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Basnueva v. United States

May 12, 2005

YERA Y. BASNUEVA, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia. No. F-3933-01. Hon. Patricia A. Broderick, Trial Judge.

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

Submitted October 1, 2003

Before TERRY, REID, and WASHINGTON, Associate Judges.

Appellant was charged with one count of possession of cocaine with intent to distribute it and one count of possession of marijuana. After the trial court denied his motion to suppress evidence, he entered a conditional plea of guilty, see Super. Ct. Crim. R. 11 (a)(2), to the cocaine count; the marijuana count was dismissed pursuant to a plea bargain. On appeal, appellant contends that the trial court erred in denying his motion to suppress. We affirm.

I.

A. The Government's Evidence

On June 25, 2001, at 4:47 p.m., Officer Jerry Marshall of the United States Park Police was in an unmarked police car on Allison Street, N.W., which had stopped for a red light at the corner of Fifth Street. As he sat in his car waiting for the light to change, Officer Marshall saw a car with Virginia license plates headed north on Fifth Street. When he noticed that neither the passenger nor the driver of this car was wearing a seat belt, Officer Marshall turned on the emergency lights of his own car and "conducted a traffic stop." After the other car came to a halt, Officer Marshall*fn1 approached the driver's side while his partner, Officer Lagadinos, approached the passenger's side. Marshall asked the driver, Reginald Perry, for his license and registration. Perry gave Officer Marshall a non-driver's identification card and a Virginia registration in the name of Emmanuel Slatter. In response to further questions about the registration of the car, Perry told the officer that he did not have a license to drive, and that he was simply "taking the car for a test drive" with the owner, who he said was the man seated next to him in the front passenger seat. That man was appellant. Officer Marshall then asked appellant if he had a driver's license and inquired about the identity of Slatter. Appellant replied that he did not have a driver's license and that Slatter was his cousin who lived in Virginia.

Officer Marshall then asked Perry to get out of the car, arrested him for driving without a license,*fn2 and conducted a search of his person incident to the arrest. At that point Officer Lagadinos took custody of Perry, and Marshall went around to the other side of the car to question appellant. Officer Daniel Berberich, who had also arrived in response to Marshall's call for backup assistance,*fn3 stood next to Officer Marshall.*fn4

Speaking to appellant through the open car window, Officer Marshall asked if he had any weapons, such as guns or knives. Appellant looked directly at Officer Marshall and said he did not. Marshall then asked appellant if he had any narcotics on him, specifically crack cocaine or marijuana. Appellant again said he did not, but this time he "broke eye contact with [Officer Marshall] and looked down towards his lap" as he "mumbled" his response. The officer then asked if he could search appellant,*fn5 and appellant replied, "Yeah, go ahead."*fn6 By this time three or four minutes had elapsed since the initial stop.*fn7

After Officer Marshall received consent for the search, appellant got out of the car.*fn8 The officer asked him to turn and face the car, which he did. As he turned, Officer Marshall spotted a lump in appellant's groin area. With appellant facing the car, Marshall conducted an immediate patdown of his waistband area for weapons. At the officer's request, appellant then turned around, and Officer Marshall searched his pockets and groin area. When he felt a "hard rock-like substance" in the groin area where he had seen the lump, Officer Marshall unfastened appellant's belt and "drew back" his pants. Immediately he saw what appeared to be crack cocaine in the area where the lump had been. The officer placed appellant under arrest and then retrieved the crack cocaine by vigorously shaking appellant's right pant leg until it fell out from the bottom. At no time did appellant ever ask the officer to stop the search, even after his pants were pulled back and shaken in order to dislodge the cocaine.

B. The Defense Evidence

Appellant testified and gave a different account of what happened. According to appellant, when the car was initially pulled over, Officer Marshall first told both occupants to remain inside the car. Appellant's testimony about the events leading up to Perry's arrest was generally similar to that of the officer, but he stated that Officers Lagadinos and Berberich arrived together in another police car a few minutes after Officer Marshall made the initial stop.

Appellant said that no one asked for his permission to be searched; Officer Marshall just began to search him. He was soon joined by Officer Berberich while Officer Lagadinos examined the car. After Officer Lagadinos finished searching the car, he put on rubber gloves and searched appellant's genital area. However, despite the invasive search and the use of rubber gloves, appellant admitted that he never raised any protest even though he knew that an ...


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