Bsharah v. US

• Decision Date: 25 August 1994
• Docket Number: 91-CM-1194.,No. 91-CM-1192,91-CM-1192
• Citation: 646 A.2d 993
• Parties: Evelyn L. BSHARAH and Gid L. White, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

646 A.2d 993

Evelyn L. BSHARAH and Gid L. White, Appellants, v. UNITED STATES, Appellee.

Nos. 91-CM-1192, 91-CM-1194.

District of Columbia Court of Appeals.

Argued May 13, 1993.

Decided August 25, 1994.

Gerson Simon, appointed by the court, for appellant Bsharah.

Mary E. Mullin, Law Student, with whom Michael A. Rotker, Law Student, and Peter H. Meyers, Supervising Atty., were on the supplemental brief, for appellant White. Janell M. Wolfe, appointed by the court, was on the original brief for appellant White.

Douglas F. Gansler, Asst. U.S. Atty., for appellee. Jay B. Stephens, U.S. Atty. at the time the original brief was filed, J. Ramsey Johnson, U.S. Atty. at the time the supplemental brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., Elizabeth Trosman, Lynn C. Leibovitz, and Renate D. Staley, Asst. U.S. Attys., were on the briefs for appellee. Bernadette C. Sargeant, Asst. U.S. Atty., also entered an appearance for appellee.

Before TERRY, SCHWELB, and SULLIVAN, Associate Judges.

TERRY, Associate Judge:

Appellants, husband and wife, were each convicted of carrying a pistol without a license,¹ possession of an unregistered firearm,² and possession of unregistered ammunition.³ They contend on appeal that appellant White's possession of a handgun on a crowded subway train, without more, was insufficient to "create probable cause to arrest a person for carrying an unregistered firearm," that appellant Bsharah's statement that she had a gun (which was then seized) was obtained in violation of her constitutional rights, and that the trial court therefore erred in denying their motions to suppress the guns that were seized from them. They also maintain that the court erred in refusing to give two requested instructions. We affirm.

I

Officer James Burks of the Washington Metropolitan Area Transit Authority ("Metro") Police Department was on patrol at the Federal Triangle subway station in downtown Washington when he received a radio report concerning a man with a gun on a subway train. The report said that the man was traveling in the next-to-last car on an Orange Line train⁴ that had just left the Farragut West station, headed east toward the Metro Center station. The dispatcher described the suspect as a man with receding hair pulled back in a ponytail, wearing khaki pants and a blue shirt and accompanied by a woman and child.

A minute or two later, when an Orange Line train pulled into the Federal Triangle station (the next one down the line from Metro Center), Officer Burks immediately saw appellant White through the window of the train. He matched the broadcast description and was standing in the next-to-last car alongside a woman and a young boy.⁵ The officer also saw the butt of a gun protruding from White's left rear pants pocket. Officer Burks drew his own gun from its holster, entered the train as soon as the doors opened, and asked White to accompany him off the train. As White stepped onto the platform, Officer Burks put his gun back in its holster and removed a loaded .22 caliber revolver from White's pocket. White appeared surprised and told Officer Burks that he was licensed to carry the gun. The woman and the boy followed the two men from the train. The woman, appellant Bsharah, said that she and her husband were gun dealers from Virginia and had permits to carry firearms. When Burks asked Bsharah whether she was also armed, she answered "Yes" and said she was carrying a gun in her front pants pocket. Officer Burks then removed from Bsharah's pocket a loaded .25 caliber semi-automatic pistol. While in the subway station, Officer Burks made several telephone calls to determine whether appellants were licensed to carry firearms in the District of Columbia.⁶ After learning that they were not, Burks placed them both under arrest.

White and his family were residents of Fredericksburg, Virginia, about fifty miles south of Washington, who had come to the city for the day. He testified that he and his wife and son had traveled from the Virginia Square subway station in Arlington, Virginia, into the District of Columbia to visit the Smithsonian Institution and the National Zoo. White said that just before boarding the train, he realized that he had his gun with him, so he asked the station manager at Virginia Square whether it was safe to leave weapons locked in the trunk of his car in the Metro parking lot next to the station. He identified himself to the station manager as a gun dealer licensed by both the state and federal governments and said that he had a permit to carry the weapon.⁷ The station manager advised him that the parking lot was "not a good place to leave things," that it was not regularly patrolled, and that he himself would not leave anything there, but he added that it was lawful for White to take his handgun into the District of Columbia. Although his wife recommended against it, White decided to keep his gun with him, and he and his wife boarded the subway train with their guns in their pockets.

Bsharah's testimony, both at the pre-trial suppression hearing and at trial, was substantially the same as her husband's.

After hearing the testimony of Officer Burks and both appellants, the court denied appellant's motions to suppress the guns that had been seized from them and certain statements they had made at the time of their arrest. Resolving a factual dispute in the evidence,⁸ the court said that "when the officer saw Mr. White on the train and he met the broadcast description, I find that he also was able to see the gun . . . ." As to Bsharah, the court held that she had been lawfully subjected to a Terry stop,⁹ that "the questions that were asked of her were proper investigative questions because they came after the gun had been found on Mr. White," that she had "volunteered" the statement "that she and her husband were gun dealers and had licenses to carry their weapons," and that her statement "was made in response to the gun being found on her husband . . . ."

At the subsequent trial, the government established through documentary evidence that neither appellant was licensed to carry a gun in the District of Columbia and that the guns and ammunition seized from them were not registered in the District. Appellants introduced into evidence copies of their federally issued firearms dealer licenses. They requested an instruction on mistake of law, based on the advice given to them by the Metro station manager at Virginia Square, but the court denied their request.

II

Officer Burks testified that he saw a gun protruding from White's pocket as the subway train pulled into the station, before the doors to the train opened. The trial court credited this testimony, finding that Burks "was able to see the gun," and denied White's motion to suppress the gun on that basis. White argues that Burks' observation of a handgun in his pocket did not give Burks probable cause to arrest him.¹⁰ We disagree.

We have held on several occasions that a police officer who has reliable knowledge that a person is in possession of a handgun¹¹ has probable cause to arrest that person for the crime of carrying a pistol without a license (CPWL). For example, in Poteat v. United States, 330 A.2d 229, 232 (D.C.1974), in which a passenger in an automobile told a police officer that the driver had a gun, we held that the officer had a "constitutional justification" for seizing the gun and arresting the defendant for CPWL. Similarly, in Murphy v. United States, 293 A.2d 849 (D.C.1972), a police officer received a radio report describing a man seated at a certain table in a restaurant and stating that the man had a gun and that his name was Murphy. The officer went to the restaurant and immediately saw the defendant, who matched the broadcast description and was seated at the designated table. After asking him whether his name was Murphy and being told that it was, the officer arrested him and seized a gun from his coat pocket. We upheld the arrest and seizure, citing several cases. Id at 850-851. Again, in Contee v. United States, 212 A.2d 342, 343 (D.C.1965), we held that an officer had probable cause to arrest a defendant for CPWL when the only basis for the arrest was the fact that the officer saw the defendant "with a gun in his hand in plain view."¹²

The argument that Officer Burks lacked probable cause because White was not acting "suspiciously" is not supported by the case law; indeed, the cases we have cited—Poteat, Murphy, Contee—indicate just the opposite. Although there are a few very limited exemptions (one of which we shall address in part III, infra) from the CPWL statute, we hold that a police officer who sees a non-uniformed person¹³ carrying a pistol in a public place could reasonably conclude that that person is violating the law and would therefore have probable cause to arrest the person for carrying a pistol without a license. We agree with the government that requiring a police officer to wait for additional suspicious actions by a person carrying a concealed (or unconcealed) handgun would raise an unreasonable risk of harm to all concerned—the public, the officer, and the person himself. For these reasons we conclude that the trial court did not err in denying White's motion to suppress the gun.

Bsharah's argument for suppression is somewhat different from her husband's. She argues that Officer Burks did not have any articulable suspicion to effect a Terry stop and failed to advise her of her Miranda rights¹⁴ before asking her if she was armed.

The trial court found that Bsharah "did not simply accompany her husband as he was taken off the train" but that she was "taken off the train" as well. The court held, however, that this momentary detention was a Terry stop, and we assume for the purposes of this discussion that it was. While thus momentarily detained, Bsharah made a statement—which the court found to have been "volunteered"—that she and her husband...