U.S. v. Taylor

Decision Date20 July 1993
Docket NumberNos. 92-3112,92-3143 and 92-3181,s. 92-3112
Citation997 F.2d 1551,302 U.S. App. D.C. 349
PartiesUNITED STATES of America v. Michael Joe TAYLOR, Appellant. UNITED STATES of America v. Chardale Arnaz BOWE, Appellant. UNITED STATES of America v. Eric Lamont HUTCHINSON, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia, Nos. 91cr00511-03, 91cr00511-02 and 91cr00511-01.

John D. Sharer (appointed by the Court), with whom Mark R. Stabile argued the cause for appellant Bowe in No. 92-3143. James W. Richmond, Jr. (appointed by the Court), argued the cause for appellant Taylor in No. 92-3112. Diane Bratter (appointed by the Court), entered an appearance in No. 92-3181.

Mark A. Perry, Atty., U.S. Dept. of Justice, of the bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of the court, argued the cause for appellee. Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher and William C. Bryson, Asst. U.S. Attys., entered appearances.

Before SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Michael Joe Taylor, Chardale Arnaz Bowe, and Eric Lamont Hutchinson appeal judgments of conviction on a variety of drug distribution and possession charges. They assign as error the District Court's denial of Taylor's motion to suppress cocaine found in his pocket at the time of his arrest; jury instruction on reasonable doubt; refusal to give Hutchinson's requested instruction on identification; and enhancement of Bowe's sentence for obstruction of justice. Because we find no error, we affirm appellants' convictions and sentences.

I. BACKGROUND

After repeated complaints of drug dealing at the intersection of Rhode Island Avenue and Thayer Street in Northeast Washington, the District of Columbia Metropolitan Police Department set up a mobile observation post near there and monitored suspected narcotics transactions. Using binoculars from a distance of twenty to forty feet, with an unobstructed view, two experienced officers inside the unit observed appellants Bowe and Hutchinson apparently selling drugs. Hutchinson and Bowe kept the drugs they were selling in a brown paper bag on the ground under the front bumper of a parked bus about ten feet from where they were standing.

After watching two apparent transactions, the officers observed Taylor approach and talk briefly with Hutchinson. Hutchinson then retrieved a small object from the brown paper bag, which he gave to Taylor in return for cash. Hutchinson replaced the brown paper bag, returned to the corner where Bowe was seated, and gave Bowe the money. Bowe counted the money and placed it in his pocket.

When Taylor left, the officers radioed a lookout, describing Taylor's clothing and physical appearance and identifying him as a suspected narcotics purchaser. The arresting officers recognized Taylor as fitting the radio description of the suspected drug purchaser. After identifying themselves, the police officers searched Taylor's outer clothing, but found nothing incriminating. The arresting officers then contacted the officers in the observation post who saw the transaction and were told to look in the watch pocket of Taylor's pants. A second search of the watch pocket yielded a ziplock bag containing a rock of crack cocaine. Taylor was arrested. Laboratory analysis determined that the substance was eighty percent pure cocaine base. One of the officers from the observation post identified Taylor at the police station as the purchaser in the third transaction.

In the meantime, after observing a fourth transaction, the officers contacted the "arrest team" by radio, identifying Bowe and Hutchinson as suspected narcotics sellers and describing their clothing and physical appearance. The officers who arrested Bowe and Hutchinson near the intersection where the sales took place recovered $178 in currency from Bowe's pocket and retrieved from the ground near the bus the brown paper bag which contained twenty-four ziplock bags of a rock-like substance later determined to be cocaine base, with an average purity of seventy-four percent.

Bowe and Hutchinson were indicted, tried and convicted of distribution of cocaine base and possession with intent to distribute five grams or more of cocaine base, both in violation of 21 U.S.C. § 841 (1988). On the same indictment Taylor was convicted of possession of cocaine base, in violation of 21 U.S.C. § 844 (1988). The District Court sentenced Taylor to twenty-one months in prison, followed by one year of supervised release; Bowe to concurrent terms of seventy-eight months in prison, followed by four years of supervised release; and Hutchinson to concurrent terms of 120 months in prison, followed by eight years of supervised release. All three defendants appealed.

II. TAYLOR'S MOTION TO SUPPRESS

Appellant Taylor challenges the District Court's denial of his motion to suppress the cocaine seized from his person at the time of his arrest. The District Court stated that it saw "nothing at all impermissible from a constitutional standpoint about the police conduct in this case; and in considering the totality of the circumstances, the motion[ ] to suppress [is] denied."

In reviewing a denial of a motion to suppress, we review the District Court's findings of fact under a clearly erroneous standard and its legal conclusions de novo. United States v. Garrett, 959 F.2d 1005, 1007 (D.C.Cir.1992). If the police have probable cause for arrest, an otherwise lawful warrantless arrest and a search of the arrestee and the area within his immediate control does not violate the Fourth Amendment. United States v. Watson, 423 U.S. 411, 416-19, 96 S.Ct. 820, 824-25, 46 L.Ed.2d 598 (1976); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Whether the police have probable cause is determined from the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-32, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983).

We believe the totality of the circumstances at the time of Taylor's arrest was sufficient to establish probable cause. See United States v. White, 655 F.2d 1302, 1303-04 (D.C.Cir.1981) (per curiam) (police had probable cause after observing suspect exchange currency for small object); United States v. Davis, 561 F.2d 1014, 1016-17 (D.C.Cir.) (police had probable cause after observing suspect engage in three identical suspicious currency and packet exchanges in high narcotics area), cert. denied, 434 U.S. 929, 98 S.Ct. 416, 54 L.Ed.2d 290 (1977). Thus, the crack cocaine recovered from his pants pocket was found during a search incident to a lawful arrest.

We are somewhat troubled because the District Court, although properly employing "totality of the circumstances" phraseology in rejecting Taylor's motion, never expressed a conclusion that the officers had probable cause to arrest Taylor. The government argues that this shortcoming is inconsequential because even if the police did not have probable cause, at the very least they had a "reasonable suspicion" that Taylor was involved in criminal activity, entitling them to stop and frisk him. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). Under this scenario, the government urges that the discovery of the crack cocaine was part of the "careful exploration" of Taylor's outer clothing permitted by Terry. 392 U.S. at 16, 88 S.Ct. at 1877.

The Terry argument is without merit. A Terry stop may not be as intrusive as a search incident to an arrest based upon probable cause. Whereas a search on probable cause may be thorough enough to prevent the concealment of evidence, see Chimel, 395 U.S. at 762-63, 89 S.Ct. at 2039-40, a Terry search is limited to a protective search for weapons to protect the officer and others. See Maryland v. Buie, 494 U.S. 325, 334-36, 110 S.Ct. 1093, 1098-99, 108 L.Ed.2d 276 (1990); Terry, 392 U.S. at 24-27, 88 S.Ct. at 1881-83. The evidence seized from Taylor's pocket was clearly not the fruit of a protective search. The officers who arrested Taylor did not find a weapon or the cocaine during their initial search. Only after radioing the officers in the observation post and being told to search Taylor's watch pocket, did the officers find the cocaine. The government does not seriously argue that the arresting officers believed Taylor to be concealing in his watch pocket a weapon that had eluded the earlier search, justifying a second "protective" search. Indeed, at oral argument, government counsel as much as admitted that this search did not satisfy Terry's requirement that a search based upon reasonable suspicion be protective.

Minnesota v. Dickerson, --- U.S. ----, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), supports our conclusion. There the Supreme Court held that police can seize nonthreatening contraband detected through the sense of touch during a Terry frisk, as long as the frisk does not go beyond the parameters of a protective search, and is "strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Id. at ----, 113 S.Ct. at 2132 (internal citation omitted). In this case the second search of Taylor's pocket did not fall within the contours of a legal Terry stop since the second frisk was not aimed at, let alone limited to, the discovery of weapons.

We nevertheless uphold the District Court's denial of the motion to suppress because there clearly was probable cause to arrest Taylor, even though the District Court failed to state on the record its essential findings of fact, as required by Rule 12(e) of the Federal Rules of Criminal Procedure. The essentially uncontested facts of this case are on all fours with a number of other cases in which this court has...

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