Watson v. United States

• Decision Date: 10 May 2012
• Docket Number: No. 09–CM–447.,09–CM–447.
• Parties: Gene E. WATSON, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

43 A.3d 276

Gene E. WATSON, Jr., Appellant,

v.UNITED STATES, Appellee.

No. 09–CM–447.

District of Columbia Court of Appeals.

Argued June 3, 2010.

Decided May 10, 2012.

Rufus W. McKinney Jr. for appellant.

Michael Friedman, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Elizabeth Trosmam, and John Roth, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE–RIGSBY and THOMPSON, Associate Judges, and RUIZ, Associate Judge Retired.^*

RUIZ, Associate Judge, Retired:

Gene E. Watson appeals his conviction for attempted possession of marijuana, in violation of D.C.Code § 48–904.01(d) (2001). Appellant claims that the trial court erred in: (1) denying his motion to suppress drug evidence found in a search incident to an arrest he claims lacked probable cause, and where the prosecutor did not comply with Rule 16 discovery requirements prior to the suppression motion; and (2) admitting two statements appellant made, in violation of his Fifth Amendment rights. We conclude that none of appellant's claims requires reversal and we therefore affirm his conviction.

I. Statement of Facts

On June 17, 2008, Metropolitan Police Department (MPD) Officer Chris Reisinger was on duty in a marked police cruiser on the Whitney Young Memorial Bridge. Officer Reisinger was operating a “Lidar III” device—a laser radar detection gun—to detect speeding cars. At approximately 6:00 p.m., Officer Reisinger saw appellant's car traveling across the bridge “at a high rate of speed” and going “a lot faster than other vehicles.” The speed limit on the bridge, which was clearly indicated by two posted signs, was forty miles per hour. The officer testified that when he pointed his Lidar III device at appellant's car, the gun sounded an audible target acquisition tone, locked on the vehicle, and indicated that the car was traveling at eighty-eight miles per hour—forty-eight miles over the posted speed limit. Officer Reisinger testified that he knew that driving thirty miles over the speed limit in the District of Columbia is an arrestable offense, so he signaled to appellant to pull over to the side of the road. Officer Reisinger approachedthe driver's side of the car and asked appellant (the sole occupant of the vehicle) for his driver's license and registration information. Appellant produced a driver's license and a D.C. fireman's employee identification card. The officer then asked appellant to step out of the car, at which time he handcuffed appellant and informed him that he was under arrest for driving more than thirty miles over the speed limit.

Officer Reisinger then began to search appellant incident to the arrest, during which the officer pulled up appellant's pant leg and noticed a bulge in appellant's sock. The officer testified that “for safety reasons” he asked, “what's that?” Appellant responded, “Oh, it's just some weed.” Officer Reisinger recovered what he suspected to be crack cocaine and marijuana from appellant's sock (both field-tested positive as drugs) as well as $1,387 from appellant's pocket. Because of appellant's status as a D.C. Fire Department employee, Officer Reisinger notified the fire department of appellant's arrest. While waiting for the fire department officers to arrive and retrieve appellant's employee identification card, Officer Reisinger asked appellant “standard biographical questions” for booking purposes, such as his name and date of birth. According to Officer Reisinger, appellant had not been prompted by a question when he volunteered that he had “just got it at Riggs Road, it's for my girl.” Officer Reisinger did not respond to appellant's statement. After the fire department officers arrived and appellant's employee identification card was surrendered to them, appellant was taken to the police department.

Appellant was charged with one count of unlawful possession of cocaine, in violation of D.C.Code § 48–904.01(d), and one count of unlawful possession with intent to distribute marijuana, in violation of D.C.Code § 48–904.01(a)(1). However, because the forensic chemist who prepared the Drug Enforcement Administration's (DEA) laboratory report was unavailable to testify at trial, the government amended the charges to one count of attempted possession of cocaine and one count of attempted possession of marijuana. Defense counsel filed a motion to suppress the statements under the Fourth and Fifth Amendments alleging that the incriminating statements were obtained during the course of an unlawful arrest and in violation of appellant's Miranda¹ rights.

After hearing testimony from Officer Reisinger, the court denied appellant's motion to suppress appellant's two statements because appellant was “not specifically interrogated” and “it was legitimate for the officer, as he testified, [to be] concerned about his safety [and] to make sure that the item that he was going to attempt to retrieve from the sock area from the bulge in the sock did not contain something that could injure him.” The judge found appellant guilty of attempted possession of marijuana, relying on the “unrebutted” and “very credible” testimony of Officer Reisinger, the fact that appellant had concealed the item which “is consistent with the items being illegal,” and the “very large amount of cash” found on appellant. The trial court also credited that appellant made the statements that the substance in the sock was marijuana and that he had purchased it for his girlfriend, which the court deemed sufficient evidence to establish that appellant was guilty of attempted possession of marijuana.² Due to the lack of evidence regarding the substance suspected to be cocaine, the court acquitted appellant of that count. Appellant filed this timely notice of appeal.

II. Suppression of Physical Evidence

Appellant contends that the trial court erred in denying his motion to suppress evidence because the arrest, which led to Officer Reisinger searching him and finding the marijuana, was made without probable cause. Appellant maintains that the officer lacked probable cause because he unreasonably relied upon incompetent evidence to formulate his belief that the Lidar III device accurately recorded that appellant was driving thirty miles above the legal speed limit. Relatedly, appellant claims that the government violated D.C. Superior Court Rule of Criminal Procedure 16 in not providing to defense counsel certain documents “material to the preparation of the defendant's defense,” which “relat[ed] to Reisinger's testimony on his preparation for use of the Lidar III and ... regarding proper training, use and employment of the [L]idar.”

A. Probable Cause to Arrest

On appeal from a denial of a motion to suppress, our scope of review is limited. See Womack v. United States, 673 A.2d 603, 607 (D.C.1996). We review the trial court's legal conclusions de novo and defer to the trial court's findings of fact unless they are clearly erroneous. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Whether the police had probable cause on a given set of facts is a question of law we review de novo. See id. We will not disturb the trial judge's factual findings unless they are clearly erroneous or not supported by the record, and we will draw all reasonable inferences in favor of sustaining the trial court's ruling. See Blackmon v. United States, 835 A.2d 1070, 1073 (D.C.2003).

A police officer conducting a traffic stop must have “a reasonable, articulable suspicion that he was witnessing a traffic violation” before he may stop a vehicle and its occupants. Duckett v. United States, 886 A.2d 548, 551 (D.C.2005). Once the stop has been made, the officer may make an arrest only if there is probable cause. “The classical formulation is that ‘[p]robable cause exists where ‘the facts and circumstances within [the officers'] knowledge of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.' ” Perkins v. United States, 936 A.2d 303, 306 (D.C.2007) (quoting Brinegar v. United States, 338 U.S. 160, 175–76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Probable cause is measured by “the totality of the circumstances” and while it “must be supported by more than mere suspicion” it “need not be based on evidence sufficient to sustain a conviction.” Blackmon, 835 A.2d at 1075.

We begin by noting that the government was not required to prove that appellant was in fact driving at a speed of eighty-eight miles per hour, or even that the Lidar III device was accurate in its calculation of the speed of his vehicle, as appellant was not prosecuted for speeding but for attempted possession of marijuana. Speeding at more than thirty miles over the posted speed limit is an arrestable offense. See18 DCMR § 2200.12. Thus, at the suppression hearing the government was required to prove that Officer Reisingerhad probable cause, or “reasonably trustworthy information ... to warrant a man of reasonable caution in the belief,” Perkins, 936 A.2d at 306, that appellant was driving thirty miles over the posted speed limit of forty miles per hour.³

The trial court credited the testimony of Officer Reisinger that when he pulled appellant over, he had observed appellant driving across the bridge at a rate significantly faster than the other cars. In addition to his visual observation, the officer aimed the Lidar III device at appellant's car and saw a reading of eighty-eight miles per hour, forty-eight miles over the posted speed limit. Officer Reisinger testified that he had operated the Lidar III device for at least a couple of years, had been trained and certified by MPD in its use, had conducted the Lidar III device's self-test earlier that day, which indicated that it was functioning properly, and knew that the device itself had...