UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 18-193 (RDM) CLIFTON SMITH,

Defendant.

MEMORANDUM OPINION AND ORDER

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

(g)(1), and one count of unlawful possession of a controlled substance, in violation

of

(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.

I. FINDINGS OF FACT

Although the defendant ordinarily carries the burden on a motion to suppress, see Rakas

v. Illinois,

, 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,

(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:

1 The Court has reviewed Defendant’s motion, Dkt. 8, the government’s opposition, Dkt. 10, Defendant’s reply, Dkt. 13, and both parties’ supplemental briefing, Dkt. 17; Dkt. 18; Dkt. 19. The Court held an evidentiary hearing on November 27, 2018, see Minute Entry (Nov. 27, 2018), and heard oral argument on November 30, 2018, see Minute Entry (Nov. 30, 2018). Officer Owais Akhtar, the MPD officer who placed Defendant in handcuffs, testified at the evidentiary hearing, and footage from his body-worn camera was admitted into evidence as Government’s Exhibit 1. Dkt. 14 at 1. Officer Charles Smith, the MPD officer who conducted the pat-down of Defendant, also testified at the evidentiary hearing, and footage from his body-worn camera was introduced into evidence as Government’s Exhibit 2.

The government also entered into evidence a photograph of the firearm recovered from Defendant’s person.

(Gov’t Ex. 3). The defense submitted Defendant’s pretrial services report (Def. Ex. 1), a drug test report for Defendant, which indicated that he had tested negative on multiple occasions between January 2, 2015 and February 22, 2017 (Def. Ex. 2), and a photograph of the inside of the driver’s-side door (Def. Ex. 3)—all of which were admitted into evidence. Dkt. 15 at 1. The parties also jointly

2 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

entered into evidence the transcript from Defendant’s detention hearing on April 3, 2018 (Joint Ex. 1), the transcript from the grand jury hearing before the D.C. Superior Court on April 18, 2018 (Joint Ex. 2), the transcript from the federal grand jury hearing on June 21, 2018 (Joint Ex. 3), and the Gerstein Affidavit from the incident, Dkt. 19-1. Finally, the Court admitted into evidence the body-worn camera footage of Sergeant Michael Architzel, an officer who arrived on the scene with the transport team. See Minute Order (Jan. 30, 2019). The last of the briefing and evidence was filed on January 7, 2019. Dkt. 19-1. 2 Officer Akhtar testified that vehicles with Virginia tags, like the one at issue, “should have 50 percent on the front and 35 percent on the back,” meaning that the front windows should allow at least 50 percent of light to pass through, and the back windows should allow at least 35 percent of light to pass through. Dkt. 16 at 19 (Hrg. Tr.). Later, when Officer Akhtar tested the tint of the windows using a tint meter, he discovered that the car “had 21 percent on the front driver’s side window,” id. at 20 (Hrg. Tr.), and he issued the owner a warning citation, see Gov’t Ex. 1 (OA 21:39:21–21:40:08).

3 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).

4 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.).

5 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,

6 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

7 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:

8 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.):

9 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

10 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 in the car. Q. And when you saw—looked into the car, what did you see? A. There was an empty vial, a glass vial, on the door handle.

Dkt. 16 at 23–24 (Hrg. Tr.). He later testified that he was unsure of the timing:

Q. [D]o you know as you sit here today when exactly in this sequence you saw this vial? A. I believe when I went back to the vehicle. Q. You believe it was when you went back to the vehicle? A. I'm not sure if I saw it as soon as I started talking to Mr. Smith or when I went back to the vehicle, but at some point I did see it.

Id. at 24 (Hrg. Tr.).

Officer Smith’s testimony is even more equivocal. He testified that he could not say for

certain whether he saw the vial:

Q. [D]id you see this yourself? A. I could see it, but I can’t say – I never handled it. I never took it from where it was. But at that point, I was just concerned with really the individual we were securing. Q. So do you have a memory of seeing a vial? A. I have a memory of it, but I can’t say for sure. Q. Okay. What do you mean by that? A: I just know through my communication with Officer Akhtar. I want to say I remember it, but I can’t say 100 percent whether I saw it or not. But I was speaking with Officer Akhtar and he insinuated, and which I could also smell the PCP while we were securing the individual.

11 Id. at 99 (Hrg. Tr.). When pressed, he stated that “[he] was able to tell that there was a vial in the

door handle of the vehicle” because of “a nonverbal communication” from Officer Akhtar. Id.

No such “nonverbal communication,” however, was captured by the officers’ body-worn camera

footage, nor did Officer Smith explain what he meant by a “nonverbal communication.” The

officers’ testimony and other evidence, accordingly, falls far short of establishing that either

officer saw a glass vial during the short period of time from when Officer Akhtar first

approached Defendant to when he decided to place him in handcuffs.

Beyond the question of timing, the Court finds that the government has failed to carry its

burden of showing that either officer ever saw the vial. No vial (or any PCP or related

paraphernalia) was recovered from the scene. See id. at 31 (Hrg. Tr.). Moreover, despite Officer

Akhtar’s testimony that he “picked up [the] vial,” “took a look at it,” and “smelled it,” id at 51

(Hrg. Tr.), neither officer’s body-worn camera footage shows the vial or a motion by Officer

Akhtar consistent with examining or smelling a vial. Officer Akhtar explained that “it’s possible

that when [he] looked at it, it was on the side and . . . therefore [the camera] didn’t capture the

incident.” Id. at 62 (Hrg. Tr.). In light of that testimony, the Court asked Officer Akhtar to

identify on the video when this might have occurred, and Officer Akhtar identified five moments

when he was standing near the driver’s-side door, and it was possible that he examined the vial

without his actions appearing on the video. Id. at 68–72 (Hrg. Tr.) (citing OA 21:26:58, OA

21:23:24, OA 21:26:57, OA 21:33:27, OA 21:34:57). The Court has carefully reviewed all five

moments and cannot discern any movements consistent with picking up a vial. In addition,

although the officers converse throughout the video, the video contains no mention of a vial.

Two other pieces of evidence cast further doubt on Officer Akhtar’s recollection that he

picked up and examined the vial. First, Officer Akhtar acknowledged on cross-examination that

12 he had been trained to “put gloves on both hands” when handling PCP or “something that [he]

think[s] has PCP in it.” Id. at 78 (Hrg. Tr.). Yet, his body-worn camera footage shows that he

never put on gloves. Officer Akhtar did not explain this discrepancy, nor did he testify that

gloves were unavailable. In contrast, Officer Smith and Sergeant Architzel’s body-worn camera

footage shows that, before performing the search incident to Defendant’s arrest, the officers put

on gloves. See Gov’t Ex. 2 (CS 21:35:21) (Officer Smith); BWC (MA 21:37:29–33) (Sergeant

Architzel). Second, although Officer Akhtar suggests that his movements may not have been

captured by his body-worn camera, on other occasions, his footage shows similar motions: it

shows, for example, him bringing his walkie-talking to his mouth, and it shows him examining a

driver’s license—movements similar to picking up, examining, and smelling a vial. See, e.g.,

Gov’t Ex. 1 (OA 21:27:03, OA 21:28:48).

Finally, the government acknowledges that the officers did not photograph, collect, or

preserve a vial from the scene. Although Officer Akhtar testified that he smelled the vial and

concluded that it did not contain PCP, and stated that he was “distracted” by his subsequent

investigation into the passenger, Dkt. 16 at 40 (Hrg. Tr.), that does not fully explain why no

effort was made to preserve—or at least to document—potentially inculpatory evidence.

The Court cannot say with certainty what occurred, but, in light of the evidence discussed

above, the Court finds that the government has failed to carry its burden of establishing that

either officer saw a glass vial in the car before—or even after—Defendant was placed in

handcuffs.

B. Pat-Down

After Defendant was handcuffed, Officer Smith walked him to the back of the car. He

explained to Defendant that he was being moved because “there’s two kids in the back seat” and

13 “[he] didn’t want them to be scared.” Gov’t Ex. 2 (CS 21:26:52–21:27:02). Officer Smith

reassured Defendant that “everything’s fine,” and that “[he was] being detained.” Id. (CS

21:27:02–08). After a brief discussion, Officer Smith asked, “You got no weapons on you,

right?” Id. (CS 21:27:27). Defendant responded, “No.” Id. Officer Smith followed up with,

“Do you mind if I pat you down now?” Id. (CS 21:27:28). Defendant answered, “Go ahead.”

Id. (CS 21:27:30).

Both officers testified that, at the time of the pat-down, they had no reason to believe that

Defendant was armed. See Dkt. 16 at 45 (Hrg. Tr.) (Akhtar) (admitting that “[he] had no reason

to believe [Defendant] was armed”); id. at 103 (Hr. Tr.) (Smith) (admitting that “up to that point”

he did not have “any indications . . . of any weapons”). Officer Smith explained, however, that

as a matter or practice, he always asks for consent to conduct a pat-down for weapons:

That’s just a practice that I have. If they consent, then I’ll pat them down. If not, then that’s fine as well. But I usually for my own safety and peace of mind always ask if I can pat-down for weapons just to be more calm and—not necessarily calm, but more peace of mind in reference to our interactions.

Id. at 103 (Hrg. Tr.).

Officer Smith began to pat down Defendant—who stood with his back to the officer—by

frisking “the waistband upper area, the front and back” of Defendant’s windbreaker. Id. at 106

(Hrg. Tr.). He then continued to pat down Defendant’s lower body. He first frisked Defendant’s

left leg, moving from the front pant pocket down to the ankle, and then frisked the right leg,

moving from the ankle upward. Dkt. 16 at 110–11 (Hrg. Tr.). Officer Smith testified that, as he

was “moving up the right leg,” he felt “an object that is not consistent with the male anatomy” in

the “inner thigh area.” Id. at 111 (Hrg. Tr.); see also Gov’t Ex. 2 (CS 21:27:50). In his

experience, that area is a popular place to hide contraband. See Dkt. 16 at 114 (Hrg. Tr.).

14 Officer Smith’s body-worn camera footage shows that he then proceeded to grasp the

crotch point of Defendant’s jeans, see Gov’t Ex. 2 (CS 21:27:51), press the area between

Defendant’s back pant pockets with his outstretched fingers once, id. (CS 21:27:53), and squeeze

that same area once, pushing inward with his thumb, id. (CS 21:27:54). The entire sequence

lasted less than five seconds. Once Officer Smith determined that the object was “hard” and

“[c]ylindrical,” Dkt. 16 at 111 (Hrg. Tr.), he believed that he had located the vial that was “the

source of the PCP odor,” id. at 111–12 (Hrg. Tr.). 3 He immediately asked Officer Akhtar to

“call transport,” id. at 117 (Hrg. Tr.), which signaled that they “had an arrest at that time,” id.

Defendant claims that Officer Smith “grop[ed] his groin area and attempt[ed] to digitally

penetrate his anus through his clothing.” Dkt. 8 at 2. In support of this claim, he argues that

Officer Smith would not have “said four times things were up his butt” on the body-worn camera

footage, Dkt. 16 at 143 (Hrg. Tr.), including statements such as, “You have a vial of PCP in your

crack,” id. at 144 (Hrg. Tr.), if he did not conduct a cavity search. Defendant also emphasized

that, when “[Officer Smith] started to put [his] hands . . . into [his] private areas,” he can be

heard protesting, “What are you doing?” Id. at 142 (Hrg. Tr.); see also Gov’t Ex. 2 (CS

21:27:53).

Officer Smith disputes this characterization. He testified that, when he felt the gun, his

hand was near Defendant’s “[u]pper thigh in between his legs.” Dkt. 16 at 116 (Hrg. Tr.).

Moreover, he insisted that, although his hands were pressing against the object in Defendant’s

pants, they did not touch Defendant’s groin or interior region. Id. Officer Smith explained that,

although he appeared to be “holding” Defendant on his body-worn camera footage, id. at 109

3 What he actually felt was the “barrel of the weapon,” id. at 128 (Hrg. Tr.), which was located between Defendant’s legs and facing “towards the back of his person,” with the handle pointing towards Defendant’s chest, id. at 133 (Hrg. Tr.).

15 (Hrg. Tr.), he, in fact, was not touching Defendant’s body because there were “probably a good

couple of inches” of space between “the crotch [point] of [Defendant’s] jeans all the way up to

[Defendant’s] actual crotch, genitalia area,” id. at 115 (Hrg. Tr.). He further testified that

Defendant was wearing “skinny jeans,” which did not “come up above his buttocks,” id. at 109

(Hrg. Tr.), and three layers of tight clothing underneath his pants: “boxer briefs,” “compression

pants,” and “compression shorts,” id. at 108 (Hrg. Tr.).

Based on Officer Smith’s testimony and his body-worn camera footage, the Court finds

that Officer Smith did not digitally penetrate Defendant’s anus or grope his buttocks or genitalia

through his clothing. The Court credits Officer Smith’s testimony that his hands were not on

Defendant’s buttocks and that, when he referred to the vial being in Defendant’s “butt,” he did

not “literally mean inside [Defendant’s] anus.” Id. at 118 (Hrg. Tr.). Officer Smith’s body-worn

camera footage confirms that Defendant’s jeans were baggy in the crotch area and that the jeans

were sitting several inches below Defendant’s waist, revealing his compression layer underneath.

Gov’t Ex. 2 (CS 21:27:43). Coupled with the fact that Defendant was wearing three layers

underneath his jeans, the Court finds that Officer Smith could not have conducted a cavity

search. Finally, the Court finds that the Officer Smith’s brief cupping, pressing, and squeezing

motions are consistent with feeling the shape of the gun inside Defendant’s pants, and not with

groping Defendant’s groin area.

C. Search

Shortly after calling for transport, additional officers arrived on the scene. They began to

conduct a “full search” of Defendant incident to arrest. Dkt. 16 at 124 (Hrg. Tr.). Officer Smith

located “a large amount of money in [Defendant’s] left pants pocket,” and “a single zip of a tan

powdered substance” in Defendant’s coin pocket that field-tested positive for heroin. Id.; see

16 also Gov’t Ex. 2 (CS 21:36:13–40). When Officer Smith “checked [Defendant’s] leg again,” he

“fel[t] the handle” of the gun. Dkt. 16 at 124 (Hrg. Tr.). At that point, he realized that what he

“thought was a vial,” was, in fact, “a firearm.” Id. He removed a loaded purple, Ruger handgun

from Defendant’s pants. Id. at 129 (Hrg. Tr.); see also Gov’t Ex. 3. Based on that evidence and

Defendant’s prior felony conviction, Defendant was indicted on one count of unlawful

possession of a firearm, in violation of

(g)(1), and one count of unlawful

possession of a controlled substance, in violation of

(a). Dkt. 1. The officers did

not recover any PCP or PCP paraphernalia.

II. CONCLUSIONS OF LAW

Defendant Smith claims that the physical evidence recovered from his person was seized

as a result of his unlawful arrest. Dkt. 13 at 2. “When the government conducts an

unconstitutional search or seizure, the Court must exclude any evidence obtained as the ‘fruit’ of

that search or seizure.” United States v. Sheffield,

(D.D.C. 2011) (citing

Wong Sun v. United States,

(1963)). Generally, “[t]he proponent of a motion

to suppress has the burden of establishing that his own Fourth Amendment rights were violated

by the challenged search or seizure.” Rakas,

n.1. When “a defendant produces

evidence that he was arrested or subjected to a search without a warrant,” however, “the burden

shifts to the government to justify the warrantless arrest or search.” United States v. Jones,

(D.D.C. 2015) (internal citations omitted). Here, Defendant contends, inter

alia, that he was unlawfully arrested when the officer placed him in handcuffs at the outset of

their encounter. Dkt. 13 at 3. Accordingly, the “government [bears] the burden of showing that

the measures employed during the stop were justified.” United States v. Mangum,

(D.C. Cir. 1996).

17 The motion to suppress raises three issues. First, Defendant argues that the officers

lacked reasonable suspicion to stop him. Second, he contends that the officers’ use of handcuffs

transformed the stop into an impermissible arrest. And third, he argues that Officer Smith’s pat-

down exceeded the scope of a Terry frisk. The Court will address each in turn.

A. Reasonable Suspicion to Stop

As a threshold matter, Defendant contends that the officers “lacked reasonable suspicion”

to conduct “[a]n investigatory stop.” Dkt. 13 at 9. He argues that “none of the information the

officers had at the time they seized [him] provided a basis to suspect him of criminal activity.”

The Court is unpersuaded.

In Terry v. Ohio,

(1968), the Supreme Court held that “the police can stop and

briefly detain a person for investigative purposes if the officer has reasonable suspicion . . . that

criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v.

Sokolow,

(1989) (quoting Terry,

). Reasonable suspicion exists if

the officer can articulate a “particularized” basis—as opposed to an “inchoate . . . suspicion or

‘hunch’”—for “suspecting the particular person stopped of criminal activity.” Terry,

; United States v. Abdus-Price,

(D.C. Cir. 2008) (citations omitted). Unlike

probable cause, reasonable suspicion requires only a “minimal level of objective justification for

the stop.” Illinois v. Wardlow,

(2000); see also United States v. Goddard,

(D.C. Cir. 2007) (noting that the standard for reasonable suspicion is “significantly

lower” than that of probable cause).

When assessing whether an officer had reasonable suspicion to effectuate a Terry stop,

the Court must give “due weight” to “the specific reasonable inferences” the officer drew “in

light of his experience,” Terry,

, and must consider “the totality of the

18 circumstances,” Sokolow,

(citation omitted). The D.C. Circuit has also emphasized

that, “even though a single factor might not itself be sufficiently probative of wrongdoing to give

rise to a reasonable suspicion, the combination of several factors—especially when viewed

through the eyes of an experienced officer—may.” United States v. Edmonds,

(D.C. Cir. 2001).

Applying this standard, the Court concludes that Officers Akhtar and Smith had sufficient

justification to “stop and briefly detain” Defendant “for investigatory purposes.” Sokolow,

. Both officers testified, and their body-worn camera footage confirms, that Defendant

was standing between the door and driver’s seat of a car with heavily tinted windows when they

approached. Dkt. 10 at 2–3. In Officer Akhtar’s experience, “dark tinted windows on a car can

be utilized in furtherance of drug trafficking by providing a means of avoiding detection and

observation from law enforcement.”

at 2 n.3. Both officers further testified that the

neighborhood was a “high-crime” area where drugs and guns were prevalent. Dkt. 16 at 6–8, 87

(Hrg. Tr.). And both testified that, as they got closer to Defendant, they smelled a distinct odor

of PCP.

, 32–33, 98 (Hrg. Tr.). Taken together, these observations are more than

sufficient to support a reasonable suspicion that “[D]efendant was in actual or constructive

possession of PCP.” Dkt. 10 at 8. Indeed, the Supreme Court and D.C. Circuit have upheld

investigatory stops based on similar—if not less probative—observations. See, e.g., Wardlow,

(flight in high-crime area gives rise to reasonable suspicion); Edmonds,

(“furtive gestures” at known drug-trafficking site plus companion’s flight give rise to

reasonable suspicion).

19 The Court will, accordingly, go on to consider whether handcuffing Defendant

transformed the otherwise valid Terry stop into an arrest and, if so, whether there was probable

cause to arrest.

B. Use of Handcuffs

The parties agree that that the use of handcuffs during a Terry stop does not

“automatically convert [the stop] into an arrest.” Dkt. 18 at 25; see also Dkt. 13 at 3. They

disagree, however, whether Officer Akhtar’s decision to handcuff Defendant thirty seconds after

exiting the patrol car exceeded the bounds of an investigative detention. See United States v.

Dykes,

(D.C. Cir. 2005) (“[T]he amount of force used to carry out the

stop . . . must be reasonable, but may include using handcuffs . . . .” (quoting United States v.

Laing,

(D.C. Cir. 1989))). The government argues that handcuffing

Defendant did not transform the stop into an arrest because the officers were reasonably

concerned for their “safety given the dangers inherent with PCP,” Dkt. 10 at 8; and, in the

alternative, that the officers had probable cause to arrest Defendant, see Dkt. 18 at 21–32. For

the reasons explained below, the Court is unpersuaded.

1. Whether the Use of Handcuffs Converted the Stop into an Arrest

It is well-settled that “the right to make . . . [an] investigatory stop necessarily carries

with it the right to use some degree of physical coercion or threat thereof.” Graham v. Connor,

(1989). “In deciding what degree of force is permissible, courts must look to

‘the facts and circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.’” Dykes,

(quoting Graham,

). Consistent with the language of the Fourth Amendment, the

20 test is, ultimately, “one of reasonableness.” Id.; accord U.S. Const. amend. IV (proscribing

“unreasonable searches and seizures”); Florida v. Royer, 460 U.S. at 514–15 (plurality opinion)

(balancing “the amount of intrusion upon individual privacy against the special law enforcement

interests” of permitting an investigative detention “on less than probable cause”). A Terry stop

must (1) “last no longer than is necessary to effectuate the purpose of a stop” and (2) employ

“the least intrusive means reasonably available to verify or dispel the officer’s suspicion.”

Florida v. Royer,

(plurality opinion). “[A] stop that is unduly prolonged or

intrusive transforms from an investigative stop into an arrest requiring probable cause.” Hall v.

District of Columbia,

(D.C. Cir. 2017).

Although “handcuffing . . . [a] suspect is not ordinarily proper” during an investigative

stop, there are “a variety of special circumstances that will make such a step permissible.”

Search & Seizure § 9.2(d) (collecting cases); see also United States v. Taylor,

(9th Cir. 1983) (noting that, although the use of handcuffs “substantially aggravat[es] the

intrusiveness of an investigatory stop,” doing so does “not necessarily convert a Terry stop into

an arrest necessitating probable cause”). Officers can, for example, use handcuffs without

escalating the stop into a full-blown arrest when they reasonably fear for their safety or the safety

of others. See Dykes,

(upholding the use of handcuffs where the officers

“reasonabl[y] . . . fear[ed] that [the suspect] had a weapon in his waistband”); see also United

States v. Tilmon,

, 1227–28 (7th Cir. 1994) (upholding use of handcuffs during an

investigative detention where the suspect matched the description of an armed bank robber).

Courts have also upheld the use of handcuffs when necessary to allow the police to complete

their investigation, including where the suspect “attempted to resist police, made furtive gestures,

ignored police commands, attempted to flee, or otherwise frustrated police inquiry.” Womack v.

21 United States,

(D.C. 1996) (collecting cases); see also United States v.

Wilson,

(6th Cir. 1993) (suspect “fled” and “was certainly very actively evading

[the police]”); Taylor,

(suspect posed “possibility of an assault or attempt to

flee”); United States v. Purry,

(D.C. Cir. 1976) (suspect was uncooperative).

In this case, the government has not offered any evidence, and does not argue, that

Defendant was uncooperative or that he posed a flight risk. Instead, its sole justification for the

use of handcuffs is that “Officer Akhtar believed that cuffing [Defendant] was necessary for

officer safety” because “individuals under PCP’s influence can be quite dangerous.” Dkt. 10 at

4. For purposes of the Fourth Amendment, “[t]he critical question is whether a reasonably

prudent officer would have been justified in using handcuffs . . . .” Womack,

.

That objective standard requires the Court to determine whether “the facts and circumstances of

[this] particular case” would lead a reasonable officer to conclude that Defendant “pose[d] an

immediate threat to the safety of the officers or others.” Dykes,

(quoting

Graham,

).

Although a close question, the Court is unconvinced that a reasonable officer would have

believed that Defendant posed an immediate threat to officer safety. Officer Akhtar explained

that he handcuffed Defendant because that is “always” the “first thing [he] personally do[es]”

upon encountering an individual who “may or may not be on PCP.” Dkt. 16 at 12 (Hrg. Tr.).

Given the officers’ testimony about the effects of PCP, the Court does not doubt that a

reasonable officer would fear for his safety or the safety of others in an encounter with an

individual high on PCP. The question here, however, is not whether it is reasonable to handcuff

a suspect who was high on PCP, but whether it was reasonable—in light of the totality of

22 circumstances—to believe that Defendant was on PCP. For several reasons, the Court concludes

that it was not.

To start, neither Officer Akhtar nor Officer Smith testified that he believed Defendant

was high on PCP. Rather, Officer Akhtar testified that it was his general practice to handcuff

individuals who “may or may not be on PCP.” Id. at 12 (Hrg. Tr.). Moreover, as explained in

the findings of fact, the evidence does not establish that either officer smelled PCP on

Defendant’s person; rather, the evidence merely shows that they smelled PCP in Defendant’s

vicinity. Given the officers’ testimony that it was not uncommon to smell PCP in the area where

they encountered Defendant, id. at 165 (Hrg. Tr.), and that the smell of PCP is overpowering and

can linger, id. at 8, 10 (Hrg. Tr.), the smell of PCP near Defendant, alone, does not permit the

reasonable inference that he had ingested the drug.

Nor has the government offered any other evidence that Defendant had recently smoked

PCP. To the contrary, both officers’ testimony and their actions at the scene suggest that they

believed the source of the odor was a vial of liquid PCP—not PCP that Defendant had ingested.

Upon approaching Defendant, Officer Akhtar asked, “You ain’t got no PCP on you, right?” He

did not ask, “You’re not on PCP, are you?” See Gov’t Ex. 1 (OA 21:26:05–07). Officer Akhtar

also allegedly told Officer Smith after Defendant’s arrest that the source of the odor was a vial of

PCP in the driver’s side car door. Dkt. 16 at 148–49 (Hrg. Tr.). Officer Smith’s testimony

indicates that he, too, believed what he had smelled was a vial of liquid PCP. For instance, he

testified that, when he felt the barrel of the gun during the pat-down, he believed that he had

located the vial that was “the source of the PCP odor.” Id. at 111–12 (Hrg. Tr.) (emphasis

added).

23 Most significantly, Defendant exhibited none of the signs of being under the influence of

PCP. Both officers testified that individuals on PCP exhibit symptoms such as sweating, giving

blank stares, exhibiting superhuman strength, acting belligerent, and acting confused or

disoriented, such as responding “Huh? Huh?” to questions. See id. at 74–75, 89 (Hrg. Tr.).

Officer Akhtar testified—and his camera footage confirms—that, at the time he handcuffed

Defendant, Defendant exhibited none of those symptoms. Id. at 75 (Hrg. Tr.); Gov’t Ex. 1 (OA

21:25:48–21:26:12). He did respond, “Huh?” when Officer Akhtar approached, but that was not

out of the ordinary given Officer Akhtar’s preceding utterance: “Tint.” Their subsequent

interaction demonstrates that Defendant was cogent. It may be that some individuals under the

influence of PCP are asymptomatic before turning violent, but, if so, the government has not

made that argument, nor has it provided any testimony or evidence in support of such a claim.

Simply put, there is no evidence—aside from the smell of PCP in Defendant’s vicinity—to

suggest that Defendant was on PCP.

The Court asked the government to identify any authority that would allow the use of

handcuffs under the present circumstances, and, in response, it directed the Court to the

Sixth Circuit’s decision in United States v. Foster,

(6th Cir. 2004). In Foster, the

police observed the defendant “emerge from a parked vehicle” and walk “towards a dumpster,”

which, in the officers’ experience, was used at times as a place to hide PCP.

. When

the officers approached the defendant, they “could smell PCP coming from [his] person.”

They asked the defendant for identification, but he said that he did not have any.

The

defendant, who was wearing only a t-shirt in the dead of winter in Cleveland, then asked if he

could return to his car to stay warm, and the officer agreed to let him do so until they could

retrieve their police vehicle, which was “parked several blocks away.”

. But, before

24 the defendant was allowed to return to his car, one of the officers handcuffed and frisked him.

On appeal, the defendant argued that, by handcuffing him, the officers effected an arrest

without probable cause.

The Sixth Circuit disagreed, concluding that the officers did not

“overstep[] . . . the permissible bounds of the Terry doctrine.”

.

Foster differs from this case in a number of important aspects. First, unlike in this case,

the evidence in Foster unequivocally established that the officers smelled PCP “coming from”

the defendant.

at 581–82. Second, the decision to handcuff the defendant was made only

after he requested that he be allowed to return to his car, where the officers feared he might have

concealed a weapon.

. Considering that risk and the fact that “people on PCP can

become extremely violent,” the officers placed the defendant in handcuffs “not only to conduct

the pat-down but also to be able to place [him] in his car and out of the cold, without having to

worry about the possible weapons in [the defendant’s] car that he could reach.”

In contrast,

the evidence here shows only that the smell of PCP was coming from the vicinity where

Defendant was standing; the officers, by their own account, had no reason to believe that

Defendant was armed; and they were not returning Defendant to a place where he might have

stored a weapon. Accordingly, Foster does little to support the government’s position.

The Court recognizes that officers must make difficult and oftentimes split-second

decisions in the field. But the Fourth Amendment draws a line between a Terry stop and an

arrest. In order for the use of handcuffs, which “substantially aggravat[es] the intrusiveness of

an investigatory stop,” Taylor,

, to be reasonable, there must be evidence that

would permit a reasonable officer to believe that “the suspect pose[d] an immediate threat to the

safety of the officers or others,” Dykes,

(quoting Graham,

). The

fatal defect in the government’s argument is the absence of any meanginful evidence that

25 Defendant was under the influence of PCP. On top of this, there was nothing about the

encounter that might have warranted heightened concern. To the contrary, the relevant events

occurred in broad daylight; an infant and a toddler sat in the back seat of the car; Defendant was

calm and non-aggressive; and, importantly, neither officer suspected that he was armed. In light

of these facts, the Court cannot conclude that it was reasonable to handcuff Defendant.

To be clear, the smell of PCP in an area, when combined with evidence that the suspect is

on PCP or otherwise dangerous, might well justify the prophylactic use of handcuffs. But the

government has failed to show that this is such a case. Rather, it asks the Court to approve the

use of handcuffs based solely on Defendant’s close proximity to a strong odor of PCP in an area

that Officer Smith testified smells of PCP “a couple times a week,” Dkt. 16 at 165 (Hrg. Tr.).

The Court declines to do so. The government’s position would seem to open the door to

routinely handcuffing those who are in close proximity to the smell of PCP without any further

justification. In the Court’s view, something more—symptomatic behavior, prior experience

with the suspect, a unique risk factor, or the like—is necessary before taking the significant step

of using handcuffs in the course of a Terry stop.

The Court, accordingly, finds that the use of handcuffs here was “unduly . . . intrusive,”

thereby transforming “the investigative stop into an arrest requiring probable cause.” Hall,

.

2. Whether There Was Probable Cause to Arrest Defendant

The government posited for the first time at oral argument that, in the alternative, Officer

Akhtar had probable cause to arrest Defendant. 4 See Oral Arg. Tr. (Rough at 10:13). As a

4 The government originally argued in its briefing that “the officers would have been justified in conducting a search of [Defendant] at that point.” Dkt. 10 at 8. A search of a person—unlike his

26 threshold matter, the Court notes that it is unclear whether the existence of probable cause can

justify handcuffing and patting down Defendant when the officers expressly disclaimed that they

were effecting an arrest. See Knowles v. Iowa,

(1998) (holding that the

existence of probable cause to arrest the suspect did not render the officer’s warrantless search of

his car lawful when the officer did not intend to effect an arrest); see also United States v. Lewis,

, 252–53 (D.C. 2016) (Beckwith, J., dissenting) (same). The Court need not reach

that issue, however, because the Court concludes that the officers did not have probable cause to

arrest Defendant at the time he was handcuffed.

Probable cause to arrest exists only “if a reasonable and prudent officer would conclude

from the totality of the circumstances that a crime has been or is being committed.” United

States v. Holder,

(D.C. Cir. 1993) (citation omitted). The Court must

consider “the facts and circumstances within [the arresting officer’s] knowledge and of which

they had reasonably trustworthy information.” Beck v. Ohio,

(1964). Although

“probable cause is a fluid concept” that is “not readily, or even usefully reduced to a neat set of

legal rules,” Illinois v. Gates,

(1983), the Supreme Court has cautioned that

“a . . . seizure of a person” must be supported by evidence “particularized with respect to that

person,” Ybarra v. Illinois,

(1979).

Probable cause to arrest and probable cause to search, moreover, are distinct inquiries,

and, the existence of one does not necessarily give rise to the other. See United States v. Gilliam,

effects—however, is generally impermissible prior to his formal arrest. See Search & Seizure § 5.4 (b) (“[S]earch-before-arrest cases generally assume that a ‘substantially contemporaneous’ arrest is essential, and thus cannot readily be extended to encompass [a] situation in which no such arrest occurs.” (citing Cupp v. Murphy,

(1973) (upholding the limited search of the suspect prior to his arrest where there was (1) probable cause to arrest, but no formal arrest; (2) the suspect was reasonably believed to be in the process of destroying evidence; and (3) the evidence could be preserved by a limited search)).

27

(D.C. Cir. 1999). Although both standards involve “the same quantum of

evidence,” “[e]ach requires a showing of probabilities as to somewhat different facts and

circumstances.” Search & Seizure § 3.1(b) (emphasis added). Unlike probable cause to arrest,

probable cause to search requires only a “fair probability that contraband or evidence of a crime

will be found in a particular place.” Gilliam,

(emphasis added) (quoting Gates,

). As such, “there can be probable cause to search a vehicle,” for example,

“without there also being probable cause to arrest the owner or operator of that vehicle.” Search

& Seizure § 3.1(b); accord Butler v. United States,

(D.C. 2014) (“[T]he

legality of the search [incident to arrest] in this case cannot simply turn on whether the officer

identified the smell of marijuana ‘generally’ emanating from appellant’s vehicle—which

indisputably would allow the police to search the vehicle for contraband—but rather on whether

the facts and circumstances . . . gave [the officer] ‘reasonable grounds to believe . . . that a

felony ha[d] been committed by the person to be arrested.’” (citations omitted)).

According to the government, Officers Akhtar and Smith had probable cause to arrest

Defendant for four reasons: (1) the car windows were heavily tinted; (2) the officers smelled

PCP emanating either from the car or from Defendant, (3) the officers observed a glass vial

inside the car; and (4) the events occurred in a high-crime neighborhood. Dkt. 10 at 7–8. The

government further contends that, under the relevant case law, “a distinctive odor” of PCP can

even, “by itself . . . provide sufficient probable cause to arrest or to search.” Dkt. 18 at 21. The

Court is, again, unpersuaded.

As a threshold matter, the government conflates the requirements for probable cause to

arrest Defendant and probable cause to search the car. The Court agrees that a distinctive odor of

PCP, alone, can establish probable cause to search the place from which the smell is emanating.

28 See, e.g., United States v. Glover,

, 418–19 (D.C. Cir. 2012) (holding that the smell

of PCP emanating from a home is sufficient for probable cause to obtain a search warrant);

United States v. West,

(10th Cir. 2000) (“An officer’s detection of the smell

of drugs . . . can be an independently sufficient basis for probable cause [to search].” (citations

omitted)); Minnick v. United States,

(D.C. 1992) (“[A] police officer who

smells the identifiable aroma of a contraband drug emanating from a car has probable cause to

believe that the car contains a quantity of that drug.”). But, as explained above, probable cause

to arrest an individual requires more than “a fair probability that contraband . . . will be found” in

his vicinity. Gilliam,

. An officer must, instead, be able to articulate a

particularized basis for believing that individual has committed a felony. See Butler,

. As far as the Court can discern, no published decision holds that the smell of a drug in a

public space, alone, gives rise to probable cause to arrest a person in close proximity to the

odor. 5

5 The Supreme Court did hold in Maryland v. Pringle,

(2003), that the police had probable cause to arrest all three occupants of a car that contained cocaine. Although the Court observed that “it was an entirely reasonable inference . . . that any or all three occupants had knowledge of, and exercised dominion and control over, the cocaine,”

(emphasis added), the Court went on to explain that the finding of probable cause was premised on the following facts: (1) the three individuals “were in a relatively small automobile,” (2) “a car passenger . . . will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or evidence of their wrongdoing,” and (3) a reasonable officer could “infer a common enterprise” based on “[t]he quantity of drugs and cash in the car,” which were consistent with “drug dealing” and which the perpetrator “would [have] be[en] unlikely to” disclose “to an innocent person with the potential to furnish evidence against him.”

(internal quotation marks and citation omitted).

The Court’s analysis in Pringle does not extend to this case for several reasons. Most notably, the smell of PCP near a vehicle in which one adult is seated and two other adults are standing outside does not give rise to a reasonable inference that all three—or that any two—are engaged in a common criminal enterprise. Indeed, it is far from clear that there would have been probable cause to arrest Defendant and the passenger even if Defendant had been seated inside the car. The Court has located only one decision that even arguably supports such an inference, and the

29 Although the D.C. Circuit has yet to address this issue, substantial precedent establishes

that more than the odor of a drug in a suspect’s immediate vicinity is required to establish

probable cause to arrest. The D.C. Court of Appeals recognized as much in United States v.

Butler—a case on which the government itself relies.

. There, the court noted

that, to establish probable cause to arrest based on smell, “the officer [must] be able to link the

unmistakable odor of [the drug] . . . to [the] specific person” and, “[t]he linkage must be

reasonable and capable of articulation.”

(first alteration in original) (citation omitted).

Although the odor of marijuana in Butler was “generally emanating from [the appellant’s]

vehicle,”

the D.C. Court of Appeals relied on two additional factors to establish the

“particularized justification” necessary to find that the officer had probable cause to arrest the

defendant: First, the appellant was “the sole occupant of the vehicle thus making it more likely

that any marijuana present was either on his person or within his exclusive control.”

Second,

the officer testified that “the aroma was of fresh marijuana,” rendering it “more likely that

appellant was presently in possession of marijuana.”

Other courts have also held that the smell of a drug can give rise to probable cause to

arrest but only if the odor can be connected to a specific person. See, e.g., United States v.

Paige,

(7th Cir. 2017) (“[T]he odor of marijuana, if sufficiently localized to a

specific person, provides probable cause to arrest that person for the crime of marijuana

possession.”); United States v. Perdoma,

(8th Cir. 2010) (“[The officer] had

probable cause to arrest [the defendant] for marijuana possession once he detected the odor of

marijuana emanating from [him].”); United States v. Humphries,

(4th Cir.

relevant discussion in that case is both dicta and is supported only by citations to cases finding probable cause to conduct a search. See United States v. McGehee,

, 868–69 (10th Cir. 2012).

30 2004) (“[I]f an officer smells the odor of marijuana in circumstances where the officer can

localize its source to a person, the officer has probable cause to believe that the person has

committed or is committing the crime of possession of marijuana.”); United States v Jackson,

(3d Cir. 2017) (“So long as an officer smells the odor of marijuana and can

localize its source with sufficient particularity, probable cause has been established.”).

That is not the case here. Although their testimony varied over time, both Officer Akhtar

and Officer Smith ultimately acknowledged that they could not tell whether the smell of PCP

emanated from Defendant or from the car. See, e.g., Dkt. 16 at 33 (Hrg. Tr.). That is not enough

because, unlike in Butler, Defendant was not alone and, in fact, was not even in the car. The

officers, moreover, could not articulate a “particularized” basis for reasonably believing that

Defendant—as opposed to someone else—had committed a crime. See Ybarra,

.

Officer Akhtar acknowledged that he had no specific reason to believe that Defendant was the

owner of the car and, when asked whether had had reason to think that Defendant was the driver,

Officer Akhtar simply replied, “I am not sure about that one.” Dkt. 16 at 49–50 (Hrg. Tr.). He

further acknowledged that the smell of PCP can last a “long time.” Id. at 10 (Hrg. Tr.). Officer

Smith did observe that the odor was stronger on the driver’s side of the vehicle and “more faint

on [the passenger side],” id. at 166 (Hrg. Tr.), but that, alone, is insufficient to establish probable

cause that Defendant had committed a crime.

The government’s argument, though, does not rest on the odor alone; the government

also stresses that Officer Akhtar saw a vial of PCP near the interior handle on the driver’s-side

door. Had either officer observed such a vial (or what he reasonably believed to be the vial)

before he handcuffed Defendant, that—along with the other evidence—might have been

31 sufficient to establish probable cause to arrest Defendant. 6 Given Defendant’s proximity to the

alleged vial and the fact that it was in plain view, one might reasonably infer that the vial

belonged to Defendant because someone engaged in the distribution of PCP would not leave his

product (or evidence of his unlawful activity) so easily accessible to third parties. Cf. Pringle,

540 U.S. at 373–74. The government’s argument, however, suffers from two substantial

problems. First, and foremost, neither officer could testify that he saw the vial before placing

Defendant in handcuffs. Second, as explained above, the government has not carried its burden

of establishing that the officers saw a vial—or what they believed to be a vial—inside the

driver’s-side door of the vehicle.

The Court is therefore left with the following facts. The officers encountered Defendant

in a high-crime neighborhood next to a car with tinted windows, and they smelled PCP near him.

Other evidence, however, showed that the officers encountered Defendant in broad daylight; they

did not observe him reaching into the car or engaging in any sort of transaction; Officer Smith

was aware of at least one young child in the back seat; and Defendant responded calmly and

cogently to Officer Akhtar’s questions. There was no meaningful evidence, moreover, that

Defendant was high on PCP; he did not exhibit any symptoms of having ingested PCP and, as

explained above, the Court is unpersuaded that the officers saw any associated paraphernalia.

Finally, Officer Smith testified that it was not uncommon to smell PCP—an odor that is powerful

enough to fill an entire courtroom—in the general area. Dkt. 16 at 11, 92 (Hrg. Tr.). The Court

finds, in light of the totality of these circumstances, that Defendant’s mere proximity to a car

6 The dispositive issue here is not whether a vial in fact existed, but whether the officers reasonably believed that they saw it before handcuffing Defendant. See United States v. Williams,

, 200–01 (D.D.C. 2012) (“If an officer is mistaken as to a fact, but his mistake was objectively reasonable, courts have generally concluded that the stop itself is reasonable.” (citations omitted)).

32 with tinted windows and the strong odor of PCP, without more, does not establish probable cause

to arrest him for a drug offense.

The Court, accordingly, holds that the officers’ use of handcuffs was unreasonable.

C. Pat-Down

The only remaining issue is whether the pat-down was lawful. If not, the fruits of the

pat-down must be suppressed.

There is no dispute that, absent Defendant’s consent, Officer Smith did not have

sufficient cause to frisk him. The Supreme Court’s command is clear: an officer “may conduct a

limited protective search for concealed weapons” only when he is “justified in believing that the

individual . . . is armed and presently dangerous to the officer or to others.” Adams v. Williams,

(1972) (quoting Terry,

). Here, neither officer testified that, at

the time of the pat-down, there was reason to suspect that Defendant was armed; to the contrary,

Officer Akhtar testified on multiple occasions that he had no basis to believe that Defendant

carried a concealed weapon. See Joint Ex. 1 at 18; Dkt. 16 at 45 (Hrg. Tr.). Defendant did,

however, consent to the pat-down. The Court must, accordingly, determine whether that consent

was valid and, if so, whether the pat-down was nonetheless unduly intrusive.

1. Consent

Even if Defendant was unlawfully seized, suppression of the physical evidence recovered

from his person is not required if he validly consented to the pat-down. See United States v.

Holmes,

(D.C. Cir. 2007). In United States v. Holmes, the D.C. Circuit

recognized that “[e]vidence obtained following an unlawful seizure may be admissible if the

government can demonstrate that there was an act prior to discovery of the challenged evidence

sufficient to ‘purge the primary taint’ and break the causal chain between the illegal government

33 conduct and the evidence’s ultimate discovery.”

(quoting Brown v. Illinois,

(1975)). Although Holmes dealt with consent that was given following an illegal search, not

seizure, the Court of Appeals concluded that the standard for assessing the voluntariness of a

suspect’s consent following an unlawful search and unlawful seizure is the same.

In Holmes, the police apprehended the defendant mid-flight, handcuffed him, and

confiscated his car keys. Id. at 1290. “The officers then asked [the defendant], still handcuffed,

if he would sign a consent-to-search form to allow the officers to search his car,” which he did.

Id. at 1291. Based on those facts, the D.C. Circuit concluded that the above standard was not

satisfied and reversed the district court’s denial of a motion to suppress. As the court explained,

it is not enough for the government to show that the defendant’s consent was voluntary; to

“break the causal chain,” the government must demonstrate that the defendant’s consent was

“‘sufficiently an act of free will’ [such] that it was not a result of the exploitation of the unlawful

seizure.” Id. at 1294 (quoting Brown v. Illinois, 422 U.S. at 602–04).

To make that assessment, the Holmes court looked to the four-factor test set forth in

Brown v. Illinois: (1) whether Miranda were warnings given; (2) the temporal proximity of the

arrest and the consent; (3) the presence of intervening circumstances; and (4) the purpose and

flagrancy of the official misconduct. See id. Applying those factors, the D.C. Circuit held that

the defendant’s consent was invalid because “there was virtually no temporal gap between the

seizure and the consent;” “[t]he entire incident occurred in the middle of the night on an empty

street;” and there were no “intervening circumstances” to “break the causal chain between the

illegal government conduct and the evidence’s ultimate discovery.” Id. at 1294. Although the

police did not engage in any flagrant acts of misconduct, the Court concluded that “the absence

34 of th[at] factor” did not “compensate[] for the strongly coercive circumstances otherwise

surrounding [the defendant’s] grant of consent to search.” Id. at 1295.

With one exception, the same “strongly coercive circumstances” exist in this case.

Although Defendant assented to Officer Smith’s pat-down, he, like the defendant in Holmes, was

in handcuffs at the time. See Gov’t Ex. 2 (CS 21:27:28–30). Moreover, less than two minutes

had elapsed between the time the officers unlawfully seized him and when Officer Smith

solicited his consent for a pat-down. See id. (CS 21:26:20–21:27:30). That “temporal

proximity” weighs “heavily against a finding” that Defendant’s consent “was an act of free will

sufficient to purge the taint” of his unlawful seizure. Holmes,

. And, the

footage from both officers’ body-worn camera reflects that no intervening circumstances

occurred during that time that might have broken the “causal chain” between Defendant’s illegal

seizure and his consent to the search. To the contrary, Defendant was detained and handcuffed

during that entire period. The only material difference between Holmes and this case is that the

events at issue here did not occur in the middle of the night on an empty street. The Holmes

court, however, considered that factor in the context of assessing whether any “intervening

circumstances” purged the taint resulting from the unlawful search, and it concluded that the

defendant still “faced a coercive situation at the time he gave his consent.”

The same

conclusion applies here.

The Court, accordingly, finds that Defendant’s consent was invalid and that, as result, the

physical evidence recovered from the search incident to his formal arrest must be suppressed as

fruit-of-the-poisonous tree. See Wong Sun,

.

35 2. Scope

Given the Court’s holding, it need not reach the question of whether the scope of the pat-

down violated the Fourth Amendment. The Court will note, however, that it is unpersuaded by

Defendant’s characterization of the pat-down as an “extraordinarily invasive and intimate

search—involving the penetration of one of [Defendant’s] body cavities.” Dkt. 13 at 10. To be

sure, Officer Smith did briefly “squeez[e] and prod[]” Defendant’s inner-thigh area over his

trousers,

but the search did not “involve the penetration or prodding of body cavities,”

The pat-down was similar in kind to the one upheld by the D.C. Circuit in United States v.

Rodney,

(D.C. Cir. 1992), in which the Court of Appeals concluded that “a

continuous sweeping motion over [the defendant’s] outer garments, including the trousers

covering his crotch area,” was “not unusually intrusive,”

.

CONCLUSION

The Court’s recognizes that its analysis must, of course, be informed by the experience

and reasonable perceptions of police officers who regularly face circumstances that are

potentially dangerous, fluid, and uncertain. That, however, does not alter the government’s

burden of proving that “the measures employed during the stop were [reasonably] justified.”

Mangum,

. The Court’s holding is narrow: the government has failed to show—

on the specific facts of this case—that the officers acted reasonably when they decided to

handcuff Defendant based solely on the smell of PCP emanating from his vicinity, a mere thirty

seconds after the officers left their patrol car and within ten seconds of Officer Akhtar coming

within arm’s-length of Defendant. Absent any particularized evidence that Defendant himself

was under the influence of PCP or that he was dangerous in any way, there is no basis for the

Court to find that Defendant posed “an immediate threat to the safety of the officers or others,”

36 Dykes,

. Nor has the government identified evidence that would have allowed a

reasonable officer to conclude that he had probable cause to arrest Defendant. The Court,

accordingly, holds that the officers’ use of handcuffs in this case transformed the otherwise valid

Terry stop into an arrest without probable cause. The physical evidence recovered from

Defendant’s person is the fruit of that unlawful seizure and must be suppressed.

The Court therefore GRANTS Defendant’s motion to suppress. Dkt. 8.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: January 30, 2019

37