Argued September 16, 2015
Appeal from the Superior Court of the District of Columbia CF2-6044-13 Hon. Ronna L. Beck, Trial Judge.
Vincent A. Jankoski for appellant.
Seth M. Gilmore, Assistant United States Attorney, with whom Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and Lindsey Merikas, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman, Blackburne-Rigsby, and McLeese, Associate Judges.
MCLEESE, ASSOCIATE JUDGE.
Appellant Olushola Akinmboni challenges his convictions for possession of a controlled substance (marijuana and benzylpiperazine or "BZP") and possession of drug paraphernalia. Mr. Akinmboni argues that the trial court erred by denying his motion to suppress evidence as obtained in violation of the Fourth Amendment. We reverse.
Viewed in the light most favorable to the trial court's suppression ruling, the evidence was as follows. On April 11, 2013, Metropolitan Police Department Officers Zachary Blier and Herbert Nichols saw Mr. Akinmboni driving a car with a broken light. The officers activated their emergency lights and siren to conduct a traffic stop. As Mr. Akinmboni slowly pulled over, the officers saw him make several movements toward the center console and then back toward his lap.
After opening the door of the car Mr. Akinmboni had been driving, Officer Blier smelled burnt marijuana. As Officer Blier began to remove Mr. Akinmboni from the car, Mr. Akinmboni put something in his mouth and began to chew. The officers were unable to retrieve the object, but they saw green leafy flakes inside Mr. Akinmboni's mouth. Officer Blier searched the car, finding marijuana. The officers then arrested Mr. Akinmboni.
The following day, Mr. Akinmboni was brought to a Superior Court cellblock. Deputy United States Marshal Timothy Writt, who was on duty at the cellblock, searched Mr. Akinmboni to make sure that he did not have weapons or contraband that could present a safety risk. While patting down Mr. Akinmboni's clothing, Deputy Writt felt a foreign object in Mr. Akinmboni's groin area. After taking Mr. Akinmboni to a single cell to ensure greater privacy, Deputy Writt removed the object, which was a bag of marijuana. Deputy Writt then decided to conduct a strip search for further contraband.
During the strip search, Deputy Writt directed Mr. Akinmboni to remove all of his clothing and to manually expose the area between his buttocks to permit visual inspection of his anal cavity. When Mr. Akinmboni complied, a portion of a plastic baggie came into view, protruding from his anus. At this point, Deputy Writt could not tell what the baggie contained.
Deputy Writt instructed Mr. Akinmboni to extract the baggie from his anus. Mr. Akinmboni complied but then attempted to flush the baggie down a nearby toilet. Officers recovered the baggie, which contained marijuana. Deputy Writt again instructed Mr. Akinmboni to manually expose the area around his anal cavity. When Mr. Akinmboni did so, a portion of another plastic baggie came into view, and Deputy Writt directed Mr. Akinmboni to remove the baggie. Mr. Akinmboni obeyed, and the officers seized the second baggie, which contained pills of assorted colors. Mr. Akinmboni spread his buttocks several more times, revealing additional plastic baggies that he removed at Deputy Writt's direction. Ultimately, the search produced three additional baggies containing, respectively, a rocklike substance, a powdery substance, and rolling papers. Deputy Writt did not spread Mr. Akinmboni's buttocks or himself remove any of the items from Mr. Akinmboni's anal cavity. Before ordering Mr. Akinmboni to extract the items, Deputy Writt did not seek the assistance of trained medical personnel or contact the U.S. Attorney's Office about the advisability of obtaining a warrant. Deputy Writt testified that, under the circumstances, a U.S. Marshals Service Policy Directive did not require either step.
Defense counsel argued that all of the contraband recovered from Mr. Akinmboni's anal cavity during the cellblock search should be suppressed under the Fourth Amendment because a warrant was required and because a doctor should have been involved. The trial court denied the motion to suppress, concluding that the Fourth Amendment did not require a warrant or the involvement of medical ...