Johnson v. U.S., 09-CM-1233.

• Decision Date: 12 November 2010
• Docket Number: No. 09-CM-1233.,09-CM-1233.
• Citation: 7 A.3d 1030
• Parties: Tashina JOHNSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

7 A.3d 1030

Tashina JOHNSON, Appellant,

v.UNITED STATES, Appellee.

No. 09-CM-1233.

District of Columbia Court of Appeals.

Submitted Sept. 9, 2010.

Decided Nov. 12, 2010.

Christine Pembroke, Washington, DC, appointed by the court, for appellant.

Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Mary B. McCord, Trevor N. McFadden, and John P. Gidez, Assistant United States Attorneys, for appellee.

Before REID and FISHER, Associate Judges, and BELSON, Senior Judge.

FISHER, Associate Judge:

Tashina Johnson was convicted of unlawful possession of a controlled substance, D.C.Code § 48-904.01(d) (2001), after police officers saw a handgun on the floor of a car in which she was riding and, during a search of the car's interior, found marijuana in her purse. Appellant argues that the trial court erred in denying her motion to suppress. Because the search was permissible incident to the lawful arrest of another passenger, we affirm.

I. Background

While on routine patrol, two police officers focused their attention on a Volvo; a WALES check indicated it was stolen.¹ The car contained two males, the driver and the front passenger, and appellant, who was seated behind the driver. After the driver parked the Volvo (apparently without prompting by the police), the officers pulled up, turned on their emergency lights, and approached the car on foot. The officer who approached from the passenger side saw a large semiautomatic handgun on the floor below the front passenger's legs, and saw the front passenger move his legs in an attempt to conceal the weapon. The officers then ordered all three occupants to get out and placed them in handcuffs.

After confirming that the vehicle had been reported stolen and contained a handgun, the officers arrested all the occupants.At that point, appellant spontaneously asked, "[W]hat's going to happen to my purse?" and "Is it going to be at the station[?]" The officers then searched the car for weapons, ammunition, and contraband related to the handgun. They found a purse, large enough to hold a handgun, on the rear seat.² Another officer searched the purse and, within "just a few seconds," found a plastic bag containing marijuana inside it.

Prior to trial, Ms. Johnson moved to suppress the marijuana, arguing that the police lacked reason to believe (either probable cause or reasonable, articulable suspicion) that she was involved in criminal activity and therefore had no right to search the purse. After a combined suppression hearing and trial, Judge Epstein, relying on the officers' testimony about the likelihood of finding more guns or ammunition, found that the police "had reason to believe" that the passenger compartment contained evidence of the offense of carrying a pistol without a license, for which the front passenger had been arrested. Applying Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Judge Epstein concluded that the police had authority to search the passenger compartment and those containers within it capable of holding evidence of the crime, including weapons and ammunition. Having also found that the purse was big enough to hold a weapon and "certainly ammunition," the court denied the motion to suppress. The court found appellant guilty beyond a reasonable doubt.

II. Analysis

Appellant argues that the officers lacked probable cause to arrest her either for possessing the handgun or for unauthorized use of a motor vehicle; that there was no "reasonable basis" to believe that the purse would contain evidence of a weapons offense; and that, even if there were, the search of the purse exceeded the permissible scope of a search for weapons. The import of her arguments is that the search of the purse did not fall within any exception to the warrant requirement of the Fourth Amendment and that the marijuana should have been suppressed. As the trial judge correctly decided, however, the search was properly conducted incident to a lawful arrest. See Arizona v. Gant, supra.

"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)). We review de novo the trial court's legal conclusions and "defer[ ] to the trial court's findings of fact unless they are clearly erroneous." Limpuangthip v. United States, 932 A.2d 1137, 1141 (D.C.2007) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

A. The Right to Search a Vehicle Incident to Arrest

Following the Supreme Court's recent decision in Gant, there are two separate rationales for permitting the search of an automobile incident to the arrest of a recent occupant. "Police may search a vehicle incident to a recent occupant's arrestonly if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Arizona v. Gant, 129 S.Ct. at 1723 (emphasis added). The original justification for a search incident to arrest-that the arrestee "might gain possession of a weapon or destructible evidence," Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)-does not apply to this case. As the Court held in Gant, "[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, [the Chimel ] justifications for the search-incident-to-arrest exception are absent and the rule does not apply." 129 S.Ct. at 1716.³

"Although it does not follow from Chimel, [the Supreme Court] also conclude[d] [in Gant ] that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' " 129 S.Ct. at 1719 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring in the judgment)). In such circumstances, officers may "search[ ] the passenger compartment of an arrestee's vehicle and any containers therein." Id. at 1719 (emphasis added). See, e.g., Dawkins v. United States, 987 A.2d 470, 476 (D.C.2010) (upholding the search of an automobile under this prong of Gant ).

B. Reason to Search the Vehicle

In this case, the front seat passenger was arrested after the officers found a handgun beneath his legs. After they removed the driver and his passengers from the car, the officers searched "for other objects, other contraband related to the weapon, other weapons, ammunition, items of that sort." The officer who first saw the gun testified that, based on his training and experience, where there is one gun there may be more than one. Crediting the officers' testimony, the trial judge found that "at the time of the search the police had reason to believe that there might be evidence of the offense of arrest [-] carrying a pistol without a license [-] in the passenger compartment of the car, including containers in the passenger compartment, and [he concluded that] they were therefore justified in searching [appellant's] purse."

We find no error in the trial judge's factual findings or legal conclusion. The officer in this case observed the handgun in plain view on the floor of the car. Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ("There is no legitimate expectation of privacy ... shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.") (citation omitted). The sight of the handgun was evidence that a weapons offense was being committed, as was the front passenger's attempt at concealment. See, e.g., D.C.Code § 22-4504(a) ("No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law...."). In addition, the trial judge credited testimony from one of the officers that where there is one gun, there may bemore guns or ammunition.⁴ In the totality of the circumstances, it was, at a minimum, "reasonable to believe" that the vehicle contained additional weapons or ammunition. See, e.g., Dawkins, 987 A.2d at 476 ("[H]aving observed appellant lean into the car and close the door shortly before he was seen with a marijuana blunt, the officers reasonably could have believed that appellant had additional marijuana or drug paraphernalia in the car such that it was 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' " (quoting Gant, 129 S.Ct. at 1719)); United States v. Vinton, 389 U.S.App. D.C. 199, 211, 594 F.3d 14, 26 (2010) (it was reasonable for officer to believe that "there might be additional weapons in the car, particularly in the locked briefcase found on the backseat." (applying Gant )); People v. Osborne, 175 Cal.App.4th 1052, 96 Cal.Rptr.3d 696, 705 (2009) ("Although the firearm found on defendant was loaded, it was reasonable to believe that the vehicle might contain additional items related to the crime of gun possession such as more ammunition or a holster." (applying Gant )).

Indeed, cases addressing similar circumstances establish that the officers had probable cause to search the vehicle. See Andrews v. United States, 922 A.2d 449, 457 n. 13 (D.C.2007) ("Once Officer Dean saw the ammunition clip in plain view, the police had probable cause to seize and search the vehicle."); Hurley v. United States, 273 A.2d 840, 841 (D.C.1971) (holding that the discovery of nine bullets but no weapon during the search of a driver created "probable cause to search the vehicle for contraband, that is, the pistol"); United States v. Boucher, 909 F.2d 1170, 1175 (8th Cir.1990) ("Cooper ... had...