HOLSTON v. U.S.

• Decision Date: 15 November 1993
• Docket Number: No. 89-CF-1275,89-CF-1275
• Citation: 633 A.2d 378
• Parties: Kim HOLSTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

633 A.2d 378

Kim HOLSTON, Appellant, v. UNITED STATES, Appellee.

No. 89-CF-1275.

District of Columbia Court of Appeals.

Submitted March 12, 1991.

Decided November 15, 1993.

APPEAL FROM THE SUPERIOR COURT, HERBERT B. DIXON, JR., J.

Joseph H. Green, Jr., Washington, DC, was on the brief for appellant.

Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Thomas C. Black, Barbara A. Grewe, and David A. Payne, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before ROGERS, Chief Judge, and TERRY and WAGNER, Associate Judges.

WAGNER, Associate Judge:

Appellant, Kim Holston, was found guilty by a jury of one count of unlawful possession with intent to distribute a controlled substance (cocaine), in violation of D.C.Code § 33-541(a)(1) (1988). On appeal, he argues that the trial court erred in denying his motion to suppress physical evidence (drugs and cash) which the police seized from the trunk of a car to which appellant had keys. Appellant contends that the warrantless search of the trunk was unlawful because it was: (1) based on an unreliable anonymous tip; (2) exceeded the scope of any search allowed by a Terry stop;¹ and (3) not incident to a lawful arrest or based on independent grounds for probable cause. We hold that although the police lawfully stopped appellant under Terry principles, the warrant-less search of the automobile trunk violated appellant's Fourth Amendment rights. Accordingly, we reverse.

I.

Lieutenant Don Pope of the Metropolitan Police Department was the only witness at the suppression hearing. He testified that at approximately 4:45 p.m. on the afternoon of July 30, 1988, while on patrol with Officer Ann Scott, he monitored a radio dispatch for two scout cars to investigate an anonymous tip about a man with a gun reported to be holding a woman at bay in the 4400 block of Pond Street, N.E. behind a bronze BMW for which the dispatcher provided the license plate number. According to Lt. Pope, the information was called into the communications center by a concerned citizen. Lt. Pope thought, but was not sure, that the dispatcher also said the gunman was a Black male. He recalled no physical or clothing description given for the man or the woman. Lt. Pope was the first officer to arrive on the scene, fifteen seconds after the broadcast.

Lt. Pope spotted appellant standing behind a BMW which matched in all respects the description of the car given in the radio run, including the tag number. Appellant was leaning into the trunk of the car as if putting something in or taking something out. Appellant was the only person the lieutenant saw in the area at the time. Appellant glanced back and saw the marked police car approaching. Lt. Pope saw appellant's eyes widen before appellant slammed the trunk shut and started walking away.² Lt. Pope thought that appellant was probably the man described in the radio run. Therefore, Lt. Pope stopped his car, got out with his gun drawn, and stopped and frisked appellant. Lt. Pope found no weapon on appellant, and he asked appellant to whom the BMW belonged. Appellant responded that it was his uncle's car. The police looked around for the woman involved, but they could not locate her. Lt. Pope then took the car keys from appellant's pocket because he thought he had reason to believe that appellant might have placed the gun in the trunk of the car.

When Lt. Pope opened the trunk, he saw several packets of what appeared to be cocaine lying around a large black leather pouch out of which were bulging plastic containers of white powder commonly used to package cocaine. The police seized from the car trunk seventy packets of cocaine and a large sum of money. At no time up to and during the search of the trunk did Lt. Pope tell appellant that he was under arrest; however, he testified that appellant was not free to leave. Later in testimony, Lt. Pope recounted that at the time he approached appellant with his gun drawn, he saw a "female in the general area, except that she was not by the car." The lieutenant estimated that she was "20 or 30 yards in front of the car." Only after Lt. Pope opened the trunk did a female come near the car.³

The trial court credited Lt. Pope's testimony and made factual findings consistent withit. Significantly, the trial court found as fact that "[n]owhere in the general vicinity was anything that appeared to be a woman who had been held at bay with a gun." The court concluded that Lt. Pope's observation of a man standing near a car of the same color, make, and tag number of the car described in the broadcast combined with appellant's suspicious reaction upon seeing the police car provided reasonable articulable suspicion for the police to investigate further, including taking appellant's keys and opening the trunk of the car. The court noted that had it not been for the particularized description of the car, there may have been an insufficient basis for Lt. Pope to seize the keys from appellant. Finally, the court concluded that once the police saw the drugs in plain view, they had probable cause to arrest appellant and that any evidence not in plain view was lawfully seized as a result thereof. For these reasons, the trial court denied the motion to suppress.

Appellant argues that the police lacked the requisite articulable suspicion to conduct a Terry stop because the anonymous tip was unreliable and uncorroborated in important details. Alternatively, appellant argues that his initial detention was in fact a warrantless arrest without probable cause. Specifically, appellant contends that the citizen who reported the crime was not identified and that the description of the person reportedly holding the woman at bay with a gun was too general. Appellant also argues that the search of the trunk was beyond the scope of a Terry based search for weapons because it was motivated solely by a search for illegal drugs. It is the government's position that the anonymous tip was sufficiently corroborated to justify a Terry stop by the police lieutenant's on-the-scene observations. The government further contends that the seizure of appellant's keys and subsequent search of the trunk were lawful based either on concern for police safety during the Terry Stop⁴ or on probable cause under the automobile exception to the warrant requirement.

II.

We consider first whether the trial court correctly ruled that the trunk search was justified as part of an otherwise valid Terry stop. Preliminarily, we hold that the trial court did not err in concluding that the initial stop was justified under Terry principles. It is well established, at least since the Supreme Court's decision in Terry, that the police may stop and briefly detain a person for further investigation without probable cause to arrest provided they have an articulable suspicion based on specific facts and reasonable inferences that the individual is engaged in criminal conduct. Peay v. United States, 597 A.2d 1318, 1319-20 (D.C. 1991) (en banc); Broum v. United States, 590 A.2d 1008, 1013 (D.C. 1991). The " 'minimal level of objective justification' " required "is considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Peay, 597 A.2d at 1320; Gomez v. United States, 597 A.2d 884, 889 (D.C. 1991). When the circumstances warrant, the police may frisk the suspect or conduct a limited search for weapons of areas within the reach of the suspect for the protection of the officers. United States v. Johnson, 540 A.2d 1090, 1094-95 (D.C. 1988); United States v. Mason, 450 A.2d 464, 466 (D.C. 1982). The requisite articulable suspicion for the stop can be furnished by an anonymous tip, and the police may stop a suspect after promptly corroborating innocent details of the tip without first observing illegal conduct. Johnson, 540 A.2d at 1094; see also Gomez, 597 A.2d at 891 n. 17.

In Johnson, we found that the police detective had an articulable suspicion for a Terry stop where he learned through an anonymous tip that unidentified suspects were selling weapons out of an orange Volkswagen at a specific location. We concluded that the tip was sufficiently corroborated when police spotted the car within fifteen seconds after the broadcast at the reported location. Johnson, supra, 540 A.2d at 1091-92.The reliability of the information in the tip was "established as soon as the police arrived on the scene and found that the innocent details of the tip were corroborated." Id. at 1094. We observed in Johnson that the fact that a tip involves weapons may be considered in assessing the reasonableness of the police officer's conduct. Id. at 1091-92. In Johnson, we reversed the trial court's grant of the motion to suppress, concluding that the stop and subsequent protective search for weapons in the passenger compartment and containers in the suspect's car were justified after a frisk during which no weapons were found. Id. at 1094-95. In upholding the scope of the Terry-based intrusion to include the passenger compartment and any closed containers which could likely contain a weapon, we relied on Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and prior decisions of this court. Johnson, 540 A.2d at 1094-95. In Long, the Supreme Court held that:

the search of the passenger compartment of the automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

463 U.S. at 1049, 103 S.Ct. at 3481 (quoting Terry, supra note 1, 392 U.S. at 21, 88 S.Ct. at 1880).

In Gomez, we also upheld a Terry stop initiated as...