Minnick v. US, 90-CF-39.

• Decision Date: 05 May 1992
• Docket Number: No. 90-CF-39.,90-CF-39.
• Citation: 607 A.2d 519
• Parties: Debra A. MINNICK, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

607 A.2d 519

Debra A. MINNICK, Appellant, v. UNITED STATES, Appellee.

No. 90-CF-39.

District of Columbia Court of Appeals.

Argued October 1, 1991.

Decided May 5, 1992.

Joanne M. Vasco, appointed by the court, for appellant.

Kristan L. Peters-Hamlin, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Lori A. Green, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN, TERRY and SCHWELB, Associate Judges.

TERRY, Associate Judge:

Appellant Minnick and a co-defendant, James Hayes, were charged with possession of phencyclidine (PCP) with intent to distribute it, in violation of D.C.Code § 33-541(a)(1) (1988). After the trial court denied her motion to suppress evidence, Minnick was found guilty by the court in a stipulated trial. On appeal she challenges only the denial of her motion. We affirm.

I

On June 9, 1988, at about 7:00 p.m., Detectives Michael Keenan and Jeff Wasserman of the United States Park Police were sitting in an unmarked car in a restaurant parking lot at the corner of New York and Florida Avenues, N.E. They had been assigned to watch automobile traffic into and out of the nearby Lincoln Road area, which was, according to Keenan, "a section of the city known for the distribution of PCP, particularly to younger white people from Baltimore, Anne Arundel County, Howard County and northern Maryland." From where the detectives were parked, they could not see Lincoln Road,¹ and they did not witness any drug transactions that evening.

As they sat in the parking lot, the detectives noticed a tan Chevrolet driving west along New York Avenue. The car was occupied by appellant Minnick and her codefendant, James Hayes. Approximately ten minutes later the same car appeared again, this time headed south on Florida Avenue toward New York Avenue. Minnick was at the wheel, and Hayes was seated beside her. Seeing Minnick make an illegal left turn onto New York Avenue, the detectives decided to follow her.

As they drove along behind Minnick's car, the detectives noticed it weaving slightly back and forth as it traveled east on New York Avenue. Keenan testified that Minnick's car crossed the white lines separating the lanes at least three times.² Because of this weaving and the illegal left turn, the detectives pulled Minnick over to the side of the road after following her for one-half to three-quarters of a mile.³ Detective Keenan freely admitted in his testimony that he initially decided to follow Minnick and Hayes because they closely matched the profile of persons known to be involved in drug activity in that area, "but it was the traffic violation that finally caused me to pull them over."

Detective Wasserman got out of his car and walked over to Minnick's car on the driver's side, while Detective Keenan approached on the passenger's side. Wasserman asked Minnick for her driver's license and registration, and Keenan simultaneously asked Hayes to open his window. As soon as Hayes rolled the window down, Detective Keenan smelled a strong odor of PCP emanating from inside the car. Wasserman told Keenan that he too noticed an odor of PCP. Detective Keenan asked both Minnick and Hayes to step out of the car and then proceeded to search it. In the course of the search, Keenan dumped the contents of Minnick's purse onto the hood of the car, and when he did so, he found among those contents two vials of PCP. He seized the vials and placed Minnick and Hayes under arrest.

In denying Minnick's motion to suppress the vials of PCP, the trial judge said:

Here there were police who were staked out at a high narcotics area. They noticed this car going in. They noticed the car coming out of the area. They followed the car. According to the testimony, which I find credible, the car made an illegal turn. They followed it initially, and the car weaved. It could have been somebody driving under the influence of drugs, driving under the influence of liquor. The car weaved. It crossed or touched ... both lines. I believe the testimony of the police officer. It was stopped. At the time it was stopped, the officers asked the passengers to exit, and they detected a strong odor of PCP. That gave them the right to search the entire car, as far as I'm concerned, and anything in the car. And any seizure made at that time was incident to a lawful arrest, pursuant to a lawful stop. So the motion to suppress is overruled....

II

Minnick argues that the initial stop of her car by the two detectives was a sham and therefore unreasonable under the Fourth Amendment. More specifically, she maintains that the detectives stopped her car for the sole purpose of searching it for illegal drugs, even though they did not have probable cause to believe that she had committed a drug offense. She asserts that the traffic violation, which she says did not even occur, was merely a pretext for the detectives to stop her car and search it for drugs.

Minnick correctly notes that the Supreme Court has not directly dealt with an assertion that a traffic stop was pretextual. Although the Court in several cases has considered the propriety of random license checks, sobriety checkpoints, and the like,⁴ it has never focused squarely on the constitutionality of pretextual traffic stops.⁵ This court, however, has recognized that a pretextual stop may violate the Fourth Amendment. In Punch v. United States, 377 A.2d 1353, 1356 (D.C.App.1977), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978), we said that an exception to the general rule that the police may stop a vehicle after witnessing a traffic offense "may exist where the traffic stop is a sham to mask other purposes." Similarly, in Mincy v. District of Columbia, 218 A.2d 507 (D.C.App.1966), we held that a routine spot check of a motorist is not unreasonable "provided such a check is not used as a substitute for a search for evidence of some possible crime unrelated to possession of a driver's permit." Id. at 508 (citations omitted). These two cases at least suggest that evidence of pretext may make such intrusions constitutionally questionable.⁶

While neither Punch nor Mincy involved an allegedly pretextual stop, other courts have considered what factors might make a stop pretextual, and hence unconstitutional. The Eleventh Circuit invalidated on grounds of pretext a stop and subsequent search of a driver who had "allowed his right wheels to cross over the white painted lane marker about four inches, in violation of Florida traffic laws." United States v. Miller, 821 F.2d 546, 547 (11th Cir.1987). Earlier, in United States v. Smith, 799 F.2d 704, 706 (11th Cir.1986), the same court invalidated as pretextual the 3:00 a.m. stop of a car for "weaving," when the officer testified only that the car had out-of-state tags, that it was occupied by two young men, and that the driver "appeared to be driving overly cautious" and did not look in the direction of the police car parked in the median as he drove past. See also United States v. Valdez, 931 F.2d 1448, 1451 (11th Cir.1991) (concluding "that the objective evidence reveals that police officers would have been uninterested in pursuing Valdez' violation of the right-of-way absent their hope of finding evidence of violation of the narcotics laws," and thus holding that the stop was "unreasonably pretextual and unconstitutional").

In determining or inferring that the traffic stops in all of these cases were pretextual, the Eleventh Circuit applied the same narrow objective test. Evidence of the officer's subjective intent in each case was deemed irrelevant by the courts. As the court noted in Smith, supra, "appellants are in error in contending that the officer's subjective motivation alone invalidates the stop." 799 F.2d at 708. This objective standard is constitutionally compelled. The Supreme Court has held:

The existence vel non of a Fourth Amendment violation turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time. Subjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional.

Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978); accord, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2308-2309, 110 L.Ed.2d 112 (1990) ("evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer"); Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985) (whether a Fourth Amendment violation has occurred does not depend on "the officer's actual state of mind at the time the challenged action was taken," citing Scott); see United States v. Guzman, 864 F.2d 1512, 1518 (10th Cir.1988) (reversing trial court ruling based on "a subjective inquiry, which ... was inappropriate").⁷ The Scott case has been cited by this court as requiring an objective assessment of police conduct in determining the validity of stops and seizures. "Objective reasonableness is all that is required by the Fourth Amendment's prohibition upon `unreasonable' seizures...; the officer's asserted reason for his action is not controlling." Marbury v. United States, 540 A.2d 114, 115-16 (D.C.App.1985); see also Alvarez v. United States, supra note 6, 576 A.2d at 717; Dunham v. District of Columbia, 442 A.2d 121, 127 n. 8 (D.C.App.1982); United States v. Mitchell, 293 U.S.App.D.C. 24, 28, 951 F.2d 1291, 1295 (1991).⁸

While we are clearly governed by the Scott test in determining the validity of the traffic stop at issue here, there are different formulations of this objective standard from which we may choose. The Tenth and Eleventh Circuits have given Scott a narrow reading in crafting their objective test. Those courts have held that "in determining whether an investigative stop is invalid as pretextual, the proper inquiry is whether a reasonable...