UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No.



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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.

xxxxxxxxxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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BRIEF FOR APPELLANT MICHAEL A. xxxxxx



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JURISDICTION

The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court (entered February 18, 1994) having been filed on February 18, 1994, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the trial judge erred in denying appellant's motion to suppress evidence seized as a result of a pretextual traffic stop, where the stop was not objectively reasonable because, inter alia, it was made in violation of police regulations prohibiting nonuniformed officers in unmarked vehicles from taking traffic enforcement action.

II. Whether the trial judge erred in refusing to permit appellant to put before the jury, either through an expert witness or through a theory of defense jury instruction, the fact that under the law of search and seizure, at the time of the stop of the car in which appellant was riding, the police did not have legal authority to search the car, where that information went to the heart of the officers' credibility by providing them with a motive to claim that they saw appellant holding drugs in plain view inside the car.

III. Whether the trial judge erred in entering judgment against appellant on Count One (possession with intent to distribute cocaine base) where that offense is a lesser included offense of Count Two (possession with intent to distribute cocaine base within 1,000 feet of a school).

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On July 8, 1993, a federal grand jury sitting in the District of Columbia returned a four-count indictment charging Mr. Michael A. xxxxxx and Mr. James L. xxxxxx with possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii), with possession with intent to distribute cocaine base within 1,000 feet of a school in violation of 21 U.S.C. 860(a), with possession of marijuana in violation of 21 U.S.C. 844(a), and with possession of phencyclidine in violation of 21 U.S.C. 844(a). A. 18-20. (1)

On October 20, 1993, the district court (Hon. Norma Holloway Johnson) held an evidentiary hearing on appellant's motion to suppress all evidence seized as a result of an allegedly illegal stop and seizure by the police. At the conclusion of the suppression hearing, the court orally denied the motion (Tr. 137-139).

A jury trial commenced before Judge Johnson the next day. On October 28, 1993, the jury returned a verdict finding appellant guilty on all counts. On January 26, 1994, Mr. xxxxxx was sentenced to 168 months imprisonment on each of Counts One and Two, and one year imprisonment on each of Counts Three and Four, all terms to be served concurrently with Count Two; five years of supervised release on Count One, ten years of supervised release on Count Two, and one year of supervised release on each of Counts Three and Four, all terms to be served concurrently with Count Two; a fine of $8,800 on each count, all fines to be concurrent with Count Two;

and a special assessment of $150. A. 27-32. Mr. xxxxxx filed a timely notice of appeal. A. 33.

B. Statement of Facts

On June 10, 1993, at 8:25 p.m., appellant was seated in the passenger seat of a late model Nissan Pathfinder bearing temporary tags as the driver, Mr. Brown, paused for "longer than necessary" (Tr. 51) at a stop sign at the intersection of 37th Place and Ely Place, Southeast. This case exists because the sight of two young black males in those circumstances aroused the suspicion of an unmarked car full of plainclothes vice officers patrolling for narcotics violations. Turning around to stop the Pathfinder to investigate, the officers claim to have seen it commit two traffic violations before they stopped it a few blocks away. That stop led to the discovery of the drugs at issue in this case.

1. The Suppression Hearing

The government called two witnesses at the suppression hearing to testify concerning the stop of the Pathfinder, Officer Efrain Soto, Jr., and Officer Homer Littlejohn, both of the Sixth District Vice Unit. Appellant also called Officer Littlejohn as a defense witness. The evidence was as follows:

On June 10, 1993, at 8:25 p.m., Officers Soto and Littlejohn and two or three other plainclothes officers were patrolling a "high drug area" (Tr. 117) in an unmarked car (Tr. 10). The objective of those officers, along with those in a second unmarked car with whom they were working (Tr. 10, 61-62), was to "find narcotics activity going on" (Tr. 22).

As the officers' car turned left from Ely Place onto 37th Place, Officers Soto and Littlejohn noticed a recent model Pathfinder with temporary tags stopped at the stop sign on 37th Place where that street deadends into a "T"-intersection with Ely Place (Tr. 11, 26-27). The two occupants were looking down at their lap areas (Tr. 11, 113). (2) Officer Soto testified that there was at least one car behind the Pathfinder (Tr. 11, 33, 61). Officer Littlejohn testified that there were no vehicles waiting behind the Pathfinder (Tr. 114, 115).

As the unmarked car completed its left turn and headed up 37th Place, Officers Soto and Littlejohn continued to watch the Pathfinder (Tr. 30-31, 34, 112-114). According to Officer Soto, the Pathfinder was stopped at the intersection, parallel with the stop sign, for more than twenty seconds (Tr. 11, 52). (3) At that point, Officer Soto decided to investigate why the Pathfinder was stopped so long at the intersection (Tr. 11, 51, 65). The driver, Investigator Tony Howard, was already in the process of making a U-turn about a quarter of a block up 37th Place when Officer Soto asked him to turn the car around and get behind the Pathfinder (Tr. 11, 54).

Officer Soto testified that as they were making the U-turn he saw the Pathfinder turn right without signalling and drive away towards Minnesota Avenue at what he described as "an unreasonable speed" (Tr. 11-12). (4) At that time it was Officer Soto's intention to pull the Pathfinder over not only to ask the driver why he was stopped so long at the stop sign but also to warn him not to speed (Tr. 72-73). He did not intend to issue the driver a ticket for any traffic violation (Id.): "I'm a vice investigator; I'm not out there to give tickets" (Tr. 72).

The officers completed their U-turn and followed the Pathfinder right onto Ely Place where they caught up to it as it was stopped at the red light at Minnesota Avenue (Tr. 12). At the stoplight, there were several cars in front of the Pathfinder, two cars behind it and several cars alongside it to the right (Tr. 11-12, 18-19, 35-36).

Investigator Howard pulled the unmarked car up alongside the driver's side of the Pathfinder, facing into and obstructing oncoming traffic, and pinning the Pathfinder in on all sides (Tr. 13, 35-38). Officer Soto immediately exited his car and walked towards the driver's side of the Pathfinder, identifying himself as a police officer and ordering the driver to pull over to the right (Tr. 13-14). Realizing as he reached the Pathfinder that there was nowhere to go on the right, Officer Soto ordered the driver to put the car in park (Tr. 14). Officer Soto testified that he then looked through the driver's window and saw the passenger, Mr. xxxxxx, holding a clear plastic bag of what appeared to be crack cocaine in each hand, one by his right knee and one by his left knee (Tr. 13-15, 42-43). Officer Littlejohn testified that he had approached the driver's door of the Pathfinder a few steps behind Officer Soto and, standing to Officer Soto's right, saw appellant displaying a bag of cocaine to Mr. Brown in his right hand while appellant's left hand was resting on his lap (Tr. 89-90, 92-94, 99, 102-103). (5)

Officer Soto yelled "CSA" to alert the other officers that he had witnessed a Controlled Substances Act violation (Tr. 74-75) and reached for the door to open it, at which point the passenger said to the driver "pull off, pull off" (Tr. 14, 84). The passenger then pulled the cover off of the power window control panel on the passenger door and put the plastic bag he had in his right hand inside that compartment (Tr. 14-15). Officer Soto testified that he "dove" into the car, across Mr. Brown, grabbed the plastic bag from Mr. xxxxxx's left hand, (6) and simultaneously grabbed Mr. xxxxxx around the upper body (Tr. 15, 43-45). At that point, multiple officers came to Officer Soto's assistance (Tr. 15) (7) and Mr. xxxxxx and Mr. Brown were placed under arrest (Tr. 15, 84). A search of the Pathfinder at the scene resulted in the seizure of a plastic bag of crack cocaine and a loose rock of crack cocaine from the window control compartment in the passenger door and two tinfoils of marijuana laced with PCP from the console between the driver and passenger seats (Tr. 16, 84-86).

There was inconsistent testimony from Officers Soto and Littlejohn as to why the stop was made. Officer Littlejohn made no attempt to claim that the Pathfinder was stopped because it had committed any traffic violation (Tr. 116):

Q Officer Littlejohn, what was the real reason that you and/or your compatriots in the white Corsica followed up on the Nissan Pathfinder after you made your U-turn?



. . .



THE WITNESS: Reasonable suspicion.



BY MR. CAMENISCH:



Q Reasonable suspicion?



A Yes.



Q And the reasonable suspicion was that there were drugs; is that correct?. . .



A Sir, they were leaving a high drug area. We did not know they had drugs in that vehicle at that time, just had a reasonable suspicion as to their actions as to why they were stopped at the stop sign for so long.Officer Soto, on the other hand, while acknowledging that he pulls drivers over for traffic violations "not very often at all" (Tr. 78), repeatedly claimed that the Pathfinder was stopped in order to investigate and warn the driver concerning traffic infractions (Tr. 17, 51, 72-73). Officer Soto specifically denied basing the stop on a racial profile (Tr. 75-77). Yet the following exchange took place between Mr. Brown's counsel and Officer Soto on cross-examination (Tr. 66-67):

Q . . . [I]sn't it true that your decision to stop that Pathfinder was because you believed that two young black men in a Pathfinder with temporary tags were suspicious; isn't that true?



A It's true that the occupants were suspicious, yes. That's what I believed.



Q And that the occupants of that car were --



THE COURT: Now, you didn't answer her question, and I want you to answer her question.



THE WITNESS: Yes, ma'am. She asked is it true that the two young black occupants of the vehicle were suspicious. I have a problem with the question in the way she asked the question of me.





THE COURT: Well, I am going to ask the reporter to read that question back to you and I want you to answer that question appropriately, all right.



(The reporter read back the record.)



THE WITNESS: No, I can't answer that. No, that's not true.



MS. ROBERTS: May the record reflect that the witness paused for what was approximately 45 seconds before responding?



THE COURT: Very well.

MR. YETTE: Your Honor, I would object to the 45 seconds. I believe it was a pause but not that long.



MS. ROBERTS: I won't quibble on the length of time.



THE COURT: No question about it, there was a lengthy pause, and after my asking him several times to think about the question.



Despite noting that there were "certain differences between Officer Littlejohn and Officer Soto," and despite her "concern[] ... with the manner in which [Officer Soto] responded" to the question from Mr. Brown's counsel concerning the reason for the stop, Judge Johnson concluded that "the police conduct was appropriate" and denied the motion to suppress (Tr. 138-139):

There may be different ways in which one can interpret it but, truly, the facts of the stop were not controverted. There was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop. It may not be what some of us believe should be done, or when it should be done, or how it should be done, but the facts stand uncontroverted and the Court is going to accept the testimony of Officer Soto.

2. The Trial

At the trial, Officers Soto and Littlejohn gave testimony similar to that given at the suppression hearing (Tr. 172, 285). The government also called several other officers who participated in the stop and search of the vehicle (Tr. 260, 343, 381), the evidence technician who measured the distance from the stop to the elementary school (Tr. 367), the DEA chemist who analyzed the drugs (Tr. 406), an expert on narcotics packaging and street sales practices (Tr. 417), and the salesman who sold Mr. Brown the Pathfinder (Tr. 252).

At the close of the government's case, counsel for Mr. xxxxxx renewed his motion to suppress as part of his motion for judgment of acquittal (Tr. 439-440).In his defense case, counsel for Mr. xxxxxx called three of the officers involved in the stop and search of the Pathfinder (Tr. 455, 485, 515), an employee of the Nissan dealership where Mr. Brown purchased the Pathfinder (Tr. 579), and Mr. xxxxxx himself (Tr. 545).

Mr. xxxxxx testified that the Pathfinder was paused at the stop sign at 37th and Ely Place because Mr. Brown was waiting for traffic on Ely to clear and that they were stopped no longer than fifteen seconds (Tr. 550). The Pathfinder did not speed as it turned right and traveled to the stoplight at Minnesota Avenue (Tr. 550, 572). Mr. xxxxxx denied having drugs in his hands (Tr. 570) or seeing drugs in the car (Tr. 572). He did not even learn that he was being charged with a drug offense until he was given a copy of the police report in court the next day (Id.). The Pathfinder was not searched at the scene (Tr. 554-555), but was driven away by Officer Soto and another officer within thirty seconds after Mr. xxxxxx and Mr. Brown were removed from the car (Tr. 553-554, 576). A uniformed officer at the Sixth District station told Mr. xxxxxx that "if any drugs are found in [the vehicle], we can seize the drugs and confiscate the truck" (Tr. 573).

Defendant Brown's Exhibit 2, the PD-81 property report for the currency seized from the defendants (A. 21-23), was received into evidence at the close of Mr. Brown's defense case (Tr. 630). That report, prepared by Officer Howard (Tr. 403-405), stated the facts of the seizure in part as follows (A. 23) (emphasis added):

On 6-10-93 members of the Sixth District Vice unit conducted a narcotic investigation in the area of 3700 Blk. Ely Pl.S.E., further investigation revealed both Defs. had approximately 100 grams of crack cocaine in a vehicle. (8) Although finding that "there were a lot of inconsistencies in the testimony of the police officers," (Tr. 632), Judge Johnson denied the defendants' motions for judgment of acquittal at the close of all of the evidence (Tr. 635-636).

3. Preclusion of Mr. xxxxxx's Theory of Defense

During the trial, Mr. xxxxxx's counsel made an unsuccessful attempt to present expert testimony on the law of search and seizure. The testimony was specifically proffered in support of Mr. xxxxxx's theory of defense in order to demonstrate the officers' motive to falsely state that they saw Mr. xxxxxx holding drugs inside the car (Tr. 602-604):

I was going to qualify [Mr. Glennan Threatt] as an expert witness and explain to the jury in legal terms exactly what in a situation such as this case what the police officers would have to see in order to [be] able to make a legal arrest in this particular case or if they didn't see anything, what would not amount to a legal arrest. And that would go to the motive of seeing something or not seeing something, Your Honor. The trial court ruled that it would not allow any witness to testify as to what the law is: "I will instruct the jury as to the law" (Tr. 604). After the close of the evidence, Mr. xxxxxx's counsel submitted a proposed "theory of the case" jury instruction as follows (A. 24-26) (emphasis added):

Defendant Michael Alvin xxxxxx's theory of this case is that the police officers pursued the Nissan Pathfinder with the intent to search the vehicle based upon their subjective beliefs that vehicles of that type are used by persons involved with illegal drugs. You are hereby instructed that such subjective beliefs do not provide a legal basis for the arrest of a person or for a search of a vehicle. Defendant xxxxxx denies that he ever held any of the illegal drugs introduced into evidence in this case. Defendant xxxxxx's theory is that the police officers have claimed that they saw illegal drugs in his hand or hands to provide a legal basis for the arrest and search of the vehicle. Defendant Michael Alvin xxxxxx maintains that the alleged illegal drugs introduced into evidence by the Government were recovered by the police officers from a closed compartment in the Nissan Pathfinder and that he neither knew of the presence of the illegal drugs in the vehicle nor had any intent to exercise dominion and control over the illegal drugs. You must not convict defendant Michael Alvin xxxxxx of any charged offense involving illegal drugs unless you find that the Government has proven beyond a reasonable doubt that he had knowledge that the illegal drugs involved in the charged offense were in the vehicle and that he had the intent to exercise dominion and control over the illegal drugs involved in the charge[d] offense.

The Court postponed ruling on this proposed instruction until after closing arguments, noting that counsel for Mr. xxxxxx would "have a right to [argue the proposed theory of defense], based upon the evidence that has been presented" (Tr. 656-657). At the instruction conference following the closing arguments, counsel for the United States objected to the first two sentences of the proposed instruction as not supported by the evidence (Tr. 711-712). The trial court stated that counsel for Mr. xxxxxx could have until after the luncheon recess to locate authority for the legal proposition underlined above, stating first that "I know you could find something from the Supreme Court to support such a proposition," (Tr. 715), but then suggesting that counsel might have difficulty finding authority for the adjective "subjective" (Id.).

After the luncheon recess the trial court immediately called in the jury and proceeded to give its instructions on the law, omitting the first two sentences of Mr. xxxxxx's theory of the case instruction without having ruled that it would do so (Tr. 720, 742-743). At the conclusion of the instructions, counsel for Mr. xxxxxx approached the bench to object to the omission and proffer the cases he had located over the noon recess, stating that the jury had been brought into the courtroom before he had had an opportunity to bring the cases to the court's attention (Tr. 745). Judge Johnson refused counsel's request to put the cases in the record and ruled that the instruction would stand as given (Id.).

4. The Lesser Included Offense Judgment and Sentence

In Mr. xxxxxx's Presentence Investigation Report, submitted to this Court under seal with this brief, Probation Officer W. Bryan McGill included the following as a footnote to the Count One sentencing analysis:

Pursuant to an Opinion and Order filed on January 22, 1992, under U.S. v. Trevor Dunstand Williams, CR-91-0143 (JHG), the District Court held that the drug trafficking offenses described in 21 U.S.C. 841 are lesser included offenses of 21 U.S.C. 860. The Court found that it does not appear that Congress intended separate punishments for violations of the two statutes. Therefore, the Court may wish to vacate the conviction in this count at the time of sentencing.No mention was made of this issue at the sentencing (1/26/94 Tr. 1-17) and on January 27, 1994, the trial court signed the Judgment in a Criminal Case adjudging Mr. xxxxxx guilty on all four counts and sentencing him on all counts as set forth supra, at pp. 3-4.

SUMMARY OF ARGUMENT

A pretextual stop occurs when the police use a legal justification to make a stop in order to investigate a person for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop. United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir. 1988). "The classic example, presented in this case, occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that the driver is engaged in illegal drug activity." Id.

There is a split in the circuits with respect to the proper standard for evaluating such a pretextual traffic stop under the Fourth Amendment, with this Court not yet addressing the precise issue. Several circuits have held that an investigative stop is valid so long as the police are doing no more than they are legally permitted and objectively authorized to do -- the so-called "could have" test. See, e.g., United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990), cert. denied, 112 S. Ct. 428 (1991). The better view, adopted by the Tenth and Eleventh Circuits, holds that a pretextual stop is reasonable under the Fourth Amendment only if "a reasonable officer would have made the stop in the absence of [an] invalid purpose." United States v. Smith, 799 F.2d 704, 709 (11th Cir. 1986). This test, which does no more than apply the classic Fourth Amendment standard of reasonableness to the objective circumstances of the stop, is the only one that preserves any meaningful review over discretionary police authority.

In any event, the stop in this case cannot pass either the "could have" or the "would have" test. Because the stop of the Pathfinder was made in blatant violation of the police regulation prohibiting traffic stops by plainclothes officers in unmarked cars, (9) this stop was neither "objectively authorized" nor one that a "reasonable officer would have made" in the absence of an invalid purpose. The fruits of this unreasonable stop should have been suppressed.

The trial court also erred by refusing to give the critical portion of Mr. xxxxxx's theory of defense instruction that would have informed the jurors that the police officers had no legal grounds to search the Pathfinder up until the moment that they claim to have seen Mr. xxxxxx holding drugs inside the car. The court's refusal to give Mr. xxxxxx's requested instruction was reversible error because it was an accurate statement of the law which was not conveyed to the jury elsewhere in the charge and was absolutely central to the jury's evaluation of Mr. xxxxxx's defense that he never held or saw any drugs inside the Pathfinder and that the police must have found the drugs inside the hidden compartment in the passenger door after he was removed from the vehicle. The requested instruction was critical because without an understanding of the legal framework against which the police must operate, the jury could not appreciate the strong motive that Officers Soto and Littlejohn had to falsely state that they saw appellant holding drugs. Finally, at a minimum, this Court must vacate the judgment on Count One (possession with intent to distribute cocaine base) because it is a lesser included offense of Count Two (possession with intent to distribute cocaine base within 1,000 feet of a school) for which Congress did not intend separate punishment. United States v. Williams, 782 F. Supp. 7 (D.D.C. 1992), aff'd without opinion, 6 F.3d 829 (D.C. Cir. 1993).

ARGUMENT

I. THE PRETEXTUAL STOP OF THE PATHFINDER WAS OBJECTIVELY UNREASONABLE UNDER THE FOURTH AMENDMENT.

A. Standard Of Review.

Whether the stop of the Pathfinder was objectively reasonable under the Fourth Amendment is a legal question that is decided by this Court de novo. United States v. Patrick, 959 F.2d 991, 996 n.6 (D.C. Cir. 1992).

B. This Court Should Adopt The Rule That A Pretextual Stop That Would Not Have Been Made By A Reasonable Officer In The Absence Of An Invalid Purpose Is Unreasonable Under The Fourth Amendment.

1. The Split In The Circuits.

There is a split in the Circuits as to the proper test for evaluating whether a traffic stop is invalid when it is made as a pretext to investigate other suspected criminal activity for which the police do not have objectively reasonable grounds to make a seizure. Several Circuits have held that an investigative stop is valid so long as an officer legally could have stopped the car in question because of a suspected traffic violation. See United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994), cert. denied, Order List (Oct. 3, 1994); United States v. Ferguson, 8 F.3d 385, 389-91 (6th Cir. 1993) (en banc), cert. denied, Order List (Oct. 3, 1994); United States v. Hasan El, 5 F.3d 726, 727 (4th Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990), cert. denied, 112 S. Ct. 428 (1991); United States v. Trigg, 878 F.2d 1037, 1039 (7th Cir. 1989), cert. denied, 112 S. Ct. 428 (1991). Cf. United States v. Causey, 834 F.2d 1179 (5th Cir. 1987) (en banc) (pretextual arrest on old warrant). The Tenth and Eleventh Circuits have held, however, that a stop is constitutionally valid only if "under the same circumstances a reasonable officer would have made the stop in the absence of [an] invalid purpose." United States v. Smith, 799 F.2d 704, 709 (11th Cir. 1986); United States v. Valdez, 931 F.2d 1448, 1450-51 (11th Cir. 1991) (applying Smith test); United States

v. Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988) (adopting Smith test). (10)

This Court has never stated the issue in terms of a "could have" or "would have" test. In United States v. Mitchell, 951 F.2d 1291 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 1976 (1992), the Court reaffirmed the fundamental principle that even a minor traffic offense that would not of itself lead to an arrest can provide the basis for an investigative stop. See United States v. Montgomery, 561 F.2d 875, 879-80 (D.C. Cir. 1977). In dealing with the pretext issue, the Mitchell Court merely repeated the well-settled rule that "a court must look to objective circumstances in determining the legitimacy of police conduct under the Fourth Amendment, rather than an officer's state of mind." 951 F.2d at 1295.

This statement in Mitchell is not a rejection of the "would have" test used by the Tenth and Eleventh Circuits: the "would have" test focuses on the conduct of a hypothetical "reasonable officer," not the subjective state of mind of the particular officer who made the stop. See Valdez, 931 F.2d at 1450 (pretext analysis "requires 'an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind") (quoting Maryland v. Macon, 472 U.S. 463, 470-71 (1985)); Guzman, 864 F.2d at 1515 ("objective analysis of the facts and circumstances of a pretextual stop is appropriate, rather than an inquiry into the officer's subjective intent"); Smith, 799 F.2d at 710 (in evaluating Terry stop, proper focus is on "objective reasonableness rather than on subjective intent or theoretical possibility"); Trigg, 878 F.2d at 1040 (listing Guzman and Smith among those cases that employ a purely objective inquiry in evaluating police conduct). Left unanswered in Mitchell was whether a stop that a reasonable officer would not have made in the absence of some collateral motivation is by definition objectively unreasonable under the Fourth Amendment.

Likewise, the Mitchell Court's quotation of the Eighth Circuit's statement in Cummins, 920 F.2d at 501, that an "'otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity,'" 951 F.2d at 1295, was not an adoption of the "could have" test because the Court did not define the limits of an "otherwise valid" stop. The Mitchell Court did not address the question whether a stop is "otherwise valid" merely because it could -- theoretically -- have been made on valid grounds or only if the objective circumstances were such that a reasonable officer would in fact have made the stop on those grounds, in which case any subjective hunches about other criminal activity are obviously irrelevant. (11) It is significant that the Mitchell Court did not cite or rely on the critical holding of Cummins that "[i]t is also our view that the stop remains valid even if the officer would have ignored the traffic violation but for his other purposes." 920 F.2d at 501.

2. The Better Test.

Appellant submits that, while the stop at issue in this case cannot pass Fourth Amendment scrutiny under either of the above tests, see infra, at pp. 25-31, the "reasonable officer would have" standard applied by the Tenth and Eleventh Circuits best serves the interests that the Fourth Amendment is designed to protect while adhering to the fundamental principle, articulated by this Court in Mitchell, 951 F.2d at 1295, that "a court must look to objective circumstances in determining the legitimacy of police conduct under the Fourth Amendment."

Under the "would have" test, the "actual subjective intent" of the officer who made the stop is "immaterial": A pretextual stop is "unreasonable not because the officer secretly hoped to find evidence of a greater offense, but because it [is] clear that an officer would have been uninterested in pursuing the lesser offense absent that hope." Smith, 799 F.2d at 710. By holding that "'the proper basis of concern is not with why the officer deviated from the usual practice in this case but simply that he did deviate,'" Guzman, 864 F.2d at 1517 (quoting 1 W. LaFave, Search and Seizure 1.4(e) at 94 (2d ed. 1987)), this test preserves the requirement of an objective inquiry into Fourth Amendment intrusions and allows for meaningful judicial review of discretionary police action.

The failure of the "could have" test to place any reasonable limits on discretionary police action cuts at the heart of the Fourth Amendment. The Fourth Amendment imposes "a standard of 'reasonableness' upon the exercise of discretion by government officials." Delaware v. Prouse, 440 U.S. 648, 653-54 (1979). Yet the "could have" test insulates, and in fact encourages, police arbitrariness by allowing officers to pick and choose from among the innumerable minor traffic violations they witness every day those that they will enforce based on wholly improper criteria. Such a test is "ripe for abuse." United States v. Harvey, 16 F.3d 109, 112-113 (6th Cir. 1994) (Keith, J., dissenting).

The risk inherent in [sanctioning pretext arrests that would not otherwise be made] is that some police officers will use the pretext of traffic violations or other minor traffic infractions to harass members of groups identified by factors that are totally impermissible as a basis for law enforcement activity -- factors such as race or ethnic origin, or simply appearances that some police officers do not like, such as young men with long hair, heavy jewelry, and flashy clothing. Scopo, 19 F.3d at 786 (Newman, J., concurring in Fourth Amendment holding but noting equal protection limits). There can be little doubt that this risk is real.

As the old adage warns, the more things change, the more they remain the same. In Montgomery, Alabama, on January 26, 1956, police officers arrested and jailed Dr. Martin Luther King, Jr. for allegedly driving thirty miles per hour in a twenty-five mile per hour zone. [citation omitted] Today, everyone readily acknowledges the police officers stopped, arrested, jailed and harassed Dr. King because he was an African-American and because he actively and vigorously sought equal protection and equal treatment for African-Americans.Harvey, 16 F.3d at 114 (Keith, J., dissenting).

Because minor breaches of the traffic code are committed by just about everyone, allowing such a violation to automatically justify any stop -- no matter how pretextual -- is just one step removed from the completely discretionary permit checks disapproved by this Court in United States v. Montgomery, 561 F.2d 875 (D.C. Cir. 1977). That discredited program permitted officers to single out motorists on wholly improper criteria and stop them on the spot. The "could have" test allows officers to single out the very same motorists on the same improper criteria and follow them until the officers catch them in violation of some subsection of the traffic code -- no matter how obscure -- for which no reasonable officer in those circumstances would effect a stop, and then stop them. The Court in Montgomery was concerned that when stops are "left to the officer's discretion,"

there lurks the possibility that assertedly "random" stops will be used to harass where reasonable grounds for suspicion do not exist. The courts have had experience with stops represented as a "random traffic stop" but found to be a pretext for investigation of other matters.

561 F.2d at 884. The same "possibilities for police abuse" that the Montgomery Court found present in the "unchecked power to make stops for asserted 'traffic' purposes," 561 F.2d at 883, are present when the only "check" on that power is that the police must find some violation of the traffic code before making the stop. As a practical matter, any officer who wants to make a stop will have little difficulty coming up with a "valid" ground to do so.

The "would have" test will not tie the hands of officers attempting to enforce our local traffic laws or give official sanction to minor traffic violations. The standard urged by appellant merely recognizes that there are in fact some circumstances under which it is not objectively reasonable to stop a car for a particular traffic violation -- for example, when police regulations prohibit such a stop. By judging an officer's conduct by what would be expected of a "reasonable officer," the test we urge does no more than hold the police to the classic Fourth Amendment test of reasonableness. Any lesser standard will give the courts of this jurisdiction "no effective control over arbitrary or harassing police action." Montgomery, 561 F.2d at 883.

In ruling on the suppression motion, the trial court implied that the court itself did not necessarily consider the officers' actions reasonable, but felt constrained to uphold the stop as long as the officers had witnessed some -- any -- technical traffic violation. Specifically, the court stated that "[the stop] may not be what some of us believe should be done, or when it should be done, or how it should be done," but upheld it because it was a "normal traffic stop" (Tr. 139) (emphasis added). First, of course, a traffic stop by plainclothes officers in an unmarked car, in violation of police regulations, is not a "normal traffic stop." Beyond that, however, the trial court's statements illustrate clearly how a "could have" test for pretext stops "negates any reasonableness inquiry," Harvey, 16 F.3d at 113 (Keith, J., dissenting). A stop that prompts a federal judge to question its "should," "when" and "how," is likely to be the very sort of "unreasonable" stop that is prohibited by the Fourth Amendment. Yet the trial court here mentioned its concerns almost as an aside, apparently feeling powerless to make the kind of reasonableness determination that the Fourth Amendment demands. The test urged by appellant will ensure that courts have meaningful objective review over discretionary police action.

C. The Stop Of The Pathfinder Was Improper Under Any Fourth Amendment Test.

1. The "Could Have" Test.

The "could have" test for evaluating pretextual stops has been summarized as follows: "'[S]o long as the police are doing no more than they are legally permitted and objectively authorized to do, [the resulting stop or] arrest is constitutional.'" Cummins, 920 F.2d at 501 (quoting Trigg, 878 F.2d at 1041) (emphasis added). The Trigg court considered the presence of two factors alone to be determinative of the reasonableness of a pretextual arrest (878 F.2d at 1041) (emphasis added):

First, did the arresting officer have probable cause to believe that the defendant had committed or was committing an offense. Second, was the arresting officer authorized by state and or municipal law to effect a custodial arrest for the particular offense.The stop effected by Officers Soto and Littlejohn cannot pass even this test. While the officers may have had probable cause to believe that the Pathfinder had committed a traffic offense, the stop in this case was not "objectively authorized." Trigg, 878 F.2d at 1041. To the contrary, Metropolitan Police Department regulations governing permissible traffic enforcement action specifically prohibit the stop made in this case:

Only on-duty uniformed members driving marked departmental vehicles or members of the Public Vehicle Enforcement Unit, Traffic Enforcement Branch, shall take enforcement action; except in the case of a violation that is so grave as to pose an immediate threat to the safety of others, in which case members who are off duty, not in uniform, or in unmarked cruisers, may take appropriate enforcement action. Metropolitan Police Department General Order 303.1(A)(2)(a) ("Traffic Enforcement") (effective July 29, 1986) (reproduced in Addendum). (12)

The record reveals that this case is not within the exception for grave safety threats that would "authorize" a traffic stop by plainclothes officers in an unmarked car. Officer Soto testified that, as a vice investigator, he issues tickets only for "reckless driving, something that in my personal view would somehow endanger the safety of anybody who's walking around the street or even the occupants of a vehicle, maybe children or whoever" (Tr. 72). His further testimony that he never intended to issue a ticket to the Pathfinder (Tr. 72-73), makes clear that the Pathfinder's actions were not a grave safety threat.

This is not a case in which the police merely departed from usual police practices. See Trigg, 878 F.2d at 1041 (criticizing that standard as both underinclusive and overinclusive in preventing pretextual arrests). These officers acted in affirmative violation of written departmental orders. The unauthorized action in this case is not the kind of "otherwise valid stop" that this Court spoke of in Mitchell, 951 F.2d at 1295. It goes without saying that an "'otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity.'" Mitchell, 951 F.2d at 1295 (quoting Cummins, 920 F.2d at 501). But to be "otherwise valid," a stop must be more than merely supported by reasonable suspicion. See Trigg, 878 F.2d at 1041 (setting forth two-part test). At a minimum, it must also be objectively authorized by any local regulations governing police conduct. Because the stop of the Pathfinder was specifically prohibited by Metropolitan Police

Department regulations, it cannot pass even the minimal level of scrutiny embodied in the "could have" test.

2. The "Would Have" Test.

The "would have" test asks whether a "reasonable officer" would have made the traffic stop in question absent any invalid motivation. Obviously, no reasonable District of Columbia police officer would stop a motorist in direct violation of Metropolitan Police Department General Orders. By definition, it is "unreasonable" to violate the regulations that govern the conduct of one's public duties. Although this fact alone is enough to show the invalidity of this stop, there are several other circumstances present in this case that demonstrate that the stop of the Pathfinder was not objectively justified.

First, according to Officer Soto, the original decision to make an investigatory stop of the Pathfinder was made based solely on the length of time it was stopped at the stop sign (Tr. 51, 62, 65). It is an objective fact that the vice officers in this case started to make a U-turn to pull the Pathfinder over to inquire about the delay at the stop sign before the alleged failure to signal and speeding occurred (Tr. 62). In Smith, 799 F.2d at 710, the Eleventh Circuit found that the fact that the police pursuit began before the officer observed the defendant's car weaving was part of the "overwhelming objective evidence that [the officer] had no interest in investigating a possible drunk driving charge." No reasonable plainclothes vice officer in the District of Columbia would have been interested in pulling a car over because it was stopped at a stop sign too long absent some hope that it was involved in some greater offense for which the officer had no objective articulable suspicion. (13)

Second, Officer Soto's own testimony demonstrates that, even taking account of the alleged failure to signal and excessive speed violations, no reasonable plainclothes vice officer, patrolling in an unmarked car, would have been interested in stopping a car for those violations absent the same hope. Officer Soto claimed that he merely wanted to stop the driver to ask him why he was stopped at the stop sign so long and to "warn" him not to speed near a school (Tr. 72-73). But it is objectively unreasonable that a undercover vice officer who, by his own testimony, does not take time out from his plainclothes vice duties to issue a traffic ticket unless the violation he witnesses is endangering the public safety would nevertheless take the time to stop a car to issue a "warning" for a minor violation. No reasonable officer would behave in this inconsistent fashion absent a collateral motivation for making the stop.

Third, the manner in which this particular stop was carried out is entirely inconsistent with what a reasonable officer making a traffic stop would do. Even if the decision to stop the Pathfinder was justified, under Terry v. Ohio, 392 U.S. 1, 20 (1968), the Court must also inquire "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." See also Florida v. Royer, 460 U.S. 491, 500 (1983) ("The scope of the detention must be carefully tailored to its underlying justification."). Here, while the underlying justification for the stop was a minor traffic offense, the manner in which the stop was effected was hardly "carefully tailored" to fit that justification. Instead of requesting a marked patrol car to pull the Pathfinder over for a routine warning (which is all Officer Soto testified that he intended to issue), the two carloads of vice officers effected a massive show of force, one car pulling into oncoming traffic to "pin" the Pathfinder in place and nine or ten officers pouring out of their cars and swooping in on the defendants' vehicle -- all in blatant violation of police regulations. This stop cannot stand because the degree of the police intrusion far exceeded its alleged justification -- a minor traffic offense.

In this case, the trial court itself appeared to question whether this stop was what would be expected of a reasonable officer: "[The stop] may not be what some of us believe should be done, or when it should be done, or how it should be done" (Tr. 139). The trial court's instincts were correct. Absent the objectively baseless hunch that the occupants of the Pathfinder were engaged in some greater crime, no reasonable plainclothes vice officer, patrolling undercover in an unmarked car, would have effected this stop for the minor traffic violations allegedly witnessed. Because this stop was not justified by the "objective circumstances," Mitchell, 951 F.2d at 1295, it was unreasonable under the Fourth Amendment and its fruits must be suppressed.

II. THE TRIAL COURT IMPERMISSIBLY REFUSED TO INSTRUCT THE JURY AS TO MR. xxxxxx'S THEORY OF DEFENSE

A. Standard of Review.

The refusal to give an instruction requested by the defendant is reversible error if "'the instruction (1) is substantively correct; (2) was not substantially covered in the charge actually delivered to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense.'" United States v. Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993) (quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981)). Since Mr. xxxxxx's trial counsel timely and distinctly stated his objection to the omission of the first two sentences of his theory of the case instruction as required by Fed. R. Crim. P. 30 (Tr. 745), this issue has been properly preserved for de novo review.

B. The Requested Instruction Was Necessary To Demonstrate The Bias and Motive Of The Officers Who Claimed To See Mr. xxxxxx Holding Drugs And Was Therefore Critical To The Jury's Understanding Of Mr. xxxxxx's Defense.

"The settled law in this circuit is that a defendant is entitled to an instruction on his theory of the case when properly requested by counsel and when the theory is supported by any evidence." United States v. Mathis, 535 F.2d 1303, 1305 (D.C. Cir. 1976). The trial court's refusal to give the first two critical sentences of Mr. xxxxxx's theory of the case instruction requires reversal of his convictions and remand for a new trial.

At trial, Mr. xxxxxx took the stand to deny ever holding or seeing drugs inside the Pathfinder (Tr. 570, 572). His theory of defense was that the drugs must have been found by the police in the hidden compartment of the Pathfinder after he had been removed from the vehicle. Mr. xxxxxx's testimony set up a classic credibility contest between himself and Officers Soto and Littlejohn, who claimed that they saw Mr. xxxxxx holding crack cocaine before they arrested Mr. xxxxxx and searched the vehicle. The officers had a compelling motive to falsely claim that they saw the drugs in Mr. xxxxxx's hands because, absent that, they had no legal basis to search the vehicle. Any admission that they illegally searched a citizen's vehicle would subject them to disciplinary action and possible civil liability. For a jury of laymen to understand this motive, however, it was absolutely essential that they appreciate that, as a matter of law, the officers had no grounds to search the Pathfinder up until the moment that they claimed to see contraband in plain view. Without this understanding of the law of search and seizure, Mr. xxxxxx's theory of defense made little sense.

Because the law of search and seizure was critical to an appreciation of Mr. xxxxxx's defense, he sought to present expert testimony on that subject (Tr. 602-604). When the trial judge refused to allow that testimony, stating that the court would instruct the jury on the law (Tr. 604), counsel submitted a theory of the case instruction that included the following critical passage (A. 24) (emphasis added):

Defendant Michael Alvin xxxxxx's theory of this case is that the police officers pursued the Nissan Pathfinder with the intent to search the vehicle based upon their subjective beliefs that vehicles of that type are used by persons involved with illegal drugs. You are hereby instructed that such subjective beliefs do not provide a legal basis for the arrest of a person or for a search of a vehicle.The court's deletion of these two sentences from Mr. xxxxxx's instruction is reversible error because the instruction as proffered was substantively correct, was not substantially covered elsewhere in the charge, and concerned a critical point in the trial such that the failure to give it seriously impaired Mr. xxxxxx's ability to effectively present his defense. Taylor, 997 F.2d at 1558.Although the court expressed some doubt concerning the authority for the adjective "subjective" in the proposed instruction (Tr. 715), it is clear that the sentence underscored above is an accurate statement of basic Fourth Amendment law for which there is ample legal authority. As discussed supra, at pp. 19-20, the test for Fourth Amendment seizures must be an objective one. Any other standard

would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result which this Court has consistently refused to sanction. [citations omitted]. "If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers and effects,' only in the discretion of the police." Terry v. Ohio, 392 U.S. 1, 22 (1968) (quoting Beck v. Ohio, 379 U.S. 89, 97 (1964)). Here, the only legal basis for the search of the Pathfinder was the alleged sighting of contraband in plain view. Up to that point, the officers did not have objective facts amounting to probable cause to search the car. Because any subjective hunches the officers had concerning criminal drug activity by the occupants of the Pathfinder did not amount to legal grounds to search the Pathfinder, the omitted portion of the proposed instruction is simply a correct statement of black letter law as applied to the facts of this case.

This crucial legal principle was not substantially conveyed to the jury anywhere else in the instructions. The only reference to a "legal angle" on the officers' testimony in the instructions as given was the following: "[Defendant xxxxxx's] theory is that the police officers have claimed that they saw illegal drugs in his hand or hands to provide a legal basis for the arrest and the search of the vehicle" (Tr. 742). This statement provided a "theory" but did not provide the jury with the critical information that gave that theory its logical force -- that, without the alleged plain view sighting, the officers in fact had no legal basis to search. Without such an instruction -- from the court -- the defendant's theory was "just a theory," without any basis in law. The following statement from United States v. Smith, 799 F.2d at 708, applies equally to this case, but would undoubtedly seem counterintuitive to a jury of laymen:

That [the officers'] "hunch" about the appellants proved correct is perhaps a tribute to [their] policem[e]n's intuition, but it is not sufficient to justify, ex post facto, a seizure that was not objectively reasonable at its inception.Having heard the instruction as given, the jurors might well have believed that the officers already had enough suspicion to search the car, even without seeing any drugs. Mr. xxxxxx was entitled to have the court tell the jury that that was not the case. Therefore, while reversal is not required when the substance of the theory of defense is conveyed in the jury instructions as a whole, United States v. Sayan, 968 F.2d 55, 63 (D.C. Cir. 1992), reversal is appropriate here.

Clearly, the omitted portion of the instruction concerned an important point in the trial such that the court's refusal to give it seriously impaired Mr. xxxxxx's ability to effectively present his defense. This case presented a stark credibility contest between Mr. xxxxxx and the police officers. Without the legal tools they needed to understand the officers' bias, the jurors were no doubt left wondering: "Why would the officers have lied?" The answer lies in the limits imposed on police by the Fourth Amendment and the incentives that those limits give police officers to tailor their testimony to the requirements of the law. Mr. xxxxxx was entitled to have the jury told of those incentives. The portion of the instruction that the court refused to give would have informed the jury of what the government cannot deny, but what the jurors would not otherwise have understood: Because any subjective hunches that the officers may have had that the occupants of the Pathfinder were engaged in a drug offense did not provide a legal basis for the search of the car, the alleged sighting of the drugs was absolutely essential to the legality of their actions. This information -- coming from the trial judge -- would have placed the officers' testimony, and Mr. xxxxxx's defense, in a completely different light. (14)

III. THIS COURT MUST VACATE COUNT ONE AS A LESSER INCLUDED OFFENSE OF COUNT TWO

A. Standard of Review.

Because the Presentence Investigation Report "brought to the attention of the court," Fed. R. Crim. P. 52(b), the authority for vacating Count One as a lesser included offense of Count Two, this Court should review this question of law de novo, despite defense counsel's failure to press the issue at sentencing.

B. The Judgment And Sentence On Count One Violate The Double Jeopardy Clause.

Under the Double Jeopardy Clause, a defendant cannot receive multiple punishments for the same offense. Relying on Ball v. United States, 470 U.S. 856 (1985), the court in United States v. Williams, 782 F. Supp. 7 (D.D.C. 1992), aff'd without opinion, 6 F.3d 829 (D.C. Cir. 1993), vacated as unconstitutional a conviction under 21 U.S.C. 841 where the defendant had also been convicted under 21 U.S.C. 860 based upon the same conduct: "The [Ball] Court reasoned that the Double Jeopardy Clause of the Constitution safeguards an individual, inter alia, from multiple punishments for the same offense and that a separate conviction, even apart from any consideration of concurrent sentences, has potential, adverse, collateral consequences."

The United States conceded in Williams that some of the convictions must be vacated. 782 F. Supp. at 8. The court agreed, reasoning as follows (782 F. Supp. at 9):

It is clear that the drug trafficking offenses described in 21 U.S.C. 841 are lesser included offenses of 21 U.S.C. 860, for the only elements of the latter crime are (1) a violation of 21 U.S.C. 841 and (2) within 1000 feet of a school. Moreover, from the plain language of the statute and uncontradicted by the legislative history, it does not appear that Congress intended separate punishments for violations of the two statutes. The "distribution near schools" provision specifically references 21 U.S.C. 841, and sentences for violating 21 U.S.C. 860 are calculated only by increasing the penalties for violations of 21 U.S.C. 841 or 856. Under these circumstances, the Court cannot allow to stand defendants' convictions for the same conduct under both 21 U.S.C. 841 and 21 U.S.C. 860. In United States v. Watson, 788 F. Supp. 22, 25 (D.D.C. 1992), the court likewise noted that, given this Court's decision in United States v. Patrick, 959 F.2d 991, 996 n.5 (D.C. Cir. 1992), that the amount of drugs involved is not an element of the offense of possession with intent to distribute under 21 U.S.C. 841, "serious double jeopardy problems arise if the government prosecutes under both that statute and 21 U.S.C. 860." The Watson Court reasoned that, under Patrick, "the first count becomes a lesser included offense of the second count, and the prosecution of a defendant under both statutes would be unconstitutional under Blockburger v. United States, 284 U.S. 299, 304 . . . (1932)." 788 F. Supp. at 25. See also United States v. Mitchell, 796 F. Supp. 13, 21 (D.D.C. 1992) (granting unopposed motion to vacate 841 conviction as lesser included offense of 860 conviction "for the reasons set forth in Williams"), aff'd without opinion, 22 F.3d 1185 (D.C. Cir. 1994), cert. denied, Order List (Oct. 3, 1994).

This Court made clear in United States v. McDonald, 991 F.2d 866, 871 (D.C. Cir. 1993), that once the government proves the defendant guilty of possession with intent to distribute in violation of 841(a)(1), "[t]o convict under 860 the prosecution ha[s] only to prove the additional element of possession within 1000 feet of a school." The McDonald Court noted without comment that the district court in that case had dismissed the 841(a)(1) count as a lesser included offense of the 860 offense after the verdict. 991 F.2d at 868.

This Court should remand this case with orders that the district court take equivalent action here by vacating the judgment and sentence on Count One. The reasoning of the court in Williams is sound. Under Ball, the fact that vacation of Count One will have little practical effect on Mr. xxxxxx's overall sentence, since the Count One sentence was made concurrent to the Count Two sentence, (15) is irrelevant: "[T]he second conviction, even if it results in no greater sentence, is an impermissible punishment." Ball, 470 U.S. at 865.



CONCLUSION

For the foregoing reasons, Mr. xxxxxx's conviction should be reversed and the illegally seized evidence ordered suppressed. Failing that, Mr. xxxxxx should be granted a new trial at which the jury is properly instructed as to his theory of defense. At a minimum, Mr. xxxxxx's conviction on Count One must be vacated, and the case remanded to the district court for entry of an amended judgment.





Respectfully submitted,







A.J. KRAMER

FEDERAL PUBLIC DEFENDER





_____________________________

LISA D. BURGET

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Michael A. xxxxxx





CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Michael A. xxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).



_________________________________

LISA D. BURGET

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Michael A. xxxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C., 20001, counsel for Appellee, and have been served by first class mail on G. Allen Dale, Dale & Mitchell, 307 G Street, N.W., Washington, D.C. 20001, counsel for Appellant James Lester Brown.



_________________________________

LISA D. BURGET

Assistant Federal Public Defender

1. "A." refers to pages of the Appendix filed with this brief. "Tr." refers to pages of the sequentially numbered transcripts of the suppression hearing and trial proceedings, beginning with page one on October 20, 1993, and ending with page 787 on October 28, 1993. The entire transcript of the suppression hearing (Tr. 1-139), and all pages of the trial transcript cited in this brief, are reproduced in the Appendix.

2. Officer Soto originally stated that he saw that both occupants were black (Tr. 66), but subsequently denied that he could see the race of the passenger when he first saw the Pathfinder (Tr. 76).

3. Officer Soto was impeached with his testimony at the preventive detention hearing that "I don't even know how long they were stopped there" (Tr. 60). Officer Littlejohn gave no time estimate.

4. Officer Soto was impeached with the fact that the failure to signal was not mentioned by him at the preventive detention hearing when he was asked to describe any traffic violations committed by the Pathfinder (Tr. 63-64) and was not in the PD-163 narrative of events leading to the stop (Tr. 64-65). While the other three officers in the unmarked car testified at trial that the Pathfinder was speeding (Tr. 345, 383, 492), Officer Littlejohn never claimed to see either the alleged failure to signal or the alleged speeding.

5. Sergeant David Sledge testified at trial that he was standing right behind Officer Soto, looking over his left shoulder, and saw appellant making movements with his hands but did not see appellant holding anything in his hands (Tr. 499-501). Sergeant Sledge further testified that Officer Littlejohn was not standing by Officer Soto on the driver's side: Sergeant Sledge watched Officer Littlejohn walk directly from the unmarked car to the passenger side of the Pathfinder (Tr. 501-502, 509).

6. Officer Littlejohn claimed to have seen Officer Soto seize the bag from Mr. xxxxxx's right hand (Tr. 94-95).

7. Although the trial court refused to allow inquiry into the whereabouts of the second unmarked car during the suppression hearing (Tr. 87-88), it became clear during the trial that the first car radioed for assistance in stopping the Pathfinder to the second car (Tr. 268, 465, 466-467, 492-493, 519), which then pulled up behind and to the right of the Pathfinder at the scene of the stop (Tr. 269, 278, 394, 462, 495, 520), and that a total of nine or ten officers participated in the arrests (Tr. 279 (four or five officers in second car), 287 (five officers in first car), 486-487 (same; four officers in second car)). One of the officers in the second car, Officer Rick Murray, testified at trial that his function in going to the scene of the stop was to provide "back-up" for the first car (Tr. 280) -- "to make sure nobody got hurt or shot" (Tr. 484).

8. The PD-81 refers to Mr. xxxxxx as "James W. Tyree" because that is the name Mr. xxxxxx gave to the police when he was first removed from the Pathfinder (Tr. 385).

9. See infra, at pp. 25-27, discussing Metropolitan Police Department General Order 303.1(A)(2)(a) ("Traffic Enforcement") (effective July 29, 1986) (reproduced in Addendum).

10. Then-Justice White would have granted certiorari in Cummins and Trigg to resolve this circuit split. Cummins v. United States, 112 S. Ct. 428 (1991) (White, J., describing split between "could have" and "would have" circuits in dissent from denial of certiorari).

11. This question did not arise in Mitchell because that case involved a routine stop that would have been made by any reasonable officer under similar circumstances and was therefore valid under either test. The Mitchell stop was made by a uniformed officer on a department motor scooter after the defendant's speeding car suddenly stopped and turned sharply off the road without signalling upon spotting the officer and his partner. 951 F.2d at 1293.

12. This regulation is clearly relevant in evaluating the objective reasonableness of this traffic stop. In Barnett v. United States, 525 A.2d 197, 198-99 n.5 (D.C. 1987), the District of Columbia Court of Appeals took judicial notice of the General Order on Traffic Enforcement sua sponte. In the course of concluding that the pedestrian arrest in that case was without legal basis, the Barnett Court noted:

Although not raised by either party in this appeal, it has not escaped our attention that the Metropolitan Police Department's General Orders pertaining to Traffic Enforcement, 303.1(G)(1), provides that uniformed members shall enforce the traffic laws and regulations pertaining to pedestrians. Officer Willis and Officer Moynihan were not in uniform at the time of appellant's arrest.Id. Compare Thomas v. United States, 553 A.2d 1206, 1207 n.4 (D.C. 1989) (upholding stop by marked patrol cars where officers in unmarked car observed traffic violations and radioed marked cars for assistance, noting testimony that "police regulations prohibited officers on plainclothes duty in an unmarked car from stopping another car").On three separate occasions, the trial court prohibited Mr. xxxxxx's counsel from examining police witnesses concerning the existence of this General Order (Tr. 391, 479, 496).

13. Although they had no reasonable articulable basis for their suspicion, the objective evidence is overwhelming that the vice officers in this case were hoping to find the occupants of the Pathfinder engaged in illegal drug activity. Their sole purpose in patrolling the "high drug area" (Tr. 117) around 37th and Ely Place was to "find narcotics activity going on" (Tr. 22). Officer Littlejohn testified that the Pathfinder was stopped because of "reasonable suspicion" based on the car leaving a "high drug area": "We did not know they had drugs in that vehicle at that time, just had a reasonable suspicion as to their actions as to why they were stopped at the stop sign for so long" (Tr. 117) (emphasis added). Indeed, the PD-81 property report prepared by the driver of the car carrying Soto and Littlejohn leaves no doubt that this stop was part of a "narcotic[s] investigation" (A. 23) (emphasis added): "On 6-10-93 members of the Sixth District Vice unit conducted a narcotic investigation in the area of 3700 Blk. Ely Pl.S.E., further investigation revealed both Defs. had approximately 100 grams of crack cocaine in a vehicle." Finally, Officer Murray's testimony that the second unmarked car's function was to provide back-up "to make sure nobody got . . . shot" (Tr. 484) clearly reveals that this operation was viewed as more than a simple traffic stop.

There is, of course, nothing impermissible about an officer's having a subjective hunch that an individual whom the officer would ordinarily stop for a lesser crime may be involved in some greater crime, and acting to protect himself based on that hunch when making the stop. The officer runs into trouble under the Fourth Amendment only when he makes a stop he would not ordinarily make absent that hunch. See Smith, 799 F.2d at 710.

14. Although Mr. xxxxxx's trial counsel attempted to argue the legal incentives to the jury (Tr. 677, 682-683), in the absence of a clear instruction on the law from the judge, counsel's explanation of the officers' bias came out confused and lacking any authority. The jury was, after all, instructed that "[i]t is my responsibility to decide what rules of law apply to this case" (Tr. 720), that "[n]otwithstanding any comments made by the lawyers with respect to the law, you must follow the law as I instruct you" (Tr. 720), and that "the statements and argument of counsel are not evidence" (Tr. 723).

15. Vacation of Count One will have the effect of reducing the total special assessment from $150 to $100.