.

I would conclude as a matter of law that Officer Queen’s suspicion that appellant was carrying a knife (if not a gun) was enough, under the circumstances, to justify the stop. As the majority states, see ante at 281, 282, under D.C.Code §§ 22-3204 and 22-3214 (1989), carrying a knife other than a switchblade4 is not a crime, absent an intent to use it as a weapon against another. See Nelson v. United States, 280 A.2d 531, 533 (D.C.1971) (per curiam) (test for determining whether knife is “deadly or dangerous weapon” — and therefore illegal under § 22-3204 — is whether, under circumstances, purpose of carrying knife is to *286use as weapon); Scott v. United States, 243 A.2d 54, 56 (D.C.1968) (same); D.C. Code § 22-3214(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 3 inches, or other dangerous weapon.”) (emphasis added).

The majority does not seriously question the possibility that appellant may have been clutching a small knife in his hand. See ante at 282. My colleagues focus instead on the issue of appellant’s intent in carrying a knife. They stress that appellant was attempting to walk away from Officer Queen and then conclude: “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.” Ante at 282. I disagree.

I believe a police officer is permitted to take into account the common relationship between drugs and violence when assessing someone’s purpose in carrying a knife in the corridor of a building where illegal drugs are known to be sold. The court noted that Queen and his partners knew “of the dangers to their own safety inherent in drug trafficking and being in areas where drugs are being sold.” Appellant stresses that “[ijnnocent activities do not become sinister by the mere fact that they take place in [areas which are denoted ‘high narcotics areas’ by police].” In re D.J., 532 A.2d at 143. There is a big difference, however, between saying that one’s presence in a “high narcotics area,” without a great deal more, does not give rise to a reasonable suspicion of criminal activity, see id., and saying that the police, in assessing a person’s intentions in carrying a perceived knife, may not take into account that person’s presence in the corridor of a particular building known for the sale of drugs. The fact that appellant was walking away from Officer Queen arguably may have indicated no immediate intent to use a weapon against the officer, but, given the locale, I believe it was reasonable for Officer Queen to suspect appellant had an intention to use a weapon unlawfully and imminently against someone. When an officer in such a situation reasonably suspects that a person he or she is following is clutching a knife, I conclude the officer will have a reasonable basis for believing that the suspect intends to use the knife as a weapon.5 In the circumstances of this case, therefore, I believe it makes no difference whether Officer Queen perceived the possibility of a knife or a gun; either one provided a sufficient basis under Terry for suspecting impending criminal activity.

III.

The only question remaining is whether Officer Queen’s suspicion, based on his own observations, that appellant was carrying a weapon was objectively reasonable under the circumstances. While I do not believe an appellate court can properly override the trial court’s assessment of an officer’s subjective belief — other than in the exceedingly rare case where that belief is “inherently incredible,” see supra note 3 — 1 do believe we are obliged to assess the objective reasonableness of that belief. See Johnson v. United States, 350 A.2d 738, 740-41 (D.C.1976). When addressing this issue, I believe it is also important to remember that the evidence supporting the stop “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.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

*287Given the circumstances, I believe Officer Queen’s suspicion that appellant was carrying a weapon was objectively reasonable. First, Queen based his suspicion on his observation of appellant clutching something in his left hand. We know that Queen did not imagine or fabricate the fact that appellant was clutching something. Queen asked appellant what was in his hand, and soon thereafter appellant dropped what he was holding: several bags of cannabis. Second, the fact that appellant was in a building specifically known for drug trafficking added to the reasonableness of Officer Queen’s suspicion. While “[tjhousands of persons live and go about their legitimate business in areas which are denoted ‘high narcotics areas’ by police,” In re D.J., 532 A.2d at 143, I believe the risk of unjustified “locational taint” is substantially reduced, though not eliminated, when a suspect enters a particular building known for drug sales. In this case, Officer Queen testified that he and the other officers were in a building specifically known for the sale of marijuana and crack cocaine. He testified that every floor of the building appellant entered was routinely patrolled by police investigating drug activity. Recognizing the violence often associated with drug trafficking, Queen was not unreasonable in becoming more alert to the possible presence of illegal weapons and more apprehensive of his own safety and the safety of others upon entering this building than he would have been in other locales, even other general locales within a “high narcotics area.” Finally, given the fact that Officer Queen’s testimony on these matters was not inherently incredible, was unchallenged by the defense, and was unquestioned by the trial court evaluating his credibility, it is not our place as an appellate court to engage in speculation and substitute our judgment as to how likely it was that Queen actually mistook a fist full of plastic bags for a hand clutching a weapon.

IV.

In sum, I cannot say as a matter of law that the trial court erred in crediting Queen’s testimony and concluding that Queen had a reasonable, articulable suspicion of criminal activity within the meaning of Terry. I therefore conclude that, under the totality of the circumstances, Queen’s suspicion that appellant was carrying a weapon was reasonable and constituted a sufficient basis for an investigatory stop.6 While I am concerned that the asserted fear of a concealed weapon could become an automatic ground invoked by police officers for making improper Terry stops, I believe the trial courts are alert to this danger and can evaluate critically the testimony offered, as well as the reasonableness of an officer’s belief in light of the totality of the circumstances of each case.

Respectfully, therefore, I dissent.

. See, e.g., Lawson v. United States, 360 A.2d 38 (D.C.1976) (investigatory stop reasonable after police received anonymous phone call about man at phone booth carrying pistol in his pocket, when suspect acted in manner consistent with possessing concealed weapon); Gaskins v. United States, 262 A.2d 810, 811 (D.C.1970) (police justified in stopping and searching three men after cab driver informed them he saw “a guy up the street tuck a gun inside his belt”).

. The court concluded:

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 only addressing what for him was an articulable suspicion of criminal activity and danger to himself.

. As we stated in In re A.H.B., 491 A.2d 490, 496 n. 8 (D.C.1985):

The doctrine of inherent incredibility can be invoked only when the testimony can be "disprove[d] ... as a matter of logic by the uncon-tradicted facts or by scientific evidence,” or when "the person whose testimony is under scrutiny made allegations which seem highly questionable in light of common experience and knowledge, or behaved in a manner strongly at variance with the way in which we would normally expect a similarly situated person to behave." Jackson [v. United States ], 122 U.S.App.D.C. [324,] 329, 353 F.2d [862,] 867 [ (1965) ] (footnotes omitted). This is a very stringent test which has been met in only a tiny number of cases, of which the twenty-year-old Jackson case is one of the most recent.

.Possession of a switchblade knife is a strict liability offense under D.C.Code § 22-3214(a). On this point, the majority concludes:

[W]e hold that any belief 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.

Ante at 282. This statement demonstrates the danger of appellate court fact-finding because as a factual matter it is plainly wrong. A distinguishing characteristic of a switchblade knife is that it is compact and easily concealed when the blade is in the depressed position. Webster’s Ninth New Collegiate Dictionary defines switchblade as "a pocketknife having the blade spring-operated so that pressure on a release catch causes it to fly open." (Emphasis added.) There is no record basis for believing a switchblade knife could not be concealed by a clenched hand, no matter how well-lit the hallway or how well-trained the police officer. Nor is there any reason to conclude that the term "small knife” does not include the possibility of a switchblade.

. I find the majority's statements to the contrary rather remarkable. The majority opinion is clearly written from the vantage point of hindsight — secure in the knowledge that Officer Queen’s suspicions about a weapon turned out to be unwarranted. I find it difficult to believe that if presented with a case where a police officer was certain that a suspect was clutching a knife while walking in the corridor of a known "crackhouse," the majority would find the officer had no reasonable basis for inferring unlawful intent — and therefore no basis for a Terry stop — merely because the suspect was walking away from the officer.

. Cf. Crowder v. United States, 379 A.2d 1183, 1185 (D.C.1977) (police officer who knew it was not unusual for persons carrying newspapers and shooting craps on streets in particular area to have weapons rolled in newspapers could fairly conclude, having come upon crap game, that appellant's nervous manner and attempt to shield newspaper from view indicated presence of weapon).