UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ,

v. CLIFTON SMITH , Defendant. Criminal Action No. 18

- 193 (RDM)

MEMORANDUM OPINION AND ORDER Defendant Clifton Smith ’s motion to suppress physical evidence raises an unsettled issue of Fourth Amendmen t 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 Metro politan 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, n o one was in the driver’s sea t, but another man was seated in the passenger seat , a woman w as standing near the left tail light, and a n 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 ha ndc uff 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 o f PCP. It turned ou t 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 e vidence and evidence that D efendant had a prior felony conviction, Defendant was charged with o ne count of unlawful possession of a firearm, in violation of 182 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 sei zed 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 Althoug h the defendant ordinarily carries the burden on a motion to suppress , see Rakas v. Illinois , 439 U.S. 128, 131 n.1 (1978), w here, 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 prosecutio n.”); see also Florida v. Royer , 460 U.S. 491,
501 (1983) (plurality opinion ) (“It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion

. . . satisf[ied] the conditions of an investigative seizure .”). Based on the officers’ testimony , the parties’ briefing and oral argument, and the submitted evidence, 1 the Court makes the following findings of fact :

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 Novem ber 27, 2018, see Minute Entry (Nov. 27, 2018), and heard oral argument on November 30, 2018, see Minute Entry (Nov. 30, 2018). Officer Owais Akh tar, 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. Id. The government also entered into evidence a photograph of the firearm recovered from Defendant’s person. Id. (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 photograp h of the inside of the driver’s

- side door (Def. Ex. 3)

— all of which were admitt ed into evidence. Dkt. 15 at 1. T he parties also jointly3 On March 30, 2018 , Officers Owais Akhtar and Charles Smith w ere 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 member s 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 O fficer Smith had ten years of
expe rience , id. at 83, 85 (Hrg. Tr.). Both officers testified that the y 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 t hey 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 in side of the car, with his back to the officers

. Gov’t Ex. 1 (OA 21:25:44). The offi cers 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 (Joi nt Ex. 2), the transcript from the federal grand jury hearing on June 21, 2018 (Joint Ex. 3), and the Ger stein 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 a rrived 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 Akh tar 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

– 2 1:40:08).4 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 wo man ( 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 th at time, an infant and a toddler wer e in the back seat

. Of ficer Akhtar walk ed 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 ). Defenda nt turned to look at him and then leaned into the car to

con verse 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). D efendant then said , “Huh?” Id. (OA 21:25:55). By then , Officer Akhtar was standing directly behind Defendant , with in arm’s reach, and said, “Illegal tint, that’s what’s up.” Id. (OA 21:25:56). Defendan t 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 wa rned, “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 ai n’t go t 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).5 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 , i d. (CS 21:26:09), and Offi cer Smith repeated that the car was in a public space , i d. (CS 21:26:11). The passenger informed Officer Smith that h is 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 ). Approximatel y thirty seconds elapsed between the time the officers exited the ir vehicle and when Officer Akhtar maneuvered Defendant’s arms in to 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 test ified 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[e d] . . . 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 entir e courtroom.” Id. at 11 (Hrg. Tr.). Officer Smith corroborated t his testimony. See i d . at 91

– 92 (Hrg. Tr.). He further explained that PCP is usually kept in a glass vial and that individual users often dip cigar ettes “into the liquid and then

. . . smoke the cigarette.” Id. at 92 (Hrg. Tr.).6 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 consisten t with PCP emanated from Defen dant [’ 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 w as originally charged, Office r 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 do or.” 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 o dor,” 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 s ure if it was the vehicle or [Defendant] , but it was in the area where [Defendant] was standin g.” 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
Akh t ar initially tes tified that he placed Defendant in handcuffs because he smelled “a s trong odor of PCP coming off [Defendant’s] person.” Dkt. 16 at 21 (Hrg. Tr.). On further inquiry,7 however, he was less confident about this, asserting that “[a]t the time,” he “thought i t was coming off of” Defendant but that h e “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 [De fendant] 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 PC P before placing Defendant in handcuffs . He stated that he first detected a “faint smell” of PCP w hen he approached the passenger side of the vehicle, w here the door was closed, but the window was briefly rolled

- down. Id. at 98 (Hrg. Tr.). At that point, however, he “coul dn’t really distinguish where [the odor] was coming from.” Id. It wa s 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 vic inity.” 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

s melled

— or reasonably believed that they smelled

— PCP in the area where Defendant was standing when they handcuffed him

. Given that both officers con sistently 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 , to8 justify their decision to place Defenda nt in handcuffs

. T he fact t hat 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 someon e possessed PCP in the area shortly before the officers arrived. Finally, as discussed below, Officer Smith subsequent ly mistook the en d of gun barrel for a vial of PCP hidd en in Defendant’s pants ; h is mistake is indicative of a mindset that he was likely to find PCP. T he
Court , accordingly, credits the officers’ testimony that they smelled PCP

. T he Court cannot conclude , however, that the officers smelled PCP emanatin g from Defendant

. Given that neith er 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 sme lled 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 hand cuffs , as was his practice. Dk t. 16 at 12

– 13 (Hrg. Tr.). A lthough th e MPD do es 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 ha n dcuffed , id. at 75

– 76 (Hrg. Tr.), Officer Akhtar stated that “[t]he first thing [he] personal ly do[es]” upo n encountering individuals who “ may or may not be under the influence of PCP” is to “secure them in handcuffs” so tha t “they won’t be able to fight,” id. at 12

– 1 3 (Hrg. Tr.)

. He explained that , based on his experience,
“mo st of the time , ” individuals on PCP “ turn violent.” Id. at 74 (Hrg. Tr.)

. He described their behavior, as follows:9 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, s tart 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 suspecte d 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 vio lent. 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 st rength 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 handcuf fs 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, ” i d. at 89 (Hrg. Tr.):10 Some of them will be excited an d 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 the y’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 t heir 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 viol ent ; 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 foota ge c onfirms that Defendant was ca lm, responsive, and complia nt before he was handcuffed. T he officer s also did
not point to any other evidence that Defendant was dangerous

. To the contrary , Officer Akhtar testified that he “had n o reason to believe” Defendant was armed. Id. at 45 (Hrg. Tr.).
T he Court credits the officers’ testimony that individuals on PCP often pose a danger to officer safety. T he Court finds , however, that, at the time Defendant was placed in hand cuffs , there w ere no indic ia 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 e mpty glass vial in the driver’s

- side car door, which was consistent with th e sort of vial used for holding liquid PCP.” Dkt. 10 at 3. Defense counsel
argues that this is “implausible

. ” Dkt. 13 at 7. F or purposes of resolving this motion, the Court11 need determine only whether the government has carried its burden of proving th at 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 Supe rior Court that he saw “an empty vial in the car’s door” as he “approached” Defendant, Joint Ex. 1 at 5 , n either 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

— look ed into the car, what did you see? A

. There was an empty vial, a gl ass 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 s aw 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, b ut at some point I did see i t. 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 ha ndled it. I never too k 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 k now th r ough 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.12 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.
N o 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

. ” T he officers’ testimony and other evidence, accordingly, falls f ar short of establishing that either officer saw a glass vial during t he sh ort 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 g overnment 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 “pi cked 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 Off icer 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 occurre d, 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 that13 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 discrepan cy, nor did he testify that gloves were unavailable. In contrast, Officer Smith and Sergeant Architzel’s bod y - 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 Akhta r 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, exam ining, 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 O fficer Akhtar testified that he smelled the vial and conclud ed 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, i n 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 han dcuffed, 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” and14 “[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 , “N o. ” 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 a sk if I can pat

- d own for weapons just to be more calm and

— not necessarily cal m, 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 fron t 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 c onsistent with the male anatomy” in the “inner thigh area .” I d. at 111 (Hrg. Tr.) ; see also Gov’t Ex. 2 (CS 21:27:50)

. I n his experience, that area is a p opular place to hide contraband. See Dkt. 16 at 114 (Hrg. Tr.).15 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 bet ween Def endant’s back pant pockets with his outstretched fingers once, id. (CS 21:27:53), and squeeze that same area once, pushing in ward 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,” i d. at 11 1

– 1 2 (Hrg. Tr.). 3 He immediately asked Officer Akhtar to “call transport,” id. at 117 (Hrg. Tr.), w hich signaled that they “had an arrest at that time,” id. Defendant claims that Officer Smith “ grop[ed] his gro in area and attempt[ed] to digitally penetrate his anus through his clothing.” Dkt. 8 at 2. In suppo rt 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 , “ Y ou 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 test ifi ed that, when he felt the gun , his hand was near Defendant’s “[u]pper thigh in between his legs.” Dkt. 16 at 11 6 (Hrg. Tr.). Moreover, h e 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 actua lly 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, i d. at 133 (Hrg. Tr.).16 (Hrg. Tr.), he, in fact, was no t touching Defendant ’s body because there were “probably a good couple of inches” of space be tween “the crotch [point] of [Defendant’s] jeans all the way up to [Defendant’s] a ctual crotch, genitalia area,” i d. 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: “box er briefs,” “compression
pan ts,” and “compression shorts,” i d. at 108 (Hrg. Tr.). Based on Of ficer 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 ha nds 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 jean s 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 under neath his je ans, the Court finds that Officer Smith could not have conducted a cavit y 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 , a nd 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 Smi th 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. ; see17 also Gov’t Ex. 2 (CS 21:36:13

– 40 ). When Officer Smith “chec ked [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 Defenda nt’s prior felony conviction, Defendant was indicted on o ne 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). 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 un lawful 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 , 799 F. Supp. 2d 22, 28 (D.D.C. 2011) (c iting Wong Sun v. United States , 371 U.S. 471, 484 (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 , 439 U.S. at 130 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 , 142 F. Supp. 3d 49, 56 (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 , 100 F.3d 164, 169 (D.C. Cir. 1996)

.18 The motion to suppress raises three issues. First, Defendant argues that the officers lacked reasonable suspicion to stop him

. Seco nd, he contends that the officers’ use of handcuffs transformed the stop into an impermissible arrest

. And t hird, 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 St op 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 su spect him of criminal activity.” Id. The Court is unpersuaded.
In Terry v. Ohio , 392 U.S. 1 (1968), the Supreme Court held that “the police can stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion

. . . t hat criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow , 490 U.S. 1, 7 (1989) (quoting Terry , 392 U.S. at 30 ). 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 , 3 92 U.S. at
27 ; United States v. Abdus

- Price , 518 F.3d 926, 929 (D.C. C ir. 2008) (citations omitted). U nl ike probable cause, reasonab le suspicion requires only a “minimal level of objective justification for the stop .” Illinois v. Wardlow , 528 U.S. 119, 123 (2000); see also United States v. Goddard , 491 F.3d 457, 460 (D.C. Cir. 2007) ( noting that the standard for reasonable suspicion i s “significantly lower” than that o f 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 ligh t of his expe rience,” Terry , 3 92 U.S. at 27, and must consider “ the totality of the19 circumstances,” Sokolow , 490 U.S. at 8 (citation omitted). The D.C. Circuit has also emphasized that, “e ven though a single factor might not itself be sufficiently probative of wrongdo ing to give rise to a reasonable suspicion, the combination of several factors

— especially when viewed through the eyes of an experienced officer

— may.” United S tates v. Edmonds , 240 F.3d 55, 60 (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 , 490
U.S. at 7. Both officers testified, and their body

- worn camera footage confirms, that Defendant

was standing bet ween 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 avoid ing detection and observation from law enforcement.” Id. at 2 n.3

. Both officers further testified that the neighborhood was a “high

- crime” area where d rugs and guns were prevalent. Dkt. 16 at 6

– 8, 87 (Hrg. Tr.). And both testified t hat , as they got cl oser to Defendant, they smelled a dist inct odor of PCP

. Id. at 21, 3 2

– 3 3, 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.” Dk t. 10 at 8. Indeed, t he Supreme Court and D.C. Circuit have upheld investi gatory stops based on similar

— if not less probative

— observations

. See, e.g. , Wardlow , 528 U.S. at 124 ( flight in high

- crime area gives rise to reasonable suspicion ); Edmonds , 240 F .3d at 60 (“furtive gestures” at known drug

- trafficking site plus companion ’ s flight give rise to reasonable suspicion).20 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 , 406 F.3d 717, 721 (D.C. Cir. 2005) (“[T]he amount of force used to c arry out the stop

. . . must be reasonable , but may include using handcuffs

. . . .” (quoting United States v. Laing , 889 F. 2d 281, 285 (D.C. Cir. 1989))). The government argues that handcuffing Defendant did not transform the stop into an arrest because the offi cers 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 , s ee Dkt. 18 at 21

– 32

. For the reasons explained below, t he Court is unpersua ded.
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 , 4 90 U.S. 386, 396 (1989). “ I n 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 a t 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 , 406 F.3d at 720 (quoting Graham , 490 U.S. at 396). Consistent with the language of the Fourth Amendment, the21 te st is, ultimately, “ o ne of reasonableness .” Id

. ; accord U.S. Const. amend. IV (pr o scribing

“ unreasonable searches and seizures”); Florida v. Royer , 460 U.S. at 514

– 15 (plurality opinion) (b alancing “ the amount of intrusion upon individual privacy against the special law enforcement interests” of pe rmitting 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 r easonably available to verify or dispel the officer ’s suspicion.” Florida v. Royer , 460 U.S. at 500 (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 , 867 F.3d 138, 153 (D.C. Cir. 2017). Alth ough “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 , 716 F.2d 701, 709 (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 exa mple, 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 , 406 F.3d at 720 (upholding the use of handcuffs where the officer s

“ reasonabl[y]

. . . fear [ed] that [t he susp ect ] had a weapon in his waistband ” ); see also United States v. Tilmon , 19 F.3d 1221, 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 h ave 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 otherw ise frustrated police inquiry. ” Womack v.22 United States , 673 A.2d 603, 609 (D.C. 1996) (collecting cases) ; see also United States v. Wilson , 2 F.3d 226, 232 (6 th Cir. 1993) ( suspect “fled” and “was certainly very actively evading [the police]”) ; Taylor , 716 F.2d at 709 ( sus pect posed “ possibility of an assault or attempt to flee”) ; United States v. Purry , 545 F.2d 217, 220 (D.C. Cir. 1976) (suspect was uncooperative)

. In this case, t he government has not offered any evidence, and does not argue, that Defendant was uncooper ative or that he posed a flight risk

. Instead, i t s sole justification for the use of handcuffs is that “Officer Akhtar believed that cuffing [Defendant] was necessary for officer safety” because “i ndividuals under PCP’s in fluence 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 , 673 A.2 d at 609. That objective standard requires t he Court to determine whether “ the facts and circumst ances of [this] particular case ” would lead a reasonable office r to conclud e that Defendant “ pose[d] an immediate threat to the safety of the offic ers or others

. ” Dykes , 406 F.3d at 720 (quoting Graham , 490 U.S. at 396 )

. Although a close question, t he Court is un convinc ed that a reasonable officer would have believed that Defendant posed an immediate threat to officer safety. Officer Akhtar expl ained 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, t he Court does not doubt that a reasonable officer would fear for his safety or the safety of others in an e ncounter with an individual high on PCP. The question here, however, is not whether it is reasona ble to handcuff a suspect who was high on PCP, but whet her it was reasonable

— in light of the totality of23 circumstances

— to believe that Defendant was on PCP . For several reasons, the Court concludes that it was not. To start, neither Officer Akhtar nor O fficer Smith testified that he believed Defendant was hig h 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. G iven 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 over powering 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’ testimo ny 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

. U pon approach ing 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 Sm ith’s testimony indicates that he , too, believed what he had smelled was a vial of liquid PCP. For instance, h e 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)

.24 Most s ignificantly, Defendant exhibited none of the signs of being under the influence of
PCP

. Both officers testified that individuals on PCP exhibit symptoms such as sweat ing, giving blank stares, exhibit ing superhuma n strength, acting belligerent, and acting confused or disoriented, such as respond ing “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 handcuffe d 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: “ T int .” T heir 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 h as not made that argument, nor has it provided any testimony or e vidence in support of such a claim

. Simply put, t here 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 resp onse, it directed the Court to the Sixth Circuit’s decision in United States v. Foster , 376 F.3d 577 (6th Cir. 2004 ). I n 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. Id. at 581. When the officers approached the defendant, they “could smell PCP coming from [his] person.” Id. They asked the defendant for identification, but he said that h e did not have any. Id. 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.” Id. at 582. But, before25 the defendant was allowed to return to his car, one of the officers handcuffed and frisked him. Id. On appeal, the defendant argued that, by handcuffing him, the officers effected an arrest without pro bable cause. Id. The Sixth Circuit disagreed, concluding that the officers did not “overstep [] . . . the permissible bounds of the Terry doctrine.” Id. at 587.
Foster differs from this case in a number of important aspects. First, unlike in th is case, the evidence in Foster unequivocally established that the officers smelled PCP “coming from” the defendant. Id. at 581

– 82 . Second, the decision to handcuff the defendant was made only after he requested that he be allowed to return to his c ar, where the officers feared he might have concealed a weapon. Id . at 587. 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.” Id. In con trast, the evidence here shows only that the smell of PCP was coming from the vicinity wh ere 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 governm ent’s position.
T he 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 f or the use of handcuffs, which “substantially aggravat[es] the intrusiveness of an investigatory stop,” Taylor , 716 F.2d at 709, 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 othe rs,” Dykes , 406 F.3d at 720 (quoting Graham , 490 U.S. at 396)

. The fatal defect in the government’s argumen t is the absence of any meanginful evidence that26 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 w as armed. In light of these facts, the Court cannot conclude th at it was reasonable to handcuff Defendant

. To be clear, the smell of PCP in an area , when c ombined with evidence that the suspect is
on PCP or otherwise dangerous , might well justify the pr ophylactic 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 testi fied 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 clos e proximity to the smell of PCP without any further j ustification. 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, accor dingly, finds that the use of handcuffs here was “unduly

. . . intrusive,” thereby transforming “the investigative stop into an arrest requiring probable cause.” Hall , 867 F.3d at 153.
2. Whether There Was Probable Cause to Arrest Defendant
T he government posited fo r 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 originall y 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 his27 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 discla imed that they were effecting an arrest. See Knowles v. Iowa , 525 U.S. 113, 114, 119 (1998) (holding that the existence of probable cause to arrest the suspect did not ren der the officer’s warrantless search of his car lawful when the offi cer did not intend to effect an arrest); see also United States v. Lewis , 147 A.3d 236, 252

– 53 (D.C. 2016) (Beckwith, J., dissenting) (same). The Court need not reach that issue, howe ver, 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 offic er would conclude from the totality of the circumstances that a crime has been or is being committed.” United States v. Holder , 990 F.2d 1327, 1328 (D.C. Cir. 1993 ) (citation omitted) . The Court must consider “the facts and circumstances within [the arresting officer ’ s] kno wledge and of which they had reasonably trustworthy information.” Beck v. Ohio , 379 U .S. 89, 91 (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 , 462 U.S. 213, 232 (1983), the Sup reme Court has cautioned that
“a . . . seizure of a person” must be supported by evidence “ particularized with respect to that
person ,” Ybarra v. Illinois , 444 U.S. 85, 91 (1979). Probable cause to arrest and probable cause to s earch, mo reover, are di stinct 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 i n which no such arrest occurs.” (citing Cupp v. Murphy , 412 U.S . 291, 296 (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)).28 167 F.3d 6 28, 633 (D.C. Cir. 1999 ). Although both standards involve “the same quantum of evidence,” “[e]ach req uires 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 , 167 F.3d at 633 (emphasis added) (quoting Gates , 462 U.S. at 238) . As such, “there can be probable cause to search a vehicle,” for example, “without there also being probable cause to arrest the owner or operat or of t hat vehicle.” Search
& Seizure § 3.1(b); accord Butler v. United States , 102 A.3d 736, 741 (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 ‘gen erally’ 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] b een committed by the person to be arrested. ’ ” (citations omitted)). According to the government, Officers Akhtar and Smith had probable cause to arre st Defendant for four reasons: (1) the car windows were heavily tinted ; (2) the officers smelled
PCP emanat ing 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, un der the relevant case law, “a distincti ve 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 prob able 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

.29 See, e.g. , United States v. Glover , 681 F.3d 411, 418

– 19 (D.C. Cir. 2012) (holdin g that the smell of PCP emanating from a home is sufficient for probable cause to obtain a search warrant); United States v. West , 219 F.3d 1171, 1178 (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 , 607 A.2d 519, 5 25 (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. Gi l liam , 16 7 F.3d at 633. An officer must, instead, be able to articul ate a particularized basis for believing that individual has committed a felony. See Butler , 102 A.3d at
741. As far as the Court can discern, n o 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 , 540 U.S. 366, 372 (2003), that the police had probable cause to arrest all three occupants of a car that contained cocaine. Although the Court obse rved that “it was an entirely reasonable inference . . . that any or all three occupants had knowledge of, and exercised dominion and control over, the cocaine,” id . at 372 (emphasis added), the Court went on to explain that the finding of probable cause w as 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.” Id. at 373 (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 o ther adul ts 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 an d the passenger even if Defendant had been seated insi de the car. The Court has located only one decision that even arguably supports such an inference, and the30 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 ar rest. The D.C. Court of Appeals recognized as much in United States v. Butler

— a case on which the government itself relies

. 102 A.3d at 741. There, the court noted that, to establish probable cause to arrest based on smell, “the officer [must] be able to link the

u nmistakable odor of [the drug] . . . to [the] specific person” and, “[t]he linkage must be reasonable and capable of articulation.” Id. ( first alteration in original) (citation omitted)

. Al though the odor of marijuana in Butler was “generally ema nating from [the appellant’s] vehicle , ” id. , the D.C. Court of Appeals relied on two additional factors to establish the

“ particularize d 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 a ny marijuana present was either on his person or within his exclusive control.” Id. Second , the officer testified that “the aroma was of fresh marijuana,” rendering it “more likely that appellant was presently in possession of marijuana.” Id. Other c ourts 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 , 870 F.3d 693, 700 (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 , 621 F.3d 745, 749 (8th Cir. 2010) (“[The officer] had probable cause to arrest [the d efendant] for marijuana poss ession once he detected the odor of marijuana emanating from [him].”); United States v. Humphries , 372 F.3d 653, 659 (4th Cir.
relevant discussion in that case is both dicta and is supported only by citations to cases findi ng probable cause to conduct a search. See United States v. McGehee , 672 F.3d 860, 868

– 69 (10th Cir. 2012).31 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 , 682 F. App’x 86, 87 (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 sm ell 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 eve n in the car

. The officers, moreover, co uld not articulate a “ particularized ” basis for reasonably believing that Defendant

— as opposed to someone else

— had committed a crime. See Ybarra , 444 U.S. at 91. 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 pa ssenger side],” id. at 166 (Hrg. Tr.), but that, alone, is insufficient to establish probable cause that Defenda nt had committed a crime. The government’s argument , though , doe s 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 wit h the other evidence

— might have been32 sufficient to establish probable cause to arrest Defendant

. 6 G iven De fendant’s proximity to the al leged 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 distribut ion of PCP would not leave his product (or evidence o f his unlawful activ ity) 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 expla ined above , the government has not carried it s 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. T he 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 t he 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 questi ons. There was no meaningful evidence, moreover, that Defendant was high on PCP ; h e did not exhibit any symptoms of having ingested PCP and, as explained above, the Court is unpersuaded that the officers saw any assoc iated pa raphernalia. 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 ar ea
. Dkt. 16 at 11, 92 (Hrg. Tr.). T he 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 handcuffi ng Defendant. See United States v. Williams , 878 F. Supp. 2d 190, 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 om itted)).33 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 of ficer s’ 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 suf ficient cause to frisk him. The Supreme Court’s command is clear: an officer “may conduct a limited protective search fo r 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 , 407 U.S. 143, 146 ( 1972) (quoting Terry , 392 U.S. at 24). Here, n either officer testified that, at the time of the pat

- down, there was reason to s uspect that Defendant was armed; t o the contrary, Officer Akhtar testified on multiple occasi ons 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 , 5 05 F.3d 1288, 1294 (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 government34 conduct and the evidence’s ultimate discovery.” Id. (quoting Brown v. Illinois , 422 U.S. 590, 602 (1975)). Although Holmes dealt with consent that was given following an illegal search, not seizure, the Court of Appeals conclu ded that the standard for assessing the voluntariness of a suspect ’ s consent following an unlawful search and unlawful seizure is the same

. Id

. In Holmes , the police apprehended the defendant mid

- flight, handcuffed him, and confiscated his car keys. Id. at 1290. “T he officers then asked [the defendant], still handcuffed, if he would sign a consent

- to

- search form to allow the officers t o search his car,” which he did.
I

d. at 1291

. Based on those facts, the D.C. Circui t 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 governm ent to show that the defendant ’ s consent was voluntary; to “break the causal ch ain,” 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 explo itation of the unlawful seizure. ” I d. 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 purpos e and flagran cy of the official misconduct. See i d. 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

. A lthough the police did not engage in an y flagrant acts of misconduct, the Court concluded that “the absence35 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, t he same “str ongly coercive circumsta nces” 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 betw een the time the officers unlawfully seized him and when Officer Smith solicite d 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 , 5 05 F.3d at 1295. And, the footage from both officers’ body

- worn camera reflects that n o intervening circumstances occurred during that time that might have broken the “ causal chain” between De fendant’s illegal seizure and his consent to the search . To the contrary, Defendant was detained and handcuffed during that entire period. T he only material difference between Holmes and this case is that the events at issue here did not occur in the mid dle of the night on an empty street. The Holmes court, however, considered that fact or in the context of assessing whether any “intervening circumstances” purged the taint resulting from the unlawful search, and it concluded that the defendant still “face d a coercive situation at the time he gave his consent.” Id. T he 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 , 371 U.S. at 484.36 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 n ote, 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 briefl y “squeez[e] and prod[]” Defendant’s inner

- thigh area over his trousers, id. , but the search did not “ involve the penetration or prodding of body cavities,” id. The pat

- down wa s similar in kind to the one upheld by the D.C. Circuit in United Stat es v. Rodney , 956 F.2d 295 (D.C. Cir. 1992) , in which t he 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, ” i d. at 298.
CO NCLUSION The Court ’s recognizes that its analysis must , of course, be informed by the experience

an d 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 , 100 F.3d at 169. The Court’s holding is narrow : the government has failed to show

— on the specific facts of this case

— that the offic ers 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 ot hers,”37 Dykes , 406 F.3d at 720. Nor has the govern ment identified evidence that would have allowed a reasonable off icer 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 suppress ed. The Court therefore GRANTS D efendant’s motion to suppress . Dkt. 8.
SO ORDERED

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

Date: January 30, 2019