Appeal from the Superior Court of the District of Columbia (CMD-15539-08) (Hon. Anne O'Regan Keary, Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge, Retired
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and RUIZ, Associate Judge Retired.*fn1
Gene E. Watson appeals his conviction for attempted possession of marijuana, in violation of D.C. Code § 48-904.01 (d) (2001). Appellant claims that the trial court erred in: (1) denying his motion to suppress drug evidence found in a search incident to an arrest he claims lacked probable cause, and where the prosecutor did not comply with Rule 16 discovery requirements prior to the suppression motion; and (2) admitting two statements appellant made, in violation of his Fifth Amendment rights. We conclude that none of appellant's claims requires reversal and we therefore affirm his conviction.
On June 17, 2008, Metropolitan Police Department (MPD) Officer Chris Reisinger was on duty in a marked police cruiser on the Whitney Young Memorial Bridge. Officer Reisinger was operating a "Lidar III" device - a laser radar detection gun - to detect speeding cars. At approximately 6:00 p.m., Officer Reisinger saw appellant's car traveling across the bridge "at a high rate of speed" and going "a lot faster than other vehicles." The speed limit on the bridge, which was clearly indicated by two posted signs, was forty miles per hour. The officer testified that when he pointed his Lidar III device at appellant's car, the gun sounded an audible target acquisition tone, locked on the vehicle, and indicated that the car was traveling at eighty-eight miles per hour - forty-eight miles over the posted speed limit. Officer Reisinger testified that he knew that driving thirty miles over the speed limit in the District of Columbia is an arrestable offense, so he signaled to appellant to pull over to the side of the road. Officer Reisinger approached the driver's side of the car and asked appellant (the sole occupant of the vehicle) for his driver's license and registration information. Appellant produced a driver's license and a D.C. fireman's employee identification card. The officer then asked appellant to step out of the car, at which time he handcuffed appellant and informed him that he was under arrest for driving more than thirty miles over the speed limit.
Officer Reisinger then began to search appellant incident to the arrest, during which the officer pulled up appellant's pant leg and noticed a bulge in appellant's sock. The officer testified that "for safety reasons" he asked, "what's that?" Appellant responded, "Oh, it's just some weed." Officer Reisinger recovered what he suspected to be crack cocaine and marijuana from appellant's sock (both field-tested positive as drugs) as well as $1,387 from appellant's pocket. Because of appellant's status as a D.C. Fire Department employee, Officer Reisinger notified the fire department of appellant's arrest. While waiting for the fire department officers to arrive and retrieve appellant's employee identification card, Officer Reisinger asked appellant "standard biographical questions" for booking purposes, such as his name and date of birth. According to Officer Reisinger, appellant had not been prompted by a question when he volunteered that he had "just got it at Riggs Road, it's for my girl." Officer Reisinger did not respond to appellant's statement. After the fire department officers arrived and appellant's employee identification card was surrendered to them, appellant was taken to the police department.
Appellant was charged with one count of unlawful possession of
cocaine, in violation
of D.C. Code § 48-904.01 (d), and one count of unlawful possession
with intent to distribute marijuana, in violation of D.C. Code §
48-904.01 (a)(1). However, because the forensic chemist who prepared
the Drug Enforcement Administration's (DEA) laboratory report was
unavailable to testify at trial, the government amended the charges to
one count of attempted possession of cocaine and one count of
attempted possession of marijuana. Defense counsel filed a motion to
suppress the statements under the Fourth and Fifth Amendments alleging
that the incriminating statements were obtained during the course of
an unlawful arrest and in violation of appellant's Miranda*fn2
After hearing testimony from Officer Reisinger, the court denied appellant's motion to suppress appellant's two statements because appellant was "not specifically interrogated" and "it was legitimate for the officer, as he testified, [to be] concerned about his safety [and] to make sure that the item that he was going to attempt to retrieve from the sock area from the bulge in the sock did not contain something that could injure him." The judge found appellant guilty of attempted possession of marijuana, relying on the "unrebutted" and "very credible" testimony of Officer Reisinger, the fact that appellant had concealed the item which "is consistent with the items being illegal," and the "very large amount of cash" found on appellant. The trial court also credited that appellant made the statements that the substance in the sock was marijuana and that he had purchased it for his girlfriend, which the court deemed sufficient evidence to establish that appellant was guilty of attempted possession of marijuana.*fn3 Due to the lack of evidence regarding the substance suspected to be cocaine, the court acquitted appellant of that count. Appellant filed this timely notice of appeal.
II. Suppression of Physical Evidence
Appellant contends that the trial court erred in denying his motion to suppress evidence because the arrest, which led to Officer Reisinger searching him and finding the marijuana, was made without probable cause. Appellant maintains that the officer lacked probable cause because he unreasonably relied upon incompetent evidence to formulate his belief that the Lidar III device accurately recorded that appellant was driving thirty miles above the legal speed limit. Relatedly, appellant claims that the government violated D.C. Superior Court Rule of Criminal Procedure 16 in not providing to defense counsel certain documents "material to the preparation of the defendant's defense," which "relat[ed] to Reisinger's testimony on his preparation for use of the Lidar III and . . . regarding proper training, use and employment of the [L]idar."
A. Probable Causeto Arrest
On appeal from a denial of a motion to suppress, our scope of review is limited. See Womack v. United States, 673 A.2d 603, 607 (D.C. 1996). We review the trial court's legal conclusions de novo and defer to the trial court's findings of fact unless they are clearly erroneous. See Ornelas v. United States, 517 U.S. 680, 699 (D.C. 1986). Whether the police had probable cause on a given set of facts is a question of law we review de novo. See id. We will not disturb the trial judge's factual findings unless they are clearly erroneous or not supported by the record, and we will draw all reasonable inferences in favor of sustaining the trial court's ruling. See Blackmon v. United States, 835 A.2d 1070, 1073 (D.C. 2003).
A police officer conducting a traffic stop must have "a reasonable, articulable suspicion that he was witnessing a traffic violation" before he may stop a vehicle and its occupants. Duckett v. United States, 886 A.2d 548, 551 (D.C. 2005). Once the stop has been made, the officer may make an arrest only if there is probable cause. "The classical formulation is that '[p]robable cause exists where 'the facts and circumstances within [the officers'] knowledge of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.'" Perkins v. United States, 936 A.2d 303, 306 (D.C. 2007) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). Probable cause is ...