Turner v. US

• Decision Date: 23 April 1993
• Docket Number: No. 91-CM-1509.,91-CM-1509.
• Citation: 623 A.2d 1170
• Parties: Chauncy TURNER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

623 A.2d 1170

Chauncy TURNER, Appellant, v. UNITED STATES, Appellee.

No. 91-CM-1509.

District of Columbia Court of Appeals.

Argued March 4, 1993.

Decided April 23, 1993.

Jay D. Schiffres, Washington, DC, appointed by the court, for appellant.

Renate D. Staley, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas C. Black, and Michael L. Volkov, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before FERREN, SCHWELB and FARRELL, Associate Judges.

FARRELL, Associate Judge:

In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court held that, once the driver of a car has been validly detained as a criminal suspect under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),

the search of the passenger compartment of the automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Id. 463 U.S. at 1049-50, 103 S.Ct. at 3481 (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880). In this case, following the stop of appellant's hatchback automobile and his removal from it, the police opened a rear quarter panel in the interior of the car and seized a loaded nine millimeter pistol from atop the "doughnut" spare tire. The trial judge sustained the search and seizure on the authority of Terry and Long. Appellant contends that the police lacked the required articulable suspicion to justify his stop and detention, and that, in any event, the search of the vehicle was unjustified because the gun was not hidden in a place "within his immediate grasp," id. 463 U.S. at 1051, 103 S.Ct. at 3482, or from which he could "gain immediate control" of it. Id. at 1049, 103 S.Ct. at 3481. We review de novo the question whether the police had articulable suspicion (part II.), Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991), as well as the permissible scope of a weapons search under Long (part III. A.), but we consider only whether a "substantial basis," Brown, supra, underlies the trial court's finding that the pistol was within appellant's reach (part III. B.). Although the case is a close one at each step of our analysis, we affirm.

I.

We summarize the essential facts, which are described in detail in the trial judge's post-trial memorandum. On October 19, 1991, Metropolitan Police Department officers and FBI agents were collaborating on a task force concerned with repeat offenders. Of particular interest to them was one Carlos McGill, whose portable car telephone had been tapped by the FBI. Monitoring the tap, agents heard McGill discuss with another man the proposed transfer of a firearm to be used in killing someone. The agents shared this information with police officials. The agents had a description of McGill and understood that he would be driving a red 1989 Nissan 300 ZX automobile. The firearm transfer was expected to take place on October 19 in the parking lot of the Shrimp Boat restaurant near East Capitol Street and Benning Road, S.E., across the street from a Metro parking lot. MPD Officer Hubbard, serving at the time as a deputized FBI agent, knew from monitored conversations that McGill had a gun in the trunk of his car. Hubbard was responsible for conveying to police units on the street information retrieved from the FBI wiretap, and he radioed over police channels a description of McGill's vehicle and McGill's name.

Officer Kelvin King of the MPD and his partner were on routine patrol in the Benning Road area and heard the radio lookout for a red 300 ZX Nissan belonging to "Carlos," a black male. The license plate number of the vehicle was also described. At some point King was flagged down by an FBI agent and an MPD officer, and began to assist in surveillance of the Shrimp Boat parking lot. A short time later a red two-door Nissan 300 ZX entered the adjacent Metro parking lot; King noticed that "the seats was sic reclined." The vehicle passed out of King's sight, but other officers soon informed him by radio that a black male had stepped out of the car and, in the company of a second man whose car apparently had been waiting in the lot, opened the rear of the Nissan and "did something in the trunk." The driver of the Nissan then re-entered the car and left the parking lot, driving south on Benning Road. King was instructed to follow the car, which he did for several blocks until he was ordered to stop the vehicle.

While pursuing the car, King noticed that its license plate differed from the description broadcast earlier, though he knew that "a lot of time if a crime was to go down, say like a stolen vehicle, ... license plates can easily be switched." When he stopped the car and ordered the driver— appellant—to step out, he discovered from appellant's driver's permit that he was not Carlos McGill. In the meantime, other officers or agents had reached the scene and quickly searched the interior of appellant's car, finding nothing. At about the same time, two foot patrol officers ran up to the car. One of these officers, Rodney Hawkins, had been told at roll call to watch for a red Nissan 300 ZX suspected of involvement in a planned "hit" or shooting in the Sixth District that day. Arriving at the scene, Hawkins learned that other officers had "searched around the seats and the back" of the hatchback vehicle, but he "decided to look in the back again" because he had previously owned a similar model and knew that the car "had a storage compartment in the right quarter panel where the spare tire is."¹ Asked where "that quarter panel was in relation to the driver's seat of a Nissan 300 ZX," Hawkins explained that "if you just lay your seat back, you can reach right over towards the back of the vehicle." He therefore opened the hatch using the key and "pulled down the quarter panel," located behind the speaker. Inside was a "doughnut" tire and on top of the tire was a loaded nine millimeter Smith and Wesson pistol. Hawkins yelled to the others that he had found a gun. Recalled to the stand as a witness, Officer King testified that he heard Hawkins say "A gun" before he himself had concluded, from examining appellant's license, that they "might have the wrong person" and announced that fact to the others.

At the suppression hearing, appellant argued that the failure of the license plate numbers to match and, even more, Officer King's discovery that appellant was not Carlos McGill eliminated any reason the police had for detaining him and suspecting that his car was linked to a firearm transfer and prospective shooting. The trial judge found, however, that King's "uncertainties" about whether appellant's car was McGill's vehicle "were still inchoate as the search was brought to a conclusion by Officer Hawkins," and that even if Hawkins had known of King's "developing suspicions" as he began his search,² he still "would have been justified in completing his relatively limited search as the status quo was maintained while the doubts raised by Officer King were resolved at curb-side." The judge reasoned:

Even King recognized that license plates can be detached and substituted. Moreover, license plate numbers on a moving car can be misread or garbled in communication. Similarly, driver's permits can be misappropriated, altered, or misused. Apart, then, from discrepancies in license and permit, the search and seizure was explicable by correspondence between recent, reliably obtained police intelligence and the make, model, color, and itinerary of defendant's car, as well as defendant's being black, male, and driver of the car. Further, the timing of events, in King's words, was in "clock work" conformity with what had been predicted. Under the exigent circumstances of preventing the transfer of a murder weapon from a travelling automobile, the police responded reasonably and acted rationally. (Footnote omitted.)

The judge further reasoned that, "except for the area that lay under the hood, defendant's hatchback car consisted exclusively of a passenger compartment," and hence the search of the interior panel was proper under the authority of Michigan v. Long, supra.

II.

Appellant first argues that whatever reasonable basis the agents and police had for stopping his car and fearing that he had a weapon evaporated when Officer King learned that appellant was not Carlos McGill and that the car bore license plates different from those McGill's car reportedly carried. The trial judge concluded, to the contrary, that reason for the detention persisted long enough to "resolve" King's "doubts" about the involvement of appellant's car at curbside, during which time Hawkins discovered the pistol. We sustain that conclusion.

The Fourth Amendment requires "some minimal level of objective justification" for making a stop.... That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.

United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citation omitted). See Gomez v. United States, 597 A.2d 884, 888 (D.C.1991) ("The requirement of `articulable suspicion' is not an onerous one"). Here Officer King's calculations as to whether he still had reason to detain appellant were made almost simultaneously with the search by Hawkins leading to discovery of the gun.³ Appellant displayed a driver's permit indicating he was not McGill, and his license plate did not match McGill's car. Yet, minutes before, King had seen appellant's Nissan 300 ZX arrive in a parking lot adjacent to the Shrimp Boat restaurant, where he and another person engaged in conduct consistent with the predicted transfer of a firearm. King, who was not privy to the...