Shelton v. U.S., 05-CM-1552.

• Decision Date: 19 July 2007
• Docket Number: No. 05-CM-1552.,05-CM-1552.
• Citation: 929 A.2d 420
• Parties: Morris T. SHELTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

929 A.2d 420

Morris T. SHELTON, Appellant, v. UNITED STATES, Appellee.

No. 05-CM-1552.

District of Columbia Court of Appeals.

Argued April 10, 2007.

Decided July 19, 2007.

Kyle A. McGonigal, appointed by the court, for appellant.

George J. Hazel, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, Roy W. McLeese III and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN and KRAMER, Associate Judges, and STEADMAN, Senior Judge.

STEADMAN, Senior Judge:

Appellant was found guilty of one count of unlawful possession of a controlled substance (cocaine) in violation of D.C.Code § 48-904.01(d) (2001). He challenges the trial court's denial of his motion to suppress the cocaine evidence on the ground that his Fourth Amendment rights were violated. We hold that, on the facts and circumstances of record, the motion to suppress should have been granted and we reverse appellant's conviction for unlawful possession of a controlled substance.

I.

At the hearing on appellant's suppression motion, the following facts were developed. Officer Steven Prade has been with the Metropolitan Police Department (MPD) for approximately twelve years, most recently assigned to a Focus Mission Team that "normally target[s] high drug areas within the District." Over the course of his career, Officer Prade has observed an estimated 3,000 drug transactions.

On the evening of November 5, 2004, Officer Prade and his partner were detailed to the 1900 block of Benning Road, N.E., to conduct a plainclothes "buy-bust" drug sting operation supported by an arrest team in separate MPD vehicles. At approximately 7:35 p.m., as Officer Prade drove towards the targeted location, he turned his unmarked police vehicle into a convenience store parking lot at 1830 Benning Road, on the northwest corner of Benning Road and 19th Street, N.E. Officer Prade stopped directly behind a car with two occupants, including a person in the driver's seat later identified as appellant, and immediately observed a man approach appellant's window with United States currency visible in his hand. During a thirty to ninety-second conversation, the man handed the money to appellant and, in a gesture that Officer Prade viewed as "no handshake," appellant appeared to place an unidentified "small object" in the man's hand. The man then walked away and appellant drove his car out of the parking lot. Officer Prade, believing he had witnessed a drug transaction, followed appellant's car and radioed its description to the arrest team with instructions for appellant's arrest.¹ Appellant was stopped and, in a search incident to arrest, officers recovered from appellant's left sock a white piece of paper containing two rocks that later tested positive for cocaine.

Before trial, appellant filed a motion to suppress tangible evidence, i.e., the cocaine, contending that the officers acted without probable cause when they arrested him and thus that the subsequent search, not being incident to a lawful arrest, violated his Fourth Amendment rights. The government conceded that probable cause was required because this was not a mere investigatory stop, but maintained that based on Officer Prade's observations and experience, he had probable cause to order appellant's arrest. The trial court agreed with the government and denied appellant's motion to suppress. Appellant then stipulated that he possessed cocaine and was found guilty by the trial court of unlawful possession of a controlled substance. He was sentenced to twenty days of incarceration.

II.

The central question in this appeal, the parties agree, is whether Officer Prade had probable cause to believe that an offense had been or was being committed when he ordered the arrest team to intercept and arrest appellant. If we were to find that Officer Prade had probable cause, then the cocaine found on appellant's person was lawfully recovered pursuant to the "search incident to an arrest" rule. Davis v. United States, 781 A.2d 729, 735 (D.C.2001) (citing Mitchell v. United States, 746 A.2d 877, 890 (D.C. 2000)).² On the other hand, if we conclude—as we do today—that the government's evidence failed to show that under the circumstances Officer Prade had probable cause to order appellant's arrest, then the cocaine was inadmissible as the product of an unreasonable search and seizure in violation of the Fourth Amendment. See, e.g., Artis v. United States, 802 A.2d 959, 967-68 (D.C.2002) (citing, among other cases, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).

"In reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc). "In particular, we must give deference to the trial court's findings of fact as to the circumstances surrounding the appellant's encounter with the police and uphold them unless they are clearly erroneous." Prince, supra note 2, 825 A.2d at 931 (citation and internal quotation marks omitted). However, we review de novo the trial court's legal conclusions and make our own independent determination of whether there indeed was probable cause to arrest. Id.

"Under the Fourth Amendment of the United States Constitution, an officer cannot conduct a warrantless search of a person, absent certain exceptions, without probable cause." Davis, supra, 781 A.2d at 734. The test for judging the existence of probable cause is "whether a reasonably prudent police officer, considering the total circumstances confronting him and drawing from his experience, would be warranted in the belief that an offense has been or is being committed." Id. (quotation marks omitted). "The analysis must be guided by practical rather than technical considerations keeping in mind the necessities of the moment and the reasonableness of the officers' actions." Peterkin v. United States, 281 A.2d 567, 568 (D.C.1971), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972) (citing Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)).

Furthermore, we have acknowledged that "[t]he exchange of small objects for currency is an important and sometimes decisive factor in determining the existence of probable cause." Thompson v. United States, 745 A.2d 308, 313 (D.C. 2000) (quoting Tobias v. United States, 375 A.2d 491, 494 (D.C.1977)). "[I]t is not necessary that the police officer be able to see clearly that the small object being handed from one person to another is contraband," Prince, supra note 2, 825 A.2d at 933, or "that all innocent explanations for a person's actions be absent before those actions can provide probable cause for an arrest." Tobias, supra, 375 A.2d at 494; see also Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971) ("[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . .").

Nonetheless, in the present case, even viewing the evidence of record in the light most favorable to the government, we are not satisfied that an adequate foundation was developed to show that Officer Prade could reasonably believe that there was a sufficient probability that criminal activity had occurred based on the activities he observed. Before ordering appellant's arrest, Officer Prade saw: (1) appellant sitting in a car in a convenience store parking lot, (2) a pedestrian holding currency approach appellant's driver's side window and give that money to appellant, (3) the pedestrian receive back from appellant some kind of "small object," and (4) both parties depart the scene. Although Officer Prade's suspicions may indeed have been reasonably raised by the conduct he observed to justify a Terry stop,³ we cannot conclude that probable cause existed on the record before us.

At oral argument, counsel for the government identified three analogous two-way-transaction cases that are said to best support a finding of probable cause in the present case: Peterkin, supra, 281 A.2d 567; Tobias, supra, 375 A.2d 491; and Coles v. United States, 682 A.2d 167 (D.C. 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 751, 136 L.Ed.2d 688 (1997). Each of these cases, however, involved a two-way transaction plus additional suspicious factors that distinguish each case from the present circumstances.⁴

In Peterkin, police officers on patrol in a known "high narcotic area" observed one appellant give currency to the other appellant in exchange for "something" out of a plastic medicine vial. 281 A.2d at 567-68. An arresting officer testified that he recognized the vial as being of the type he previously had seen used to transport narcotics. Id. at 568. Noting that this was a "borderline situation[] regarding probable cause" in which "innocent explanations for the activity may be imagined," this court concluded that the officers had probable cause to arrest the appellants in light of the "unusual" exchange on the street of something from a vial, the use of cash for the transaction, and the character of the neighborhood. Id. at 568-69. Unlike the case before us, Peterkin thus involved not only a two-way transaction but also involvement of a suspicious vial and testimony that the incident occurred in a high drug area (a factor we discuss in additional detail below).

In Tobias, police officers stationed in a neighborhood known for "its high level of narcotics traffic" observed the appellant on two occasions approach people, remove a small object from his shoulder bag, and exchange the object for an undetermined amount of currency. 375 A.2d at 492. The officers followed the appellant and watched as he removed another object from his shoulder bag and approached a third group of people, who warned him that the officers were behind him; app...