Hawkins v. United States

KING, Associate Judge,

dissenting:

TMs case arose as the result of a lengthy encounter between two plain-clothed police officers and appellant Hawkins which culminated in Hawkins sitting in Ms veMcle, Officer Reynolds standing by the driver-side window conversing with him, and Officer Barnes standing by the passenger-side door. At some point during the course of this conversation, Officer Barnes observed a gun butt protruding from Hawkins’s pocket, and, after Hawkins was removed from the ear, a gun and contraband were recovered from Ms person. It is not disputed that Barnes’s observation of the gun butt provided a legitimate basis for seizing HawHns. At issue is whether Hawkins had been seized, in a constitutional sense, before Barnes observed the gun butt. If the answer to that question is “yes,” then the weapon and contraband recovered from Hawkins must be suppressed. If, however, there had been no seizure of Hawkins’s person before Barnes observed the gun butt, then the gun and contraband are admissible against him.

I agree with Judge Farrell, contrary to Judge Mack, that the seizure of Hawkins’s person did not occur until very late in the encounter, during the course of the conversation between Hawkins and Reynolds, after Hawkins had been asked one or more times whether he was armed: i.e., “Are you packing?” Judge Farrell concludes that the seizure preceded the observation of the gun butt. In my view, however, we should sustain the trial court because the evidence supports the trial court’s ruling that the seizure occurred after the gun butt was seen by Officer Barnes.

I begin my analysis by noting that neither the parties nor the trial judge closely focused on the precise sequence of events that immediately preceded Barnes’s observation of the gun butt protruding from Hawkins’s pocket. The real focus during the suppression hearing was on the differing versions of the unfolding series of events, as recited in the opirnon of Judge Mack, that eventually led to the conversation between Officer Reynolds and Hawkins, while the latter sat in Ms car. The trial court unequivocally credited the officers’ testimony on every important disputed point, and specifically found Hawkins not to be credible. In my view, those findings, under our standard of review on this record, are unassailable.

The governing statute requires that we accept facts as found by the trial court unless a finding of fact is “without evidence to support it.” D.C.Code § 17-305(a) (1989 Repl.). In interpreting that statute, we have said, on countless occasions, that we will not reject a trial court’s factual finding unless it is clearly erroneous. In re J.M., 619 A.2d 497, 500 (D.C.1992) (en banc). Finally, when it comes to assessing the credibility of witnesses, we are particularly deferential to trial courts. Johnson v. United States, 616 A.2d 1216, 1234 (D.C.1992), cert. denied, — U.S. -, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993) (“this court must defer to the trial court’s credibility determinations respecting witnesses who *1231testify”). In this case there is no basis for this court substituting its interpretation of the evidence for that made by the trial judge, as Judge Mack has done. Judge Farrell and I agree that this case turns on a careful examination of the events occurring immediately before Hawkins was removed from the car. Our principal disagreement is on the degree of deference owed to the trial judge’s interpretation of those events.

Judge Farrell’s analysis is based on his conclusion that Officer Reynolds asked Hawkins three separate times whether he was “packing” before Officer Barnes observed the gun butt. Under that interpretation of the facts, Judge Farrell would apply a bright-line rule: when a police officer asks a suspect, for the third time, whether he is armed, a seizure occurs. As Judge Farrell observes in his separate opinion: “I cannot conceive that a reasonable person would not have understood the question as accusatory and that his freedom to ‘go about his business’ ... depended on giving a satisfactory assurance to the officers that he was not carrying a gun.” (citations omitted). Ante at 1229-30. It may be that such a conclusion would be sustainable under some circumstances; the question, however, should be whether, under the facts presented here, a reasonable person would have believed he was not free to go.

Judge Farrell’s and my analysis both begin with a statement of the governing principle:

The “crucial test” for determining whether a person has been seized ‘is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’

See In re J.M., supra, 619 A.2d at 499-500, citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (emphasis added), quoting California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). We review the determination of seizure as a question of law de novo, although deferring to the trial court’s finding of facts unless clearly erroneous. In re J.M., 619 A.2d at 500 (citations omitted). See also United States v. Maragh, 282 U.S.App.D.C. 256, 258, 894 F.2d 415, 417, cert. denied, 498 U.S. 880, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990). As is often the case, the line between fact-finding and determinations of the law can be blurred so that the ultimate conclusion is one based upon a mixture of fact and law. In determining the deference, if any, to be given a trial court’s resolution of such mixed questions—

we consider, among other things, whether the issue to be decided more closely resembles one of fact or of law, and whether the trial court or the appellate court is in a position to render the decision with the higher degree of accuracy.

Griffin v. United States, 618 A.2d 114, 117-18 (D.C.1992).

We could resolve this difficult mixed fact/ law question by imposing a bright-line rule, e.g., three “Are you packing’s?” constitute a seizure. That approach, however, devalues the role of the trial judge, because the trial judge must rely on an assessment of the testimony of the witnesses who have appeared, and base his or her decision on that assessment. In carrying out that responsibility, we have instructed trial judges that:

[fjactors which might indicate a seizure would include, for example, the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone indicating that compliance with the officer’s request must be compelled.

In re J.M., 619 A.2d at 502, citing Kelly v. United States, 580 A.2d 1282, 1286 (D.C.1990) (emphasis added). Applying the Kelly factors to the circumstances of a given case to determine whether there has been a seizure is a fact-finding process which is peculiarly within the competence of the trial court, not of an appellate court.

For example, in assessing the circumstances of the encounter between Hawkins and Officers Reynolds and Barnes, the trial court found that the officers were not particularly threatening, that they did not display weapons, and there was no evidence that they ever touched Hawkins. Although there was no specific finding regarding the nature of the language used by the officers or the *1232tone of their voices, the trial court rejected the assertion that the questioning by the officers “was anything other than reasonable under the circumstances and certainly did not constitute any type of stop [seizure].” That finding is not, in my view, clearly erroneous, and when we review a trial court’s ruling on a motion to suppress, “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); Brooks v. United States, 367 A.2d 1297, 1304 (D.C.1976) (where there have been no express findings by the trial court, this court determines whether “the denial of the motion to suppress is supportable under any reasonable view of the evidence”). Here the trial court heard from the two officers, found their testimony to be credible, and ruled, with full awareness of the applicable case law, that the actions of the officers did not constitute a seizure. That factual finding is more than supported by the record and I would affirm it.

There is another basis for disagreement with Judge Farrell’s analysis. He concludes that the trial court found that Officer Reynolds asked, “Are you packing?” three times before Officer Barnes saw the butt of the gun. I do not agree that the trial court so found, or that the record supports such a finding. The trial court did find that the question “Are you packing?” was asked three times, and there is no real dispute that was the case. However, the trial court did not specifically find that the question had been asked three times before Barnes observed the gun butt. As noted above, the trial court was not called upon to make precise findings concerning the exact sequence of events, and the officers were not closely questioned on the point. Officer Barnes did testify, however: “I got my partner’s attention that I thought he might have a weapon, and then my partner asked him again and he said no.” (Emphasis added.) This testimony was preceded by testimony concerning the first “Are you packing?” and there is no evidence that the question was asked more than three times. Thus, according to Officer Barnes’s testimony, the Are you packing? question was asked for the third time after she saw the butt of the weapon. Officer Reynolds’s testimony was not to the contrary, and although the trial judge did not focus on that sequence of events, the record does not support the view that the question was asked three times before the gun butt was observed.1 Inasmuch as Judge Farrell’s analysis relies on the three-question theory, his conclusion should either be re-examined, or the record should be remanded to the trial court for specific findings on that point.

For the reasons stated, I would affirm on this record. Because my colleagues do not agree with that resolution, I would, at least, remand the record to the trial court for further findings on the sequence of events with respect to what questions had been asked by Officer Reynolds when Officer Barnes observed the weapon. During the remand, the trial court would also make findings concerning the language and tone of Officer Reynolds’s questions, and how those factors would impact upon a reasonable person’s assessment of what he or she would, or would not, be permitted to do under these circumstances.

. Under the interpretation of the evidence by Judge Mack in the lead opinion, the "Are you packing?” question was asked for the second time after the gun butt was seen by Officer Barnes. Ante at 1223.