Smith v. United States
| Decision Date | 29 September 2022 |
| Docket Number | 20-CF-298 |
| Parties | Gregory Ray SMITH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | D.C. Court of Appeals |
Dennis M. Hart, Washington, for appellant.
Chimnomnso N. Kalu, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time, and Chrisellen R. Kolb, Elizabeth H. Danello, Kathryn Bartz, and Tamara Rubb, Assistant United States Attorneys, were on the brief, for appellee.
Before Easterly, McLeese, and Deahl, Associate Judges.
Gregory Ray Smith was pulled over by police officers for excessive window tint on the automobile he was driving. When officers approached his car, they saw in the car's center console an unsealed bottle of Rémy Martin V, about one-third full. They asked Smith to exit the car and then proceeded to search it. Inside the car, officers found a small "otter box"—a "hard plastic case with two latches on it"—which they opened. They found three vials containing PCP inside the otter box. The officers then placed Smith under arrest and, while searching him incident to that arrest, found a fourth vial of PCP on his person. Smith was convicted of one count of possession of liquid PCP, D.C. Code § 48-904.01(d)(2), which he now appeals.
Smith raises two arguments on appeal. First, he argues that police officers violated the Fourth Amendment when they searched his vehicle because the apparent open container of alcohol, though it provided probable cause for Smith's arrest, did not provide police with reason to believe that further evidence of the arrestable offense would be found in the car. See Arizona v. Gant , 556 U.S. 332, 335, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (). We agree, and further agree that the vial found on Smith's person was the fruit of the unlawful search, and thus reverse his conviction. Second, Smith argues that there was insufficient evidence to support his conviction for possession of PCP. We disagree with him on that point, so the government may retry Smith on the possession of PCP charge.
At around 5 p.m. one evening, officers from the District's Gun Recovery Unit pulled over a Honda Civic because it appeared to have excessively tinted windows.1 Smith was the driver and sole occupant of the car. During the traffic stop, officers observed what appeared to be a bottle of alcohol in the car's center console, later identified as Rémy Martin V. The bottle's seal was broken, and by the officers’ estimation, it was approximately one-third full.
Smith exited the vehicle at the officers’ instruction, and the officers then searched the passenger compartment of the car "to see if there[ were] any other liquor[ ] bottles[,] beer cans, cups, wine bottles, things of that nature" inside. Officers found a black plastic bag on the front passenger floorboard, and inside of the bag was a "hard plastic case with two latches on it"—usefully described by one witness as an "otter box." An officer opened the otter box and discovered an "eye dropper" and "three glass vials" of "[a]mber like liquid," which—in the officer's opinion—"smelled of PCP." A photograph of the otter box was provided to the trial court at the suppression hearing, and that photograph is appended to this opinion. It shows a small opened box, roughly the length of a dollar bill, with three small vials inside of it. After the recovery of the three vials from the car, Smith was placed under arrest. At that point, one of the officers searched Smith's person and recovered an additional vial, which was made of the same material and had the same cap as the vials from the car, and which "contained a liquid that was similar to the liquid" in the other vials.
Smith was charged with (1) possession with intent to distribute PCP; (2) unlawful possession of liquid PCP; (3) possession of drug paraphernalia (the eye dropper); and (4) possession of an open container of alcohol ("POCA") in a vehicle upon a street. Smith filed a pretrial motion seeking to suppress the PCP vials, arguing that the search of his car violated his Fourth Amendment rights and that the search of his person was a fruit of that illegality. The government countered that because it had probable cause to arrest Smith for POCA before any search, both the search of Smith's vehicle and his person were valid searches incident to his arrest. Notably, the government has never contended that officers had any reason to suspect there was PCP in Smith's car prior to uncovering the vials in the otter box.
The trial court denied Smith's suppression motion.2 The court found that the initial stop was justified by what appeared to be excessive window tint on Smith's car, and that once officers observed an open liquor bottle in the car, they had probable cause to arrest Smith for POCA.3 Smith does not dispute those preliminary steps in the court's analysis, but only the analysis that follows. The court then reasoned that, because officers could arrest Smith for POCA, they could search the vehicle for other "accouterments of liquor," such as "mixing jars or small cups, shot glasses, [or] other bottles of liquor." The court also found that the officers "had the right to go into the [black plastic] bag" because it "could have furthered their investigation into the POCA charge." The court never specifically discussed the further intrusion into the otter box itself, or the extent to which it might have contained any items the officers had reason to look for in the car.
At trial, the government introduced evidence that an officer conducted a "field test" on each of the vials recovered at the scene. Those tests indicated that the liquid in each vial was "possibly" PCP. After that, the officer "remediated" the vials. To do so, the officer transferred a portion of the liquid from each of the four vials into a single vial, resulting in a combined sample that was sent to the laboratory for testing (the remaining liquid was destroyed). Smith did not object when that single, combined vial was admitted into evidence at trial. The government then called an expert witness—a forensic chemist who had analyzed the remediated sample. That witness testified that her analysis had reliably determined that the remediated vial contained a "measurable amount" of PCP.
Smith's counsel cross-examined the witness as to whether she could say, based on her testing, that any particular vial of the four vials found at the scene had contained PCP. The expert seemed to agree that she could not know the contents of any particular vial because she had only tested the one remediated vial.
At the conclusion of the evidence, the court read the following instruction to the jury defining the possession element of the possession of PCP charge:
Possession means to have physical possession or to otherwise exercise control over tangible property. A person may possess property in either of two ways. First, the person may have physical possession of it by holding it in his or her hand or by carrying it in his or her body or person. This is called actual possession. Second, a person may exercise control over property not in his or her physical possession if that person both has the power and the intent at any given time to control the property. This is called constructive possession. Mere presence near something or mere knowledge of its location, however, is not enough to show possession.
After several hours of deliberation, the jury acquitted Smith of all but the possession of PCP charge, on which it convicted him. Smith now appeals that conviction.
Smith argues that the trial court erred when it did not suppress the four vials recovered by the officers at the scene of his arrest. He also argues that there was insufficient evidence to support his conviction for possession of liquid PCP. We consider each of those arguments in turn.
We first consider Smith's argument that the search of his vehicle violated his Fourth Amendment rights, and that the subsequent search of his person was a fruit of that initial illegality.
When reviewing a trial court's denial of a motion to suppress, we "view the evidence in the light most favorable to the prevailing party," Bennett v. United States , 26 A.3d 745, 751 (D.C. 2011) (citation omitted), which is the government in this case. While we draw all reasonable inferences in favor of upholding the trial court's ruling, we review the trial court's legal conclusions de novo. Id.
"A search conducted without a warrant is per se unreasonable under the Fourth Amendment unless it falls within a few specific and well-established exceptions." United States v. Taylor , 49 A.3d 818, 821 (D.C. 2012) (citation and internal quotation marks omitted); see also Mincey v. Arizona , 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). "Under one such exception," often referred to as a Gant search, "police officers may conduct a warrantless search of a vehicle, incident to an arrest, if they have reasonable, articulable suspicion to believe that the vehicle contains evidence of the offense of arrest." United States v. Lewis , 147 A.3d 236, 239 (D.C. 2016) (en banc) (citing Gant , 556 U.S. at 351, 129 S.Ct. 1710 ). "This standard requires a showing considerably less than preponderance of the evidence but more than a mere hunch or gut feeling." Taylor , 49 A.3d at 824 (citations and internal quotation marks omitted). Whether a search is lawful under Gant "does not turn on per se rules based solely on the nature of the offense of arrest, however, but rather requires a case-specific inquiry into whether, in the particular circumstances, the police have a reasonable, articulable suspicion that relevant evidence might be found in the specific vehicle at issue." United States v. Nash & Lewis , 100 A.3d 157, 161 (D.C. 2014) ; see also ...
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