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11/29/90 JOHN H. BEST v. UNITED STATES

November 29, 1990

JOHN H. BEST, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Harriett R. Taylor, Trial Judge

Terry and Steadman, Associate Judges, and Gallagher, Senior Judge. Concurring statement by Associate Judge Steadman.

The opinion of the court was delivered by: Gallagher

After a jury trial, appellant was convicted of (a) distributing, and (b) possessing with intent to distribute cocaine, D.C. Code § 33-541 (a)(1) (1988). He had filed a pretrial motion "to suppress as evidence all tangible evidence and statements obtained as a result of his arrest."

In support of this motion, appellant asserted:

On January 20, 1988, at approximately 5:00 p.m., an undercover police officer allegedly purchased a quantity of a controlled substance from an individual. The undercover officer allegedly handed a marked bill to the individual in exchange for the substance purchased. This purchase allegedly took place in or about a building carrying the address of 501 Virginia Avenue, S.E. The undercover officer allegedly radioed a description of the seller to members of an arrest team. The arrest team allegedly arrived on the scene at approximately 5:15 p.m.

At the time when the arrest team arrived, Mr. Best was standing outside the above address. While he was standing there, Mr. Best was confronted by a number of plainclothes police officers who ordered Mr. Best into the building. Mr. Best was then searched and arrested and a marked twenty dollar bill was allegedly retrieved from his pant pocket. After his arrest, Mr. Best allegedly stated: "you just missed him," or words to that effect.

When Mr. Best was arrested and searched, the police did not have probable cause to believe that he had committed a crime. Mr. Best did not sell any controlled substance to the undercover officer. Since all he was doing was standing outside a building, the police could not have seen him engage in any activities sufficient to make up probable cause for an arrest.

Furthermore, on information and belief, the description of the alleged seller did not match Mr. Best's appearance on the date and time in question.

Since the twenty dollar bill and the statement were obtained as a direct result of an illegal arrest, they should be suppressed.

The trial court denied the motion to suppress without a hearing (and without prejudice). In so ruling, the court relied upon our opinion in Duddles v. United States, 399 A.2d 59 (D.C. 1979). Just before trial, appellant filed a motion to reconsider the order denying his motion to suppress without a hearing. Appellant there contended his allegations in support of his motion were sufficient to satisfy the requirements of Duddles v. United States, supra, 399 A.2d at 64. He asserted that denying him a hearing on his motion deprived him of "his due process right to litigate a colorable constitutional question." The court denied the motion on the basis that in grounding it upon an assertion that he was not at the scene and therefore must have been misidentified, this fundamentally relates to a claim of innocence of the charges to be tried. The court ruled that the claim should therefore be litigated during the trial, rather than by pretrial motion.

Briefly stated, the trial evidence established that an undercover officer purchased cocaine from appellant and gave him a police pre-recorded twenty dollar bill in payment. The officer relayed a lookout for appellant with a description of him which stated he was wearing a baseball-style cap with a star on it, black jacket, gray jeans and tennis shoes, and it was also stated he was paid with a pre-recorded twenty dollar bill. The officer also relayed the street location where appellant was hiding his supply of cocaine behind a basement wall.

An arresting team soon located appellant from the description given them, *fn1 and the purchasing undercover officer then rode by and confirmed the correct person was being detained. Appellant was then arrested and searched and the same pre-recorded twenty dollar bill was found in his pocket, and his hidden supply of cocaine was located.

On appeal, appellant argues that his motion to suppress presented the issues of (a) whether he "was correctly identified as the seller of a controlled substance when the description did not match appearance on the date and time in question," and (b) whether "the police lacked probable cause to believe he had committed a crime." *fn2

The motion to suppress was based principally upon allegations that probable cause for the arrest was lacking because (a) appellant "did not sell any controlled substance to the undercover officer" and "since all he was doing was standing outside a building, the police could not have seen him engage in any activities sufficient to make up probable cause for an arrest" and (b) "on information and belief, ...


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