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UNITED STATES v. GREEN

October 28, 1991

UNITED STATES OF AMERICA
v.
AVAUGHN BERNARD GREEN, Defendant


Stanley Sporkin, United States District Judge.


The opinion of the court was delivered by: SPORKIN

STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 This case is before the Court on defendant, Avaughn Bernard Green's ("Green") motion to suppress physical evidence and statements obtained on July 16, 1991 by officers of the Metropolitan Police Department. Because I find that the officers acted legally in seizing the physical evidence, the defendant's motion to suppress that evidence is denied. However, because the police did not properly inform the defendant of his Miranda rights, the defendant's motion to suppress statements is granted with respect to those statements made before he was read his rights.

 On October 15, 1991 this Court held a hearing on defendant Green's motion to suppress tangible evidence and statements made by him in connection with his arrest on July 16, 1991. In connection with that arrest Green was subsequently charged with possession with intent to distribute crack cocaine. At the hearing, testimony was taken from the defendant and two of the arresting officers, Officer Joe Crespo and Officer Gilbert Burgess. The following facts emerge.

 At approximately 6:20 p.m. on July 16, 1991, Officer Joe Crespo was on foot patrol near the intersection of Wisconsin Avenue and M. Street in the Georgetown area. Although Officer Crespo was patrolling alone, there were several other officers on foot patrol in the same area. Officer Crespo observed a grey Samurai car make an illegal left turn from Prospect Street onto Wisconsin Avenue and proceeded to motion the car over to the curb.

 The driver of the car was Nathaniel Wilson, and Green was riding in the passenger seat. The car was owned by Green's mother, who had given him permission to use it. Officer Crespo asked the driver for his license and the car's registration. The driver could not produce a license but handed the officer an identification card. Green then reached into the glove compartment, using his shoulder to shield the officer's view, and got the vehicle's registration. Green handed the registration to Wilson who gave it in turn to Officer Crespo. At that point Officer Todd Avis arrived on the scene and stood behind the car, preventing it from leaving.

 After a radio call, it was determined that the driver, Wilson, did not have a valid driver's license. It had been suspended. Operating pursuant to MPD General Order ยงยง 303-1(I)(B)(1)(d), the officers decided to make a summary arrest. Officer Burgess, the transport driver, who had been called to the area on another matter, arrived on the scene. Wilson was arrested at that point. The officers also decided to search the car incident to Wilson's arrest and asked defendant Green to get out of the car. Green exited the car and stood on the curb, next to the car. One officer searched the car and another stood next to Green. In the glove compartment, the officer found a clear medicine bottle which contained a white rock-like substance which later proved to be crack cocaine.

 At that point the officers placed Green on the sidewalk and asked him who owned the suspected drugs. Green did not respond. The police again asked who owned the drugs, and stated that if they were not his then they would presume the drugs belonged to his mother, the owner of the automobile. Green responded that the drugs belonged to him. He was handcuffed and placed in the transport vehicle. While being transported to the station Green reiterated that the drugs belonged to him, not Wilson or his mother.

 During that entire time, no one gave Green a Miranda warning. He was only advised of his rights at the station. At that point he consented to waive his rights. Green then reiterated that the drugs were his, not Wilson's, and stated that he had gotten them on Rhode Island Avenue. He also said that he planned to sell them to make money. When asked to make a written statement, Green declined to do so until he had retained a lawyer. The questioning ceased at that point.

 DISCUSSION

 A. The Seized Drugs

 Defendant Green first moves to suppress the narcotics seized from his mother's car. In support of his motion, Green argues that the car was not actually, nor under police regulations should it have been, impounded. That argument, however, fails to address the justification for the search.

 "When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981). In Belton the Court upheld a vehicle search which included unzipping a pocket of a jacket in the car's passenger seat after all of the car's occupants were removed and placed under arrest. There is no requirement under Belton that every occupant must be placed under arrest before a search incident to arrest may occur. The search of the vehicle in the present case was ...


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