" United States v. Lucas, 778 F.2d at 887 (footnote omitted).
The circumstances should be viewed from the perspective of a reasonably prudent police officer in light of his training and experience. See id. (citing Illinois v. Gates, 462 U.S. at 230, and Carroll v. United States, 267 U.S. 132, 161 (1925)); accord United States v. Green, 216 U.S. App. D.C. 329, 670 F.2d 1148, 1152 (D.C. Cir. 1981) (citations omitted); Jackson v. United States, 112 U.S. App. D.C. 260, 302 F.2d 194, 196 (D.C. Cir. 1962) (officer guided by whole of his experience). For example, the Court of Appeals previously has reasoned that "an officer experienced in the narcotics traffic may find probable cause in the smell of drugs and the appearance of paraphernalia which to the lay eye is without significance." Bell v. United States, 102 U.S. App. D.C. 383, 254 F.2d 82, 86 (D.C. Cir.), cert. denied, 358 U.S. 885 (1958). Moreover, in White, 655 F.2d at 1303-04, the court held that probable cause exists where officers, who have previously demonstrated their ability to recognize narcotics transactions, observe conduct similar to a narcotics transaction in a high narcotics area.
Here, articulable suspicion ripened into probable cause to arrest defendant when Sergeant Wasserman saw the ziplock bag protruding from defendant's front pocket and when Officer Marsh confirmed that defendant was the person involved in the transfer of the small object to the unidentified person for currency in a high narcotics area. Again, it is important to note Wasserman's experience: in his six-and-a-half years on the force, he had participated in approximately 1,500 narcotics-related arrests and had frequently seen ziplock bags used in the distribution of drugs.
Based upon both the information he received from Officer Marsh, and his own years of training and experience, Sergeant Wasserman reasonably was able to deduce that defendant was carrying drugs in his pocket when Wasserman saw the ziplock bag protruding therefrom. Under the totality of these circumstances, there was probable cause for the defendant's arrest. The cocaine base therefore was properly recovered in a search of defendant's pocket (the one from which the ziplock bag was protruding) incident to arrest. See Chime] v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969).
C. In the Alternative, the Search of Defendant Can Be Justified as the Product of Valid Consent
Although the Court of Appeals cryptically notes that the "government never raised the issue of consent" the first time around, as though that somehow could have dispositive significance, the court opined that this Court may nevertheless have ruled on this basis. Accordingly, while Parts A and B above set forth in detail the Court's principal reasoning at the time of the hearing, the record supported an alternative basis for the constitutionality of the recovery of the drugs, i.e., defendant consented to the officer's search.
As noted above, when Sergeant Wasserman was walking with the defendant back to the police van, defendant repeatedly stated, "You can check me. I've got nothing. I'm just waking through the area. I think you've got the wrong guy. . . . Really, if you check me, I wasn't doing anything at all. I was just walking through the area I think you've got the wrong guy." To determine whether this consent was voluntary within the meaning of the Fourth Amendment, the Court again should consider the "totality of all the circumstances," contemplating such factors as the defendant's age, education, intelligence, lack of advice concerning his constitutional rights, the prolonged nature of the questioning, and the use of (any) physical punishment. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); United States v. Battista, 278 U.S. App. D.C. 16, 876 F.2d 201, 207 (D.C. Cir. 1989); United States v. Lloyd, 276 U.S. App. D.C. 118, 868 F.2d 447, 451 (D.C. Cir. 1989). No single factor is dispositive. United States v. Lewis, 287 U.S. App. D.C. 306, 921 F.2d 1294, 1300-01 (D.C. Cir. 1990).
In the instant case, Sergeant Wasserman did not even ask for permission to search; rather, defendant repeatedly invited the officer to search him, saying, "You can check me. I've got nothing." See United States v. Cooper, 163 U.S. App. D.C. 55, 499 F.2d 1060 (D.C. Cir. 1974) ("absolutely no coercion" found where defendant himself "invited" police to search his wardrobe). Moreover, defendant's (appellate) claim that the encounter with sergeant Wasserman was fundamentally coercive and that his consent was constitutionally defective does not withstand scrutiny. Here, there was no "'aggressive questioning, intimidating actions, or prolonged police presence'"; [defendant] was not forcibly detained or physically abused." Lloyd, 868 F.2d at 451. In addition, defendant's (appellate) claim that he is a "young man with limited education, and intelligence" (Brief for Appellant at 18), does not state his age or note any particular mental defects. (In fact, defendant is 29, with three prior adult convictions.)
Finally, defendant's (appellate) claim that he was unaware of his right to refuse to consent (Brief for Appellant at 18), is similarly misplaced since he was never asked for permission to be searched but instead initiated the suggestion that the police search him. Moreover, an officer is not required to inform a person that he has the right to refuse consent. E.g., United States v. Smith 284 U.S. App. D.C. 64, 901 F.2d 1116, 1118 (D.C. Cir.) (quoting United States v. Joseph, 282 U.S. App. D.C. 102, 892 F.2d 118, 122 (D.C. Cir. 1989)), cert. denied, 111 S. Ct. 172 (1990). In short, defendant, by repeatedly inviting the police to search him, consented to the search of his person that led to the discovery of contraband.
For all of the foregoing reasons, defendant's motion to suppress was denied orally at the conclusion of the motion hearing on October 2, 1990.
Stanley S. Harris
United States District Judge
Date: MAR 12 1993