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Morgan v. United States

Court of Appeals of Columbia District

August 6, 2015

EDWARD MORGAN, JR., APPELLANT,
v.
UNITED STATES, APPELLEE

Argued December 9, 2014

Appeal from the Superior Court of the District of Columbia. (CMD-11110-13). (Hon. J. Michael Ryan, Trial Judge).

Stephanie L. Johnson for appellant.

Stephen F. Rickard, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman and Lindsey Merikas, Assistant United States Attorneys, were on the brief, for appellee.

Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges. OPINION by Associate Judge MCLEESE. Dissenting opinion by Associate Judge EASTERLY at page 14.

OPINION

Mcleese, Associate Judge

Appellant Edward Morgan, Jr. challenges his conviction for possession of cocaine. Mr. Morgan argues that the trial

Page 1236

court erroneously denied his motion to suppress evidence. We affirm.

I.

The United States's evidence at the suppression hearing indicated the following. On June 29, 2013, at approximately 9:00 p.m., a citizen called the police to report potential drug crimes occurring near the citizen's residence. A fellow officer communicated the citizen's contact information and location to Sergeant James Boteler and Officer Derek Tarr, who went to the citizen's apartment building and spoke with the citizen. The citizen, who worked for the Department of Homeland Security, told the officers that the citizen on more than one occasion had seen what the citizen believed to be hand-to-hand drug transactions near the citizen's apartment. The citizen further explained that, a few minutes before calling the police, the citizen saw a man on a bicycle exchange small objects with another man, after which the two parted ways. During the exchange, the man on the bicycle " reach[ed] into the back of [his] pants and pull[ed] something out [and] put it back in." The citizen described the man as a short black male with dreadlocks, riding a red bicycle. The citizen also described the color of the man's shirt; Sergeant Boteler at various points indicated that the citizen described the man's shirt as " blue gray," " purplish gray, or purple slash gray," or " purple and grayish."

The officers drove around the area looking for the suspect. About ten to fifteen minutes later, the citizen called Sergeant Boteler and said that the man on the bicycle was in the 1500 block of P Street, NW. Within about thirty seconds, the officers arrived at that location and saw Mr. Morgan, who was riding a red bicycle and matched the description of the suspect. The officers got out of their car, and Sergeant Boteler asked Mr. Morgan if they could talk to him for a second. Sergeant Boteler told Mr. Morgan that he matched the description of someone who may have been involved in a drug transaction and asked Mr. Morgan if he had any illegal drugs on him. Mr. Morgan denied that he did but said that he did have " some K-2 stuff." Sergeant Boteler knew that " K-2" is a common term for synthetic cannabinoids and that possession of certain synthetic cannabinoids has been illegal under federal law since 2012. Mr. Morgan told Sergeant Boteler that Sergeant Boteler could search him but that he did not have anything on him.

One of the officers took the K-2 out of Mr. Morgan's pocket. Sergeant Boteler ran his hands around Mr. Morgan's waistband and felt an object below Mr. Morgan's waistband, underneath the back of the pants. At this point, one of the officers handcuffed Mr. Morgan. After officers tried to persuade Mr. Morgan to remove the drugs from his person, Mr. Morgan reached into the back of his pants, took out a substantial amount of crack cocaine, and dropped it on the ground.

Mr. Morgan called his wife as a witness at the suppression hearing. She testified that on the date of the arrest she saw Mr. Morgan sitting in a police car, wearing a blue t-shirt and a hat.

At the close of the suppression hearing, Mr. Morgan argued that all of the evidence should be suppressed, because the officers unlawfully stopped him in violation of the Fourth Amendment. Concluding that the stop was justified by reasonable articulable suspicion, the trial court denied the motion to suppress. The trial court then found Mr. Morgan guilty after a stipulated trial.

II.

Mr. Morgan argues that the trial court erred in finding that the officers had reasonable articulable suspicion to conduct a

Page 1237

Terry stop. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (officers may conduct investigatory stop if they reasonably believe " criminal activity may ...


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