952 F.2d 1412 (D.C. Cir. 1992), 91-3038, U.S. v. Gale

Docket Nº:91-3038.
Citation:952 F.2d 1412
Party Name:UNITED STATES of America v. Theodore K. GALE, Appellant.
Case Date:January 14, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1412

952 F.2d 1412 (D.C. Cir. 1992)



Theodore K. GALE, Appellant.

No. 91-3038.

United States Court of Appeals, District of Columbia Circuit.

January 14, 1992

Certiorari Denied March 9, 1992.

Argued Nov. 26, 1991.

See 112 S.Ct. 1302.

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Appeal from the United States District Court for the District of Columbia (Criminal No. 90-00285-01).

Jeffrey S. Jacobovitz, Washington, D.C. (appointed by the Court), for appellant.

Albert A. Herring, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before WALD, SILBERMAN and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellant Theodore K. Gale was indicted on charges of possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Claiming violations of his Fourth, Fifth and Sixth Amendment rights, appellant moved to suppress both the drugs seized and the statements he made to the police at the time of his arrest. The district court granted appellant's motion to suppress three of his four incriminating statements, but refused to suppress the drugs. Appellant pled guilty to the charged offenses, reserving his right to appeal the district court's suppression ruling. 1 We now affirm the district court.


    The government's evidence showed that on June 7, 1990, at approximately 6:10 pm, Officer Gregory Stroud of the Metropolitan Police Department received a tip from a reliable informant that appellant was in the 600 block of 50th Street, S.E. in possession of an ounce of cocaine. The informant identified appellant by the name of "Teddy"; gave a detailed description of his person, the clothes he was wearing and the car that he drove; and said that he would be leaving his current location by car. Approximately fifteen minutes later, Officer Stroud saw the man that matched the description walk to the described car, enter the car, and proceed to drive away.

    Officer Stroud radioed a request to a uniformed officer in a marked patrol car to stop appellant's car. The uniformed officer activated his emergency lights, pulled appellant over, and parked his car in front of appellant's car. Officer Stroud, approaching the scene in his unmarked police car, parked behind appellant's car. Officer Stroud then approached appellant's car from the driver's side. His partner approached from the passenger side. Both men were dressed in plain clothes and neither displayed a weapon.

    Officer Stroud asked to see appellant's driver's license, at which time he noticed that the name appearing on the license, "Theodore," corresponded with the informant's statement that appellant's name was "Teddy." Officer Stroud then asked appellant to step out of the car. While

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    appellant was still in the car, Officer Stroud asked him if he had any drugs. Appellant said that he did (appellant's "first statement") and removed a bag that contained ten packets of crack cocaine from an area between the front seats of his car. Officer Stroud then ordered appellant out of the car and placed him under arrest. Before searching him, Officer Stroud asked appellant if he had any additional drugs. Appellant responded that he had drugs in his crotch (appellant's "second statement") and in the trunk of the car (appellant's "third statement"). Appellant assisted Officer Stroud in removing from his crotch a plastic bag containing crack cocaine and directed Officer Stroud to a pair of rubber gloves in the trunk that contained crack cocaine.

    Appellant was then taken to the police station. Approximately 50 minutes later, Officer Stroud removed appellant from his holding cell and took him to an interview room. Officer Stroud then informed appellant of his Miranda rights. Appellant waived his rights and stated that he had intended to sell the drugs in order to earn money before he began an intensified probation stemming from a prior narcotics conviction (appellant's "fourth statement").

    The district court held two suppression hearings--the second after appellant had retained new counsel--to consider appellant's motions to suppress both the drugs seized and appellant's four statements. At the second suppression hearing, the district court first found that the police had a reasonable and articulable suspicion, based on the informant's tip, to detain appellant for an investigatory stop. The court further found that even though Officer Stroud did not arrest appellant until after he had made his first statement, Officer Stroud had probable cause to arrest upon confirming that the name on appellant's license was consistent with the informant's statement as to appellant's nickname, because at that point "every innocent aspect of the tip in this instance on this record was corroborated." Transcript of Motions Hearing ("Tr. II") (D.D.C. Dec. 12, 1990) at 30. The court finally found that because the police could have lawfully arrested appellant at that time and the drugs would then have been discovered either in a search incident to his arrest or in an inventory search, they were admissible under the inevitable discovery doctrine without regard to any statements made by appellant. The court therefore denied appellant's motion to suppress the drugs found on his person and in his car.

    The court also ruled that appellant's first three statements were made as a result of a custodial interrogation and were therefore subject to the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because the police did not inform appellant of his Miranda rights until just before he made his fourth statement, the court found all three statements inadmissible in the government's case-in-chief. 2 The court refused to exclude appellant's fourth statement, however, finding that the first three statements were not coerced and that therefore the fourth statement was admissible under Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

  2. AN...

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