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Dawkins v. United States

January 21, 2010

ANDRE DAWKINS, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F-5679-05) (Hon. Lynn Leibovitz, Motions Judge).

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

Argued February 13, 2008

Resubmitted July 9, 2009

Before RUIZ, Associate Judge, and SCHWELB and FARRELL,*fn1 Senior Judges.

Andre Dawkins appeals the trial court's denial of his motion to suppress evidence, and we consider the proper scope of a search of a vehicle incident to arrest in light of the Supreme Court's decision in Arizona v. Gant, 129 S.Ct. 1710 (2009).*fn2

Appellant was arrested for possessing a marijuana blunt*fn3 while he was standing outside his car. In a search incident to arrest, the police found additional marijuana in his pants pocket. The police also searched appellant's car and found a loaded gun underneath the passenger seat with a rock of cocaine inside the barrel of the gun. Appellant was charged with carrying a pistol without a license,*fn4 possession of an unregistered firearm,*fn5 unlawful possession of ammunition,*fn6 possession of marijuana,*fn7 and possession of cocaine.*fn8

The items found during the searches of appellant and his car formed the basis for a warrant to search appellant's home. Items found inside the house when the warrant was executed in turn led to additional charges for possession of cocaine,*fn9 possession of marijuana,*fn10 unlawful possession of ammunition,*fn11 and possession of drug paraphernalia.*fn12

Appellant entered a guilty plea to all the charges on the condition that he may appeal the trial court's denial of his suppression motion as it related to the evidence found in the car, which supplied the basis for the further search of his house (and the contraband found there). We conclude that the search of appellant's car was lawful and affirm the judgment.

I. Statement of the Facts

At the hearing on the suppression motion, Officer Leroy Myers testified that on October 1, 2005, the Metropolitan Police Department's vice unit conducted an undercover buy-bust operation in the 2200 block of Savannah Street in Southeast Washington, D.C. Around 3:25 p.m., a confidential informant ("CI")*fn13 notified Officer Myers that a heavy-set black man who was standing next to a red/burgundy car had marijuana. From a distance of 20-25 feet, Officer Myers saw appellant, who fit the lookout description, leaning on the passenger side of a red car.

Officer Myers testified that he radioed the arrest team "probably more than two times." In the first radio call, he gave a description of the car and appellant's appearance. The arrest team arrived within 1-2 minutes of the initial call. Between the radio call and the arrest team's arrival on the scene, Officer Myers saw appellant open the passenger-side door and "lean[] into the vehicle [with] the upper part of the body . . . and c[o]me out of the vehicle and . . . close[] the door." Before the arrest team arrived on the scene, he called over the radio to report what he had seen.

Officer Derrick Phillip was a member of the arrest team. He testified that as the arrest team approached, appellant threw down a cigarette and tried to cover it up with his feet. According to Officer Phillip, the cigarette appeared to be unevenly rolled, suggesting that it had been altered for smoking marijuana. Appellant was immediately placed under arrest.

Officer Phillip had heard the second radio call as suggesting that "I need[ed] to look inside the vehicle [because] prior to us pulling up, [Officer Myers] observed [appellant] go inside the front-passenger seat area and immediately exit out the vehicle and close the door." Officer Phillip found the car door locked so he retrieved the key from another officer, who had found it when he searched appellant, and opened the passenger door. When he opened the door, appellant exclaimed, "Why are you guys going to go in my car?" Officer Phillip found a gun underneath the passenger seat with rock cocaine inside the barrel of the gun. He also found appellant's family photo in the glove box and appellant's personal mail in the trunk.*fn14

Appellant testified that on October 1, 2005, he drove his car*fn15 to Savannah Street in Southeast. He parked his car and bought some cigars at a nearby grocery store. Other people were out in the street as he was standing on the sidewalk. Within 30-45 minutes of his arrival, the police pulled up near him. He was startled and admitted that he dropped a marijuana blunt -- which he had rolled himself -- between the wheel and the curb, but denied that he tried to cover it up with his feet. The police officer told him to put his hands on the car and placed plastic handcuffs on him. ...


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