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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2009 Decided October 23, 2009
No. 07-3025
UNITED STATES OF AMERICA,
APPELLEE
v.
JEROME H. JONES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00441-01)
Dennis M. Hart, appointed by the court, argued the cause
and filed the brief for appellant.
Leslie A. Gerardo, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese III and Chrisellen R. Kolb, Assistant U.S. Attorneys.
Before: ROGERS, TATEL and BROWN, Circuit Judges.
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Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In the District of Columbia it is a
misdemeanor to drink alcoholic beverages in a public place.
Specifically, “no person in the District [of Columbia] shall drink
an alcoholic beverage or possess in an open container an
alcoholic beverage in or upon . . . [a] street . . . [or] sidewalk.”
D.C. Code § 25-1001(a)(1). The question on appeal is whether
there was a proper investigative stop of appellant under Terry v.
Ohio, 392 U.S. 1 (1968), to determine whether he was violating
the statute. See Ornelas v. United States, 517 U.S. 690, 697
(1996).
I.
Around midnight on Saturday, October 15, 2005, Officer
Leroy Rollins of the Metropolitan Police Department arrived, on
duty, in an unmarked vehicle at the 1100 block of Talbert Street
SE, Washington, D.C., an area he “felt” was a high crime area,
Hr’g Tr. 10, July 19, 2006. He was on patrol with
approximately five other officers, some of whom were in a
separate vehicle. Rollins was wearing a black utility vest with
“POLICE” in large letters on the front and back. Officer Rollins
testified that upon arrival he “observed approximately 15 or 20
[people] gathered throughout the block” in what “appeared to be
somewhat of a party atmosphere.” Id. at 4. Rollins parked his
car in the middle of the street, and the officers got out of their
vehicles.
The group of people began to disperse as the police
approached, and, according to Officer Rollins, appellant, unlike
the others, “began to walk away at a very fast pace.” Id. at 4.
Rollins “noticed that [appellant] had a large, white styrofoam
cup” in his hand, id., as well as “a brown paper bag . . . in his
arm,” id. at 4–5. Rollins walked toward appellant and,
3
according to Rollins, appellant stated: “I ain’t doing nothing.
I’m just drinking.” Id. at 5. Appellant did not appear to be
stumbling, and Rollins did not notice whether appellant was
slurring his words, nor did Rollins pay attention to whether
appellant smelled of alcohol. Rollins also could not see what
was in the cup or the brown bag. However, based on the
styrofoam cup, the brown bag, and appellant’s statement that he
was drinking, Rollins “believed that [appellant] was in
possession of a container of alcohol,” id. at 7, an arrestable
offense, id.
Continuing to walk toward appellant and intending to
“investigate further,” id. at 14, Officer Rollins instructed
appellant to “Come here,” id. at 5. They were less than ten feet
apart when Rollins first encountered him. Appellant then
“pushed [Rollins] in the chest area and reached toward the right
side of his waist band.” Id. Once appellant reached toward his
waist band, Rollins “believed he was in possession of a gun” and
therefore “immediately grabbed him and pushed him up against
the police car.” Id. Appellant again reached toward the right
side of his waist, and Rollins “tr[ied] to pull his hand away from
his waistband.” Id. at 6. The struggle ensued for approximately
thirty to forty seconds, after which several police officers came
to assist and wrestled appellant to the ground. While on the
ground, appellant’s shirt came up above his waist, revealing “a
large caliber handgun in the right side of his waist.” Id. Rollins
took the gun from appellant’s waist and saw it was loaded with
“ten rounds in the magazine, and . . . one round in [the]
chamber.” Id. at 7. Upon recovery of the gun, appellant was
placed under arrest. Afterwards, Rollins discovered that inside
the brown paper bag were a bottle containing vodka and another
containing cranberry juice, and both had been “opened.” Id. at
23. The top of the styrofoam cup had come off; there was ice in
the cup, but nothing else.
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The district court denied appellant’s motion to suppress the
gun and ammunition and his statement. Appellant then pleaded
guilty, conditioned upon his right to bring the instant appeal, to
the indictment charging one count of unlawful possession of a
firearm and ammunition by a person convicted of a crime
punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. § 922(g)(1).
II.
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons . . . against unreasonable searches
and seizures, . . . and no Warrants shall issue, but upon probable
cause . . . .” A narrow exception to the warrant requirement
exists under Terry, whereby “the police can stop and briefly
detain a person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable cause.”
United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry,
392 U.S. at 30). The required level of suspicion is “considerably
less than proof of wrongdoing by a preponderance of the
evidence,” and “obviously less demanding than that for probable
cause,” but “[t]he officer, of course, must be able to articulate
something more than an ‘inchoate and unparticularized
suspicion or “hunch.” ’ ” Id. (quoting Terry, 392 U.S. at 27). In
determining whether reasonable suspicion existed, the court
considers “the totality of the circumstances as the officer on the
scene experienced them.” United States v. Edmonds, 240 F.3d
55, 59 (D.C. Cir. 2001); see Sokolow, 490 U.S. at 8–9.
“[A] stop [or seizure] takes place ‘[o]nly when the officer,
by means of physical force or show of authority, has in some
way restrained the liberty of a citizen,’ Terry, 392 U.S. at 19
n.16, or, put differently ‘only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
5
believed that he was not free to leave,’ California v. Hodari D.,
499 U.S. 621, 627–28 (1991),” United States v. Goddard, 491
F.3d 457, 460 (D.C. Cir. 2007) (alteration in Terry). Not all
interactions between police and citizens are stops, and this court
has considered several factors in determining whether a stop has
occurred: “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 of voice
indicating that compliance with the officer’s request might be
compelled,” United States v. Mendenhall, 446 U.S. 544, 554
(1980) (plurality opinion), as well as the approaching officer’s
demeanor, whether the officer was wearing a uniform, and the
time and place of the purported stop. Goddard, 491 F.3d at 460.
The evidence showed that it was a Fall Saturday night,
around midnight, and fifteen to twenty people were outside in a
block of a residential neighborhood. According to the officer
who testified at the suppression hearing, there “appeared to be
somewhat of a party atmosphere.” Appellant was carrying a
large white styrofoam cup in his hand and a brown paper bag
under his arm. Five or six police officers exited two cars. The
group of people started dispersing in a direction away from the
officers.
At this point, we agree with appellant, there was not a basis
for a Terry stop. There was no report of possible criminal
wrongdoing by him. The police were not responding to a citizen
complaint of any kind, much less one for unlawful conduct. The
police were not in the process of conducting an investigation
that was focusing on appellant or any of the other “partying”
people. Hence, the fact that the officer considered the
neighborhood to be a high crime area, due to illegal narcotics
trafficking, might explain why the officers were on patrol there
that night but otherwise does not enter into the calculus of
whether the officer had articulable suspicion for a Terry stop of
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appellant for possible violation of D.C. Code § 25-1001.
Moreover, the officer neither saw or smelled alcohol nor
testified that appellant or anyone else in the group appeared to
be drunk. There was not even evidence there was anything in
the cup appellant was holding, much less the color or smell of its
contents; the cup and the brown bag were opaque, and the
officer’s testimony that he observed afterward that “the top had
c[o]me off the cup,” Hr’g Tr. 23, is consistent with appellant
holding a covered cup when the officer first saw him.
It cannot be gainsaid that the Fourth Amendment protects,
as Justice Brandeis’ oft-cited observation points out, “the right
to be let alone,” Olmstead v. United States, 277 U.S. 438, 478
(1928) (Brandeis, J., dissenting), in a party atmosphere or
otherwise. See Terry, 392 U.S. at 8–9. Merely walking away,
even quickly as appellant did, upon the arrival of the uniformed
police officer would not provide articulable suspicion of
criminal wrongdoing by appellant. Cf. Illinois v. Wardlow, 528
U.S. 119, 124–25 (2000). The officer did not testify he thought
appellant was fleeing from the police, only that his pace of
movement, in contrast with others in the group, was what caused
the officer to notice him. Merely holding a styrofoam cup,
covered or uncovered, would not tip the balance, even when the
same person was also holding a paper bag under his arm. Cf.
United States v. Powell, 483 F.3d 836, 838 (D.C. Cir. 2007).
However, before appellant was seized by the police, he
voluntarily stated to a uniformed officer who had just exited his
car, “I ain’t doing nothing. I’m just drinking.” In response, as
the officer approached he ordered appellant to “Come here,” i.e.,
“to reverse his line of travel, [and] stop his exit from the scene,”
Appellant’s Br. 14. The parties agree, as counsel for the
government acknowledged during oral argument, that at this
point appellant was seized for purposes of the Fourth
Amendment. Terry, 392 U.S. at 16. Appellant’s voluntary
7
statement tipped the balance from providing a mere hunch to
articulable suspicion of possible ongoing criminal wrongdoing.
With appellant’s statement the officer had a reasonable
suspicion supported by articulable facts to make a Terry stop in
order to investigate whether or not appellant was violating D.C.
Code § 25-1001. Even though appellant may have intended to
avoid any police interaction by asserting he was not violating the
law, his statement was in the present tense about an activity that
is criminal in certain circumstances. And it was late on Saturday
night and people were gathered outside in a “party” atmosphere.
The crowd was moving away from the police, and one of the
partying persons had acknowledged while on the street and
moving away quickly that he was drinking. That person also
had the means to do so: a styrofoam cup in his hand into which
to pour the contents of the brown bag under his arm.
It takes little imagination to suspect that there might be
alcohol in the styrofoam cup or the brown paper bag that
appellant was holding. But it also is possible that appellant was
merely drinking fruit juice or some other non-alcoholic
beverage, or that the cup was empty and the bag contained
closed containers or non-alcoholic items. So the officer pursued
the minimal investigative step by approaching appellant and
ordering him to “Come here” in order to determine whether or
not appellant was drinking or possessing an open container of
alcohol, and if so to place him under arrest for violation of D.C.
Code § 25-1001. In Terry the Supreme Court reaffirmed that
“courts still retain their traditional responsibility to guard against
police conduct which is over-bearing or harassing . . . ,” while
“approv[ing] of legitimate and restrained investigative conduct
undertaken on the basis of ample factual justification,” 392 U.S.
at 15, as occurred here. In urging district court error, appellant
states that “the only observation by [the] police was the
possession of a white styrofoam cup in the hand of the
[a]ppellant,” Appellant’s Br. 8, which ignores the brown bag, a
8
place to carry bottles, as well as the effect of his own potentially
incriminating statement, see Terry, 39 U.S. at 15. By focusing
on what the officer did not know at the time he ordered appellant
to “Come here” and approached, appellant ignores that
articulable suspicion under Terry need not rise to the level of a
preponderance of the evidence or even probable cause, see
Edmonds, 240 F.3d at 59 (quoting Illinois v. Wardlow, 528 U.S.
119, 123 (2000)).
Because, under the totality of the circumstances, the police
officer’s action in seizing appellant was reasonable under the
Fourth Amendment, appellant fails to show that the stop was
unlawful. Once appellant pushed the officer and went for his
own waistband, the officer had probable cause to arrest appellant
for assaulting a police officer, D.C. Code § 22-405, and to
search for a gun and lawfully seize it pursuant to an arrest, see,
e.g., Chimel v. California, 395 U.S. 752, 762–63 (1969); United
States v. Mapp, 476 F.3d 1012, 1017 (D.C. Cir. 2007); see also
Terry, 392 U.S. at 27. Accordingly, we affirm the judgment of
conviction under 18 U.S.C. § 922(g)(1).