Appeal from the Superior Court of the District of Columbia (M-27732-07) (Hon. Bruce D. Beaudin, Trial Judge)
The opinion of the court was delivered by: Terry, Senior Judge
Before WAGNER, TERRY, and KING, Senior Judges.
Appellant entered a conditional plea of guilty to a charge of possession of marijuana. His arrest and conviction arose from the stop and search of a car in which he was a passenger. He argues that the trial court erred in denying his pre-plea motion to suppress the marijuana which the police recovered when they searched him because the search preceded his arrest, and also because the search exceeded the scope of a lawful frisk under Terry v. Ohio, 392 U.S. 1 (1968). In addition, he challenges the sufficiency of the evidence that he possessed marijuana. We agree with the trial court that Millet was lawfully searched incident to his arrest. We also reject Millet's claim that the evidence was insufficient, not only because such a challenge cannot be raised on appeal following a conditional plea of guilty,*fn1 but also because he specifically waived that claim when he entered his plea. Accordingly, we affirm.
Appellant Millet was charged in a one-count information with possession of marijuana, a controlled substance. He filed a motion to suppress the physical evidence (the marijuana) which the police recovered when they searched him, and the court held a hearing on the motion.
The evidence at the suppression hearing established that on December 1, 2007, shortly after 3:30 a.m., Officers Patrick Collier and Caline Roberts of the United States Capitol Police were on routine patrol in the Capitol Hill area. As they drove along Louisiana Avenue near the foot of Capitol Hill, headed toward Constitution Avenue, they saw a four-door Acura sedan traveling west on Constitution Avenue with only one headlight. The officers pursued the car and, after going a short distance, pulled it over to the curb. Officer Collier approached the car from the driver's side, and Officer Roberts approached from the passenger side. Officer Collier asked the driver, Dwayne Fountain, to produce his driver's license and registration. As they were talking, the officer noticed that Mr. Fountain's "actions were very slow . . . almost sluggish," that his eyes were bloodshot, and that his speech "was slow and very low . . . in volume . . . ." Officer Collier also smelled the odor of "burning marijuana" coming from the car. At the same time, both officers noticed a bulge "around the size of a fist" in the right "waistband area" of the front seat passenger, appellant Millet, under the hooded sweatshirt that he was wearing. Since "the left side of his person did not have that bulge," Officer Roberts concluded that the bulge was "out of the ordinary."
The officers then returned briefly to their patrol car to check the driver's credentials, and also to discuss their safety concerns about the bulge they had seen near Millet's waist. When they returned to the stopped Acura, Officer Collier asked Mr. Fountain, the driver, to get out of the car and accompany him to the curb, and he complied. Then, suspecting that Fountain might have been driving while impaired, the officer asked him if he was under the influence of alcohol or drugs. Mr. Fountain admitted "that he had smoked some marijuana about an hour ago." Officer Collier administered a field sobriety test, and when Mr. Fountain failed it, the officer placed him under arrest for driving under the influence.
Officer Roberts then asked Mr. Millet to step out of the car and proceeded to search the car incident to Fountain's arrest. By that time, a third officer had arrived and stood near Millet as Officer Roberts searched the car. While performing the search, Officer Roberts also detected the smell of burning marijuana, and on the floor of the back seat she found a clear plastic bag containing a green leafy substance which she believed to be marijuana.
Officer Collier asked Mr. Fountain if the bag was his, and he replied that it was not. The officer then told Millet and Fountain that they would both be charged in connection with the marijuana found in the bag, at which point Mr. Fountain said, "Okay, I'll be straight with you, it's his," and pointed to Mr. Millet, adding that "he's the one who brought it into the vehicle." At that point, Officer Roberts frisked Millet's waist area "to make sure that he had no weapons on him," and from his waistband she removed a plastic ziplock bag containing a green leafy substance that looked and smelled like marijuana. She thereupon placed Millet under arrest. Officer Roberts testified that when she touched the bulge, she heard a crunching sound and knew that it was not a weapon.
On the basis of this evidence, the court ruled that Mr. Fountain's statements, the smell of marijuana emanating from the car, and the recovery of a bag of what the officers believed to be marijuana supported the inference that "at 3:30 in the morning . . . if marijuana was smoked an hour earlier, it's very likely, and I find conclusive . . . that Mr. Millet was in the car and that Mr. Millet had knowledge that there were controlled substances in the car." The court also found that Officer Roberts recovered the bag of marijuana "close to where . . . [Millet's] hand would have been" when he was seated in the car. Accordingly, the court held that the police had probable cause to arrest and search Millet, and therefore denied his motion to suppress.
Millet thereafter waived his right to a trial and entered a conditional plea of guilty to possession of marijuana, reserving in writing his right to appeal the denial of the motion to suppress, but nothing more.*fn2
"Our review of a trial court's denial of a motion to suppress is limited." Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007) (citing White v. United States, 763 A.2d 715, 719 (D.C. 2000)). "We must defer to the court's findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling below." Id. "Whether the police had probable cause on a given set of historical facts," however, "is a question of law subject to de novo review on appeal." Perkins v. United States, 936 A.2d 303, 305 (D.C. 2007) (citations omitted). "Essentially, our role as an appellate court 'is to ensure that the trial court had a ...