U.S. v. Wider

• Decision Date: 13 December 1991
• Docket Number: No. 90-3275,90-3275
• Citation: 951 F.2d 1283,293 U.S. App. D.C. 16
• Parties: UNITED STATES of America, Appellee, v. Melvin A. WIDER, a/k/a Melvin A. Wilder, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1283

951 F.2d 1283

293 U.S.App.D.C. 16

UNITED STATES of America, Appellee, v. Melvin A. WIDER, a/k/a Melvin A. Wilder, Appellant.

No. 90-3275.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 28, 1991.

Decided Dec. 13, 1991.

Appeal from the United States District Court for the District of Columbia (Criminal No. 90-00204-01).

Billy L. Ponds, for appellant.

Robin C. Ashton, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., were on the brief, for appellee.

Before D.H. GINSBURG, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge.

Melvin A. Wider was indicted on one count of possessing more than five grams of cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. § 841(a) and (b)(1)(B)(iii). After his motion to suppress evidence was denied, Wider entered a conditional plea of guilty on that count and was sentenced to 210 months' imprisonment. Wider then filed this appeal to challenge the June 29, 1990 order and memorandum denying the motion to suppress and the oral denial, during the suppression hearing, of a motion to produce documents under the Jencks Act, 18 U.S.C. § 3500. For the following reasons, we affirm both rulings by the district court.

We first address Wider's appeal of the order denying the motion to suppress. Wider's motion sought suppression of numerous plastic bags of crack found on his person and in a paper sack he was carrying as well as empty plastic bags and a razor with cocaine residue found in his automobile, asserting that all this evidence was the fruit of unlawful searches. In denying Wider's motion, the district court relied on the testimony of Officer Arnie Stewart, one of the arresting officers:

Police Officer Stewart testified to the following facts at a suppression hearing on June 20, 1990. On April 14, 1990, the officer received information that a light-skinned black male, driving a grey-ish BMW and wearing a BMW hat, was selling drugs in the 300 Block of 53rd Street, Northeast, Washington, D.C.. [sic] The source of the information was an informant who had given reliable information to this officer approximately ten times in the past. The officer and her partner arrived at the identified block less than twenty minutes after receiving the phone call. In a courtyard adjacent to the street, the officers viewed a light-skinned black male in a BMW hat. They observed the man place a brown paper bag on some steps and walk away from the bag up the steps toward the street. The officers retrieved the bag, looked inside, and saw white rocks. They stopped the suspect and searched him, finding more bags containing white rock-like substances in them which field tested positive for cocaine. The defendant was approximately three to four feet from the bag, walking up the steps, when he was arrested. The officers checked the license plates on a BMW parked about 35 feet from where the defendant was arrested, found that the car was registered in defendant's name, and then proceeded to search the vehicle, finding more bags similar to those defendant was carrying and a razor blade with residue.

Based on Stewart's testimony, the judge concluded the searches of the sack, of Wider's person and of Wider's automobile were lawful because the informant's tip gave the officers reasonable suspicion to stop or probable cause to arrest Wider, Wider "abandoned" the sack before it was searched, and the search of Wider's automobile was supported by probable cause, based on the informant's tip and the search of the sack, and by exigent circumstances. Wider asserts the judge erred in denying his motion because (1) the information received from the informant was insufficient to establish probable cause, (2) the appellant did not abandon the bag and (3) there was neither probable cause nor any exigent circumstance to support the automobile search. Without reaching Wider's first assertion, we affirm the district court's ruling because Wider's abandonment of the sack, as found by the district court, permitted the officers to lawfully search it, the discovery of crack therein established probable cause to arrest Wider and to search his person incident to the arrest and knowledge that Wider had been carrying such quantities of crack, both in the sack and on his person, provided probable cause to search his nearby automobile for additional evidence.

First, we conclude the search of the bag was lawful because at the time of the search Wider had abandoned it. It is well established that the warrantless search or seizure of "abandoned" property does not violate the fourth amendment. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960). Although the abandonment inquiry focuses on the intent of the person alleged to have abandoned the property, the test of abandonment is an objective one under which "intent may be inferred from words 'spoken, acts done, and other objective facts.' " United States v. Thomas, 864 F.2d 843, 846 (D.C.Cir.1989) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973)). The district court reasonably inferred from Wider's conduct, as described by Stewart, that Wider abandoned the paper sack when he placed it on the steps and began to walk away, "[leaving] it behind in a public place where he retained no reasonable expectation of privacy in it." See id. at 846. Accordingly, we conclude the district court's finding of abandonment was not clearly erroneous and must therefore be affirmed. United States v. Manner, 887 F.2d 317, 327 n. 9 (D.C.Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990); Thomas, 864 F.2d at 845.

Next, we consider the bags of cocaine found on Wider's person and conclude that they were also lawfully obtained. Having observed Wider abandon the sack and having discovered the crack inside it, the officers had an objectively reasonable belief that Wider had committed a crime and therefore probable cause to arrest him. See Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S.Ct. 854, 861-62, 43 L.Ed.2d 54 (1975) ("[t]he standard for arrest is probable cause, defined in terms of facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense' ") (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964))....