U.S. v. Hough

Decision Date24 October 1996
Docket NumberCrim. Action No. 96-00242(SS).
Citation944 F.Supp. 20
PartiesUNITED STATES of America v. David A. HOUGH, Defendant.
CourtU.S. District Court — District of Columbia

George Allen Dale, Dale & Mitchell, Washington, DC, Tony W. Miles, Federal Public Defender, Washington, DC, for David A. Hough.

Glenn Michael Lennon, U.S. Attorney's Office, Washington, DC, for U.S.


SPORKIN, District Judge.

Defendant is charged in a six-count indictment with unlawful possession with intent to distribute five grams or more of cocaine base, unlawful possession of a firearm by a convicted felon, unlawful possession of ammunition by a convicted felon, possession of an unregistered firearm, possession of unregistered ammunition, and simple possession of cannabis. This matter is now before the Court on defendant's motions for suppression of physical evidence and statements, for severance of the weapon offenses from the narcotic offenses, and for bifurcation of counts two and three. The Court has heard extensive testimony, and received extensive briefing, on these issues.


On July 16, 1996, defendant was stopped in his car by Officer Gerry Marshall of the U.S. Park Police on Alabama Avenue, S.E. for failing to display an inspection sticker on his Virginia-registered car. Marshall stopped the defendant pursuant to a D.C.-Virginia reciprocity law. While asking defendant for his license and registration, Marshall detected a faint smell of marijuana and noticed several discarded marijuana "roaches" on the passenger-side floor. After waiting for backup, Marshall asked the defendant to get out of the car and instructed him to sit at the curb while Marshall searched the car. During that search, Marshall recovered crack cocaine from the area between the front seats, empty ziplock bags from behind a fuse box panel and a loaded .32-caliber handgun from the trunk. Defendant was arrested and transported to the Park Police station house.

At the station house, the defendant was temporarily in the custody of Officer Rufus Gillette for the purpose of collecting fingerprints and photographs, and giving the defendant his Miranda warnings. Before giving those warnings, Gillette made several statements to the defendant. He told the defendant that based on his prior convictions and parole status, he could face very serious consequences if convicted of new gun and drug charges. He also told him that the Park Police may be interested in his "cooperation" in other criminal matters. Before discussing these matters in detail, Gillette told him that he had to read him his Miranda rights. Gillette read those rights from a standard "rights card" and the defendant waived those rights, both orally and in writing. Subsequently, Gillette had a more detailed discussion with the defendant on the question of cooperation.

Shortly after his discussion with Gillette, the defendant was interviewed by Officer Marshall. After waiving his Miranda rights for a second time, the defendant made and signed a statement implicating him on the gun and drug charges.

Analysis and Decision
1. Motion to suppress
a. Legality of the Stop and Search

The defendant correctly states in his motion that it is the government's burden to show that probable cause existed for the stop of the car, and that the warrantless search of the car was legally justifiable. The Court finds that the Government has met that burden.

Officer Marshall testified, and it is uncontested, that the defendant was driving a car without an inspection sticker. The lack of the sticker gave Marshall probable cause to believe a traffic violation was being committed, and thus to stop the car. The defendant presented some testimony at the motions hearing suggesting that the officer might have known that the defendant was carrying the drugs and gun before stopping the car.1 However, even if this is true, use of a traffic violation as pretext for the stop does not require suppression of evidence. If the officer observed the missing sticker before the stop, he had probable cause to make the stop, regardless of any ulterior motive. Whren v. United States, ___ U.S. ___, ___, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).

Recognizing the applicability of Whren, the defendant contends that the officer could not have seen that the sticker was missing in the short time he observed the car before making the stop. Rather, he contends the officer made the stop in an effort to determine whether the defendant was carrying guns and drugs, and on subsequently observing the missing sticker, used it as post facto probable cause for the stop. The Court does not find a factual basis for defendant's contention. The officer testified that he makes it a regular practice, as part of his job, to look for traffic infractions. He further testified that he had a clear view of the car, and quickly ascertained that it was not displaying the required sticker. The Court credits the officer's testimony, and finds that he did have probable cause to make the stop.

As a result of that stop, Marshall smelled marijuana and observed discarded marijuana cigarettes on the floor of the car. Based on these observations, he had probable cause to believe the car might contain other contraband. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1993); California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 44, 90 S.Ct. 1975, 1977, 26 L.Ed.2d 419 (1971); Carroll v. United States, 267 U.S. 132, 153, 162, 45 S.Ct. 280, 285, 288, 69 L.Ed. 543 (1925). That probable cause extended to all compartments of the car, and thus recovery of the guns, drugs and ziplock bags was proper.2 Accordingly, defendant's motion to suppress the physical evidence is denied. Furthermore, defendant's motion to suppress statements as a fruit of illegal seizures is also denied.

b. Voluntariness of Miranda waiver

The defendant also moves to suppress the statement he gave to the police on grounds that his waiver of his Miranda rights was not voluntary. Defendant contends that the comments Officer Gillette made to him before giving him the Miranda warnings rendered defendant's waiver involuntary, and violated his Fifth Amendment rights.

In determining coercion, the Court must make a two-prong inquiry:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. only if the `totality of circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (citations omitted).

The Court first finds that the relinquishment was voluntary and not the product of intimidation, coercion or deception. Although the defendant was in custody, he had access to all appropriate facilities, including a bathroom and refreshments. He had only been in custody for a short period of time before the Miranda warnings were given. Before any interrogation began, defendant was told — truthfully — that the government might have an interest in receiving his cooperation in other cases. But there is no evidence that the defendant was intimidated or coerced by this statement. He presumably considered this representation by the officer, along with all other circumstances, and concluded that he wished to waive his rights under Miranda. Furthermore, there was no deception. The officer truthfully told the defendant that he was aware of his prior convictions and that cooperation may be a possibility.

Addressing the second prong, the government has shown that the defendant was aware of his rights and the consequences of waiving them. Each right was explained to him, as required by Miranda, and he indicated both orally and in writing that he understood and waived those rights. Reviewing the totality of the circumstances as required by the Court in Burbine, the Court concludes that the defendant made "both an uncoerced choice and [had] the requisite level of comprehension," Burbine, supra at 421, 106 S.Ct. at 1141, to give a knowing and voluntary waiver of his Miranda rights.

2. Motion to Sever

Defendant also moves under Rule 14 of the Federal Rules of Criminal Procedure to sever the gun and ammunition counts (counts 2-6) from the drug counts (counts 1 and 6). He argues that the joinder of these offenses would unduly prejudice his right to a fair trial and are beyond the curative power of a cautionary instruction.

Rule 14 provides that the Court, in its discretion, may grant severance, order separate trials of counts, or provide whatever other relief justice requires if it appears that the defendant is prejudiced by joinder of offenses. Fed.R.Crim.P. 14. When considering a motion for severance, the Court must balance the accused's right to a fair trial against the public's interest in the efficient and economic administration of justice. United States v. Phillips, 664 F.2d 971 (5th Cir.1981). While judicial economy is a factor in deciding a severance motion, it should not outweigh a defendant's basic right to a fair trial. United States v. Boscia, 573 F.2d 827, 833 (3rd Cir.1978).

The defendant first contends that the counts were improperly joined because "the act of possessing a firearm is a separate act from the act of possessing or distributing drugs [and] [h]ence, such acts cannot be considered part of a common scheme or plan." In the alternative, even assuming the counts were properly joined, he argues that they should now be severed because...

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