Blackmon v. US, O1-CM-1157.

• Citation: 835 A.2d 1070
• Decision Date: 20 November 2003
• Docket Number: No. O1-CM-1157.,O1-CM-1157.
• Parties: Vincent M. BLACKMON, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

835 A.2d 1070

Vincent M. BLACKMON, Appellant, v. UNITED STATES, Appellee.

No. O1-CM-1157.

District of Columbia Court of Appeals.

Submitted February 20, 2003.

Decided November 20, 2003.

Ed Wilhite, appointed by the court, was on the brief and supplemental brief for appellant.

Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III, Elizabeth Trosman, Luis Andrew Lopez, and Susan A. Nellor, Assistant United States Attorneys, were on the brief and supplemental brief for appellee.

Before TERRY, SCHWELB, and GLICKMAN, Associate Judges.

TERRY, Associate Judge:

Appellant was charged with one count of possession of marijuana, in violation of D.C.Code § 33-541(d) (1998).¹ He filed a pre-trial motion to suppress the marijuana which the police found in the pocket of his jacket. After an evidentiary hearing on the motion, which the court held contemporaneously with a non-jury trial, the court denied appellant's motion and found him guilty as charged. Before this court appellant contends that the trial court erred in denying his motion to suppress, arguing (1) that the police had no right to order his passenger out of the car, so that the white rock-like substance believed to be cocaine, which led to his arrest, would never have come into the officers' plain view; (2) that seeing the white rock on the floor of the car in front of the passenger seat did not give the police probable cause to arrest him, since he was the driver, not the passenger; and (3) that the search of his jacket, which yielded the marijuana, was not within the proper scope of a search incident to arrest. We reject all three arguments and affirm the conviction.

I.

On March 18, 2000, at approximately 10:45 a.m., the police received a call "regarding suspicious subjects in a vehicle" parked on Colorado Avenue, N.W. Officer Todd Reid of the Metropolitan Police responded to the call. Upon arriving at the location given, he noticed a gray car parked in an alley near 5320 Colorado Avenue. Initially, Officer Reid saw only the passenger, later identified as Anthony Smith, but as he approached the car from the passenger side, he also noticed appellant in the driver's seat. At the same time, he saw Smith move "from a sit-back position to a leaning forward position" and concluded "that maybe he was talking to someone." Officer Reid then peered inside the car through the passenger side window and saw, in plain view, that the ignition had been "punched." The officer testified that he also noticed a screwdriver "in the front passenger area, I think it was on the floor." Suspecting that the vehicle had been stolen, Officer Reid asked appellant and Smith to identify themselves and to explain why they were parked in the alley.² Smith said that his identification was in his pocket. Appellant's response was that he and Smith had been drinking at a nightclub the night before and "were just trying to sleep it off." Appellant also told Officer Reid that his identification was in the trunk and asked if he could retrieve it. Officer Reid "told him no, because I was by myself," and directed both occupants to keep their hands where he could see them.

Within ten or fifteen seconds, Sergeants Sheldon Hargrove and Reginald Powell arrived on the scene. Officer Reid informed them both that he believed the car was stolen. Upon hearing this, Sergeant Hargrove approached the car on the passenger side, and when he saw the punched ignition, he asked Smith, the passenger, to get out of the car. Once Smith had alighted, Sergeant Hargrove saw in plain view, on the floor in front of the passenger seat, a white rock-like substance which appeared to be crack cocaine. Hargrove asked Smith to move to the rear of the car, picked up the white rock, and told Sergeant Powell to place Smith under arrest.

Sergeant Hargrove then walked around to the driver's side and ordered appellant to get out of the car. As he stepped out, appellant removed his jacket and asked if he could put it in the trunk, to which Sergeant Hargrove replied, "Just set the jacket down." Appellant placed his jacket on the roof of the car, and was then taken to the rear of the car, where Smith was already being held. As Officer Reid searched the interior of the car for additional drugs, Sergeant Hargrove moved toward appellant and at the same time picked up appellant's jacket from the roof. Upon reaching into the pocket of the jacket, he discovered a plastic bag containing a "green weed substance" which appeared to be marijuana. Appellant was then placed under arrest and handcuffed. Preliminary field tests indicated that the white rock was cocaine and that the "green weed substance" was marijuana.³

After the officers had made sure that "the scene was secure [and their] safety wasn't compromised," Officer Reid called his precinct on the police radio and reported the car's license number and vehicle identification number. Moments later he was informed by radio that the car had not been reported stolen.

Appellant testified that his car had been stolen about eight months earlier. He explained that the ignition was punched because he did not have the money to have the car repaired after it was recovered, so he drove it by using a screwdriver to enable him to start the engine.

The court denied the motion to suppress. Noting that the punched ignition and the screwdriver were "classic indicia of a stolen car," the court held that the officers had "articulable suspicion to go further and make [an] inquiry and investigate what is going on." Moreover, that suspicion gave the officers "license ... to secure the scene and secure their persons by placing the individuals they're dealing with in a position not to hurt them." This included the right to ask the occupants to get out of the car. After they did so, the white rock-like substance was in plain view, and when Sergeant Hargrove saw it, the police at that moment had a basis to arrest both occupants for possession of cocaine, since the law recognizes joint and constructive possession. Finally, because a full search was permissible at that point, "the inevitable discovery of that marijuana was authorized, whether the jacket was on the defendant, [or] in the defendant's car, no matter where it was ...."

II

When reviewing the denial of a motion to suppress evidence, this court must accept the trial court's findings of fact if they are supported by the evidence, and must draw all reasonable inferences in favor of sustaining the trial court ruling. See, e.g., White v. United States, 763 A.2d 715, 719 (D.C.2000)

(citing cases). The trial court's application of the law to the facts, however, is reviewed de novo. Id. at 720 (citing cases). Applying these basic principles, we find no error in the trial court's denial of appellant's motion.

A. Removal of the passenger from the car

Once Anthony Smith, the passenger, stepped out of the car, Sergeant Hargrove was able to see a white rock-like substance on the floor in front of the passenger seat which he believed to be cocaine. See, e.g., Umanzor v. United States, 803 A.2d 983, 999 (D.C.2002)

("when the occupants stepped out, the officer was legally standing in a position to view the items on the floorboard and the back seat"). Appellant argues that the police had no right to order Smith out of the car in the first place, since there was at that point no articulable suspicion, and the police have no automatic right to order occupants out of a car. Had Smith remained in the car, appellant maintains, the white rock would never have come into the officers' plain view.

Appellant has no standing, however, to argue that the recovery of the marijuana from his jacket stemmed from the allegedly unlawful seizure of his passenger (i.e., asking the passenger to get out of the car). "Fourth Amendment rights are personal rights which ... may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1967) (citations omitted); accord, e.g., Rakas v. Illinois, 439 U.S. 128, 133-134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)

. This court has consistently applied this principle in a number of cases. See, e.g., Belton v. United States, 647 A.2d 66, 70 (D.C.1994); Lewis v. United States, 594 A.2d 542, 544 (D.C.1991); Moore v. United States, 468 A.2d 1342, 1344 (D.C. 1983).⁴

On this point our decision in Mayes v. United States, 653 A.2d 856 (D.C.1995), is dispositive. The two defendants in that case, Mayes and Graves, were passengers in a car that was double-parked with the motor running. The police asked all five occupants to get out of the car, and then proceeded to frisk Mayes, who had been in the back seat. A handgun was found in Mayes' pocket, which prompted the police to search the car and to frisk Graves and the other occupants. That frisk led to the discovery of another handgun in Graves' possession. We held that the frisk of Mayes was unlawful,⁵ but that the discovery of the gun in Mayes' possession gave the officers a valid reason to frisk Graves, his companion. Because the unlawful search was directed toward Mayes rather than Graves, the fruit of Graves' search did not need to be suppressed. As we described it, there was "a critical (though fortuitous) difference between their situations. When the police frisked Mayes, they had no legal basis for doing so. By the time it was Graves' turn, they did." Mayes, 653 A.2d at 866. Accordingly, we reversed Mayes' conviction, but affirmed that of Graves because he had no standing to challenge the unlawful frisk of Mayes. See also United States v. Payner, 447 U.S. 727, 731-733, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980)

; United States v. Meadows, 885 F.Supp. 1, 3-4 (D.D.C.1995).

The same rationale applies here. Even assuming that the police were not justified in asking the passenger to get out of the car — an issue we do not decide because Smith's case is not before us — the fact is that they did so, and as a result they saw the...