Ball v. US

• Decision Date: 25 July 2002
• Docket Number: No. 98-CF-787.,98-CF-787.
• Citation: 803 A.2d 971
• Court: D.C. Court of Appeals
• Parties: Mark BALL, Appellant, v. UNITED STATES of America, Appellee.

803 A.2d 971

Mark BALL, Appellant, v. UNITED STATES of America, Appellee.

No. 98-CF-787.

District of Columbia Court of Appeals.

Submitted June 8, 2000.

Decided July 25, 2002.

Sara E. Kopecki, Washington, DC, was on the brief for appellant.

Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Mary-Patrice Brown, Adam L. Rosman and Susan A. Nellor, Assistant United States Attorneys, were on the brief for appellee.

Before FARRELL, RUIZ and GLICKMAN, Associate Judges.

RUIZ, Associate Judge.

Mark Ball appeals from his conviction of unlawful possession with intent to distribute a controlled substance in violation of D.C.Code § 33-541(a)(1) (1993), on the ground that the trial court should have granted his motion to suppress physical evidence—drugs and $953 in cash—found during a search following his arrest. Ball pled guilty, reserving the right to appeal the denial of his motion to suppress evidence for lack of probable cause. We conclude that the officer's plain feel of a large medicine bottle, enhanced by the officer's observations of appellant's conduct and experience with the practice of drug traffickers, gave the officer probable cause to search, and affirm.

FACTUAL SUMMARY

At the suppression hearing, the only witness was Officer Richard Harger, a three and one-half year veteran of the Metropolitan Police Department. He testified that at approximately one o'clock on the morning of November 12, 1997, he and his partner, Officer Howard Howland, were traveling north on North Capitol Street when Officer Howland observed an automobile, a Lincoln Continental, without a front license plate. The officers turned around to follow the Lincoln, and made a traffic stop after they observed that it had a homemade license plate made of cardboard in the rear window. Officer Harger approached the stopped car from the passenger side and, when the officer illuminated the back passenger area with his flashlight, he saw appellant seated in the back seat. Officer Harger then spoke with the front seat passenger, who claimed to be the owner of the vehicle. Although it was a cool night, the front seat passenger "started to perspire from his forehead" and was "starting to get excited"; the situation "start[ed] to get slightly more intense the longer [the officer] was standing there." The officer obtained the front-seat passenger's consent to search the automobile, and frisked him. As Officer Harger was frisking the front seat passenger, he observed appellant "start[] to move his left hand and he was trying to cover his abdomen area with a newspaper which was seated on the seat next to him," whereupon he had appellant exit the vehicle, concerned that he might have a gun or other weapon on his person. As he exited the vehicle, appellant "immediately put his hands in his jacket pocket." The jacket was "a sweatshirt type coat that had pockets on the front where you enter hands from the side." Officer Harger ordered appellant to remove his hands from the jacket pockets and place them on top of the vehicle. As appellant did so, he once again attempted to place his right hand in his right front jacket pocket, at which point the officer pushed him against the car and asked for his name and identification. Appellant responded that the identification was in his left rear pants pocket. As appellant reached for the identification with his left hand, "[a]t the same time he was trying to go to his right front jacket pocket" with his right hand for a third time. Officer Harger grabbed appellant's right hand and proceeded to perform a protective "frisk of his outer garment, particularly the right front pocket of his jacket."

As the officer frisked appellant, he "felt a large cylinder container which [he] thought to be a large medicine bottle," and immediately thought that "it was some kind of contraband or narcotics because [appellant] made several attempts to go into his pocket and remove it." Officer Harger removed the medicine bottle from appellant's pocket, opened it, and saw a large number of ziplock bags containing a white rock-like substance.¹ Appellant then snatched the bottle from Officer Harger's hand, threw it a short distance, striking the officer in the face with the throwing motion, and began to flee. Appellant was caught and arrested, and in a search following his arrest, $953 in cash was found on his person. The officer testified that he had been involved in more than one hundred drug-related arrests, that he is familiar with the ways that drugs are packaged and hidden, and that he has arrested numerous people who have hidden narcotics in medicine bottles.

The trial court credited Officer Harger's testimony and found that appellant's actions in calling attention to the front right pocket of his jacket provided a reasonable basis for the officers to believe that he may be armed and justified a protective frisk. The trial court further credited that the object in appellant's pocket was immediately apparent to Officer Harger as a medicine bottle and ruled that "the combination of feeling the bottle, knowing it was a bottle, the size of a bottle,² the experience of the officer with regard to the packaging of narcotics in this kind of container and the defendant's actions constituted probable cause and justified the search."

ANALYSIS

Appellant contends that the police unlawfully seized the medicine bottle during the Terry frisk.³ Specifically, he argues that Officer Harger's tactile detection of the closed medicine bottle, even when viewed in conjunction with other circumstances—such as the officer's narcotics experience and appellant's continued attempts to access the jacket pocket—failed to establish probable cause for the officer to believe that the bottle contained contraband.

When reviewing the denial of a motion to suppress, this court defers to the trial court's findings of fact, unless they are clearly erroneous or not supported by the record. See Powell v. United States, 649 A.2d 1082, 1084 (D.C.1994). All facts and reasonable inferences are to be viewed in the light most favorable to the government. See Nixon v. United States, 402 A.2d 816, 819 (D.C.1979). However, we independently review the trial court's legal conclusion on probable cause. See Green v. United States, 662 A.2d 1388, 1389 (D.C. 1995).

"`[P]robable cause is a flexible, common-sense standard' that `does not demand any showing that [the officer's belief that he has witnessed criminal behavior] be correct or more likely true than false.'" Coles v. United States, 682 A.2d 167, 168 (D.C.1996) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion)). "[T]he test for judging the existence of probable cause is whether a reasonably prudent police officer, considering the total circumstances confronting him and drawing from his experience, would be warranted in the belief that an offense has been or is being committed." Peterkin v. United States, 281 A.2d 567, 568 (D.C.1971) (internal quotation omitted). Thus, we are required to evaluate the reasonableness and strength of the inferences that could be drawn from the facts that confronted the officer who frisked appellant in this case.

I. The "Plain Feel" Doctrine

The Supreme Court has recognized the existence of a "plain feel" exception to the Fourth Amendment's warrant requirement, analogous to the "plain view" exception, that permits warrantless seizures of obvious contraband discovered during the course of a lawfully conducted frisk or search. See Minnesota v. Dickerson, 508 U.S. 366, 374-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Id. at 375-76, 113 S.Ct. 2130 (emphasis added). This court recognized the plain feel exception in (Kenneth) Dickerson v. United States, 677 A.2d 509 (D.C.1996). For a seizure of contraband under the "plain feel" exception to the warrant requirement, 1) the pat-down must be permissible under Terry, 2) the contraband must be detected in the course of the Terry search, and 3) the incriminating nature of the object perceived to be contraband must be immediately apparent to the officer. See Minnesota v. Dickerson, 508 U.S. at 375-76, 113 S.Ct. 2130; State v. Bridges, 963 S.W.2d 487, 494 (Tenn.1997). "Immediately apparent" for purposes of plain feel analysis does not mean that an officer must know for certain that the item felt is contraband, only that there is probable cause to associate the item with criminal activity. See Texas v. Brown, 460 U.S. at 741, 103 S.Ct. 1535 ("[T]he use of the phrase `immediately apparent' was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the `plain view' doctrine."); State v. Wonders, 263 Kan. 582, 952 P.2d 1351, 1362 (1998) ("[T]he same construction of the `immediately apparent' requirement in plain view situations should be applied to those involving plain feel."); People v. Champion, 452 Mich. 92, 549 N.W.2d 849, 855 (1996) ("`[I]mmediately apparent' means that without further search the officers have `probable cause to believe' the items are seizable." (quoting Texas v. Brown, 460 U.S. at 741-42, 103 S.Ct. 1535)). Thus, as we noted in (Kenneth) Dickerson, "[A]n officer must possess probable cause that the item is contraband or evidence of a crime to seize the object lawfully." 677 A.2d at 513 n. 5. See also Christmas v. United States, 314 A.2d 473, 479 (D.C.1974) (finding seizure illegal absent probable...