United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
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.
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.
FINDINGS OF FACT
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,  the Court makes the following findings of
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.).
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. 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.
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).
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
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.
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.
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.).
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.).
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.
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.
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.).
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.).
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.).
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.).
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
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.
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
Q. And what happened then at that point?
A. And after that I came back to the car to see who else was