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United States v. Smith

United States District Court, District of Columbia

January 30, 2019




         Defendant Clifton Smith's motion to suppress physical evidence raises an unsettled issue of Fourth Amendment law: Whether the smell of phencyclidine (“PCP”), alone, justifies the use of handcuffs during a Terry stop. Dkt. 8. The relevant events in this case occurred on March 30, 2018, at approximately 5:24 p.m., when two Metropolitan Police Department (“MPD”) officers were patrolling the 1000 block of 14th Street, S.E. The officers observed Defendant standing next to the open driver's-side door of a parked car with tinted windows. At the time, no one was in the driver's seat, but another man was seated in the passenger seat, a woman was standing near the left tail light, and an infant and a toddler were seated in the back seat of the car. Approximately thirty seconds after exiting the patrol car, one officer decided to handcuff Defendant because the officer smelled PCP. The other officer then led Defendant-still handcuffed-to the rear of the car and conducted a pat-down with Defendant's consent. The officer felt a hard, cylindrical object in the crotch of Defendant's jeans, which he suspected to be a vial of PCP. It turned out to be the barrel of a loaded, semi-automatic handgun. The police also recovered a small bag of heroin and $2, 110 in cash from Defendant's person.

         Based on that evidence and evidence that Defendant had a prior felony conviction, Defendant was charged with one count of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of unlawful possession of a controlled substance, in violation of 21 U.S.C. § 844(a). He moves to suppress all tangible objects seized from him, primarily arguing that the officers unlawfully arrested him when they placed him in handcuffs. For the reasons explained below, the Court will GRANT the motion to suppress.


         Although the defendant ordinarily carries the burden on a motion to suppress, see Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978), where, as here, the defendant produces evidence that he was subjected to a warrantless seizure, the burden shifts to the government to justify the officers' actions. See 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(b) (5th ed. 2018) [hereinafter “Search & Seizure”] (“[I]f the police acted without a warrant[, ] the burden of proof is on the prosecution.”); see also Florida v. Royer, 460 U.S. 491, 501 (1983) (plurality opinion) (“It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion . . . satisf[ied] the conditions of an investigative seizure.”). Based on the officers' testimony, the parties' briefing and oral argument, and the submitted evidence, [1] the Court makes the following findings of fact:

         On March 30, 2018, Officers Owais Akhtar and Charles Smith were patrolling the 1000 Block of 14th Street, S.E., in the District of Columbia in an unmarked police vehicle. Dkt. 16 at 5, 17, 85 (Hrg. Tr.). Both were members of the MPD's crime suppression unit, which “go[es] out . . . and see[s] if there's any suspicious activity going on.” Id. at 134 (Hrg. Tr.). The officers were dressed in full police uniform. Id. at 17 (Hrg. Tr.). At the time, Officer Akhtar had four years of experience with the MPD, id. at 5 (Hrg. Tr.), and Officer Smith had ten years of experience, id. at 83, 85 (Hrg. Tr.). Both officers testified that they were familiar with the area they were patrolling and characterized it as a “high-crime” neighborhood where drugs and guns were prevalent. Id. at 6-8, 87 (Hrg. Tr.).

         A. Stop

         At approximately 5:24 p.m., Officers Akhtar and Smith were driving on 14th Street, S.E., when they saw Defendant standing next to a parked white Nissan Altima with dark tinted windows. Dkt. 10 at 1-2. The driver's-side door of the vehicle was open, and Defendant was standing between the door and the inside of the car, with his back to the officers. Gov't Ex. 1 (OA 21:25:44). The officers exited their patrol car to conduct “a traffic stop” due to the tint.[2] Dkt. 16 at 18 (Hrg. Tr.). At that point, Officer Akhtar's body-worn camera footage shows that Defendant was looking into-but not leaning into or reaching into-the car. Gov't Ex. 1 (OA 21:25:49-50). As Officer Akhtar approached the vehicle, a woman (later identified as the car's owner) was standing near the left tail light, and a man was sitting in the passenger seat. Id. (OA 21:25:48-21:26:01). Unbeknownst to the officers at that time, an infant and a toddler were in the back seat.

         Officer Akhtar walked towards Defendant, and Officer Smith approached the passenger-side of the vehicle. As he approached Defendant, Officer Akhtar called out, “What's going on, boss?” Id. (OA 21:25:48). Defendant turned to look at him and then leaned into the car to converse with the passenger, who had asked, “What's going on?” Id. (OA 21:25:51-54). Officer Akhtar responded, “Tint.” Id. (OA 21:25:54). Defendant then said, “Huh?” Id. (OA 21:25:55). By then, Officer Akhtar was standing directly behind Defendant, within arm's reach, and said, “Illegal tint, that's what's up.” Id. (OA 21:25:56). Defendant turned away from the driver's-side door, at which point Officer Akhtar grabbed his arm. Id. (OA 21:25:59). Defendant immediately protested, “I ain't going nowhere.” Id. Officer Akhtar warned, “Don't do anything stupid” and turned Defendant around so that the front of Defendant's body was against the car. Id. (OA 21:26:00-03). Officer Akhtar began to squeeze Defendant's back over his jacket and asked, “You ain't got no PCP on you, right?” Id. (OA 21:26:04). Defendant indicated that he did not, as Officer Akhtar moved Defendant's arms behind his back. Id. (OA 21:26:07-09). Officer Akhtar then asked Officer Smith to “pass [him] the handcuffs.” Id. (OA 21:26:12). He again asked Defendant if he had PCP, to which Defendant again indicated that he did not. Id. (OA 21:26:19).

         Meanwhile, Officer Smith was standing at the passenger side of the vehicle. The passenger-side door was closed and the window was open a sliver when Officer Smith first approached. Gov't Ex. 2 (CS 21:25:56). As he walked up to the car, Officer Smith said, “You're still in public space.” Id. (CS 21:26:06). The passenger then rolled down his window, id. (CS 21:26:09), and Officer Smith repeated that the car was in a public space, id. (CS 21:26:11). The passenger informed Officer Smith that his son was in the back seat and asked for permission to reach for his child. Id. (CS 21:26:13-15). At that point, Officer Smith responded to Officer Akhtar's request for handcuffs and walked around the front of the car to where Officer Akhtar and Defendant were standing. Id. (CS 21:26:16). When Officer Smith arrived with the handcuffs, he helped secure Defendant. Id. (CS 21:26:25-31). Approximately thirty seconds elapsed between the time the officers exited their vehicle and when Officer Akhtar maneuvered Defendant's arms into position to be handcuffed. See Gov't Ex. 1 (OA 21:25:48-21:26:12).

         1. PCP Odor

         Both Officer Akhtar and Officer Smith testified that they smelled PCP when they encountered Defendant. Officer Akhtar stated that he is well-acquainted with the smell from his training and from the “numerous arrests” he has made “which involved PCP.” Dkt. 16 at 8 (Hrg. Tr.). He described PCP as having a “very strong, distinct . . . chemical odor, ” which can be “smell[ed] . . . from far away” and which “lasts for a long time.” Id. at 8, 10 (Hrg. Tr.). He testified that the smell from an open vial of PCP is strong enough to fill “the whole entire courtroom.” Id. at 11 (Hrg. Tr.). Officer Smith corroborated this testimony. See id. at 91-92 (Hrg. Tr.). He further explained that PCP is usually kept in a glass vial and that individual users often dip cigarettes “into the liquid and then . . . smoke the cigarette.” Id. at 92 (Hrg. Tr.).

         The officers' testimony about the source of the PCP odor, however, varied over time. Shortly after Defendant's arrest, Officer Smith signed two statements. In the first, he attested that “[a]n odor consistent with PCP emanated from Defendant['s] . . . person.” Dkt. 19-1 at 2. In the second, he added that “there was an empty glass vial in the driver's side car door.” Id. at 4. A few days later, at the preliminary hearing in Superior Court, where the case was originally charged, Officer Akhtar also testified that, as he “approached” Defendant, he “could smell an odor consistent with PCP emanating from [Defendant's] person” and that “an empty vial” was located “in the car's door, ” specifically, the “driver door.” Joint Ex. 1 at 5. When Officer Smith subsequently appeared before the grand jury in Superior Court, however, he no longer asserted that the smell “emanated” from Defendant. Instead, he testified that “[i]t was coming from the vehicle, ” Joint Ex. 2 at 5, and, when asked if he was “ever able to locate the source of the odor, ” he stated: “In the driver's side door in the handle there was a vial of PCP but it had been empty, but it was-you could tell that there had been PCP in it from the odor, ” id. at 7. Officer Smith later acknowledged at the suppression hearing that his grand jury testimony was based on what Officer Akhtar told him “after the arrest.” Dkt. 16 at 149 (Hrg. Tr.). Two months later, Officer Smith appeared before the federal grand jury and again amended his testimony. Asked about the source of the PCP odor, he stated: “When we came to the area, when my partner, Officer Akhtar was with [Defendant], he wasn't sure if it was the vehicle or [Defendant], but it was in the area where [Defendant] was standing.” Joint Ex. 3 at 4. Officer Smith confirmed that he also smelled PCP, but he was not asked about his perception of the source of the smell. Id.

         The officers' testimony at the suppression hearing was similarly equivocal. Officer Akhtar initially testified that he placed Defendant in handcuffs because he smelled “a strong odor of PCP coming off [Defendant's] person.” Dkt. 16 at 21 (Hrg. Tr.). On further inquiry, however, he was less confident about this, asserting that “[a]t the time, ” he “thought it was coming off of” Defendant but that he “was too close to the car” and Defendant to know. Id. Later, on cross-examination, Officer Akhtar retreated further, testifying that “[he] couldn't really tell exactly if the source [of the PCP odor] was just [Defendant] or the car or both, ” id. at 33 (Hrg. Tr.); in other words, he “couldn't pinpoint” the smell, id. at 50 (Hrg. Tr.). He further acknowledged that, even after Defendant had been moved away from the car door, he continued to smell PCP “in the general area.” Id. at 32 (Hrg. Tr.).

         Officer Smith testified at the suppression hearing that he, too, smelled PCP before placing Defendant in handcuffs. He stated that he first detected a “faint smell” of PCP when he approached the passenger side of the vehicle, where the door was closed, but the window was briefly rolled-down. Id. at 98 (Hrg. Tr.). At that point, however, he “couldn't really distinguish where [the odor] was coming from.” Id. It was not until he moved to Officer Akhtar's side- where the driver's-side door was open-that the odor grew “much stronger . . . as if it was in that area.” Id. at 99 (Hrg. Tr.). Nevertheless, Officer Smith also conceded that “[he] couldn't tell where exactly” the PCP odor was emanating from, only that “it was in that vicinity.” Id. Given the strength of the smell, however, he testified that the odor was “very recent in time” and was not a lingering odor from someone who had smoked PCP in the area an hour or two before. Id. at 165 (Hrg. Tr.).

         Based on the officers' testimony and other evidence, the Court finds that the officers smelled-or reasonably believed that they smelled-PCP in the area where Defendant was standing when they handcuffed him. Given that both officers consistently testified that they smelled PCP, and, given that Officer Akhtar asked Defendant if he had any PCP before handcuffing him, it is unlikely that the officers fabricated the odor, as Defendant alleges, to justify their decision to place Defendant in handcuffs. The fact that no PCP was ultimately recovered from the scene, moreover, does not render the officers' sworn testimony implausible. The evidence shows that PCP has a strong and distinct smell, and, although Officer Smith testified that he believed the odor was recent, that does not foreclose the possibility that someone possessed PCP in the area shortly before the officers arrived. Finally, as discussed below, Officer Smith subsequently mistook the end of gun barrel for a vial of PCP hidden in Defendant's pants; his mistake is indicative of a mindset that he was likely to find PCP. The Court, accordingly, credits the officers' testimony that they smelled PCP.

         The Court cannot conclude, however, that the officers smelled PCP emanating from Defendant. Given that neither officer could pinpoint the source of the odor to Defendant, the Court finds that the government has failed to carry its burden of demonstrating that Defendant smelled of PCP; the evidence only shows that the officers smelled PCP in the vicinity of the driver's side of the car.

         2. Officer Safety

         Officer Akhtar further testified that, upon smelling PCP, he placed Defendant in handcuffs, as was his practice. Dkt. 16 at 12-13 (Hrg. Tr.). Although the MPD does not have a policy and does not offer training “with respect to whether as a matter of course” people suspected of being under the influence of PCP should be handcuffed, id. at 75-76 (Hrg. Tr.), Officer Akhtar stated that “[t]he first thing [he] personally do[es]” upon encountering individuals who “may or may not be under the influence of PCP” is to “secure them in handcuffs” so that “they won't be able to fight, ” id. at 12-13 (Hrg. Tr.). He explained that, based on his experience, “most of the time, ” individuals on PCP “turn violent.” Id. at 74 (Hrg. Tr.). He described their behavior, as follows:

They [are] very unpredictable. They can turn violent in a second. They'll be calm for one second and then they'll turn violent in the next second, start taking their clothes off, start fighting. They'll have extra strength for some reason. . . . They become more powerful and they don't feel pain.

Id. at 12 (Hrg. Tr.). Officer Akhtar further explained that the only time he failed to secure someone (in the more than ten times that he had encountered a person under the influence of PCP), the situation turned violent:

My first encounter where I did not handcuff them, it turned violent and took five of us to put him in handcuffs. And besides that, when we're transporting an individual under the influence, because they were already handcuffed, they will just kick and spit.

Id. at 75 (Hrg. Tr.). Officer Akhtar testified that, even though it is not a department-wide practice to place individuals suspected of being under the influence of PCP in handcuffs, he “always” does so, and the “people that [he] work[s] closely with . . . do the same.” Id. at 76 (Hrg. Tr.).

         Officer Smith corroborated Officer Akhtar's testimony that individuals on PCP can become violent. He stated that, “most of the times when [he] deal[s] with PCP, it's usually a dangerous situation.” Id. at 89 (Hrg. Tr.). He further testified that he is particularly concerned about such individuals “losing their temper and getting angry, wanting to fight, ” because “a lot of times on PCP, the strength is out of this world[, ] . . . [it's] really hard to control.” Id. Like Officer Akhtar, Officer Smith testified that, if he can tell that an individual is on PCP, “and [he] can place them in handcuffs before they get angry, then [he] will do that.” Id. at 90 (Hrg. Tr.). He estimated that he has done so “more than 20” times throughout his career. Id. (Hrg. Tr.). He also testified that “the majority of officers [he] know[s] would do the same.” Id. at 91 (Hrg. Tr.).

         Both officers also testified that individuals under the influence of PCP exhibit telltale signs. According to Officer Smith, “people . . . exhibit it in different ways, ” id. at 89 (Hrg. Tr.):

Some of them will be excited and violent. Some of them will be passed out on the floor that you can't even wake up. So you'll get different things with different people. But typically, a lot of times we see people that have like almost superhuman strength when they're on PCP, and they're a little bit more irate and angry.

Id. (Hrg. Tr.). Officer Akhtar agreed that there are cues that indicate someone is on PCP:

Sweating, and we like to call it the huh stage. When you ask them any question, their response will be, “Huh? Huh?” And their eyes, they just give you a blank stare.

Id. at 74-75 (Hrg. Tr.).

         Neither officer, however, testified that Defendant exhibited any of these characteristics before they placed him in handcuffs. Officer Akhtar acknowledged that Defendant was not violent; he did not make any furtive or suspicious movements; he did not exhibit any kind of superhuman strength; he never made any aggressive movements or statements; and he did not try to flee. Id. at 44-46 (Hrg. Tr.). Both officers' body-worn camera footage confirms that Defendant was calm, responsive, and compliant before he was handcuffed. The officers also did not point to any other evidence that Defendant was dangerous. To the contrary, Officer Akhtar testified that he “had no reason to believe” Defendant was armed. Id. at 45 (Hrg. Tr.).

         The Court credits the officers' testimony that individuals on PCP often pose a danger to officer safety. The Court finds, however, that, at the time Defendant was placed in handcuffs, there were no indicia he was on PCP, armed, or otherwise dangerous.

         3. Vial

         The government also contends that, at the time Officer Akhtar placed Defendant in handcuffs, “[he] could see in plain view an empty glass vial in the driver's-side car door, which was consistent with the sort of vial used for holding liquid PCP.” Dkt. 10 at 3. Defense counsel argues that this is “implausible.” Dkt. 13 at 7. For purposes of resolving this motion, the Court need determine only whether the government has carried its burden of proving that the officers saw-or reasonably believed that they saw-a vial of PCP in the driver's-side door before Officer Akhtar handcuffed Defendant. The Court concludes that it has not.

         Although Officer Akhtar suggested at the preliminary hearing in Superior Court that he saw “an empty vial in the car's door” as he “approached” Defendant, Joint Ex. 1 at 5, neither officer testified at the suppression hearing that he saw the vial prior to handcuffing Defendant. Officer Akhtar first stated that he saw the vial after he handcuffed Defendant:

A. [O]nce he was secured in handcuffs, I passed him over to Officer Smith.
Q. And what happened then at that point?
A. And after that I came back to the car to see who else was ...

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