Jefferson Memorial

In Re W.R.: Warrantless Search During a Custodial Arrest

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

Jejomar Untalan has been busy.  I reported last week on his successful appeal in In re S.B.  This week the D.C. Court of Appeals issued yet another decision bearing Untalan’s name as the appellant’s attorney:  In re W.R.,  52 A.3d 820 (D.C. 2012).  This time, however, Untalan was unsuccessful.

W.R. was approached during the school day by a police officer who suspected him of truancy. When the juvenile confirmed that he was under seventeen years old, the officer directed him to sit in the back of his police cruiser. The officer then learned that W.R. had been involved in a prior drug offense.

Conducting a pat-down before transport, the officer felt a bulge in the juvenile’s front pants pocket.  The juvenile repeatedly denied that there was anything in the pocket. The officer ordered him to take out whatever was in his pocket and put it on the top of the cruiser. The juvenile removed a clear ziplock bag from his pocket that contained ten individually wrapped ziplock bags of marijuana. The juvenile was also carrying $123.

Untalan challenged the juvenile’s adjudication on three grounds.  First, he claimed that the warrantless search violated the juvenile’s constitutional rights.  The Court of Appeals did not agree:

In In re J.O.R., we observed that a search conducted during a custodial arrest is permissible, not only because of the risk that evidence may be destroyed, but because of the danger to the police officers involved.  820 A.2d 546, 547-48 (D.C. 2003)(citing United States v. Robinson, 414 U.S. 218, 235 (1973)).  The danger to the police officers “flows from their prolonged exposure . . . and not from the ground for arrest.”  Id.  Thus, we held that officers were justified in searching a juvenile even though the officers had apprehended him under a neglect custody order.  Id. at 548.  In doing so, we rejected appellant’s argument that the search was impermissible because there had been no arrest for Fourth Amendment purposes, emphasizing that “it is the custody . . . [that] makes a search permissible.” . . .

In re J.O.R. controls here.  Although W.R. was taken into custody for truancy, rather than a criminal offense, the search is valid “because custodial seizures on any ground inherently pose a danger.”  Id. at 548.

Untalan argued next that, without an expert witness to testify on the modus operandi of drug traffickers, there was insufficient evidence to support the trial court’s finding that the juvenile intended to distribute the marijuana (as opposed to simply using it himself).   Again, the Court disagreed:

We have never held that a fact finder is incapable of drawing the inferences necessary to find intent to distribute drugs in the absence of expert testimony.  We have held only that such testimony “may be helpful . . . even though it may be familiar to the average reader of the daily press.”  Jones v. United States, 990 A.2d 970, 978 (D.C. 2010). 

Finally, Untalan claimed that, because truancy is not a criminal felony or misdemeanor, the District of Columbia’s “truancy scheme is unconstitutional.  The Court of Appeals dismissed this challenge in a footnote:  “[W]e have not found, and W.R. has not cited us to, any case supporting that premise.  Moreover, we understand the touchstone of a Fourth Amendment seizure to be ‘reasonableness,’ not the classification of the prohibited conduct.”

Good try, Mr. Untalan.  Better luck next time.