Gilliam v. United States, s. 08–CF–475

• Decision Date: 21 June 2012
• Docket Number: 08–CF–504,08–CF–505.,Nos. 08–CF–475,s. 08–CF–475
• Citation: 46 A.3d 360
• Parties: James P. GILLIAM, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

46 A.3d 360

James P. GILLIAM, Appellant,

v.UNITED STATES, Appellee.

Nos. 08–CF–475, 08–CF–504, 08–CF–505.

District of Columbia Court of Appeals.

Argued Dec. 14, 2009.

Decided June 21, 2012.

Howard Margulies for appellant.

Emily C. Scruggs, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time the brief was filed, Roy McLeese III, Mary B. McCord, and Matthew M. Graves, Assistant United States Attorneys, were on the brief for appellee.

Before GLICKMAN, Associate Judge,^*RUIZ, Associate Judge, Retired,^** and SCHWELB, Senior Judge.

RUIZ, Associate Judge, Retired:

James P. Gilliam appeals his convictions for possessing weapons and drugs and failing to obey a court order to appear in court. Appellant claims that the trial court erred (1) in denying his motion to suppress evidence because there was no credible evidence to support probable cause, (2) in failing to correct the prosecutor's mischaracterization of the reasonable doubt standard, and (3) in convicting him of violating the Bail Reform Act when there was insufficient evidence to support the conviction. For the reasons that follow, we affirm the judgment of the trial court.

I. Facts

On October 13, 2005, at approximately 6:35 p.m., Metropolitan Police Department (MPD) Officer Richard Peake and several other officers executed a search warrant for narcotics at 3417 25th Street, S.E., in Washington, D.C. Officer Peake testified at the suppression hearing that he had been employed by MPD for about five years and was working as a member of the Seventh District's “power-shift team,” where he concentrated on “high-drug areas [and conducted] traffic stops ... to get lock-ups.” Since October 2005, Officer Peake had participated in over 100 drug-related arrests. Officer Peake testified that when he arrived at the 3417 25th Street address, another officer told him to approach the ice-cream truck that was parked in the driveway of the house that was the target of the search warrant, because police “had been getting numerous complaints about people selling narcotics out of the vehicle.” Officer Peake observed an extension cord running from the front of the truck to the back of the house. As Officer Peake approached the ice-cream truck, he saw “several occupants inside,” “smelled the strong odor of marijuana coming from the ice cream truck,” and saw “smoke coming out of [it].” Based on the strong smell emanating from the ice-cream truck, Officer Peake decided to enter the truck.

Inside the ice-cream truck, the officer found appellant and two women, Kelly Jones and Audrey Green. Officer Peake seized a cigar box containing 93 grams of marijuana, a plastic container holding 252 grams of marijuana, a cash-box containing nine zip-lock bags of marijuana, loose crack cocaine, two digital scales, and additional empty zip-lock bags. He did not see any remnants of marijuana smoking, such as burnt blunts, burnt marijuana cigarettes, or ash. Officer Peake testified, however, that he continued to smell burnt marijuana “when [he] was inside the truck.”

Appellant was arrested inside the ice-cream truck. According to Officer Peake, when appellant was taken from the truck, “He was very belligerent. He was very upset [and] uncooperative[,]” telling the police “you ain't got no right, this is my truck, my house, my yard, I need to see a warrant.”

Several other police officers searched the house, where they found a loaded 9–millimeter handgun, a loaded .22–caliber handgun, an unloaded 9–millimeter handgun, .45–caliber ammunition, a digital scale box, two shoeboxes containing marijuana residue, a plastic bag containing small glass vials, and numerous empty zip-lock bags. Appellant's personal papers, checks in appellant's name, birth certificate, and social security card were also found in the house and seized.

On December 20, 2005, MPD officers executed another search warrant at the 3417 25th Street address. Appellant and Kelly Jones were in the living room smoking marijuana when the police arrived. This time the police found crack cocaine in the living room closet, and marijuana and one round of .45–caliber ammunition where appellant and Jones were sitting. In the bedroom, police found a loaded .45–caliber handgun; four scales, zip-lock bags, and a razor blade on the table beside the bed; $457.50 in currency and a money counter; 27 rounds of .22–caliber and .45–caliber ammunition in the bedroom closet; and additional personal checks with appellant's name. A search of appellant yielded two clear zip-lock bags of marijuana and $142.

Appellant was ordered to appear in court for trial on May 25, 2006. The trial was continued to May 31, and appellant received another order to return to court. Appellant was in court on the morning of May 31, but his case was passed over. When the case was recalled, appellant was not in the courtroom.

Three cases were brought against appellant, two were based on the drugs and weapons found during the searches on October 13 and December 20, and one on appellant's failure to appear in court. The three cases were consolidated for trial. With respect to evidence seized during the October 13 search of the house, appellant was found guilty of two counts of unlawful possession with intent to distribute a controlled substance (marijuana and cocaine), D.C.Code § 48–904.01(a)(1) (2001), three counts of unlawful possession of ammunition, D.C.Code § 7–2506.01(3) (2001), and two counts of possession of an unregistered firearm, D.C.Code § 7–2502.01 (2001). Evidence seized from the search of the ice-cream truck led to conviction of two counts of unlawful possession with intent to distribute a controlled substance (marijuana and cocaine). These convictions are the subject of Appeal No. 08–CF–504 (05–FEL–5911). Based on the second search of the house, on December 20, appellant was acquitted of one count of unlawful possession with intent to distribute a controlled substance while armed, D.C.Code § 48–904.01(a)(1), but convicted of two counts of unlawful possession of a controlled substance (marijuana and cocaine), D.C.Code § 48–904.01(d), one count of possession of a firearm during a crime of violence or dangerous offense, D.C.Code § 22–4504(b) (2001), two counts of unlawful possession of ammunition, D.C.Code § 7–2506.01(3), two counts of possession of an unregistered firearm, D.C.Code § 7–2502.01, one count of unlawful possession of drug paraphernalia, D.C.Code § 48–1103(a) (2001), and one count of keeping a bawdy or disorderly house, D.C.Code §§ 22–2722, –2713, –2717 (2001). These convictions are the subject of Appeal No. 08–CF–505 (05–FEL–7333). The Bail Reform Act (BRA), D.C.Code § 23–1327(a) (2001), conviction is the subject of Appeal No. 08–CF–475 (07–CF2–12586). We consolidated the three appeals for our review.

II. Probable Cause

Appellant claims that the trial court erred in denying his motion to suppress the tangible evidence found in the truck, because the search warrant was limited to the house and Officer Peake lacked probable cause to search the ice-cream truck.¹ The government argues that the officer, who testified to having smelled burnt marijuana and observed smoke emanating from the ice-cream truck, had probable cause to search the truck under the “plain smell” doctrine.²

A suppression motion presents a mixed question of law and fact; we review the findings of fact for clear error and conclusions of law—whether the facts establish probable cause— de novo. See Holt v. United States, 675 A.2d 474, 478 (D.C.1996). In reviewing the denial of a suppression motion, we “view the evidence presented at the suppression hearing in the light most favorable to the party prevailing below, and we draw all reasonable inferences in that party's favor.” Womack v. United States, 673 A.2d 603, 607 (D.C.1996) (citing Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc)).

“This court has repeatedly found probable cause to search an automobile based, at least in part, on an officer's recognition of the smell of drugs.” Minnick v. United States, 607 A.2d 519, 525 (D.C.1992) (citing United States v. Bolden, 429 A.2d 185 (D.C.App.1981)). Appellant takes no issue with this principle. He contends, however, that the trial court erred in crediting Officer Peake's testimony that he smelled burning marijuana and saw smoke coming out of the truck because it was “plainly contradicted” by the physical evidence, as Officer Peake himself acknowledged that no burnt blunts, burnt marijuana cigarettes, or ash were found inside the ice-cream truck. The presence of physical evidence of burnt marijuana in the truck was critical to corroborate the officer's testimony, says appellant, and “[i]ts absence impugned the officer's credibility.” Although we agree with appellant that without Officer Peake's testimony that he smelled marijuana and saw smoke coming from the ice cream truck, the trial court's conclusion that the officers had probable cause to search the truck cannot be upheld, we disagree that the trial court clearly erred in crediting the officer's testimony.

Officer Peake testified that he had been a police officer for five years and had participated in over 100 drug-related arrests. The trial judge commented, in crediting Officer Peake's testimony, “I understand the point that there was no ash found and so forth, but he seems credible, and there's nothing that has been submitted, really, that I can see that would contradict that.” We “ ‘will not redetermine the credibility of witnesses where, as here, the trial court had the opportunity to observe their demeanor and form a conclusion.’ ” In re D.A.J., 694 A.2d 860, 865 (D.C.1997) (quoting In re S.G., 581 A.2d 771, 775 (D.C.1990)). The trial judge could have disbelieved Officer Peake because his account was not corroborated by evidence of burnt marijuana in the truck. But the trial judge was not required to discredit the officer's testimony. We can agree with appellant...