The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
The defendants are charged in a two count indictment filed on August 10, 1989, with possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a) and (b)(1)(C), and use and possession of firearms in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). The case is now before the Court on the defendants' motions to suppress evidence.
After giving careful consideration to the motions, the opposition thereto, and the record in this case, the Court concludes that the motions should be granted.
Briefly, the facts as found by the Court are as follows:
On or about July 6, 1989, the defendants Morgan and Bowman, as well as William Williams,
were riding in a maroon Toyota. Morgan was the driver, Williams was seated in the front passenger seat and Bowman was seated in the rear seat, passenger side. The defendants were driving west on Park Road, in the District of Columbia, from 14th Street toward 16th Street, Northwest, with the intention of driving through Rock Creek Park.
The defendants proceeded on Park Road in a westerly direction to where it intersects with Mount Pleasant Street. They made a right on Mount Pleasant, either immediately before or immediately after the officers activated their emergency equipment. The officers, were assigned to the STOP task force, an acronym for the "Street Terror Offender Program", and apparently were on their way to handle a fugitive warrant.
They were driving in a northerly direction on 17th Street or Mount Pleasant Street
when, according to them, the defendants' automobile turned in front of them causing the officer to apply his brakes. The officers testified that when the defendants turned in front of them a second time they decided to stop the defendants because they were driving dangerously. The second officer, who was the passenger in the police car, testified that he recognized Morgan as someone he had stopped approximately two weeks before. The first officer testified that his partner told him that he recognized Morgan but was not clear whether he was so advised before the officers decided to stop the defendants' automobile or after the officers had made that decision. After considering the testimony, the Court concludes that the officer recognized Morgan prior to the decision to stop the automobile and that the recognition of Morgan was a factor which led to the decision to stop Morgan.
Both officers exited their automobile, the first officer approached on the driver's side and the second officer approached on the passenger side. The first officer asked Morgan to step out and asked to search the automobile, and the second officer asked for his identification. Morgan indicated that the officer could do so, but under the circumstances of the stop of the defendants' automobile, the Court cannot find that the "consent" was voluntarily given by Morgan. The first officer asked for the keys to the trunk, and upon obtaining the keys from Morgan, opened the trunk with or without Morgan's assistance. Then, finding nothing, he went and reached under the dashboard, driver's side where he retrieved the drugs and guns. The defendants were placed under arrest and upon being searched, each yielded up a beeper. The beepers had not been observed or heard prior to the arrest of the defendants.
Although the officers stated that they stopped the defendants' automobile because of Morgan's erratic driving and because of their concern for the safety of the community, the officers never made an attempt to ascertain whether the defendants had been drinking or were driving under the influence; rather the officers immediately took action to search the defendants' automobile. The first officer testified that in connection with his duties in Howard County
he routinely stops drivers to ascertain whether they are carrying illegal drugs. In response to questions by the Court, the officer stated:
The Court: Do you ask or request permission to search every car you stop or just some cars?
The Officer: Not absolutely everyone., Sometimes if it was a woman with her children, I'm usually swayed not to [ask to search the car], but I do that sometimes, also. I've found drugs in people over sixty years old cars, so I try not to let my impressions, first impressions, sway me from not asking. I do it as matter of routine. And I teach officers that come out of the academy as a matter of routine to ask people. If they say no and you don't have any other violations, let them go.
The Court: And there was no violation -- well, suppose Mr. Morgan said no, what was going to happen at that time?
The Officer: There was nothing I could have done at that point, but to tell him to have a good day and let him go.
The Court: So you didn't intend to give him a ticket for traffic?
The Officer: I didn't have any tickets. My intentions were to stop him, make sure he wasn't drunk or under the influence of something, or he wasn't acting mentally ...