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UNITED STATES v. HOWARD

December 8, 1997

UNITED STATES OF AMERICA
v.
DARTAGNON HOWARD, Defendant.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on Defendant's Motion to Suppress Evidence and Statements and on Defendant's Motion to Sever Counts of the Indictment. Defendant contends 1) that the search conducted by police at the site of the arrest was neither consensual nor based upon probable cause; 2) that the statement made by Defendant at the police station was in derogation of his Miranda rights; and 3) that the search of Defendant's bedroom at his grandmother's house was both non-consensual and in violation of his rights under the Fourth Amendment. The issues raised by Defendant present this Court with difficult questions of law under the Fourth and Fifth Amendments.

 FACTS

 On August 6, 1997 at approximately 9:15 p.m., officers from the First District of the Metropolitan Police Department observed Defendant and several others with open cans of beer on the comer of Howison Place and N Street, S.W. in the District of Columbia. Section 25-128 of the District of Columbia Code makes it an arrestable offense "to drink any alcoholic beverage or possess in an open container any alcoholic beverage in any street . . . ." See Alvarez v. United States, 576 A.2d 713 (D.C. Cir. 1990), cert denied 498 U.S. 875, 112 L. Ed. 2d 164, 111 S. Ct. 203 (1990). As the officers approached, Sergeant Gerald G. ("G. G." ) Neill observed a brown paper bag containing a gold top can within arms reach in front of the Defendant.

 Sergeant Neill engaged Defendant and asked if he could search him for "guns or drugs," to which Defendant replied, "Go ahead, I'm clean." Sergeant Neill patted down Defendant and felt a hard foreign object in the left front of Defendant's pants. When asked what it was, Defendant replied, "my private parts." Defendant then tried to break free from the officers. Sergeant Neill grabbed Defendant and wrestled him to the ground. As the Defendant stood up, a plastic bag containing twelve smaller bags of crack cocaine fell from his pants leg. The Defendant was arrested. A further search turned up $ 147 in cash.

 Defendant was taken to the police station for the purposes of booking him on drug charges. While in custody, Defendant was told by investigator Michael Fulton that he should consider "coming clean" and cooperating with the police. The officer specifically wanted to know what the Defendant could tell him about drug activity in his neighborhood. The Defendant provided the officer with no information, stating that since he had been only recently released from prison, he had no information for the police. At this point, the Defendant asked to call his grandmother, with whom he lived. Investigator Fulton dialed the number provided by Defendant and stayed right beside him as he spoke to his grandmother. At no time during Defendant's discussion with the police was the Defendant mirandized. Investigator Fulton heard Defendant state on the phone that he had been arrested for "drinking with the fellas" and that his grandmother should "tell Michelle [Defendant's girlfriend and mother of his child] to come down and get the stuff out of my room. She'll know what I'm talking about."

 Immediately after overhearing this conversation, Investigator Fulton dispatched a uniform officer to secure Defendant's residence and then accompanied Sergeant Neill to the apartment located at 1401 Half Street, S.W., in the District of Columbia. On the way, Fulton called Defendant's grandmother, Carrie Morris, to notify her of their imminent arrival. She let the officers in shortly after midnight. In the premises were two other teenage grandchildren and a young great-grandchild (Defendant's daughter) who were awakened by the police officers' presence. Defendant had his own bedroom in the apartment although Ms. Morris was the sole name on the lease. There were no locks and Ms. Morris had access to enter Defendant's private room for such limited purposes as storage and cleaning. Sergeant Neill asked Ms. Morris for consent to search the premises, including Defendant's room. Neill indicated that he could obtain a search warrant, but that it would take some time and would prevent the children from going back to bed for several hours. Faced with the choices presented to her, Morris agreed to a search of the premises.

 The search uncovered additional amounts of crack cocaine in a dresser in the Defendant's room. Specifically, the police found approximately 130 individual bags containing crack, a large undivided rock of crack, two razor blades and empty ziplock bags. In a locked safe in the closet, the police found a 9mm semi-automatic pistol loaded with eight rounds of ammunition. Two additional live rounds were also found in the same safe. *fn1"

 ANALYSIS

 I. Initial Stop and Seizure

 The facts indicate that there are two separate search and seizure incidents that must be addressed. The first is the initial stop and discovery of drugs on August 6, 1997. In defense of the officers' actions in this instance, the Government advances two alternative arguments. First, it contends that Defendant being in possession of an open container of alcohol constituted an arrestable offense. The Court rejects this argument on several grounds. From the facts developed at the evidentiary hearing, it is not clear that Defendant was drinking or in possession of an open can of beer at the time the police approached him. Whatever was in the container in front of the Defendant was concealed in a brown paper bag. At no time did the police remove the can from the bag. All that Sergeant Neill could verify was that the can had a gold top. Moreover, Neill testified that even if Defendant had been in possession of an open container of alcohol, he had no intention of arresting Defendant for this alleged offense.

 Alternatively, the Government argues that the law permits the police to approach any citizen on the street and engage him in conversation. Further, officers have the right to make certain reasonable requests. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 235, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Of course, if permission to search an individual is requested, any agreement to undergo such a search must be voluntary and not coercive. This Court finds that the request in this instance was proper. Nothing in the record suggests that Defendant was unduly influenced by the police. Segeant Neill testified on the stand that Defendant gave consent and nothing was presented to the contrary. The Court credits Sergeant Neill's testimony and finds that the search was consensual. In this area, no bright line can be drawn. All such situations require careful inquiry. Nonetheless, police officers must be given a certain amount of discretion to perform their public duty.

 II. Statement Made by Defendant in Police Custody

 The second set of facts in this case surrounds the police search of Defendant's residence on the night of August 6, 1997. Upon arrest, Defendant was taken to the police station. Discussions ensued, where the police officers indicated that they would like Defendant to cooperate with them. As stated above, the conversation between the Defendant and police officers, while the Defendant was concededly in custody, took place without the benefit of any Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The conversation between the Defendant and his grandmother, which ...


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