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05/05/92 DEBRA A. MINNICK v. UNITED STATES

May 5, 1992

DEBRA A. MINNICK, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Jr., Trial Judge).

Before Ferren, Terry, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : Appellant Minnick and a co-defendant, James Hayes, were charged with possession of phencyclidine (PCP) with intent to distribute it, in violation of D.C. Code § 33-541 (a)(1) (1988). After the trial court denied her motion to suppress evidence, Minnick was found guilty by the court in a stipulated trial. On appeal she challenges only the denial of her motion. We affirm.

I

On June 9, 1988, at about 7:00 p.m., Detectives Michael Keenan and Jeff Wasserman of the United States Park Police were sitting in an unmarked car in a restaurant parking lot at the corner of New York and Florida Avenues, N.E. They had been assigned to watch automobile traffic into and out of the nearby Lincoln Road area, which was, according to Keenan, "a section of the city known for the distribution of PCP, particularly to younger white people from Baltimore, Anne Arundel County, Howard County northern Maryland." From where the detectives were parked, they could not see Lincoln Road, *fn1 and they did not witness any drug transactions that evening.

As they sat in the parking lot, the detectives noticed a tan Chevrolet driving west along New York Avenue. The car was occupied by appellant Minnick and her co-defendant, James Hayes. Approximately ten minutes later the same car appeared again, this time headed south on Florida Avenue toward New York Avenue. Minnick was at the wheel, and Hayes was seated beside her. Seeing Minnick make an illegal left turn onto New York Avenue, the detectives decided to follow her.

As they drove along behind Minnick's car, the detectives noticed it weaving slightly back and forth as it traveled east on New York Avenue. Keenan testified that Minnick's car crossed the white lines separating the lanes at least three times. *fn2 Because of this weaving and the illegal left turn, the detectives pulled Minnick over to the side of the road after following her for one-half to three-quarters of a mile. *fn3 Detective Keenan freely admitted in his testimony that he initially decided to follow Minnick and Hayes because they closely matched the profile of persons known to be involved in drug activity in that area, "but it was the traffic violation that finally caused me to pull them over."

Detective Wasserman got out of his car and walked over to Minnick's car on the driver's side, while Detective Keenan approached on the passenger's side. Wasserman asked Minnick for her driver's license and registration, and Keenan simultaneously asked Hayes to open his window. As soon as Hayes rolled the window down, Detective Keenan smelled a strong odor of PCP emanating from inside the car. Wasserman told Keenan that he too noticed an odor of PCP. Detective Keenan asked both Minnick and Hayes to step out of the car and then proceeded to search it. In the course of the search, Keenan dumped the contents of Minnick's purse onto the hood of the car, and when he did so, he found among those contents two vials of PCP. He seized the vials and placed Minnick and Hayes under arrest.

In denying Minnick's motion to suppress the vials of PCP, the trial Judge said:

Here there were police who were staked out at a high narcotics area. They noticed this car going in. They noticed the car coming out of the area. They followed the car. According to the testimony, which I find credible, the car made an illegal turn. They followed it initially, the car weaved. It could have been somebody driving under the influence of drugs, driving under the influence of liquor. The car weaved. It crossed or touched . . . both lines. I believe the testimony of the police officer. It was stopped. At the time it was stopped, the officers asked the passengers to exit, and they detected a strong odor of PCP. That gave them the right to search the entire car, as far as I'm concerned, and anything in the car. And any seizure made at that time was incident to a lawful arrest, pursuant to a lawful stop. So the motion to suppress is overruled. . . .

II

Minnick argues that the initial stop of her car by the two detectives was a sham and therefore unreasonable under the Fourth Amendment. More specifically, she maintains that the detectives stopped her car for the sole purpose of searching it for illegal drugs, even though they did not have probable cause to believe that she had committed a drug offense. She asserts that the traffic violation, which she says did not even occur, was merely a pretext for the detectives to stop her car and search it for drugs.

Minnick correctly notes that the Supreme Court has not directly dealt with an assertion that a traffic stop was pretextual. Although the Court in several cases has considered the propriety of random license checks, sobriety checkpoints, and the like, *fn4 it has never focused squarely on the constitutionality of pretextual traffic stops. *fn5 This court, however, has recognized that a pretextual stop may violate the Fourth Amendment. In Punch v. United States, 377 A.2d 1353, 1356 (D.C. 1977), cert. denied, 435 U.S. 955, 55 L. Ed. 2d 806 , 98 S. Ct. 1586 (1978), we said that an exception to the general rule that the police may stop a vehicle after witnessing a traffic offense "may exist where the traffic stop is a sham to mask other purposes." Similarly, in Mincy v. District of Columbia, 218 A.2d 507 (D.C. 1966), we held that a routine spot check of a motorist is not unreasonable "provided such a check is not used as a substitute for a search for evidence of some possible crime unrelated to possession of a driver's permit." Id. at 508 (citations omitted). These two cases at least suggest that evidence of pretext may make such intrusions constitutionally questionable. *fn6

While neither Punch nor Mincy involved an allegedly pretextual stop, other courts have considered what factors might make a stop pretextual, and hence unconstitutional. The Eleventh Circuit invalidated on grounds of pretext a stop and subsequent search of a driver who had "allowed his right wheels to cross over the white painted lane marker about four inches, in violation of Florida traffic laws." United States v. Miller, 821 F.2d 546, 547 (11th Cir. 1987). Earlier, in United States v. Smith, 799 F.2d 704, 706 (11th Cir. 1986), the same court invalidated as pretextual the 3:00 a.m. stop of a car for "weaving," when the officer testified only that the car had out-of-state tags, that it was occupied by two young men, and that the driver "appeared to be driving overly cautious" and did not look in the direction of the police car parked in the median as he drove past. See also United States v. Valdez, 931 F.2d 1448, 1451 (11th Cir. 1991) (concluding "that the objective evidence reveals that ...


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