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             DISTRICT OF COLUMBIA COURT OF APPEALS

                        Nos. 12-CM-1742 & 12-CM-1743

                            KIM E. SMITH, APPELLANT,

                                        v.

                           UNITED STATES, APPELLEE.

                         Appeals from the Superior Court
                           of the District of Columbia
                        (CMD-4599-12 & CMD-6355-12)

                        (Hon. Marisa Demeo, Trial Judge)

(Argued May 20, 2014                                 Decided November 26, 2014)

      Cynthia Nordone for appellant.

      Jay Apperson, Assistant United States Attorney, with whom Ronald Machen
Jr., United States Attorney, and John P. Mannarino and Elizabeth Trosman,
Assistant United States Attorneys, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING,
Senior Judge.

      BLACKBURNE-RIGSBY, Associate Judge: The issue on appeal is whether the

exclusionary rule applies to ―derivative evidence‖ resulting from an arrest warrant
                                          2

that was premised upon tainted evidence obtained during an illegal traffic stop.1


      1
         This is a consolidated appeal of two separate criminal cases pertaining to
appellant. The first case need not be addressed in detail, for reasons explained
below. In the second case, which we address herein, appellant was charged with:
two counts of possession of marijuana, in violation of D.C. Code § 48-904.01 (d)
(2012 Repl.), and two counts of possession of drug paraphernalia, in violation of
D.C. Code § 48-1103 (a) (2012 Repl.). In a consolidated motion to suppress and
bench trial, the Honorable Marisa Demeo granted the motion to suppress on one
count of possession of marijuana and one count of possession of drug
paraphernalia and acquitted appellant of those counts but found appellant guilty of
the remaining counts.

       Appellant‘s first case pertains to a separate incident on March 14, 2012 and
we dispose appellant‘s resulting claim summarily. Although appellant failed to file
a motion to suppress prior to trial with regard to evidence recovered from his
person on that date, he argues that this court should nonetheless consider his claim
that the trial court erred in admitting the alcohol, drugs, and drug paraphernalia
evidence at trial, because the police lacked probable cause to search or arrest him.
We disagree and conclude that appellant waived this claim by failing to file a pre-
trial motion to suppress. Under D.C. Code § 23-104 (a)(2) (2012 Repl.), ―[a]
motion . . . to suppress evidence shall be made before trial unless opportunity
therefor did not exist or the defendant was not aware of the grounds for the
motion.‖ (Emphasis added). See also Artis v. United States, 802 A.2d 959, 965
(D.C. 2002). Similarly, Super. Ct. Crim. R. 12 (d) requires that any motion to
suppress be made prior to trial and ―[f]ailure . . . to make requests which must be
made prior to trial . . . shall constitute waiver thereof,‖ unless a defendant can show
―good cause for a failure to do so.‖ Olafisoye v. United States, 857 A.2d 1078,
1085 (D.C. 2004) (emphasis added) (citations omitted).

       Appellant has not shown any ―good cause‖ for failing to bring his claim in a
motion to suppress. Id. If anything, appellant‘s actions at trial run contrary to his
argument. When the government introduced the recovered contraband evidence
and a chemical laboratory report confirming the presence of marijuana at trial,
appellant‘s trial counsel stated that he had ―no objection.‖ Given that appellant‘s
trial counsel failed to object to the evidence being admitted at trial, appellant
cannot now challenge the admission of the same evidence on appeal. See Brown v.
United States, 627 A.2d 499, 508 (D.C. 1993) (barring appellant‘s claim of error
                                                                       (continued…)
                                         3

      We hold that where an officer‘s mistake of law leads to a warrant premised

on tainted evidence, derivative evidence obtained pursuant to that warrant must be

excluded, unless there is an independent source for the evidence or sufficient

attenuation to ―purge the taint.‖ The traffic stop at issue was premised on a

―mistake of law,‖ namely, that a license plate frame partially covering the District

of Columbia motto on a license plate violated a municipal traffic regulation when

no such violation actually occurred. See Whitfield v. United States, 99 A.3d 650,

652 (D.C. 2014).     A mistake of law cannot provide the objective basis for

reasonable suspicion or probable cause and therefore cannot support a valid

warrant. See In re T.L., 996 A.2d 805, 816 (D.C. 2010). Accordingly, because the

record does not demonstrate that the officer would have come upon the derivative

evidence at issue in the absence of the unlawful traffic stop and there was no

independent source or other attenuation to purge the taint of the initial illegality,

the exclusionary rule applies and the derivative evidence must be suppressed. See

Murray v. United States, 487 U.S. 533, 536-37 (1988).




(…continued)
because ―a defendant may not take one position at trial and a contradictory position
on appeal‖).
                                          4

                              I.    Factual Background



      A. The Incident



      On March 16-17, 2012, Officers Cartwright and Leveque of the

Metropolitan Police Department (―MPD‖) were patrolling for drug activity when

Officer Cartwright observed appellant driving northbound on 14th Street, N.W.,

Washington, D.C.      Officer Cartwright specifically noticed that a portion of

appellant‘s license plate –– the District of Columbia motto ―Taxation Without

Representation‖ — was obstructed by the license plate frame, even though the

license plate number and issuing jurisdiction, the District of Columbia, were

unobstructed. Believing that this obstruction violated District of Columbia traffic

laws,2 he initiated a traffic stop with the assistance of four other officers. Officer

Cartwright previously initiated ―many‖ similar traffic stops on other cars with

license plate frames covering the ―Taxation Without Representation‖ portion of the

license plate, even though he admitted that he did not pull over every car with a

license plate frame that obstructed the District of Columbia motto.3 When Officer


      2
          Specifically, 18 DCMR §§ 422.5 and 422.6.
      3
         When further pressed as to why Officer Cartwright chose to pull over
appellant, particularly given his inconsistent practice with regard to this type of
                                                                     (continued…)
                                           5

Cartwright explained to appellant the reason for the stop and asked him for his

license and registration, appellant replied that he had no license, at which point

Officer Cartwright asked appellant to step out of the vehicle. An accompanying

officer smelled marijuana coming from appellant and proceeded to search him,

finding a ziplock bag containing small ―zips‖ and a cigarette box with a hand-

rolled marijuana cigar in appellant‘s jacket. Additionally, a search of the car

revealed a clear bag containing a green leafy substance, later confirmed to be

marijuana, underneath the driver‘s seat.



      The officers did not arrest appellant at the scene because MPD had

instructed them to apply for arrest warrants for misdemeanor offenses.

Subsequently, Officer Leveque applied for an arrest warrant, which was granted,

based on an affidavit describing the basis for the initial traffic stop, as well as the

drugs and drug paraphernalia discovered on appellant and in his car. The affidavit

stated that Officer Cartwright pulled over appellant‘s car because ―[t]he tags were

obstructed by a black license plate frame.‖




(…continued)
infraction, he answered: ―Well, sir, we also had — if I recall correctly, there was
some information regarding Mr. Smith‖ that he later clarified meant he knew of
appellant through another officer in the office.
                                         6

      On April 11, 2012, Officers Cartwright and Leveque, accompanied by

Officer James, saw appellant at a Starbucks located at 13th and U St., N.W., and

arrested him pursuant to the arrest warrant. While arresting him, the officers

recovered additional crushed marijuana from the ground, which appellant had

attempted to destroy, and a ―full green zip with [marijuana] in it‖ that was on the

ground by his feet, as well as ―a large clear zip containing multiple green zips‖

from his jacket pocket during a subsequent search incident to arrest.



      B. The Motion to Suppress



      Appellant outlined his arguments in support of excluding the evidence in his

written motion to suppress submitted on October 1, 2012, and during a joint

motion to suppress hearing and bench trial on October 3, 2012, during which he

introduced four photographs of his framed license plate. Specifically, appellant

claimed that because the underlying stop was illegal under the relevant District of

Columbia regulations –– given that appellant‘s license plate, plate number, ―date

sticker,‖ and ―issuing jurisdiction‖ were not obstructed –– all of the evidence

recovered during the search of appellant‘s person and car on March 16-17, 2012, as

well as the evidence derived from those events, recovered pursuant to appellant‘s

arrest on April 11, 2012, should be excluded.
                                         7

      The trial court addressed the motion to suppress issue first, reviewing the

relevant regulations that applied to the traffic stop, 18 DCMR §§ 422.5 and 422.6,4

despite not having received briefing from the government on the issue. The court

determined that § 422.5 only concerned information relevant to and important for

―law enforcement concern[s]‖ that must be maintained ―free from foreign

materials‖ and ―in a clearly legible condition,‖ including the license plate,

identification tag, and window sticker identifying the locality.     Based on the

defense‘s photographs, the court noted that only the ―Taxation Without

Representation‖ portion of the tag was significantly obstructed, and that it was ―in

no way . . . related in any manner to any type of law enforcement concern. Thus,


      4
          18 DCMR §§ 422.5 and 422.6 state, respectively:

              422.5 Identification tags shall be maintained free from
              foreign materials and in a clearly legible condition. For
              the purposes of this subsection, foreign materials shall
              include any non-transparent materials placed on or over
              the tag(s); any expired or any unauthorized decals or
              stickers; or any markings or attachments of any kind,
              except as permitted by § 422.6.

              422.6 No sign or emblem more than twenty-four square
              inches (24 in. <2>) in area shall be attached to any
              license tag bracket nor shall any sign or emblem be so
              located as to obstruct from view any part of the
              identification tags.

(Emphasis added).
                                          8

the trial court did not ―find that [the stop] was a legitimate traffic stop‖ and

suppressed the evidence recovered from appellant and his car during the March 16,

2012 stop. Accordingly, the trial court granted appellant‘s motion for judgment of

acquittal with respect to those counts, see supra note 1.5



      However, the trial court declined to suppress the additional drugs and

paraphernalia recovered from appellant on April 11, 2012 pursuant to the arrest

warrant because the latter events presented ―a different scenario‖ altogether, given

that the officers arrested appellant based on a ―valid‖ arrest warrant. Specifically,

the trial court credited Officer Cartwright‘s testimony that he knew Officer

Leveque had applied for and obtained an arrest warrant for appellant by the time

the officers saw appellant on April 11, 2012. Consequently, because the officers

arrested appellant based on a validly authorized arrest warrant, the trial court

reasoned that the only available challenge was to the validity of the affidavit itself,

based on ―intentional or reckless misrepresentations or omissions of material fact‖

under Franks v. Delaware[, 438 U.S. 154, 171 (1978)]. Finding no such grounds,

the trial court concluded that the ―arrest warrant remain[ed] . . . valid,‖ and the


      5
         The trial court noted that it wanted to be ―clear . . . [that it didn‘t] think
that the officer was trying to do something that was illegal, because there is some
obstruction and he knew there was . . . a law that prevents the obstruction of
license plates,‖ which he discussed with the court.
                                          9

police did not violate appellant‘s Fourth Amendment rights. Accordingly, the trial

court found appellant guilty of the charges (Counts 2 and 3), see supra note 1, and

this appeal followed.



                                II.       Discussion



      Appellant argues on appeal that the trial court erred by failing to exclude the

drug and drug paraphernalia evidence recovered by the police during appellant‘s

arrest and search on April 11, 2012. Appellant contends that because the trial court

determined that the initial traffic stop was illegal and granted his motion to

suppress the evidence recovered from that stop, the evidence later recovered

incident to his arrest on April 11, 2012 should also have been suppressed under

Wong Sun v. United States, 371 U.S. 471, 487–88 (1963) as derivative of the initial

traffic stop.6 The government counters that the Leon good faith exception applies

here because the exception is intended to prevent exclusion of evidence where

officers reasonably rely on a subsequently invalidated arrest warrant and the facts

surrounding the initial traffic stop are ―close enough to the line of validity to make

      6
         Appellant clarified at oral argument that the Leon good faith exception to
the exclusionary rule should not apply to his case because the affidavit supporting
appellant‘s arrest warrant was itself tainted by evidence obtained in violation of the
Fourth Amendment, and thus Wong Sun‘s rule requiring suppression of the
evidence governs instead.
                                         10

[the officers‘] belief‖ in the warrant‘s validity ―objectively reasonable,‖ citing

United States v. McClain, 444 F.3d 556, 565–66 (6th Cir. 2005) and United States

v. Fletcher, 91 F.3d 48, 52 (8th Cir. 1996).



      This court reviews the evidence underlying the trial court‘s ruling on a

motion to suppress in the light most favorable to the prevailing party, see Bennett

v. United States, 26 A.3d 745, 751 (D.C. 2011), deferring to the trial court‘s

findings of fact unless they are clearly erroneous, but reviewing its legal

conclusions de novo. Watson v. United States, 43 A.3d 276, 282 (D.C. 2012).

Whether police had reasonable, articulable suspicion or probable cause to justify a

traffic stop under the Fourth Amendment is a legal question. Id.; see generally

Jones v. United States, 972 A.2d 821, 824-25 (D.C. 2009). Police may lawfully

stop a vehicle and question a motorist upon witnessing or suspecting the

commission of a traffic offense, even if the violation is minor. Minnick v. United

States, 607 A.2d 519, 524 (D.C. 1992). However, an officer‘s suspicion that a

violation has occurred is not reasonable when the acts that make up the supposed

traffic offense are not actually prohibited by law, see United States v. McDonald,

453 F.3d 958, 961 (7th Cir. 2006), because an officer‘s mistake of law, ―no matter

how reasonable or understandable,‖ cannot provide the objective basis for
                                         11

reasonable, articulable suspicion or probable cause,7 see In re T.L., supra, 996

A.2d at 816.



      A. Whether the Initial Traffic Stop Was Lawful



      Our recently-released opinion in Whitfield makes clear that the initial traffic

stop in this case was not premised on a violation of the law because an obstructed

license plate motto does not violate the traffic regulations at issue, namely 18

DCMR §§ 422.5 and 422.6. See supra, 99 A.3d 650. Whitfield involved a traffic

stop premised on a license plate obstruction similar to that in the present case,

requiring us to interpret these traffic regulations. Id. at 652. Interpreting the

regulatory provisions at issue, we determined that they are ―ambiguous and subject

to differing interpretations,‖8 and that the ―historical, legislative, and other


      7
         ―In contrast to a mistake of law, when an officer stops a vehicle based on a
mistake of fact, i.e., an officer‘s mistaken belief that the facts before him or her
indicate what he or she correctly believes the law forbids, ‗we ask only whether the
mistake was reasonable.‘‖ Whitfield, supra, 99 A.3d at 655 n.12 (citing McDonald,
supra, 453 F.3d at 962).
      8
         Specifically, that ―the term ‗identification tag‘ under § 422.5 is ambiguous
and open to two competing interpretations; the literal meaning — i.e., the whole
physical plate itself — or referring only to the identifying information on the
tag[,]‖ and that the preclusion in § 422.6 on ―appurtenances more than twenty-four
square inches in area or which obstruct from view any part of the identification
tag‖ could be understood as defining an exception to § 422.5‘s general prohibition
                                                                        (continued…)
                                          12

circumstances weigh against‖ reading the provisions literally to ―prohibit[] the

obstruction of any part of the license plate.‖ Id. at 664. Applying the rule of lenity

to resolve the ambiguous language in favor of Whitfield, we held that § 422.5 does

not preclude ―foreign materials or attachments from being placed on or over

portions of the license plate that do not otherwise obscure critical identifying

information on the plate.‖ Id. ―Identifying information‖ includes ―numbers or

letters, the issuing jurisdiction, and any other critical identifying information,‖ but

does not include ―the state motto or nickname usually found on the bottom of the

plate.‖ Id. Furthermore, we held that § 422.6 ―merely defin[es] an excepted

attachment under § 422.5 — which we conclude does not encompass license plate

frames‖ and does not provide ―an independent basis for a traffic violation.‖ Id.

Accordingly, the police officers in Whitfield ―made a mistake of law by stopping

[his] vehicle, believing that the vehicle‘s license plate frame violated §§ 422.5

and/or 422.6‖ when ―identifying information‖ was clearly legible and only the

Texas state nickname was obstructed. Id.




(…continued)
on ―foreign materials,‖ or as ―an independent basis for a traffic violation.‖
Whitfield, supra, 99 A.3d at 659-60.
                                         13

      Based on Whitfield’s holding and interpretation of the regulations at issue,

the police officers in the present case had no lawful basis to stop appellant because

his license plate frame similarly did not obscure any ―identifying information‖ on

the license plate. See id. at 664. Officer Cartwright mistakenly relied on the fact

that the ―Taxation Without Representation‖ portion of appellant‘s license plate was

partially obstructed to conclude that he had probable cause to stop appellant. Such

mistakes of law, even when reasonable, ―cannot provide the objective basis for

reasonable suspicion or probable cause needed to justify a search or seizure [and]

the exclusionary rule is well-tailored to hold [law enforcement] accountable for

their mistakes.‖ In re T.L., 996 A.2d at 816-17 (citations omitted); see also

McDonald, supra, 453 F.3d at 961. Accordingly, we now assess how this mistake

of law affects the admissibility of the derivative evidence recovered incident to

appellant‘s arrest.



      B. Whether the Exclusionary Rule Applies



      Appellant contends that the derivative evidence obtained pursuant to the

tainted arrest warrant must be excluded simply because there was no ―unattenuated

causation‖ to support the arrest warrant. In other words, because the evidence was

not acquired from an independent source ―sufficiently distinguishable to . . . purge[
                                          14

the] primary taint,‖ Wong Sun, supra, 371 U.S. at 488, it should be excluded as an

―exploitation‖ of the illegal arrest warrant. We agree.



      The exclusionary rule prohibits the use in prosecution of evidence obtained

in violation of a suspect‘s Fourth Amendment rights, when exclusion will

discourage future misconduct on the part of law enforcement. See Leon, supra,

468 U.S. at 906. The rule not only excludes evidence that is the primary result of

the violation, ―but also prohibits the introduction of derivative evidence . . . that is

the product of the primary evidence, or that is otherwise acquired as an indirect

result of the unlawful search, up to the point at which the connection with the

unlawful search becomes ‗so attenuated as to dissipate the taint.‘‖ Murray, supra,

487 U.S. at 536-37 (citing Nardone v. United States, 308 U.S. 338, 341 (1939);

accord Wong Sun, supra, 371 U.S. at 484-85 (excluding evidence that is the ―fruit‖

of unlawful police action, including ―indirect . . . and direct products of such

invasions‖).



      Where a sufficiently attenuated or independent source for the tainted

evidence exists, however, exclusion is not appropriate, as doing so ―would put the

police in a worse position than they would have been absent any error or

violation.‖ Id. at 541 (citing Nix v. Williams, 467 U.S. 431, 443 (1984)). In
                                         15

Murray, federal agents unlawfully entered a warehouse and discovered large

quantities of marijuana, then obtained a search warrant for the warehouse without

revealing their prior warrantless entry, pursuant to which they seized the

marijuana. Id. at 535-36. The Supreme Court held that that where ―a later, lawful

seizure is genuinely independent of an earlier, tainted one,‖ the independent source

doctrine applies to prevent exclusion. Id. at 542. However, the doctrine would not

apply to prevent exclusion ―if the agent‘s decision to seek a warrant was prompted

by what they had seen during the initial [unlawful] entry, or if information

obtained during that entry was presented to the Magistrate and affected [his or her]

decision to issue the warrant.‖ Id. at 541-42.



      Here, evidence obtained pursuant to an unlawful action on the part of law

enforcement formed the sole basis for the arrest warrant. The record does not

demonstrate that the officers would have come upon the derivative evidence

obtained on appellant‘s person pursuant to the tainted arrest warrant in the absence

of the unlawful traffic stop, and there was no intervening circumstance or other

attenuation to purge the taint of the initial illegality. See Murray, supra, 487 U.S.
                                          16

at 536-47.9 Accordingly, the derivative evidence must also be excluded. Id. The

trial court erred by denying appellant‘s motion to suppress this evidence.



                                III.      Conclusion



      The traffic stop at issue was premised on a ―mistake of law‖ that cannot

provide the objective basis for reasonable suspicion or probable cause and

therefore cannot support a valid warrant. Because there was no independent source

or other attenuation to purge the taint of the initial illegality, the exclusionary rule

applies to suppress the derivative evidence. We hereby reverse the partial denial of



      9
         We need not determine whether Officer Cartwright‘s actions were ―close
enough to the line of validity‖ based on his good faith attempt to comply with the
traffic regulation, as the government suggests, such that the good faith exception to
the exclusionary rule applies in this case. See Leon, supra, at 920–22; United
States v. Edelen, 529 A.2d 774, 785–86 (D.C. 1987) (explaining that the ―good
faith exception‖ prevents exclusion where an officer‘s conduct is ―objectively
reasonable,‖ such as conducting a search in reasonable reliance on a properly
issued search warrant later found to be unsupported by probable cause or otherwise
defective). Our holding in T.L., supra, 996 A.2d at 816-17 explained that the
justifications for the good faith exception to the exclusionary rule are inapplicable
where police do not act in accordance with governing law. Id. In such cases,
applying the good faith exception ―would defeat the purpose of the exclusionary
rule, for it would remove the incentive for police to make certain that they properly
understand the law that they are entrusted to enforce and obey.‖ Id. at 817 (citing
United States v. Lopez-Soto, 105 F.3d 1101, 1106 (9th Cir. 2000)); accord United
States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003).
                                        17

appellant‘s motion to suppress and judgment of the trial court and remand for

proceedings consistent with our decision.



                                             So ordered.
