Price v. U.S.

• Decision Date: 27 March 1981
• Docket Number: No. 79-1218.,No. 80-174.,79-1218.,80-174.
• Citation: 429 A.2d 514
• Parties: Terrence E. PRICE, Appellant, v. UNITED STATES, Appellee. Arnold D. COLQUITT, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 514

429 A.2d 514

Terrence E. PRICE, Appellant, v. UNITED STATES, Appellee.

Arnold D. COLQUITT, Appellant, v. UNITED STATES, Appellee.

No. 79-1218.

No. 80-174.

District of Columbia Court of Appeals.

Argued November 5, 1980.

Decided March 27, 1981.

Jeffrey C. Hines, Washington, D. C., appointed by this court, for appellant Price.

B. Jenkins Middleton, Washington, D. C., appointed by this court, for appellant Colquitt.

A. Carlos Correa, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. and John A. Terry, Melvyn H. Rappaport, J. Alvin Stout, III and Charles R. Richey, Jr., Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before KERN and GALLAGHER^* and FERREN, Associate Judges.

KERN, Associate Judge:

Appellants Price and Colquitt were convicted at separate jury trials for carrying a pistol without a license (D.C. Code 1973, § 22-3204), possession of an unregistered firearm (Art. 51, Sec. 1, Police Regulations of the District of Columbia), and possession of unregistered ammunition (Art. 53, Sec. 2, Police Regulations of the District of Columbia).¹ Appellant Colquitt was also convicted of possession of marijuana (D.C.Code 1973, § 33-402).² This consolidated appeal challenges the trial court's denial of appellants' pretrial motions to suppress statements and evidence on the ground that the warrantless seizure of evidence which led to their arrest was conducted without probable cause.³

At about 2 p. m. on March 29, 1979, officers of the Metropolitan Police Drug Unit observed appellants sitting in the front seat of a car which was parked illegally in an alley located in a neighborhood of high narcotics activity. As the officers approached in a marked police cruiser, they observed Colquitt, sitting in the passenger seat, bend forward and immediately come back up. The officers pulled up to the car and as they got out of the cruiser, both appellants got out of the passenger side of their car, closed the door and stood by the car. One of the police officers looked through the car window and saw a folded manila "coin" envelope on the floor. The officer, based on his own experience in drug enforcement, "suspected the envelope contained contraband, probably narcotics." When the officer opened the car door and reached inside to seize the envelope, he saw a gun sitting on top of some other articles on the floor on the passenger side of the front seat. The gun and envelope were seized and appellants were arrested.⁴

Appellants argue that under the Fourth Amendment, the police were required to obtain a warrant before entering the car to seize the envelope and failure to do so required suppression of the seized evidence at trial. The Fourth Amendment warrant requirement is not absolute, however, and warrantless searches and seizures are permitted where there is a finding of probable cause and exigencies of the moment require prompt action. In this case, exigencies were created by the inherent mobility of the automobile and the easily destructible nature of the evidence. When combined with the diminished expectation of privacy commonly attached to an automobile, the "auto search" exception to the Fourth Amendment would permit the warrantless entry of the car if probable cause is demonstrated. E. g., United States v. Whitfield, 208 U.S.App.D.C. 102, 106-07, 629 F.2d 136, 140-41 (1980). We conclude under the circumstances of this case that the officer had probable cause to believe that the manila envelope contained contraband and thus was permitted under the Fourth Amendment to enter the car and seize the article.⁵

The determination of probable cause is an inexact judgment. The usual test holds that probable cause exists where "the facts and circumstances within their [the police officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). In this case, as in others involving warrantless searches and seizures, "[t]he troublesome line . . . is one between suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all circumstances." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Our conclusion that the officer in this case acted upon probable cause is based on an analysis of the events and surrounding circumstances leading up to the officer's decision to enter the car and seize the manila envelope.

The arresting officer, Officer Hill, first became suspicious when he saw the appellants sitting in the car parked in the alley. That alley was on his regular patrol⁶ and in any given tour of duty he passed through that alley anywhere from one to ten or twenty times. (Record at 8, 43-44.)⁷ The mere presence of the appellants and the car in that alley was highly suspicious from the officer's perspective for three reasons: (1) despite his frequent patrol of that alley, he had never seen a car parked there before (Record at 9), (2) the alley was a narrow one, not designed to accommodate parked cars (Record at 9), and (3) narcotics users in that neighborhood had recently taken to using parked cars as a place to inject drugs following the closing of a local rooming house notorious for such activity. (Record at 33.) Based upon this experience, the officer testified at the suppression hearing that he was sufficiently suspicious to want to investigate the situation and perhaps ask the appellants to "move on." (Record at 42, 49.) Based on those suspicions, Officer Hill turned his marked police cruiser into the alley.

As the officer drove toward the car containing appellants, his suspicion was further increased by the action of Colquitt, who was seated on the passenger side. The officer saw Colquitt bend forward, bringing the upper part of his body down in front of him and then come immediately back up.⁸ (Record at 10.) This gesture was important in shaping Officer Hill's conclusion that the seized envelope contained narcotics. Although a "furtive gesture" is not sufficient standing alone to provide probable cause to believe a crime is being or has just been committed, it is a circumstance properly to be considered. "The significance of appellant's movement is that it was made simultaneously with the realization that he was about to be halted by the police. The police officer, therefore, was reasonably justified in suspecting that appellant was attempting to conceal contraband or the instrumentality of a crime." McGee v. United States, D.C.App., 270 A.2d 348 (1970).

The police cruiser stopped near the appellant's car and the police officers got out of the cruiser. The appellants simultaneously exited their car, both from the passenger side, and shut the door. (Record at 10, 43). That act added to the officer's suspicion both because the appellants left their car immediately following the "furtive gesture" (Record at 53), and because Price slid across from the driver's seat in order to exit from the passenger side and stand between the police and the car rather than merely stepping out on his side of the car⁹ (Record at 10, 33-34.)

Under all these circumstances Officer Hill testified that it was no longer "just a car parked" [sic]. (Record at 48.) The officer approached the car and stood near one of the appellants. After Colquitt made the motion, Officer Hill determined to look in the car because he felt something was "afoot." (Record at 53, 65.) He stated he "was very curious about what had been put down. I knew something had been put down." (Record at 32.) The officer said he was "looking down through the window at the floor, I wanted to see what Colquitt had done that — when he went forward." (Record at 11.) Focusing his attention on the floor of the passenger side of the front seat where Colquitt had made his suspicious movement, Officer Hill spotted the manila "coin" envelope.

It must be emphasized that the envelope was located at the very point where Colquitt's furtive gesture had been directed. The manila "coin" envelope, although a common object, is necessarily colored by the circumstances surrounding its discovery. Officer Hill testified that based on his eight years of experience dealing with narcotics offenses he concluded that the envelope contained narcotics. He noted that he had been involved in hundreds of drug related arrests and in perhaps 20% of those arrests these small manila envelopes were involved. (Record at 14.) He stated that: "Most every time I had a narcotic arrest involving one of those envelopes, it would be the carrier of the narcotics that I was seizing (Record at 15.) In Bell v. United States, 102 U.S.App.D.C. 383, 387, 254 F.2d 82, 86 (1958), the court comments:

An officer experienced in narcotics traffic may find probable cause in the . . . appearance of paraphernalia which to the lay eye is without significance. His action is not measured by what might be probable cause to an untrained civilian passerby . The question is what constituted probable cause in the eyes of the reasonable, cautious and prudent police officer under the circumstances of the moment.

The problem . . . is one of probabilities — not certainties and not necessarily eventual truth. . . . [R]oom must be allowed for some mistakes, so long as the mistakes are those of reasonable men, acting on facts leading sensibly to their conclusions of probability.

We emphasize that we do not say that the mere presence of the manila "coin" envelope created probable cause to believe it contained narcotics merely because it is frequently used for that purpose. Rather, we emphasize in concluding the officer had probable cause to seize this particular envelope as containing drugs (1) the suspicious circumstances in...