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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CF-210
MARCUS C. FORD, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF2-2959-16)
(Hon. Patricia A. Broderick, Trial Judge)
(Argued September 26, 2018 Decided February 25, 2021)
Gregory Lipper for appellant.
Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman and Ethan Carroll, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BECKWITH, Associate Judges, and NEBEKER, Senior Judge.
Opinion for the court by Associate Judge BECKWITH.
Dissenting opinion by Senior Judge NEBEKER at page 22.
BECKWITH, Associate Judge: Appellant Marcus Ford encountered four 2
police officers in the fourth-floor hallway of his apartment building and, after
consenting to be searched by one of them, grabbed his pocket and touched the
officer’s hand to prevent the officer from continuing the search. The officer
handcuffed Mr. Ford, resumed the search of Mr. Ford’s jeans pockets, and found a
vial of PCP and multiple baggies of cocaine inside a rubber or plastic glove. When
Mr. Ford moved to suppress that evidence, the trial court ruled that the officer’s
search was justified because the consensual encounter between Mr. Ford and the
officer “never stopped.” A jury subsequently convicted Mr. Ford of various drug-
related offenses.
On appeal, Mr. Ford primarily argues that the trial court erroneously denied
his motion to suppress because Mr. Ford unequivocally revoked his consent to be
searched. We agree, and therefore remand the record to allow the trial court to
render additional findings and conclusions as to whether the officer had a lawful
basis for searching Mr. Ford’s pocket.
I.
A. The Search
The government presented the following evidence at the suppression
hearing. On February 27, 2016, Officer Justin Branson and three other officers
were patrolling inside a public housing complex. Officer Branson testified that he 3
and the other officers had been assigned to patrol this area because of a “high
volume of drug trafficking” in the neighborhood surrounding the building. He also
said that within the building, he had recently seen “disregarded, empty glass vials”
that he believed were “consistent with PCP,” as well as other items such as empty
Ziploc baggies, which he considered “indicative” of ongoing drug sales and usage
in the building. Because of these recent observations, Officer Branson and the
other officers conducted a walkthrough of the building.
As the four officers were exiting the stairwell onto the fourth floor, Mr. Ford
was coming from the hallway toward the stairwell. Officer Branson testified that
Mr. Ford looked “startled” and “very nervous,” that his “eyes got big,” that he had
a “deer in the headlights” look, and that he was “frozen stiff.” Mr. Ford did not
enter the stairwell, but “started to almost pivot” and “rotate[d] his body away”
from Officer Branson “like he was concealing his right side.” Officer Branson
testified that he entered the hallway and that Mr. Ford “put his right side up against
the wall” and was “almost like hugging the wall as [Officer Branson] walk[ed] past
him.” In Officer Branson’s view, Mr. Ford’s movements were “unnatural and
weird” and it was strange for Mr. Ford to pivot back into the hallway when he had
been about to enter the stairwell.
Officer Branson testified that, within the first five seconds of the encounter, 4
he “noticed in [Mr. Ford’s] right front pants pocket an object similar in contour and
size [to] a vial of PCP. A one-ounce vial of PCP.” Mr. Ford was wearing
“average” jeans that were neither overly tight nor baggy, and Officer Branson
could “see the object” through these jeans: it was “a bulge like in contour size to a
vial of PCP.” Officer Branson stated that he “kn[e]w the history” of the building,
had seen empty PCP vials in the building’s stairwell, and “already had that in
mind” when he saw the bulge.
According to Officer Branson, Mr. Ford said he lived in the building and did
not have anything illegal on him. Officer Branson testified that at this point, he
asked Mr. Ford, “May I search you?” or “May I check you?” and that Mr. Ford
responded “Yes.” Officer Branson then reached down and touched the bulge that
he saw in Mr. Ford’s pocket and discerned from this touch that “the object [he] felt
was consistent . . . with a glass vial of PCP.” Officer Branson testified that he
could tell that it was not a Five-Hour Energy bottle because Five-Hour Energy
bottles are a “thin plastic,” but this bottle “felt like a glass vial.” Officer Branson
testified that as soon as he felt the bulge, Mr. Ford “immediately reached down and
grabbed his pocket to stop [Officer Branson] from going to that pocket.” He
stated, “Mr. Ford pretty [sic] stopped me, because he reached down and grabs my
hand. Grabs his pocket. He kinds [sic] of touched my hand too, as if to stop me.
But, at that point, I already I [sic] felt it.” “[B]ased on [Mr. Ford’s] reaction”—that 5
“he grabbed and was fearful”—Officer Branson felt “confident” that the bulge was
a vial of PCP. He then put handcuffs on Mr. Ford.
Officer Branson removed from Mr. Ford’s pocket a one-ounce vial that he
said was “inside of a plastic like purple glove or a plastic glove” or “rubber glove”
that was “twisted shut.” Along with the vial of what proved to be PCP, the glove
contained “some 13 in total small Ziploc baggies containing a white rocklike
substance,” and the officers had to “fish . . . out” the Ziploc bags from the
“different fingers” of the glove. Officer Branson also recovered $331 in cash from
Mr. Ford’s other pocket.
B. The Motion to Suppress
Mr. Ford filed a motion to suppress, arguing that the search was unsupported
by reasonable suspicion or probable cause. The government’s position was that the
search was consensual because Mr. Ford did not unequivocally withdraw his
consent. But even if Mr. Ford had withdrawn his consent, the government argued,
the police were justified in continuing the search because the incriminating aspects
of the vial were apparent to Officer Branson based on his experience and training,
the area in which the officers were patrolling, and Mr. Ford’s “reaction to Officer
Branson’s touching the vial of PCP through his pants.” Finally, the government
argued that the additional search of Mr. Ford’s pockets after Mr. Ford was arrested 6
was justified as a search incident to a lawful arrest.
The trial court ruled that Mr. Ford consented to the search and that the
search never stopped being consensual. Specifically, the court found that “at the
time of the search, as the officer was reaching for Mr. Ford’s pocket, Mr. Ford put
his hand there; and he [1] grabbed his hand. And cuffed him quickly to get his hand
away from there.” The court stated that although the search was “interrupted
briefly” when Mr. Ford moved his hand, Mr. Ford “never did any of the things that
the other cases require to remove himself from the consensual search.” While the
trial court acknowledged that Mr. Ford “put his hand there and tried to stop him,” it
concluded that “putting a hand there—is not sufficient under the law to remove
yourself” from the search.
As to whether the officers had probable cause for the search, the court
viewed it as “very close case,” noting that “if we had a nice, hard rock or 1 The trial court did not specify whether “he” was Mr. Ford or Officer Branson. Officer Branson testified that Mr. Ford either grabbed or touched Officer Branson’s hand, “as if to stop me,” and then Officer Branson testified that he “grabbed . . . [Mr. Ford’s] front pants waistband . . . and with my left hand, I kind of grabbed ahold of his hand” to cuff him. Later, Officer Branson said “I don’t remember [he] was trying to grab me, but he was like grabbing the pocket like to keep me from going into the pocket.” In light of this testimony, and given the trial court’s subsequent statement that when a “person starts moving their hands towards their pockets or waist area, that officer are [sic] going to grab their hands and hold them,” we infer from this context that the trial court made a factual finding that Officer Branson grabbed Mr. Ford’s hand in order to cuff him. 7
something obviously easily identified as drugs, it would be a better case for the
government.” The court ultimately declined to “make a ruling one way or the
other,” focusing instead on its conclusion that Mr. Ford had consented to the search
and that “even if he was arrested, and even if he was arrested illegally, it didn’t
change the search from being consensual.” 2
C. Expert Testimony
The government called Detective George Thomas to testify at trial as an
expert in “the distribution and use of narcotics,” “the packaging of narcotics for
street level distribution,” “the manner in which narcotics dealers distribute
narcotics in the District of Columbia,” and “the price for which narcotics are sold
at street value.” Mr. Ford did not object. To establish a foundation for Detective
Thomas’s testimony, the government elicited from him that he had worked on
“thousands” of narcotics cases, including those involving cocaine and PCP; that he
had worked undercover to purchase narcotics approximately one hundred times;
that he “ke[pt] current” with drug trafficking patterns and market prices for drugs 2 Though the court did not decide whether the officers had probable cause to search Mr. Ford, it noted some factors that “add[ed] to the circumstances in this case,” such as that “there was a lot of drug activity in that very building” that Mr. Ford moved in a way “to kind of hide part of his body,” that Officer Branson had “very recently” seen similar vials in the building that were “exactly what they were looking for,” and that the officer knew when he “felt” the vial that it was glass rather than a plastic Five-Hour Energy container.” 8
in D.C. by, among other things, getting “out in the streets” and talking with
individuals who have been apprehended for using or selling drugs; and that he
received “many hours” of formalized training from various law enforcement
organizations. Detective Thomas stated that based on those experiences, he was
familiar with the “various ways” that cocaine and PCP are packaged and sold in
D.C., as well as their relative costs. He also testified that he had read studies and
helped prepare reports for law enforcement agencies on “drug trends, prices, and
the abuse of drugs . . . .”
Detective Thomas testified that because of the amount of each drug, the
packaging, and the cash found on Mr. Ford, he concluded that the vial and zips
recovered from Mr. Ford’s pocket were consistent with distribution, rather than
casual use. He stated that regular users usually buy one to three “dippers” of
PCP—cigarettes or cigars dipped into a vial of liquid PCP—and that it would be
atypical for a user to carry a full one-ounce vial (which can yield seventy-five to
eighty dippers total). Similarly, regular users of cocaine purchase only two or three
“zips” at a time. Detective Thomas testified that it is “not common” for a regular
user to have a one-ounce vial of PCP and thirteen bags of cocaine at one time like
Mr. Ford did. More likely, a person with this quantity and combination of drugs
on hand would be a “one-stop-shop” kind of dealer who had “clientele or
customers requiring both” types of drugs. Detective Thomas said that if he 9
believed he was dealing with a mere possession case, he would have “advise[d] the
government” accordingly after reviewing the evidence.
After a half day of deliberations, the jury convicted Mr. Ford of various
counts related to the possession and distribution of cocaine and liquid PCP.
II.
Mr. Ford makes three claims on appeal. He first argues that the items
Officer Branson found during the search should have been suppressed because he
withdrew his consent to be searched and there was otherwise no probable cause for
the search. He also argues that the trial court committed plain error in admitting
Detective Thomas’s expert testimony and further erred in failing to merge the
possession of liquid PCP offense with the enhanced charge of PWID PCP. We
review each claim in turn.
A. Consent to Search and Revocation
A search conducted without a warrant is “per se unreasonable” under the
Fourth Amendment, subject to “a few specific and well-established exceptions.”
Basnueva v. United States, 874 A.2d 363, 369 (D.C. 2005). An individual’s free
and voluntary consent to be searched is one such exception to the warrant
requirement. Burton v. United States, 657 A.2d 741, 745 (D.C. 1994); Schneckloth 10
v. Bustamonte, 412 U.S. 218, 219 (1973). Under this exception, the government
must show by a preponderance of the evidence that consent was freely and
voluntarily given. Basnueva, 874 A.2d at 369. Whether an individual’s consent is
voluntary is a fact-intensive inquiry “to be determined from the totality of all the
circumstances.” Schneckloth, 412 U.S. at 227. The test “focus[es] specifically on
the consenting person’s characteristics and subjective understanding.” Basnueva,
874 A.2d at 369; see also Schneckloth, 412 U.S. at 229 (“[A]ccount must be taken
of subtly coercive police questions, as well as the possibly vulnerable subjective
state of the person who consents.”).
After a suspect gives free and voluntary consent to be searched, a suspect
“may of course delimit as he chooses the scope of the search to which he
consents.” Burton, 657 A.2d at 746 (quoting Florida v. Jimeno, 500 U.S. 248, 252
(1991)). One’s ability to limit the scope of the search includes the option to
withdraw consent entirely prior to completion of the search as long as the
revocation is “unequivocal.” Id. at 746–47. Unequivocal conduct may be “in the
form of either an act, statement, or some combination of the two, that is
inconsistent with the consent to the search previously given.” Id. at 748. While
we employ a subjective inquiry to determine whether a suspect’s initial consent
was voluntary, we assess a suspect’s withdrawal of consent “on a standard of
‘objective’ reasonableness” and ask “what would the typical reasonable person 11
have understood by the exchange between the officer and the suspect?” Id.
(quoting Jimeno, 500 U.S. at 251); see also Ware v. United States, 672 A.2d 557,
565 (D.C. 1996) (stating that “the test for determining the scope of consent is
objective reasonableness, not the subjective intent of the consenting party”).
Because consent is a factual inquiry, we uphold the trial court’s consent findings
unless clearly erroneous and review questions of law de novo. Jackson v. United
States, 805 A.2d 979, 985 (D.C. 2002).
Mr. Ford argues that he unequivocally revoked his consent to be searched
when he placed his hand on his pocket to stop Officer Branson from going any
further.3 To revoke consent, a person must act in a manner “clearly inconsistent
with the apparent consent to search.” Burton, 657 A.2d at 746–47; see also
Sanders v. United States, 424 F.3d 768, 774–75 (8th Cir. 2005). In Ware v. United
States, 672 A.2d at 565, an individual who “held [his] purse close to him[self] and
would not let go of it when [the officer] tried to grab it” had effectively limited the
scope of consent. While Mr. Ware’s limit on the scope of consent did not apply to
objects he had previously removed from his purse and “expose[d] to the officers’
view,” his actions conveyed that “he did not want the purse itself searched.” Id.
3 Mr. Ford does not contest the trial court’s finding that Mr. Ford initially gave voluntary consent to the search. 12
We have also suggested that the act of “pushing [a] detective away” would likely
count as an unequivocal revocation, Burton, 657 A.2d at 748, and other courts have
found revocation where the suspect, after providing consent to a pat-down search,
grabbed or pushed an officer’s hand away from a pocket, see, e.g., Sanders, 424
F.3d at 775 (“[A]t least five times Sanders moved his hands down and prevented
[the officer] from searching his pockets. . . . In the end, the only way [the officer]
could complete the ‘consensual’ search was to place Sanders in handcuffs.”); State
v. Smith, 782 N.W.2d 913, 927 (Neb. 2010) (“Smith indicated that his initial
consent to the pat down was being withdrawn . . . by grabbing [the officer’s] wrist
and later pushing [the officer’s] hand away.”); Lowery v. State, 894 So.2d 1032,
1034 (Fla. Dist. Ct. App. 2005) (“Lowery twice attempted to reach into his pockets
at the same time that the officer was attempting to search the pockets.”); Jimenez v.
State, 643 So.2d 70, 72 (Fla. Dist. Ct. App. 1994) (“The defendant withdrew his
consent when he twice grabbed the deputy’s hand in an apparent attempt to stop
the search of the cigarette packs.”).
Conversely, we have concluded that where an individual consented to be
searched but later put his hand into his left coat pocket, the individual’s behavior
did not “objectively . . . signify[] withdrawal of consent[.]” Burton, 657 A.2d at
743, 748–49. In Burton, the officer observed Mr. Burton attempt to “extract
something from [his] pocket” during the search “and hide it between the seat and 13
the side of the bus.” Id. at 743. Without comment, Mr. Burton then complied with
the officer’s request to remove his hand from his pocket. Id. We stated that there
were “a number of possible explanations” for Mr. Burton’s conduct. Id. at 748. A
reasonable officer could have viewed it as an attempt to hide contraband or acquire
a weapon from between the seat cushions as readily as an attempt to communicate
his unwillingness to continue the search. Id. Such conduct that “can be construed
in many different ways” by a typical, reasonable officer is equivocal, and thus
insufficient to revoke consent. See id.
In the present case, despite finding that Mr. Ford “put his hand there and
tried to stop” the search, the trial court ruled that Mr. Ford’s consent to be searched
“never stopped,” that the law required “some clear statement and some clear action
by the defendant,” and that “putting a hand” on a pocket was “not sufficient under
the law to remove [one]self” from a consensual search. We disagree. An
individual has the right to “delimit as he chooses the scope of the search to which
he consents,” bound only by the requirement that an objectively reasonable officer
would have construed his actions as a clear and unambiguous revocation. Jimeno,
500 U.S. at 252; Burton, 657 A.2d at 743, 748–49; Ware, 672 A.2d at 565; see also
United States v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004) (stating that
“[w]ithdrawal of consent need not be effectuated through particular ‘magic
words’”). 14
The record supports Mr. Ford’s argument that he withdrew consent. Officer
Branson’s testimony, in particular, shows that he actually believed that Mr. Ford
“reached down and grabbed his pocket to stop [him] from going into that pocket.”
See also United States v. Buckingham, 433 F.3d 508, 513 (6th Cir. 2006); cf.
DiPasquale v. State, 406 A.2d 665, 667 n.2 (Md. 1979) (“An officer’s factual
interpretation is pertinent even if his legal interpretation is not.”). After Mr. Ford
grabbed the pocket, Officer Branson “grabbed ahold of [Mr. Ford’s] front right
waistband,” “grabbed ahold of his hand,” ordered the other officers to handcuff
Mr. Ford, and completed the search. On similar facts, the Eighth Circuit reversed
the district court’s determination that the defendant had not withdrawn consent
where his actions had “so interfered with [the officer’s] ability to search him he
had to be handcuffed.” United States v. Sanders, 424 F.3d 768, 775 (8th Cir.
2005). “[I]f the suspect has to be handcuffed to prevent interference with a search
of his person,” the court held, “the search was not consensual.” Id. We conclude
the same here. This case is not like Burton, where a reasonable officer could
readily conclude that an individual who reaches across his body and into his pocket
may draw a weapon, hide contraband, or possibly assist (rather than resist) the
officer’s search. Burton, 657 A.2d at 748–49. Mr. Ford extended his hand over
his pocket toward Officer Branson’s hand, much like the Ware defendant who
clutched his purse close to himself in order to convey that the purse was off limits. 15
Ware, 672 A.2d at 565. Consistent with the trial court’s observation that Mr.
Ford’s “hands were there to prevent” the search, Mr. Ford did not engage in any
other nonverbal conduct that would indicate mere hesitancy or annoyance with the
search. The government argues that Mr. Ford’s act of grabbing the outside of his
pocket was “ambiguous” and open to multiple interpretations, but we cannot
discern any other explanation for Mr. Ford’s actions besides his desire to stop the
search.
The trial court erred as a matter of law in ruling that Mr. Ford’s actions did
not revoke consent. 4 An objectively reasonable officer would have understood Mr.
4 The trial court’s assumption that an officer’s “basic instinct” when a person close by “starts moving their hands towards their pockets or waist area” is “to grab their hands and hold them” does not change our conclusion. Hand movements toward a person’s pockets or waist area might in fact give rise to reasonable, articulable, particularized suspicion permitting an officer to conduct a proper protective frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968), if those movements signal to the officer that the person is armed and dangerous. Sanders, 424 F.3d at 776. But see Robinson v. United States, 76 A.3d 329, 335–38 (D.C. 2013) (determining that there was nothing “inherently suspicious or threatening” about the “back and forth” or “side to side” gestures the suspect had made on the outside chest area of his jacket). That is a separate question, however, from whether a reasonable officer would have perceived that Mr. Ford’s actions communicated withdrawal of his consent. Cf. Jackson v. United States, 805 A.2d 979, 985–86 (D.C. 2002) (“A consensual police encounter may progress to a Terry stop. Once the encounter loses its consensual nature, Fourth Amendment scrutiny will be triggered.”). Because we have determined that Mr. Ford unequivocally withdrew consent, we need not reach his alternative argument that his voluntary consent necessarily ended when he was handcuffed. 16
Ford’s act of placing his hand on the outside of his pocket exactly as Officer
Branson did understand it—an unequivocal withdrawal of consent to be searched.
B. Probable Cause
The government argued that Officer Branson’s warrantless search of Mr.
Ford’s pockets was separately supported by probable cause, but the trial court
declined to rule “one way or the other” and relied instead on the consent exception
to find that the warrantless search was permissible under the Fourth Amendment.
In response to the trial court’s indication that it would not rule on probable cause,
the prosecutor stated that he “had further argument” that he would forgo “as long
as you’re not making that ruling.” The court also did not make definitive findings
as to whether Officer Branson’s search was justified by other exceptions to the
warrant requirement, such as plain feel if it was “immediately apparent” that the
item was “obvious contraband” and gave the officer probable cause to seize it, see
Ball v. United States, 803 A.2d 971, 974–75 (D.C. 2002), or probable cause to
arrest, which would have justified a search incident to Mr. Ford’s arrest, see
United States v. Lewis, 147 A.3d 236, 245 (D.C. 2016) (en banc).5
5 In Lewis, the court concluded that a search incident to a lawful arrest, at least during a traffic stop, may take place before the officer has effectuated the arrest. 147 A.3d at 243. Probable cause to arrest must exist before the search, however. Id. at 245 (explaining that, under this court’s approach, “the search does 17
Because the trial court did not decide whether Officer Branson had authority
to arrest and search and noted this was a “close case,” a record remand is in order
to allow the court to make adequate findings and to determine in the first instance
whether Officer Branson’s search of Mr. Ford was justified by a valid exception to
the warrant requirement.6 Laniyan v. United States, 226 A.3d 1146, 1153 (D.C.
2020).
Mr. Ford contends that the trial court committed plain error in concluding
that Detective Thomas was qualified to testify as a drug expert because the
detective’s testimony was not based on reliable methods and principles reliably
applied to the facts of this case. Mr. Ford concedes that his claim is subject to
plain error review7 because he failed to object at trial. See, e.g., Jones v. United
not provide any part of the legal justification for the arrest” and that “the arrest must be justified by preexisting probable cause”). 6 Remand is appropriate where the trial court, after conducting an evidentiary hearing on a motion to suppress, declines to decide issues raised under alternative theories by the parties. Cf. Cave v. United States, 75 A.3d 145, 149 (D.C. 2013) (Newman, J., concurring) (“It behooves the trial judge to rule explicitly on both bases for decision.”). 7 Under the plain error test for unpreserved errors in a criminal case, the defendant must show “(1) that there was a deviation from a legal rule; (2) that this error was clear and obvious, rather than subject to reasonable dispute;” “(3) that this error affected the defendant’s substantial rights;” and (4) that the error affected 18
States, 990 A.2d 970, 980–81 (D.C. 2010) (reviewing unpreserved challenge to
expert testimony for plain error).
In 2016, this court adopted Federal Rule of Evidence 702 8 because of the
significant advantage it gives trial judges to “focus on the reliability of principles
and methods” when making threshold admissibility determinations. Motorola Inc.
v. Murray, 147 A.3d 751, 757 (D.C. 2016) (en banc). Accordingly, when a party
proffers expert testimony, the trial court “must make ‘a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology properly can be applied to the
facts in issue.’” Id. at 754 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 592–93 (1993)); id. at 756 (acknowledging the trial judge’s “robust
“the fairness, integrity or public reputation of judicial proceedings.” In re Taylor, 73 A.3d 85, 96 (D.C. 2013) (internal citations and quotation marks omitted). 8 Federal Rule of Evidence 702 permits a witness to testify as an expert if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702; Motorola Inc. v. Murray, 147 A.3d 751, 757 (D.C. 2016) (en banc). 19
gatekeeping function”). As we recognized in Motorola, this gatekeeping
requirement applies equally to “testimony based on ‘technical’ and ‘other
specialized’ knowledge.” 147 A.3d at 755 (quoting Kumho Tire v. Carmichael,
526 U.S. 137, 141 (1999)). Its purpose “is to make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire, 526 U.S. at 152. The court therefore
may not “reflexively admit expert testimony because it has become accustomed to
doing so under the Dyas/Frye test.” Id. at 758.
We need not decide whether the trial court erred in admitting Detective
Thomas’s testimony because if an error indeed occurred,9 it was not clear or
obvious. In order for an error to be plain, it must be “clear under current law.”
Williams v. United States, 210 A.3d 734, 743 (D.C. 2019). Binding cases on the
issue will suffice, but “[t]hat there are few judicial precedents directly on point . . .
9 Because Mr. Ford did not object, the trial court did not make findings regarding Detective Thomas’s reliability. Under the circumstances of this case, without a record, we cannot decide whether the trial court admitted the testimony in contravention of this court’s decision in Motorola and we therefore affirm the court’s decision on other grounds. See also State v. Esparza, 413 S.W.3d 81, 87 (Tex. 2013) (“At trial, the proponent of scientific evidence is not typically called upon to establish its empirical reliability as a predicate to admission unless and until the opponent of that evidence raises an objection under Rule 702.”). 20
does not preclude a finding of clear error . . . .” Conley v. United States, 79 A.3d
270, 290 (D.C. 2013). Mr. Ford has not cited a case in this jurisdiction that has
held that drug expert testimony does not satisfy the Motorola test. The Advisory
Committee Notes to Rule 702 instead suggest that the trial court may have acted
within its discretion: “Nothing in this amendment is intended to suggest that
experience alone—or experience in conjunction with other knowledge, skill,
training or education—may not provide a sufficient foundation for expert
testimony.” Fed. R. Evid. 702 advisory committee’s notes to 2000 amendments.
As Detective Thomas’s testimony was based on his years of employment with the
Metropolitan Police Department, his experience investigating drug cases and
working undercover, and his training in the narcotics field, admitting his testimony
was not clear or obvious error because it is not a well-settled legal principle or
precedent that such testimony must be excluded. See Conley, 79 A.3d at 290. As
it is not immediately apparent that the trial court “reflexively” admitted the
testimony against Motorola’s mandate, we affirm the trial court’s decision to admit
Detective Thomas as an expert.10
10 Mr. Ford also argues that Detective Thomas was improperly allowed to testify to an ultimate issue, thereby usurping the jury role. In the absence of an objection at trial, Detective Thomas’s testimony that he ordinarily tells the government that a case is “consistent with possession with intent to distribute” did not plainly exceed the scope of expert testimony. Experts are not prohibited from 21
D. Merger
Mr. Ford’s third argument is that the trial court erred by not merging his
conviction for PWID PCP with his conviction for possession of liquid PCP. The
government charged Mr. Ford with unlawful possession with intent to distribute
(PWID) PCP,11 unlawful possession of liquid PCP, PWID cocaine, unlawful
possession of cocaine, and unlawful possession of drug paraphernalia. During
deliberations, the jury asked whether unlawful possession of liquid PCP was a
lesser offense of PWID PCP in the same way that possession of cocaine was a
lesser offense of PWID cocaine. After discussing the matter with the attorneys, the
trial court responded that unlawful possession of PCP was a “separate and
independent charge.”
In Young v. United States, 143 A.3d 751, 760–61 (D.C. 2016), this court
“stating opinions on ultimate facts or issues to be resolved by the jury.” Jackson v. United States, 76 A.3d 920, 940 (D.C. 2013) (quoting Blaize v. United States, 21 A.3d 78, 84 n.8 (D.C. 2011)). In some cases, however, “expert opinions that draw specific conclusions about a particular witness will constitute an improper commentary that has the effect of ‘submitting the whole case to an expert witness for decision.’” Robinson v. United States, 50 A.3d 508, 527 n.18 (D.C. 2012) (quoting Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C. 1979) (cleaned up)). 11 The verdict form did not specify what drug Mr. Ford was alleged to have possessed with intent to distribute, but the court instructed the jury that Count 1 was specific to PCP. The jury asked the court to clarify whether the verdict form or the instructions were correct on this matter, and the court responded that Count 1 specifically involved possession with the intent to distribute PCP. 22
concluded that unlawful possession of liquid PCP merges with PWID PCP under
the Double Jeopardy Clause, and the government agrees that Young controls. Thus
on remand, the trial court should vacate Mr. Ford’s conviction for possession of
liquid PCP.
III.
For the foregoing reasons, we retain jurisdiction over the appeal and remand
the record to the trial court pursuant to D.C. Code § 17-306 (2012 Repl.), with
additional instructions to vacate Mr. Ford’s conviction for possession of liquid
PCP. After the trial court issues findings as to whether Officer Branson had lawful
authority to conduct a search of Mr. Ford’s pockets on grounds other than consent,
it shall return the supplemented record to this court for decision. Laniyan, 226
A.3d at 1153.
So ordered.
NEBEKER, Senior Judge, dissenting: The remand is in violation of the
Prevailing Party Rule; the record must be read according to that Rule in favor of
the government. What the majority gleans from the record to create a factual 23
question for remand carries an equally contrary and reasonable inference we must
indulge—that Ford wanted reflectively and, with guilty knowledge, to stop by
force the inevitable seizure of his contraband PCP. If he had been able to shoot the
officer would we say he merely wished to withdraw his earlier consent? Hardly.
The arguments made by Ford’s counsel after the court’s denial of the
suppression ruling were improper because counsel was impermissibly arguing
WITH the court, and because Ford’s counsel did not argue the points during the
suppression hearing, and failed to request reopening of the suppression hearing.
Thus, a remand is not “just under the circumstances.” See D.C. Code § 17-306.
Since we are inviting the court to consider, “whether Officer Branson had
lawful authority to conduct a search of Mr. Ford’s pocket on grounds other than
consent,” I offer further authorities to affirm the denial of suppression. There was
probable cause to arrest Ford for unlawful possession of an illicit drug based on
what the officer saw and his experience and training. See Bell v. United States,
254 F.2d 82, 86 (D.C. Cir. 1958); see also Payne v. United States, 294 F.2d 723,
725 (D.C. Cir. 1961); see also M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971). These
decisions require affirmance on the above theories even though they were not
considered by the officer, the parties or the trial court. Additionally, the split
second cuffing of Ford’s hand is justified as an effort to avoid a struggle with him 24
for which injuries could have resulted. See Terry v. Ohio, 392 U.S. 1, 30-31
(1968). “To remand a case where, as here, there is no appreciable possibility that a
further hearing in the trial court would affect the ultimate outcome, is unnecessary
and incompatible with ‘[g]ood judicial husbandry.’” Stewart v. United States, 37
A.3d 870, 878 (D.C. 2012) (quoting In re Melton, 597 A.2d 892, 908
(D.C.1991) (en banc)).