U.S. v. Mitchell

• Decision Date: 27 December 1991
• Docket Number: Nos. 90-3084,90-3273,s. 90-3084
• Citation: 293 U.S. App. D.C. 24,951 F.2d 1291
• Parties: UNITED STATES of America v. Wilson MITCHELL, Appellant. UNITED STATES of America v. Ricky ZOLLICOFFER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1291

951 F.2d 1291

293 U.S.App.D.C. 24

UNITED STATES of America v. Wilson MITCHELL, Appellant.

UNITED STATES of America v. Ricky ZOLLICOFFER, Appellant.

Nos. 90-3084, 90-3273.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 13, 1991.

Decided Dec. 27, 1991.

Appeals from the United States District Court for the District of Columbia (CR-89-00442-01 & -02).

James L. Kelley (appointed by this court) for appellant Mitchell.

Patricia Dunn, Washington, D.C. (appointed by this court) for appellant Zollicoffer.

Shanlon Wu, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and Thomas C. Black, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Thomas J. Tourish, Jr., Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before BUCKLEY and WILLIAMS, Circuit Judges, and ALAN D. LOURIE, ^* Circuit Judge, U.S. Court of Appeals for the Federal Circuit.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Wilson Mitchell and Ricky Zollicoffer were convicted of possession of cocaine with intent to distribute, and also of use of a firearm during a drug trafficking crime. They argue that the trial court erred by not suppressing evidence seized during a traffic stop of a car driven by Mitchell in which Zollicoffer was a passenger. Mitchell further asserts that the trial court failed to state its "essential findings" in ruling on the defendants' motion to suppress, as Federal Rule of Criminal Procedure 12(e) requires. We reject these claims and affirm the convictions.

I. BACKGROUND

At approximately 7:00 pm on November 6, 1989, Mitchell was driving his mother's car north on 16th Street N.E., with Zollicoffer in the passenger seat. Officer Mark Stone of the D.C. Metropolitan Police Department observed the car as it came up the street. He testified that it was moving at a "high rate of speed" and then suddenly stopped and turned sharply off 16th Street without signaling. He also testified that he thought the car turned because the driver noticed Stone and another officer parked on motor scooters. Stone gave chase and tried to get the driver's attention by sounding his horn and waving his arms. After thirty or thirty-five seconds, the car pulled over on Queen Street, N.E.

During the chase, Stone had called for assistance; as the car stopped, other officers arrived on the scene. Stone testified that he went to the driver's window and asked for Mitchell's license. At that point he had not decided whether to issue a citation for the offenses. As Stone returned to his vehicle to run a check on the car, other officers secured the vehicle. One of the officers providing back-up was Frederick Lewis, an eighteen-year veteran of the Metropolitan police force. Lewis testified that he approached the car from the front and went around to the passenger side of the car. There, he observed Zollicoffer through the window moving both his hands inside his coat as he leaned forward.

Lewis testified that these actions made him believe Zollicoffer had a weapon. He therefore opened the passenger door and asked Zollicoffer to "step[ ] out of the car, man, you're making me nervous." Zollicoffer complied. Lewis asserted that he saw that Zollicoffer was "sweating real bad," and that he asked Zollicoffer why he was sweating so much. Zollicoffer responded that he was hot. Lewis told Zollicoffer "if you're hot why don't you take your coat off?" Zollicoffer did so and Lewis noticed a bulge that he believed was a gun under Zollicoffer's sweater above the belt-line. He ordered Zollicoffer to put his hands on the car and pulled a loaded .357 magnum pistol out of Zollicoffer's pants and said "May Day." Other officers then ordered Mitchell out of the car and searched him, discovering a .38 caliber handgun concealed in his pants. Officers also discovered $1,500 on Zollicoffer's person. Both men were arrested and taken to the Fifth District police station.

The defendants' version of these events differ somewhat. Zollicoffer testified that another officer, one with a beard, came to his window after Stone had returned with the license, registration, and keys, and after Mitchell had started the car to leave. This officer tapped on the window and asked Zollicoffer to get out. He did not say anything about making him nervous, but he did ask why Zollicoffer had a coat on. The officer then patted down Zollicoffer's coat, told him to take it off, searched it, and then searched his person, finding the gun. Zollicoffer claims he was not nervous or moving furtively. Mitchell essentially corroborated Zollicoffer's version. He denied speeding. At trial, the government called a bearded officer (Vaughn) who testified that Lewis handed him Zollicoffer's coat and that he patted the coat down as Lewis found the gun in Zollicoffer's pants.

After Mitchell and Zollicoffer had left the scene, officers searched the car. In a locked tool compartment set in the hatch-back portion of the car, police discovered 55.11 grams of cocaine, some in plastic packets, some wrapped in napkins. At the station, both Mitchell and Zollicoffer made statements admitting ownership of the drugs and claiming that they had the guns for protection. At trial Zollicoffer denied ownership of the drugs, testifying that the police told him he would get off lightly if he said the drugs were his.

Mitchell and Zollicoffer moved to suppress their statements to the police and all tangible evidence recovered during the stop. After a hearing at which the court heard the testimony described above, the government argued that the defendants lacked credibility and that the court should reject their testimony. The court granted the motion to suppress Mitchell's statement, denied it in Zollicoffer's case, and denied both defendants' motions to suppress the tangible evidence. The court found that

so far as his being brought out of the car and when both of them--certainly they had a right when they observed that the passenger was making gestures that put the policeman on notice that something was going on and they'd better check it out; when they got Mr. Zollicoffer out of the car and found the gun they had every reason to thereafter go to the driver and they did so and found the gun on him.

Transcript of Suppression Hearing, Jan. 9, 1990, Part II at 13.

II. DISCUSSION

Both Mitchell and Zollicoffer argue that the trial court erred in denying their motions to suppress the physical evidence entered against them. They claim that the search of Zollicoffer was without justification and violated his Fourth Amendment rights. Therefore, none of the evidence subsequently discovered was admissible against them. Zollicoffer also challenges the constitutionality of the warrantless search of the car, arguing that it cannot be justified as a search incident to arrest or as an inventory search. Mitchell joined this part of Zollicoffer's motion at oral argument. Finally, Mitchell urges reversal of his conviction, or a remand, on the ground that the trial court violated Federal Rule of Criminal Procedure 12(e) by failing to state its essential findings of fact on the record when it denied his motion to suppress. We will consider each of these challenges in turn.

A. Search of Zollicoffer

Mitchell and Zollicoffer argue that the police lacked any reasonable suspicion that would justify ordering Zollicoffer out of the car and searching him. Nor, in their view, could the police order Zollicoffer out of the car as part of a traffic stop. Further, Mitchell argues that the whole stop was a sham; the defendants were stopped on the basis of a mere suspicion that the car was stolen, and nothing more. The government rejects these claims and also avers that Mitchell lacks standing to challenge the search of Zollicoffer and that he failed to raise his argument that the initial stop was a sham before the trial court. Because Zollicoffer's movements in the car gave Officer Lewis a reasonable suspicion that Zollicoffer was armed and therefore dangerous, we hold that his order to Zollicoffer to exit the car and remove his coat were justified by this reasonable fear. We do not take up the government's other arguments.

The Fourth Amendment does not bar the police from stopping and questioning motorists when they witness or suspect a violation of traffic laws, even if the offense is a minor one. See United States v. Montgomery, 561 F.2d 875, 879-80 (D.C.Cir.1977). Here, Officer Stone observed two violations: speeding on 16th Street and failing to signal when the car made a sharp turn off of that street. That Stone had not decided whether he would cite Mitchell for these violations does not vitiate the justification for the initial stop. Nor does it matter that Stone also planned to run a license check to see if the car was stolen. We have noted that "[e]ven a relatively minor offense that would not of itself lead to an arrest can provide a basis for a stop for questioning and inspection of the driver's permit and registration." Id. at 880; see also United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990) ("otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity"), cert. denied, --- U.S. ----, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991).

Even if we agreed that the stop was a mere pretext for a search, that does not mean that a violation of the Fourth Amendment occurred. It is well settled that a court must look to objective circumstances in determining the legitimacy of police conduct under the Fourth Amendment, rather than an officer's state of mind. See, e.g., United States v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3, 103 S.Ct. 2573, 2577 n. 3, 77 L.Ed.2d 22 (1983) (stop of boat justified for registration inspection even though officers intended to search for drugs); Scott v. United States, 436 U.S. 128,...