UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Case No. 18-253

MANUEL D. REYNOSO, Chief Judge Beryl A. Howell

Defendant.

MEMORANDUM AND ORDER

Defendant Manuel Reynoso is charged in an indictment with unlawful possession of a

firearm and ammunition by a person convicted of a felony, in violation of

(g)(1)

(Count I), and simple possession of marijuana and of n-ethylpentylone (methamphetamines), in

violation of

(a) (Counts II and III). These counts arise from evidence seized

from a vehicle the defendant was driving in the early morning hours of May 16, 2018 and from

his person following his arrest the same day. The defendant has moved to suppress all physical

evidence. Def.’s Mot. and Mem. Supp. Suppression (“Def.’s Mot.”), at 1, ECF No. 9. Upon

consideration of the memoranda of law submitted by the government and the defendant, and the

testimony presented at the suppression hearing on November 16, 2018, the Court orally denied

the motion at the suppression hearing and, given the lateness of the hour when the hearing was

completed, indicated that an explanation in writing of the reasons for doing would be

forthcoming. See Rough Transcript of Hearing (Nov. 16, 2018) (“H’rg Tr. (Rough)”) at 201:17–

21. 1 This Memorandum and Order sets out the reasons that the defendant’s motion is denied.

1 All citations to the Nov. 16, 2018 hearing transcript are to a rough draft of the transcript, since no final transcript is yet available. Discrepancies in page numbers between the rough and any final transcript may exist.

1 I. BACKGROUND

At the suppression hearing held on November 16, 2018, the government presented the

testimony of two U.S. Secret Service Officers, Officer Scott Biel and Officer Michael Amaturo,

who were involved in the traffic stop and subsequent search of the car driven by the defendant,

respectively. Officer Biel testified that, on May 16, 2018, at approximately 1:19 a.m., while he

was driving a marked patrol cruiser, he observed a black BMW traveling southbound on 17th

Street NW in Washington, D.C. without its headlights on. H’rg Tr. (Rough) at 123:13–14,

125:23–126:13. Officers conducted a traffic stop of the car on 17th Street north of Constitution

Avenue,

, and observed the defendant driving the car, with two passengers, one in

the front seat and one in the back seat behind the front passenger,

at 130:20–23, 131:23–

132:5. Officer Biel explained the reason for the stop,

at 132:12–17, then asked who had been

smoking marijuana within the vehicle,

at 133:8–9. Officer Biel testified that he asked this

question because he noticed a “moderate odor” of marijuana immediately upon approaching the

driver’s side open window.

at 133:13–17. In response to Officer Biel’s question, the

defendant stated that nobody had been smoking marijuana within the vehicle.

at 133:20–21.

The defendant then picked up an amount of marijuana wrapped in a $1 bill, showed it to the

officer, and said “this is all we have.”

at 133:21–23. In response to further questions, the

defendant provided his license and the vehicle’s registration, but could not provide valid proof of

insurance for the vehicle.

at 134:20–135:8. The defendant told the officer that the vehicle

belonged to his girlfriend, who was not present at the time of the stop. See

at 135:21–24.

Officer Biel decided to search the car for additional marijuana, see

at 140:1–6. Two

other officers ordered the rear passenger and the front passenger out of the car,

at 140:12–19,

and those passengers were then detained in handcuffs,

at 141:12–19. During this time,

2 without being asked to do so, the defendant got out of the vehicle, holding his cell phone in his

hand.

at 141:2–4, 142:5–7. Multiple times, Officer Biel told the defendant to put down his

cell phone,

at 142:8–17, but the defendant did not comply,

at 142:18–19. Instead, the

defendant walked around the driver’s side door towards the front of the car, then “took off at a

sprint,” initially running southbound on 17th Street, then turning right to go westbound on

Constitution Avenue.

at 142:20–143:7. Officer Biel issued a radio alert describing the

defendant and the direction he was fleeing, then returned to his cruiser to pursue the defendant.

at 143:8–13.

Meanwhile, Officer Michael Amaturo, who was patrolling in the vicinity of the traffic

stop and had received a radio alert about the stop, approached the BMW. See

at 175:6–

177:12 (testimony of Officer Amaturo). He testified that upon his approach to the scene, he saw

the front driver and passenger doors were open, as was a rear passenger door, and the two

passengers from the BMW were seated outside of the vehicle. See

at 177:22–178:4, 178:11–

20. After confirming that none of the officers already present on the scene had conducted a plain

view inspection of the vehicle, Officer Amaturo used a flashlight to see what was visible in plain

view. See

at 182:5–183:4. He saw a firearm magazine and cartridge in the front passenger

door, which he announced over the radio to caution law enforcement agents that the defendant

may be armed. See

at 188:9–24; see also

at 144:2–15 (testimony of Officer Biel,

indicating that Officer Amaturo’s announcement changed the search for the defendant from a

search for a fleeing suspect to a search for a fleeing and possibly armed suspect).

The defendant was eventually arrested near the intersection of Maine Avenue and East

Basin Drive SW. See

at 144:20–23. A search of the defendant immediately after his arrest

recovered approximately $2,684 in cash and two cell phones. See

at 145:10–16; Gov’t Opp’n

3 to Mot. to Suppress (“Gov’t Opp’n”), at 3, ECF No. 13. The defendant was taken to temporary

detention, where federal law enforcement officers more thoroughly searched his pockets and

recovered an additional $205 in cash and a $1 bill folded into an envelope around a white

crystalline substance. See H’rg Tr. (Rough) at 145:17–146:4, 149:3–18; Gov’t Opp’n at 3. This

substance tested positive for methamphetamines. Gov’t Opp’n at 3 & n.3.

A search of the vehicle by a crime scene officer recovered (1) a Glock 27, .40-caliber

semi-automatic pistol with a high-capacity magazine that contained 20 rounds of ammunition

from underneath the driver’s side floor mat; (2) the aforementioned magazine containing nine .40

caliber cartridges from the front passenger door pocket; (3) a “grinder” container with suspected

marijuana from the center console; (4) the $1 bill wrapped around an amount of marijuana; and

(5) approximately $4.

; H’rg Tr. (Rough) at 146:7–16. At this point, Officer Biel

completed a notice of infraction for the defendant for driving without headlights. H’rg Tr.

(Rough) at 147:24–148:22.

II. DISCUSSION

The defendant argues that the evidence seized from the vehicle must be suppressed

because the officers had neither probable cause nor reasonable suspicion to search the vehicle.

Def.’s Mot. at 4–5. As support, he contends that the odor of marijuana cannot constitute

probable cause to search under D.C. law,

, and that the tangible evidence recovered from

the car was the fruit of an illegal seizure, see

at 7–8. The government counters that the

defendant does not own the BMW and therefore lacks standing to suppress evidence recovered

from the vehicle, Gov’t Opp’n at 4–5, and, in any event, that the ammunition magazine was

observed in plain view,

at 7–8, rendering the search valid under the automobile exception to

the warrant requirement,

, and giving the officers probable cause to believe that evidence

4 of firearm offenses could be found in the vehicle,

. Further, the government contends that

the officers’ search of the defendant was a permissible search incident to a lawful arrest,

.

These arguments are addressed in turn.

The Fourth Amendment prohibits law enforcement officers 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,

(D.C. Cir. 2010) (quoting United States v. Arvizu,

(2002)); see also Terry v.

Ohio,

(1968). Generally, “searches [and seizures] must be supported by a warrant

obtainable upon a showing of probable cause.” United States v. Jackson,

(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.”

(internal quotation marks omitted). Among the exceptions

implicated in this case are the automobile exception, plain view, and searches incident to a

lawful arrest.

At the outset, to prevail on a motion to suppress, the defendant must first establish that he

had a reasonable expectation of privacy in the area that was searched or the items that were

seized. See Rawlings v. Kentucky,

(1980); United States v. Sheffield,

, 303–04 (D.C. Cir. 2016). As noted, the government argues that the defendant lacks

standing to challenge the search because he has failed to offer evidence that he had a reasonable

expectation of privacy in the vehicle. See Gov’t Opp’n at 3–5 & n.4. The Court assumes,

without deciding, that the defendant had a reasonable expectation of privacy in the vehicle

because the outcome of the suppression motion would be the same regardless.

5 Regarding the initial traffic stop, “[a]s a general matter, the decision to stop an

automobile is reasonable where the police have probable cause to believe that a traffic violation

has occurred.” Whren v. United States,

(1996); see also United States v.

Mitchell,

(D.C. Cir. 1991). “Even a relatively minor offense that would not

of itself lead to an arrest can provide a basis for a stop.” Mitchell,

(internal

alteration and quotation marks omitted). Officer Biel testified that he stopped the defendant for

driving at night without any headlights, a violation of

. See H’rg

Tr. (Rough) at 125:23–126:13. This violation provided objectively reasonable probable cause

for the initial stop.

Once a vehicle has been lawfully detained for a traffic violation, officers may order the

driver and any passengers to get out of the vehicle. See Maryland v. Wilson,

, 412–

15 (1997); United States v. Washington,

(D.C. Cir. 2009). In addition,

pursuant to the “automobile exception,” authorities may conduct a warrantless search of a motor

vehicle “[i]f a car is readily mobile and probable cause exists to believe it contains contraband.”

United States v. Maynard,

(D.C. Cir. 2010) (alteration in original) (internal

quotation marks omitted). Where officers observe contraband in the passenger compartment of a

car, the existence of the contraband “is a factor that strongly supports” the lawfulness of a

vehicle search and all containers “that may conceal the object of the search.” Jackson, 415 F.3d

at 91–92 (internal quotation marks omitted). Here, Officer Biel had probable cause to believe

that the car contained marijuana because he smelled a “moderate odor” of marijuana, H’rg Tr.

(Rough) at 133:13–17, and the defendant conceded that there was at least a small amount of

marijuana in the car,

at 133:21–23. Before Officer Biel had the opportunity to search the car,

however, the defendant took flight and a different officer discovered ammunition, a magazine

6 and cartridge, in plain view in the vehicle, providing further probable cause for a warrantless

search under the automobile exception.

The defendant’s contentions otherwise are unpersuasive. Contrary to the defendant’s

position that the odor or presence of a small amount of marijuana cannot constitute reasonable

articulable suspicion of a crime under D.C. CODE § 48-921.02a, Def.’s Mot. at 6–7, this D.C. law

has no impact on the authority of federal law enforcement officers, including the U.S. Secret

Service Officers in this case, to enforce federal law throughout the District of Columbia, see

D.C. COUNCIL, COMM. ON THE JUDICIARY & PUB. SAFETY, COMM. REP. ON BILL 20-409, at 6 n.33

(Jan. 15, 2014). Rather, federal courts, including the D.C. Circuit, have continued to conclude

that “the smell of marijuana, in conjunction with other evidence of drug use, provide[s] probable

cause to believe the vehicle contained drug contraband, which in turn support[s] a search of the

car’s compartments.” Sheffield,

.

Regarding the magazine and cartridge, the law is well established that “the presence of

one weapon may justifiably arouse concern that there may be more in the vicinity.” United

States v. Christian,

(D.C. Cir. 1999). See also United States v. Vinton,

, 20–21 (D.C. Cir. 2010) (officer’s observation of a sheathed knife in plain view on the

backseat justified a search for additional weapons). Officer Amaturo, while lawfully present at

the scene of a traffic stop, observed a magazine and cartridge in plain view in the pocket of the

opened front passenger door of the BMW. See Horton v. California,

, 136–37

(1990) (discussing the elements of the plain view exception); H’rg Tr. (Rough) at 188:9–24. The

fact that Officer Amaturo used a flashlight to help illuminate the pocket does not affect the

conclusion that it was in plain view. See Texas v. Brown,

, 738–40 & n.5 (1983);

accord United States v. Dunn,

(1987). Since the stop of the car was lawful

7 and the magazine and cartridge were permissibly discovered in plain view, the magazine and

cartridge provide further probable cause for a warrantless search of the car.

Finally, although the defendant appears to request only the suppression of the tangible

evidence seized from the vehicle, see Def.’s Mot. at 1, 8, to the extent he also seeks to suppress

the tangible evidence seized from his person upon arrest, that request is denied. Following a

lawful traffic stop, during which the defendant admitted that he possessed marijuana, fled from

law enforcement officers, and was revealed to have been driving a car containing a magazine and

cartridges, the defendant was lawfully arrested. The two searches incident to that arrest were

lawful and there is no basis to suppress any evidence recovered from those searches. See United

States v. Powell,

, 838–41 (D.C. Cir. 2007) (en banc).

III. CONCLUSION

For the foregoing reasons, upon consideration of the defendant’s Motion to Suppress,

ECF No. 9, the memoranda submitted in support and opposition, the testimony presented at the

suppression hearing, and the entire record in this matter, it is hereby

ORDERED that the defendant’s motion is DENIED.

SO ORDERED.

Date: November 19, 2018

________________________ BERYL A. HOWELL Chief Judge

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