United States v. Lewis

• Decision Date: 16 January 1985
• Docket Number: No. 84-101.,84-101.
• Citation: 486 A.2d 729
• Parties: UNITED STATES, Appellant, v. Gerald A. LEWIS, Appellee.
• Court: D.C. Court of Appeals

486 A.2d 729

UNITED STATES, Appellant, v. Gerald A. LEWIS, Appellee.

No. 84-101.

District of Columbia Court of Appeals.

Argued August 1, 1984.

Decided January 16, 1985.

COPYRIGHT MATERIAL OMITTED

Robert H. Klonoff, Asst. U.S. Atty., Washington, D.C., with whom Joseph diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on brief, for appellant.

Frederick Sullivan, Washington, D.C., for appellee.

Before PRYOR, Chief Judge, and NEBEKER and ROGERS, Associate Judges.

ROGERS, Associate Judge:

The government appeals the motions court's order suppressing a yellow knapsack seized without a warrant from appellee's blue knapsack. In seeking reversal, the government contends the court erred in finding that (1) the yellow knapsack was not in plain view, (2) Officer Green did not have probable cause to arrest appellee at the time he discovered the yellow knapsack, and (3) the yellow knapsack would not have been inevitably discovered. Upon a review of the record, we hold that the motions court's factual findings are not clearly erroneous and find no error of law. Accordingly, we affirm.

I

The motions court found that a woman was assaulted on November 12, 1982, at approximately 11:40 a.m., in Rock Creek Park. Her assailant, a man, committed an indecent act upon her after dragging her into a wooded area of the park, and striking her several times in the face. He also stole her yellow knapsack and gold bracelet. A lookout was broadcast and appellee was stopped about fifteen to twenty minutes later about half a mile from the scene of the assault. Appellee's blue knapsack was searched and complainant's yellow knapsack was found inside. Appellee was returned in a police car to the scene where he was eventually arrested.¹

Testifying at the hearing on the motion to suppress were Park Police Officer Lauro, to whom the complainant gave a description of her assailant, Metropolitan Police Officer Green, who first stopped appellee about half a mile from the scene of the attack, and appellee. Appellee disputed Officer Green's testimony about whether his blue knapsack was opened or closed and whether Green had taken anything out of his blue knapsack. After hearing the testimony and argument of counsel, the motions court found that when Green initially stopped appellee his blue knapsack was zipped shut and therefore the yellow knapsack was not in plain view; that Green either ordered appellee to remove the items from the blue knapsack or removed them himself; and that while appellee was not under arrest at that time he was at least under the supervision of the officer. The court also found that although there was reasonable suspicion to justify the stop, Green did not have probable cause to arrest appellee until Green discovered the yellow knapsack.² The court then concluded that in order for the yellow knapsack to be admitted, it would have to determine whether the yellow knapsack would inevitably have been discovered, and to make that determination it had to find with substantial certainty that the police officers (based on their collective information at the scene) would have thought they had probable cause to arrest appellee had they not known about the yellow knapsack and would have in fact arrested him. The court ruled that it was not convinced that appellee certainly would have been arrested had the police not known about the yellow knapsack. Thus, it concluded that the government had failed to prove that the yellow knapsack would inevitably have been discovered.

II.

The search of appellee's knapsack was conducted without a warrant and warrantless searches are per se unreasonable under the Fourth Amendment unless they fall within one of a few, carefully delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); (John) Smith v. United States, 435 A.2d 1066, 1068 (D.C.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982); Jackson v. United States, 404 A.2d 911, 918 (D.C.1979). The motions court made findings of fact and conclusions of law and determined that the evidence at issue here was not admissible under any exception to this rule. The motions court's factual determinations may not be disturbed unless they are clearly erroneous. Brooks v. United States, 367 A.2d 1297, 1302 (D.C.1976); D.C.Code § 17-305 (1981).

A.

The motions court first determined that the yellow knapsack was inadmissible under the plain view exception to the warrant requirement. See Texas v. Brown, 460 U.S. 730, 736, 103 S.Ct. 1535, 1539, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 46849, 91 S.Ct. 2022, 2039-40, 29 L.Ed.2d 564 (1971). Officer Green testified that when he stopped appellee he asked him to place the blue knapsack he was carrying on the hood of the police cruiser and when appellee did so Green could see the yellow knapsack inside the partially opened knapsack. The motions court found as a fact that the blue knapsack was zipped shut and therefore Green did not see the yellow knapsack in plain view. One of the factors mentioned by the court as a basis for this conclusion was its view that a thief who knows a policeman is watching him would not leave the yellow knapsack visible.³ The government contends that this "common sense" conclusion by the motions court was a conclusion of law, citing United States v. Minick, 455 A.2d 874 (D.C.) (en bane), cert. denied, ___ U.S. ___, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983) (Appellant's Brief at 17), and was incorrect.

Upon reviewing the record we conclude that Minick, supra, 455 A.2d at 880-81, is not dispositive. The motions court's plain view finding, Lewis v. United States, 379 A.2d 1168, 1170 (D.C.1977), was based primarily on its assessment of the demeanor and credibility of Officer Green and appellee whose testimony was in conflict. Bearing in mind that the motions court has heard the testimony and observed the witnesses, we cannot say that the motions court's resolution of conflicting testimony and factual findings lacked substantial support in the evidence. United States v. Alexander, 428 A.2d 42, 50 (D.C.1981), D.C. Code § 17-305(a) (1981); United States v. Lyon, 348 A.2d 297, 299 (D.C.1975). While Officer Green testified the blue knapsack was partially unzippered, he was imprecise about key details, internally contradictory on some points and vague on others. Green changed his testimony about whether he pulled anything out of the blue knapsack, and initially failed to mention appellee's swollen hand and the scratches on his face and hand. Nor did Green include in his police report the details that he testified were of significance in his determination that appellee fit the lookout description and in his decision to stop him. Appellee testified that when Green asked him what was in the blue knapsack he told him clothes and took some clothes out, and when he was about to close the zipper Green reached in and pulled out the yellow knapsack. Accordingly, since there is substantial evidence in the record to support the motions court's findings, we affirm the trial court's ruling that the initial search of appellee's blue knapsack was illegal.

The court also found, and we agree, that there was articulable suspicion sufficient to justify an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See District of Columbia v. M.M., 407 A.2d 698, 701 (D.C. 1979). Officer Green observed appellee, who arguably fit the description broadcast in the lookout,⁴ with mud and briars on his pant legs, in the same general vicinity as the offense; appellee appeared to slow down upon observing the officer and was perspiring. The court did not specifically find whether Officer Green observed scratches on appellee's hand and face and a swollen hand before he stopped him. However, even if Green did not notice the scratches there was enough to warrant further investigation.

At this point, Officer Green did not, however, also have sufficient grounds to search appellee's knapsack for evidence of a crime. Terry, supra, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, is narrow in scope, Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979) ("Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope.") Terry itself involved a limited, on-the-street frisk for weapons predicated by on-the-spot observation of the officer by patting down the outer garments; the police officer did not go underneath the outer garments until he felt the guns. The evidence before the motions judge did not provide a basis on which the court could find the officer would have been justified in believing appellee was armed. The complainant did not report her attacker had a gun or other weapon and Green testified he did not frisk appellee or have any reason to believe appellee was armed or posed a danger of his physical safety. Since appellee had put the knapsack on the hood of the car, the exigencies necessary for a Terry search for weapons, in the absence of probable cause to arrest, were not present. Terry, supra, 392 U.S. at 25-26, 88 S.Ct. at 1882 (An officer's search must be limited to what is necessary and is strictly circumscribed by the exigencies which justify the frisk).

B.

The motions court further concluded that Officer Green did not have probable cause to arrest appellee when he originally stopped him. In making its probable cause determination the motions court relied on the standard in Texas v. Brown, supra, 460 U.S. at 742, 103 S.Ct. at 1542-43 (a practical, nontechnical probability).

Appellee was on the outskirts of Rock Creek Park, which the court noted is quite large. Other people, including joggers, were in the park. Anyone who had been in any of the wooded areas of the park could have had burrs stuck to his pants. The court noted there were a number of coincidences but...