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U.S. v. BROWN

March 26, 1998

UNITED STATES, APPELLANT,
V.
CALVIN L. BROWN, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, LINDA TURNER-HAMILTON, J.

Before Wagner, Chief Judge, and Schwelb and King, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge:

The government appeals from an order granting in part Calvin L. Brown's pretrial motion to suppress tangible evidence. We reverse.

I.

THE EVIDENCE

Brown was charged with unlawful possession of marijuana with intent to distribute it. D.C.Code § 33-541(a)(1) (1993). The prosecution proposed to introduce at trial drugs seized from the trunk of a maroon Cadillac to which Brown had the keys. Brown filed a pretrial motion to suppress the drugs, as well as the keys to the Cadillac and $120 in cash seized from Brown's person and $250 in cash recovered from the passenger compartment of the car. The trial judge granted the motion with respect to the drugs seized from the trunk, but she declined to suppress the keys or cash recovered from Brown or from the passenger compartment of the car.

At the hearing on Brown's pretrial motion, Officer Torrence Smith of the Metropolitan Police Department testified that on August 28, 1996, at approximately 4:00 p.m., Smith and three other officers were on patrol in the area of the 1800 block of North Capitol St., N.W. According to Smith, Brown approached an unidentified man, who handed Brown a small object. Brown then walked to a grassy area nearby, picked up something from the ground, and tossed that object to the other man, who caught it and left. *fn1

Officer Smith suspected that he had just witnessed a drug transaction, and he and his colleagues decided to investigate. The officers then split up; Smith and his partner, Officer Lovely, followed Brown, while Officers Goldberg and Ennis pursued the apparent buyer.

Smith testified that Brown walked to a maroon-colored Cadillac automobile, opened the trunk, "shuffle[d] around in the trunk" for ten to fifteen seconds, and then closed the trunk. Brown then entered the vehicle on the passenger side and bent down, half sitting and half kneeling, as though he was looking under the front passenger seat.

Meanwhile, the suspected buyer "picked up his pace a little bit [as though] he was trying to get away." As the man was leaving the area, he tossed something into some nearby bushes. Officers Goldberg and Ennis were unable to locate the object apparently discarded by the suspected purchaser. The officers briefly detained the man, but found no contraband on his person. The officers then released him without making a record of his identity, and they reported their observations to Officer Smith.

While Officers Goldberg and Ennis were dealing with Brown's apparent customer, Brown got out of the Cadillac. Officer Smith approached him and identified himself as a police officer. Smith told Brown that he wanted to talk to him. As the discussion between Smith and Brown was about to begin, Officer Goldberg contacted Smith over the radio and advised him that he (Officer Goldberg) had located what Goldberg believed to be Brown's stash. Specifically, Officer Goldberg reported that he had found two ziplock bags containing what appeared to be marijuana. These bags had been lying in the grassy area where Brown had previously picked up the object that he had tossed to the suspected buyer.

Upon receiving this information, Smith placed Brown under arrest. In a search of Brown's person incident to the arrest, Smith recovered the keys to the Cadillac, as well as $120 in cash. Smith then opened the trunk of the car and came upon a much larger stash: fifty-seven ziplock bags and three bundles in a closed, opaque bag, all containing what later proved to be marijuana. Officer Ennis next searched the interior compartment [708 A2d Page 639]

of the car and recovered $250 in cash under the floor mat on ...


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