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Flores v. United States

October 26, 2000

JOSE M. FLORES (NO. 97-CF-399), AND JOSE T. MARINO (NO. 97-CF-548), APPELLANTS,
v.
UNITED STATES, APPELLEE.



Before Wagner, Chief Judge, and Terry, Associate Judge, and King, Senior Judge.

The opinion of the court was delivered by: King, Senior Judge

Appeals from the Superior Court of the District of Columbia (Hon. John H. Bayly, Jr., Trial Judge)

Argued March 16, 1999

Opinion for the court by Senior Judge KING.

Dissenting opinion by Chief Judge WAGNER at p. .

Appellants Jose M. Flores ("Flores") and Jose T. Marino ("Marino") were found guilty by a jury of unlawful possession with intent to distribute a controlled substance, in violation of D.C. Code § 33-541 (a)(1) (1996). Appellant Marino argues (1) that the arresting officers did not have reasonable articulable suspicion to conduct an investigative stop; and (2) alternatively, that the officers' actions constituted an unwarranted extension of the investigative stop. Appellant Flores argues that the trial court abused its discretion by permitting the government to cross-examine him as to his use of crack/cocaine, and by allowing the government to contradict his subsequent denial with his positive drug test results. We affirm.

On April 18, 1996, at approximately 8:15 p.m., Investigator William Witkowski and Detective Jose Solloso were driving in an unmarked police car in the 1400 block of Park Road when they noticed appellants Marino and Flores standing next to each other on a nearby sidewalk. Witkowski and Solloso were about twenty feet away when they noticed "Marino hand Flores a green cylinder like tube, a ChapStick container." The officers pulled their vehicle up to the two men and were about eight to ten feet away when Flores noticed the car and the officers and dropped the container to the ground. Marino then placed his foot on top of the ChapStick container. The plain- clothed officers exited the car, identified themselves, and detained Marino and Flores. Detective Solloso then "backed up Marino a couple of steps and reached down and recovered the ChapStick container from under his foot." Inside the container were ten white rock-like substances, later identified as cocaine.

Investigator Witkowski testified that he had participated in more than one thousand drug arrests, at least fifty of which occurred around the 1400 block of Park Road, an area "notorious for the sale of crack/cocaine." Furthermore, Witkowski testified that ChapStick containers recently have become a common means of packaging cocaine.

In addition to the evidence revealed at the suppression hearing, the government presented evidence at trial that Flores carried $60 and two pagers, and Marino possessed $346 and one pager. Appellants were convicted by a jury of unlawful possession with intent to distribute a controlled substance, in violation of D.C. Code § 33-541 (a)(1). These appeals followed.

I. Marino's Appeal

Prior to trial, Marino filed a motion to suppress the cocaine, arguing that the police did not have evidence sufficient to justify the initial stop. The trial court denied the motion.

In this appeal, Marino presents two arguments in support of his contention that the seizure was unlawful. First, he argues that the officers did not have reasonable articulable suspicion to conduct an investigative stop under Terry v. Ohio, 392 U.S. 1 (1968). Second, Marino maintains that Officer Solloso's removal of his foot from the ChapStick container constituted an unwarranted extension of the Terry stop. Accordingly, Marino contends that the trial court erred in denying his motion to suppress the cocaine evidence found in the ChapStick container.

In support of his contention that the officers did not have reasonable articulable suspicion to conduct a Terry stop, Marino argues that "the only reason for [his] seizure and subsequent arrest was the fact that he and [Flores] were present in an area that is know for crack cocaine." On this record, Marino's argument is unavailing.

In reviewing the trial court's denial of a motion to suppress, the scope of our review is limited. Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991). We must defer to the trial court's findings of fact. Lawrence v. United States, 566 A.2d 57, 60 (D.C. 1989). We view the evidence in the light most favorable to the prevailing party, and "all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc) (citations omitted). ...


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