Four Officers Get Out Of A Crown Vic 7 Yards Away And Approach You--But That's Not A Seizure?

UNITED STATES v. GODDARD, USCA-DC No. 05-3080, 2007 U.S.App. LEXIS 14828, on appeal from USDC-DC, before Chief USCJ Ginsburd, USCJs Tatel, Brown, opinion per curiam, concurrence by Tatel, dissent by Brown, filed 22 Jun 2007.

LONG STORY SHORT: Four officers in casual dress with openly carried badges and weapons getting out of an unmarked Crown Vic near four black men and approaching them was not a seizure, and when one man immediately held his hand at his right side, officers had reasonable suspicion to yell "Gun" and detain him. Binding in DC.

FACTS: Four DC Metropolitan PD officers were patrolling after sunset in an unmarked Ford Crown Victoria, the most numerous and well-recognized type of police car, when they heard a radio report of a 5'8" 180-pound black male wearing a black coat and blue jeans running away from police after attempted unauthorized use of a vehicle. Minutes later and two blocks away, the officers saw four black men talking among themselves at a gas station. All were wearing black coats and blue jeans. One was 5'6", another was between 5'6" and 6'0", and the other two, including Defendant, were over 6'0". The officers parked in the entrance to the parking lot 15 to 20 feet away from the group. As the officers got out of the Crown Vic wearing MPD logo jackets, badges, handcuffs, and holstered sidearms, one of the men (who testified the officers "jumped out") began moving away from the group, and Defendant held his hand to the right side of his waistband. As the officers approached the group, one officer overheard Defendant say he had a gun, and yelled "Gun." The officers told the man walking away to come back, which he did. Two officers handcuffed Defendant and found a gun inside his waistband. After officers placed him under arrest but before they read him Miranda, Defendant said he had the gun because he had been shot lately and had just gotten out of jail.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Columbia on one count of possessing a firearm while a convicted felon. Defendant moved to suppress the gun, arguing that the officers' actions amounted to a seizure at the time they parked and got out, but without reasonable suspicion to support it. The trial court agreed that the act of parking an obvious police car 20 feet away and having four officers get out and approach was a seizure, but noted that Defendant and his colleagues were close in space and time to the reported offense and were wearing what the suspect was, and one at least was the same height as the suspect. Though a close case, the trial court ruled that reasonable suspicion existed and a Terry stop was justified. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving his right to appeal the denial of suppression to the U.S. Court of Appeals for the District of Columbia circuit.

DECISION: Two questions of law had to be answered: just when the stop happened, and whether the officers had reasonable suspicion at the time. A stop is complete when an officer, by force or show of authority, has in some way restrained the liberty of a citizen. An officer may just walk up to a person in public without that being a seizure. Here, at the time they got out of the Crown Vic, the officers had not been driving aggressively and did not block the mens' escape. Display of police logos, badges, and holstered hardware by four officers approaching at a walk did not transform the encounter into a stop; indeed, one man began to walk away. If, say, the officers had gotten out and run aggressively toward the men, a reasonable person might have taken that as a sign to do what the police said. But that did not happen, and in the totality of circumstances here, the trial court's ruling that the stop began with the Crown Vic parking was erroneous.

Instead, the DC Circuit ruled, the stop did not begin until the officers yelled "Gun" and ordered the man who walked away to return. At that point, a reasonable innocent citizen in any of the mens' places would not have felt free to leave. But at that point, the officers had reasonable suspicion of criminal activity, because Defendant clamped his hand to his waistband and mentioned that he was carrying a gun, which is generally illegal in DC. DENIAL OF SUPPRESSION AFFIRMED.

The concurrence expressed great concerns about the same issues as the dissent, but because of well-established precedent governing Terry stops, believed the panel to be bound to the result in the per curiam opinion. The dissent disputed the finding that all four men were wearing the same thing as the suspect in the original radio call, and noted that the neighborhood was predominantly African-American, making the sighting of a black man there unremarkable. Defendant's admission that he had a gun evidenced an expectation of imminent search. Neither was it clear that the man who walked away was called back only after police yelled "Gun." In the totality of circumstances, Defendant was seized as soon as the Crown Vic parked. The social costs of Fourth Amendment violations and harsher police behavior in minority neighborhoods needed reexamining even against the social costs of high crime in those same neighborhoods.

The dissent would have reversed the denial of suppression.

EDITORIAL: Not so easy, is it? Now I'm going 51 to 49% with the dissent, because I think the stop happened when the Crown Vic pulled right up and four officers all got out. I wouldn't have felt free to leave whether they were moseying, sprinting, or in between, right at me and my homeys from only seven yards away. That means the officers had to have reasonable suspicion then and there, but objectively, they didn't. Four black men in a black neighborhood in DC--how unusual. I somehow suspect they weren't all wearing the exact same thing either, and the dissent correctly figured that out from the record.

You can tell that this panel was probably at each other's throats in those secret conferences, because even though there's a concurrence and a dissent, the main opinion is per curiam, or "of the court" instead of signed by any one judge, not even the Chief Judge of the DC Circuit. In this context, it means that the panel could get two out of three to agree only on the basic facts, reasoning, and result, but those two out of three could not agree enough to go into any more detail. Indeed, the opinion does come across as wishy-washy in places, and fudges on some facts that the dissent brought out.

We can generally agree that convicted felons shouldn't be walking around with concealed handguns. The one government program you can get both the NRA and the Brady Bunch both to support is CrimeStrike, which has made a point of prosecuting cases exactly like these. But how badly do we want this result? Should the police just be able to go around dogging people who are more likely than average to be illegally armed, so long as the police are guessing accurately? If you want and need more community cooperation with law enforcement, what is the balance point between proactive policing, and ticking off innocent people so badly that they don't want to talk? I don't know. I'll leave it to police and citizens and courts in each community. In my community (and seriously, it may not work in yours), you can get pretty far with treating people extremely fairly and listening a lot more than you talk.