White v. US, No. 96-CF-1167.

• Decision Date: 14 December 2000
• Docket Number: No. 96-CF-1167.
• Citation: 763 A.2d 715
• Parties: Larry D. WHITE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

763 A.2d 715

Larry D. WHITE, Appellant, v. UNITED STATES, Appellee.

No. 96-CF-1167.

District of Columbia Court of Appeals.

Argued November 14, 2000.

Decided December 14, 2000.

Roosevelt F. Brown, III, Washington, DC, appointed by the court, for appellant.

L. Marie Leggon, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher and Alan M. Boyd, Assistant United States Attorneys, were on the brief, for appellee.

Before REID, GLICKMAN, and WASHINGTON, Associate Judges.

REID, Associate Judge:

After a jury trial, appellant Larry D. White was convicted of carrying a pistol without a license, in violation of D.C.Code § 22-3204(a) (1996); possession of an unregistered firearm, in violation of D.C.Code § 6-2311(a) (1995); and unlawful possession of ammunition, in violation of § 6-2361(3).¹ He filed an appeal,² contending that the trial court erred by denying his motions: (1) to suppress evidence; (2) for a continuance or a mistrial, based upon the government's failure to produce exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) for judgment of acquittal due to the insufficiency of the government's evidence. Finding no error, we affirm the judgment of the trial court.

FACTUAL SUMMARY

The government's evidence showed the following events. Around 2 a.m. on July 12, 1995, a woman drove up to a police vehicle in Anacostia Park in the Southeast quadrant of the District of Columbia. Officer Michael Foran, who was seated in the police car, testified at a hearing on White's motion to suppress evidence, that the woman "appeared nervous" and recounted an incident as she was approaching a nearby police station to pick up her nephew who had been arrested earlier on a traffic offense. When the woman drove into the parking lot of the police station, a station wagon "pulled in front of her" and "spooked her." She was "spooked" because she "believed or she had knowledge that her nephew . . . had been beefing [(arguing or fighting)] with people and that someone was out to shoot him, and she was concerned that the occupants in the car were going to try and shoot her nephew when he left the station." The woman described the location where the station wagon had parked, saying that it was "way back to the right ... [of] the gate at the entrance of the parking lot" of the police station.

Officer Foran followed the woman back to the police station and observed the station wagon in an obscure spot of the police parking lot, normally reserved for impounded cars. He characterized its location as in "one of the areas where even if you drive with your headlights on, as you are pulling out of the parking lot there, unless you are specially looking for a car in there, you see shapes of cars, but you wouldn't see specific vehicles." The station wagon was in a fenced area, in front of a dirt berm, and behind a van. Its lights were off. Officer Foran was not accustomed to seeing cars with passengers parked in that location because it is "used for seized vehicles or vehicles people leave there over night when they are out of town." As he stated: "In the three and a half years I worked in Anacostia Park I have never seen any occupied cars ... be parked there any other hour of the day... especially at two o'clock in the morning."

Officer Foran accompanied the woman into the police station, alerted another officer about her concern, and then went back to again observe the station wagon. He pretended to fill his police vehicle at a gas pump near the location of the station wagon while he continued to watch the station wagon. He called another police officer, Scott Dahl, for assistance. Although Officer Foran "couldn't see shapes that well," he "could see heads move to a degree ..." in the station wagon. He watched for a few additional minutes. When Officer Dahl arrived, the two drove the short distance to the station wagon, pulled in front of it and saw "heads in the car all ducked down in the seats."³ In referencing a ducking motion, Officer Foran stated at trial: "As Officer Dahl and I approached the vehicle I saw what looked like heads in the car all ducked down, in motion like this, and an apparent motion, apparent attempt to hide from us or hide something in the car." White was in the driver's seat; two juvenile females were in the car, one seated next to White, and the other in the back seat with a male passenger. Using their flashlights, the officers ordered the four persons inside the station wagon to "sit up in the seats...." Officer Foran stated that he "was quite concerned about [his] safety ... because it was an unusual act of someone to duck down as a police approach especially with the information the lady gave me." In addition, White was six feet two inches tall and weighed approximately 270 pounds. Officer Foran ordered the occupants to "step out of the car." After the occupants exited the station wagon with their hands raised, Officer Foran frisked them for weapons, but found none on their person. The passengers were secured for safety reasons, and to "temporarily detain them at the scene." White was handcuffed to a roof rack located on top of the station wagon. Because of his concern for his safety, Officer Foran looked into the vehicle for weapons while he was standing at the side of the car by the driver's seat. With his flashlight in hand, he "observed what appeared to be a [handgun] on the [floorboard] by the driver's seat." Part of the gun was under the seat. Officer Dahl testified, at trial, that: "[W]hen Officer Foran . . . advised me there was a weapon in the car, ... I looked and I saw it. I could see it from the passenger side. If I looked inside the vehicle, looked down in the car I could see the weapon." In addition, he stated: "It was partially under the seat. It was sticking out. It is a considerable amount I could see from the passenger side. If I put my head inside the compartment, I could see it on the other side, underneath the seat. I could see it sticking out." Once he saw the gun in the station wagon, Officer Foran placed the occupants of the station wagon under arrest, secured them and proceeded to search the station wagon. Among other items, he retrieved from the station wagon a twenty-two caliber loaded revolver, which was the handgun that the officers saw on the floorboard near the driver's seat.

White testified in his own behalf, both at the suppression hearing and at trial, acknowledging that he was in the station wagon, in the location identified by Officer Foran. He asserted that the occupants of the vehicle "were sitting slumped in a relaxed position, I would say, more or less comfortable position...." He denied making a ducking or bending motion while seated in the car. After the police car pulled in front of the station wagon, the police officers "got out of the car and proceeded to pull their [handgun] out, and told us to show [them our] hands." White and the other male passenger were "pulled" out of the station wagon. White was handcuffed and frisked. The officers searched the car for about 15 or 20 minutes, and then put White and the other male into the police car. White denied that he saw a gun, or had placed a gun in the station wagon "on that evening."

ANALYSIS

The Motion to Suppress

White contends, first, that the trial court erred by denying his motion to suppress, because "the seizure of tangible evidence flowed directly from [an] illegal warrantless arrest." The government argues that, under the totality of the circumstances, the police had a reasonable, articulable suspicion to remove White from the station wagon, and subsequently, lawfully seized the gun which was in plain view when the officers looked into the station wagon.

Our review of the trial court's disposition of a motion to suppress "`is limited.'" Thompson v. United States, 745 A.2d 308, 312 (D.C.2000) (quoting Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989)). "We must `defer to the trial judge's finding of evidentiary fact,'" Dancy v. United States, 745 A.2d 259, 272 (D.C.2000) (quoting Womack v. United States, 673 A.2d 603, 607 (D.C.1996),cert. denied, 519 U.S. 1156, 117 S.Ct. 1097, 137 L.Ed.2d 229 (1997)), and view "`all reasonable inferences therefrom ... in favor of sustaining the trial court ruling.'" Thompson, supra, 745 A.2d at 312 (quoting Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc) (other citation omitted)). "`Essentially[,] our role is to ensure that the trial court has a substantial basis for concluding that no constitutional violation occurred.'" Id. (quoting Lawrence, supra, 566 A.2d at 60) (citation omitted). We review the legal issue de novo. See Maddox v. United States, 745 A.2d 284, 289 (D.C.2000); see also Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

The trial court "credit[ed] the version of the events [given] by the police," specifically referencing Officer Foran's encounter with the woman who informed him about the station wagon and her concerns; Officer Foran's verification of the station wagon's location at 2 a.m.; his observation of the vehicle, the "ducked down" heads of the passengers; and the size of White compared with that of Officer Foran. The trial judge stated: "I do not credit Mr. White's representation that [the police] had guns drawn," or that they "snatched" or pulled White out of the car. However, the judge found that White "was cuffed to the luggage rack of the car," but that, under the totality of the circumstances, this temporary restraint was reasonable.

In determining whether the trial court erred by denying White's motion to suppress, we reiterate that: "A police officer must have a reasonable, articulable suspicion that criminal activity is afoot before that officer lawfully can stop (or seize) an individual without that person's consent." Speight v. United States, 671 A.2d 442, 446 (D.C.1996) (citin...