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West v. United States

Court of Appeals of Columbia District

September 18, 2014

BERNARD WEST, APPELLANT,
v.
UNITED STATES, APPELLEE

Argued: February 27, 2014.

Page 1077

[Copyrighted Material Omitted]

Page 1078

Appeal from the Superior Court of the District of Columbia. (CF2-22967-11). (Hon. Herbert B. Dixon, Jr., Trial Judge).

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

Page 1079

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

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was registered to him, even though the government had not produced the document in response to his S.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]

Page 1081

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' testimony[6] 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 ...


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