D.C.Cir.: Drinking in public supported a stop

Officer saw defendant in what he “felt” was a high crime area, and defendant was carrying a styrofoam cup. Defendant was told to “come here” and he said he was “just drinking” and did not want to be hassled. The officer thus had reason to believe he was drinking in public, so the stop was valid. United States v. Jones, 584 F.3d 1083 (D.C. Cir. 2009):

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 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.