Appeal from the Superior Court of the District of Columbia. (Hon. Ricardo M. Urbina, Trial Judge)
Before Ferren and King,* Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Mack
Mack, Senior Judge: Appellant was convicted by a jury of: (1) possessing cocaine with intent to distribute it in violation of D.C. Code § 33-541 (a)(1) (1993); (2) possessing a firearm during a dangerous offense in violation of D.C. Code § 22-3204 (b) (1989); (3) carrying a pistol without a license in violation of D.C. Code § 22-3204 (a) (1989); (4) possessing an unregistered firearm in violation of D.C. Code § 6-2311 (a) (1989) (two counts); and (5) unlawfully possessing ammunition in violation of D.C. Code § 6-2361 (3) (1989) (two counts). He appeals his conviction on three grounds. First, appellant argues that the trial court erred in denying his motion to suppress evidence because the officers lacked probable cause to arrest appellant and because the arrest was pretextual. Second, appellant argues that the trial court erred in denying his motion for judgment of acquittal because the government's evidence was insufficient to prove that he intended to distribute the cocaine in his possession. Third, appellant argues that the trial court erred in denying his motion for judgment of acquittal because the government's evidence was insufficient to prove that he constructively possessed the loaded weapons. We affirm in part and reverse in part.
The government's evidence shows the following: On November 23, 1992, at approximately 5:00 a.m., Officer Sean O'Connor, a uniformed member of the Metropolitan Police Department, was patroling his assigned area which included the 700 block of Wheeler Hill Drive, an area known for prostitution. As O'Connor approached a dead end parking lot in the back of Wheeler Hill Drive, he saw a parked car with its lights on and engine running. Appellant was sitting behind the steering wheel and was apparently asleep. O'Connor walked over to the car and noticed that it had a broken steering column, indicating that the car might be stolen. He called for backup. When the backup unit arrived and the officers approached the car, appellant awoke. O'Connor asked appellant to shut off the car, step outside, and show his driver's license. Appellant said that he did not have a license. O'Connor radioed the dispatcher, confirming that appellant did not have a operator's permit and that the car had not been reported as stolen.
O'Connor arrested appellant for operating a motor vehicle in the District of Columbia without a permit in violation of D.C. Code § 40-301 (d) (1990). The officers then searched the car and found two handguns under the right rear seat which was propped up higher than the left rear seat. The guns were visible only upon lifting the back seat. The guns were test fired at headquarters and it was discovered that they were unregistered and that appellant did not have a license to carry a pistol in the District. In searching appellant incident to his arrest, the officers found a brown medicine bottle containing eighteen (18) individual rocks which appeared to be crack cocaine and one-hundred and nine dollars ($109) in cash. No drug distribution or drug use paraphernalia (i.e., scales, cutters, crack pipe, tobacco and rolling paper) were recovered. Both parties stipulated that appellant tested negative for drugs on November 23, 1992.
Officer Charles Culver qualified without objection as the government's expert witness on the Department's safeguards for storing narcotics evidence and on the manner in which narcotics are packaged, sold, distributed and used in the District of Columbia. Culver's uncontested testimony shows the following: a DEA chemical analysis revealed that the medicine bottle recovered from appellant contained 1.222 grams (1,222 milligrams) of a loose rock-like substance containing 85% cocaine base, also known as crack cocaine. The eighteen individual rocks each weighed about 67 milligrams and each would sell for approximately $10 for a total street value of $180. Crack is distributed either in small ziplock bags or in containers in loose rock form. When it is sold in loose rock form, potential customers reach into the container and pull out the individual rock(s) for purchase. It is unusual for a crack user to buy eighteen rocks of crack for personal use because of the lack of quality control (one or two of the rocks might be bad) and because larger rocks of the same weight would be cheaper. Moreover, a crack dealer would be suspicious of a crack user asking to buy eighteen rocks -- the dealer would think the user was either a police officer or someone who was trying to "rip him off." Also, a drug user does not usually consume the whole $10 rock at one time, but often gets at least three hits out of the rock by dividing it into two or three pieces and then smoking it alone or with marijuana. According to a DEA survey, the common dosage of crack is approximately 10 milligrams and thus, 122 hits would be expected from the total amount of crack that was found in appellant's possession. *fn1
Appellant contends that the trial court erred in denying his motion to suppress evidence because the officers lacked probable cause to arrest him. *fn2 According to appellant, he was not required under D.C. law to have a driver's license in order to sit behind the steering wheel of a car in a private parking space. We disagree. *fn3
Appellant's arrest was statutorily authorized, notwithstanding the parking lot's status as private property. D.C. Code § 40-301 (d) (1990) states that "o individual shall operate a motor vehicle in the District . . . without first having obtained an operator's permit or learner's permit issued under the provisions of this chapter." Id. *fn4 Unlike the statutory provisions dealing with motor vehicle registration relied upon by appellant, § 40-301 makes no distinction between private and public property. *fn5 Nor does § 40-301 make any cross references to the vehicle registration provisions. Moreover, this court has held that a vehicle need not be moving, in order for a person to "operate" it in violation of D.C. law imposing criminal sanctions for operating a motor vehicle with a suspended license. See Maldonado v. District of Columbia, 594 A.2d 88, 89-90 (D.C. 1991) (conviction upheld where appellant was sitting behind steering wheel of a parked car); Houston v. District of Columbia, 149 A.2d 790, 792 (D.C. 1959) (same). "Operating" in this context means being "in actual physical control of the vehicle, capable of putting the vehicle into movement or preventing its movement. . . ." Maldonado, supra, 594 A.2d at 89 (quoting Houston, supra, 149 A.2d at 792) (internal quotations omitted). Thus, it is clear from the record that the police did have probable cause to arrest appellant. It is also clear that the subsequent search of appellant's person and of appellant's car were both permissible as searches incident to a lawful arrest. See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973); New York v. Belton, 453 U.S. 454, 460 (1981); United States v. Harris, 617 A.2d 189, 193 (D.C. 1992). *fn6
Appellant further contends that the trial court erred in denying his motion for judgment of acquittal because the government's evidence was insufficient to prove that he intended to distribute the cocaine found in his possession. According to appellant, he purchased the cocaine for his own personal use. *fn7
In the instant case, the government was required to prove that appellant knowingly and intentionally possessed a controlled substance with the specific intent to distribute it. Lawrence v. United States, 603 A.2d 854, 858 n.5 (D.C. 1992). An intent to distribute can be inferred from expert testimony and the possession of a quantity of drugs that exceeds a reasonable supply. Spriggs v. United States, 618 A.2d 701, 704 (D.C. 1992) (government's expert testified that quantity, packaging, and value of drugs was more consistent with intent to distribute than personal use); id. ("possession of a quantity of drugs that exceeds reasonable supply is significant evidence of an intent to distribute") (citing Shorter v. United States, 506 A.2d 1133, 1135 (D.C. 1986)) (emphasis added). Packaging of narcotics in a manner making them ready to sell to individual purchasers is strong evidence of an intent to distribute. Angel Davis v. United States, 623 A.2d 601, 603 (D.C. 1993) (government presented unrebutted expert testimony that quantity and packaging of drugs was consistent with intent to distribute); id. at 604 ("We have repeatedly held that the packaging of narcotics so as to make them ready for sale to individual purchasers is 'strong evidence of an intent to distribute'") (quoting Edmonds v. United States, 609 A.2d 1131, 1132 (D.C. 1992), cert. denied, 113 S. Ct. 2983 (1993)); Chambers v. United States, 564 A.2d 26, 31 (D.C. 1989) (cocaine possessed in three separate packages rather than one large mass was evidence of intent to distribute).
In the instant case, the government presented unrebutted expert testimony that the quantity and packaging of the drugs recovered from appellant was more consistent with an intent to distribute them than with personal use. The expert stated that crack is distributed in containers in loose rock form -- "t could be a medicine container or any other container, plastic bag or sandwich bag" -- and that it is unusual for a crack user to buy eighteen rocks for personal use because of the lack of quality control, larger rocks of the same weight would be cheaper, and a crack dealer would be suspicious of such a request. The expert also stated that a drug user usually gets at least three hits from one of the eighteen rocks found in appellant's possession. Moreover, based on a DEA survey on common crack dosage, the expert concluded that 122 hits would be expected from the total amount of crack recovered from appellant.
The circumstances surrounding appellant's arrest also support an inference that he possessed the seized drugs with an intent to distribute them and not for personal use. According to the government's uncontested expert testimony, a crack user would not consume an entire $10 rock but would divide it up into two or three pieces in order to get at least three hits from it. However, no cutters or scales or any other equipment necessary to make the crack ready for personal consumption were found in appellant's possession. In fact, the evidence reveals that no drug paraphernalia ...