Speight v. US

• Decision Date: 01 February 1996
• Docket Number: 94-CF-1358.,No. 94-CF-1241,94-CF-1241
• Citation: 671 A.2d 442
• Parties: Herman R. SPEIGHT, Appellant, v. UNITED STATES, Appellee. Gary E. SMITH, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

671 A.2d 442

Herman R. SPEIGHT, Appellant, v. UNITED STATES, Appellee.

Gary E. SMITH, Jr., Appellant, v. UNITED STATES, Appellee.

Nos. 94-CF-1241, 94-CF-1358.

District of Columbia Court of Appeals.

Argued November 16, 1995.

Decided February 1, 1996.

Miriam Ruttenberg, with whom C. Russell Twist, appointed by this court, appeared on the brief, Washington, for appellant Herman Speight.

Harley J. Daniels, appointed by this court, Washington, for appellant Gary E. Smith, Jr.

Magdalena A. Bell, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before FERREN, FARRELL, and REID, Associate Judges.

FERREN, Associate Judge:

A jury found appellant Gary E. Smith, Jr. guilty of possession with intent to distribute PCP, D.C.Code § 33-541(a)(1) (1993 Repl.), and possession with intent to distribute marijuana, id. § 33-541(a)(1). The jury found appellant Herman R. Speight guilty of possession with intent to distribute PCP while armed, id. §§ 33-541(a)(1), 22-3202 (1989 Repl.); possession with intent to distribute marijuana, id. § 33-541(a) (1989 Repl.); possession of an unregistered machine gun, id. § 6-2311(a) (1989 Repl.); possession of an unregistered pistol, id. § 6-2311(a); two counts of possession of ammunition, id. § 6-2361(3) (1989 Repl.); and possession of a firearm during a crime of violence or dangerous offense, id. § 22-3204(b) (1989 Repl.). Appellants argue on appeal that the trial court erred by denying their respective (1) motions to suppress and (2) motions for judgment of acquittal based on insufficient evidence of constructive possession of the drugs and weapons found in the automobile they were near when arrested. We affirm.

I.

On February 5, 1993, at approximately 9:30 p.m., an anonymous caller informed police about a man with a gun in the area of 11th Street and Park Road, N.W. The caller described two black males, one wearing a white cap, jeans, and a red hooded sweatshirt, and the other wearing jeans, a black coat with fur around the collar, and a black cap. The caller said the two suspects had placed guns and drugs in a blue Dodge Aspen, with a given license plate number, parked near the San Miguel restaurant in the 3300 block of 11th Street.

Officers William Witkowski and Darryl Green arrived on the scene within two or three minutes of receiving the caller's information radioed to them in their patrol car nearby. As the officers approached the 3300 block of 11th Street, they saw a blue Dodge Aspen with a license plate number that matched the tag number described over the police radio. The officers then saw two men walking across the street from the 3300 block to the 3400 block of 11th Street. One of the men, later identified as Smith, was wearing a white cap, jeans, a red hooded sweatshirt, and a black jacket over the sweatshirt; the other, later identified as Speight, was wearing jeans, a black coat with fur around the collar, and a black cap. Although the officers observed a few other persons nearby, no one else in the area at that time wore clothing that matched the anonymous caller's descriptions.

When the officers first saw appellants, Smith was walking approximately five to ten feet in front of Speight as the two crossed the street. As the uniformed officers approached appellants in a marked police car, Smith continued walking north and entered a nearby convenience store, while Speight remained near 11th and Park Road where the police had first observed him. The officers stopped both appellants and brought them together in the middle of the block.

Officer Witkowski, who performed a protective pat-down of Smith, felt keys in Smith's pants pocket but discovered no drugs or weapons during the frisk. In stopping Speight, Officer Green learned Speight's name, address, and Social Security number but, during a frisk, found no drugs or weapons. Officer Dino McFadden, also responding to the radio broadcast, then arrived and informed Officer Witkowski that a WALES check on the Dodge Aspen revealed that Speight was the registered owner. Officer Witkowski learned that the frisk of Speight did not yield any car keys, so Witkowski asked Smith whether he had any keys. When Smith replied that he did not, Witkowski reached into Smith's pocket and removed a set of keys.

Officer Witkowski recognized that the keys belonged to a Chrysler or Dodge vehicle and, with Green, walked over to the Dodge Aspen about a block away. As the officers began to examine the outside of the car, they smelled the odor of PCP emanating from the partially open passenger side window. The officers opened the car with the keys seized from Smith's pocket.

Under the car's front seat the officers discovered an opaque GAP shopping bag containing 23 plastic heat-sealed bags, each of which (according to later tests) contained marijuana laced with PCP. In the center console of the vehicle, the police found a plastic container with a fully-loaded .38 caliber revolver and a fully-loaded magazine for a semiautomatic weapon. In the trunk the officers discovered a Glock .9-millimeter semiautomatic handgun, a gallon-size glass jar that smelled of PCP, and a box of heat-sealable sandwich bags. The officers then informed Speight and Smith that they were under arrest.

While Speight was on his way to the police station, he asked the officer "who had called him in." Upon arriving at the police station, Speight told the officer that he knew who had snitched on him because he had seen the person "call him in on the pay phone."

When Smith arrived at the police station, he asked an officer what he was charged with doing. The officer replied with the charges against him, whereupon Smith responded, "There ain't no way I can beat this shit, can I?"

II.

We first consider appellants' contention that the trial judge erred in denying their respective motions to suppress evidence. In order to determine the admissibility of the drugs and weapons found in the Dodge Aspen, we initially must evaluate whether the police had a reasonable, articulable suspicion justifying the initial stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We conclude that the detailed anonymous phone tip, the corroboration of innocent details of the tip, and the caller's report that the suspects possessed weapons — when considered together — provided the police with reasonable suspicion to stop and frisk appellants.

Second, we address the scope of the frisk. We conclude that the seizure of the keys from Smith's pocket exceeded the scope of a permissible Terry frisk because, at the time the keys were seized, the officer did not have reason to believe they were a weapon or contraband. The fact that Smith had the keys to the car, therefore, could not lawfully contribute to establishing probable cause to support the officers' search of the car. We also conclude, however, that Smith's possession of the car keys was evidence admissible at trial because the keys inevitably would have been discovered incident to appellants' subsequent, lawful arrest.

Third, we consider whether the Fourth Amendment allows the police to conduct a warrantless search of a vehicle lawfully parked on a public street when there is probable cause to believe the vehicle contains weapons and contraband. We conclude that the officers legally may search such a vehicle based on probable cause without a warrant, and that, in this case, the information lawfully available to the officers at the time they searched the Dodge Aspen constituted probable cause.

Finally, we conclude that the combination of a corroborated, detailed, anonymous tip, when coupled with the discovery of weapons and illegal drugs in the car, gave the police probable cause to arrest appellants, without consideration of the illegally seized keys. We therefore affirm the trial court's denial of appellants' motions to suppress the physical evidence.

A. Reasonable Suspicion Justifying a Terry Stop

The question whether the officers had reasonable suspicion justifying a Terry stop is a mixed question of fact and law. On appeal, this court accepts the trial court's factual findings unless they are clearly erroneous but makes an independent legal conclusion as to whether there was reasonable suspicion for the stop. See Cauthen v. United States, 592 A.2d 1021, 1022 (D.C.1991); Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991).

A police officer must have a reasonable, articulable suspicion that criminal activity is afoot before that officer lawfully can stop (or seize) an individual without that person's consent. See Terry, 392 U.S. at 30, 88 S.Ct. at 1884. "Reasonable suspicion, like probable cause, is dependant upon both the content of information possessed by police and its degree of reliability." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). Courts must consider the totality of the circumstances in assessing whether the police had sufficient justification for a Terry seizure. See id.; Illinois v. Gates, 462 U.S. 213, 241, 103 S.Ct. 2317, 2333-34, 76 L.Ed.2d 527 (1983); Mayes v. United States, 653 A.2d 856, 861 (D.C. 1995).

We have upheld Terry seizures in previous cases when the content of the information the police acquired was equal to, or less than, the information the officers had here. See, e.g., Turner v. United States, 623 A.2d 1170, 1172 (D.C.1993) (FBI wiretap reported that black male named Carlos, in red Nissan 300 ZX with identified license number, was planning to transfer firearm for use in killing someone; stop upheld although suspect police detained was not suspect described in radio broadcast); Offutt v. United States, 534 A.2d 936, 937-38 (D.C.1987) (police informant reported suspect was 6'3" tall, weighed 240 pounds, was wearing particular attire, was located on ninth floor of specified building, and had...