Appeal from the Superior Court of the District of Columbia (CMD-25615-07) (Hon. John H. Bayly, Jr., Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before THOMPSON, Associate Judge, and TERRY and SCHWELB, Senior Judges.
After a bench trial, appellant Frederick Ricardo Germany was convicted of unlawful possession of a controlled substance (cocaine), see D.C. Code § 48-904.01(d) (2001), the court having denied his motion to suppress the tangible evidence. The evidence was found by a Metropolitan Police Department ("MPD") officer who frisked appellant for weapons when officers found him on the front porch of a house where officers had arrived to execute a premises search warrant. Appellant seeks reversal of his conviction on the ground that the pat-down search violated his rights under the Fourth Amendment. We conclude that the trial court did not err in denying the suppression motion, and we therefore affirm the judgment of conviction.
On November 1, 2007, MPD Detective Kevin Copeland obtained a search warrant that authorized a search of a suspected "crack house," a private residence located in the 5000 block of Bass Place, S.E. The warrant authorized a search for, inter alia, "crack cocaine, narcotics paraphernalia, . . . firearms [and] weapons . . . ." The affidavit submitted in support of the application for the search warrant, which the court admitted into evidence at the suppression hearing, contained the following factual background:
[Confidential Source #1 ("CS#1")] was provided with an amount of advance [MPD] funds and instructed to attempt to purchase illicit drugs from within the [Bass Place, S.E., house]. While under law enforcement constant observation, CS#1 walked to the front door of [the house] and was met by a black female who was sitting on the front of the porch, the black female escorted CS#1 inside . . . . A short time later CS#1 exited the premises and responded directly to the Affiant [Detective Copeland] . . . CS#1 delivered several clear ziplocks containing a white rocklike substance to the Affiant, a portion of which subsequently field-tested positive for cocaine. CS#1 stated that (IT) had purchased the white rocks from a black female inside of [the house].
At the suppression hearing, two MPD officers described the execution of the search warrant. Detective Copeland testified that after dark on November 2, 2007, around 8 p.m., "maybe about ten" MPD officers, wearing police vests, arrived at the house to execute the warrant. The door to the house was "already open" and Detective Copeland "could see that everybody was pretty much outside on the porch." More specifically, Detective Copeland testified, there were approximately seven people on the porch, including appellant, and two children and one female adult were inside the house. Police placed each of the people on the porch in "flexicuffs" (plastic handcuffs) "for the officers' safety and security."*fn1
Detective Copeland acknowledged that when appellant was "handcuffed and placed on his stomach face down on the porch," police "had no indication that [appellant] was involved in any illegal activity" and no information that he was an owner or occupant of the house. In response to defense questioning, Detective Copeland testified that he did not know whether appellant had money in his hand when police arrived on the scene. He agreed that "the only connection [appellant] had to this search warrant was he was on the porch with other people when officers arrived to execute the warrant." The entire search took about thirty-five to forty-five minutes.
Detective Lorenzo James was one of several officers present to assist with the search warrant. He testified that when MPD officers arrived on the scene, it was dark and there were "a lot of people on the front porch." Detective James was "outside with some of the other detectives, detaining people that [were] on the porch." Approximately six people were on the porch.
"[E]verybody . . . on the porch was instructed to get down" on the porch. Everyone complied, and then they all were "placed in flexicuffs or handcuffs for officers' safety and their safety while [police] were executing the warrant." Police then did a "safety patdown" of everyone on the porch, including appellant, who was lying on his stomach. When Detective James, who had his gun drawn, performed a pat-down of appellant, the detective felt, in appellant's right front pants pocket, what he could tell (from the shape and from his years of experience in narcotics) was a four- or five-inch-long crack pipe. When Detective James rolled appellant over to complete the pat-down, "a plastic bag that contained white powder substance . . . fell out of" the right pocket of appellant's jacket, which the detective described as a "waist-length coat." Detective James retrieved the crack pipe when he rolled appellant over, but stated that he "would have still rolled [appellant] over even if [the crack pipe] wasn't on him" because otherwise he could not do the "full patdown." Asked on cross-examination whether appellant had done anything to raise Detective James's suspicions "relative to everyone else that was there at the time," Detective James responded, "No . . . [appellant] was real calm." Appellant was put in flexicuffs along with everyone else for "officers' safety, when [the officers are] executing a search warrant and that amount of people [is] at a location." Detective James had no indication that appellant was armed or dangerous when he arrived at the location, and had no information that appellant lived in or owned the house, but explained that "when we, as police officers, execute warrants, we tend to treat . . . people to be there to be armed and dangerous, could be armed and dangerous." Detective James could not recall whether appellant had any money in his hand.
Appellant Germany was the sole witness for the defense at the suppression hearing. He testified that he was on the porch of a friend's house, along with about seven or eight other people, "hanging out," "drinking and things like that," and celebrating "somebody's birthday." The other people were "younger people," while appellant was 47 years old. Appellant stated that just as the police arrived, he had cash in his hand and was "getting ready to leave off the porch." When police told him to "freeze" and asked what he had in his hand, he told them that he had money in his hand because he was headed toward the ice cream truck that was in front of the house to buy some chicken wings. An officer who had his gun drawn (not Detective James) made him return to the porch. The owner of the house was at the ice cream truck, looking at what was happening to her house. The officer who made appellant return to the porch patted appellant down, though "not really good . . . like he was patting for guns or weapons . . . ." Detective James took the money from appellant's hand, counted it, and put it in appellant's left back pocket, then put plastic cuffs on appellant and told him to lie down on the porch.*fn2 Appellant testified that he "kept asking for the search warrant" and that Detective James came to pat appellant down again because appellant "was the one asking for the search warrant." Four or five officers put plastic cuffs on everyone, patted everyone down, and then made them all lie down on the porch. There was a girl next to appellant and a man next to her.*fn3 Police made the owner lie down on the actual ground and put "real" handcuffs on her. A woman and children were in the house; the police let them come out of the house and did not pat them down while they were on the porch.
The trial court incorporated the motions hearing testimony into the trial. At the conclusion of all the testimony, the trial court denied the motion to suppress and found appellant guilty of cocaine possession. The court specifically credited the testimony of Detective James and found that when police arrived to execute the search warrant, they saw a "small crowd" congregated at the front of the house, did not know "who is the host and who is the guest" or who resided there, and, seeing people wearing coats ...