Before Wagner, Chief Judge, Ruiz, Associate Judge, and Belson,
The opinion of the court was delivered by: Belson, Senior Judge
Appeal from the Superior Court of the District of Columbia (Hon. Eric T. Washington, Trial Judge)
(Argued February 16, 2000 Decided August 24, 2000)
After a jury trial, appellant Alfredo Reyes was found guilty of unlawful possession with intent to distribute a controlled substance. *fn1 On appeal, he contends that (1) the trial court erred when it denied his motion to suppress drugs seized from him during an investigative stop; (2) the trial court erred in denying his motion for judgment of acquittal; and (3) he was denied a fair trial when the government made improper statements in its closing argument. For the reasons stated below, we affirm.
According to the evidence presented by the government at the hearing on defendant's suppression motion, Officers Carlos Torres and Steven Stretmater of the United States Secret Service Uniform Division were stopped at the intersection of Columbia Road and Ontario Road, N.W., when they noticed appellant in the 1700 block of Columbia Road, a block Torres described as an "open air drug market," and where he had previously made drug-related arrests. They observed appellant and a homeless man engaged in what appeared to be a narcotics transaction. Torres witnessed appellant take two small plastic-wrapped objects from inside a larger piece of plastic in his cupped left hand and hand them to the homeless man, who inspected the objects. Torres testified that he had stopped this homeless person earlier that day after receiving a complaint that he was smoking narcotics in the 3100 block of 16th Street, N.W., and that the person had possessed a crack pipe at that time.
The officers proceeded through the light and made a U-turn when it was safe to do so. By the time they stopped, appellant had walked some distance along the street, and the homeless man had gone down an alley. The officers got out of their car and Officer Torres told appellant he wanted to talk to him. Appellant stopped. Officer Torres said: "Come over here." Appellant turned toward the officer and put his hands in his pants pockets, but did not come toward the officers. Officer Torres told appellant twice to take his hands out of his pockets, based on what Torres testified was a concern for his safety since appellant could have had a weapon in his pocket. Appellant eventually took his right hand out of his pocket. Torres then told appellant, in English and Spanish, to remove his other hand, and when appellant did not respond, the officers grabbed appellant and pulled him over to the police cruiser. After Torres again told appellant to take his left hand out of his pocket, appellant took his clenched left fist out of his pocket. The officers put appellant's hands on the car, and Torres told appellant to open his fist. At some point, a small bag of cocaine fell out of appellant's hand. Thereafter, appellant opened his left hand, revealing several small plastic wrappings containing a white-colored substance wrapped in a larger piece of clear plastic wrapping, and immediately stated that he had just purchased them and they were for his personal use. In total, appellant had in his possession thirty-three small packages of what tests later showed was crack cocaine. The trial judge denied appellant's motion to suppress the cocaine, ruling that Officer Torres had a reasonable suspicion to stop appellant, and that he then had reasonable grounds for requesting that appellant remove his hand from his pocket in order to protect the officer's safety.
Appellant argues on appeal that the facts of this case do not support an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968), and that even if they do, they do not support the theory that the safety of the officers justified Officer Torres' subsequent actions. Giving due deference to the trial court's finding of fact, see Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991), and reviewing its legal conclusions de novo, id. (citing United States v. Mendenhall, 446 U.S. 544, 551-52 n.5 (1980)), this court must ensure that the trial court had a substantial basis for concluding that no constitutional violation occurred. Id.
"It is well established that the police may detain a person briefly on less than probable cause provided the officer has a reasonable suspicion based on specific articulable facts that the person is involved in criminal activity." Upshur v. United States, 716 A.2d 981, 983 (D.C. 1998). The minimal level of objective justification required to support an investigatory stop is "less demanding than that required for probable cause" and "considerably less than proof of wrongdoing by a preponderance of the evidence." Id. (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Once the police have effected a valid stop, they may conduct a protective search if they have reasonable grounds to believe that the suspect is armed and poses a danger to himself or others. See Terry, supra, 392 U.S. at 30; Upshur, supra, 716 A.2d at 984; Jackson v. United States, 742 A.2d 883, 885-86 (D.C. 1999).
We conclude that Officer Torres' stop of appellant was constitutionally permissible under the totality of the circumstances, including the surreptitious handing of objects to a known drug user; the fact the objects appeared to be wrapped in plastic, see In re J.D.R., 637 A.2d 849, 850 (D.C. 1994) (ziplock bags); United States v. Bolden, 429 A.2d 185, 186 (D.C. 1981) (tinfoil package); Price v. United States, 429 A.2d 514, 516, 517 (D.C. 1981) (manila "coin" envelope); Munn v. United States, 283 A.2d 28, 30 (D.C. 1971) (tinfoil packets); the fact that the recipient of the objects inspected them; and the fact that the block was known as an "open air drug market" where the officer had previously made drug-related arrests, see In re T.T.C., 583 A.2d 986, 990 (D.C. 1990). *fn2
Once he stopped the appellant, Officer Torres was justified in taking measures to protect his safety if he could "point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Upshur, supra, 716 A.2d at 984 (quoting Sibron v. New York, 392 U.S. 40, 64 (1967)). The facts here mirror those presented in Peay v. United States, 597 A.2d 1318, 1320, 1321-22 (D.C. 1991) (en banc), where, reviewing a detention under Terry, we concluded that "specific and articulable facts" supported the officer's belief that his own personal safety was in peril, based on testimony that the suspect was clutching something in his hand which the police officer testified "could possibly have been a weapon, a small knife, possibly a gun." Here, Officer Torres testified that appellant turned toward the officers after they confronted him, placed both hands in his pockets, and finally removed only one hand after repeated requests that he remove his hands from his pockets. The officer also testified that "you can conceal a knife, a small gun, any array of weapons in your hands." While we may not consider appellant's refusal to cooperate in considering whether Officer Torres had adequate justification to stop appellant, see In re D.J., 532 A.2d 138, 141-42 (D.C. 1987), we may consider appellant's placing his hands in his pockets and subsequently refusing to open his hand as generating a legitimate safety concern which justified Officer Torres' taking measures to protect his safety once a valid Terry stop had been initiated. Indeed, since Officer Torres was seeking reassurance that appellant was not armed and dangerous, appellant's failure to provide that reassurance justified a limited frisk or, in this case, opening appellant's hand.
The record thus supports the trial court's conclusion in this case that Officer Torres' actions were justified by an objectively reasonable belief that appellant ...