Kim HOLSTON, Appellant, v. UNITED STATES, Appellee.
No. 89-CF-1275.
District of Columbia Court of Appeals.
Submitted March 12, 1991. Decided Nov. 15, 1993.
633 A.2d 378
Before ROGERS, Chief Judge, and TERRY and WAGNER, Associate Judges. WAGNER, Associate Judge.
Furthermore, a decision as to whether and how action might properly be taken in a situation such as that presented here may be influenced by the nature of the witnesses and their Jencks testimony. Here, as indicated, the testimony in the jury‘s presence dealt in the main with generalities. More importantly, the witnesses themselves and their credibility were not crucial in the trial. Only one of the witnesses, Proctor, identified appellant in court. However, Proctor had been impeached to a significant degree already in that she had made an incorrect identification at a photo array just a few months after the incident. Gaither identified appellant in a profile photograph, but the accuracy of her identification was also somewhat tenuous because she saw the shooter at the scene from only “a slight side view.” Neither Pendleton nor Gainey ever correctly identified appellant as the shooter. The key testimony supporting the conviction was that of two other witnesses, Jackson, the intended victim, and Adams, a bystander who viewed the incident and squarely identified appellant as the gunman. Neither witness‘s testimony was tainted with the inaccuracies concerning prior statements.
We are cognizant of the potential difficulties presented in the faithful fulfillment of the Jencks requirement where defense counsel elect, as is their right, to cross-examine about the possibility of the existence of statements covered by the Act other than those already furnished by the prosecutor. As previously stated, this appears to be the first appellate challenge of its type of which we are aware. We do not now attempt to lay out precise courses of conduct to be adhered to in the myriad of possible factual situations that may arise at trial; administration of the Jencks Act is, we repeat, “entrusted to the ‘good sense and experience’ of the trial judges.” Augenblick, supra, 393 U.S. at 355, 89 S.Ct. at 533. We do observe, however, that in general, where feasible and appropriate, a more thorough pretrial discussion by the prosecutor with prospective government witnesses concerning the existence of possible Jencks material might significantly alleviate the type of situation which arose here, due apparently in good part to some confusion and uncertainty of the witnesses as to the relevant facts. In sum, within our “appropriately limited review,” id., we conclude that on the record here, the trial court did not abuse its discretion in handling the situation before it in light of the arguments and proposals presented to it.
Affirmed.
Joseph H. Green, Jr., Washington, DC, was on the brief for appellant.
Appellant, Kim Holston, was found guilty by a jury of one count of unlawful possession with intent to distribute a controlled substance (cocaine), in violation of
I.
Lieutenant Don Pope of the Metropolitan Police Department was the only witness at the suppression hearing. He testified that at approximately 4:45 p.m. on the afternoon of July 30, 1988, while on patrol with Officer Ann Scott, he monitored a radio dispatch for two scout cars to investigate an anonymous tip about a man with a gun reported to be holding a woman at bay in the 4400 block of Pond Street, N.E. behind a bronze BMW for which the dispatcher provided the license plate number. According to Lt. Pope, the information was called into the communications center by a concerned citizen. Lt. Pope thought, but was not sure, that the dispatcher also said the gunman was a Black male. He recalled no physical or clothing description given for the man or the woman. Lt. Pope was the first officer to arrive on the scene, fifteen seconds after the broadcast.
Lt. Pope spotted appellant standing behind a BMW which matched in all respects the description of the car given in the radio run, including the tag number. Appellant was leaning into the trunk of the car as if putting something in or taking something out. Appellant was the only person the lieutenant saw in the area at the time. Appellant glanced back and saw the marked police car approaching. Lt. Pope saw appellant‘s eyes widen before appellant slammed the trunk shut and started walking away.2 Lt. Pope thought that appellant was probably the man described in the radio run. Therefore, Lt. Pope stopped his car, got out with his gun drawn, and stopped and frisked appellant. Lt. Pope found no weapon on appellant, and he asked appellant to whom the BMW belonged. Appellant responded that it was his uncle‘s car. The police looked around for the woman involved, but they could not locate her. Lt. Pope then took the car keys from appellant‘s pocket because he thought he had reason to believe that appellant might have placed the gun in the trunk of the car.
When Lt. Pope opened the trunk, he saw several packets of what appeared to be cocaine lying around a large black leather pouch out of which were bulging plastic containers of white powder commonly used to package cocaine. The police seized from the car trunk seventy packets of cocaine and a large sum of money. At no time up to and during the search of the trunk did Lt. Pope tell appellant that he was under arrest; however, he testified that appellant was not free to leave. Later in testimony, Lt. Pope recounted that at the time he approached appellant with his gun drawn, he saw a “female in the general area, except that she was not by the car.” The lieutenant estimated that she was “20 or 30 yards in front of the car.” Only after Lt. Pope opened the trunk did a female come near the car.3
The trial court credited Lt. Pope‘s testimony and made factual findings consistent with
Appellant argues that the police lacked the requisite articulable suspicion to conduct a Terry stop because the anonymous tip was unreliable and uncorroborated in important details. Alternatively, appellant argues that his initial detention was in fact a warrantless arrest without probable cause. Specifically, appellant contends that the citizen who reported the crime was not identified and that the description of the person reportedly holding the woman at bay with a gun was too general. Appellant also argues that the search of the trunk was beyond the scope of a Terry based search for weapons because it was motivated solely by a search for illegal drugs. It is the government‘s position that the anonymous tip was sufficiently corroborated to justify a Terry stop by the police lieutenant‘s on-the-scene observations. The government further contends that the seizure of appellant‘s keys and subsequent search of the trunk were lawful based either on concern for police safety during the Terry stop4 or on probable cause under the automobile exception to the warrant requirement.
II.
We consider first whether the trial court correctly ruled that the trunk search was justified as part of an otherwise valid Terry stop. Preliminarily, we hold that the trial court did not err in concluding that the initial stop was justified under Terry principles. It is well established, at least since the Supreme Court‘s decision in Terry, that the police may stop and briefly detain a person for further investigation without probable cause to arrest provided they have an articulable suspicion based on specific facts and reasonable inferences that the individual is engaged in criminal conduct. Peay v. United States, 597 A.2d 1318, 1319-20 (D.C.1991) (en banc); Brown v. United States, 590 A.2d 1008, 1013 (D.C.1991). The “‘minimal level of objective justification‘” required “is considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Peay, 597 A.2d at 1320; Gomez v. United States, 597 A.2d 884, 889 (D.C.1991). When the circumstances warrant, the police may frisk the suspect or conduct a limited search for weapons of areas within the reach of the suspect for the protection of the officers. United States v. Johnson, 540 A.2d 1090, 1094-95 (D.C.1988); United States v. Mason, 450 A.2d 464, 466 (D.C.1982). The requisite articulable suspicion for the stop can be furnished by an anonymous tip, and the police may stop a suspect after promptly corroborating innocent details of the tip without first observing illegal conduct. Johnson, 540 A.2d at 1094; see also Gomez, 597 A.2d at 891 n. 17.
In Johnson, we found that the police detective had an articulable suspicion for a Terry stop where he learned through an anonymous tip that unidentified suspects were selling weapons out of an orange Volkswagen at a specific location. We concluded that the tip was sufficiently corroborated when police spotted the car within fifteen seconds after the broadcast at the reported location. Johnson, supra, 540 A.2d at 1091-
the search of the passenger compartment of the automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
463 U.S. at 1049, 103 S.Ct. at 3481 (quoting Terry, supra note 1, 392 U.S. at 21, 88 S.Ct. at 1880).
In Gomez, we also upheld a Terry stop initiated as the result of an anonymous tip which merely conveyed that unidentified persons were dealing drugs out of a vehicle in a certain alley in the District late on a December night. Gomez, supra, 597 A.2d at 889, 891-92. Among the factors in Gomez providing “significant corroboration” of the anonymous tip were the brief time lapse between the tip and the police officer‘s arrival at the location (four minutes), the presence of two cars side by side in the dark alley, the lateness of the hour, and the officers’ knowledge that the area was a known high drug area. Id. at 889.
Similarly, in this case there was sufficient corroboration of the tip to provide Lt. Pope with the ” ‘minimal level of objective justification,’ in the context of [the] anonymous tip [to] warrant a brief detention of [appellant] so that the police could investigate further.” See Gomez, supra, 597 A.2d at 890 (quoting Sokolow, supra, 490 U.S. at 7, 109 S.Ct. at 1585). Here the tip provided more specific details than were present in Gomez, including the sex, and possibly the race, of the suspect and the make, color and license plate number of the automobile near which the suspect was reported to be located. As in Johnson, the tip included a report that the suspect was armed, a circumstance which supports the reasonableness of the initial stop and pat-down. 540 A.2d at 1091-92. Lt. Pope arrived at the location of the reported crime within fifteen seconds of the radio run and observed a man bending over into the trunk of an automobile which matched precisely the description given. See Gomez, 597 A.2d at 890 (officers’ arrival on scene immediately after radio run a consideration in determining articulable suspicion).
When the police arrived, appellant, who appeared to be putting something in the trunk, reacted with a startled look, slammed the trunk down and walked away. These actions must also be factored into the totality of circumstances in assessing the reasonableness of the police officer‘s conduct. See Brown, supra, 590 A.2d at 1020 (“where a suspect reacts in an unusual way to police investigation short of detention, this may properly be included in the calculus” in determining probable cause or articulable suspicion). In Brown, we concluded that Brown‘s “attempt to exercise his right not to participate in an encounter with [the police]” was not of sufficient consequence to bolster significantly a showing of probable cause or articulable suspicion on the particular facts of the case. 590 A.2d at 1019-20. However, we acknowledged in Brown that the suspect‘s reaction may have some significance. Id. In Cauthen v. United States, 592 A.2d 1021 (D.C.1991), we recognized that “independent police observation of suspicious conduct can offer confirmatory support for a tip that oth-
III.
Whether the police could properly search the trunk of the vehicle as a part of an otherwise valid Terry stop and whether the trunk search was justified on any other grounds present more difficult questions.7 On appeal, the government contends that the search of the trunk was supported by probable cause. Alternatively, the government argues that sufficient exigent circumstances existed to justify a warrantless search of the trunk based on less than probable cause. We consider first whether the search was justified absent a basis for finding probable cause.
A.
It is the government‘s position that the search was justified based on the exigent danger to the officers and the public attendant to the presence of weapons. We understand the government‘s argument to be no more than that Lt. Pope carried out a valid contemporaneous search of the trunk of the car as part of a valid Terry stop. The government relies on Mason and United States v. McClinnhan, 212 U.S.App.D.C. 368, 660 F.2d 500 (1981). These cases apply traditional Fourth Amendment considerations of reasonableness within the Terry line of cases. They recognize that the exigency of the immediate need to protect the officers or the community may justify a limited search for weapons based on less than probable cause. See Mason, supra, 450 A.2d at 466; see also McClinnhan, 212 U.S.App.D.C. at 371, 660 F.2d at 503.
Mason involved an anonymous tip that a man standing on a street corner was carrying a gun in his tote bag. 450 A.2d at 465. McClinnhan involved a report that the suspect, for whom a general physical description and specific clothing description were given, was walking down a certain street with a sawed-off shotgun in a black briefcase. 212 U.S.App.D.C. at 369, 660 F.2d at 501. Neither Mason or McClinnhan supports the government‘s argument that concern for police safety justified the search under the circumstances presented here. In both cases, appellants were holding the containers which the tipster said held a weapon, and the containers remained within reach of the suspects until the officers seized them. Here, appellant was already walking away from a parked automobile when Lt. Pope stopped him. There was no evidence or factual finding that the officers anticipated, or that appellant‘s actions indicated, appellant‘s intention or effort to return to the car trunk and retrieve a weapon. See United States v. Wilkerson, 194 U.S.App.D.C. 393, 397, 598 F.2d 621, 625 (1978).
The scope of a weapons frisk where a valid Terry stop has been made is “strictly
Nor does the D.C. Circuit‘s opinion in Wilkerson, cited by both parties, support the government‘s position. See 194 U.S.App.D.C. at 397, 598 F.2d at 625. In Wilkerson, police searched a coat in plain view on the front seat of a car lawfully stopped for a traffic violation before they arrested or patted down the car‘s occupants. While police awaited the results of a check on the vehicle‘s ownership, however, they noticed the driver‘s bizarre behavior which led them to believe reasonably that some sort of criminal activity was afoot. Therefore, the Wilkerson court held that by the time one of the officers patted down the coat, which was in plain view, and found a gun under it, the police had the requisite probable cause to search the passenger compartment of the car. Id., 598 F.2d at 625. In this case, unlike Wilkerson, the police learned nothing new during their stop of appellant except that he was not carrying a gun. For all the foregoing reasons, we reject the government‘s argument that the search of the trunk falls within the exigent danger exception as defined by applicable case law.
B.
The government also relies on Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and the series of cases following it to support its probable cause argument. These cases involve the automobile exception to the warrant requirement. However, “the exception to the warrant requirement established in Carroll ... applies only to searches of vehicles that are supported by probable cause.” Ross, supra note 4, 456 U.S. at 809, 102 S.Ct. at 2164.9 In Ross, the Supreme Court held that
the search of appellant‘s locked vehicle after he was confronted by the police some distance away was invalid. See 632 A.2d at 388; see also United States v. Fafowora, 275 U.S.App.D.C. 141, 142-43, 865 F.2d 360, 361-62, cert. denied, 493 U.S. 829, 110 S.Ct. 98, 107 L.Ed.2d 62 (1989).
Id., 456 U.S. at 825, 102 S.Ct. at 2173. The Supreme Court upheld in Ross the warrantless search of containers in the trunk of an automobile which the police had searched incident to a lawful arrest.
Ross’ arrest occurred after the police received information from a proven reliable informer that he had witnessed a person known as “Bandit,” for whom he gave a detailed description, selling drugs from the trunk of a car, also described with particularity, at a specific address. Ross, supra note 4, 456 U.S. at 800, 102 S.Ct. at 2160. The tipster also told the police that Bandit had additional narcotics in the trunk. Id. The police ascertained that the car was registered to Ross, who used the nickname “Bandit.” The officers saw Ross, who matched the description, driving the vehicle near the address given by the informant, and stopped the car. They asked him to step out and discovered a bullet on the car‘s front seat. The officers searched the glove compartment, found a gun, and arrested Ross. Only then did the detective take Ross’ keys, open the trunk of the car, and find narcotics in a closed bag. The police also thoroughly searched the car at the police station and found in the trunk a pouch containing a large amount of cash. In upholding the search, the court defined the allowable scope of the search, not by the nature of the container in which contraband was hidden, but rather by the object of the search and the places where there is probable cause to believe the contraband will be found. Id. at 824, 102 S.Ct. at 2172. In contrast, in the case before this court, probable cause never arose.
Carroll and the cases following it establish that the police may conduct a warrantless search of any part of a lawfully stopped vehicle, including its trunk provided that (1) they have probable cause to believe that it contains contraband or other evidence subject to seizure and (2) exigent circumstances require search and seizure. Ross, supra note 4, 456 U.S. at 825, 102 S.Ct. at 2173; see Cady v. Dombrowski, 413 U.S. 433, 448, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973); see also Galloway v. United States, 326 A.2d 803, 805 (D.C.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975). The probable cause determination must be based on facts that would justify the issuance of a warrant, not merely upon the subjective good faith of the officer. Ross, 456 U.S. at 808, 102 S.Ct. at 2164. In the context of issuance of a warrant, the Supreme Court has defined probable cause as “a fair probability that contraband or evidence of a crime [would] be in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982). Of course, “probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232, 103 S.Ct. at 2329.
The facts here are distinguishable from those in Johnson, Ross, and Carroll in various important respects which render a probable cause finding unsupportable. Here, the tip provided no specific description of the person accused of illegal behavior. While our case law holds that this is not dispositive for purposes of Terry stops, probable cause requires more than is required for a finding of articulable suspicion. See White, supra note 6, 496 U.S. at 330, 110 S.Ct. at 2416. There was no information from the tipster that the vehicle itself contained contraband or that the vehicle was even associated with the suspect except to position him and his victim in proximity to the particular vehicle. There was no report that the suspect owned, drove, or had been in the car at any time. In contrast, in Carroll, the two suspects were reported to be carrying the contraband across state lines in a specific vehicle, and
automobile contained contraband, the court found the seizure to be lawful, recognizing the reasonableness of the immediate warrantless search of a vehicle for contraband. Id. at 162, 45 S.Ct. at 288.
Nevertheless, the government argues that two facts within the officer‘s knowledge, along with the other circumstances, provided probable cause to search the trunk here. First, the trial court found from the evidence that appellant was startled when he saw the police and slammed the car trunk down and walked away. Second, appellant told Lt. Pope that the car belonged to his uncle, which the government argues could reasonably lead the officer to believe that appellant was trying to disassociate himself from the car because it held contraband. The first factor, closing the trunk and walking away, was not sufficient to establish probable cause. The government seeks to take too broad a leap in suggesting that the logical inference from appellant‘s disclosure that his uncle owned the car in response to police questioning was concealment. It may very well have been simply a truthful response. As appellant well knew, the police had already seen him access the trunk of the car. We do not regard these circumstances as providing the police with probable cause to arrest appellant. It follows that they do not provide a separate basis for probable cause to search the trunk under the automobile exception. See Ross, supra note 4, 456 U.S. at 825, 102 S.Ct. at 2173.
What the police learned after alighting from their car to investigate was that the appellant, who was leaning into the trunk of the car, did not possess a weapon which, according to the anonymous tipster, the man involved in the incident possessed. The tipster provided no description for the man, except perhaps that he was Black, and he was standing behind the car. See Brown, supra, 590 A.2d at 1017 (“Descriptions applicable to large numbers of people will not support a finding of probable cause.“) The trial court made a specific finding that the police did not see in the general vicinity the woman who was alleged to have been held at bay with a gun.10 Considering the totality of circumstances here, we conclude that while the police had articulable suspicion to stop to investigate, they could not meet the higher standard required for probable cause to search the trunk.
Although the Supreme Court recognized in Ross that it had upheld warrantless searches of automobile trunks on less than probable cause,11 the cases cited by the court involve situations where the government had lawful
It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time had no right, even for their own protection to search it. It is no answer to say that the police could have obtained a search warrant, for “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.”
Id. at 61-62, 87 S.Ct. at 791; United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950).
In Cady, the Supreme Court upheld a search of a disabled automobile that police had towed to a garage after the driver was arrested for drunk driving and hospitalized. 413 U.S. at 436, 93 S.Ct. at 2525. The search was conducted pursuant to standard police department procedure. The police sought to retrieve a gun which they reasonably believed to be in the trunk of the vehicle in order to protect the public from the possibility the gun would fall into the wrong hands. Id. at 443, 93 S.Ct. at 2529.12 The court found that the search was reasonable within the meaning of the Fourth and Fourteenth Amendments. Id. at 448, 93 S.Ct. at 2531. In South Dakota v. Opperman, 428 U.S. 364, 375-76, 96 S.Ct. 3092, 3100-01, 49 L.Ed.2d 1000 (1976), the Court upheld as reasonable a routine inventory search by the police of an automobile lawfully impounded for multiple parking violations.
This case does not fall within any of the categories involved in the foregoing cases. The search of the trunk of the car was not shown to be reasonably connected with the gun incident which prompted the police to investigate. Nor was the search conducted pursuant to any routine inventory search. Further, it did not occur following or incident to an arrest. Therefore, we are not persuaded that this line of cases supports the government‘s contention that Lt. Pope possessed any valid grounds for the search based on them.
IV.
The police search of the trunk was not justifiable under any recognized exceptions to the warrant requirement. Accordingly, we conclude that the trial court erred in denying the motion to suppress. Therefore, we reverse and remand for a new trial.
Reversed and remanded.
TERRY, Associate Judge, dissenting:
With all respect, I cannot join in the court‘s opinion. Considering all the circumstances, I think the police were justified in going into the trunk of the car. Four facts lead me to this conclusion: (1) the extremely short interval—fifteen seconds—between the radio broadcast and the arrival of Lieutenant Pope; (2) the precise match, including the exact license number, between the broadcast description of the car and the car that appellant was standing next to (there can be no doubt whatever that this was the very same car mentioned in the broadcast); (3) the fact that appellant, when he saw the police, “reacted with a startled look, slammed the trunk down and walked away,” ante at 382; and, most importantly, (4) the fact that a gun was involved.
On this record I think the police had at least an articulable suspicion that the gun was in the trunk. Indeed, in light of Galloway v. United States, 326 A.2d 803 (D.C.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975), I might be inclined to say they had probable cause. But even assuming that the facts do not quite add up to probable cause, I think there was
I also find it difficult to distinguish this case from Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), in which the Supreme Court sustained the warrantless search of a car trunk for a gun because of the police “concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle.” Id. at 447, 93 S.Ct. at 2531. Because the trunk, “which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals,” the Court held “that the search was not ‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments.” Id. at 448, 93 S.Ct. at 2531. Indeed, the facts in this case are probably stronger than in Cady, since the police here had greater reason to believe the gun was in the trunk than they did in Cady. See also Sturdivant v. United States, 551 A.2d 1338, 1342 (D.C.1988), cert. denied, 493 U.S. 956, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989) (“the presence of [firearms] creates a special exigency because of their potential threat to human life“); United States v. Allison, 205 U.S.App.D.C. 270, 272, 639 F.2d 792, 794 (1980) (“The presence of the gun made the situation more pressing and the emergency more critical“).
Since my colleagues view the case differently, I respectfully dissent.
Notes
[w]arrantless searches of automobiles have been upheld in a variety of factual contexts quite different from that presented in Carroll. Cf. Cooper v. California, 386 U.S. 58 [87 S.Ct. 788, 17 L.Ed.2d 730 (1967)]; Cady v. Dombrowski, 413 U.S. 433 [93 S.Ct. 2523]; South Dakota v. Opperman, 428 U.S. 364 [96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)]. Many of these searches do not require a showing of probable cause ... We are not called upon to—and do not—consider in this case the scope of the warrantless search that is permitted in those cases.456 U.S. at 809 n. 11, 102 S.Ct. at 2165 n. 11; see also United States v. Johns, 469 U.S. 478, 484, 105 S.Ct. 881, 885, 83 L.Ed.2d 890 (1985); Spinner v. United States, 618 A.2d 176, 179 (D.C.1992).