U.S. v. Broadie

• Decision Date: 07 July 2006
• Docket Number: No. 04-3174.,04-3174.
• Parties: UNITED STATES of America, Appellee v. Morris M. BROADIE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

452 F.3d 875

UNITED STATES of America, Appellee v. Morris M. BROADIE, Appellant.

No. 04-3174.

United States Court of Appeals, District of Columbia Circuit.

Argued February 7, 2006.

Decided July 7, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 04cr00218-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Florence Pan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Roy W. McLeese, III and David B. Goodhand, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and HENDERSON and RANDOLPH, Circuit Judges.

GINSBURG, Chief Judge.

Morris Broadie challenges his conviction and sentence for unlawful possession with intent to distribute more than 50 grams of cocaine base, a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii). He argues the drugs and cash found in a hidden compartment in his van should have been suppressed because police officers detained him without a reasonable, articulable suspicion or, alternatively, because they arrested him without probable cause, based solely upon seeing he had an "ASP baton." We reject Broadie's claims and affirm his conviction but, as agreed by the parties, remand the record to the district court to make a sentencing determination pursuant to United States v. Coles, 403 F.3d 764 (D.C.Cir.2005).

I. Background

The undisputed police testimony is as follows. At approximately 11:40 one night three officers of the Metropolitan Police Department were driving through a "high drug area, known for the illicit sale of crack cocaine [and] marijuana" and for the recovery of "numerous weapons," when they got out of their car to talk with some men they had stopped the previous night for being drunk in public. Officer Derek Phillip noticed that a conversion van, parked on the street two to three car lengths away, was idling the whole time they spoke—three to four minutes. Believing the van was idling excessively, in violation of D.C. Municipal Regulations title 18, § 2418.3 (idling limited to three minutes when vehicle is parked, except for "private passenger vehicles"), the officers proceeded to investigate.

Officer Phillip approached the passenger door of the van and shone his flashlight through the window, which was "heavily tinted." He saw Broadie "slumped over the wheel," apparently sleeping. Phillip tapped the window 15 to 20 times and tried to open the passenger door, but it was locked. When Broadie finally woke up after about 30 seconds, he was "disoriented," looked "confused" and, in Officer Phillip's opinion, "could have been under the influence" of alcohol or drugs. Officer Teel, standing by the driver's side of the van, directed Broadie to get out.

At this point the stories told by the police and civilian witnesses diverge. Officer Phillip testified at the suppression hearing that as Broadie got out of the van, Officer Teel observed in plain view in the pocket of the driver's side door an ASP baton—a "newer version of the nightstick" that, "by the use of a little arm movement,... protrudes out to 16 inches"; it is used by law enforcement officers to "subdue combative subjects." Officer Teel then handcuffed Broadie and placed him under arrest for "possession of a prohibited weapon," see D.C.Code § 22-4514, after which he "thoroughly" searched the van.

Rondell Wills, one of the four men stopped by the police, and Tarsha Washington, a neighbor who saw the encounter from her porch, remembered the incident in a slightly different way. They testified at the hearing that the officer on the driver's side of the van opened the door and "snatched" or "pulled" Broadie out, took him to the back of the vehicle, and placed him in handcuffs. Only then did an officer—their testimony conflicts as to which one—return to the driver's door where he leaned down and appeared to be "searching for something." When the officer emerged from behind the door, he held up a "black stick," presumably the ASP baton.

In the course of their post-arrest search of the van, the officers found beneath a beverage compartment at the rear of the vehicle (1) a clear ziploc bag containing "51 small green-tinted ziplocs with a white rock-like substance" as well as "loose white-rock" wrapped in saran wrap, (2) a separate green-tinted bag, and (3) $600. When Broadie was later indicted for unlawful possession with intent to distribute more than 50 grams of cocaine base, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), he moved to suppress the physical evidence found in his van, arguing the police had neither reasonable suspicion to detain nor probable cause to arrest him.

The district court denied the motion, crediting Officer Phillip's version of events insofar as there were factual discrepancies in the testimony. The court concluded the officers reasonably could have believed that Broadie was "ill," "suffering from carbon monoxide poisoning," or "intoxicated," and therefore they lawfully ordered him from his vehicle in order to "find out if [he was] all right" and to "protect the public" from a potentially drunk driver. The court also held the search of Broadie's car was a lawful search incident to arrest because the officers had probable cause to believe Broadie's possession of the ASP baton violated D.C. law.

Broadie entered a conditional plea of guilty, thereby preserving his right to appeal. The district court sentenced Broadie to 121 months in prison, the low end of the Sentencing Guidelines range, followed by five years of supervised release.

II. Analysis

Broadie argues again on appeal that the physical evidence found in his van should have been suppressed as the product of a seizure and an arrest made in violation of the Fourth Amendment to the Constitution of the United States. We review de novo the district court's determinations of reasonable suspicion and probable cause but review its findings of fact only for clear error. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

A. The Seizure

First, Broadie argues he was unlawfully seized when the officers directed him to get out of his van without having a reasonable, articulable suspicion that "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see United States v. Edmonds, 240 F.3d 55, 59 (D.C.Cir.2001) ("the issue is whether a reasonably prudent man in the circumstances would be warranted in his belief that the suspect is breaking, or is about to break, the law") (internal quotation marks and citation omitted). The Government advances three rationales for the seizure: the officers (1) could reasonably have suspected Broadie had been driving or would drive while intoxicated, (2) could reasonably have suspected the heavy tint on Broadie's windows violated D.C. law, and (3) in any event were acting pursuant to their "community-caretaking" duties because they had a "duty to determine whether [Broadie] was ill, injured or intoxicated," see Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Because we agree with the first point, we do not address the other two.

"Reasonable suspicion" is a "less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Therefore, a Terry stop "requires only a minimal level of objective justification and an officer may initiate one based not on certainty, but on the need to `check out' a reasonable suspicion." Edmonds, 240 F.3d at 59 (internal quotation marks and citations omitted). The inquiry requires an assessment of the "totality of the circumstances as the officer on the scene experienced them." Id.

Considering the totality of those circumstances, we conclude the officers could reasonably have detained Broadie based upon the reasonable suspicion that he had been or soon would be driving while intoxicated. Broadie was found "slumped over" his steering wheel, with his engine running, late at night. As the district court reasoned, "generally people are not [found in such a position] unless something is amiss." Broadie was slow to awake and his "disoriented" and "confused" state when he did wake up would only have heightened a reasonable observer's suspicion he was intoxicated.

Broadie protests it is mere speculation that he might have been intoxicated, for the circumstances suggested he was simply asleep. "Our inquiry, however, `does not deal with hard certainties, but with probabilities.'" United States v. Moore, 394 F.3d 925, 930 (D.C.Cir.2005) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). And that Broadie was intoxicated "was among the most probable explanations for the peculiar circumstances [Officer Phillip] observed." Id. We conclude the police had a reasonable, articulable suspicion upon which to detain Broadie.

Having lawfully detained Broadie, it follows that the officers reasonably could, in the interest of their own safety, order him to get out of his van. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) ("We think this additional intrusion can only be described as de minimis.... The police have already decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it."). We turn, therefore, to the question whether they had probable cause, moments later, to arrest him.

B. The Arrest

As an initial matter, Broadie maintains the police lacked probable cause because they found the ASP baton after, not before, they arrested him. Specifically, he argues the district...