United States v. Smith

• Decision Date: 30 January 2019
• Docket Number: Criminal Action No. 18-193 (RDM)
• Citation: 373 F.Supp.3d 223
• Parties: UNITED STATES of America, v. Clifton SMITH, Defendant.
• Court: U.S. District Court — District of Columbia

373 F.Supp.3d 223

UNITED STATES of America,

v.Clifton SMITH, Defendant.

Criminal Action No. 18-193 (RDM)

United States District Court, District of Columbia.

Signed January 30, 2019

Stephen Joseph Gripkey, U.S. Attorney's Office Violent Crimes Narcotics and Trafficking (VCNT), Washington, DC, for United States of America.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Defendant Clifton Smith's motion to suppress physical evidence raises an unsettled issue of Fourth Amendment law: Whether the smell of phencyclidine ("PCP"), alone, justifies the use of handcuffs during a Terry stop. Dkt. 8. The relevant events in this case occurred on March 30, 2018, at approximately 5:24 p.m., when two Metropolitan Police Department ("MPD") officers were patrolling the 1000 block of 14th Street, S.E. The officers observed Defendant standing next to the open driver's-side door of a parked car with tinted windows. At the time, no one was in the driver's seat, but another man was seated in the passenger seat, a woman was standing near the left tail light, and an infant and a toddler were seated in the back seat of the car. Approximately thirty seconds after exiting the patrol car, one officer decided to handcuff Defendant because the officer smelled PCP. The other officer then led Defendant—still handcuffed—to the rear of the car and conducted a pat-down with Defendant's consent. The officer felt a hard, cylindrical object in the crotch of Defendant's jeans, which he suspected to be a vial of PCP. It turned out to be the barrel of a loaded, semi-automatic handgun. The police also recovered a small bag of heroin and $ 2,110 in cash from Defendant's person.

Based on that evidence and evidence that Defendant had a prior felony conviction, Defendant was charged with one count of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of unlawful possession of a controlled substance, in violation of 21 U.S.C. § 844(a). He moves to suppress all tangible objects seized from him, primarily arguing that the officers unlawfully arrested him when they placed him in handcuffs. For the reasons explained below, the Court will GRANT the motion to suppress.

I. FINDINGS OF FACT

Although the defendant ordinarily carries the burden on a motion to suppress, see Rakas v. Illinois , 439 U.S. 128, 131 n.1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), where, as here, the defendant produces evidence that he was subjected to a warrantless seizure, the burden shifts to the government to justify the officers' actions. See 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(b) (5th ed. 2018) [hereinafter "Search & Seizure "] ("[I]f the police acted without a warrant[,] the burden of proof is on the prosecution."); see also Florida v. Royer , 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) ("It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion ... satisf[ied] the conditions of an investigative seizure."). Based on the officers' testimony, the parties' briefing and oral argument, and the submitted evidence,¹ the Court makes the following findings of fact:

On March 30, 2018, Officers Owais Akhtar and Charles Smith were patrolling the 1000 Block of 14th Street, S.E., in the District of Columbia in an unmarked police vehicle. Dkt. 16 at 5, 17, 85 (Hrg. Tr.). Both were members of the MPD's crime suppression unit, which "go[es] out ... and see[s] if there's any suspicious activity going on."Id. at 134 (Hrg. Tr.). The officers were dressed in full police uniform. Id. at 17 (Hrg. Tr.). At the time, Officer Akhtar had four years of experience with the MPD, id. at 5 (Hrg. Tr.), and Officer Smith had ten years of experience, id. at 83, 85 (Hrg. Tr.). Both officers testified that they were familiar with the area they were patrolling and characterized it as a "high-crime" neighborhood where drugs and guns were prevalent. Id. at 6–8, 87 (Hrg. Tr.).

A. Stop

At approximately 5:24 p.m., Officers Akhtar and Smith were driving on 14th Street, S.E., when they saw Defendant standing next to a parked white Nissan Altima with dark tinted windows. Dkt. 10 at 1–2. The driver's-side door of the vehicle was open, and Defendant was standing between the door and the inside of the car, with his back to the officers. Gov't Ex. 1 (OA 21:25:44). The officers exited their patrol car to conduct "a traffic stop" due to the tint.² Dkt. 16 at 18 (Hrg. Tr.). At that point, Officer Akhtar's body-worn camera footage shows that Defendant was looking into—but not leaning into or reaching into—the car. Gov't Ex. 1 (OA 21:25:49–50). As Officer Akhtar approached the vehicle, a woman (later identified as the car's owner) was standing near the left tail light, and a man was sitting in the passenger seat. Id. (OA 21:25:48–21:26:01). Unbeknownst to the officers at that time, an infant and a toddler were in the back seat.

Officer Akhtar walked towards Defendant, and Officer Smith approached the passenger-side of the vehicle. As he approached Defendant, Officer Akhtar called out, "What's going on, boss?" Id. (OA 21:25:48). Defendant turned to look at him and then leaned into the car to converse with the passenger, who had asked, "What's going on?" Id. (OA 21:25:51–54). Officer Akhtar responded, "Tint." Id. (OA 21:25:54). Defendant then said, "Huh?" Id. (OA 21:25:55). By then, Officer Akhtar was standing directly behind Defendant, within arm's reach, and said, "Illegal tint, that's what's up." Id. (OA 21:25:56). Defendant turned away from the driver's-side door, at which point Officer Akhtar grabbed his arm. Id. (OA 21:25:59). Defendant immediately protested, "I ain't going nowhere." Id. Officer Akhtar warned, "Don't do anything stupid" and turned Defendant around so that the front of Defendant's body was against the car. Id. (OA 21:26:00–03). Officer Akhtar began to squeeze Defendant's back over his jacket and asked, "You ain't got no PCP on you, right?" Id. (OA 21:26:04). Defendant indicated that he did not, as Officer Akhtar moved Defendant's arms behind his back. Id. (OA 21:26:07–09). Officer Akhtar then asked Officer Smith to "pass [him] the handcuffs." Id. (OA 21:26:12). He again asked Defendant if he had PCP, to which Defendant again indicated that he did not. Id. (OA 21:26:19).

Meanwhile, Officer Smith was standing at the passenger side of the vehicle. The passenger-side door was closed and the window was open a sliver when Officer Smith first approached. Gov't Ex. 2 (CS 21:25:56). As he walked up to the car, Officer Smith said, "You're still in public space." Id. (CS 21:26:06). The passenger then rolled down his window, id. (CS 21:26:09), and Officer Smith repeated that the car was in a public space, id. (CS 21:26:11). The passenger informed Officer Smith that his son was in the back seat and asked for permission to reach for his child. Id. (CS 21:26:13–15). At that point, Officer Smith responded to Officer Akhtar's request for handcuffs and walked around the front of the car to where Officer Akhtar and Defendant were standing. Id. (CS 21:26:16). When Officer Smith arrived with the handcuffs, he helped secure Defendant. Id. (CS 21:26:25–31). Approximately thirty seconds elapsed between the time the officers exited their vehicle and when Officer Akhtar maneuvered Defendant's arms into position to be handcuffed. See Gov't Ex. 1 (OA 21:25:48–21:26:12).

1. PCP Odor

Both Officer Akhtar and Officer Smith testified that they smelled PCP when they encountered Defendant. Officer Akhtar stated that he is well-acquainted with the smell from his training and from the "numerous arrests" he has made "which involved PCP." Dkt. 16 at 8 (Hrg. Tr.). He described PCP as having a "very strong, distinct ... chemical odor," which can be "smell[ed] ... from far away" and which "lasts for a long time." Id. at 8, 10 (Hrg. Tr.). He testified that the smell from an open vial of PCP is strong enough to fill "the whole entire courtroom." Id. at 11 (Hrg. Tr.). Officer Smith corroborated this testimony. See id. at 91–92 (Hrg. Tr.). He further explained that PCP is usually kept in a glass vial and that individual users often dip cigarettes "into the liquid and then ... smoke the cigarette." Id. at 92 (Hrg. Tr.).

The officers' testimony about the source of the PCP odor, however, varied over time. Shortly after Defendant's arrest, Officer Smith signed two statements. In the first, he attested that "[a]n odor consistent with PCP emanated from Defendant['s] ... person." Dkt. 19-1 at 2. In the second, he added that "there was an empty glass vial in the driver's side car door." Id. at 4. A few days later, at the preliminary hearing in Superior Court, where the case was originally charged, Officer Akhtar also testified that, as he "approached" Defendant, he "could smell an odor consistent with PCP emanating from [Defendant's] person" and that "an empty vial" was located "in the car's door," specifically, the "driver door." Joint Ex. 1 at 5. When Officer Smith subsequently appeared before the grand jury in Superior Court, however, he no longer asserted that the smell "emanated" from Defendant. Instead, he testified that "[i]t was coming from the vehicle," Joint Ex. 2 at 5, and, when asked if he was "ever able to locate the source of the odor," he stated: "In the driver's side door in the handle there was a vial of PCP but it had been empty, but it was—you could tell that there had been PCP in it from the odor," id. at 7. Officer Smith later acknowledged at the suppression hearing that his grand jury testimony was based on what Officer Akhtar told him "after the arrest." Dkt. 16 at 149 (Hrg. Tr.). Two months later, Officer Smith appeared before the federal grand jury and again amended his testimony. Asked about the source of the PCP odor, he stated: "When we came to the area, when my partner, Officer Akhtar was with [Defendant], he wasn't sure if it was the vehicle or [Defendant], but...