959 F.2d 1102 (D.C. Cir. 1992), 91-3027, U.S. v. Jones

Docket Nº:91-3027.
Citation:959 F.2d 1102
Party Name:UNITED STATES of America v. James R. JONES, Appellant.
Case Date:April 09, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1102

959 F.2d 1102 (D.C. Cir. 1992)

UNITED STATES of America

v.

James R. JONES, Appellant.

No. 91-3027.

United States Court of Appeals, District of Columbia Circuit.

April 9, 1992

Editorial Note:

Unreported opinions cannot be cited or used in unrelated cases under D.C. Circuit Local Rule 11(c) unless being used to stress its preclusive effect rather than its precedential value.

Rehearing and Rehearing En Banc Denied June 15, 1992.

Before BUCKLEY, D.H. GINSBURG and RANDOLPH, Circuit Judges.

JUDGMENT

PER CURIAM

This case was considered on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel. The court has determined that the issues presented occasion no need for a published opinion. See D.C.Cir.Rule 14(c). For the reasons stated in the accompanying memorandum, it is

ORDERED AND ADJUDGED by this court that the judgment of the district court be affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

MEMORANDUM

Sometime after 9:00 a.m. on September 6, 1989, a teacher telephoned a District of Columbia police substation to report that two men were in a park at Second Street and South Carolina Avenue, Southeast, and that they had a safe and were dividing up a large sum of money. A lookout was broadcast and Officer Ronald Thomas of the Metropolitan Police Department ("MPD") sent to investigate. After the citizen had identified two men as the subjects, Officer Thomas trailed them in his vehicle. He radioed their descriptions and asked for assistance.

Officers Fred Johnson and Arthur Butts, Jr., heard the transmissions on their car radio and observed two men who matched the descriptions walking towards an area known for its drug activity. When the officers asked them to "come here," both appeared ready to run. As the officers approached, one man fled with Officer Butts in pursuit. Officer Johnson grabbed the other, James R. Jones, and led him to the car to await assistance. In the meantime, Officer Butts caught Jones's companion, a juvenile, after seeing him discard a bag that contained 12.44 grams of 88% pure cocaine base.

When help arrived, Officer Johnson pat-frisked Jones for weapons and sat him on the curb. A short time later, the officers observed a large zip-lock bag on the ground one or two feet from Jones. It contained what proved to be 18.9 grams of 84% pure cocaine base. Officer Johnson would later testify that the bag was not present when he placed Jones on the curb. Officer Johnson picked up the bag and arrested Jones. He then searched Jones and recovered approximately $1,580 from one of his pockets.

At a suppression hearing, the district court held that there was "nothing constitutionally impermissible" with respect to the arrest and denied Jones's motion to suppress.

*

At trial, the prosecution offered the expert testimony of Detective Joseph Brenner, a twenty-three-year veteran of the MPD and member of the narcotics branch. He stated that the amount of drugs seized was inconsistent with personal use and consistent with distribution. He also testified that razor blades found in the safe, which had been abandoned in the park, were probably used to cut the crack into smaller pieces, and that it was likely that the safe was used to store the drugs and money.

A jury convicted Jones of all charges, and he was sentenced to 97 months, the lowest sentence in the appropriate federal sentencing guideline range. This appeal followed.

ANALYSIS

  1. Failure to Suppress the Cocaine and Money

    Jones first argues that Officer Thomas unlawfully seized him when he grabbed him and led him to the patrol car. Whether reasonable suspicion or probable cause exists to justify a seizure is a mixed question of fact and law. United States v. Campbell, 843 F.2d 1089, 1092 (8th Cir.1988). Therefore, "[o]n appeal, the district court's conclusions of law are not binding on this court; we are free to draw our own legal conclusions.... As to factual matters, however, we must abide by the district court's findings unless they are clearly erroneous." United States v. Hinckley, 672 F.2d 115, 119 (D.C.Cir.1982) (citations omitted).

    The first question we must ask is whether Officer Johnson's taking hold of Jones was an investigatory stop or an arrest. In United States v. White, 648 F.2d 29 (D.C.Cir.), cert. denied, 454 U.S. 924 (1981), we listed several factors that are to...

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