United States v. Thomas

¶1(dissenting):

¶2The result reached by the majority in this case is, in my opinion, contrary to well established law in this jurisdiction.

¶3I read the record quite differently from my associates on the panel. Viewing the evidence — as we must — in the light most favorable to the appellees,1 it establishes little more than that appellees and their two companions were observed riding in a Ford Thunderbird automobile through the streets of Georgetown at an early hour of the morning,2 and that they were pursued by unidentified persons riding in an automobile which had none of the indicia usually associated with a police vehicle.

¶4What the record shows is that Officer Meregian, dressed in casual clothes, was seated in an unmarked police car, parked near the intersection of Prospect and 33rd Streets, N.W., and observed a Thunderbird automobile proceeding in an easterly direction on Prospect Street. A short time thereafter he again observed the automobile proceeding through the intersection in the same direction. The automobile was then observed to stop and two men alighted and walked in a northerly direction on 33rd Street. Observed also were two women walking ahead of the two men in the same direction.3

¶5During the cross-examination of the officer, the following transpired:

Q. Did you then get out of your car and approach Mr. Banks and Mr. Thomas?

A. No, I did not.

Q. How close did they get to the two ladies ?

A. I would say approximately IS or 20 feet.

Q. And when were they in the tree box?

A. Just a few feet above the intersection of 33rd and Prospect.

Q. And that didn’t arouse your suspicion or cause you to get out of the car and approach them ?

A. No, the alleged victims were out of the area, I did not see them, but saw the two suspects just above the intersection at 33rd Street.

In the majority opinion it is said that:

When appellee Thomas and his partner alighted from their car at 2:00 a. m. that morning, they immediately began to stalk two female pedestrians. At that point, unquestionably Officer Meregian was empowered to investigate the subjects’ suspicious conduct. Terry v. Ohio, supra.

¶6The simple answer to this is, of course, that the officer did not confront the two men; in fact, he was apparently not sufficiently concerned to even get out of his automobile.

¶7The officer testified further that the automobile was turned and headed in a *471westerly direction on Prospect Street at 33rd Street where it was parked. The officer stated that the lights went out, the horn was sounded, and he “observed the two subjects [who] disembark[ed] from the vehicle initially turn hack and one pointed to the police vehicle.” The automobile then proceeded in a northerly direction on 33rd Street and the two passengers who had alighted earlier from the vehicle were presumably picked up.

¶8Officer Meregian, who in the meantime had been rejoined by two other officers also dressed in casual clothes, then proceeded in the police car in an effort “to get behind” the automobile but when they reached 33rd Street it was not in sight. The officers then proceeded in an easterly direction on N Street and observed some distance ahead “the tail lights of a vehicle moving at a rapid rate of speed on the wrong side of the roadway.4 Officer Mer-egian stated that although some five or six car lengths to the rear of the automobile, he was able to observe the body of the passenger in the right front seat “bent over in the front seat where the top of his head or his head was facing toward the floorboard.”

¶9Making no attempt to stop the automobile, the three officers requested assistance, and the uniformed officers who responded finally stopped the automobile in the 1700 block of Eye Street, N.W.5 The automobile was then immediately surrounded by police officers and all of its occupants were required to get out, after which they were escorted to the rear of the automobile where, in the custody of at least four police officers, they were frisked. One of the officers then searched the front passenger area of the automobile and a weapon was found under the dashboard behind the glove compartment.

¶10At argument on the motion to suppress the weapon, the government conceded that there was no evidence (1) that the operator of the automobile in which the appel-lees were riding could not have, if requested, presented a valid license and registration for the automobile, (2) that he was given a citation for any traffic offense, or (3) that there existed probable cause to arrest the operator of the automobile or any one of the passengers or to impound the automobile.

¶11The government insisted nevertheless that the police had the right to search the vehicle as a protective measure. The trial court — unpersuaded—suppressed the gun and, in my opinion, that ruling was correct. It is so well settled now as to hardly require the citation of authority that any search or seizure conducted without a warrant is “per se” unreasonable under the Fourth Amendment — subject only to few well identified exceptions, none of which is to be found in this factual setting. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); accord, Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

¶12In Watts v. United States, D.C.App., 297 A.2d 790 (1972), the court sought to make it crystal clear that the police have no right to make an exploratory search of an *472automobile even as an incident to a traffic arrest,6 saying at 792:

When the search is made without a warrant, it must be with probable cause or bear some reasonable relationship to the crime for which the arrest is made or to the safety of the officer ’f it is to come within one of the exceptions to the warrant requirement described in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ....

¶13The Supreme Court recently reemphasized all of this when, in Almeida-Sanchez v. United States, supra, it declared at 269 of 413 U.S., at 2537 of 93 S.Ct.:

[T]he Carroll doctrine7 does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search. As Mr. Justice White wrote for the Court in Chambers v. Maroney, :‘In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement . . . . ”

[Footnote omitted.]

¶14See also Annot., Warrantless Search of Automobile, 26 L.Ed.2d 893 et seq.

¶15The majority suggests that because of the confluence of such considerations as “numerous robberies in that general area”, the late hour, the furtive gesture and the attempted flight through congested traffic, the search and seizure were justified and therefore reasonable. But mere suspicion that an automobile is operated in furtherance of some criminal activity is not, without more, sufficient to support a warrant-less search of either the automobile or the passengers. In Tyler v. United States, D.C.App., 302 A.2d 748 (1973), the court, addressing a somewhat similar factual situation, said at 752:

Neither does the search appear to be reasonably related to the protection of the officers. “[T]he officers had no complaint or report of a crime, had never seen appellant before and did not observe him engage in unlawful conduct.” Robinson v. United States, D.C.App., 278 A.2d 458, 459 (1971). There was no reason to think that appellant was about to become the subject of a custodial arrest which would warrant the officers taking reasonable steps to protect themselves. He was standing at the time in front of the car with a third officer so that the contents of the car posed, at most, a minimal threat to the officers. [Footnote omitted.]

¶16In the case at bar, as in Tyler, it is urged that it was the furtive gesture that put the officers on guard and provoked the intrusion into the automobile. However, the inescapable fact is that the search of the automobile was made after its four occupants had been escorted to the rear of the automobile where they remained in the custody of at least four other police officers. Certainly, therefore, it cannot be seriously contended that the search was reasonably related to the protection of the officers.

¶17Moreover, it can hardly be assumed that appellees were knowingly fleeing the police since the three officers in the pursuing car were not in uniform, their vehicle was unmarked, and no siren was sounded or device displayed. Thus only by the most tenuous reasoning could it be concluded that this case is controlled by McGee v. United States, D.C.App., 270 A.2d 348 (1970), upon which the majority relies in reversing the trial court. In that case the search incident to a valid arrest was clearly for the protection of the police officer and, therefore, distinguishable on its facts, not only from the case at bar but also from Tyler v. *473United States, supra, and Watts v. United States, supra.

¶18In Dickerson v. United States, D.C.App., 296 A.2d 708 (1972), the defendant was under arrest charged with traffic violations. After he had been removed from his car and placed in a police vehicle, the officer reached under the seat of defendant’s car and found a gun. The search was held to be illegal. To the same effect was United States v. Page, D.C.App., 298 A.2d 233 (1972). There a vehicle was stopped for speeding and the officers observed the passenger in the right front seat move as if to hide something. The officer, apparently concerned for his safety, ordered the passenger to leave the vehicle and, upon compliance, he was frisked and a gun was found on his person. We upheld the trial court’s suppression order agreeing that there was no probable cause to search the passenger. The government in Page, as in Watts and Tyler, relied on United States v. Green, 151 U.S.App.D.C. 35, 465 F.2d 620 (1972), and the McGeecase as support for a general search, but we rejected the claim — as have other courts. See United States v. Humphrey, 409 F.2d 1055 (10th Cir.1969); People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970).

¶19The conclusion is thus compelled that this case is simply one more instance of overzealous police activity. Unfortunately it cannot be justified on any theory of “furtive gestures” or legitimate protective measures. Thus, wholly apart from my differences with the majority as to what the record reveals or as to what law controls, Judge Wright’s observation dissenting in United States v. Green, supra, is especially apt here:

This is a disarmingly simple case, but the court’s disposition of it, in my judgment, jeopardizes the privacy and the constitutional rights of every citizen who drives a car in the nation’s capital. . . . [465 F.2d at 625.]

¶20But even more appropriate is the language employed by Mr. Justice Stewart speaking for the majority in Almeida-Sanchez v. United States, supra, 413 U.S. at 274, 93 S.Ct. at 2540: The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials:

“These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among [the] deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Brinegar v. United States, 338 U.S. 160, 180, 69 S.Ct. 1302, 1313, 93 L.Ed. 1879 (Jackson, J., dissenting).

¶21I would affirm the suppression order entered in this case and, accordingly, respectfully dissent.