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Nixon v. United States

March 17, 2005

ALLEN NIXON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (M-13393-01) (Hon. Tim Murphy, Trial Judge).

Before Terry and Reid, Associate Judges, and Kern, Senior Judge.

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

Submitted March 26, 2003

Appellant was convicted of possession of cocaine. In the trial court he filed a motion to suppress the cocaine, which the police had seized from him after a brief street encounter. The court denied the motion, whereupon the parties stipulated to a trial based on the testimony heard at the suppression hearing. Appellant was found guilty and sentenced to 180 days in jail, with credit for time served. From the final judgment appellant noted this appeal. We find no error and affirm the conviction.

I.

While on routine patrol during the afternoon of December 1, 2001, Metropolitan Police Officers Brian Wise and Berdette Williams were flagged down by a "concerned citizen" at First and S Streets, N.W. The citizen told the officers that some persons were using drugs inside a red "construction-type" pickup truck parked in front of his house in the 200 block of S Street. Officer Wise did not know the citizen or have any prior contact with him, nor did the citizen offer his name. When the officers went to the location stated by the citizen, Officer Wise saw a red pickup truck matching the description. Although the truck was unoccupied, two men were walking along the sidewalk toward the police car, about twenty feet away from the truck. One of those men was appellant. There were no other persons walking in the area, nor were there any other vehicles matching the citizen's description.

From the passenger seat of the police car, Officer Wise asked appellant if he had just left the truck.*fn1 Appellant answered, "Yes." To clarify that they were speaking about the same pickup truck, Officer Wise pointed to the red construction-type pickup and asked appellant if he left "that truck right there." Appellant again answered, "Yes." Officer Wise, now suspecting that appellant might have been involved in criminal activity, got out of the police car and asked appellant for identification; appellant replied that he had none. Officer Wise then informed appellant of the citizen's statement, which prompted appellant to modify his earlier admission by stating that it was his work truck, but he had not recently been in it.

At that point, Office Wise asked appellant if "he had any illegal contraband or anything . . . on his person that [the officer] needed to be aware of."*fn2 Appellant replied that he had "one little bag," which the officer, from his experience, understood to mean that appellant possessed illegal drugs. He asked appellant to "retrieve" the bag and lay it on the hood of the police car. From his left pocket, appellant removed a blue ziplock bag and placed it where the officer had told him to put it. When the officer saw that the bag contained a white rock-like substance, he arrested appellant and charged him with possession of cocaine.*fn3

Appellant presented no evidence.

After hearing argument, the court denied appellant's motion to suppress the cocaine. The court said it was satisfied, based on the totality of the circumstances, that Officer Wise had a reasonable articulable suspicion which justified his stopping appellant after he admitted being in the truck, given the report from the citizen that drugs were being used inside that same truck. The court also concluded that Officer Wise did not violate appellant's rights simply by asking him if he had any illegal items on his person, and that up to that point appellant was not under arrest. However, the court said, "as soon as he saw the blue [ziplock bag]," the officer "had a right to effectuate the arrest."

Appellant then stipulated to a non-jury trial based on the record created at the hearing. A chemist's report, Form DEA-7, established that the white rock-like substance in the ziplock bag contained 35 milligrams of cocaine. The court accordingly found appellant guilty of possessing a controlled substance.

II.

To justify an investigative stop, the police "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion sufficient to support a Terry stop is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7 (1989). When a purported Terry stop is challenged, the court must look at the totality of the circumstances to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. See United States v. Arvizu, 534 U.S. 266, 273 (2002). "Even if each specific act by a suspect could be perceived in isolation as an innocent act, 'the observing police officer may see a combination of facts that make out an articulable suspicion.' " Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc) (quoting United States v. Bennett, 514 A.2d 414, 416 (D.C. 1986)). But to conduct a warrantless search of a person (as opposed to a mere frisk), the police must have probable cause, which arises when " 'a reasonably prudent police officer, considering the total circumstances confronting him and drawing from his experience,' would be warranted in the belief that an offense has been or is being committed." Peterkin v. United States, 281 A.2d 567, 568 (D.C. 1971) (citations omitted).

This case presents us with two separate but related issues. First, we must determine whether Officer Wise had a reasonable articulable suspicion, based on the citizen's report and appellant's admission that he had been in the truck, which would justify a Terry stop.*fn4 Second, we must decide whether the officer had probable cause to search appellant once he admitted, in response to ...


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