Ford v. United States
| Decision Date | 25 February 2021 |
| Docket Number | No. 17-CF-210,17-CF-210 |
| Citation | 245 A.3d 977 |
| Parties | Marcus C. FORD, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Gregory Lipper for appellant.
Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman and Ethan Carroll, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Beckwith, Associate Judges, and Nebeker, Senior Judge.
Appellant Marcus Ford encountered four police officers in the fourth-floor hallway of his apartment building and, after consenting to be searched by one of them, grabbed his pocket and touched the officer's hand to prevent the officer from continuing the search. The officer handcuffed Mr. Ford, resumed the search of Mr. Ford's jeans pockets, and found a vial of PCP and multiple baggies of cocaine inside a rubber or plastic glove. When Mr. Ford moved to suppress that evidence, the trial court ruled that the officer's search was justified because the consensual encounter between Mr. Ford and the officer "never stopped." A jury subsequently convicted Mr. Ford of various drug-related offenses.
On appeal, Mr. Ford primarily argues that the trial court erroneously denied his motion to suppress because Mr. Ford unequivocally revoked his consent to be searched. We agree, and therefore remand the record to allow the trial court to render additional findings and conclusions as to whether the officer had a lawful basis for searching Mr. Ford's pocket.
The government presented the following evidence at the suppression hearing. On February 27, 2016, Officer Justin Branson and three other officers were patrolling inside a public housing complex. Officer Branson testified that he and the other officers had been assigned to patrol this area because of a "high volume of drug trafficking" in the neighborhood surrounding the building. He also said that within the building, he had recently seen "disregarded, empty glass vials" that he believed were "consistent with PCP," as well as other items such as empty Ziploc baggies, which he considered "indicative" of ongoing drug sales and usage in the building. Because of these recent observations, Officer Branson and the other officers conducted a walkthrough of the building.
As the four officers were exiting the stairwell onto the fourth floor, Mr. Ford was coming from the hallway toward the stairwell. Officer Branson testified that Mr. Ford looked "startled" and "very nervous," that his "eyes got big," that he had a "deer in the headlights" look, and that he was "frozen stiff." Mr. Ford did not enter the stairwell, but "started to almost pivot" and "rotate[d] his body away" from Officer Branson "like he was concealing his right side." Officer Branson testified that he entered the hallway and that Mr. Ford "put his right side up against the wall" and was "almost like hugging the wall as [Officer Branson] walk[ed] past him." In Officer Branson's view, Mr. Ford's movements were "unnatural and weird" and it was strange for Mr. Ford to pivot back into the hallway when he had been about to enter the stairwell.
Officer Branson testified that, within the first five seconds of the encounter, he Mr. Ford was wearing "average" jeans that were neither overly tight nor baggy, and Officer Branson could "see the object" through these jeans: it was "a bulge like in contour size to a vial of PCP." Officer Branson stated that he "kn[e]w the history" of the building, had seen empty PCP vials in the building's stairwell, and "already had that in mind" when he saw the bulge.
According to Officer Branson, Mr. Ford said he lived in the building and did not have anything illegal on him. Officer Branson testified that at this point, he asked Mr. Ford, "May I search you?" or "May I check you?" and that Mr. Ford responded "Yes." Officer Branson then reached down and touched the bulge that he saw in Mr. Ford's pocket and discerned from this touch that "the object [he] felt was consistent ... with a glass vial of PCP." Officer Branson testified that he could tell that it was not a Five-Hour Energy bottle because Five-Hour Energy bottles are a "thin plastic," but this bottle "felt like a glass vial." Officer Branson testified that as soon as he felt the bulge, Mr. Ford "immediately reached down and grabbed his pocket to stop [Officer Branson] from going to that pocket." He stated, "[B]ased on [Mr. Ford's] reaction"—that "he grabbed and was fearful"—Officer Branson felt "confident" that the bulge was a vial of PCP. He then put handcuffs on Mr. Ford.
Officer Branson removed from Mr. Ford's pocket a one-ounce vial that he said was "inside of a plastic like purple glove or a plastic glove" or "rubber glove" that was "twisted shut." Along with the vial of what proved to be PCP, the glove contained "some 13 in total small Ziploc baggies containing a white rocklike substance," and the officers had to "fish ... out" the Ziploc bags from the "different fingers" of the glove. Officer Branson also recovered $331 in cash from Mr. Ford's other pocket.
Mr. Ford filed a motion to suppress, arguing that the search was unsupported by reasonable suspicion or probable cause. The government's position was that the search was consensual because Mr. Ford did not unequivocally withdraw his consent. But even if Mr. Ford had withdrawn his consent, the government argued, the police were justified in continuing the search because the incriminating aspects of the vial were apparent to Officer Branson based on his experience and training, the area in which the officers were patrolling, and Mr. Ford's "reaction to Officer Branson's touching the vial of PCP through his pants." Finally, the government argued that the additional search of Mr. Ford's pockets after Mr. Ford was arrested was justified as a search incident to a lawful arrest.
The trial court ruled that Mr. Ford consented to the search and that the search never stopped being consensual. Specifically, the court found that The court stated that although the search was "interrupted briefly" when Mr. Ford moved his hand, Mr. Ford "never did any of the things that the other cases require to remove himself from the consensual search." While the trial court acknowledged that Mr. Ford "put his hand there and tried to stop him," it concluded that "putting a hand there—is not sufficient under the law to remove yourself" from the search.
As to whether the officers had probable cause for the search, the court viewed it as "very close case," noting that "if we had a nice, hard rock or something obviously easily identified as drugs, it would be a better case for the government." The court ultimately declined to "make a ruling one way or the other," focusing instead on its conclusion that Mr. Ford had consented to the search and that "even if he was arrested, and even if he was arrested illegally, it didn't change the search from being consensual."2
The government called Detective George Thomas to testify at trial as an expert in "the distribution and use of narcotics," "the packaging of narcotics for street level distribution," "the manner in which narcotics dealers distribute narcotics in the District of Columbia," and "the price for which narcotics are sold at street value." Mr. Ford did not object. To establish a foundation for Detective Thomas's testimony, the government elicited from him that he had worked on "thousands" of narcotics cases, including those involving cocaine and PCP; that he had worked undercover to purchase narcotics approximately one hundred times; that he "ke[pt] current" with drug trafficking patterns and market prices for drugs in D.C. by, among other things, getting "out in the streets" and talking with individuals who have been apprehended for using or selling drugs; and that he received "many hours" of formalized training from various law enforcement organizations. Detective Thomas stated that based on those experiences, he was familiar with the "various ways" that cocaine and PCP are packaged and sold in D.C., as well as their relative costs. He also testified that he had read studies and helped prepare reports for law enforcement agencies on "drug trends, prices, and the abuse of drugs ...."
Detective Thomas testified that because of the amount of each drug, the packaging, and the cash found on Mr. Ford, he concluded that the vial and zips recovered from Mr. Ford's pocket were consistent with distribution, rather than casual use. He stated that regular users usually buy one to three "dippers" of PCP—cigarettes or cigars dipped into a vial of liquid PCP—and that it would be atypical for a user to carry a full one-ounce vial (which can yield seventy-five to eighty dippers total). Similarly, regular users of cocaine purchase only two or three "zips" at a time. Detective Thomas testified that it is "not common" for a regular user to have a one-ounce vial of PCP and thirteen bags of cocaine at one time like Mr. Ford did. More likely, a person with this quantity and combination of drugs on hand would be a "one-stop-shop" kind of dealer who had "clientele or customers requiring both" types of drugs. Detective Thomas said that if he believed he was dealing with a mere possession case, he would have "advise[d] the government" accordingly after...
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50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping
...reflexively admit expert testimony because” they “ha[d] become accustomed to doing so under the . . . Frye test.” Ford v. United States, 245 A.3d 977, 988 (D.C. 2021) (citations and quotation marks omitted). In the District, this gatekeeping function, extends, as well, to prejudice exclusio......