Flores v. United States

769 A.2d 126, 2000 WL 33216022
CourtDistrict of Columbia Court of Appeals
DecidedOctober 26, 2000
Docket97-CF-399, 97-CF-548
StatusPublished
Cited by8 cases

This text of 769 A.2d 126 (Flores v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flores v. United States, 769 A.2d 126, 2000 WL 33216022 (D.C. 2000).

Opinions

KING, Senior Judge:

Appellants Jose M. Flores (“Flores”) and Jose T. Marino (“Marino”) were found guilty by a jury of unlawful possession with intent to distribute a controlled substance, in violation of D.C.Code § 33-541(a)(1) (1996). Appellant Marino argues (1) that the arresting officers did not have reasonable articulable suspicion to conduct an investigative stop; and (2) alternatively, that the officers’ actions constituted an unwarranted extension of the investigative stop. Appellant Flores argues that the trial court abused its discretion by permitting the government to cross-examine him as to his use of crack/cocaine, and by allowing the government to contradict his subsequent denial with his positive drug test results. We affirm.

On April 18, 1996, at approximately 8:15 p.m., Investigator William Witkowski and Detective Jose Solloso were driving in an unmarked police car in the 1400 block of Park Road when they noticed appellants Marino and Flores standing next to each other on a nearby sidewalk. Witkowski and Solloso were about twenty feet away when they noticed “Marino hand Flores a green cylinder like tube, a ChapStick container.” The officers pulled their vehicle up to the two men and were about eight to ten feet away when Flores noticed the car and the officers and dropped the container to the ground. Marino then placed his foot on top of the ChapStick container. The plainclothed officers exited the car, identified themselves, and detained Marino and Flores. Detective Solloso then “backed up Marino a couple of steps and reached down and recovered the ChapSt-ick container from under his foot.” Inside the container were ten white rock-like substances, later identified as cocaine.

Investigator Witkowski testified that he had participated in more than one thousand drug arrests, at least fifty of which occurred around the 1400 block of Park Road, an area “notorious for the sale of crack/cocaine.” Furthermore, Witkowski testified that ChapStick containers recently have become a common means of packaging cocaine.

In addition to the evidence revealed at the suppression hearing, the government presented evidence at trial that Flores carried $60 and two pagers, and Marino possessed $346 and one pager. Appellants were convicted by a jury of unlawful possession with intent to distribute a controlled substance, in violation of D.C.Code § 33-541(a)(l). These appeals followed.

I. Marino’s Appeal

Prior to trial, Marino filed a motion to suppress the cocaine, arguing that the police did not have evidence sufficient to justify the initial stop. The trial court denied the motion.

In this appeal, Marino presents two arguments in support of his contention that the seizure was unlawful. First, he argues that the officers did not have reasonable articulable suspicion to conduct an investí-[129]*129gative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Second, Marino maintains that Officer Sol-loso’s removal of his foot from the ChapSt-ick container constituted an unwarranted extension of the Terry stop. Accordingly, Marino contends that the trial court erred in denying his motion to suppress the cocaine evidence found in the ChapStick container.

In support of his contention that the officers did not have reasonable articulable suspicion to conduct a Teny stop, Marino argues that “the only reason for [his] seizure and subsequent arrest was the fact that he and [Flores] were present in an area that is know for crack cocaine.” On this record, Marino’s argument is unavailing.

In reviewing the trial court’s denial of a motion to suppress, the scope of our review is limited. Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991). We must defer to the trial court’s findings of fact. Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989). We view the evidence in the light most favorable to the prevailing party, and “all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling.” Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc) (citations omitted). Whether the evidence establishes that there was a reasonable articulable suspicion is reviewed de novo. Brown, supra, 590 A.2d at 1020.

The police may briefly detain a person for an investigatory or Teny stop, even if they lack probable cause, if the officers have a reasonable suspicion based on specific and articulable facts that criminal activity may be occurring. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, supra, 392 U.S. at 30, 88 S.Ct. 1868). In evaluating the reasonableness of an officer’s suspicions, a reviewing court must consider the “totality of the circumstances-the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). One of the circumstances properly considered is the “ ‘demonstrated expertise of police officers in recognizing distinctive packaging used in the drug trade for smaller quantities,’ especially when there [is] evidence ‘describing the arresting officer’s experience with the particular packaging.’ ” In re J.D.R., 637 A.2d 849, 851 (D.C.1994) (quoting United States v. Prandy Binett, 302 U.S.App.D.C. 1, 5, 995 F.2d 1069, 1073 (1993), cert. denied, 510 U.S. 1167, 114 S.Ct. 1196, 127 L.Ed.2d 545 (1994)).

Contrary to Marino’s assertion, the trial court did not rely solely on the drug trafficking reputation of the 1400 block of Park Road in concluding that the stop was reasonable. The trial court based its conclusion that the stop was reasonable in light of the totality of the circumstances, including: (1) the officers’ experience in recognizing that ChapStick containers were commonly used to package cocaine; (2) the transfer of the ChapStick container, a personal item not normally subject to sharing; (3) Flores’ surprised reaction and immediate disposal of the ChapStick container upon seeing the officers; and (4) Marino’s attempt to covertly repossess or hide the ChapStick by placing his foot on top of the container. Certainly, these facts are sufficient to warrant a reasonable person to suspect that Flores and Marino were engaged in a drug transaction.

Marino next argues that the officer’s conduct in backing him up so as to remove his foot from atop the ChapStick container constituted an unwarranted extension of the Terry stop. Based on the general principles established in Teny, we hold that the officer’s removal of Marino’s foot from the ChapStick container was a [130]*130reasonable investigatory procedure for resolving the suspicious circumstances that initially justified the stop.

A Terry

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Flores v. United States
769 A.2d 126 (District of Columbia Court of Appeals, 2000)

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769 A.2d 126, 2000 WL 33216022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-v-united-states-dc-2000.