Basnueva v. US, 02-CF-875.

• Decision Date: 12 May 2005
• Docket Number: No. 02-CF-875.,02-CF-875.
• Parties: Yera Y. BASNUEVA, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

874 A.2d 363

Yera Y. BASNUEVA, Appellant, v. UNITED STATES, Appellee.

No. 02-CF-875.

District of Columbia Court of Appeals.

Submitted October 1, 2003.

Decided May 12, 2005.

Ian A. Williams, appointed by the court, was on the brief, Washington, for appellant.

Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., Michelle D. Jackson, and Mary R. Pipitone, Assistant United States Attorneys, were on the brief for appellee.

Before TERRY, REID, and WASHINGTON, Associate Judges.

TERRY, Associate Judge.

Appellant was charged with one count of possession of cocaine with intent to distribute it and one count of possession of marijuana. After the trial court denied his motion to suppress evidence, he entered a conditional plea of guilty, see Super. Ct.Crim. R. 11(a)(2), to the cocaine count; the marijuana count was dismissed pursuant to a plea bargain. On appeal, appellant contends that the trial court erred in denying his motion to suppress. We affirm.

I

A. The Government's Evidence

On June 25, 2001, at 4:47 p.m., Officer Jerry Marshall of the United States Park Police was in an unmarked police car on Allison Street, N.W., which had stopped for a red light at the corner of Fifth Street. As he sat in his car waiting for the light to change, Officer Marshall saw a car with Virginia license plates headed north on Fifth Street. When he noticed that neither the passenger nor the driver of this car was wearing a seat belt, Officer Marshall turned on the emergency lights of his own car and "conducted a traffic stop." After the other car came to a halt, Officer Marshall¹ approached the driver's side while his partner, Officer Lagadinos, approached the passenger's side. Marshall asked the driver, Reginald Perry, for his license and registration. Perry gave Officer Marshall a non-driver's identification card and a Virginia registration in the name of Emmanuel Slatter. In response to further questions about the registration of the car, Perry told the officer that he did not have a license to drive, and that he was simply "taking the car for a test drive" with the owner, who he said was the man seated next to him in the front passenger seat. That man was appellant. Officer Marshall then asked appellant if he had a driver's license and inquired about the identity of Slatter. Appellant replied that he did not have a driver's license and that Slatter was his cousin who lived in Virginia.

Officer Marshall then asked Perry to get out of the car, arrested him for driving without a license,² and conducted a search of his person incident to the arrest. At that point Officer Lagadinos took custody of Perry, and Marshall went around to the other side of the car to question appellant. Officer Daniel Berberich, who had also arrived in response to Marshall's call for backup assistance,³ stood next to Officer Marshall.⁴

Speaking to appellant through the open car window, Officer Marshall asked if he had any weapons, such as guns or knives. Appellant looked directly at Officer Marshall and said he did not. Marshall then asked appellant if he had any narcotics on him, specifically crack cocaine or marijuana. Appellant again said he did not, but this time he "broke eye contact with [Officer Marshall] and looked down towards his lap" as he "mumbled" his response. The officer then asked if he could search appellant,⁵ and appellant replied, "Yeah, go ahead."⁶ By this time three or four minutes had elapsed since the initial stop.⁷

After Officer Marshall received consent for the search, appellant got out of the car.⁸ The officer asked him to turn and face the car, which he did. As he turned, Officer Marshall spotted a lump in appellant's groin area. With appellant facing the car, Marshall conducted an immediate patdown of his waistband area for weapons. At the officer's request, appellant then turned around, and Officer Marshall searched his pockets and groin area. When he felt a "hard rock-like substance" in the groin area where he had seen the lump, Officer Marshall unfastened appellant's belt and "drew back" his pants. Immediately he saw what appeared to be crack cocaine in the area where the lump had been. The officer placed appellant under arrest and then retrieved the crack cocaine by vigorously shaking appellant's right pant leg until it fell out from the bottom. At no time did appellant ever ask the officer to stop the search, even after his pants were pulled back and shaken in order to dislodge the cocaine.

B. The Defense Evidence

Appellant testified and gave a different account of what happened. According to appellant, when the car was initially pulled over, Officer Marshall first told both occupants to remain inside the car. Appellant's testimony about the events leading up to Perry's arrest was generally similar to that of the officer, but he stated that Officers Lagadinos and Berberich arrived together in another police car a few minutes after Officer Marshall made the initial stop.

Appellant said that no one asked for his permission to be searched; Officer Marshall just began to search him. He was soon joined by Officer Berberich while Officer Lagadinos examined the car. After Officer Lagadinos finished searching the car, he put on rubber gloves and searched appellant's genital area. However, despite the invasive search and the use of rubber gloves, appellant admitted that he never raised any protest even though he knew that an officer needed "consent to search."⁹ He also acknowledged that none of the officers made any threats to him at any time.

C. The Government's Rebuttal

Officer Berberich, called as a rebuttal witness, testified that he arrived at the scene of the traffic stop just as Officers Marshall and Lagadinos were escorting Perry out of the driver's side of the car. Berberich approached car from the passenger side and spoke with appellant through the open window. He asked appellant if he had any weapons, alcohol, or narcotics on him or in the car. To each question, appellant answered that he did not have any of these items.

Officer Marshall then came around to the passenger side of the car. Marshall, unaware that Officer Berberich had been questioning appellant, asked him essentially the same questions and received the same answers. Officer Marshall then asked appellant if it would "be all right if I search you."¹⁰ Appellant replied, "Yes, go ahead." Marshall then asked appellant to get out of the car; appellant did so and was searched. After Officer Marshall felt the bulge in appellant's groin area, appellant was placed under arrest. Officer Berberich saw the crack cocaine when Officer Marshall loosened appellant's pants. The cocaine was then seized after it fell from the bottom of his pant leg.

D. The Ruling of the Court

The court ruled that the traffic stop was valid and that appellant gave Officer Marshall a "voluntary . . . knowing, and an intelligent consent" to be searched: "I think, `go ahead' is very clear consent.'" The court based its conclusion on Officer Berberich's testimony¹¹ after finding that Officer Marshall's testimony was not clear about what specifically was said concerning consent¹² and that appellant's testimony was not credible.

In particular, the court ruled that the circumstances of the consent were not "coercive at all. I don't even think [appellant] indicated they were coercive, quite frankly. . . . I don't find anything coercive about it." The court pointed out that the officers did not draw their weapons, did not speak in a loud voice or yell, and did not use force to remove appellant from the car, and that appellant complied with all requests after he got out of the car. Even though the driver had just been arrested, in close proximity to appellant, the court did not "see anything that shows that there [was] any coercion or over display [sic — overt?] of authority here."

II

A. The traffic stop and the seizure

"[W]hen a traffic offense is committed in the presence of a police officer, a stop of the vehicle is generally lawful." Minnick v. United States, 607 A.2d 519, 524 (D.C.1992). Motorists are deemed to be "seized" within the meaning of the Fourth Amendment in a typical traffic stop because of the temporary detention of the driver and any passengers. Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). A traffic stop must therefore be reasonable under the circumstances in order to be constitutional. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Id. at 810, 116 S.Ct. 1769; see United States v. Mitchell, 293 U.S.App. D.C. 24, 28, 951 F.2d 1291, 1295 (1991)

("The Fourth Amendment does not bar the police from stopping and questioning motorists when they witness or suspect a violation of traffic laws, even if the offense is a minor one"); cf. Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (when motorist was arrested, handcuffed, and briefly jailed for failing to wear a seat belt and for failing to fasten her child's seat belt, the seizure was not unreasonable).

In this case, it is not disputed that Officer Marshall saw Perry and appellant riding in a moving vehicle without their seat belts fastened. This was a violation of D.C.Code § 50-1802(a) (2001),¹³ which authorizes a police officer to conduct a traffic stop, regardless of whether or not the officer ultimately cites the driver for this violation. Mitchell, 293 U.S.App.D.C. at 28, 951 F.2d at 1295; see United States v. Montgomery, 182 U.S.App.D.C. 426, 431, 561 F.2d 875, 880 (1977)

("Even a relatively minor offense that would not of itself lead to an arrest can provide a basis for a stop for questioning and inspection of the driver's permit and registration.") The trial court committed no error in ruling that Perry's and appellant's failure to wear seat belts...