Appeal from the Superior Court of the District of Columbia (CMD14786-06) (Hon. Truman A. Morrison, III, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before GLICKMAN, KRAMER and FISHER, Associate Judges.
Appellant Marcellus Jacobs pleaded guilty to one count of possession with intent to distribute marijuana conditioned upon preserving his right to appeal the trial court's denial of his motion to suppress the tangible evidence recovered from him in what he contends was an illegal seizure. He now appeals the trial court's denial of that motion. We affirm.
Officer Andre Parker testified at the suppression hearing that at approximately 9:47 p.m. on the night in question he and his partner, Officer Aisha McKreery, received a radio assignment to respond to an assault. The radio run was for a "female fighting with someone inside of a gold vehicle" located at 3319 Gainesville Street in Southeast Washington. Upon arriving at the specified address two minutes later, they "observed a gold vehicle parked with a gentleman inside of it." The man was alone and did not appear to have been involved in a fight.
The officers ran checks on the car's license plate, then activated their emergency equipment (i.e. flashing lights) and approached the vehicle, one officer on each side. Officer Parker said he approached the driver's side window and the driver rolled the window down at his request. Officer Parker then explained to appellant why they had pulled behind him and that they were investigating the assault of a female inside a gold-colored vehicle. He asked appellant whether everything was all right and whether there was a female in the car. Appellant informed Officer Parker that everything was fine, and that there was no female in his car. He appeared nervous to Officer Parker, however, and his hands were noticeably shaking.
At that point, Officer Parker "smelled a strong odor of marijuana coming from the vehicle." It was a "very strong smell of unburned marijuana" based on his experience, but he saw no contraband in plain view. Officer Parker then asked appellant to turn off his engine, which he did. The window on the passenger's side was also down by then, according to Officer Parker, and he exchanged a knowing glance with Officer McKreery, who was standing on the passenger's side, confirming that they were both smelling unburned marijuana. Officer Parker returned to asking appellant whether everything was all right and whether he had seen any suspicious activity, but Officer McKreery, having noticed a brown paper bag between appellant's legs, asked him what was in the bag. Appellant replied that it was his lunch. Officer McKreery asked whether they could search the car, and appellant consented. Once appellant left the car, Officer McKreery could view a package of marijuana in the area where appellant's right thigh had been, and Officer Parker could see several plastic bags of marijuana. Officer Parker then searched him, patted him down for weapons, and placed him in handcuffs while Officer McKreery searched his car.
Officer McKreery generally confirmed Officer Parker's account of the evening's events and recalled smelling unburned marijuana. Contrary to Officer Parker's testimony, however, Officer McKreery testified that the front two windows were rolled down when they arrived, and that she did not hear Officer Parker tell appellant to roll his window down.
Although the trial court noted that there was conflicting testimony as to whether the car's windows had been rolled down when the officers arrived, the court opined that it made no difference whether the windows were up or down and explicitly declined to determine whether asking appellant to roll down his window constituted a seizure because, the court found, appellant consented to the search and consented to getting out of his car. Likewise, the trial court explicitly declined to make a finding on whether the marijuana smells constituted additional grounds for asking appellant to get out of his car on the ground that he had consented to the search of his car before he was asked to get out of the car.
The Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968), requires a trial court, when considering the legality of an investigatory stop, to determine whether the police had "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" an "'intrusion upon the constitutionally protected interests of the private citizen.'" Id. at 21 (quoting Camara v. Mun. Court, 387 U.S. 523, 534-35, 536-37 (1967)). In evaluating the legality of an investigatory stop, the trial court "must look to the 'totality of the circumstances.' 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) (citing Alabama v. White, 496 U.S. 325 (1990)). "The 'test is necessarily imprecise, however, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.'" Guadalupe v. United States, 585 A.2d 1348, 1353 (D.C. 1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). Although we review the issue de novo because whether reasonable suspicion existed is a legal question, "the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Peay, supra, 597 A.2d at 1320 (citations omitted).
Accordingly, the question is at what point a stop would have been justified, and whether the stop occurred before that point, making it illegal. An anonymous tip alone is insufficient to establish the minimal level of objective justification for a stop. Gomez v. United States, 597 A.2d 884 (D.C. 1991). Thus, the parties have focused their arguments on whether the activation of the officers' emergency equipment amounted to a stop, and whether, if not, that in combination with asking appellant to roll down his windows amounted to a stop. Certainly, if there was no seizure before the police smelled the marijuana and got appellant's consent to search his car (i.e.,if activating the emergency equipment did not amount to a seizure and the windows were down when the officers approached the car), then the trial court was correct to admit the evidence because the officers' smelling the marijuana would have allowed them to stop appellant and search his vehicle.*fn1 See, e.g., Minnick v. United States, 607 A.2d 519, 525 (D.C. 1992) ("This court has repeatedly found probable cause to search an automobile based, at least in part, on an officer's recognition of the smell of drugs."); United States v. Bolden, 429 A.2d 185 (D.C. 1981) (per curiam).
First, we consider whether turning on the emergency lights alone amounted to a stop. It is important to recognize that the police did not use their lights to pull over appellant's car. Instead, he had already parked the car of his own volition, and the police needed no Fourth Amendment justification to approach the parked car and ask him some questions. There may have been non-coercive and safety-related reasons for turning on the lights that night, not the least of which may have been to signal passing motorists to use caution to avoid striking the officers and appellant at the side of the road. There was no evidence, however, ...