U.S. v. Holder, 92-3015

• Decision Date: 16 April 1993
• Docket Number: No. 92-3015,92-3015
• Citation: 301 U.S.App. D.C. 57,990 F.2d 1327
• Parties: UNITED STATES of America v. Troy Carzell HOLDER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1327

990 F.2d 1327

301 U.S.App.D.C. 57

UNITED STATES of America v. Troy Carzell HOLDER, Appellant.

No. 92-3015.

United States Court of Appeals District of Columbia Circuit.

Argued March 9, 1993.

Decided April 16, 1993.

David Kagan-Kans, Washington, DC (appointed by this court), for appellant.

Steven J. Durham, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., ^* John R. Fisher, Roy W. McLeese, III, and Margaret R. Batten, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before: SILBERMAN, WILLIAMS, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellant challenges his conviction on the basis of an allegedly erroneous decision of the district court at a pretrial suppression hearing. He asserts that the police lacked probable cause to arrest him and that therefore the search of his person incident to arrest was illegal. We affirm.

I.

On January 30, 1991, officers of the Metropolitan Police Department executed a search warrant on an apartment in southeast Washington, D.C. When the officers arrived, the door to the apartment was ajar, and as the officers knocked and announced the search it swung open. The officers saw appellant Holder standing in a short entrance hallway that opened onto the living/dining area of the apartment. They held appellant against the wall in the hallway and proceeded into the apartment. On the table in the dining area, approximately five feet away from appellant, the officers saw several ziplock bags containing cocaine base (later determined to be over seven grams), a razor blade, and a plate with crack cocaine on it. Sitting at the table was another individual, Keith Jones, who had a package of cocaine in his hand. No other person was in the apartment.

Jones and appellant Holder were then arrested and searched. The officers found in Holder's pockets a set of keys and 17 ziplock bags containing crack cocaine. One of the keys opened the lock on a toolbox found in the apartment. In the toolbox were a loaded .357-magnum pistol and 184 ziplock bags holding more than 18 grams of crack cocaine.

Holder moved to suppress the evidence found on him. He argued that the cocaine and keys were the product of an illegal search because the officers did not have probable cause to arrest him. The district court, relying on Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), determined first that the officers had lawfully detained Holder as they began their search of the apartment. The court then held that the discovery of the drugs in plain view only a few feet from Holder gave the officers probable cause to arrest. Holder was subsequently tried before a jury and convicted on several counts of possession with intent to distribute controlled substances and use of a firearm during a narcotics trafficking offense, 18 U.S.C. § 924(c).

II.

Appellant does not challenge his initial, brief detention but does claim that the police lacked probable cause to arrest him. ¹ We review de novo the district court's legal conclusion that probable cause supported the arrest, but we examine the court's findings of fact only for clear error. See United States v. Garrett, 959 F.2d 1005, 1007 (D.C.Cir.1992). Probable cause exists if a reasonable and prudent police officer would conclude from the totality of the circumstances that a crime has been or is being committed. See United States v. Green, 670 F.2d 1148, 1152 (D.C.Cir.1981). Appellant essentially argues that the drug-laden table--indicating that a crime was in progress--gave the officers probable cause to arrest Jones, who was sitting at the table, but not appellant, who was standing a few feet away. Appellant contends that under the principles outlined in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the police did not have sufficient reason to connect him to the drugs in the apartment (which he claimed to be just leaving as a visitor) to create the particularized suspicion that would amount to probable cause for an arrest and search.

In Ybarra, police executed a valid search warrant on a tavern where the bartender had been suspected of selling heroin. When the police arrived, they announced that they would "pat down" all present as a "cursory search for weapons." Id. at 88, 100 S.Ct. at 341. During the search, one of the patrons of the bar, Ybarra, was found to have six packets of heroin. The Supreme Court held that the search violated the Fourth Amendment (as applied to the states through the Fourteenth Amendment). The Court reasoned that the police had no basis to suspect Ybarra of any crime. He made no suspicious or incriminating gestures, and "[i]n short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale." Id. at 91, 100 S.Ct. at 342. The officers thus lacked the "probable cause particularized with respect to that person," id., that would be required for an arrest. Nor could the officers justify the pat-down as a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because they had no reasonable articulable suspicion that Ybarra was armed and presently dangerous. See Ybarra, 444 U.S. at 92-93, 100 S.Ct. at 343.

Appellant relies on the proposition in Ybarra that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id. at 91, 100 S.Ct. at 342. According to Holder, the same reasoning should lead us to hold that his mere presence in an apartment in which evidence of narcotics activity was discovered did not give rise to probable cause to arrest him. At the time of the arrest, there was no indication that Holder rented the apartment, lived in it, or was in any way connected to it beyond his presence at the time of the search. Holder contends that his connection to the apartment was particularly attenuated because he had opened the door and was about to leave when the officers arrived.

Appellant, however, overlooks the crucial factors that distinguish Ybarra. First, the search in Ybarra occurred in a public place. Ybarra was simply one patron among many in a bar where the police had reason to believe the bartender had been dealing heroin. There was no indication that Ybarra even knew of the bartender's activities. ² Access to a private apartment, on the other hand, is presumably limited, and thus a person's admission to the apartment normally would raise a stronger inference of connection to the activities conducted within.

More crucially, in this case the drugs were openly on display, and therefore appellant's proximity to the drugs...