United States v. Broadie, Morris

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2006 Decided July 7, 2006

No. 04-3174

UNITED STATES OF AMERICA,

APPELLEE

v.

MORRIS M. BROADIE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00218-01)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender. Neil H. Jaffee, Assistant

Federal Public Defender, entered an appearance.

Florence Pan, Assistant U.S. Attorney, argued the cause for

appellee. With her on the brief were Kenneth L. Wainstein, U.S.

Attorney, and Roy W. McLeese, III and David B. Goodhand,

Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and HENDERSON and

RANDOLPH, Circuit Judges.

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GINSBURG, Chief Judge: Morris Broadie challenges his

conviction and sentence for unlawful possession with intent to

distribute more than 50 grams of cocaine base, a violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii). He argues the drugs and

cash found in a hidden compartment in his van should have been

suppressed because police officers detained him without a

reasonable, articulable suspicion or, alternatively, because they

arrested him without probable cause, based solely upon seeing

he had an “ASP baton.” We reject Broadie’s claims and affirm

his conviction but, as agreed by the parties, remand the record

to the district court to make a sentencing determination pursuant

to United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005).

I. Background

The undisputed police testimony is as follows. At

approximately 11:40 one night three officers of the Metropolitan

Police Department were driving through a “high drug area,

known for the illicit sale of crack cocaine [and] marijuana” and

for the recovery of “numerous weapons,” when they got out of

their car to talk with some men they had stopped the previous

night for being drunk in public. Officer Derek Phillip noticed

that a conversion van, parked on the street two to three car

lengths away, was idling the whole time they spoke -- three to

four minutes. Believing the van was idling excessively, in

violation of D.C. Municipal Regulations title 18, § 2418.3

(idling limited to three minutes when vehicle is parked, except

for “private passenger vehicles”), the officers proceeded to

investigate.

Officer Phillip approached the passenger door of the van

and shone his flashlight through the window, which was

“heavily tinted.” He saw Broadie “slumped over the wheel,”

apparently sleeping. Phillip tapped the window 15 to 20 times

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and tried to open the passenger door, but it was locked. When

Broadie finally woke up after about 30 seconds, he was

“disoriented,” looked “confused” and, in Officer Phillip’s

opinion, “could have been under the influence” of alcohol or

drugs. Officer Teel, standing by the driver’s side of the van,

directed Broadie to get out.

At this point the stories told by the police and civilian

witnesses diverge. Officer Phillip testified at the suppression

hearing that as Broadie got out of the van, Officer Teel observed

in plain view in the pocket of the driver’s side door an ASP

baton -- a “newer version of the nightstick” that, “by the use of

a little arm movement, ... protrudes out to 16 inches”; it is used

by law enforcement officers to “subdue combative subjects.”

Officer Teel then handcuffed Broadie and placed him under

arrest for “possession of a prohibited weapon,” see D.C. Code

§ 22-4514, after which he “thoroughly” searched the van.

Rondell Wills, one of the four men stopped by the police,

and Tarsha Washington, a neighbor who saw the encounter from

her porch, remembered the incident in a slightly different way.

They testified at the hearing that the officer on the driver’s side

of the van opened the door and “snatched” or “pulled” Broadie

out, took him to the back of the vehicle, and placed him in

handcuffs. Only then did an officer -- their testimony conflicts

as to which one -- return to the driver’s door where he leaned

down and appeared to be “searching for something.” When the

officer emerged from behind the door, he held up a “black

stick,” presumably the ASP baton.

In the course of their post-arrest search of the van, the

officers found beneath a beverage compartment at the rear of the

vehicle (1) a clear ziploc bag containing “51 small green-tinted

ziplocs with a white rock-like substance” as well as “loose

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white-rock” wrapped in saran wrap, (2) a separate green-tinted

bag, and (3) $600. When Broadie was later indicted for

unlawful possession with intent to distribute more than 50 grams

of cocaine base, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), he

moved to suppress the physical evidence found in his van,

arguing the police had neither reasonable suspicion to detain nor

probable cause to arrest him.

The district court denied the motion, crediting Officer

Phillip’s version of events insofar as there were factual

discrepancies in the testimony. The court concluded the officers

reasonably could have believed that Broadie was “ill,”

“suffering from carbon monoxide poisoning,” or “intoxicated,”

and therefore they lawfully ordered him from his vehicle in

order to “find out if [he was] all right” and to “protect the

public” from a potentially drunk driver. The court also held the

search of Broadie’s car was a lawful search incident to arrest

because the officers had probable cause to believe Broadie’s

possession of the ASP baton violated D.C. law.

Broadie entered a conditional plea of guilty, thereby

preserving his right to appeal. The district court sentenced

Broadie to 121 months in prison, the low end of the Sentencing

Guidelines range, followed by five years of supervised release.

II. Analysis

Broadie argues again on appeal that the physical evidence

found in his van should have been suppressed as the product of

a seizure and an arrest made in violation of the Fourth

Amendment to the Constitution of the United States. We review

de novo the district court’s determinations of reasonable

suspicion and probable cause but review its findings of fact only

for clear error. See Ornelas v. United States, 517 U.S. 690, 699

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(1996).

A. The Seizure

First, Broadie argues he was unlawfully seized when the

officers directed him to get out of his van without having a

reasonable, articulable suspicion that “criminal activity may be

afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968); see United States

v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) (“the issue is

whether a reasonably prudent man in the circumstances would

be warranted in his belief that the suspect is breaking, or is about

to break, the law”) (internal quotation marks and citation

omitted). The Government advances three rationales for the

seizure: the officers (1) could reasonably have suspected

Broadie had been driving or would drive while intoxicated, (2)

could reasonably have suspected the heavy tint on Broadie’s

windows violated D.C. law, and (3) in any event were acting

pursuant to their “community-caretaking” duties because they

had a “duty to determine whether [Broadie] was ill, injured or

intoxicated,” see Cady v. Dombrowski, 413 U.S. 433, 441

(1973). Because we agree with the first point, we do not address

the other two.

“Reasonable suspicion” is a “less demanding standard than

probable cause and requires a showing considerably less than

preponderance of the evidence.” Illinois v. Wardlow, 528 U.S.

119, 123 (2000). Therefore, a Terry stop “requires only a

minimal level of objective justification and an officer may

initiate one based not on certainty, but on the need to ‘check out’

a reasonable suspicion.” Edmonds, 240 F.3d at 59 (internal

quotation marks and citations omitted). The inquiry requires an

assessment of the “totality of the circumstances as the officer on

the scene experienced them.” Id.

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Considering the totality of those circumstances, we

conclude the officers could reasonably have detained Broadie

based upon the reasonable suspicion that he had been or soon

would be driving while intoxicated. Broadie was found

“slumped over” his steering wheel, with his engine running, late

at night. As the district court reasoned, “generally people are

not [found in such a position] unless something is amiss.”

Broadie was slow to awake and his “disoriented” and

“confused” state when he did wake up would only have

heightened a reasonable observer’s suspicion he was intoxicated.

Broadie protests it is mere speculation that he might have

been intoxicated, for the circumstances suggested he was simply

asleep. “Our inquiry, however, ‘does not deal with hard

certainties, but with probabilities.’” United States v. Moore, 394

F.3d 925, 930 (D.C. Cir. 2005) (quoting United States v. Cortez,

449 U.S. 411, 418 (1981)). And that Broadie was intoxicated

“was among the most probable explanations for the peculiar

circumstances [Officer Phillip] observed.” Id. We conclude the

police had a reasonable, articulable suspicion upon which to

detain Broadie.

Having lawfully detained Broadie, it follows that the

officers reasonably could, in the interest of their own safety,

order him to get out of his van. See Pennsylvania v. Mimms,

434 U.S. 106, 111 (1977) (“We think this additional intrusion

can only be described as de minimis. ... The police have already

decided that the driver shall be briefly detained; the only

question is whether he shall spend that period sitting in the

driver’s seat of his car or standing alongside it.”). We turn,

therefore, to the question whether they had probable cause,

moments later, to arrest him.

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B. The Arrest

As an initial matter, Broadie maintains the police lacked

probable cause because they found the ASP baton after, not

before, they arrested him. Specifically, he argues the district

court clearly erred in crediting the testimony of Officer Phillip

over that of Broadie’s civilian witnesses, whose testimony, he

claims, shows the baton was found after he had been pulled from

the car and handcuffed. Relatedly, Broadie says the police must

have “staged” the photograph in the record showing the ASP

baton sticking out of the pocket on the driver’s side door in plain

view.

We review the district court’s credibility determinations

only for clear error. United States v. Simpson, 992 F.2d 1224,

1226-27 (D.C. Cir. 1993). Indeed, such rulings “are entitled to

the greatest deference from this court on appeal.” United States

v. Hart, 324 F.3d 740, 747 (D.C. Cir. 2003) (citation omitted);

see also United States v. Anderson, 881 F.2d 1128, 1142 (D.C.

Cir. 1989) (“credibility determinations ... are not for us to

second guess”).

Broadie attacks Officer Phillip’s testimony on two fronts.

First, he argues the timing of events described in police

testimony and police reports conflicts with the dates on the

photographs taken at the scene with Officer Jonathan Teixeira’s

digital camera. The photograph of the drugs found in the van

was dated “4/13/2004,” but the photograph of the baton sticking

out of the pocket of the driver’s door was dated “4/14/2004.”

Officer Phillip explained the discrepancy, testifying it was “fair

to say” the photograph of the ASP baton was taken after

midnight. According to Broadie, however, the officers

described a different sequence of events in their own reports and

testimony, as follows: (1) they stopped to talk to four men at

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11:40 p.m.; (2) they arrested Broadie at 11:43; (3) after the van

had been searched, they photographed the drugs and the baton,

which took a “few minutes”; and (4) they read Broadie his rights

at 11:45. Broadie argues this sequence is inconsistent with

Officer Phillip’s explanation that the photograph of the ASP

baton was taken after midnight; therefore the district court

should not have credited Officer Phillip’s testimony that the

baton was in plain view when he was arrested at 11:43.

The district court concluded that discrepancies of “a matter

of minutes” were not significant: They may have been the result

of faulty memories, lack of precision in the police reports, or a

camera with an internal clock running a little fast. In sum, the

court found that any inconsistency is not “so glaring that the

police officers’ testimony ‘must be a fabrication.’” United

States v. Streater, 70 F.3d 1314, 1318 (D.C. Cir. 1995) (quoting

United States v. Gilliard, 847 F.2d 21, 24 (1st Cir. 1988)). This

decision, though not compelled, is certainly not clearly

erroneous.

Broadie also challenges the district court’s reasons for

discrediting his witnesses. The court found Mr. Wills was

evasive and inconsistent about his relationship with Broadie and

that certain aspects of his testimony simply did not jibe. The

court also found Ms. Washington’s version of events

problematic (“I just don’t think that is reasonable”). Broadie

argues the court did not “hesitat[e] to conclude that [the defense

witnesses] had lied under oath based on the smallest of

perceived discrepancies.” But the court never suggested a

witness was lying; the judge merely concluded Officer Phillip

was more credible. As the Government points out, the

discrepancies could have been due to mere mistake or a failure

of recollection on the part of Broadie’s witnesses.

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It is also likely Wills and Washington simply could not see

well enough to assess the order of events; Officer Phillip

testified that Teel saw the ASP baton before he arrested Broadie,

specifically, “As he [Broadie] exited the vehicle.” If, as seems

to be the case, the baton was in plain view immediately upon

Broadie’s opening the door, then Officer Teel’s quick reaction

may well have appeared to an observer as his simply pulling

Broadie from the car and arresting him. The witnesses could not

tell whether he spotted the baton before or after he laid a hand

on Broadie; nor did they claim to have done. Therefore, their

testimony gives us no basis upon which to disturb the district

court’s decision to credit Officer Phillip’s testimony that Teel

saw the ASP baton in plain view before he arrested Broadie.

Broadie’s challenge to his actual arrest is more weighty. He

argues the search of his van was not a lawful search incident to

arrest, pursuant to New York v. Belton, 453 U.S. 454 (1981),

because the police, assuming they had seen the baton, still did

not have probable cause to arrest him for possession of a

prohibited weapon under D.C. Code § 22-4514(b), one of the

crimes with which Broadie was actually charged. The

Government concedes this point, as it must. For we explained

in United States v. Christian, 187 F.3d 663 (1999), a violation

of § 22-4514(b) requires proof of intent “to use [the weapon]

unlawfully against another,” and there is at least one “perfectly

lawful purpose for keeping a [weapon] in a car, particularly in

a high-crime neighborhood: self-defense.” Christian, 187 F.3d

at 667.

The arrest was valid, however, if the officers had probable

cause to believe Broadie had committed any crime. See

Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (officer’s

“subjective reason for making the arrest need not be the criminal

offense as to which the known facts provide probable cause”).

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And this they had.

The Government argued before the district court that the

facts provide probable cause to believe Broadie was carrying a

dangerous weapon (CDW) in violation of D.C. Code § 22-

4504(a), which does not require proof of intent to use the

weapon for an unlawful purpose. See Mitchell v. United States,

302 A.2d 216, 217 (D.C. 1973); see also Roper v. United States,

564 A.2d 726, 730 (D.C. 1989) (“It is essentially a crime of

possession, designed to keep such dangerous items off the

street”); Scott v. United States, 243 A.2d 54, 56 (D.C. 1968)

(noting congressional intent “to drastically tighten the ban on

carrying dangerous weapons”). Therefore, neither self-defense

nor any other “lawful purpose” is material to the offense or

sufficient to avoid liability. See Monroe v. United States, 598

A.2d 439, 440 (D.C. 1991).

In the District of Columbia, a “dangerous weapon” is

anything that is “likely to produce death or great bodily injury by

the use made of it.” Strong v. United States, 581 A.2d 383, 386

(D.C. 1990) (quoting Scott, 243 A.2d at 56). An object is “likely

to produce great bodily injury” if: (1) the design of the object is

such that in its ordinary use it is likely to cause great bodily

injury; or (2) the surrounding circumstances indicate that an

object capable of causing great bodily injury is likely in fact so

to be used. For example, some items, “such as particularly

menacing knives, have been held to be inherently dangerous,”

id., that is, “dangerous in its ordinary use as contemplated by its

design and construction,” Scott, 243 A.2d at 56. But “all knives

are not per se dangerous .... [because a] knife may be used as a

tool in certain trades or hobbies or it may be carried for

utilitarian reasons.” Id. An object that is not “inherently

dangerous can become dangerous by its use as a weapon.”

Strong, 581 A.2d at 386; see also Scott, 243 A.2d at 56 (an

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instrument may be dangerous “where the purpose of carrying the

object, under the circumstances, is its use as a weapon”).

In order to determine whether the CDW statute outlaws the

carrying of “an otherwise useful object” we must examine “the

surrounding circumstances,” Scott, 243 A.2d at 56, including,

among others, “the design or construction of the instrument; the

conduct of the defendant prior to his arrest; any physical

alteration of the instrument; and the time and place the

defendant was found in possession.” Monroe, 598 A.2d at 441

(citations omitted). Note that the design of the instrument is

relevant to both inquiries: It may indicate an object is inherently

dangerous or, if not inherently dangerous, that the object is

likely to be used as a weapon.

The Government argues we need not consider the

alternative because Broadie conceded before the district court

that an ASP baton is an inherently dangerous weapon. Although

defense counsel did say, “An ASP baton is a dangerous

weapon,” he qualified his statement, adding “just as a knife, for

instance, is a dangerous weapon.” And, as just discussed, not all

knives are inherently dangerous weapons for the purpose of §

22-4504 because not all knives are designed to cause great

bodily injury in their normal use. In context, there is no reason

to believe Broadie’s counsel was, with this statement, conceding

away his entire defense. Therefore, we understand counsel to

have conceded only that an ASP baton, like a knife, is capable

of being used as a dangerous weapon. And just “as [with] a

knife,” the Government must establish probable cause to believe

the suspect intended to use the ASP baton to cause great bodily

injury.

Still seeking a short cut, the Government argues evidence

in the record establishes that the ASP baton is inherently

12

dangerous. The scant record evidence regarding the baton,

however, does not support this claim. Officer Phillip testified

that the baton is “primarily used to subdue combative subjects”

but, unsurprisingly, he not did not say or even imply that

officers ordinarily inflict great bodily injury when they use the

device. Indeed, what little authority there is on the matter

suggests an ASP baton is designed so it “can be used to control

suspects without inflicting serious injury.” Armament Sys. &

Procedures, Inc. v. Monadnock Lifetime Prods., Inc., 168 F.3d

1319, 1998 U.S. App. LEXIS 20818, at *1-2 (Fed. Cir. Aug. 7,

1998).

That said, it does not require authority to conclude that a

16-inch steel rod -- like the more commonplace lead pipe -- is

capable of inflicting great bodily injury when used for that

purpose. Therefore, the relevant inquiry is whether the

surrounding circumstances provide probable cause to believe

Broadie intended to use the ASP baton to cause great bodily

injury, whether in self-defense or otherwise. We believe they

do. See Brinegar v. United States, 338 U.S. 160, 175 (1949)

(“In dealing with probable cause ..., as the very name implies,

we deal with probabilities. These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.”).

Although many objects capable of causing great bodily

injury, such as a lead pipe, have legitimate uses other than as a

weapon, the normal and the only apparent use of an ASP baton

-- a steel rod that may be extended with a flick of the wrist -- is

to strike another. As Armament Systems attests, an ASP baton

“can be used to control suspects without inflicting serious

injury”; but a reasonable officer surely would believe that a

civilian, presumably without police training, would likely inflict

great bodily injury when using a steel rod in self-defense.

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Indeed, of all people a police officer specially trained in the use

of an ASP baton is the most likely to know just how dangerous

the baton may be in the hands of an untrained person.

In sum, we hold the officers had probable cause to believe

that Broadie, encountered late at night in a high-crime area,

having within arm’s reach a weapon designed to be used against

another person, intended to use it so as to inflict great bodily

injury. Therefore, Broadie’s arrest was valid. It follows that the

search of Broadie’s van incident to that arrest was also valid and

the district court properly declined to suppress the evidence it

turned up.

III. Conclusion

For the foregoing reasons, Broadie’s conviction is affirmed.

As for his sentence, the parties agree a remand is required. In

United States v. Booker, 543 U.S. 220 (2005), the Supreme

Court held the United States Sentencing Guidelines are advisory

only. Broadie claims the district court plainly erred by applying

the Guidelines as though they were mandatory. Because the

record is unclear as to whether the district court “would have

imposed a different sentence, materially more favorable to the

defendant, had it been fully aware of the post-Booker sentencing

regime,” we remand the record for the district court to make this

determination. See Coles, 403 F.3d at 771.

So ordered.