Appeals from the Superior Court of the District of Columbia (CF2-17141-07) (Hon. John M. Mott, Motions Judge) (Hon. Anthony C. Epstein, Trial Judge)
The opinion of the court was delivered by: Terry, Senior Judge:
Submitted January 11, 2011
Before FISHER and THOMPSON, Associate Judges, and TERRY, Senior Judge.
Following a one-day jury trial, appellant Nathaniel Bean was convicted of possessing two controlled substances, cocaine and heroin, with intent to distribute them, in violation of D.C. Code § 48-904.01(a)(1) (2001). On appeal he contends that the police lacked probable cause to arrest him for possession of an open container of alcohol ("POCA") because the container in question was closed (although unsealed) when the police first discovered it. He also raises, for the first time on appeal, a void-for-vagueness challenge to the POCA statute, D.C. Code § 25-1001 (a) (2001), and argues that the government's failure to preserve the container for trial violated his right to due process. We reject all of these arguments and affirm both convictions.*fn1
At about 10:00 p.m. on July 21, 2007, appellant was driving a Jeep on Martin Luther King Avenue, S.E., when he was pulled over by Metropolitan Police Officer Albert Sabir for operating a vehicle without headlights. Because appellant "jumped out" of the Jeep immediately after it stopped, Officer Sabir was able see a bottle of Courvoisier cognac in plain view resting on the floor between the left front door (which appellant had opened) and the driver's seat of appellant's Jeep. The seal on the bottle was broken, indicating that it had been opened. The cap was on the bottle, which was about one-fourth full. Officer Sabir opened the bottle and immediately detected "an odor consistent with that of an alcoholic beverage." The officer thereupon placed appellant under arrest for possession of an open container of alcohol and searched his person. A medicine bottle containing cocaine and heroin was ultimately seized from one of appellant's pockets.
Appellant was never charged with possessing an open container of alcohol, but he was issued a traffic citation for driving without headlights. He was also charged with the two offenses of which he was convicted here, possession of cocaine and possession of heroin with intent to distribute them. After a hearing on his motion to suppress the drugs, the trial court credited Officer Sabir's factual account of the arrest and search and denied the motion. The bottle of cognac was not preserved for inspection during either the suppression hearing or the trial which followed.
Appellant argues that the trial court erred in denying his motion to suppress evidence because the police officer lacked probable cause to arrest and search him.
His contention is that there can be no violation of the POCA statute when the container is closed when discovered by the police, even though the seal is broken. He relies on Mitchell v. United States, 746 A.2d 877 (D.C. 2000), in which we said, "Mere possession in a car of a closed bottle containing an alcoholic beverage does not, without more, furnish probable cause even where . . . the bottle is only three-quarters full (indicating that it had been open at some prior time)." Id. at 886 (emphasis in original). Presumably, this holding would resolve the issue in appellant's favor if Mitchell were still a correct statement of the applicable law. However, in Mitchell we were interpreting an earlier version of the POCA statute, codified at D.C. Code § 25-128 (a) (1996). Because that earlier version did not expressly define the term "open container," we concluded that the term did not include a closed container that "had been open at some prior time." See 746 A.2d at 886.
The "Opened Alcoholic Beverage Containers Amendment Act of 1998"*fn2 remedied this omission by adding a definitional section to the Alcoholic Beverages chapter of the District of Columbia Code, which now reads in part: " 'Open container' means a bottle, can, or other container that is open or from which the top, cap, cork, seal, or tab seal has at some time been removed." D.C. Code § 25-101 (35) (2001) (emphasis added). The evidence here showed that the bottle of cognac was unsealed (i.e., the seal "[had] at some time been removed") and that its contents had been partially consumed (indicating that the cap "[had] at some time been removed") when Officer Sabir found it in appellant's Jeep in plain view, on the floor just inches from where appellant had been sitting. Given these facts, the officer had probable cause to believe that appellant had violated the POCA statute as amended by the new definitional section. See, e.g., In re Greenspan, 910 A.2d 324, 343 (D.C. 2006) ("The definition of a term in the definitional section of a statute controls the construction of that term wherever it appears throughout the statute" (citation omitted)). We hold accordingly that the 1998 amendment rendered the Mitchell case inapposite, and thus that the trial court committed no error in denying appellant's motion to suppress.
Appellant also contends, for the first time on appeal, that the current version of the POCA statute is unconstitutionally vague because it defines the term "open container" to include containers whose caps or seals have "at some time been removed." D.C. Code § 25-101 (35). Because this argument was not made below, appellant must demonstrate plain error in order to prevail on appeal. In such circumstances, "[w]hen the defect alleged is the unconstitutionality of the statute . . . we have generally declined to [consider the issue] unless the statute is so clearly unconstitutional that it should have been ruled upon by the trial court despite the failure of appellant to raise the point below." In re W.E.P., 318 A.2d 286, 289 (D.C. 1974) (internal quotation marks and citations omitted); accord, Williams v. United States, 237 A.2d 539, 540 (D.C. 1968). Appellant has not made such a showing.
We cannot discern any ambiguity or uncertainty in the plain language of the POCA statute which would have required the trial court sua sponte to consider whether it might be void for vagueness. On the contrary, we hold that the express words of the statute, including the new definitional section, " 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited . . . .' " McNeely v. United States, 874 A.2d 371, 381-382 (D.C. 2005) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Even ...