Appeal from the Superior Court of the District of Columbia (F-353-05) (Hon. Thomas J. Motley, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge
Before FARRELL and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.
It is a misdemeanor in the District of Columbia, punishable by up to 90 days' imprisonment and a $500 fine, to "possess in an open container an alcoholic beverage in . . . [a] vehicle in or upon any street . . . ." D.C. Code §§ 25-1001 (a)(2), (d) (2001). The question in this appeal is whether police had probable cause to arrest an automobile passenger for that offense, along with the driver, upon finding them sitting next to an open can of malt liquor during a routine traffic stop. We answer that question in the affirmative. We therefore uphold the search of the passenger incident to his arrest and the resulting seizure of drugs and drug paraphernalia from his jacket pocket.
Appellant Anthony Perkins was the front seat passenger in a Toyota Camry stopped by Metropolitan Police Officers Jelani Prather and Joseph Barnes on January 16, 2005, for running a red light. Approaching the car on the passenger side, Officer Prather saw an open 24-ounce can of Steel Reserve 211 malt liquor balanced against the gear shift on the center console, midway between the driver and appellant. The officers recovered the can and found it to be half-full. Both passenger and driver, the car's only occupants, denied possessing the malt liquor; each claimed that it belonged to the other. The police arrested both men for violating D.C. Code § 25-1001.
Officer Prather then searched appellant and found what proved to be crack cocaine in his jacket pocket, along with several small plastic bags and a razor blade. Appellant was indicted for unlawful possession of cocaine with the intent to distribute it and unlawful possession of drug paraphernalia, in violation of D.C. Code §§ 48-904.01 (a)(1) and 48-1103 (a) (2001). He moved to suppress the physical evidence seized from him, asserting that the police lacked probable cause to arrest him. The trial court denied the motion. After trial, the jury returned a guilty verdict on both counts of the indictment.
The search of appellant's person was lawful if it was incident to a lawful arrest. See Chimel
v. California, 395 U.S. 752, 762-63 (1969). For an arrest to be lawful, the Fourth Amendment requires that it be supported by probable cause. See United States v. Henry OgleWatson, 423 U.S. 411, 417 (1976). Appellant contends that the police lacked probable cause to arrest him because they could not tell whether it was he or the driver of the Camry who possessed the can of malt liquor resting on the console equidistant between them.
Whether the police had probable cause on a given set of historical facts is a question of law subject to de novo review on appeal. Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Leonard M. Watson, 697 A.2d 36, 38 (D.C. 1997).*fn1 Nonetheless, "[t]he determination of probable cause is an inexact judgment." Price v. United States, 429 A.2d 514, 516 (D.C. 1981). The Supreme Court has instructed that "the probable-cause standard is a '"practical, non-technical conception"' that deals with '"the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."' Maryland v. Pringle, 540 U.S. 366, 370 (2003) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983), and Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). Thus, the Court has said, "[t]he probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances." Pringle, 540 U.S. at 371 (citing Gates and Brinegar, supra).
"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." Brinegar, 338 U.S. at 175 (internal quotation marks and citation omitted); accord Pringle, 540 U.S. at 371. This means "more than bare suspicion." Brinegar, supra. The classic formulation is that "[p]robable cause exists where 'the facts and circumstances within their [the officers] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Id., 338 U.S. at 175-76 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). To this it is added that probable cause must be "particularized" with respect to the person to be searched or seized. Ybarra v. Illinois, 444 U.S. 85, 91 (1979).
"Probable cause must be supported by more than mere suspicion but need not be based on evidence sufficient to sustain a conviction." Blackmon v. United States, 835 A.2d 1070, 1075 (D.C. 2003) (quoting Rucker v. United States, 455 A.2d 889, 891 (D.C. 1983)). Indeed, "it is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Gates, 462 U.S. at 235 (internal quotation marks and citation omitted). Similarly, probable cause "does not demand any showing that [the arresting officer's belief in a suspect's guilt] be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion); accord Ball v. United States, 803 A.2d 971, 974 (D.C. 2002); Coles v. United States, 682 A.2d 167, 168 (D.C. 1996). See generally 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.2 (e) (4th ed. 2004). In this respect, the probable cause standard is not unlike the "reasonable probability" standard 5 that applies when a defendant has the burden of demonstrating prejudice from a trial court error, ineffective assistance of counsel, or a withholding by the prosecution of exculpatory evidence: "[t]he reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different." United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004).
When a passenger in a vehicle is found sitting next to unconcealed contraband, that is evidence of constructive possession, even if it may not be sufficient, without more, to support a finding of the passenger's guilt beyond a reasonable doubt. "The law of constructive possession requires a showing that the defendant (1) knew of the presence of the contraband, (2) had the power to exercise dominion and control over it, and (3) intended to exercise dominion and control over it." Blackmon, 835 A.2d at 1075 (citations omitted). "A defendant's close proximity to [items of contraband] in plain view is certainly probative in determining not only whether he knew of the [items] and had the ability to exert control over them, but also whether he had the necessary intent to control (individually or with others) their use or destiny." Rivas v. United States, 783 A.2d 125, 128 (D.C. 2001) (en banc).*fn2 Indeed, "[w]hen the government proves the presence of contraband in an automobile, in plain view, conveniently accessible to a passenger defendant, the additional evidence necessary to prove constructive possession [beyond a reasonable doubt] is comparatively minimal." Id. at 137. As Rivas confirms, the evidence is probative as to the passenger even when the driver also is present in the vehicle and has equal access to the contraband, especially because "[c]onstructive possession may be sole or joint." Id. at 129 (citing Parker v. United States, 601 A.2d 45, 51-52 (D.C. 1991)). Ordinarily, then, finding a passenger in a vehicle in arm's reach of unconcealed contraband readily warrants an objectively reasonable belief that the passenger ...