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November 30, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Stephen G. Milliken, Motions Judge)

Before Schwelb, Wagner, and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: This case comes to us on an expedited appeal filed by the government from an order granting a motion to suppress tangible evidence. We reverse.

On August 27, 1991, at approximately 2:20 a.m., Officers Miller and Osborne were travelling northbound on Minnesota Avenue, in a marked vehicle, at the intersection of Minnesota Avenue and Benning Road, Northeast. The officers observed a vehicle, travelling eastbound on Benning Road, fail to stop for a red traffic signal. The vehicle turned left onto Minnesota Avenue, and the officers followed the vehicle and activated their emergency equipment to signal the vehicle to stop. The vehicle, which was occupied by the driver and two passengers, stopped without incident and parked approximately one foot from the curb without obstructing traffic. Prior to exiting their vehicle, the officers were informed by the police dispatcher that the car was registered in the name of Kevin Harris and was not listed as stolen.

Officer Miller approached the driver's side while Officer Osborne stood behind the passenger door. Officer Miller asked the driver, Robinson, for his license and vehicle registration. Robinson produced the registration, but he did not possess a valid driver's license, stating that he was unsure in which jurisdiction he possessed a license.

After obtaining confirmation from the dispatcher that Robinson did not possess a D.C. license, Officer Miller placed him under arrest for driving without a license. The officer then searched and handcuffed Robinson, and locked him in the back seat of the police cruiser.

Officer Miller then returned to the vehicle to conduct a search. Officer Osborne, who had remained at the car, asked the passengers to exit the car. As the front passenger, later identified as appellee Kevin Harris, began to step out of the car, Officer Miller, standing at the driver's side window, observed a silver-colored handgun at Harris's feet. The police subsequently found a brown suede bag, containing 15 rounds of ammunition for the gun, on the vehicle floorboard between Harris's legs.

Appellee was then arrested and charged with carrying a pistol without a license, D.C. Code § 22-3204 (1989 & Supp. 1992), and possession of an unregistered firearm and accompanying ammunition D.C. Code §§ 6-2311, 6-2361 (1989).

Appellee's motion to suppress the pistol and ammunition was granted by the trial court on January 29, 1992. Preliminarily, the court found that appellee, after submitting to the officer's order to get out of the car, was seized within the meaning of the Fourth Amendment. Stating that the issue was "whether law enforcement officers can ask passengers to get out of a car stopped for running a red light after arresting the driver for traffic violations without basis in suspicion of any other criminal activity," the court found that there was no reason to search or impound the vehicle. The court further determined that the decision to order appellee out of the vehicle was unlawful and that the evidence must be suppressed. "Simply stated there was no reason for the police to order Mr. Harris out of the car after having arrested Mr. Robinson. . . . There was nothing about this car or its occupants . . . to justify the seizure of Mr. Harris."

The government moved for reconsideration relying on New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), which the government argued extends a search incident to arrest to the interior of a car. The motions Judge observed that Belton requires that the scope of a search be "'strictly tied to and justified by the circumstances which rendered its initiation permissible.'" See Belton, supra, 453 U.S. at 457 (quoting Chimel v. California, 395 U.S. 752, 762, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969) (internal citations omitted)). The motions Judge concluded that there was nothing in the circumstances surrounding the driver's arrest that warranted the search of the passenger compartment for evidence of the traffic offense, nor was there any reason, under the circumstances, for the officers to fear for their safety. For those reasons, he denied the government's motion for reconsideration.

The government's appeal of the grant of the motion to suppress followed. The government urges reversal based upon three separate and independent grounds: (1) appellee lacked standing to challenge the search, (2) under Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), the police may properly direct passengers to exit the vehicle when the driver has been charged with a traffic violation, and (3) the search of the passenger compartment of a vehicle, after the driver is taken into custody, is a valid search incident to the arrest pursuant to Belton, supra, 453 U.S. at 454. We do not reach the first two contentions since we are satisfied that the government must prevail on the third claim. Accordingly, we reverse.

Our inquiry begins with Belton, which involved the search of a motor vehicle on the New York Freeway after a stop for exceeding the speed limit. There were four men in the car and none of them owned the vehicle or was related to the owner. While conversing with the occupants, the officer smelled burnt marijuana and observed an envelope, inside the vehicle, which he associated with that substance. The officer then ordered all four occupants out of the car, conducted a pat-down of each, and then placed them in four separate locations. He then removed the envelope from inside of the car and found that it contained marijuana. Each occupant was read his rights *fn1 and searched. The officer then searched the passenger compartment of the car, during the course of which he discovered a jacket containing cocaine, which was owned by Belton. At his trial for cocaine possession, Belton sought to suppress the drugs seized from the jacket pocket. It is the propriety of the search of the vehicle, which resulted in the seizure of the cocaine, that was considered by the Supreme Court.

In its analysis, the Court observed that "although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases." Belton, supra, 453 U.S. at 458. It cited several cases from the federal system where different courts, in comparable factual circumstances, had reached contrary results. Id. at 459. The Court also quoted a respected commentator who expressed a preference for a rule that could be readily understood by those who are called upon to apply it -

Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the ...

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