Appeal from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess, Jr., Trial Judge)
Before Rogers, Chief Judge, and Schwelb and Sullivan, Associate Judges.
The opinion of the court was delivered by: Sullivan
SULLIVAN, Associate Judge: Appellant was convicted by a jury of possession with intent to distribute two controlled substances, cocaine and heroin, in violation of D.C. Code § 33-541 (a)(1) (1988). She appeals her conviction on three grounds. First, appellant argues that the trial court erred when it denied her motion to suppress evidence, and thereby violated her Fourth and Fifth Amendment rights, by ruling that she had "abandoned" a brown metallic key case when she placed the case in a public area and walked away from it as the police approached her. Second, appellant contends that the trial court erred by denying her motion for judgment of acquittal because the government's evidence was insufficient to prove that she intended to distribute the cocaine and heroin in her possession. Third, appellant argues that the trial court erred by admitting expert testimony that possession of eight packets of heroin and cocaine was consistent with possession with intent to distribute, when possession of identical quantities was also consistent with possession for personal use. We affirm.
The government's evidence *fn1 shows the following: On November 22, 1988, at approximately 10:00 a.m., in the area of the 1900 block of 9th Street, Northwest, uniformed members of the Metropolitan Police Department, riding police scooters, were assigned to carry out an overtime detail called "Operation Clean Sweep." Their goal was to combat the sale of illicit drugs at "open air drug markets." As the officers approached on their scooters, the crowd began to disperse. When Officer Arthur Perry had come within eight to ten feet of the crowd, he observed appellant stooping down and placing a small object on a small curb on the ground next to a fence post. Appellant stood up and immediately started walking away in the direction of a nearby driveway. Officer Perry instructed Officer Bobby A. White, who was adjacent to him on another scooter, to stop appellant. Officer White stopped appellant approximately four to seven feet from the fence post next to where she had placed the object on the ground.
While Officer White detained appellant, Officer Perry retrieved the object, a brown metallic (magnetic) key case. Officer Perry opened the key case and discovered that it contained a total of thirteen separate small packets of a white powdery substance, eight of which later tested positive as thirty-six percent pure heroin and the other five of which later tested positive as forty-one percent pure cocaine.
Detective Albert Young was qualified without objection as the government's expert on the use and trafficking of controlled substances in the District of Columbia. He also testified without objection that the eight bags of heroin, weighing 850 milligrams, and the five bags of cocaine, weighing 1330 milligrams, which were recovered by police from the key case placed on the ground "by appellant, represented "usable amounts" of drugs in that they contained "an amount that can be ingested or put into the body in a typical fashion in which it is used." He testified further that in November 1988, each packet of heroin would have sold for about $35.00 and that each packet of cocaine would have sold for between $30.00 and $40.00. In Detective Young's opinion, possession of the eight packets of heroin and the five packets of cocaine was mode consistent with an intent to distribute than with personal use. This opinion was based in part on the quantity, value, and packaging in smaller bags, and also on the possession of both heroin and cocaine. *fn2
Appellant attempts to distinguish this case from the typical abandonment case by contending that she "did more than give up temporary custody of the key case." In a typical abandonment case, according to appellant, the subject drops an object in a way that clearly evidences his or her intention *fn3 to distance himself or herself from that object. Therefore, appellant argues that the drugs seized from the key case by police should have been suppressed as a product of an unlawful search and seizure.
The trial court found appellant's argument on the issue of abandonment to be without merit Relying on this court's decision in Smith v. United States, 292 A.2d 150 (D.C. 1972), the trial court determined that appellant had abandoned the key case and that the abandonment was dispositive as to the legality of the search and seizure of it by police. The trial court noted that it was persuaded by the following language from Smith:
It is clear in this jurisdiction that where incriminating evidence is discarded in a public area in anticipation of a police investigation, the Fourth Amendment does not set limits on its recovery by the police, even where what is exposed to public view is not itself evidence of a crime."
Smith, supra, 292 A.2d at 151 n.4.
Applying Smith to the instant case, the court stated that "appellant discarded the key case on a public sidewalk, exposing it to public view, any passer-by could have picked it up in that period of time. And under Smith . . . I think that resolves the issue."
"Because the ultimate determination [of abandonment in the Fourth Amendment sense] hinges on the outcomes of a factual inquiry into intent, a finding of abandonment is reviewed under a clearly erroneous standard." See United States v. Thomas, 275 U.S. App. D.C. 21, 24, 864 F.2d 843, 846 (1989). We hold that the trial court's finding of abandonment is not ...