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UPSHUR v. U.S.

July 30, 1998

REGINALD
V.
UPSHUR, APPELLANT, V. UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, JOHN H. BAYLY, JR., J.

Before Wagner, Chief Judge, and Farrell, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Wagner, Chief Judge:

Farrell, J., dissented and filed opinion.

Following a trial by the court, appellant, Reginald V. Upshur, was convicted of possession of a controlled substance (cocaine) (D.C.Code § 33-541(d) (1998)). He argues for reversal on the ground that the trial court erred in denying his motion to suppress the drugs. The resolution of this issue depends upon whether the particular facts surrounding the search and seizure provided the level of suspicion necessary to support the investigatory stop and search for an object inside appellant's closed fist under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We hold that the search was unreasonable under the circumstances. Accordingly, we reverse. *fn1

I.

A. The Evidence

Officer Jed D. Worrell, a Metropolitan police officer, testified at the pre-trial hearing on the motion to suppress that at approximately 11:35 p.m., on January 4, 1995, he and his partner, Officer Seth Weston, were patrolling the area of 16th and D Streets, Southeast, Washington, D.C., a residential neighborhood, in a marked police cruiser. Officer Worrell testified that the area is "known for open drug transactions, drug use, [and] weapons offenses." Officer Worrell said that he and his partner saw appellant standing in the street at the driver's side of a vehicle parked on the south side of D Street. Appellant was slightly bent as he reached into the car. According to Officer Worrell, it appeared that appellant was giving the driver of the vehicle money and receiving some object in exchange.

When appellant saw the police car, he "started walking away from the vehicle with his hands balled, his fist balled as if he was holding something." *fn2 According to Officer Worrell, "when [the officers] initially saw [appellant] leaning over the vehicle, he and the driver of the vehicle were exchanging money. As he walked away from the vehicle, his fists were balled, but [Officer Worrell] could no longer see any money visible in his hand." When asked why he was focusing on appellant's hand, Officer Worrell testified that based upon his experience, he thought that "it could have been a possible narcotic transaction that took place."

Officer Worrell grabbed appellant as he walked away "just a few steps," "took him a couple of inches," and handed him over to Officer Weston who "grabbed him at that point." Appellant's fist was still balled, so the officers told him to open his hand. Officer Weston attempted to place appellant's hands on the parked scout car, but "it took several efforts to lift his arms and to place them on the car."

Officer Worrell attempted to stop the driver of the car, but the car "sped off at a high rate of speed." Officer Worrell turned back towards Officer Weston and appellant and observed "objects falling from [appellant's] hand, several objects," as Officer Weston moved appellant from the front of the car. Officer Worrell recovered from that location three ziplocks of a white substance, which later tested positive for crack cocaine.

B. The Trial Court's Ruling

The trial court denied appellant's motion to suppress evidence, finding that the officers had a reasonable, articulable suspicion for a [716 A2d Page 983]

Terry stop and probable cause to arrest him after he dropped the drugs. The trial court rejected appellant's arguments that the ...


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