West v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: THOMPSON, Associate Judge
• Citation: West v. United States, 100 A.3d 1076 (D.C. 2014)
• Decision Date: 18 September 2014
• Docket Number: No. 12–CF–1657.,12–CF–1657.
• Parties: Bernard WEST, Appellant. v. UNITED STATES, Appellee.

100 A.3d 1076

Bernard WEST, Appellant.

v.UNITED STATES, Appellee.

No. 12–CF–1657.

District of Columbia Court of Appeals.

Argued Feb. 7, 2014.

Decided Sept. 18, 2014.

Deborah A. Persico for appellant.

Demian A. Ahn, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and Scott Ray, Assistant United States Attorneys, were on the brief, for appellee.

Before THOMPSON and BECKWITH, Associate Judges, and KING, Senior Judge.

Opinion

THOMPSON, Associate Judge:

A jury convicted appellant Bernard West of misdemeanor possession of phencyclidine (“PCP”)¹ and felony possession of liquid PCP. He contends that he is entitled to a reversal of his convictions because (1) the trial court erred in denying his motion to suppress evidence (specifically, a glass vial containing liquid PCP that was recovered from his vehicle); (2) the court abused its discretion by permitting the prosecutor to introduce an automobile registration document showing that the vehicle was registered to him, even though the government had not produced the document in response to his Super. Ct.Crim. R. 16 discovery request; and (3) the evidence was insufficient to establish that he constructively possessed the PCP. We reject these arguments but agree with appellant's further contention that his convictions merge because they are “duplicative convictions for the same offense.” We therefore remand for the trial court to vacate one of the convictions but otherwise affirm.

I. Facts

Metropolitan Police Department (“MPD”) Officer James O'Bannon testified at the suppression hearing that on November 29, 2011, at around 5:30 or 6:00 p.m., he was on patrol with MPD Officer Kristopher Plumley and Sergeant Robert Chagnon when he observed a vehicle run a stop sign on Alabama Avenue, S.E. The officers effectuated a traffic stop in the parking lot of the Congress Heights Metro Station. After the vehicle parked, Officer O'Bannon approached the driver's side window and Officer Plumley approached the passenger side.² Speaking to appellant, the driver and sole occupant of the vehicle, through his open driver's side window, Officer O'Bannon asked appellant to produce his driver's license, registration, and insurance documents. Before appellant could do so, Officer O'Bannon also asked him to step out of the vehicle “for safety,” “as [appellant] was “sweating ... profusely,” shaking, and breathing heavily “like he was in a nervous state.” The officers “escorted” appellant to the rear of the vehicle, where he was “patted down for safety.”³ The officers did not find any contraband on appellant's person.⁴ Officer O'Bannon then asked appellant whether he had any drugs or guns in the car, and appellant said, “no.” Officer O'Bannon next asked appellant whether he could search the vehicle, and appellant said, “go ahead.” Officer O'Bannon returned to the vehicle, shined his flashlight through the rear passenger side window, and saw a “one-ounce vial with an amber liquid in it” on the back-seat floorboard. The back-seat floorboard was uncluttered, and the vial was the only thing Officer O'Bannon saw on it. The officer opened the door “to get a closer look at the liquid” and smelled “an odor consistent with PCP.” At that point, he signaled to Officer Plumley to place appellant under arrest. Officer O'Bannon wrote a ticket for appellant's stop-sign violation while appellant was in handcuffs and left the ticket inside appellant's vehicle.

When asked during cross examination whether he “kn[e]w it was PCP when [he] shined the flashlight,” Officer O'Bannon said that he “had to ... closely examine it after that” and that “when [he] stuck [his] head in the door [he] could smell the PCP at that time.” Officer O'Bannon testified that, in his six years of experience, he has smelled PCP “thousands of times.” He described the smell of PCP as “very pungent,” saying, “[t]here's no other odor that smells like PCP[,]” and observed that the smell of PCP is “kind of unbearable once you break the seal ... of a vial.” Similarly, Officer Plumley testified that he had smelled PCP “numerous times” during his five years as a police officer and that it has a “very noticeable,” “[v]ery strong chemical odor.” He “could smell the PCP” when he stuck his head into appellant's vehicle after appellant's arrest.

Appellant also testified at the suppression hearing and gave a very different account. He testified that on the night in question, he was picking up a friend from the Metro station when three police officers approached his vehicle. The officers “swung the doors [of his vehicle] open and pulled [him] out [of the vehicle].” The officers then searched him and “took [him] to the back of the vehicle” where they handcuffed him, and then one of the officers asked for consent to search his vehicle. Appellant said, “no,” but the officer “searched it anyway.” After searching the vehicle for “about five minutes” while appellant was in handcuffs, the officers placed appellant in their car and took him to a police station.

During closing arguments on the suppression motion, defense counsel attacked the credibility of the officers' testimony about observing a traffic violation and argued that the stop, the order to appellant to step out of his vehicle, the pat-down, the handcuffing that counsel asserted preceded the pat-down, and the search of the vehicle were all illegal. Counsel argued that appellant “[n]ever gave consent to search the vehicle” and questioned whether, if appellant gave consent, the consent could have been “voluntary consent under th [e] circumstances” of his having been “handcuffed and patted down.”⁵ Additionally, defense counsel contended that “looking inside a car and seeing ... amber fluid in a little bottle” did not “establish probable cause to go inside the car” because “it could be a perfume bottle, it could be anything.”

The court credited the officers' testimony⁶ and denied the motion to suppress, recounting that appellant was “briefly patted down,” crediting Officer O'Bannon's testimony that appellant “said yes” to the officer's question about whether he could search appellant's vehicle,⁷ and finding that:

After the police officers saw the traffic [offense] they were properly permitted to stop the vehicle. They were properly permitted to ask the driver to step out of the vehicle. In addition, there was a reason given for asking the driver to step out of the vehicle[:] the nervousness and the sweating. It was perfectly proper to do a pat down just to ensure themselves that there was no weapon. And I find the officers' testimony credible that [appellant] was not handcuffed until after the discovery of the PCP in the vehicle.

At trial, Officer O'Bannon and Officer Plumley gave testimony consistent with their suppression-hearing testimony. Officer Plumley testified additionally that liquid PCP is “[t]ypically ... [found] in a ... vial container that is clear” and is “usually an amber-colored liquid.” Officer O'Bannon testified that the vial of amber-colored liquid was closed when he first saw it. Detective George Thomas testified as an expert witness about the common packaging of PCP. The jury heard a stipulation that “[o]n the day of defendant's arrest ... the vehicle the defendant was driving was registered to him.” The parties also stipulated that a Drug Enforcement Administration analysis confirmed that the seized vial contained 26.9 grams of liquid PCP. As noted above, the jury convicted appellant of possessing PCP and possessing liquid PCP, but did not reach a verdict on the PWID charge.

II. Denial of the Suppression Motion

On appeal, appellant no longer argues that the initial traffic stop was unlawful or that Officer O'Bannon acted unlawfully in requiring him to step out of his vehicle once it was stopped, and only in passing does he take issue with the trial court's credibility-based finding that he consented to a search of his vehicle.⁸ Instead, appellant contends that the trial court erred in denying his motion to suppress because (1) his consent to a search of his vehicle was involuntary because it was “contemporaneous[ ]” with an unlawful pat-down; (2) his consent was given during an illegal seizure and was therefore tainted by the illegality; (3) in light of that taint, the officers were “not lawfully positioned to look inside the vehicle” and therefore could not rely on “plain view”; and (4) the officers lacked probable cause to search the vehicle because the vial's “incriminating character ... was not immediately apparent.”⁹

When reviewing a trial court's denial of a motion to suppress evidence, we “review the findings of fact for clear error and conclusions of law ... de novo. ” Gilliam v. United States, 46 A.3d 360, 364 (D.C.2012). “[W]e view the evidence presented at the suppression hearing in the light most favorable to the party prevailing below, and we draw all reasonable inferences in that party's favor.” Id.

We begin our analysis by addressing just briefly appellant's contentions that the officers' “pat-down” of his person was unlawful, that any consent he gave to a search of his vehicle was “given contemporaneously” with that illegality, and thus that his consent was not voluntary. The government concedes that the record fails to show that the officers had reasonable articulable suspicion that appellant might be armed and dangerous to justify their warrantless pat-down of his person.¹⁰ We therefore assume that the pat-down was unlawful, and the question becomes whether appellant's “consent to the search of his [vehicle] ... resulted from an independent act of free will and not from any exploitation of the questionable pat-down search.” United States v. Pedroza, 269 F.3d 821, 827 (7th Cir.2001) ; see also Hicks v. United States, 705 A.2d 636, 641 (D.C.1997) (“A consent obtained after an illegal seizure is not valid unless it can be shown that the consent was in fact sufficiently an act of free will to purge the primary taint of the...