Goines v. U.S., No. 04-CM-532.

• Decision Date: 29 January 2009
• Docket Number: No. 04-CM-532.
• Citation: 964 A.2d 141
• Parties: Betty J. GOINES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

964 A.2d 141

Betty J. GOINES, Appellant, v. UNITED STATES, Appellee.

No. 04-CM-532.

District of Columbia Court of Appeals.

Argued March 11, 2008.

Decided January 29, 2009.

Jonathan W. Anderson, Public Defender Service, with whom James Klein and Jaclyn S. Frankfort, Public Defender Service, were on brief, for appellant.

Stratton C. Strand, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III and Elizabeth Trosman, Assistant United States Attorneys, were on brief, for appellee.

Before THOMPSON, Associate Judge, FARRELL, Senior Judge,^* and ISCOE, Associate Judge, Superior Court of the District of Columbia.^**

ISCOE, Associate Judge, Superior Court of the District of Columbia:

Appellant was charged by information with a single count of possession of drug paraphernalia D.C.Code § 48-1103(a) (2001). After conducting an evidentiary hearing, the trial court denied appellant's motion to suppress the seizure of the drug paraphernalia at issue. Appellant then entered a conditional guilty plea to the information, thereby preserving her right to appeal the denial of the suppression motion. We review the trial court's legal conclusions de novo and its factual findings for clear error. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Dancy v. United States, 745 A.2d 259, 272 (D.C.2000).¹ We find that the trial court properly denied appellant's suppression motion and affirm.

FACTUAL SUMMARY

The facts are essentially undisputed. It was raining on February 6, 2004, at approximately 12:40 p.m. when Metropolitan Police Department ("MPD") Officer Ellen Bader received a radio run for a male "slumped behind the wheel of a car running" at 554 Malcolm X Avenue, S.E., Washington, D.C. The MPD dispatch was based on an anonymous call to the police and it included the color and license plate number of the car. Officer Bader and her partner Officer Murphy, who both were in full uniform, went to that location and saw a car matching the description in the broadcast. The car was legally parked next to the curb.

The uniformed officers parked their cruiser a few feet behind the car and could tell by the exhaust coming from the back that the engine was running. Officer Bader walked up to the passenger side of the car and Officer Murphy approached the driver's side. The officers saw "an older female [appellant] in the driver seat that appeared to be sleeping." Her head was down. The officers then started "banging on the window ... and after a couple of knocks, bangs [appellant] raised her head up and kind of looked at us in a confused manner." After establishing that appellant "was, in fact, conscious" and "not passed out or anything," Officer Bader walked around to the driver's side of the car. The officers indicated that they would like to speak with appellant, and she rolled her window partially down.

The officers asked appellant if she was "okay," and she said "yes." The officers then asked appellant what she was doing, and "she said she was waiting for somebody named Toby." Shortly thereafter, appellant pointed out a man to Officer Bader. Appellant asked the man, who may have come from a nearby building, to "go get Toby." Officer Bader then asked the man if he was Toby and whether he knew the appellant. The man, apparently speaking to the appellant, said, "I don't know you, bitch."

At that point, the officers asked appellant to produce her license and registration, because she "seemed like she was sort of confused." Appellant provided her District of Columbia license and registration "with reluctance." The officers then asked appellant to turn off her engine and took her keys, which they placed on the hood of appellant's vehicle and returned to their cruiser to radio the information to the police dispatcher.² They pulled their car up alongside appellant's vehicle "to keep her from getting out of the car." Officer Bader was sitting in the passenger seat, so that she was directly beside appellant, approximately two feet away. While they waited for the dispatcher to respond, Officer Bader saw appellant recline her seat "a foot or so back" and make "large jabbing motions" with her right arm, "raising her shoulder upward and then going down with it." Appellant was also making more "subtle" motions with her left arm, and it appeared to Officer Bader that appellant was "pushing something in-between the driver and passenger seat."

The MPD dispatcher soon told the officers that appellant's license had been suspended. The officers then ordered appellant to step out of the car and arrested her for driving with a suspended license. Since Officer Bader had seen appellant make "such wide movements of her arm," the officers searched the driver's side compartment of the vehicle. In areas accessible to the driver, they recovered eight glass tubes that "contained on one end some black and brownish color residue with a metal copper coil" and subsequently charged her with possession of drug paraphernalia.

PROCEDURAL HISTORY

Officer Bader's testimony was the only evidence presented at the suppression hearing. Appellant argued at the hearing that the officers did not have reasonable articulable suspicion to believe that "there was criminal activity afoot" at the time that appellant was seized. Appellant contended that the seizure occurred when the police asked for her license and registration. The government contended that the officer's response to the radio run entailed nothing more than asking "a few routine investigatory questions including a request for identification," and did not expressly address when the seizure occurred. The trial judge denied appellant's motion to suppress, stating:

[The officers] went to the car. They found [appellant] asleep. They found the car running while she was asleep. And they awoke her and she seemed confused. Of course, they had to continue to investigate is she drunk, is she under the influence of drugs, where are we with respect to a woman who in the middle of the day is sleeping behind the wheel of a running car. And so, as police officers do, they asked her for her license and registration something that was completely within the realm of (indiscernible) for the next step here ... the suggestion that a police officer cannot investigate further when they see a person who does not appear to be in a condition to be driving an automobile simply is contrary to substantial body of case law to say nothing of common sense. So the motion is denied.

Appellant contends that the trial court erred in denying her motion to suppress.

ANALYSIS

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The "touchstone of the Fourth Amendment is reasonableness ... measured in objective terms by evaluating the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). If the actions of law enforcement constitute a "seizure," this "reasonableness" inquiry is triggered; see also United States v. Edmonds, 345 U.S.App. D.C. 131, 135, 240 F.3d 55, 59 (2001).

In United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Court elaborated its holding in Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968): "the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." See also Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (reasonable articulable suspicion "is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence"). However, the officer "must be able to articulate something more than an `inchoate and unparticularized suspicion or hunch.'" Sokolow, 490 U.S. at 7, 109 S.Ct. 1581. Rather, he must provide "some minimal level of objective justification" for making the stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); see also Edmonds, 345 U.S.App. D.C. at 135, 240 F.3d at 59 (a Terry stop requires only a "minimal level of objective justification," and an officer may initiate one "based not on certainty, but on the need to `check out' a reasonable suspicion").

To determine whether the necessary "objective justification" exists, courts must consider "the totality of the circumstances—the whole picture," cognizant of the fact that "(t)he process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact finders are permitted to do the same—and so are law enforcement officers." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see also Edmonds, 345 U.S.App. D.C. at 135, 240 F.3d at 59 ("When determining whether a Terry stop was supported by reasonable suspicion, this Court does not separately scrutinize each factor relied upon by the officer conducting the search ... rather ... the question of whether reasonable suspicion existed can only be answered by considering the totality of the circumstances as the officer on the scene experienced them....").

Appellant contends that the police seized her when they asked for her driver's license and registration. The government appeared to concede in its brief that the police seized the appellant either at that point, or immediately thereafter when the police took her car keys and moved their police car in a way that prevented her from leaving. At oral argument, however the government suggested that the seizure might not have occurred until after the police learned that appellant did not have a...