Ware v. US

• Decision Date: 27 February 1996
• Docket Number: No. 93-CM-1473.,93-CM-1473.
• Citation: 672 A.2d 557
• Parties: Lawrence L. WARE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

672 A.2d 557

Lawrence L. WARE, Appellant, v. UNITED STATES, Appellee.

No. 93-CM-1473.

District of Columbia Court of Appeals.

Argued February 23, 1995.

Decided February 27, 1996.

Deborah L. Harris, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

Sima F. Sarrafan, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Barbara K. Bracher, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and TERRY and STEADMAN, Associate Judges.

TERRY, Associate Judge:

Appellant Ware was convicted of possession of cocaine, in violation of D.C.Code § 33-541(d) (1990). On appeal he contends that the trial court erred in denying his motion to suppress the cocaine seized from him by the police. We disagree and accordingly affirm the conviction.

I

On June 18, 1993, at about 4:45 p.m., Metropolitan Police Officer Robert Jones was stopped on the street by a woman who said that a man who had just ridden past on a bicycle was selling drugs out of a woman's purse.¹ According to Officer Jones, the woman described a man wearing bicycle shorts, sneakers, no shirt, and no socks. The officer had just seen appellant Ware standing on the sidewalk in front of a house nearby on Ontario Road, talking to someone. Ware was carrying a woman's purse, was on a bicycle, and in all other respects matched the woman's description.

After calling his partner on the radio for backup assistance, Officer Jones alighted from his motorcycle and approached Ware, all the while staring at the purse. Before the officer had a chance to say anything, Ware remarked, "I bet you're wondering why I got a female's purse," to which the officer replied, "Yeah, I am wondering." Ware then asked Officer Jones if he wanted to look inside the purse, but Jones declined because he was waiting for his partner to arrive. Instead of examining the purse, Jones directed Ware to get off his bicycle, put the purse down, and keep his hands out in the open where he could see them. Ware did as he was told, but he kept the purse beside him by placing it on top of a brick wall.

When Jones' partner, Officer Noral Harvey, arrived about a minute later, Ware picked the purse back up and told the officers they could look inside it. He did not hand the purse to the officers, however, but gave them only a quick glimpse of the interior. Then he began to empty the purse, placing several items on the brick wall next to where he was standing. Among the objects he removed were a toothbrush holder and a few clumps of sage. While Ware continued to take things out of the purse, Officer Jones picked up the toothbrush holder, opened it, and found a rock of crack cocaine inside. He did not immediately reveal this discovery either to Ware or to Officer Harvey, however, because he wanted to see what other drugs Ware might have in his possession.

Initially, Ware refused to show the officers the interior compartments of the purse and became "very nervous" and "fidgety" each time Officer Jones reached for it. After Ware had emptied most of the purse, Jones asked Ware if he could look at the purse himself, but Ware remained apprehensive and would not let go of it; as Officer Jones grabbed one handle of the purse, Ware held on to the other. Finally, Officer Jones took the purse away from Ware and looked inside it, where he discovered two loose rocks of crack cocaine, one in the main compartment and one in a side compartment.

In his motion to suppress evidence, Ware argued that he was under arrest at the time he submitted to the search. Since the officers did not then have probable cause to arrest him, he claimed that the cocaine recovered from the purse was the fruit of an illegal search. The government, on the other hand, asserted that Ware was never seized, that he had initiated the conversation with Officer Jones, had voluntarily consented to the search of the purse, and was free to leave at any time since he was approached on a public street. The only real issue, according to the government, was whether the scope of the consent given by Ware reasonably extended to Officer Jones' search of the toothbrush holder.

After hearing the testimony of Officer Jones (which we have summarized) and the arguments of counsel, the trial court denied the motion to suppress. The court ruled that Ware did not consent to a search of the purse because it was clear that Ware wanted to control what the police officers saw.² However, by taking certain objects out of the purse and placing them in the open, Ware did consent to a search of those items.³ The court explained:

It's true the defendant did not tell the officer that he could look inside the toothbrush container. However, the defendant, by taking the container out of the purse and placing it on the wall along with the other items like the sage that were sitting out there in plain view, by that action gave the officer permission to look inside those items or to look at those items.

Because Ware had consented to the search of the toothbrush holder, the court further held that the subsequent search of Ware's purse was supported by probable cause, based on the discovery of the cocaine in the toothbrush holder.

The evidence at trial was substantially the same as that presented at the suppression hearing. In addition to Officer Jones, the government called Officer Harvey and Detective Charles Culver, who testified as to the quantity of cocaine seized and the police procedures for safeguarding seized drugs. The defense did not present any evidence.

II

Ware maintains that his Fourth Amendment rights were violated when the officers removed the cocaine from the toothbrush holder and the purse. He first contends that the cocaine should have been suppressed as the fruit of an illegal seizure of his person without probable cause.⁴ Ware also argues that the subsequent search of the toothbrush holder by the officers exceeded the scope of his consent, which, according to him, was limited to those objects that he wanted the officers to see. We agree with Ware that he was seized within the meaning of the Fourth Amendment, but we hold that this seizure was lawful. We also hold that the subsequent warrantless search of the toothbrush holder did not exceed the scope of Ware's consent.

In deciding whether Ware was unlawfully seized, our inquiry is in two parts:

First, we must determine whether appellant was "seized" within the meaning of the Fourth Amendment. And second, if appellant was in fact "seized," we must determine whether there was "articulable suspicion" or probable cause of criminal activity, or some other legal basis for the seizure.

Hawkins v. United States, 663 A.2d 1221, 1225 (D.C.1995). We consider these questions in turn.

A. Was appellant seized?

According to Ware, an unreasonable seizure occurred when Officer Jones (1) approached him on his motorcycle and in uniform, (2) ordered him to get off his bicycle, put the purse down, and keep his hands where he could see them, and (3) radioed for backup assistance. The government argues, in response, that Ware was not seized until much later, well after probable cause had been established by the discovery of the cocaine in the toothbrush holder. Under the government's theory, Ware was not seized at first because he was free to leave, and because he initiated the voluntary search. We disagree with the government and hold that Ware was seized within the meaning of the Fourth Amendment.⁵

In In re J.M., 619 A.2d 497 (D.C.1992) (en banc), we stated:

The crucial test for determining whether a person has been seized is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.

Id. at 499-500 (citing Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991) (internal quotation marks omitted; emphasis added in J.M.)). Thus the case law makes clear that "a seizure does not occur simply because police officers approach an individual and ask a few questions." Oliver v. United States, 618 A.2d 705, 708 (D.C.1993).⁶ More is required, as we explained in Kelly v. United States, 580 A.2d 1282 (D.C.1990):

Factors which "might indicate a seizure" would include, for example, "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled."

Id. at 1286 (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.));⁷ see also In re J.M., supra, 619 A.2d at 502.

Applying these factors in the present case, we conclude that the police encounter with Mr. Ware constituted a seizure. The government emphasizes that Ware initiated the conversation and that he was free to walk away because the encounter took place on a public street. See, e.g., Oliver, supra, 618 A.2d at 708 (no seizure occurred when officers approached appellant and asked questions; "he involved himself in a consensual discussion, from which he was free to extricate himself at any moment"). However, Ware began the conversation only after he was approached by an officer⁸ who told him in an authoritative manner to get off his bicycle, put the purse down, and keep his hands out in the open. This, in our view, was a "show of authority" of the sort discussed by the Supreme Court in California v. Hodari D., 499 U.S. 621, 626-629, 111 S.Ct. 1547, 1550-1552, 113 L.Ed.2d 690 (1991), and Ware's submission to it resulted in a seizure of his person. Id. at 626, 111 S.Ct. at 1550-1551. The totality of these events "would have communicated to a...