U.S. v. Whren, s. 94-3012

• Decision Date: 13 July 1995
• Docket Number: Nos. 94-3012,94-3017,s. 94-3012
• Citation: 53 F.3d 371,311 U.S. App. D.C. 300
• Parties: UNITED STATES of America, Appellee v. Michael A. WHREN, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 371

53 F.3d 371

311 U.S.App.D.C. 300

UNITED STATES of America, Appellee v. Michael A. WHREN, Appellant.

Nos. 94-3012, 94-3017.

United States Court of Appeals,District of Columbia Circuit.

Argued Feb. 13, 1995.

Decided May 12, 1995.

Rehearing and Suggestion for Rehearing

In Banc Denied July 13, 1995.

Appeals from the United States District Court for the District of Columbia, Nos. 93-cr00274, 93-cr00274-02.

Lisa D. Burget, Asst. Federal Public Defender, argued the cause for appellant Michael A. Whren. With her on the briefs was A.J. Kramer, Federal Public Defender.

G. Allen Dale argued the cause and filed the brief for appellant James L. Brown.

Margaret M. Lawton, Asst. U.S. Atty., argued the cause for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Frederick W. Yette and Thomas C. Black, Asst. U.S. Attys.

Before BUCKLEY, WILLIAMS and SENTELLE, Circuit Judges.

SENTELLE, Circuit Judge:

Appellants Michael Whren and James Lester Brown challenge their convictions for federal drug offenses, asserting, among other things, that the District Court erred in denying their motions to suppress physical evidence. Appellants contend that police officers obtained evidence as a result of an illegal search and seizure in violation of appellants' Fourth Amendment rights. Appellants also challenge their convictions and sentences for possession with intent to distribute cocaine base under 21 U.S.C. Sec. 841 (1988), arguing that section 841 is a lesser-included offense of their separate convictions for possession with intent to distribute cocaine base within 1000 feet of a school under 21 U.S.C. Sec. 860(a) (1988). While we reject appellants' Fourth Amendment challenges and otherwise affirm appellants' convictions, we remand for resentencing pursuant to the parties' agreement that section 841 is a lesser-included offense of a section 860(a) offense.

I. BACKGROUND

On July 8, 1993, a federal grand jury returned a four-count indictment against appellants Michael Whren and James Lester Brown, charging appellants with (1) possession with intent to distribute 50 grams or more of cocaine base, or crack, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(iii) (Count One); (2) possession with intent to distribute cocaine base within 1000 feet of a school in violation of 21 U.S.C. Sec. 860(a) (Count Two); (3) possession of a controlled substance (marijuana) in violation of 21 U.S.C. Sec. 844(a) (Count Three); and (4) possession of a controlled substance (phencyclidine ("PCP")) in violation of 21 U.S.C. Sec. 844(a) (Count Four). Following a pre-trial suppression hearing to consider appellants' claim that evidence was seized as a result of a police stop and seizure which violated appellants' Fourth Amendment rights, the District Court denied appellants' motions to suppress physical evidence. After a subsequent jury trial, the jury found appellants guilty on all four counts.

A. The Suppression Hearing

The District Court heard extensive evidence in considering appellants' Fourth Amendment claim. The government presented as witnesses the arresting officers, who testified about the events surrounding appellants' arrest. On the evening of June 10, 1993, District of Columbia police officers Efrain Soto, Jr., Homer Littlejohn and several other plainclothes vice officers were patrolling for drug activity in the area of Minnesota Avenue and Ely Place, in Southeast Washington, in two unmarked cars. Officers Soto and Littlejohn were in a car driven by another officer, Investigator Tony Howard.

Soto testified that as the officers turned left off of 37th Place onto Ely Place heading north, he noticed a dark colored Nissan Pathfinder with temporary tags at the stop sign on 37th Place. Soto observed the driver, later identified as Brown, looking down into the lap of the passenger, Whren. Soto testified that at least one car was stopped behind the Pathfinder. As the officers proceeded slowly onto 37th Place, Soto continued to watch the Pathfinder, which Soto testified remained stopped at the intersection for more than twenty seconds obstructing traffic behind it. Investigator Howard had already begun to make a U-turn to tail the Pathfinder when Soto instructed him to follow it. As the officers turned to tail the vehicle, appellants turned west onto Ely Place without signalling and, as Soto testified, "sped off quickly." Soto further testified that the Pathfinder proceeded at an "unreasonable speed."

The officers followed the Pathfinder onto Ely Place, until it stopped at the intersection of Ely Place and Minnesota Avenue, surrounded by several cars in front of it, two behind it, and several to its right. The officers pulled into the eastbound lane of traffic parallel to the Pathfinder on the driver's side. Officer Soto then immediately exited his vehicle and approached the driver's side of the Pathfinder, identifying himself as a police officer. Officer Littlejohn followed a few steps behind and to the right of Soto.

After noticing that appellants could not pull over because of parked cars to their right, Soto told appellant Brown to put the Pathfinder in park. As he was speaking, Soto noticed that appellant Whren was holding a large clear plastic bag of what the officer suspected to be cocaine base in each hand. Soto yelled "C.S.A." to notify the other officers that he had observed a Controlled Substances Act violation. He testified that, as he reached for the driver's side door, he heard Whren yell "pull off, pull off," and observed Whren pull the cover off of a power window control panel in the passenger door and put one of the large bags into the hidden compartment therein. Soto opened the door, dove across Brown and grabbed the other bag from Whren's left hand. Officer Littlejohn pinned Brown to the back of the driver's seat so that he could not move.

Multiple officers then placed appellants under arrest and searched the Pathfinder at the scene. The officers recovered two tinfoils containing marijuana laced with PCP, a bag of chunky white rocks and a large white rock of crack cocaine from the hidden compartment on the passenger side door, numerous unused ziplock bags, a portable phone and personal papers.

Defense attorneys pressed the arresting officers on their reasons for making the stop. Soto stated that the driver of the vehicle was "not paying full time and attention to his driving." Soto testified that he did not intend to issue a ticket to the driver for stopping too long at the stop sign, but he wished to stop the Pathfinder to inquire why it was obstructing traffic and why it sped off without signalling in a school area. He testified that the decision to stop the Pathfinder was not based upon the "racial profile" of the appellants, but rather on the actions of the driver. Officer Littlejohn's testimony differed only slightly from Soto's with respect to the hand from which Soto seized the drugs, but otherwise confirmed Soto's account.

B. The District Court's Suppression Ruling

After hearing the evidence and appellants' argument that the traffic stop was pretextual and thus violated the Fourth Amendment, the District Court denied appellants' motions to suppress the physical evidence. Although the court noted some minor discrepancies between testimony by Littlejohn and Soto, it noted that

the one thing that was not controverted ... is the facts surrounding the stop. There may be different ways in which one can interpret it but, truly, the facts of the stop were not controverted. There was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop. It may not be what some of us believe should be done, or when it should be done, or how it should be done, but the facts stand uncontroverted, and the court is going to accept the testimony of Officer Soto.

The court thus concluded that "the government has demonstrated through the evidence presented that the police conduct was appropriate and, therefore, there is no basis to suppress the evidence."

C. The Convictions and the Appeal

Following the court's pre-trial suppression ruling, trial proceeded, and appellants were convicted on all four counts. On January 26, 1994, appellant Whren was sentenced to 168 months incarceration and five years supervised release on count one, 168 months incarceration and ten years supervised release on count two, one year imprisonment and one year supervised release on each of counts three and four. All terms were to be served concurrently. Whren was also assessed a fine of $8,800 on each count, all fines to be concurrent with count two, and a special assessment of $150. On February 9, 1994, appellant Brown was sentenced to 168 months incarceration and ten years supervised release on count one, 168 months incarceration and five years supervised release on count two, one year imprisonment and one year supervised release on each of counts three and four, all terms to be served concurrently, and a $150 special assessment.

Whren and Brown appeal their convictions and sentences, raising several challenges. Although we have accorded each alleged error full consideration, we believe several do not merit separate discussion. For those challenges to appellants' convictions not discussed specifically herein, we reject appellants' arguments. We thus turn our attention to the two arguments we believe merit separate discussion: (1) that the District Court erred in denying their motions for suppression of physical evidence under the Fourth Amendment; and (2) that count one of appellants' indictment is a lesser-included offense of count two.

II. DISCUSSION

Appellants contend that the District Court erred in denying their motions to suppress physical evidence seized as a result of the traffic stop on June 10, 1993. They argue that the police officers used the alleged traffic violations as a pretext for what in actuality was a search for drugs without probable cause;...