Disorderly Conduct

Disorderly conduct and resisting arrest have long been charges police use when nothing else is working. Both charges have definitely been overused and often used abusively by police as a harassing tactic. Not withstanding such abuses, the following case makes me wonder. What does it take to be legally disorderly?



D.C. police's search for drugs on D.C. teen is ruled illegal

By Mary Pat Flaherty
Washington Post Staff Writer
Friday, June 4, 2010; B01

A few days before Christmas 2005 at nearly midnight, a uniformed District police officer patrolling the Sursum Corda neighborhood in Northwest heard a 16-year-old on a corner call out his name and ask, "What's up?"

That was before the yelling.

And it was the yelling -- not the $974 in cash or the 24 baggies of crack cocaine that police later found on the teenager -- that landed Officer Robert Elliott and the juvenile in a rare but important case before the D.C. Court of Appeals.

The appeals court said Thursday that the teen had been searched unreasonably after a flawed arrest for disorderly conduct. The decision angered the city's police union and overturned a lower court's decision that concluded that the youth had been disorderly and had crack that he intended to distribute.

If prosecutors wanted to retry the teenager, identified in court papers as T.L., for drug possession, they "theoretically" were free to do so, the appeals court said. But prosecutors cannot use the crack they found hidden in T.L.'s pants because they had searched him illegally.

As described in the appeals court opinion:

Elliott was driving in the 1100 block of First Place NW in the neighborhood near Union Station on Dec. 22, 2005, when he saw men on a corner "notorious" for drive-by shootings and drug dealing.

T.L. called out, "Hey, Elliott, what's up?" The group dispersed, but T.L. remained as Elliott asked him, "You got any drugs or guns on [you]?"

T.L. answered, "Yo, Officer Elliott, you know me. I ain't got no drugs or guns. . . . Go ahead and search me."

Elliott did. He found two "wads" of cash totaling $974 in the teen's coat and pants pockets. Elliott seized the cash, telling T.L. that he was taking it because they were in a high drug-trafficking area and it was "a large amount of currency to have on your person."

If T.L. could produce a pay stub, Elliott told him, he "possibly" could get the cash back after it was processed at the police station.

T.L. began calling for his mother and yelling: "They're taking my money. I work at McDonald's. I got that money working for McDonald's."

Between 10 and 15 people came out of their townhouses to see what was happening.

To the officer, the gathering crowd was a potential threat. He testified that the growing number of people could be incited and harm bystanders, officers and the teen. Elliott said he considered it "very dangerous" to draw a crowd, "especially in Sursum Corda." Elliott repeatedly told T.L. to quiet down, and when he didn't, he arrested him for disorderly conduct. A search followed, and police found the bags of crack cocaine in T.L.'s pants, according to court papers.

In explaining the reason for the arrest, the officer and prosecutors pointed to a part of the disorderly conduct statute that covers noise or shouts inside or outside a building during the night that annoy or disturb a "considerable number" of people.

The appeals court rejected that argument, saying T.L. did not urge the peaceful crowd to interfere. T.L. might have been annoying to his neighbors, but "there is no evidence they were hostile or likely to become violent," so the rationale for his arrest was wrong. Because police had no reason to arrest him, the search that followed was illegal, it said.

T.L. was adjudicated as involved -- the juvenile court equivalent of guilty -- on the disorderly conduct and drug charges.

The Public Defender Service appealed. Julie Leighton, spokeswoman for the service, said the office does not comment on appeals cases.

The appeals court's decision outraged the union representing D.C. officers.

"At some point, police have to be allowed to be the police," said Kristopher Baumann, head of the labor committee for the local Fraternal Order of Police. "The District of Columbia is never going to get a handle on crime if appellate judges keep substituting their view of what is safe or unsafe in high-drug areas."

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/03/AR2010060304896.html