The opinion of the court was delivered by: Judge Beryl A. Howell
Pending before the Court following a suppression hearing held on July 3, 2012 are three Motions to Suppress by defendant Maurice Williams: (1) a Motion to Suppress physical evidence seized from the automobile defendant Maurice Williams was driving on October 21, 2011, see ECF No. 22; (2) a Motion to Suppress physical evidence seized from the automobile for which defendant Maurice Williams had the keys on February 1, 2012, see ECF No. 42; and (3) an oral Motion to Suppress, stated on the record at the hearing held on July 3, 2012, regarding a single statement that defendant Maurice Williams allegedly made at the police station on February 1, 2012 that he got "dropped off" at the police station. See Suppression Hr'g Transcript, July 3, 2012 ("Tr"), at 93, line 25; id. at 94, lines 1-2. Also pending before the Court is a related Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b), filed by the United States. See ECF No. 34.*fn1 Following a hearing on these motions, and an examination of the entire record and applicable law, the Court, for the reasons explained below, will DENY the Motions to Suppress physical evidence seized on October 21, 2011 and February 1, 2012, ECF Nos. 22, 42; GRANT the Motion to Suppress the single statement defendant Maurice Williams allegedly made at the police station that he got "dropped off" at the station; and GRANT the government's Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b), ECF No. 34, with respect to Maurice Williams.
Defendant Maurice Williams, along with his brother, Ronald Williams, was indicted on January 26, 2012, and is charged in four counts of the six count indictment. Specifically, defendant Maurice Williams is charged with conspiring, between September 16, 2011 and October 21, 2011, to Distribute and Possess with Intent to Distribute Cocaine, Cocaine Base, and Marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count One); Unlawful Possession with Intent to Distribute Cocaine, on or about October 21, 2011, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Four); Unlawful Possession with Intent to Distribute 28 Grams or More of Cocaine Base, on or about October 21, 2011, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Count Five); and Simple Possession of a Controlled Substance, on or about October 21, 2011, in violation of 21 U.S.C. § 844(a) (Count Six).
On July 3, 2012, the Court held a suppression hearing to hear argument and testimony on six motions pending before the Court. Two witnesses testified: Metropolitan Police Department (MPD) Officer Kenneth Thompkins and defendant Maurice Williams. For the reasons stated on the record on July 3, 2012, the Court denied the Motion to Suppress Physical Evidence filed by Ronald Williams, ECF No. 28; denied the Motion to Sever Co-Defendant filed by Ronald Williams, ECF No. 29; denied the Motion to Preserve Electronic Communications filed by Maurice Williams, ECF No. 24; and granted in part and reserved in part the government's Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b), ECF No. 34, granting the government's motion as to the introduction of evidence of two prior convictions of Ronald Williams and reserving decision as to the government's motion to introduce uncharged criminal conduct of Maurice Williams. The Court also reserved judgment on defendant Maurice Williams' three Motions to Suppress, which are now before the Court.
Based on the testimony presented at the hearing on July 3, 2012, the Court sets forth the following factual background related to the pending suppression motions, beginning with the police surveillance of the defendants' house on September 16, 2011, which is probative of the probable cause for the search of defendant Maurice Williams' car a month later.
On September 16, 2011, officers of the MPD conducted surveillance of 5318 9th Street NW based on complaints from a citizen, lodged in August 2011, about narcotics trafficking activity. Tr. at 9, lines 3-4; id. at 11, lines 10-11; id. at 69, lines 1-6. Officer Thompkins testified to three separate transactions witnessed by an undercover officer that occurred on that date. Id. at 11, lines 16-25; id. at 12, lines 1-13. The first involved a black male who was observed driving to and approaching 5318 9th Street NW, where he was met on the porch by Ronald Williams. Id. at 32, lines 6-9; id. at 33, lines 11-20. He spoke with Ronald Williams, then both men entered the house for approximately a minute, and the man then left in his vehicle. Id. at 33, lines 11-20. The second transaction involved a black male who approached the house on foot. Id. at 33, lines 22-24. After a brief conversation with Ronald Williams, this man left the location walking southbound. Id. A third individual similarly walked to the house, had a brief conversation with Ronald Williams, and left walking southbound. Id. at 33, lines 24-25; id. at 34, lines 1-2.
The undercover officer broadcast "lookouts" for all three men to arrest teams. Id. at 32, lines 13-15.The first two men who left the house were separately stopped by police and found to be in possession of cocaine and crack cocaine.*fn2 Id. at 12, lines 10-13. When the arrest team approachedthe third man who left the house, he swallowed "the narcotics" and the police were unable to recover them. Id. at 12, lines 11-17.
On October 21, 2011, MPD officers conducted further surveillance on 5318 9th Street NW. Id. at 8, lines 16-23. Officer Thompkins testified that he observed defendant Maurice Williams enter a white Chevrolet Traverse, which was parked in front of the house, and drive away from the house without putting on a seatbelt. Id. at 10, lines 2-5; id. at 10; lines 23-24; id. at 43, line 14. At this point, Officer Thompkins did not know who Maurice Williams was, suspecting only that he was another "drug customer." Id. at 10, lines 2-18. Officers followed the vehicle, id. at 10, lines 23-25, and Officer Thompkins observed Maurice Williams repeatedly looking in his rearview mirror to watch the police car following him, id. at 14, lines 4-5. At some point while he was being followed, Maurice Williams stopped on the side of the road, allowing Officer Thompkins' vehicle to pass him. Id. at 14, lines 5-6, id. at 49, lines 3-7; see also id. at 78, lines 22-25 (M. Williams testimony).
Officer Thompkins made a traffic stop of Maurice Williams in the 6300 block of Georgia Avenue NW. Id. at 14, lines 9-10; id. at 45, lines 23-25. As he approached the vehicle, Officer Thompkins saw Maurice Williams place objects from his jacket into the center console and smelled the odor of fresh marijuana. Id. at 14, lines 16-18; id. at 15, lines 21-23. Officer Thompkins asked Maurice Williams for his driver's license and registration, and Maurice Williams responded that he did not have his license with him and that the vehicle was a rental. Id. at 16, lines 4-7. At this point, Officer Thompkins instructed Maurice Williams to exit his vehicle while he checked the defendant's driver's license status. Id. at 16, lines 7-10. Officer Thompkins learned that Maurice Williams' license had expired on July 23, 2011. Id. at 16, lines 12-13. Maurice Williams was then placed under arrest for driving without a permit. Id. at 16, lines 14-16. A subsequent search of the vehicle revealed, in the center console, 125 grams of cocaine and 4 grams of marijuana. Id. at 16, lines 18-20.
Maurice Williams' account of these events differs in two key respects. Most importantly, he contends that he was wearing a seatbelt on October 21, 2011 when he was followed and arrested by Officer Thompkins. Id. at 76, lines 3-9. Maurice Williams testified that on October 21, 2011, he noticed Officer Thompkins' unmarked police car start following him a block away from 5318 9th Street NW, id. at 76, lines 12-15, and recognized it as a police vehicle, id. at 78, lines 1-12. Unsure why he was being followed, Maurice Williams pulled over after driving northbound on Georgia Avenue for several blocks. Id. at 78, lines 22-25; id. at 80, lines 11-14. Maurice Williams testified further that he lifted up his seatbelt strap to demonstrate that he was wearing a seatbelt as Officer Thompkins drove past. Id. at 80, lines 11-14.
The second important difference in the testimony is that Maurice Williams testified that, on October 21, 2011, he first noticed Officer Thompkins' unmarked police car following him a block away from 5318 9th Street NW, id. at 76, lines 13-15, thereby calling into question whether, given the position of the police car, the officer would have been able to see whether Williams fastened his seatbelt when he entered the car, id. at 90, lines 5-10. The testimony indicates, however, only that Maurice Williams first noticed the police car when he was a block from his house, not that the police car was parked at that location when surveillance of him was initiated. See id.
Following the arrest of Maurice Williams, police applied for and received an emergency search warrant for 5318 9th Street NW. Id. at 18, lines 12-16. The warrant was executed the same day as Maurice Williams' arrest, resulting in the recovery of narcotics and drug paraphernalia from 5318 9th Street NW. Id. at 19, lines 23-25; id. at 20, lines 1-2. Ronald and Maurice Williams were subsequently indicted and bench warrants were issued for their arrest. Id. at 20, lines 3-7.
On February 1, 2012, defendant Ronald Williams was arrested pursuant to that bench warrant. Id. at 20, lines 8-19. That same evening, Officer Thompkins called defendant Maurice Williams, and, as a "ruse" to get him to come to the Fourth District police station, asked him to come retrieve his brother Ronald's personal items. Id. at 20, lines 16-22. When he arrived at the station, Maurice Williams was arrested on the outstanding bench warrant. Id. at 20, lines 23-25. Officer Thompkins asked Maurice Williams how he had gotten to the police station, and Maurice Williams replied that he had been "dropped off." Id. at 21, lines 3-4. When Officer Thompkins pressed the key fob taken from Maurice Williams after the arrest, however, the lights flashed on a blue sedan parked directly outside the station. Id. at 21, lines 2-7; id. at 30, lines 3-5. Officer Thompkins approached the car, noticed the passenger window was down, and smelled fresh marijuana through the open window. Id. at 22, lines 12-14. A canine unit was contacted, and a trained drug-sniffing dog alerted to Maurice Williams' vehicle. Id. at 22, lines 14-20. A subsequent search of the vehicle yielded crack cocaine in the driver's door handle and "a large amount of fresh marijuana" in the center console. Id. at 23, lines 1-3. Additionally, behind the sun visor, police found court paperwork in Maurice Williams' name. Id. at 23, lines 7-11.
The Fourth Amendment prohibits law enforcement from conducting "unreasonable searches and seizures," and "this protection extends to a brief investigatory stop of persons or vehicles, whether or not an arrest follows." United States v. Bailey, 622 F.3d 1, 5 (D.C. Cir. 2010) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002); Terry v. Ohio, 392 U.S. 1, 9 (1968); and United States v. Cortez, 449 U.S. 411, 417 (1981)). Generally, "searches must be supported by a warrant obtainable upon a showing of probable cause." United States v. Jackson, 415 F.3d 88, 91 (D.C. Cir. 2005). Searches that are conducted without prior approval by a judge "'are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Id. (quoting California v. Acevedo, 500 U.S. 565, 580 (1991)). For example, police officers may stop a vehicle and its occupants without a warrant when they have probable cause to believe a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996). Officers may also briefly detain a person without a warrant in a Terry stop if they have a "reasonable, articulable suspicion that 'criminal activity may be afoot.'" United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) (quoting Terry v. Ohio, 392 U.S. at 30). A Terry stop requires only a "minimal level of objective justification." INS v. Delgado, 466 U.S. 210, 217 (1984). Moreover, the "automobile exception" allows a warrantless search of a vehicle if police officers have probable cause to believe the vehicle contains evidence of a crime. United States v. Maynard, 615 F.3d 544, 567 (D.C. Cir. 2010)
To prevail on a motion to suppress evidence due to a Fourth Amendment violation, a defendant must first establish standing, i.e., "that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978). That is not at issue in this case. When a defendant establishes that he was arrested or subjected to a search without a warrant, the burden then shifts to the government to justify the warrantless search. See Mincey v. Arizona, 437 U.S. 385, 390-91 (1978); United States v. Jeffers, 342 U.S. 48, 51 (1951) ("[T]he burden is on those seeking the exemption to show the need for it . . . ."); United States v Brown, 334 F.3d 1161, 1182 (D.C. Cir. 2003) (Rogers, J., dissenting) ("The government bears the burden of proof, and under Terry, the government must present evidence that the police officer was able to articulate the specific facts that caused him to view [the defendant] as a likely suspect . . . ."); United States v. Mangum, 100 F.3d 164, 169 (D.C. Cir. 1996) ("The government carries the burden of showing that the measures employed during the stop were justified."); United States v. Jones, 374 F. Supp. 2d 143, 147 (D.D.C. 2005); see also United States v. Albert, 579 F.3d 1188, 1193 (10th Cir. 2009) ("The government has the burden of demonstrating the officers' conduct satisfies Terry."); United States v. Torres-Ramos, 536 F.3d 542, 552 (6th Cir. 2008) ("The government bears the burden of proving, by a preponderance of the evidence, the existence of reasonable suspicion to believe - based upon objective and articulable facts - that the defendants were engaged in criminal activity."); United States v. Jaquez, 421 F.3d 338, 341 (5th Cir. 2005) ("The government bears the burden of showing the reasonableness of a warrantless search or seizure."); United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985) ("To require the defendant to prove the absence of a reasonable suspicion without knowledge of the facts upon which the police based their assessment of the existence of a reasonable suspicion is to place upon him an impossible burden.").
With respect to the first Motion to Suppress physical evidence seized from Maurice Williams' vehicle on October 21, 2011, the government must demonstrate, by a preponderance of the evidence, the legality of both (1) the officer's initial traffic stop of the defendant, and (2) the subsequent search of the vehicle. With respect to the second Motion to Suppress physical evidence seized from Maurice Williams' vehicle on February 1, 2012, the government must demonstrate, by a preponderance of the evidence, that the officers had probable cause for the warrantless search.
With respect to the Motion to Suppress a statement, the defendant must show that the requirements of Miranda v. Arizona, 384 U.S. 436 (1966), apply, namely that there was a custodial interrogation. United States v. Vinton, 594 F.3d 14, 26-27 (D.C. Cir. 2010).
As noted, defendant Maurice Williams has three pending motions to suppress evidence seized from two different vehicles on two separate occasions as well as a statement he allegedly made at the police station. First, he seeks to suppress marijuana and cocaine seized from the vehicle he was driving on October 21, 2011 because he alleges the traffic stop was unlawful. Def.'s Mot. to Suppress, ECF No. 22. Second, he seeks to suppress marijuana and cocaine seized from his vehicle on February 1, 2012 because he alleges the search was conducted without his consent or a probable cause warrant. Def.'s Mot. to Suppress, ECF No. 42. Third, as stated on the record at the suppression hearing held on July 3, 2012, he seeks to suppress a single statement that he allegedly made at the police station on February 1, 2012 that he got "dropped off" at the police station because this statement was made before he was read his Miranda ...