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United States v. Nash

Court of Appeals of Columbia District

September 25, 2014

UNITED STATES, APPELLANT,
v.
WILLIAM A. NASH, JR. and DAVID LEWIS, APPELLEES

Argued May 8, 2014.

Page 158

Appeals from the Superior Court of the District of Columbia. (CF2-3756-13 & CF2-10190-13). (Hon. Robert I. Richter, Trial Judge).

David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and Christian Natiello, Assistant United States Attorneys, were on the brief, for appellant.

Cecily E. Baskir for appellee William A. Nash, Jr.

Christine A. Monta, with whom James W. Klein and Samia Fam were on the brief, for appellee David Lewis.

Before FISHER and MCLEESE, Associate Judges, and PRYOR, Senior Judge.

OPINION

Page 159

McLeese, Associate Judge:

These consolidated appeals arise from two separate incidents but present a common legal question: in what circumstances may police officers search a car for additional evidence after seeing an open container of alcohol in the car. In each case, the trial court suppressed evidence recovered in such a search, holding that the search was unlawful under the Fourth Amendment. The United States seeks interlocutory review of the trial court's suppression orders. D.C. Code § 23-104 (a)(1) (2012 Repl.). We affirm the suppression ruling in appellee Nash's case and reverse the suppression ruling in appellee Lewis's case.

I.

A.

The evidence presented at the suppression hearing in Mr. Nash's case indicated the following. At approximately 1 a.m. on March 10, 2013, Metropolitan Police Department (" MPD" ) Officers Winston and Parrish were driving on Florida Avenue N.W. when they saw Mr. Nash. Mr. Nash was holding a red-and-silver can as he stood between the driver-side door of a car and the car itself. Because the officers believed that Mr. Nash was holding an open container of alcohol, they stopped, got out of their vehicle, and walked toward Mr. Nash. After looking in the direction of the officers, Mr. Nash went into his car. When he emerged, he was holding a clear water bottle instead of the can. He shut the car door and walked around the car. When Officer Winston asked Mr. Nash what he was doing with the bottle, Mr. Nash replied that he was getting ready to throw it away. Officer Parrish did not see a trash can nearby.

Meanwhile, Officer Parrish looked into the car and saw the red-and-silver can in the car's center console. The can was open, and Officer Parrish recognized it as being an approximately twenty-ounce can of Four Loko, which is an alcoholic beverage. Officer Parrish opened the car and confirmed by smell that the can contained alcohol. The can was less than half full. Officer Parrish removed the can from the car. After Officer Parrish told Officer Winston what he had found, Officer Winston placed Mr. Nash under arrest for possession of an open container of alcohol (" POCA" ), in violation of D.C. Code § 25-1001 (a)(2) (2012 Repl.).

Officer Parrish went back into the car to search for additional alcohol. During the search, he noticed a clear plastic first-aid box sitting on the front passenger-side seat. He could see a handgun inside the box. The officers also found five nine-millimeter rounds of ammunition in the trunk.

The trial court granted Mr. Nash's motion to suppress evidence of the gun and the ammunition. The trial court concluded that the officers did not have reasonable, articulable suspicion to search the car for additional evidence of POCA, because Mr. Nash's possession of the Four Loko can did not logically suggest that the car contained additional alcohol or other evidence of any crime. The trial court also pointed out that there was no evidence that Mr. Nash was intoxicated or smelled of alcohol.

B.

The evidence presented at the suppression hearing in Mr. Lewis's case indicated the following. At approximately 2 a.m. on June 16, 2013, United States Park Police Officer Alto was driving on Ingraham Street N.W. when he saw a car on the road with a non-functioning headlight. While following the car, Officer Alto determined that the car was registered to David Lewis, who had a suspended license. The car's

Page 160

driver drove a couple of blocks and pulled over into a parking spot, after which the driver got out of the car. Officer Alto pulled up and spoke to the driver, who was appellee Lewis. When Officer Alto asked Mr. Lewis for his license and registration, Mr. Lewis opened the car door, enabling Officer Alto to see an open bottle of Patron tequila in the center-console cup holder. The bottle was half full. Mr. Lewis's passenger, Brittney Gibbs, said that the bottle was hers. Officer Alto told Ms. Gibbs to bring him the bottle, which Ms. Gibbs did by walking around the car and handing the bottle to Officer Alto.

After confirming that Mr. Lewis's license had been suspended, Officer Alto put Mr. Lewis in handcuffs. The officers did not smell any alcohol coming from Mr. Lewis or Ms. Gibbs. A second officer, Officer Brown, arrived on the scene, and Officer Alto asked her to search the car for additional open containers of alcohol. In Officer Alto's experience, " the majority of times when there is a tequila or liquor type of beverage in a vehicle, they'll be drinking through cups." Similarly, in Officer Brown's experience, people rarely drink directly out of Patron bottles and instead use cups. The officers decided to search the car, both for additional evidence of POCA and because it was possible that Ms. Gibbs could have been permitted to drive the car away afterward, and the officers therefore wanted to make sure that there was no additional alcohol or other contraband in the vehicle.

At the time Officer Brown arrived, Ms. Gibbs was outside the vehicle, saying that she needed to go to the bathroom. Officer Brown told Ms. Gibbs that she could not leave. Officer Brown opened the driver-side door and smelled marijuana. Officer Brown found a cup containing liquid that smelled like alcohol on the floor of the front passenger seat, and Ms. Gibbs said that the cup was hers. Officer Brown also found a loaded handgun and a box of ammunition in a bag in the back seat. Finally, Officer Brown found a cigarette containing a green plant-like substance in the passenger-side door.

According to Officer Brown, Ms. Gibbs was not under arrest at the time the search of the car began. Once Officer Brown found the gun, she placed Ms. Gibbs in handcuffs. A subsequent search ...


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