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06/15/90 JORGE ALBERTO ALVAREZ v. UNITED STATES

June 15, 1990

JORGE ALBERTO ALVAREZ, APPELLANT
v.
UNITED STATES, APPELLEE



Ferren and Schwelb, Associate Judges, and Reilly, Senior Judge.

The opinion of the court was delivered by: Schwelb

Alvarez appeals from his conviction of unlawful possession of a prohibited weapon, a switchblade knife, in violation of D.C. Code 22-3214 (a) (1989). He contends that the trial Judge committed reversible error in denying his pretrial motion to suppress tangible evidence, that evidence consisting of the knife which was recovered from his pocket during a search incident to his arrest. The arrest was predicated on Alvarez' possession of an open can of Budweiser beer on the sidewalk in the vicinity of a social club. Although a warning or a citation might perhaps have been a more proportionate police response to the incident, we agree with the trial Judge that the officer had probable cause to believe that Alvarez was committing a misdemeanor in his presence, and was therefore authorized to arrest him. See D.C. Code § 23-581 (a)(1) (1989). Accordingly, we affirm the conviction.

I

On January 6, 1988, at approximately 11:35 p.m., officers on routine patrol observed Alvarez and several companions socializing on a sidewalk in the vicinity of 16th and Lamont Streets in Northwest Washington, D.C. Alvarez had an open can of Budweiser in his hand. The arresting officer approached him and took the can from him. *fn1 After confirming by observation and smell that some beer remained in the can, the officer placed Alvarez under arrest.

The officer did not see Alvarez drinking from the can, nor did he observe any erratic behavior on Alvarez' part. He testified that he made the arrest "because it's illegal in the District of Columbia to have an open can, open container of alcohol in public." After taking Alvarez into custody, the officer searched him and recovered the knife which led to Alvarez' conviction.

In the trial court, Alvarez filed a motion to suppress the evidence which had been seized from him. After a hearing at which only the arresting officer testified, the trial Judge denied the motion. Alvarez then entered a conditional plea of guilty, preserving his right to seek appellate review of the denial of his motion. This appeal followed.

II

District of Columbia Code Section 25-128 (a) (1989 Supp.) provides in pertinent part that

o person shall in the District of Columbia drink any alcoholic beverage or possess in an open container any alcoholic beverage in any street, alley, park or parking . . . .

The arrest in this case was based on Alvarez' alleged violation of this statute. In his motion to suppress in the trial court, and now on appeal, Alvarez contends simply that the sidewalk is not the street, that his conduct was lawful, *fn2 and that the officer lacked probable cause to arrest him.

We note at the outset that a number of other "open container" ordinances apply by their terms to sidewalks, *fn3 while the District's statute does not. Alvarez also argues, and we agree, that Section 25-128 is a penal statute which must be strictly construed. Browner v. District of Columbia, 549 A.2d 1107, 1115-16 n.19. (D.C. 1988); see City of Hamilton v. Collier, 44 Ohio App. 2d 419, , 339 N.E.2d 851, 853, 73 Ohio Op. 2d 535(1975) (applying rule of lenity and holding that private automobile is not a public place within the meaning of "open container" ordinance). The rule of lenity does not, however, require courts to give criminal statutes their narrowest possible interpretation, and cannot substitute for common sense or the policy underlying a statute. Lemon v. United States, 564 A.2d 1368, 1381 (D.C. 1989). "It can tip the balance in favor of criminal defendants only where, exclusive of the rule, a penal statute's language, structure, purpose and legislative history leave its meaning genuinely in doubt." Id., quoting United States v. Otherson, 637 F.2d 1276, 1285 (9th Cir. 1980). Notwithstanding the lack of specific reference in the District's statute to sidewalks as such, we do not think that such a genuine doubt exists here.

At least in the absence of contrary legislative history or some other comparable indication, courts presume that the legislature intended words in a statute to be given their plain and ordinary meaning. Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917); Swinson v. United States, 483 A.2d 1160, 1163 (D.C. 1984). Section 25-128 (a) proscribes the possession of alcohol in an open container in any "street." Although "street" is not defined in title 25 of the D.C. Code, other definitions of the word reveal that it includes the sidewalk. In the municipal regulations, "sidewalk" is defined as "that portion of a street between the curb lines or the lateral lines of a roadway, and the adjacent property lines intended for the use of pedestrians." 18 D.C.M.R. § 9901 (1987) (emphasis added). Our statutory law defines public space as

all the property lines on a street. . . and includes any roadway, tree space, sidewalk, or parking ...


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