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BROOKS v. U.S.

August 27, 1998

DAWAYNE M. BROOKS, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, ROBERT S. TIGNOR, J. [717 A2d Page 324]

Before Terry, Farrell, and King, Associate Judges.

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

Appellant was convicted of possession of cocaine with intent to distribute it, in violation of D.C.Code § 33-541(a)(1) (1993). During the trial, at the conclusion of the government's case, appellant made an oral motion to suppress evidence, which the court denied after hearing argument from both sides. On appeal, appellant contends that the trial court erroneously denied his motion to suppress and that the evidence was insufficient to support his conviction. We affirm.

I

Metropolitan Police Officer John Farr testified that during the early morning hours of February 24, 1993, he and his partner were manning an observation post in an abandoned [717 A2d Page 325]

house at 1322 Park Road, Northwest. *fn1 There were no lights in the house, but light from the street shone in through at least one window. *fn1 At approximately 1:20 a.m., while on the second floor of the house, Officer Farr heard the sound of voices downstairs, so he went down to the first floor to see if anyone had entered the house, trying hard to make as little noise as possible. When he reached the first floor, he saw appellant in the front room, standing next to an open window, talking to another man who was outside the house, standing next to the same window. Although he could not hear all the details of their conversation, Officer Farr heard the man outside say, "Give me two." Appellant then reached into "an old refrigerator lying on [its] side" (in the middle of the room) and retrieved a crumpled brown paper bag. At the same time, the man standing outside the house told a companion, also outside, that he "didn't have enough money." Appellant, apparently overhearing this remark, said, "Then you will only get one." Suddenly, before any exchange took place, someone yelled, "Five-O," *fn1 and the people outside the window "casually walked away."

Appellant, still holding the paper bag and looking down, walked toward Officer Farr, who had concealed himself in the shadows at the bottom of the stairwell. When appellant was within two feet of him, Farr lunged for the bag, and appellant "pulled back" and dropped the bag to the floor between his feet. Without ever losing sight of the bag, Officer Farr picked it up off the floor *fn2 and then subdued appellant. Farr's partner ran down from the observation post upstairs, and Farr radioed for backup.

The paper bag recovered by Officer Farr contained eighty-three ziplock bags, each containing in turn a white rock-like substance which turned out to be crack cocaine, as well as several empty ziplock bags. *fn3 Farr gave the paper bag and its contents to Officer Gregory Bailey for processing. Officer Antonio Womack recovered an additional five ziplock bags with similar contents from appellant's pocket *fn3 and handed them to Officer Farr. He in turn gave these five ziplock bags, as well as $312 in cash recovered from appellant's coat pocket, to Officer Robert Ingram to seal and process. *fn3

Officer Bailey testified that, when he and his partner responded to a call for assistance at 1322 Park Road, Officer Farr handed him a brown paper bag containing eighty-three *fn4 [717 A2d Page 326]

small ziplock bags, each of which contained a white rock-like substance. Bailey performed a field test on a portion of that substance and "received a positive color reaction for cocaine base." When Bailey told Farr the results of the test, Farr placed appellant formally under arrest. Officer Bailey took the paper bag and its contents to the Fourth District police station, completed the necessary paperwork — making an entry in the property log and filling out the Drug Enforcement Administration Form DEA-7 — and then placed everything in a heat-sealed envelope *fn5 and put the envelope into a "lock box" to be sent to the DEA for analysis.

Officer Myron Smith, accepted by the court as an expert in the distribution and use of narcotics, explained to the jury that most drug transactions involve two or more persons, including a "runner" who initiates the transaction and a "lookout" who watches for and warns of any police presence. *fn6 Officer Smith testified that the possession of eighty-eight small ziplock bags containing seventy-five to ninety-five milligrams of crack cocaine was not consistent with personal use. He also said that the report of the chain of custody of the drugs seized from appellant "appear[ed] to be in order."

Appellant did not present any evidence. However, at the conclusion of the government's case, defense counsel, for the first time, moved to suppress the crack cocaine found in the paper bag, as well as the crack cocaine recovered from appellant's coat pocket. *fn7 Counsel argued that Officer Farr lacked probable cause to stop appellant and that Farr knocked the paper bag out of his hand, thereby seizing it without probable cause. In denying the motion, the court credited Officer Farr's testimony, saying:

I find that the defendant dropped the bag as the officer approached, and when the officer approached, the officer had probable cause to believe that the defendant was engaged in the activity of selling contraband drugs. The seizure was lawful. The arrest was lawful. The seizure from the coat was incident to a lawful arrest.

Defense counsel also moved for a judgment of acquittal, arguing inter alia that Officer Farr never made an in-court identification of appellant. The court denied the motion, noting that Officer Farr "referred to your client, but even if he didn't, if you take his ...


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