United States v. Smith

• Decision Date: 15 December 2021
• Docket Number: CRIMINAL ACTION NO. 21-385
• Citation: 575 F.Supp.3d 542
• Parties: UNITED STATES of America v. Malik SMITH Register #70080-066 FDC Philadelphia
• Court: U.S. District Court — Eastern District of Pennsylvania

575 F.Supp.3d 542

UNITED STATES of America

v.Malik SMITH Register #70080-066 FDC Philadelphia

CRIMINAL ACTION NO. 21-385

United States District Court, E.D. Pennsylvania.

Filed December 15, 2021

Ashley Nicole Martin, Assistant US Attorney, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

OPINION

WENDY BEETLESTONE, District Judge

Defendant Malik Smith is charged with one count of being a felon in possession of ammunition, specifically 19 live rounds of 9-millimeter Luger ammunition, in violation of 18 U.S.C. § 922(g)(1). He has filed two motions to suppress the firearm, his DNA, and all derivative evidence from the firearm and his DNA. At a hearing the Government presented documentary and video evidence, and testimony from several law enforcement officers. For the reasons that follow, Defendant's motion to suppress evidence of the firearm shall be denied, but his motion to suppress his DNA sample and evidence derived therefrom shall be granted.

I. BACKGROUND¹

Around 9:25 p.m. on August 13, 2020, Philadelphia Police Officers Clifford Gilliam and Kyle Smith observed a 2011 Nissan Maxima with an excessive window tint driving in Northeast Philadelphia, Pennsylvania. The tint on the car's side and rear windows was so dark that the officers could not see into the vehicle. Upon first observing the vehicle, Officer Smith checked the vehicle information in the Police computer terminal and learned that the car was registered to a Sherrita Sharron Moore. The officers activated the police cruiser's overhead lights and signaled the driver, the Defendant, to pull over (Moore had permitted Defendant to borrow her car that night). After a few moments, the Defendant complied and pulled over on the 1600 block of Dyre Street. The area has a reputation for high crime and is dimly lit at night—there are, at most, two streetlights.

The officers stopped some distance behind the Defendant and directed him to, through loudspeaker, to roll down the car's windows. Once the Defendant complied, the officers got out of their cruiser, briefly met in front of it and turned on their flashlights before approaching the vehicle. Officer Gilliam walked along the driver's side of the car, shining his flashlight into the backseat area to determine if there were any occupants in the car aside from the driver. During his scan of the backseat area, Officer Gilliam did not observe a firearm or any other contraband in the car. Once he was a few feet away from the car, Officer Gilliam realized that the Defendant was the sole occupant in the car. Upon reaching the driver's window, he asked the Defendant to produce a copy of his license and registration. Defendant complied and behaved normally; he did not exhibit any nervous or avoidant behavior.

Meanwhile, Officer Smith walked alongside the passenger side of the car, scanning his flashlight around the backseat area, then the front passenger seat, and finally back again to the backseat area. The second time that Officer Smith looked at the backseat area, he leaned to one side (not crossing into the body of the car) and noticed an extended magazine for a firearm on the car's floorboard, sticking out from under the front passenger seat. He looked closer and saw the tan handle of a gun bearing a "P80" stamp at the end of the gun's grip. After noticing the firearm, only moments after Officer Gilliam had asked Defendant for his license and registration, Officer Smith made a motion to Officer Gilliam indicating that he had seen a gun and that Officer Gilliam should handcuff the Defendant. Officer Smith then came around to the driver's side to provide back-up to Officer Gilliam as he handcuffed the Defendant, removed him from his car and walked back to the cruiser. Once Defendant was detained, Officer Smith returned to the car, opened the car door and recovered a tan Polymer 80, Model PF940V2 ghost-gun loaded with 19 rounds of 9-millimeter ammunition.

Defendant was arrested and charged by state authorities that same day and, at some point later, was transported to the Northeast Detective Division in Philadelphia. Around 12:56 p.m. the next day, Philadelphia Police Detective Timothy McIntyre read the Defendant a Miranda warning. He then asked Defendant a series of "yes" or "no" questions to confirm that Defendant understood his rights. In relevant part, Detective McIntyre asked, "do you [inaudible] you have the right to remain silent, or do you just, or do you want to talk to me about why, basically why you're here?" Defendant responding by shaking his head no. Detective McIntyre clarified, "Okay, so um, so no, if you don't want me, if you want me, to remain silent you have to say ‘yes’ or ‘no.’ " Defendant replied, "I just wanna go." Detective McIntyre replied, "I hear ya, I know you're tired, been here a while, I'm trying to speed this up as quick as I can ... and we'll speed this up for you." Detective McIntyre asked once again, "do you want to remain silent or talk to me?" Defendant now stated that he wished to remain "silent." He then followed up, asking, "you don't want to talk to me about why you're here?" Defendant once again shook his head, no.

Detective McIntyre moved on by asking, "do you want either to talk to a lawyer at this time or have a lawyer with you while we ask you any questions, do you understand that?" Defendant responded "yes." Detective McIntyre clarified this ambiguous question with a narrower one: "do you want a lawyer here or do you want me to ask you some questions?" Defendant replied, "I want a lawyer, I don't want to do this ..." and complained about his detention. After a brief discussion, Detective McIntyre asked once again, "do you either want to talk to a lawyer at this time or have a lawyer with you while we ask you any questions?" Defendant replied, "No, I want a lawyer." Detective McIntyre followed up, "You want a lawyer? You don't want to talk to me?" Defendant confirmed, "No, I want my lawyer." Detective McIntyre questioned Defendant a final time: "Do you want to remain silent at this time? [Y]ou do not want to talk to me without a lawyer, is that correct?" Both questions elicited responses of "yes" from Defendant.

Sometime after 1:02 p.m. Defendant was then taken "downstairs."² Detective McIntyre testified that while he did not know for certain what happened after Defendant left the interrogation room, he assumed that someone asked the Defendant if he wanted to provide consent for a DNA sample and that Defendant agreed. At 1:16 p.m., about 14 minutes after Defendant invoked his right to remain silent and requested an attorney, Defendant was back in the same interrogation room with Detective McIntyre to consent to a swab of his mouth for a DNA sample, known as a "buccal swab." During this 14-minute interval, Defendant was not provided with a lawyer. Nothing in the record suggests that he waived his invocation of his rights to remain silent or to counsel.

Detective McIntyre began, "so this is going to speed up—in order not for us to get a search warrant, this is a consent to search, I'm going to fill this out date and time, and my [inaudible] is going to come in and swab your left cheek, right cheek, and under your tongue, alright?" He continued, "I'm going to need you to sign two things, your name, Malik Smith, your signature and today's date. Got that?" Defendant peered over to review the consent document. Detective McIntyre said: "I'm going to read it all to ya, this is what's called a consent to search. You're providing us with consent to take your uh, swab of your mouth to keep on file. I'm going to fill this out, date and time, my partner's gonna, just uh, swab you left to right, and then we're going to take you downstairs to see the judge, okay?" Detective McIntyre proceeded to read the entirety of the consent form to Defendant: "I need you to write I am Malik Smith, freely and voluntarily consent to an oral swab or blood DNA sample. This sample will be used by the Philadelphia Police Department for criminal investigative purposes. I understand that the detective has no search warrant authorizing this search and I have the constitutional right to refuse permission for this search to be conducted. Okay, do you understand that?" Defendant mumbled "yeah, I do" in response, and then signed the consent form. Another officer proceeded to swab the Defendant's mouth, and then escorted him out of the interrogation room.

At the suppression hearing, Detective McIntyre testified that at the time the swab was taken the police had already collected DNA from the firearm recovered from Defendant's car.³ However, the police still needed the Defendant's DNA to determine whether his DNA was on the firearm, which in turn would determine whether he had possessed the gun and/or the ammunition loaded within. Both Detective McIntyre and Special Agent Kyle Raguz of the Federal Bureau of Alcohol, Tobacco and Firearms ("ATF") testified that had Defendant refused to consent to the swab, the police would have applied for and obtained a search warrant to collect his DNA—a process which takes approximately 2-4 hours.

Following the DNA collection, the Philadelphia Police Department's DNA Lab ("Philadelphia Lab") conducted a forensic analysis comparing the Defendant's DNA to the DNA found on the firearm. A lab report issued on October 13, 2020 by the Philadelphia Lab could not determine whether the DNA from the recovered firearm matched that of the Defendant. In the two months between the date of Defendant's arrest and the Philadelphia Lab's results, there were discussions about whether the Federal Government would adopt the case from state prosecutors. The U.S. Attorney's Office ultimately decided against doing so based on the Philadelphia Lab's determination that the DNA comparison was inconclusive.

Eight months later, on June 4, 2021, the DNA collected from the firearm and from the Defendant was submitted to the Bode Forensic Laboratory ("Bode Lab") for a second opinion. According...