Peay v. United States

FERREN, Associate Judge,*

with whom ROGERS, Chief Judge, and SCHWELB, Associate Judge, join, dissenting:

The majority focuses on three facts: (1) appellant’s hurried1 entry into an apartment building upon seeing three men in plain clothes pull up in front of the building in an unmarked2 car and get out; (2) the reputation of the apartment building for illegal drug trafficking; and (3) Officer Queen’s encounter on the third floor of the building with appellant, who was clutching in his hand something that “could possibly have been a weapon, a small knife, possibly a gun.” In my judgment these factors, even when taken together with all reasonable inferences, do not comprise a critical mass of information giving rise to a reasonable suspicion of impending criminal activity justifying a seizure under Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). See Sibron v. United States, 392 U.S. 40, 63-65, 88 S.Ct. 1889, 1903-04, 20 L.Ed.2d 917 (1968); Duhart v. United States, 589 A.2d 895, 899 (D.C.1991).

As I now see this case, nothing can properly be made of appellant’s hurriedly entering the apartment building when the three plainclothes officers pulled up in front and got out of an unmarked car. There is no record basis for believing appellant perceived a police “jump-out” squad, and thus I see no way we can properly attribute even a hint of guilt-consciousness to appellant at that time. See United States v. Jones, 619 F.2d 494, 498 (5th Cir.1980). It is just as likely that he feared a “gang of fast-driving toughs” rather than the police. Smith v. United States, 558 A.2d 312, 319 (D.C.1989) (en banc) (Ferren, J., concurring).3 At this point, therefore, the police had no basis for an articulable suspicion of *1324criminal activity — unless appellant’s entry into the building itself was suspicious.

It is true appellant entered a specific building, not merely a geographical area of several blocks, known for “high crime” activity. Indeed, this building apparently was so well known for narcotics distribution that the police routinely patrolled it and inspected every floor when doing so. But what are the police to make of someone seen in the corridor, even someone who ran inside upon seeing three men approaching the building? Without more, I believe there can be no basis for a reasonable inference that the person is criminally involved. There are too many other legitimate reasons to be in an apartment building, not the least of which is that the person lives there and is going home. See In re D.J., 532 A.2d 138, 143 (D.C.1987); Jones v. United States, 391 A.2d 1188, 1191 (D.C.1978). The majority’s suggestion that appellant may have been going inside to warn narcotics traffickers about “approaching strangers,” ante at 1320, is pure speculation. Even if drug dealing is known to take place in a multi-story apartment building, that fact in itself cannot make someone in the corridor criminally suspect. “Innocent activities do not become sinister by the mere fact that they take place in one of these [high narcotics] areas.” In re D.J., 532 A.2d at 143. At this point, therefore, two “zero” factors, taken together with all reasonable inferences, equal zero.

But there is a third factor: when Officer Queen confronted appellant on the third floor he saw him clutching something (without knowing what) in his left hand near his waist. According to Officer Queen’s testimony at the suppression hearing, “[i]t could possibly have been a weapon, a small knife, possibly a gun.” But only “possibly.” The officer did not see something shiny, or pointed, or anything at all for that matter.4 At trial, Officer Queen admitted without hesitation that he did not know what was in appellant’s hand.5 It may be that, under the circumstances, the officer subjectively feared appellant had a weapon, but he did not say so,6 and there was no objective basis for believing there was a weapon unless one dignifies the assumption that any adult male in this particular building was likely to be carrying a gun or a knife. I am not willing to do so. There is no record basis tending to indicate that the police, upon seeing a man in the corridor clutching something small and unrecognizable in his hand, should reasonably expect to encounter someone carrying a weapon rather than simply a resident going about his business carrying keys or some other innocuous, small item. In short, the hand-clutching is *1325a “zero” factor as well.7 So how does the majority find a basis for the seizure? 8

As I read Judge STEADMAN’s opinion, the majority bootstraps an inadequate basis for seizure into a reasonable suspicion by adding a fourth factor: Officer Queen’s concern for his own safety. If the majority agrees — as surely it must — that the officer’s testimony does not in itself demonstrate a reasonable basis for believing, rather than speculating, that appellant had a gun or a knife, then my colleagues are willing to credit the officer’s subjective fear as a Terry factor, which is contrary to all the Terry case law based on reasonable — meaning objective — suspicion. See Terry, 392 U.S. at 21, 88 S.Ct. at 1880 (seizure must be justified by “specific and articulable facts ... judged against an objective standard”); Sibron, 392 U.S. at 64, 88 S.Ct. at 1903 (police officer must provide particular facts to justify rational inference of crime); Jones, 391 A.2d at 1191 (officer cannot rely on hunches or suspicions); Coleman v. United States, 337 A.2d 767, 772 (D.C.1975) (same). Contrary to the majority opinion, the “personal safety of a police officer in a confrontation is a relevant consideration in the Terry equation,” ante at 1322, only as applied to legitimating a frisk after a seizure that is otherwise lawful. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (officer may conduct limited protective search when “justified in believing” suspicious individual “is armed and presently dangerous”); Sibron, 392 U.S. at 64, 88 S.Ct. at 1903 (to justify self-protective search, officer “must be able to point to particular facts from which he [or she] reasonably inferred that the individual was armed and dangerous”); Terry, 392 U.S. at 32, 88 S.Ct. at 1885 (Harlan, J., concurring) (officer must have constitutional grounds to make forcible stop before frisk is justified to protect officer during encounter with citizen); see generally 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a) at 499-501 (2d ed. 1987).

The law — until the majority opinion in this case — has never purported to make an officer’s fear an independent basis, among others, justifying a Fourth Amendment intrusion. A Terry seizure, rather, must be reasonably premised on the suspect’s behavior, not on a police officer’s subjective state of mind. See Duhart, 589 A.2d at 899 (police officer must point to particular criminal activity); United States v. Trullo, 809 F.2d 108, 110-11 (1st Cir.) (“[reasonable] suspicion cannot be inchoate, but must be based on 'specific and articulable facts_’ ”), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987).

As I see it, therefore, appellant hurriedly went into an apartment building upon seeing three strangers approaching (with no discernible basis for believing they were police officers). The building he entered was known for narcotics activity, but the officers, upon entering the building, had no reasonable basis for believing appellant was involved in such activity. Officer Queen soon saw appellant on the third floor clutching something the officer could not identify, although he speculated “it could possibly have been a weapon, a small knife, possibly a gun.” The officer asked appellant to stop, touching or grasping appellant’s shoulder. At that point appellant dropped the “weapon”: bags of marijuana. See ante at 1321, note 7. As to this scenario, I believe counsel for appellant at oral argument put the matter correctly: if Officer Queen had seen appellant with a knife or gun, that would have given him probable *1326cause to arrest; if the officer had seen appellant with something “shiny” or “pointy,” that probably would have justified a Terry seizure; but if appellant only had something with no describable indicia suggesting what it was — this case — there could have been no seizure without violating the Fourth Amendment.

Appellant was convicted of possession with intent to distribute marijuana, so it may be difficult to sympathize with him. But because this seizure is sustained, I worry that the police will feel justified in stopping innocent citizens simply because of a hunch that the suspect “possibly” is carrying a weapon. I believe the Fourth Amendment forbids such policing. Respectfully, therefore, I dissent.

Speaking only for myself, this is one of those cases where oral argument made a considerable difference. Originally, the case was submitted to a division of this court on summary calendar, without oral argument, and I voted — in dissent — to affirm denial of the motion to suppress. After oral argument en banc, where the full court had an opportunity to probe the ambiguities of the record, I am satisfied the trial court erred; the motion to suppress should have been granted.

. At the suppression hearing, Officer Queen first testified that he “observed the defendant standing there in front of the door. And, as we exited the vehicle, the defendant then — well, the defendant first looked our way, then went inside of the building." He then testified that “Mr. Pea[y] did leave the scene rather hurriedly.” At trial, Queen testified that "the defendant then ran inside of the building.”

. The majority says that Officer Queen could not recall whether the police car was marked or unmarked. Ante at 1319, n. 1. At trial, however, Queen acknowledged that the car was probably unmarked. Counsel for the government at oral argument on appeal also acknowledged that the car was probably unmarked.

.It is true that, "simply because certain conduct may be construed as consistent with innocence does not mean that this conduct may not form the basis for reasonable suspicion.” United States v. Gomez, 776 F.2d 542, 548 (5th Cir.1985); see United States v. Black, 675 F.2d 129, 137 (7th Cir.1982). In this case, however, appellant had no perceptible reason to believe three men dressed in plain clothes, walking in his direction from an unmarked car, were police officers; for all he could tell these men were on a different kind of mission. Accordingly, the three officers had no reason to believe appellant was running from them because of a guilty conscience about breaking the law. If, however, the officers had been in uniform, appellant’s flight may have implied guilt consciousness despite alternative, innocent explanations for wanting to avoid police contact. But cf. In re D.J., 532 A.2d 138, 141 (D.C.1987) (assuming appellant knew pursuers were police officers, his attempt to walk away unhurriedly indicated merely "a desire not to talk to the police” from which "[n]o adverse inference may be drawn").

.Officer Queen testified at the suppression hearing that he "found the defendant on the third floor clutching something in his left hand." "[Peay] was clutching something in his hand ... clutching something in his left hand.”

Queen did not say he thought Peay may have had a weapon until the following exchange two pages later in the transcript:

Q: When you first observed the defendant on the third floor clutching something in his, you said, left hand, what did you think, if anything, that was?
A: Possibly it — it could possibly have been a weapon, a small knife, possibly a gun.
Q: You could not tell exactly what it was?
A: No, I could not.
Q: All right. When did you have a suspicion or idea as to what it was?
A: When the defendant then turned away from me and began to walk and started dropping the bags to the ground.

(Emphasis added.)

. At trial, Officer Queen testified:

Q: You testified that you saw something in the defendant's hands?
A: Yes.
Q: And you didn’t know what it was?
A: That’s correct.
Q: Did you ask him anything?
A: After I stated, “Police," tell him to stop there, I may have. I do not remember if I stated specifically, “Is there something in your hand?”

(Emphasis added.)

He also testified:

A: [Appellant] was still clutching something in his hand there.... I had no idea what it was in his hand.

(Emphasis added.)

. Officer Queen testified: “In a way, I approached him rather cautiously. I had no idea what it was in his hand. It could have been_” Before he could speculate, defense objected, and Officer Queen did not finish his statement.

. I do not understand the majority to attribute any guilt-consciousness or other reason for a Terry seizure to appellant's effort to walk away from Officer Queen on the third floor in an obvious move to avoid a "consensual encounter” with him. See Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 2383, 115 L.Ed.2d 389 (1991); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); Smith, 558 A.2d at 319 (Ferren, J., concurring).

. The majority proceeds on the assumption that Officer Queen had seized appellant before appellant dropped the bags of marijuana as he pulled away from the officer's grasp and tried to walk away. See ante at 1319-20 & n. 3. I agree that, although the record on the timing of events is murky, the government has not demonstrated that appellant dropped the bags before seizure. See Terry, 392 U.S. at 21, 88 S.Ct. at 1879.