GOMEZ v. U.S.

• Decision Date: 30 September 1991
• Docket Number: No. 89-1094,89-1094
• Citation: 597 A.2d 884
• Parties: Nicholas GOMEZ, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

597 A.2d 884

Nicholas GOMEZ, Appellant, v. UNITED STATES, Appellee.

No. 89-1094.

District of Columbia Court of Appeals.

Argued December 5, 1990.

Decided September 30, 1991.

Appeal from the Superior Court, District of Columbia, Eric H. Holder, J.

James G. McGuire, appointed by this court, for appellant.

Corbin A. Weiss, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. McLeese, III, and Ronald Walutes, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN and SCHWELB, Associate Judges, and BELSON, Senior Judge. ^*.

Judge Belson was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on July 24, 1991.

SCHWELB, Associate Judge.

Nicholas Gomez was found guilty at a stipulated bench trial of three misdemeanor weapons offenses.¹ On appeal, he contends that the trial judge committed reversible error by denying his dispositive pretrial motions to suppress tangible evidence (the pistol and ammunition), as well as an inculpatory pretrial statement which Gomez made while in police custody following his arrest. We affirm.

I THE EVIDENCE

A. The arrest.

Officer Robert LoProto of the Metropolitan Police Department testified at the hearing on Gomez' motions that on December 9, 1988, at approximately 10:00 p.m., he monitored a radio run reporting that, according to an anonymous tipster, subjects were dealing drugs out of a vehicle in the rear of 1223 N Street, N.W. Approximately four minutes after hearing the radio run, Officer LoProto and another officer, both in uniform, arrived at the scene of the alleged drug activity. The "rear" of 1223 N Street is the middle of a narrow alley which runs between 12th and 13th streets.

Officer LoProto testified that he was familiar with this alley because he routinely patrolled the area. He knew that drugs were frequently sold and consumed in the vicinity of the alley. With the other officer behind him, Officer LoProto entered the alley on foot and saw two automobiles side by side. He approached the vehicles and discovered that four people were sitting in one, an Audi, and that there were twopeople in the other. The alley was dark, and there were no lights on in either car.

Officer LoProto testified that, upon approaching the vehicles, he asked the occupants to step out of them. After all six of them had done so, he looked into the Audi from his position outside the passenger side of the vehicle. With the help of the dome light² and his own flashlight, Officer LoProto observed a pistol lying, in plain view, on the rear floor of the car, slightly towards the passenger side. The officer removed the pistol and arrested Gomez, who had been sitting in the seat nearest the pistol.

The defense presented the testimony of Jaime Gusman, another occupant of the Audi, and of Gomez himself.³ Gomez, who came to this country from El Salvador and testified that he spoke little English and could not read or write either English or Spanish, testified through an interpreter. Both Gusman and Gomez asserted that the officers roughly ordered them out of the car. Each claimed that the pistol was not in plain view and that it was recovered only after a thorough search of the vehicle, including the trunk. Both of the defense witnesses stated that, upon locating the weapon, Officer LoProto told them not to move "or I'll blow your fucking head off," or words to that effect. Gusman also claimed that he was punched in the face and kicked in the knee by the police.

B. The inculpatory statement.

Gomez and one of his companions were arrested and taken to the Third District station house. The officers relieved Gomez of his shoe laces and his keys. They handcuffed him to a table by his left wrist. Officer LoProto presented Gomez with a Spanish-language "PD-47" (waiver of rights form). He left Gomez with Officer Jose Gonzalez, who spoke some Spanish.

Officer Gonzalez testified that he read Gomez the Spanish version of the Miranda⁴ rights appearing on the PD-47. He asked Gomez each of the four "waiver of rights" questions printed on the reverse of the form. Gomez responded "si" to each question, indicating that he understood his rights and was willing to answer questions without an attorney present. Officer Gonzalez said he then instructed Gomez to write his responses on the PD-47, and to sign the form. Officer Gonzalez and Officer LoProto watched as Gomez completed the PD-47. After signing the PD-47, Gomez admitted that the pistol belonged to him. He told the officers that he was confessing because he did not want his friend to get into trouble.

Gomez testified, in substance, that the officer who gave him directions with respect to the rights card spoke a mixture of English and defective Spanish, and that he did not understand what the officer was saying. He claimed that the officer wanted him to sign the card, and that he explained to the officer that he did not know how to write. Thereafter, according to Gomez, the officer

stared at me. He put it on a piece of paper and said put it — trace it over here to this one. I wrote it there. He said this isn't anything, you will get out tomorrow.

Q. Now, why did you trace the words si, si, si, si?

A. He told me to.

* * * * * *

Q. Did you feel that you had the right not to write the words si, si, si, si if you so chose?

A. Me?

Q. Yes?

A. No.

Q. Did you understand in any way the writing that was on the piece of paper which you signed?

A. No.

Gomez readily admitted that he had confessed to the police officers, and reiteratedthat he had done so to protect his innocent friend. Defense counsel also elicited from Gomez that he had seen Spanish-speaking people arrested on previous occasions and that they were treated unfairly. He said he had many friends who "tell me that you cannot get involved with the police because you will be the loser."

II THE TRIAL COURT'S DECISION

A. The Fourth Amendment claim.

Gomez contended that the police had seized him in violation of the Fourth Amendment by ordering him out of the car without probable cause to believe, or articulable basis to suspect, that he had committed an offense. He claimed that the recovery of the pistol was the fruit of that unlawful seizure. The government responded that Gomez lacked standing under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), to complain of the search of a car in which he was a passenger, and that even if he had standing, the facts available to the police were sufficient to raise an articulable suspicion of unlawful conduct, and thus supported a brief investigative detention.

At the conclusion of the hearing, the trial judge found the facts as follows:

Officer LoProto received a radio run on December 8th of 1988 at about 10 p.m. This radio run stated that a subject⁵ was dealing drugs in a car in the rear of 1223 M Street, Northwest. This area is a high drug area.

Officer LoProto was familiar with the area, according to him, and the specific location also from walking a foot beat in that area. It was dark at that time. As Officer LoProto and the other officers went into the alley, he found two cars with a total of six people in the cars. The Defendant, Nicholas Gomez, was in a silver Audi in the alley.

Pursuant to police directions, the people in the cars exited the vehicle. After the silver Fox — excuse me — the silver Audi was vacated, Officer LoProto found a weapon in that car near where the defendant had been sitting. Officer LoProto was outside of the car and looking in the car. At the time that he was looking into the car, he had the aid of a flashlight.

The Audi was not owned by the defendant. The defendant was riding in the rear of the car as a passenger. The defendant and another man were arrested and the defendant was transported to the police station.

Turning to the legal issues, the judge held that Gomez lacked standing under Rakas to challenge the seizure because he had no legitimate expectation of privacy in the passenger compartment of the car. In the alternative, he also ruled against Gomez on the merits:

I find that the police officers acted with a basis to say that they had an articulable suspicion, [that] basis being that they were dealing in a high crime area; that the information received was that someone was in a car and dealing drugs at a stated place. That is, the tip itself, or the information that was received, is not in and of itself sufficient to justify a Terry Stop.⁶ But, it is one factor to be considered, taken in the totality of the circumstances. I think that, in conjunction with the other things that I am about to mention, is sufficient.

Also, two cars were found in roughly the location that is contained in the information that the police had received. There were six people sitting in the two cars. This could have been, under the way that the officers observed the scene, it could have been a drug sale situation. Also, the event happened late at night. It was dark. The interiors of the cars were also dark. The officers had legitimate safety concerns at that point. The police also responded four minutes after the call was received to the area that had been specified in the information.

The case is similar to the Johnson case at 496 A.2d 592.⁷ The added factor in Johnson [is] the police receipt of the call describing the sale, the fact that the sale was happening out of a car, and the location of where the sale was supposed to be happening. The stop by the police therefore under Terry is determined by the court to be valid.

Once the valid stop had been made by the police, and I find that a stop had been made, the police can look into the car from the outside using a flashlight to view and seize contraband.

I cite for that proposition Texas v. Brown, 460 U.S. 730 [103 S.Ct. 1535, 75 L.Ed.2d 502] [1983]. That case said that there is no reasonable expectation of privacy in shielding the interior of the car from the public that can...