ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. xxxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF OF DEFENDANT-APPELLANT

DONTE MICHAEL xxxxxx

_________________________________________________________________

A. J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. 92-291

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Rule 11(a)(1) of the General Rules of this Court,

Defendant-Appellant, Donte Michael xxxxxx, hereby states as follows:

A. Parties and Amici:

The parties to this appeal are Defendant-Appellant, Donte Michael xxxxxx, and Plaintiff-Appellee, The United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal by Mr. xxxxxx of the ruling by the district court, the Honorable Thomas F. Hogan, on October 15, 1992, denying his motion to suppress physical evidence.

C. Related Cases:

There are no related cases and this case has not previously been before this Court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii

STATUTES AND RULES 1

JURISDICTION 1

ISSUES PRESENTED 1

STATEMENT OF THE CASE 2

A. PROCEEDINGS BELOW 2

B. STATEMENT OF FACTS 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT

I. THE POLICE OFFICERS VIOLATED MR. xxxxxx'S FOURTH AMENDMENT RIGHTS WHEN THEY COMMANDED HIM TO GET OUT OF THE CAR BECAUSE THE OFFICERS DID NOT HAVE REASONABLE SUSPICION TO BELIEVE THAT HE WAS ENGAGED

IN CRIMINAL ACTIVITY . . . . . . . . . . . . . . . . 7

II. ASSUMING, ARGUENDO, THAT THE SEIZURE OF MR. xxxxxx DID NOT VIOLATE THE FOURTH AMENDMENT, THE SUBSEQUENT FRISK OF HIS PERSON WAS NOT JUSTIFIED BECAUSE THE OFFICER DID NOT POSSESS SPECIFIC AND ARTICULABLE FACTS TO SUPPORT THE CONCLUSION THAT

HE WAS ARMED AND DANGEROUS . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TABLE OF CASES AND AUTHORITIES

CASES

*Alabama v. White, 496 U.S. 325 (1990). . . . . . . . . 8, 9, 10

Brown v. Texas, 443 U.S. 47 (1979) . . . . . . . . . . . . . . 7

Duhart v. United States, 589 A.2d 895 (D.C.App. 1991) . . . . 14

Dunaway v. New York, 442 U.S. 200 (1979) . . . . . . . . . . 16

Florida v. Bostick, 111 S.Ct. 2382 (1991) . . . . . . . . . . 7

Florida v. Royer, 460 U.S. 491 (1983) . . . . . . . . . . . . 14

Hanna v. Plumer, 380 U.S. 460 (1965) . . . . . . . . . . . . 11

Hemsley v. United States, 547 A.2d 132 (D.C.App. 1988) . . . 11

Jones v. United States, 391 A.2d 1188 (D.C.App. 1978) . . . . 11

Sibron v. New York, 392 U.S. 40 (1968) . . . . . 11, 12, 14, 15

Taylor v. Alabama, 457 U.S. 687 (1982) . . . . . . . . . . . 16

*Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . passim

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) . . . . . 8

United States v. Eaglin, 759 F.Supp. 25 (D.D.C. 1991) . . . . 10

United States v. Gale, 952 F.2d 1412 (D.C.Cir.),

cert. denied, 112 S.Ct. 1302 (1992) . . . . . . . . . . . 10

United States v. Jones, 657 F.Supp. 492 (W.D.Pa. 1987) . . . 10

United States v. McClinnhan, 660 F.2d 500 (D.C.Cir. 1981) . . 10

United States v. Page, 298 A.2d 233 (D.C.App. 1972) . . . . . 15

United States v. Reid, No. 91-3304 (D.C.Cir. July 23, 1993) . 12

* Cases chiefly relied upon are marked with an asterisk

United States v. Thomas, 896 F.2d 589 (D.C.Cir. 1990) . . . . 11

Ybarra v. Illinois, 444 U.S. 85 (1979) . . . . . . . . . . . 12

Wong Sun v. United States, 371 U.S. 471 (1963) . . . . . . . 16

STATUTES

21 U.S.C. งง 841(a)(1) and 841(b)(1)(B)(iii). . . . . . . . . . 2

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________

No. 93-3011

_______________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

DONTE MICHAEL xxxxxx, Defendant-Appellant.

_____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

BRIEF FOR DEFENDANT-APPELLANT

DONTE MICHAEL xxxxxx

_____________________________________________

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 11(a)(3), pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. ง 3231. A timely notice of appeal having been filed within the extended period allowed by the district court pursuant to Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. ง 1291.

ISSUES PRESENTED

I. Whether the trial court erred in finding that based upon a partially corroborated anonymous tip the officers had reasonable suspicion to believe that Mr. xxxxxx had committed or was about to commit a crime, thereby justifying his seizure, where Mr. xxxxxx did not match the description in the radio run and the officers did not observe him engaged in any suspicious or criminal conduct.

II. Whether the trial court erred in finding that the officers had reasonable suspicion to believe that Mr. xxxxxx was armed and dangerous, thereby justifying a frisk search, where the suspicion was based solely on his "hesitation" to respond to a command issued while he might have been asleep and his conduct in putting his hand in his pocket rather than on the car as ordered.

STATEMENT OF THE CASE

A. Proceedings Below

On July 28, 1992, the grand jury returned a one-count indictment charging Mr. xxxxxx with possession of more than 5 grams of cocaine base with intent to distribute in violation of 21 U.S.C. งง 841(a)(1) and 841(b)(1)(B)(iii).

On October 1, 1992, an evidentiary hearing was held on Mr. xxxxxx's motion to suppress evidence. The District Court orally denied Mr. xxxxxx's motion on October 15, 1992. Following the denial of the motion, Mr. xxxxxx entered a conditional plea of guilty on October 22, 1992, to the charged count. On January 8, 1993, Mr. xxxxxx was sentenced to 60 months imprisonment. Mr. xxxxxx filed a timely notice of appeal.

B. Statement of Facts

On July 9, 1992, at about 6:45 a.m. police officer Thomas J. Stewart and his partner, Officer Bonner, received a radio communication about a complaint in the 1600 block of W Street, N.E. (Tr.I at 4-5, 12).⁽¹⁾ The police dispatcher told the officers

Disorderly, 200 block -- correction, 1600 block of W, William Street, N.E., in the rear. We got a hot pink vehicle back there with four subjects inside, approximately 13 years of age. Supposedly sexual activity and drugs.

(Tr.I at 18-19).

Because the officers were nearby, it took them only about twenty seconds to arrive at the parking lot behind the 1600 block of W Street, N.E. (Tr.I at 9-10). Officer Stewart testified that three cars were parked in the parking lot: two white cars and one red car. The red car was a late model Ford with a white top and was parked alone in the north corner of the lot (Tr.I at 10, 16). Two men slept in the front seat of the red car. A fourteen year old male was leaning on the rear bumper of the red car (Tr.I at 11-12). Officer Stewart did not see any drug activity nor any sexual activity (Tr.I at 19).

As the officers approached, the juvenile dropped a plastic bag and kicked it under the car. Officer Stewart, who had once arrested the juvenile, retrieved the plastic bag and found that it contained crack cocaine (Tr.I at 11-12).

While Stewart seized the juvenile, Officer Bonner approached the two sleeping men in the car. Mr. Anthony Sessoms, a 25 to 30 year old man, was in the front driver's seat. Mr. xxxxxx, a 23 year old man, was in the front passenger's seat of the car (Tr.I at 12, 15; Pretrial Services Report, A. at 70).

Officer Stewart testified inconsistently in his direct and cross-examination at the suppression hearing concerning the interaction between Officer Bonner and Mr. xxxxxx. Stewart first testified that Bonner tapped on the window (Tr.I at 13). Later, he testified that he was not sure which window she might have tapped and was not sure whether she tapped on the window at all:

Q. Isn't is a fact that Mr. xxxxxx's window was down?

A. I believe my partner said she tapped on the window, sir.

Q. Well, tapped on the window, could she have tapped on the back window?

A. I'm not sure, sir.

Q. Okay. So you don't know whether the window was down or not?

A. No, sir.

(Tr.I at 21). Also, Officer Stewart's testimony was unclear about whether Bonner went to the driver's side or the passenger's side of the car. He testified first that Officer Bonner tapped the window on the driver's side (Tr.I at 12), and later that she tapped the window on the passenger's side (Tr.I at 20).⁽²⁾

Officer Bonner opened the car door herself and told Mr. xxxxxx to get out and to put his hands on the outside of the car (Tr.I at 13). According to Officer Stewart, Mr. xxxxxx hesitated before getting out of the car. Stewart could not say "whether this was an involuntary hesitation or a voluntary hesitation" because, since he was standing at the rear of the car, he did not know whether Mr. xxxxxx was awake or asleep at the time (Tr.I at 13, 20-22). According to Officer Stewart, Mr. xxxxxx tried to reach into his pants pocket "about three" times rather than putting his hands on the car (Tr.I at 13-14).

Officer Stewart left the juvenile to assist Officer Bonner because he perceived that she was "having trouble controlling Mr. xxxxxx" (Tr.I at 14, 23). Because Officer Stewart perceived that Mr. xxxxxx had not "obey[ed] [Bonner's] commands," he conducted a pat-down of Mr. xxxxxx for their "safety" (Tr.I at 14, 25). He discovered crack cocaine in the right front pocket of Mr. xxxxxx's blue jeans, and $324 in his left front pants pocket (Tr.I at 14, 23, 33). He did not discover any weapons (Tr.I at 26).

Later, at the station house, Mr. xxxxxx signed a card waiving his Miranda rights (Tr.I at 16). Mr. xxxxxx told Officer Gregory Stroud that he had sold drugs which he had obtained from his uncle, all that night in the Montana Avenue area but that he had only sold about ten "dimes" (Tr.I at 36-37).

Mr. xxxxxx moved to suppress the evidence, arguing that the officers did not have probable cause to arrest nor reasonable articulable suspicion to stop and frisk him and, further, that the frisk search should have been concluded when it did not uncover any weapons (A. at 71; Tr.II at 60). The government argued that the anonymous tip was corroborated when the officers saw the juvenile throw down drugs, giving them justification to search which rose to probable cause to arrest when Officer Stewart felt the drugs in Mr. xxxxxx's pocket (Tr.I at 40-44).

The district court found that the officers had "at minimum a reasonable suspicion to question the individuals in the car as to what the situation was and to do a very brief Terry stop" because they had corroborated the presence of a car "generally matching the description" and in the location described by the anonymous tipster, and because the officers observed a juvenile outside the car who possessed crack cocaine (Tr.I at 45).

The court found that the officers were justified in "pat[ting] down the individuals in the car if they felt they needed to for protective reasons, which they did . . . .[a]fter the actions of Mr. xxxxxx, not taking his hands out of his pocket and cooperating with the other officer" (Tr.I at 45-46).

The court found that the officer was justified in removing the drugs from Mr. xxxxxx's pocket under two theories: first, because the officer had probable cause to arrest once he felt the drugs, and second, because the officer immediately recognized the objects in the pocket as drugs, he could seize them under the "plain feel" doctrine. (Tr.II at 57-58). Finally, the court found that Mr. xxxxxx's statements were "taken validly and after an informed and voluntary waiver of [his] rights" (Tr.I at 47-48).

SUMMARY OF ARGUMENT

The officers' seizure of Mr. xxxxxx was not justified by reasonable suspicion where the anonymous tip was only partially corroborated, where Mr. xxxxxx did not match the description in the radio run, and where the officers did not observe him engaged in any suspicious or criminal conduct.

The frisk of Mr. xxxxxx was not justified where the officer's suspicion that he was armed and dangerous was based solely on his "hesitation" to respond to a command issued while he might have been asleep and his conduct in putting his hand in his pocket rather than on the car as ordered.

ARGUMENT

The Fourth Amendment prohibits law enforcement officers from seizing individuals, no matter how briefly, unless the officers have a "reasonable suspicion, based on objective facts that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51 (1979); Terry v. Ohio, 392 U.S. 1, 21 (1968).⁽³⁾ Reasonableness depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

An investigative stop of an individual by law enforcement may properly be based on an anonymous tip only if the information carries sufficient indicia of reliability. Alabama v. White, 496 U.S. 325 (1990). "Reasonable suspicion, like probable cause, is dependent both upon the content of the information possessed by the police and its degree of reliability." Id. at 330. If the tip "has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id.

The district court erred in ruling that there was adequate justification for the police officers to seize Mr. xxxxxx. The anonymous tip did not supply Officer Stewart with a sufficient quantity of articulable facts, the facts that were provided in the tip were not corroborated by what the officer observed, and the officer made no independent observations from which he could entertain a reasonable suspicion that Mr. xxxxxx was engaged in criminal activity.

The Supreme Court in Alabama v. White, 496 U.S. 325 (1990), addressed whether an anonymous telephone tip gave law enforcement reasonable suspicion to justify a Terry stop of the defendant. In White, an anonymous telephone caller told police that a named person would be leaving a particular address, at a particular time, and would be travelling to a second particular address. In addition, the caller described the color, make and model of the car, and particular damage to the car. Finally, the caller described the color and type of bag that the suspect would carry, and alleged that the bag would contain a particular amount of cocaine. The Supreme Court found that "[s]imply put, a tip such as this one, standing alone, would not 'warrant a man of reasonable caution in the belief' that [a stop] was appropriate." Id. at 329 (citations omitted). However, the stop in White was supported by reasonable suspicion because it did not stand alone; virtually every factual prediction was corroborated by the officers' own observations before the defendant was stopped.

As in White, the information provided by the anonymous tipster here, standing alone, was inadequate to support a finding of reasonable suspicion. The tipster reported only that four young persons were engaged in sexual and drug activity inside a pink car. The tip failed to specify the gender, race, clothing, height, weight, build, complexion, or any other identifying detail of these four people. And, except for the color, the tip did not provide any identifying feature of the car such as make, model, age, or any particular features.

Unlike in White, however, Officer Stewart's independent observations, made only twenty seconds after receiving the tipster's information, utterly failed to corroborate the tip. The tip described a "hot pink" car; the officer observed a red car. The tip described four people; the officer observed three people. The tip described adolescents; the officer observed two adults and one adolescent. The tip described four people inside a car; the officer observed two people inside and one outside a car. The tip described sexual activity in a car; the officer did not observe anything resembling sexual activity. The tip described drug activity in a car; the officer observed one boy in possession of drugs, two sleeping men, but no use or exchange of drugs. In sum, the tip was uncorroborated in every respect, except the unremarkable information that several people and cars were present in the parking lot. Thus, the tip was unreliable and did not provide the basis for a seizure. Alabama v. White, supra. See also United States v. Eaglin, 759 F.Supp. 25 (D.D.C. 1991) (seizure unlawful where radio run description was for man wearing green coat with light collar, defendant wore black coat with white collar, and where defendant's conduct was not suspicious); United States v. Jones, 657 F.Supp. 492 (W.D.Pa. 1987) (seizure unlawful where defendant did not match description in first tip and second tip carried no indicia of reliability and was general). Compare United States v. Gale, 952 F.2d 1412 (D.C.Cir.), cert. denied, 112 S.Ct. 1302 (1992) (stop justified by information from reliable informant providing name, detailed description of suspect, including clothing, suspect's destination and time of departure, all of which was corroborated by the police); United States v. McClinnhan, 660 F.2d 500, 502 (D.C.Cir. 1981) (Terry stop upheld because the tip was "corroborated in every single detail by [the] pre-stop surveillance").

Likewise, Officer Stewart's own observations of Mr. xxxxxx did not engender a reasonable suspicion that he was engaged in criminal conduct. Officer Stewart did not see Mr. xxxxxx do anything that could have been characterized as criminal or suspicious conduct or even any "unusual conduct." Terry, 392 U.S. at 30. A lawful Terry stop must be based on "something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended." Sibron v. New York, 392 U.S. 40, 73 (1968) (Harlan, J., concurring). Certainly there is nothing criminal, suspicious, or even unusual about sleeping in a car. See Hemsley v. United States, 547 A.2d 132 (D.C.App. 1988) (two people in high crime area sitting in car with the windows rolled up and a lot of smoke inside was not sufficiently suspicious to warrant Terry stop); Jones v. United States, 391 A.2d 1188 (D.C.App. 1978) (where police officers observed two men sitting in car in rear parking lot at 1:00 a.m. in high crime area, and passenger made a quick movement as though to hide something, Terry stop not justifiable).⁽⁴⁾

Thus, the only observation of suspicious or criminal activity concerned the juvenile who possessed drugs. Nothing, however, suggested that Mr. xxxxxx was engaged in a joint enterprise with the juvenile. Mr. xxxxxx was not seen to interact with the juvenile, and he was physically separated from the juvenile by being inside a closed car. While Mr. xxxxxx slept, the juvenile sat, alone, at the bumper of the car. It is as likely as not that Mr. xxxxxx was completely unaware of the presence of the juvenile. Under these circumstances, when they seized Mr. xxxxxx the police officers knew nothing about him except that he was sleeping in a car near which the police had reason to believe that a person possessed cocaine. The Fourth Amendment clearly requires more. United States v. Reid, No. 91-3304 (D.C.Cir. July 23, 1993) (recognizing the "danger of slippage into a guilt by association pattern whereby anyone seen near prospective drug activity becomes fair game for a stop and frisk); Sibron v. New York, 392 U.S. 40 (1968); Ybarra v. Illinois, 444 U.S. 85 (1979). Since the police lacked the requisite articulable suspicion to seize Mr. xxxxxx, the seizure was unlawful and the evidence recovered as a result of this illegality must be suppressed.

HE WAS ARMED AND DANGEROUS.

Even if it was reasonable to seize Mr. xxxxxx, it was not reasonable to subject him to a pat-down search because there were no specific and articulable facts which would cause a reasonably prudent person to believe that his or her safety or that of others was in danger. Terry v. Ohio, 392 U.S. at 27. Because the actual frisking of a person is an intrusion over and above a temporary seizure, it is permitted by the Constitution only under limited circumstances: where the officer "has reason to believe that he is dealing with an armed and dangerous individual." Id.

Under the circumstances here, a reasonably prudent person would not have believed Mr. xxxxxx to be "armed and dangerous." Id. at 27. He did not match the description provided in the tip of the people involved in "sexual activity and drugs" and, in his slumber he did not do or say anything reasonably leading to the conclusion that he was armed and dangerous. Focussing on Mr. xxxxxx's conduct in the seconds after he was awakened, however, the trial court erroneously ruled that "the actions of Mr. xxxxxx, not taking his hands out of his pocket and [not] cooperating with the other officer," gave Officer Stewart a reason to believe that he was armed and dangerous.

The court's reliance on Mr. xxxxxx's conduct in the seconds before the frisk to justify it was erroneous for two reasons: first, because Mr. xxxxxx's "hesitation" could not reasonably form the basis for a conclusion that he was armed and dangerous since Officer Stewart did not know whether the hesitation was voluntary or involuntary, and; second, because, in any event, this conduct would not lead an ordinary, prudent person to the conclusion that Mr. xxxxxx was armed and dangerous.

First, it was not reasonable for the officer to conclude that Mr. xxxxxx was armed and dangerous based upon his hesitation in getting out of the car since the officer did not know whether that hesitation was voluntary or involuntary.⁽⁵⁾ Officer Stewart did not know whether Mr. xxxxxx was even awake when the command to get out of the car was issued. A failure to heed a command that might not even have been heard surely cannot form the basis for the conclusion that a person is armed and dangerous. Even if Mr. xxxxxx's hesitation in complying with Officer Bonner's commands was voluntary, lack of cooperation with police officers is not grounds for suspecting that the person is armed and dangerous any more than it is grounds for suspecting that a person has committed or is about to commit a crime. See Florida v. Royer, 460 U.S. 491, 498 (1983) (a person's refusal to listen to or answer questions propounded by police officers does not provide reasonable suspicion); Sibron v. New York, 392 U.S. 40 (1968) (where defendant mumbled something and reached into his pocket in response to officer's question it was not reasonable to conclude that the defendant was armed and dangerous); Duhart v. United States, 589 A.2d 895 (D.C.App. 1991) (a refusal to listen, answer, or cooperate with the police does not furnish grounds for an investigatory stop).

Second, under the circumstances here, Mr. xxxxxx's conduct in putting his hand in his pocket would not lead an ordinary, prudent person to the conclusion that he was armed and dangerous. In Sibron v. New York, 392 U.S. 40 (1968), for example, the Supreme Court held that the frisk of Sibron was unconstitutional because the police officer did not have reasonable grounds to believe that Sibron was armed and dangerous. In that case, the police officer confronted Sibron by saying, "You know what I'm after." Id. at 45. In response, Sibron "mumbled something and reached into his pocket." Id. The officer thrust his own hand into Sibron's pocket and retrieved several packets of heroin. Neither Sibron's unresponsive mumbling nor his immediate reach into his pocket reasonably supported the conclusion that Sibron was armed and dangerous. Indeed, the Court rejected entirely the argument that the officer believed that Sibron "might have been" reaching for a gun, id. at 46 n. 4, because the context of the search made clear that the officer searched Sibron with the expectation of finding drugs. See also United States v. Page, 298 A.2d 233, 234 (D.C.App. 1972) (where defendant was a passenger in stopped car and moved his arm and shoulder as if to hide something or "put something away, get something" the frisk was not justified).

Particularly under the circumstances here, Mr. xxxxxx's conduct was entirely unremarkable. Mr. xxxxxx was dragged from his slumber and commanded to get out of the car and "assume the position" for a frisk. In this groggy state Mr. xxxxxx's failure to respond quickly or precisely to a demand to put his hand on the car instead of in his pocket is not significant. Only seconds before he had been asleep. And, the officer did not see any large lumps or bulges in his pocket. Thus, there was not sufficient reason to believe that Mr. xxxxxx was armed and dangerous simply because he put his hand in his pocket after he was ordered to put his hand on the car. Therefore, the frisk was illegal and the drugs recovered from Mr. xxxxxx's pocket must be suppressed as evidence in this case.

Finally, the statement Mr. xxxxxx made subsequent to his arrest also must be suppressed as the tainted fruit of his illegal search and seizure. Taylor v. Alabama, 457 U.S. 687 (1982); Dunaway v. New York, 442 U.S. 200, 220 (1979); Wong Sun v. United States, 371 U.S. 471 (1963).

CONCLUSION

Since Mr. xxxxxx's conviction rested on evidence that should have been suppressed because it was obtained by the police through an unlawful search and seizure, his conviction must be reversed and the indictment ordered dismissed.

Respectfully submitted,

A. J. Kramer

Federal Public Defender

_______________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant, and one copy of the Appendix for Appellant, have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001, this 15th day of September, 1993.

____________________________________

Sandra G. Roland

1. Numbers preceded by "Tr. I" refer to pages in the transcript of the suppression hearing held on October 1, 1992, which is set forth in full in the Appendix ("A"). Numbers preceded by "Tr. II" refer to pages in the transcript of the suppression hearing held on October 15, 1992, which is set forth in full in the Appendix.

2. The government did not call Officer Bonner as a witness.

3. A seizure has occurred when the words or actions of law enforcement officers would convey to a reasonable person that he or she is not free to leave. Florida v. Bostick, 111 S.Ct. 2382, 2389 (1991). The government conceded, and the trial court found, that Mr. xxxxxx was seized when Officer Bonner instructed him to get out of the car and put his hands on the car (Tr.I at 43-46; Tr.II at 56).

4. This Court in United States v. Thomas, 896 F.2d 589 (D.C. Cir. 1990), observed that "it is important to maintain as much commonality between this court and the D.C. courts as is possible," id. at 591, because "it would be unfair for the character or result of a litigation materially to differ because the suit had been brought in a federal court." Id. at 591, quoting Hanna v. Plumer, 380 U.S. 460, 467 (1965).

5. Also, it appears that Officer Bonner intended to frisk Mr. xxxxxx even before he allegedly hesitated as she ordered him to get out of the car and to "place his hands on the vehicle" (Tr.I at 13). Common sense dictates that the command to place one's hands on the car is the prelude to a frisk. A frisk has been described as "a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, . . . a far greater indignity [than a brief seizure]. Terry, supra at 17-18 (emphasis added).