Appeal from the Superior Court of the District of Columbia (F-2206-99) (Hon. Brook Hedge, Trial Judge)
Before Terry and Ruiz, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor, Senior Judge
After a trial by jury, appellant was acquitted of possession of cocaine with intent to distribute, *fn1 but found guilty of possession of the same substance, *fn2 and possession of marijuana with intent to distribute. *fn3 In a contemporaneous bench trial, the trial judge found appellant guilty of unlawful possession of drug paraphernalia. *fn4 After an unsuccessful pretrial motion to suppress tangible evidence and statements attributed to appellant, he now contends on appeal that a search warrant issued in this instance was without probable cause to support it. He also claims that statements obtained from him were in violation of Fifth and Sixth Amendment protections. Being unpersuaded by these challenges, we affirm.
On April 2, 1999, in the early evening, Officer Erick Alvarado and other uniformed members of the Metropolitan Police Department executed a search warrant by entering a convenience store located at 1406 Florida Avenue, Northwest. Officer Alvarado observed appellant standing behind a small counter. Conversing in Spanish, Officer Alvarado requested that appellant walk over to where he was standing, and appellant complied. Officer Alvarado explained that he had a search warrant for the store and inquired whether there were any drugs in the store. Appellant responded affirmatively. Officer Alvarado then asked where the drugs were located, and appellant motioned with his head toward the counter. Officer Alvarado advised appellant that although he was not under arrest, handcuffs would be placed on him during the execution of the search warrant. After another officer took charge of appellant, Alvarado walked behind the counter and observed a clear plastic sandwich bag, containing what appeared to be a number of large chunks of crack cocaine, on top of cigarette packs. At that point, Officer Alvarado advised appellant that he was under arrest. Later tests revealed that the substance seized was crack cocaine.
During the course of the search, officers discovered a shirt behind the counter. A shirt pocket contained a small black digital scale. The police also seized cash and a razor blade with a residue of a controlled substance. *fn5 Another officer secured the evidence, and the remaining people in the store were asked to vacate the premises so that a dog trained to detect drugs could determine whether other drugs were present. The dog detected no other drugs on the premises. While appellant was sitting in a transport vehicle, Alvarado advised him of his rights. According to Alvarado, appellant told him that he understood his rights. At that time, Alvarado asked appellant whether a shirt found behind the counter belonged to him, and appellant answered affirmatively.
Appellant was then transported to the Third District police facility for processing, where a thorough search of his person revealed plastic bags inside his socks, which contained small zip-lock bags with a substance later identified to be marijuana.
A. Trial Court Proceedings
On March 25, 1999, Officer Alvarado applied for a search warrant to search a convenience store located at 1406 Florida Avenue, Northwest. In his affidavit in support of the application for the search warrant, Officer Alvarado stated his extensive experience as a police officer of more than ten years, including participation in over 500 arrests for narcotics violations, as well as comprehensive training in the area of narcotic investigations. The affidavit further noted that narcotics traffickers generally maintain records and keep contraband in an area that is accessible only to certain trusted individuals. The affidavit stated that Officer Alvarado acquired information that crack cocaine was being sold in the area of 14th Street and Florida Avenue, Northwest. It stated:
6. Your affiant has acquired information that in the area of 14th Street and Florida Avenue, Northwest, crack cocaine is being sold. Within the past 72 hours the confidential source met with your affiant at a secured location where It was searched and found to be free of money or drugs. The confidential source was provided with a sum of Metropolitan Police Funds and given specific instructions to purchase a quantity of crack cocaine from a street drug seller. The confidential source was kept under constant surveillance as It approached a known drug seller in the 1400 block of 14th Street Northwest. Officers observed the confidential source engage the known drug seller in a short conversation. Moments later the drug seller walked away from the confidential source and entered a convenience store located at 1406 Florida Avenue, Northwest, Washington, D.C. A short time later, the drug seller exited the store, approached the confidential source and made a hand to hand action with the confidential source. The confidential source was kept under constant surveillance as It responded to a secure location where It turned over to your affiant a ziploc bag containing a rock substance. The confidential source was searched, again, and found to be free of any drugs and money. Portion of the rock substance field tested positive for cocaine.
7. The confidential source reported that the drug seller did not have the drugs on his person, but had to go inside the store to obtain the drugs.
Based on the information presented, a warrant was issued to search the entire premises, 1406 Florida Avenue, Northwest, on March 25, ...