Lawrence v. United States , 509 A.2d 614 ( 1986 )

BELSON, Associate Judge:

Appellant Herbert W. Lawrence was convicted of carrying a pistol without a license, D.C. Code § 22-3204 (1981), possession of an unregistered firearm, id. § 6-2311(a), and unlawful possession of ammunition, id. § 6-2361(3). On appeal, he asserts that the weapon and ammunition were seized in the course of an illegal detention. Because we are satisfied that the officer who initiated the stop of appellant had the requisite ar-ticulable suspicion to do so, we affirm.

At approximately 7:40 p.m. on a Monday evening, Officer Thomas Senko of the U.S. Capital Police was patrolling in the area of Independence Avenue, S.E. in a patrol wagon. Senko first saw Lawrence as Lawrence was standing at the corner of 3rd Street, and Pennsylvania Avenue, S.E. with Barron Jackson, Lawrence’s companion that evening. A few minutes later, Senko saw Jackson enter a liquor store on Pennsylvania Avenue near 2nd Street, S.E., and Independence Avenue, and exit two minutes later without having made a purchase. He rejoined Lawrence, who had been standing at the corner of 2nd and Independence. The two men then walked past the store, turned around, and walked past the store again. His suspicions aroused, Senko called his dispatcher for a rebroadcast of the descriptions of two suspects wanted in a robbery earlier that evening. The rebroadcast indicated, inter alia, that the two suspects were wearing army fatigue pants;¹ Senko saw that Jackson was wearing fatigue pants. The two men appeared to notice Senko, and began to walk faster. Officer Senko then turned on his emergency lights and sounded his horn. At that, Lawrence and Jackson split up. Lawrence ran up a small drive towards the Capitol Building and Jackson went across First Street. Senko, still in his patrol wagon, tried to follow Lawrence, but was unable to do so when Lawrence ran through a wooded area on the Capitol grounds. Senko then pursued Jackson, whom he apprehended at Independence and New Jersey Avenues.

Officer Andre Fontanilla, standing at the corner of First Street and Independence, saw Officer Senko turn on his emergency equipment and saw the suspects split up. Fontanilla chased Lawrence through the wooded area, and caught up with him on the north side of Independence Avenue. The two briefly scuffled before Fontanilla subdued Lawrence. When the police searched Lawrence, they found a loaded revolver in his jacket pocket.

On appeal, Lawrence asserts that Officer Senko did not have the requisite articulable suspicion to warrant stopping him under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We disagree.

Terry established that to justify an investigative stop, the police officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion. Id. at 21, 88 S.Ct. at 1879. We begin our analysis of this case by noting that while Lawrence and Jackson’s initial activity in front of the liquor store was sufficient to arouse Senko’s suspicion, by itself it did not justify stopping them. United States v. Barnes, 496 A.2d 1040, 1043 (D.C.1985) (defendant’s standing in front of store just before it closed, looking up and down street while companion goes in and out and confers with defendant each time, insufficient to warrant investigative seizure). This court, however, has recognized that a suspect’s reaction upon seeing a police officer can be taken into account in determining the reasonableness of the stop.

Especially pertinent is our frequent recognition that “flight from authority — implying consciousness of guilt — may be considered among other factors justifying a Terry seizure.” Johnson v. United States, 496 A.2d 592, 597 (D.C.1985), citing Stephenson v. United States, 296 A.2d 606, 609-10 (D.C.1972), cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973); see also United States v. McCarthy, 448 A.2d 267, 270 (D.C.1982) (flight of defendant’s companion was factor justifying investigative stop of defendant); Franklin v. United States, 382 A.2d 20, 22 (D.C.1978) (flight from authority, first on foot, then in car, a factor in determining that there was adequate basis for stop); Tobias v. United States, 375 A.2d 491, 494 (D.C.1977) (several exchanges of small object in shoulder bag upon warning that police were near, and flight gave adequate basis for stop); Smith v. United States, 295 A.2d 64, 66 (D.C.1972) (flight following suspicious activities regarding automobiles and their contents afforded adequate basis for stop), cert. denied, 411 U.S. 952, 93 S.Ct. 1929, 36 L.Ed.2d 415 (1973).

Here, after Lawrence and Jackson saw Senko, they “quickened their pace,” as if to leave the scene as quickly as possible without arousing the officer’s suspicions. When the officer turned on his vehicle’s flashing lights and sounded its horn, the two, who as pedestrians would not normally have thought that such signals from a patrol wagon were directed at them, split up, a tactic commonly used by criminals to frustrate pursuing police.² Lawrence’s and Jackson’s activities in front of the liquor store, combined with their activities upon seeing the police emergency equipment activated, provided the requisite “articulable suspicion” to warrant an investigative stop. Accordingly, the appellant’s convictions are Affirmed.

1 . The dissent relies heavily on the content of the police radio run of 7:04 p.m. on the day of the arrest. We point out that the communication was in part unintelligible.

2 . There is a critical difference between an officer’s turning his vehicle’s flashing lights on to signal a motorist to stop and turning on emergency equipment to stop a pedestrian. A seizure takes place when a reasonable person would have believed he was not free to leave. Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (White, J., plurality opinion); see also United States v. Burrell, 286 A.2d 845, 846 (D.C.1972). Case law from other jurisdictions indicates that when a police officer signals a motorist to stop by use of a siren or red light, there has been a seizure which must be justified under the Fourth Amendment, e.g., United States v. Morrison, 546 F.2d 319 (9th Cir.1976). A pedestrian, however, who notices a patrol wagon’s emergency equipment ordinarily is not likely to know that an officer is signaling for a stop until the officer communicates in a more direct manner to the pedestrian the officer’s intention to stop the pedestrian. Thus, in this case, we must assess the facts known to the officer up to and including the time Lawrence began to flee.