motor running. "When an individual abandons property, he forfeits any reasonable expectation of privacy in it; consequently, police may search it without a warrant." U.S. v. Lewis, 287 U.S. App. D.C. 306, 921 F.2d 1294, 1302 (D.C. Cir. 1990). Accordingly, the defendant has no standing to contest the search of the automobile because he had no expectation of privacy after abandoning it.
Notwithstanding the defendant's lack of a privacy interest in the vehicle, the search of the automobile was legal because the MPD observed a 9 mm weapon in plain view on the seat of the Oldsmobile. "It is well settled that visual observation by a law enforcement officer situated in a place where he has a right to be is not a search within the meaning of the fourth amendment." United States v. Coplen, 541 F.2d 211, 214 (9th Cir. 1976), cert. denied, 429 U.S. 1073, 50 L. Ed. 2d 791, 97 S. Ct. 810 (1977). The Supreme Court has upheld "warrantless seizure of incriminating evidence" where an item is in plain view and the item's "incriminating character" is "immediately apparent." Horton v. California, 496 U.S. 128, 136, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990). There can be no dispute as to the immediately incriminating character of the 9 mm pistol on the seat of a car, abandoned by an individual who fled from the police, in an area where gunfire had been reported. Exigent circumstances further justified the seizure of the pistol in plain view, as the officers hardly could have left the vehicle running, with a pistol in plain view on the seat, where the driver of the vehicle was under arrest and en route to a hospital. See Colorado v. Bannister, 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42 (1980). Finally, the defendant's argument also fails because the police are permitted to search the defendant's vehicle incident to his arrest. New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981).
IV. THE COURT WILL NOT SUPPRESS STATEMENTS THE DEFENDANT MADE AT THE HOSPITAL BECAUSE THE DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS.
The defendant argues that the statements he made at the hospital regarding the events taking place on the evening of January 31, 1996 were not preceded by Miranda warnings. Officer Hall testified, however, that he informed the defendant of his Miranda rights at 11:50 p.m. and that the defendant voluntarily made the statements after being informed of his rights. The Court found Officer Hall's testimony credible and accordingly found that the government met its burden of proving that the defendant voluntarily and knowingly waived his Miranda rights.
After hearing the testimony of Officer Hall, counsel for the defendant raised an argument not previously set forth in the pleadings, alleging that the defendant did not have full awareness of the rights being waived because the defendant was intoxicated at the time he made the statements. Defense counsel introduced hospital records at the hearing which, according to defense counsel, indicated that the defendant's blood alcohol level exceeded the level permissible for driving a vehicle. However, the defendant presented no evidence regarding the extent of his impairment and whether said impairment was sufficient to prevent a knowing and voluntary waiver his Miranda rights. To the contrary, Officer Hall testified that the defendant appeared fully cognizant and unimpaired.
Additionally, the defendant's prior experience with the criminal justice system suggests his awareness of his Miranda rights, as well as the effect of a waiver. See Fare v. Michael C., 442 U.S. 707, 726, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979). Magistrate Judge Kay's Detention Memorandum, filed February 16, 1996, notes that the defendant "has seven convictions in Maryland, Virginia, and the District of Columbia, dating back to 1985, including convictions under the Controlled Substance Act, and the Bail Reform Act, theft, and larceny . . . ." Det. Mem. at 4. Accordingly, based on the testimony of Officer Hall, as well as the defendant's prior experience with the criminal justice system, the Court finds that the government proved by a preponderance of the evidence that the defendant knowingly and voluntarily waived his Miranda rights prior to making the statement.
V. THE SEARCH WARRANT FOR 1801 28TH PLACE, S.E., APT. 1, WAS BASED ON SUFFICIENT PROBABLE CAUSE, AND THE "GOOD FAITH" EXCEPTION APPLIES.
The defendant argues that the search warrants issued for 1801 28th Place, S.E., Apt. 1, and 2700 Texas Avenue, S.E., lacked probable cause because the warrants were obtained at least 28 days after the defendant's arrest and the application for the warrants failed to link the premises searched to the defendant. As an initial matter, the Court will not address the sufficiency of the warrant for the Texas Avenue apartment because the government informed the Court that it will not attempt to introduce as evidence any items recovered from the search of the Texas Avenue apartment. Accordingly, the defendant's argument regarding the Texas Avenue warrant is moot.
In order to prevail on a motion to suppress the warrant issued for 1801 28th Place, S.E., the defendant must first establish that he had a legitimate expectation of privacy in the area searched. See United States v. Zabalaga, 266 U.S. App. D.C. 215, 834 F.2d 1062, 1065 (D.C. Cir. 1987). Although the Court ruled at the hearing that the defendant did not meet that burden, the Court has reconsidered this matter after reviewing the testimony provided at the hearing. Based on the testimony adduced at the hearing, the defendant represented to the MPD that he resided at 1801 28th Place, S.E., and the MPD recovered mail addressed to the defendant at that address. Therefore, the defendant met his burden of demonstrating his privacy interest in the apartment.
The defendant alleges that the warrant executed on 1801 28th Place, S.E. was invalid because the affidavit in support of said warrant did not explicitly link the defendant to the residence. The defendant also argues that because 28 days elapsed between the arrest of the defendant and the execution of the search warrant, the search warrant is somehow invalid. The Court disagrees with both arguments. Although unartfully worded, the affidavit sufficiently links the defendant to the premises and explains why evidence would remain at the premises for some time after the suspect's arrest. The affidavit states:
It is the undersigned affiant's experience that premises linked to persons in possession of handguns contain papers relating to the ownership of the gun . . . It is the experience of the undersigned affiant to believe that the above items are not normally disposed of after the commision [sic] of a crime and are likely to be found in the location to be searched. It is for these reasons that the affiant is requesting that a Search Warrant be issued for [1801 28th Place, S.E., Apt. 1.]
Affidavit of Officer Melvin Key and Application for Search Warrant, Feb. 27, 1996. The affiant indicated that the defendant was linked to 1801 28th Place, S.E. See United States v. Dale, 301 U.S. App. D.C. 110, 991 F.2d 819, 845 (D.C. Cir.) (Affidavits for search warrants must be read "'in a commonsense and realistic fashion'" as "'they are normally drafted by nonlawyers in the midst and haste of a criminal investigation'") (quoting United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965)), cert. denied, 114 S. Ct. 650 (1993). Additionally, the affiant explained why the delay in applying for the search warrant was not relevant when searching for evidence relating to gun possession. In this case, the defendant was incarcerated from the moment he was arrested, therefore it is reasonable to assume that any evidence existing on January 31, 1989 would not have been removed from the premises by the defendant. See, e.g., United States v. Dozier, 844 F.2d 701, 707 (9th Cir.) (Mere lapse of time not controlling where there is a reason why evidence may remain at the premises), cert. denied, 488 U.S. 927, 102 L. Ed. 2d 331, 109 S. Ct. 312 (1988). Based on the Key Affidavit, the Court finds that Magistrate Judge Kay had probable cause to issue the warrant.
Finally, the "good faith" exception established in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), would cure any technical flaw in the warrant issued for 1801 28th Place, S.E. The defendant alleges that the affiant intentionally or recklessly omitted facts from the affidavit, but the defendant did not present any evidence at the hearing suggesting that the affiant omitted any facts material to the issuance of the search warrant. Accordingly, the good faith exception would apply in this case.
For the reasons more specifically discussed above, the defendant's Motion to Suppress Tangible Evidence and Statements was denied by an oral Order of the Court on April 9, 1996. The Court shall issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
April 18th, 1996
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
For the reasons set forth in the Memorandum Opinion of even date herewith, it is, by this Court, this 18 day of April, 1996,
ORDERED that the defendant's Motion to Suppress Tangible Evidence and Statements shall be, and hereby is, DENIED.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE