Appeal from the Superior Court of the District of Columbia (M-969-00) Hon. Mildred M. Edwards, Trial Judge
Before Wagner, Chief Judge, and Terry and Washington, Associate
The opinion of the court was delivered by: Terry, Associate Judge
Submitted December 5, 2002
After a non-jury trial, appellant Prince was convicted of one count of possession of marijuana. Before trial, appellant moved to suppress the marijuana, arguing both that the police lacked reasonable suspicion to stop the car in which he was a passenger and that the frisk conducted by the arresting officer exceeded its proper scope. After a hearing, the court denied appellant's motion. We affirm the denial of the motion to suppress (and hence the conviction), but on a ground different from that relied upon by the trial court.
On the night of January 6, 2000, shortly after 10:00 p.m., Officer Lance Andriani of the Metropolitan Police was on duty in the 1200 block of Valley Avenue, S.E. Standing in a "field area" (apparently a small park) near a building, approximately twenty-five to thirty yards from the road, Officer Andriani looked through his binoculars and saw a man in a black leather jacket "approaching vehicles [and] making transactions." Although Andriani did not see an actual exchange of drugs for money, he believed that this man's "unusual" behavior was "consistent . . . with dealing drugs."
A short time later Officer Andriani saw this same man walk up to a red Saturn automobile with two people inside. From his vantage point, he was able to see the man in the black leather jacket approach the right front side of the red Saturn with a "small object" in his hand, which the officer suspected was contraband. Officer Andriani then saw this man "reach his hand into the vehicle, then pull his hand out without anything in that hand and the money in his other hand." Although he had binoculars, Officer Andriani could not clearly see the individuals in the red Saturn, the denomination of the money that exchanged hands, or the shape or size of the small object. Nor could the officer recall how many cars the man in the black leather jacket had approached before the red Saturn appeared on the scene.*fn1
The Saturn then made a U-turn and proceeded down 13th Street. Officer Andriani sent out a radio broadcast, asking other officers in the vicinity to stop a red Saturn heading toward Southern Avenue on 13th Street "in reference to a narcotics transaction." Andriani testified that his radio lookout described the car, the number of occupants, and its direction of travel, and stated that the transaction involved the front-seat passenger in the car. At the time of this broadcast, Officer Carlos Mejia and his partner, Officer Rhodes, were on patrol in the 3900 block of 13th Street, between Valley and Southern Avenues. Officer Mejia testified that he caught sight of the red Saturn between thirty seconds and one minute after hearing Andriani's radio call, and that there were no other red Saturns in the area at that time.
Mejia and Rhodes pulled the red Saturn over, alighted from their own car, and approached the Saturn, with Officer Rhodes on the driver's side and Officer Mejia on the passenger's side. After asking both the driver and the passenger (appellant) to get out of the car, Mejia told appellant that he "was going to perform a protective patdown for any weapons." Officer Mejia testified that as he patted appellant's waistband, he "slid [his] hand past the white coin pocket of [appellant's] pants," and at that point he "felt an object that was consistent with the packaging of marijuana." Although he did not manipulate the object in any way, he was able to feel "the texture of the marijuana" inside a "package," and concluded that it felt like "a grassy substance inside of a plastic bag."*fn2 Officer Mejia removed this object from appellant's pocket and saw that it was a plastic ziplock bag containing "a green weed-like substance." A field test showed, and a laboratory analysis later confirmed, that the substance was marijuana.
The trial court found that "there was a good basis for stopping the Saturn on Terry*fn3 grounds for further investigation." Crediting Officer Mejia's testimony that when he felt the object in appellant's pocket, he immediately believed it to be a bag containing marijuana,*fn4 the court ruled that the protective patdown was lawful. Before trial began the next day, the court denied appellant's motion for reconsideration, noting that it had also based its decision on the fact that Officer Mejia conducted the patdown knowing that "his partner around the corner [Officer Andriani] saw the passenger . . . engaged in what he believed was a drug purchase."
"In reviewing a trial court order denying a motion to suppress, the facts 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). In particular, "[w]e must 'give deference to the court's findings of fact as to the circumstances surrounding the appellant's encounter with the police' and uphold them unless they are clearly erroneous." Hill v. United States, 627 A.2d 975, 979 n.7 (D.C. 1993) (citation omitted). However, we review de novo the trial court's legal conclusions, Gomez v. United States, 597 A.2d 884, 889 (D.C. 1991), and make our own independent determination of whether there was either probable cause to arrest or reasonable suspicion justifying a Terry stop. See Cauthen v. United States, 592 A.2d 1021, 1022 (D.C. 1991) (reasonable suspicion); Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991) (probable cause).
For reasons we shall discuss later in this opinion, we hold that the trial court was correct in ruling that the police had adequate reason to stop the Saturn, to order appellant to get out of the car, and to search his person. But even "[a]ssuming the validity of an investigatory stop, the police are not at liberty to conduct a protective search every time they make an investigative stop." Upshur v. United States, 716 A.2d 981, 983 (D.C. 1998) (citation omitted). To justify a protective search, the police officer "must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Sibron v. New York, 392 U.S. 40, 64 (1968). In this case the government failed to show (because the prosecutor*fn5 neglected to ask the relevant questions) that Officer Mejia reasonably feared for his safety, nor is there any evidence in the record that would justify such an apprehension. In the absence of such evidence, this court "cannot impute a safety concern to the trained officer where he did not indicate in any way that he apprehended danger and where the evidence does not otherwise support such a claim." Upshur, 716 A.2d at 984.*fn6
On the other hand, it has long been held that an appellate court may uphold a trial court decision for reasons other than those given by that court. See, e.g., Purce v. United States, 482 A.2d 772, 775 n.6 (D.C. 1984); Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C. 1982). This principle can be traced back for several decades, see Helvering v. Gowran, 302 U.S. 238, 245 (1937), and is firmly established in our case law. Relying on this well-settled rule, the government now argues, as it did in the trial court, that Officer Mejia had probable cause to arrest appellant at the time he was searched. If that was the case, then the search was incident to a lawful arrest, and Officer Mejia need not have feared for his safety before searching appellant's person. See United States v. Robinson, 414 U.S. 218, 224 (1973). ...