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In re T.H.

May 11, 2006

IN RE T.H.;
DISTRICT OF COLUMBIA, APPELLANT.



Appeal from the Superior Court of the District of Columbia (J-1530-04) (Hon. John M. Mott, Trial Judge).

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

Argued November 17, 2005

Before FARRELL, RUIZ, and KRAMER, Associate Judges.

Dissenting Opinion by FARRELL, Associate Judge, at page12.

The District of Columbia appeals from the trial court's decision to suppress a handgun found during a search of the appellee, T.H., incident to his arrest for possession of illegal fireworks. The trial court ruled that the arrest of T.H. was without probable cause and, therefore, that the evidence found during the search was inadmissible. We affirm.

I.

On June 30, 2004, at approximately 10:00 p.m., Officer Leonard Fogle saw a Sport Utility Vehicle ("SUV") parked illegally on 54th Street, Northeast. Officer Fogle, observing that there was no one in the driver's seat, approached the vehicle. As he approached, he saw a front-seat passenger, a rear-seat passenger (T.H.), and a box of fireworks in the back compartment behind the rear passengers' seat where T.H. was sitting. The officer asked T.H. and the front seat passenger who owned the fireworks, and both replied that the fireworks belonged to the absent driver. Thereafter, both were arrested for possessing the fireworks and were searched incident to that arrest. The officers found a handgun in T.H.'s pocket, leading to the motion to suppress that is at issue here.

After his arraignment on the charges of Carrying a Pistol Without a Licence, Possession of an Unregistered Firearm, Unlawful Possession of Ammunition, and Unlawful Possession of Fireworks, that is firecrackers and roman candles,*fn1 T.H. filed a motion to suppress the handgun, arguing that the police lacked probable cause to arrest him. On March 1, 2005, the trial judge held a hearing on the motion, and later made sixteen findings of fact. Specifically, he found:

[1] [T]he police officers approached an SUV that . . . was illegally parked.

[2] [A]t the time [T.H.] was the sole rear passenger in the SUV.

[3] [A] front seat passenger also occupied the SUV.

[4] [T]he driver of the SUV was not present.

[5] [T]he officers saw multiple boxes of fireworks in plain view in the rear ...


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