U.S. v. Laing

• Decision Date: 14 November 1989
• Docket Number: Nos. 88-3149,88-3150,s. 88-3149
• Citation: 281 U.S. App. D.C. 266,889 F.2d 281
• Parties: UNITED STATES of America v. Kenroy LAING, a/k/a Junior Roy Laing, Appellant. UNITED STATES of America v. Garfield Dean MARTIN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 281

889 F.2d 281

281 U.S.App.D.C. 266

UNITED STATES of America v. Kenroy LAING, a/k/a Junior Roy Laing, Appellant.

UNITED STATES of America v. Garfield Dean MARTIN, Appellant.

Nos. 88-3149, 88-3150.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 22, 1989.

Decided Nov. 14, 1989.

Thomas Carroll (appointed by this court as co-counsel), with whom Loren Kieve, Washington, D.C. (appointed by this court) was on the brief, for appellant Laing.

Daniel Ellenbogen, Kensington, Md. (appointed by this court) for appellant Martin.

Christine Desan Husson, Atty., U.S. Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., Washington, D.C., was on the brief, for appellee. John R. Fisher, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before WALD, Chief Judge, and BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Kenroy Laing and Garfield Dean Martin appeal their convictions for various firearm and drug offenses in violation of federal and District of Columbia statutes. Laing argues that cocaine seized from his person during an investigatory stop was improperly admitted into evidence and that the district court erred in refusing to give an accomplice jury instruction regarding the testimony of witness Jerome Brown. Martin joins Laing's argument concerning the court's failure to give an accomplice instruction and also argues that his conviction for carrying a firearm in relation to a drug trafficking crime must be vacated as a matter of law because he was acquitted of the predicate drug offense. We reject these and other arguments and affirm the convictions.

I. BACKGROUND

The following facts were established at the pretrial suppression hearing and at trial. At approximately 12:30 a.m. on February 26, 1988, a District of Columbia Police Department Emergency Response Team went to 865 Chesapeake Street, S.E. to execute a search of apartment 202 pursuant to a valid warrant. From information supporting the search warrant, the police believed the occupants were selling cocaine from the apartment and were armed with automatic weapons. They recognized the apartment's neighborhood as a high-crime area. The officers comprising the Emergency Response Team wore military-style clothing, helmets, and bulletproof vests and were heavily armed.

Upon arriving at the scene in a clearly marked police van, the team members jumped from the van and ran toward the apartment building shouting that they were police officers. As the team approached the building, two officers charged with securing the area around apartment 202 saw Laing standing in the glassed-in lobby of the building. When Laing saw the police, he appeared startled, shoved his right hand into the front of his pants, turned, and began running toward apartment 202. Fearing that Laing was armed because he had kept his hand in his pants, the officers ordered Laing to halt, but he did not comply. When Laing reached apartment 202, he attempted to enter but was unable to do so.

Upon reaching Laing, the officers ordered him to lie down on the floor. When he refused, the officers forced him to the floor and ordered him to remove his hand from his pants. Laing refused to remove his hand, increasing the officers' fear that he had a gun. The officers then forced Laing's hand from his pants and ordered him to "stretch out as far as possible so he couldn't cause us or his self [sic] any harm." Testimony of Officer Charles Porter, Trial Tr. at 31 (July 11, 1988). When Laing stretched out to comply, his pant legs rose up, revealing a bulge in his socks caused by ninety small, clear plastic bags containing a total of forty-five grams of white rock cocaine, some of which were in plain view. Laing moved to suppress this evidence on the grounds that it was obtained pursuant to an invalid arrest. The district court denied the motion.

As the other officers entered the apartment, they heard a loud clang from the kitchen. Upon reaching the kitchen, they found a loaded semiautomatic machine gun on the floor, but no persons. The officers also found a .38 caliber revolver with ammunition under a pile of dirty clothes in a walk-through closet. Martin emerged from a bathroom through a locked door into the closet and was frisked, but the police found no drugs or weapons on his person. The police also found sixteen bags containing nine grams of cocaine, packaged in the same manner as the cocaine found on Laing, on a table in the living room around which were seated several other individuals. Among those in the apartment were the lessee, Theresa Foreman, and her fourteen-year-old son, Jerome Brown.

Laing and Martin were both charged with the possession of fifty or more grams of cocaine (the forty-five grams found on Laing's person plus the nine found in the apartment) with intent to distribute, in violation of 21 U.S.C. Sec. 841(a) (1982); with using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1) (Supp. V 1987); and with possession of an unregistered firearm and ammunition, in violation of 6 D.C.Code Secs. 2311 and 2361. In addition, Laing was charged with possessing a machine gun, in violation of 22 D.C.Code Sec. 3214(a). Foreman pled guilty to a charge of making her apartment available to store and distribute cocaine in violation of 21 U.S.C. Sec. 856 (Supp. V 1987). Although Brown occasionally received money in exchange for serving as a lookout in front of the apartment, no charge was brought against him.

At the trial, Foreman and Brown testified that both Laing and Martin had been in the apartment selling drugs during the day prior to their arrest. They testified that Laing had been in the apartment carrying the machine gun that day and that he had stepped out of the apartment shortly before the police arrived. Brown testified that Martin had carried the handgun.

Following the trial, the jury found Laing guilty of the firearm and drug counts; but although it found Martin guilty of using or carrying a firearm in the course of a drug trafficking offense, it acquitted him of the charge of possession of cocaine with intent to distribute.

II. DISCUSSION

Between them, Laing and Martin advance five reasons why their convictions should be set aside. Laing claims that the cocaine found on his person outside apartment 202 was seized illegally and should not have been admitted into evidence. He also asserts that there was insufficient evidence to link him to the weapons and cocaine found in the apartment. Both Laing and Martin argue that the district court improperly refused to give an accomplice instruction concerning the testimony of Jerome Brown. Martin contends that his acquittal on the drug trafficking charge indicates that the evidence supporting his conviction on the charge of carrying a firearm in relation to a drug trafficking crime is insufficient as a matter of law, and he maintains that the district court's response to a mid-deliberation question from the jury was inaccurate, misleading, and inappropriate. We discuss these arguments in sequence.

A. The Cocaine Found on Laing's Person

Laing contends that his detainment was not merely an investigative stop but an arrest without probable cause because the officers had no reason, on first seeing him, to suspect him of any wrong-doing; that it was reasonable for him to flee at the sight of heavily armed members of the Emergency Response Team rushing in his direction; and that the use of excess force by the officers converted what might have been a valid investigative stop into an arrest. As he was thus arrested without probable cause, Laing argues, the evidence seized from his person during the illegal arrest should have been suppressed. We hold, however, that the actions of the officers stopping Laing were based on a suspicion--reasonable in view of all of the surrounding circumstances--that Laing was armed.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons ... against unreasonable ... seizures." U.S. Const. amend. IV. Law officers may arrest a person without a warrant only if they have probable cause to believe that he has committed a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). Law officers may also temporarily detain a person for questioning or investigation if they have a reasonable suspicion, supported by "specific and articulable facts" and "rational inferences from those facts," that the person is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Although an investigative stop is not an arrest, it may become one if the duration of the stop or the amount of force used is "unreasonable" under the circumstances. See United States v. Sharpe, 470 U.S. 675, 682-88, 105 S.Ct. 1568, 1573-77, 84 L.Ed.2d 605 (1985); United States v. White, 648 F.2d 29, 34-35 (D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981); see also United States v. Oshinuga, 647 F.Supp. 105, 108-09 (N.D.Ill.1986) (eighteen-hour detention reasonable given suspicion that detainee was transporting narcotics internally).

During an investigative stop law officers may, under appropriate circumstances, search the detainee to determine whether he is armed. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. In Terry, the Court provided the following rationale for this rule:

[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary...