                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

                           Plaintiff.

                           v.                                Criminal Case No. 12-00022 (BAH)
                                                             Judge Beryl A. Howell
RONALD WILLIAMS and MAURICE
WILLIAMS,

                           Defendants.


                                        MEMORANDUM OPINION

         Pending before the Court following a suppression hearing held on July 3, 2012 are three

Motions to Suppress by defendant Maurice Williams: (1) a Motion to Suppress physical

evidence seized from the automobile defendant Maurice Williams was driving on October 21,

2011, see ECF No. 22; (2) a Motion to Suppress physical evidence seized from the automobile

for which defendant Maurice Williams had the keys on February 1, 2012, see ECF No. 42; and

(3) an oral Motion to Suppress, stated on the record at the hearing held on July 3, 2012,

regarding a single statement that defendant Maurice Williams allegedly made at the police

station on February 1, 2012 that he got “dropped off” at the police station. See Suppression Hr’g

Transcript, July 3, 2012 (“Tr”), at 93, line 25; id. at 94, lines 1-2. Also pending before the Court

is a related Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence

404(b), filed by the United States. See ECF No. 34.1 Following a hearing on these motions, and

an examination of the entire record and applicable law, the Court, for the reasons explained


1
  At the hearing held on July 3, 2012, the Court granted in part and reserved in part this motion. Specifically, for the
reasons explained on the record, the Court granted the government’s motion with respect to the 404(b) evidence
related to Ronald Williams and reserved judgment on the evidence related to Maurice Williams pending a decision
on defendant Maurice Williams’ Motion to Suppress evidence seized from a car on February 1, 2012.

                                                     Page 1 of 30
below, will DENY the Motions to Suppress physical evidence seized on October 21, 2011 and

February 1, 2012, ECF Nos. 22, 42; GRANT the Motion to Suppress the single statement

defendant Maurice Williams allegedly made at the police station that he got “dropped off” at the

station; and GRANT the government’s Motion to Admit Other Crimes Evidence Pursuant to

Federal Rule of Evidence 404(b), ECF No. 34, with respect to Maurice Williams.

I.     BACKGROUND

       A.      Procedural History

       Defendant Maurice Williams, along with his brother, Ronald Williams, was indicted on

January 26, 2012, and is charged in four counts of the six count indictment. Specifically,

defendant Maurice Williams is charged with conspiring, between September 16, 2011 and

October 21, 2011, to Distribute and Possess with Intent to Distribute Cocaine, Cocaine Base,

and Marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count One); Unlawful

Possession with Intent to Distribute Cocaine, on or about October 21, 2011, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Four); Unlawful Possession with Intent to Distribute

28 Grams or More of Cocaine Base, on or about October 21, 2011, in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B)(iii) (Count Five); and Simple Possession of a Controlled Substance, on

or about October 21, 2011, in violation of 21 U.S.C. § 844(a) (Count Six).

       On July 3, 2012, the Court held a suppression hearing to hear argument and testimony on

six motions pending before the Court. Two witnesses testified: Metropolitan Police Department

(MPD) Officer Kenneth Thompkins and defendant Maurice Williams. For the reasons stated on

the record on July 3, 2012, the Court denied the Motion to Suppress Physical Evidence filed by

Ronald Williams, ECF No. 28; denied the Motion to Sever Co-Defendant filed by Ronald

Williams, ECF No. 29; denied the Motion to Preserve Electronic Communications filed by



                                           Page 2 of 30
Maurice Williams, ECF No. 24; and granted in part and reserved in part the government’s

Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b), ECF No.

34, granting the government’s motion as to the introduction of evidence of two prior convictions

of Ronald Williams and reserving decision as to the government’s motion to introduce

uncharged criminal conduct of Maurice Williams. The Court also reserved judgment on

defendant Maurice Williams’ three Motions to Suppress, which are now before the Court.

       B.      Factual Background

        Based on the testimony presented at the hearing on July 3, 2012, the Court sets forth the

following factual background related to the pending suppression motions, beginning with the

police surveillance of the defendants’ house on September 16, 2011, which is probative of the

probable cause for the search of defendant Maurice Williams’ car a month later.

       On September 16, 2011, officers of the MPD conducted surveillance of 5318 9th Street

NW based on complaints from a citizen, lodged in August 2011, about narcotics trafficking

activity. Tr. at 9, lines 3-4; id. at 11, lines 10-11; id. at 69, lines 1-6. Officer Thompkins

testified to three separate transactions witnessed by an undercover officer that occurred on that

date. Id. at 11, lines 16-25; id. at 12, lines 1-13. The first involved a black male who was

observed driving to and approaching 5318 9th Street NW, where he was met on the porch by

Ronald Williams. Id. at 32, lines 6-9; id. at 33, lines 11-20. He spoke with Ronald Williams,

then both men entered the house for approximately a minute, and the man then left in his vehicle.

Id. at 33, lines 11-20. The second transaction involved a black male who approached the house

on foot. Id. at 33, lines 22-24. After a brief conversation with Ronald Williams, this man left the

location walking southbound. Id. A third individual similarly walked to the house, had a brief




                                             Page 3 of 30
conversation with Ronald Williams, and left walking southbound. Id. at 33, lines 24-25; id. at

34, lines 1-2.

           The undercover officer broadcast “lookouts” for all three men to arrest teams. Id. at 32,

lines 13-15. The first two men who left the house were separately stopped by police and found

to be in possession of cocaine and crack cocaine.2 Id. at 12, lines 10-13. When the arrest team

approached the third man who left the house, he swallowed “the narcotics” and the police were

unable to recover them. Id. at 12, lines 11-17.

           On October 21, 2011, MPD officers conducted further surveillance on 5318 9th Street

NW. Id. at 8, lines 16-23. Officer Thompkins testified that he observed defendant Maurice

Williams enter a white Chevrolet Traverse, which was parked in front of the house, and drive

away from the house without putting on a seatbelt. Id. at 10, lines 2-5; id. at 10; lines 23-24; id.

at 43, line 14. At this point, Officer Thompkins did not know who Maurice Williams was,

suspecting only that he was another “drug customer.” Id. at 10, lines 2-18. Officers followed the

vehicle, id. at 10, lines 23-25, and Officer Thompkins observed Maurice Williams repeatedly

looking in his rearview mirror to watch the police car following him, id. at 14, lines 4-5. At

some point while he was being followed, Maurice Williams stopped on the side of the road,

allowing Officer Thompkins’ vehicle to pass him. Id. at 14, lines 5-6, id. at 49, lines 3-7; see

also id. at 78, lines 22-25 (M. Williams testimony).

           Officer Thompkins made a traffic stop of Maurice Williams in the 6300 block of Georgia

Avenue NW. Id. at 14, lines 9-10; id. at 45, lines 23-25. As he approached the vehicle, Officer

Thompkins saw Maurice Williams place objects from his jacket into the center console and

smelled the odor of fresh marijuana. Id. at 14, lines 16-18; id. at 15, lines 21-23. Officer

Thompkins asked Maurice Williams for his driver’s license and registration, and Maurice
2
    Officer Thompkins’s testimony does not specify which man possessed which drug. Id. at 12, lines 10-13.

                                                    Page 4 of 30
Williams responded that he did not have his license with him and that the vehicle was a rental.

Id. at 16, lines 4-7. At this point, Officer Thompkins instructed Maurice Williams to exit his

vehicle while he checked the defendant’s driver’s license status. Id. at 16, lines 7-10. Officer

Thompkins learned that Maurice Williams’ license had expired on July 23, 2011. Id. at 16, lines

12-13. Maurice Williams was then placed under arrest for driving without a permit. Id. at 16,

lines 14-16. A subsequent search of the vehicle revealed, in the center console, 125 grams of

cocaine and 4 grams of marijuana. Id. at 16, lines 18-20.

       Maurice Williams’ account of these events differs in two key respects. Most importantly,

he contends that he was wearing a seatbelt on October 21, 2011 when he was followed and

arrested by Officer Thompkins. Id. at 76, lines 3-9. Maurice Williams testified that on October

21, 2011, he noticed Officer Thompkins’ unmarked police car start following him a block away

from 5318 9th Street NW, id. at 76, lines 12-15, and recognized it as a police vehicle, id. at 78,

lines 1-12. Unsure why he was being followed, Maurice Williams pulled over after driving

northbound on Georgia Avenue for several blocks. Id. at 78, lines 22-25; id. at 80, lines 11-14.

Maurice Williams testified further that he lifted up his seatbelt strap to demonstrate that he was

wearing a seatbelt as Officer Thompkins drove past. Id. at 80, lines 11-14.

       The second important difference in the testimony is that Maurice Williams testified that,

on October 21, 2011, he first noticed Officer Thompkins’ unmarked police car following him a

block away from 5318 9th Street NW, id. at 76, lines 13-15, thereby calling into question

whether, given the position of the police car, the officer would have been able to see whether

Williams fastened his seatbelt when he entered the car, id. at 90, lines 5-10. The testimony

indicates, however, only that Maurice Williams first noticed the police car when he was a block




                                            Page 5 of 30
from his house, not that the police car was parked at that location when surveillance of him was

initiated. See id.

        Following the arrest of Maurice Williams, police applied for and received an emergency

search warrant for 5318 9th Street NW. Id. at 18, lines 12-16. The warrant was executed the

same day as Maurice Williams’ arrest, resulting in the recovery of narcotics and drug

paraphernalia from 5318 9th Street NW. Id. at 19, lines 23-25; id. at 20, lines 1-2. Ronald and

Maurice Williams were subsequently indicted and bench warrants were issued for their arrest.

Id. at 20, lines 3-7.

        On February 1, 2012, defendant Ronald Williams was arrested pursuant to that bench

warrant. Id. at 20, lines 8-19. That same evening, Officer Thompkins called defendant Maurice

Williams, and, as a “ruse” to get him to come to the Fourth District police station, asked him to

come retrieve his brother Ronald’s personal items. Id. at 20, lines 16-22. When he arrived at the

station, Maurice Williams was arrested on the outstanding bench warrant. Id. at 20, lines 23-25.

Officer Thompkins asked Maurice Williams how he had gotten to the police station, and Maurice

Williams replied that he had been “dropped off.” Id. at 21, lines 3-4. When Officer Thompkins

pressed the key fob taken from Maurice Williams after the arrest, however, the lights flashed on

a blue sedan parked directly outside the station. Id. at 21, lines 2-7; id. at 30, lines 3-5. Officer

Thompkins approached the car, noticed the passenger window was down, and smelled fresh

marijuana through the open window. Id. at 22, lines 12-14. A canine unit was contacted, and a

trained drug-sniffing dog alerted to Maurice Williams’ vehicle. Id. at 22, lines 14-20. A

subsequent search of the vehicle yielded crack cocaine in the driver’s door handle and “a large

amount of fresh marijuana” in the center console. Id. at 23, lines 1-3. Additionally, behind the

sun visor, police found court paperwork in Maurice Williams’ name. Id. at 23, lines 7-11.



                                             Page 6 of 30
II.    STANDARD OF REVIEW

       The Fourth Amendment prohibits law enforcement from conducting “unreasonable

searches and seizures,” and “this protection extends to a brief investigatory stop of persons or

vehicles, whether or not an arrest follows.” United States v. Bailey, 622 F.3d 1, 5 (D.C. Cir.

2010) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002); Terry v. Ohio, 392 U.S. 1, 9

(1968); and United States v. Cortez, 449 U.S. 411, 417 (1981)). Generally, “searches must be

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

415 F.3d 88, 91 (D.C. Cir. 2005). Searches that are conducted without prior approval by a judge

“‘are per se unreasonable under the Fourth Amendment – subject only to a few specifically

established and well-delineated exceptions.’” Id. (quoting California v. Acevedo, 500 U.S. 565,

580 (1991)). For example, police officers may stop a vehicle and its occupants without a warrant

when they have probable cause to believe a traffic violation has occurred. Whren v. United

States, 517 U.S. 806, 810 (1996). Officers may also briefly detain a person without a warrant in

a Terry stop if they have a “reasonable, articulable suspicion that ‘criminal activity may be

afoot.’” United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) (quoting Terry v. Ohio, 392

U.S. at 30). A Terry stop requires only a “minimal level of objective justification.” INS v.

Delgado, 466 U.S. 210, 217 (1984). Moreover, the “automobile exception” allows a warrantless

search of a vehicle if police officers have probable cause to believe the vehicle contains evidence

of a crime. United States v. Maynard, 615 F.3d 544, 567 (D.C. Cir. 2010)

       To prevail on a motion to suppress evidence due to a Fourth Amendment violation, a

defendant must first establish standing, i.e., “that his own Fourth Amendment rights were

violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978).

That is not at issue in this case. When a defendant establishes that he was arrested or subjected



                                            Page 7 of 30
to a search without a warrant, the burden then shifts to the government to justify the warrantless

search. See Mincey v. Arizona, 437 U.S. 385, 390-91 (1978); United States v. Jeffers, 342 U.S.

48, 51 (1951) (“[T]he burden is on those seeking the exemption to show the need for it . . . .”);

United States v Brown, 334 F.3d 1161, 1182 (D.C. Cir. 2003) (Rogers, J., dissenting) (“The

government bears the burden of proof, and under Terry, the government must present evidence

that the police officer was able to articulate the specific facts that caused him to view [the

defendant] as a likely suspect . . . .”); United States v. Mangum, 100 F.3d 164, 169 (D.C. Cir.

1996) (“The government carries the burden of showing that the measures employed during the

stop were justified.”); United States v. Jones, 374 F. Supp. 2d 143, 147 (D.D.C. 2005); see also

United States v. Albert, 579 F.3d 1188, 1193 (10th Cir. 2009) (“The government has the burden

of demonstrating the officers’ conduct satisfies Terry.”); United States v. Torres-Ramos, 536

F.3d 542, 552 (6th Cir. 2008) (“The government bears the burden of proving, by a

preponderance of the evidence, the existence of reasonable suspicion to believe - based upon

objective and articulable facts - that the defendants were engaged in criminal activity.”); United

States v. Jaquez, 421 F.3d 338, 341 (5th Cir. 2005) (“The government bears the burden of

showing the reasonableness of a warrantless search or seizure.”); United States v. Longmire, 761

F.2d 411, 417 (7th Cir. 1985) (“To require the defendant to prove the absence of a reasonable

suspicion without knowledge of the facts upon which the police based their assessment of the

existence of a reasonable suspicion is to place upon him an impossible burden.”).

          With respect to the first Motion to Suppress physical evidence seized from Maurice

Williams’ vehicle on October 21, 2011, the government must demonstrate, by a preponderance

of the evidence, the legality of both (1) the officer’s initial traffic stop of the defendant, and (2)

the subsequent search of the vehicle. With respect to the second Motion to Suppress physical



                                              Page 8 of 30
evidence seized from Maurice Williams’ vehicle on February 1, 2012, the government must

demonstrate, by a preponderance of the evidence, that the officers had probable cause for the

warrantless search.

         With respect to the Motion to Suppress a statement, the defendant must show that the

requirements of Miranda v. Arizona, 384 U.S. 436 (1966), apply, namely that there was a

custodial interrogation. United States v. Vinton, 594 F.3d 14, 26-27 (D.C. Cir. 2010).

III.     DISCUSSION

         As noted, defendant Maurice Williams has three pending motions to suppress evidence

seized from two different vehicles on two separate occasions as well as a statement he allegedly

made at the police station. First, he seeks to suppress marijuana and cocaine seized from the

vehicle he was driving on October 21, 2011 because he alleges the traffic stop was unlawful.

Def.’s Mot. to Suppress, ECF No. 22. Second, he seeks to suppress marijuana and cocaine

seized from his vehicle on February 1, 2012 because he alleges the search was conducted without

his consent or a probable cause warrant. Def.’s Mot. to Suppress, ECF No. 42. Third, as stated

on the record at the suppression hearing held on July 3, 2012, he seeks to suppress a single

statement that he allegedly made at the police station on February 1, 2012 that he got “dropped

off” at the police station because this statement was made before he was read his Miranda

rights.3 The Court addresses each of these motions separately below, as well as the

government’s pending Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of

Evidence 404(b) with respect to Maurice Williams. See ECF No. 34.




3
  In addition to the challenged statement, defendant Maurice Williams made statements (1) during a videotaped
interview after his arrest, and (2) regarding the fact that the vehicle he was driving on October 21, 2011 was rented
for him by his aunt. He has made no motion to suppress those statements. Tr. at 94, lines 12-25; id. at 95, lines 1-
13.

                                                    Page 9 of 30
       A.      Motion to Suppress Evidence from Automobile Search on October 21, 2011

       The Court will first address defendant Maurice Williams’ motion to suppress marijuana

and cocaine seized from the vehicle he was driving on October 21, 2011. Defendant Maurice

Williams alleges that the traffic stop was unlawful. Def.’s Mot. to Suppress, ECF No. 22. The

Court disagrees.

               1.      Legality of the October 21, 2011 Traffic Stop

       The government contends that the officers stopped Maurice Williams’ vehicle because

they witnessed the defendant “enter the driver’s side of a white Chevrolet Traverse and pull off

without utilizing his seatbelt.” Gov’t’s Resp. to Def. Maurice Williams’ Mot. to Suppress, ECF

No. 36, at 2. When evaluating the reasonableness of a traffic stop, courts only examine whether

the stop was objectively reasonable; subjective intent of the officer plays no role in the analysis.

See Whren, 517 U.S. at 814. Thus, when officers observe a traffic violation, stopping the vehicle

is objectively reasonable, and therefore does not violate the Fourth Amendment. See United

States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir. 1991).

       A traffic stop that is supported by objectively reasonable circumstances is legal even if

the stop was “a mere pretext for a search.” Mitchell, 951 F.2d at 1295; see also Arkansas v.

Sullivan, 532 U.S. 769, 772 (2001) (so long as arrest is supported by probable cause, Fourth

Amendment is not violated even if officer had pretextual subjective motive for stopping driver

for speeding); United States v. Walters, 361 F. App’x 153, 153 (D.C. Cir. 2009) (per curiam)

(“[A] stop is reasonable under the Fourth Amendment so long as the police have probable cause

to believe that a traffic violation has occurred, regardless of the officers’ actual motivations for

the stop.”); United States v. Bookhardt, 277 F.3d 558, 565 (D.C. Cir. 2002) (even if a stop is a

pretext for a search, officer’s subjective intent is irrelevant so long as there was probable cause to



                                            Page 10 of 30
believe driver had committed traffic violation). For example, in Whren, the Supreme Court

upheld a traffic stop conducted after officers observed the defendants’ truck stopped at an

intersection “for what seemed an unusually long time – more than 20 seconds, . . . [then turn]

suddenly to its right, without signaling, and [speed] off at an unreasonable speed.” 517 U.S. at

808 (internal quotation marks omitted). The Court stated that probable cause existed for the

traffic stop because the defendants were stopped for legitimate traffic violations. Id. at 810.

Additionally, the Court rejected the defendant’s contention that subjective intentions of law

enforcement should play a role in the Fourth Amendment search analysis. Id. at 813.

       Similarly, in United States v. Davis, 905 F. Supp. 16 (D.D.C. 1995), the court denied the

defendant’s motion to suppress evidence after the vehicle in which he was travelling was initially

pulled over for failing to stop at a stop sign, even where the police officer expressly stated the

stop was pretextual. Specifically, the police officer testified that because of the high drug crime

in the neighborhood where the car was stopped, the officer “tries to search a car whenever he

can.” Id. at 17. In denying the defendant’s motion, the court stated that “[i]t is the law of this

Circuit that, even if the stop is a pretext for a search, ‘that does not mean that a violation of the

Fourth Amendment occurred. It is well settled that a court must look to objective circumstances

in determining the legitimacy of police conduct under the Fourth Amendment, rather than an

officer’s state of mind.’” Id. at 18 (quoting Mitchell, 951 F.2d at 1295).

       Furthermore, the D.C. Circuit has previously found no constitutional defect in traffic

stops conducted for relatively minor offenses. See, e.g., Vinton, 594 F.3d at 20 (“[I]t is clear that

[the defendant] was properly stopped because [the officer’s] firsthand observations gave him

probable cause to believe that Vinton had been speeding and driving with windows tinted in

excess of the legal limit.”); United States v. Draine, No. 92-3256, 1995 U.S. App. LEXIS 2408,



                                             Page 11 of 30
at *2 (D.C. Cir. 1995) (per curiam) (“The stop of appellant’s car was justified based on the

officers’ objectively reasonable belief that appellant’s failure to display a license tag on his front

bumper, as well as the heavy tint on all of the vehicle’s side windows, were violations of District

of Columbia traffic regulations.”); United States v. Walters, 563 F. Supp. 2d 45, 49 (D.D.C.

2008) (finding an objectively reasonable basis for traffic stop when officer believed vehicle had

excessive window tint), affirmed, 361 F. App’x 153 (D.C. Cir. 2009) (per curiam); United States

v. Cogdell, 297 F. Supp. 2d 11, 13 (D.D.C. 2003) (traffic stop was valid when a D.C. police

officer was objectively reasonable in believing that the defendant’s vehicle, which had Maryland

plates, did not have a license plate attached to the front of his car as required under Maryland

law). Indeed, “even a relatively minor offense that would not of itself lead to an arrest can

provide a basis for a stop for questioning and inspection of the driver’s permit and registration.”

Mitchell, 951 F.2d at 1295 (upholding traffic stop where defendant was speeding and failed to

signal before making a turn off a street, stating that “[t]he Fourth Amendment does not bar the

police from stopping and questioning motorists when they witness or suspect a violation of

traffic laws, even if the offense is a minor one.”).

         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.4 See, e.g., Booker, 496 F.3d at 721


4
  By contrast, a number of Circuit Courts of Appeals, including the D.C. Circuit, have held that an officer’s mistake
of law generally cannot provide the objective grounds for reasonable suspicion or probable cause required to justify
a traffic stop, unless an objectively valid basis for the stop nonetheless exists. See United States v. Booker, 496 F.3d
717, 722 (D.C. Cir. 2007) (“A stop is lawful despite a mistake of law, however, if an objectively valid basis for the
stop nonetheless exists.”) (citing United States v. Southerland, 486 F.3d 1355 (D.C. Cir. 2007)), judgment vacated
on other grounds, 129 S. Ct. 2155 (2009); see also United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999)
(“[I]f officers are allowed to stop vehicles based upon their subjective belief that traffic laws have been violated
even where no such violation has, in fact, occurred, the potential for abuse of traffic infractions as pretext for
effecting stops seems boundless and the costs to privacy rights excessive.”); United States v. Miller, 146 F.3d 274,
279 (5th Cir. 1998) (finding “no objective basis for probable cause justified the stop” where officer was mistaken
about law); United States v. McDonald, 453 F.3d 958, 961 (7th Cir. 2006) (“We agree with the majority of circuits
to have considered the issue that a police officer’s mistake of law cannot support probable cause to conduct a
stop.”); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000) (“[I]n this circuit, a belief based on a mistaken
understanding of the law cannot constitute the reasonable suspicion required for a constitutional traffic stop.”);

                                                    Page 12 of 30
(“A finding of reasonable suspicion does not demand a meticulously accurate appraisal of the

facts. Indeed, [s]tops premised on mistakes of fact . . . generally have been held constitutional so

long as the mistake is objectively reasonable.”) (internal quotation marks and citations omitted),

judgment vacated on other grounds, 129 S. Ct. 2155 (2009); United States v. Payne, 534 F.3d

948, 951 (8th Cir. 2008) (an officer’s mistaken belief that the suspect’s car lacked a front license

plate was an objectively reasonable mistake of fact that supported probable cause for traffic

stop); United States v. DeGasso, 369 F.3d 1139, 1144 (10th Cir. 2004) (“An officer’s reasonable

mistake of fact, as distinguished from a mistake of law, may support the probable cause or

reasonable suspicion necessary to justify a traffic stop.”); United States v. Chanthasouxat, 342

F.3d 1271, 1276 (11th Cir. 2003) (“Thus, if an officer makes a traffic stop based on a mistake of

fact, the only question is whether his mistake of fact was reasonable. Great deference is given to

the judgment of trained law enforcement officers on the scene.”) (internal quotation marks and

citations omitted). Thus, a traffic stop based on an officer’s incorrect but reasonable assessment

of facts does not violate the Fourth Amendment. Saucier v. Katz, 533 U.S. 194, 205 (2001). The

only question is whether the officer’s mistake of fact was reasonable, with great deference given

to the judgment of trained law enforcement officers “on the scene.” See id. at 205-206.

        The case of United States v. Hill, 131 F.3d 1056 (D.C. Cir. 1997), is instructive on this

point. There, the defendants were initially stopped because the officer believed that their vehicle

did not have a Vehicle Identification Number (VIN) on the vehicle’s temporary tags. Although


United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) (“[F]ailure to understand the law by the very person
charged with enforcing it is not objectively reasonable.”); United States v. Chanthasouxat, 342 F.3d 1271, 1279
(11th Cir. 2003) (“[T]he correct question is whether a mistake of law, no matter how reasonable or understandable,
can provide the objectively reasonable grounds for reasonable suspicion or probable cause. And to that question we
join the Fifth and Ninth Circuits in holding that a mistake of law cannot provide reasonable suspicion or probable
cause to justify a traffic stop.”). But see United States v. Washington, 455 F.3d 824, 827 (8th Cir. 2006) (“In our
circuit, if an officer makes a traffic stop based on a mistake of law, the legal determination of whether probable
cause or reasonable suspicion existed for the stop is judged by whether the mistake of law was an ‘objectively
reasonable one.’”) (citation omitted).

                                                  Page 13 of 30
evidence established that the temporary tags did have the VIN, the district court denied the

defendants’ motion to suppress after concluding that the officer subjectively believed that the

defendant had violated a traffic law. The D.C. Circuit remanded the case because the district

court did not determine whether it was objectively reasonable for the officer to believe that a

traffic violation occurred, namely that the tag did not have a VIN. Id. at 1059. The D.C. Circuit

noted, however, that “[i]f the district court concludes that under the circumstances it was

objectively reasonable for the police to believe that the car did not have a VIN on its temporary

tags, we agree with the government that the absence of the VIN did ‘warrant a man of reasonable

caution in the belief’ that a traffic stop was justified.” Id. at 1061 (quoting Terry, 392 U.S. at

22). The Court noted that “the record before us contains no information regarding the conditions

under which the officer first observed Hill’s car e.g., how far away the police cruiser was from

Hill’s car at the time the officer first observed the tags, the quality of the lighting, how quickly

Hill’s car was moving, etc. and whether, given those conditions, it was objectively reasonable for

the officer to conclude that the tags were missing a VIN.” Id. at 1060.

       Turning to the objective circumstances leading to the traffic stop in this case, the officers

stopped defendant Maurice Williams for violating Washington, D.C.’s seatbelt law. There is no

question that this violation would provide probable cause for the initial stop. Further, once the

vehicle was stopped for an alleged traffic violation, officers ordered the defendant out of the car

and discovered that he was driving without a valid license, which constitutes another traffic

violation and one that the defendant does not contest. See Tr. at 16, lines 4-16. Pursuant to

Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977), “once a motor vehicle has been lawfully

detained for a traffic violation, the police officers may order the driver to get out of the vehicle

without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.”



                                            Page 14 of 30
         Were there agreement that Maurice Williams was not wearing a seatbelt on October 21,

2011, the Court’s analysis as to whether the initial stop was legal would end there. Maurice

Williams disputes this key fact, however, and testified that he was wearing his seatbelt. While

Officer Thompkins testified that he pulled over Maurice Williams because he was not wearing

his seatbelt, defendant Maurice Williams testified convincingly at the suppression hearing that he

was wearing a seatbelt at the time he was stopped. See Tr. at 75, lines 15-25; id. at 76, lines 1-9.

Defendant Maurice Williams recounted that he was in an unrelated automobile accident on

February 2, 2010 and was told after the accident that wearing his seatbelt on that occasion had

saved his life. Id. at 75, lines 15-22. Defendant Maurice Williams thus testified, “I always wear

my seatbelt.” Id. at 75, line 22. The Court finds defendant Maurice Williams’ testimony on this

issue credible.

         On the other hand, Officer Thompkins apparently believed that he saw Maurice Williams

driving without his seatbelt fastened. Indeed, the P.D. 163 form (“Arrest/Prosecution Report”),

which was filled out on October 21, 2011, expressly states that Maurice Williams was observed

failing to utilize his seatbelt and that the defendant was issued a citation “for Seat Belt

Violation.”5 Def.’s Ex. 3, at 2. Officer Thompkins testified on cross-examination that he was

unable to recall precisely where he was parked or how far away he was when he witnessed

Maurice Williams enter the white Chevrolet Traverse. Tr. at 41, lines 22-25; id. at 42, lines 1-2.

Nor could he recall the color of the defendant’s clothing, the interior of the car or whether these

colors were contrasting, which may have made it easier to see whether the seatbelt was fastened.


5
 Defendant Maurice Williams attempted to impugn Officer Thompkins’ testimony based on the P.D. 163 form,
pointing to the fact that it says Officer Thompkins was “on patrol” rather than that he was conducting surveillance of
5318 9th Street NW. See, e.g., Tr. at 115, lines 21-25; id. at 116, lines 1-6; id. at 51, lines 2-25; id. at 52, lines 1-6.
As Officer Thompkins explained, it is routine police practice to limit these reports to the basics so as to avoid
compromising ongoing investigations. Id. at 62, lines 19-25; id. at 63, lines 1-6. The fact that the PD 163 says
“[w]hile on routine patrol” rather than “while on surveillance” is not of any probative value in assessing the veracity
or accuracy of Officer Thompkins’ testimony.

                                                     Page 15 of 30
See id. at 48, lines 16-23. Nevertheless, the officer was unswerving in his affirmation that,

through the back tinted window of the car, he could see that the defendant did not fasten his

seatbelt. A photograph of the white Chevrolet Traverse that was taken on the date of the search

shows that the tint on the back window is not so dark as to block the view of the inside of the

vehicle. Gov’t’s Ex. 5. Officer Thompkins also pointed out that he had the opportunity to pull

alongside the Traverse, when Maurice Williams stopped on Georgia Avenue to let the police car

pass him, and confirmed his belief that Maurice Williams was still not wearing a seatbelt. Tr. at

44, lines 23-24; id. at 48, lines 7-10. Maurice Williams’ testimony confirmed this instance when

the police car passed him. Id. at 78, lines 24-25; id. at 79, lines 1-2; id. at 80, lines 11-14. The

Court is satisfied that Officer Thompkins also testified credibly.

       The Court is thus presented with directly conflicting testimony about whether Maurice

Williams was wearing his seatbelt, which is the crucial violation that prompted the challenged

traffic stop by the police. In resolving this conflict, the Court considered the demeanor of both

witnesses and found them both to be credible. Under the circumstances, even if Maurice

Williams were wearing his seatbelt, the Court finds that Officer Thompkins was objectively

reasonable in his belief that the defendant committed a traffic violation by driving without a

seatbelt. Unlike in Hill, where the Court relied solely on the officer’s assertion that he believed

the defendant’s temporary tags lacked the VIN number, in the instant case, Officer Thompkins’

testimony that he had a clear view, could see through the tinted window of defendant Maurice

Williams’ vehicle because it was a sunny day, and the officer’s opportunity to confirm his belief

that the defendant was not wearing a seatbelt when the defendant was stopped at the side of

Georgia Avenue, combine to make the officer’s belief objectively reasonable. See Hill, 131 F.3d

at 1060. Crediting defendant Maurice Williams’ testimony as true, the hearing established no



                                            Page 16 of 30
explanation for Officer Thompkins’ otherwise mistaken factual assessment that the defendant

was not wearing his seatbelt, other than the possibility that the tinted back window, combined

with the lack of color differentiation between the seatbelt and the defendant’s shirt, made it

appear as if the seatbelt were unfastened. As in Whren, even if Officer Thompkins were

mistaken about the seatbelt being unfastened, it was objectively reasonable, even if mistaken, for

him to believe a traffic violation had occurred and, therefore, the stop of Maurice Williams’

vehicle was valid under the Fourth Amendment. See 517 U.S. at 810.

       Alternatively, putting aside the issue of whether Officer Thompkins’ observations about

Maurice Williams wearing his seatbelt were incorrect, the Court finds that the officers had

sufficient reasonable, articulable suspicion that this defendant might be involved in criminal

activity to make a Terry stop. “A law enforcement official may effect a brief investigatory stop

of an individual if the official has a reasonable suspicion, grounded in specific and articulable

facts, that a person . . . was involved in or is wanted in [connection] with a completed felony.”

Bailey, 622 F.3d at 5 (internal quotation marks omitted) (citing United States v. Abdus-Price, 518

F.3d 926, 929 (D.C. Cir. 2008). In this case, the officers observed Maurice Williams leave 5318

9th Street NW, where they had previously observed customers engage in narcotics transactions

and depart those premises with narcotics. While following him, they also observed Maurice

Williams repeatedly looking in his rear view mirror to check whether he was still being followed

and pull his car to a temporary stop to let the police vehicle pass in what could be interpreted as

an evasive maneuver. Finally, they observed him make gestures indicating that he was removing

items from his jacket to the center console of the car when the police stopped him. These

observations are sufficient to establish articulable suspicion to believe that Maurice Williams

was involved in the same type of activity as the other customers who had been observed during



                                           Page 17 of 30
the prior surveillance leaving 5318 9th Street NW to justify a stop for a Terry contact. See

Bailey, 622 F.3d at 5-6 (officers were justified in conducting Terry stop of defendant, who was

observed talking to a suspected drug dealer at same place and same time as suspected drug

dealing, and subsequently drove car quickly in and out of an alley after suspected supplier

arrived).

                 2.       Legality of the Vehicle Search on October 21, 2011

        The government contends that the search of defendant Maurice Williams’ vehicle on

October 21, 2011 was justified under the “automobile exception” because “there was probable

cause to believe [the car] contained contraband.” Gov’t’s Resp. to Def. Maurice Williams’ Mot.

to Suppress, ECF No. 36, at 5-6. The Court finds that the automobile exception to the warrant

requirement applies and the officers had probable cause, which justified a search of Maurice

Williams’ car.6

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

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

contraband.” United States v. Maynard, 615 F.3d 544, 567 (D.C. Cir. 2010) (quoting

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)); see also United States v. Lawson, 410 F.3d

735, 740-41 (D.C. Cir. 2005) (“If authorities have probable cause, they may either conduct an

immediate search or remove the vehicle to a police station . . . .”); Carroll v. United States, 267

U.S. 132 (1925). “If probable cause justifies the search of a lawfully stopped vehicle, it justifies

the search of every part of the vehicle and its contents that may conceal the object of the search.”

United States v. Ross, 456 U.S. 798, 825 (1982); see also California v. Acevedo, 500 U.S. 565,

580 (1991) (“The police may search an automobile and the containers within it where they have

6
 Since the ruling is based on this ground, the Court does not consider the alternative ground proffered by the
government that law enforcement could search the vehicle under the “search incident to arrest” exception. Gov’t’s
Resp. to Def. Maurice Williams’ Mot. to Suppress, ECF No. 36, at 5.

                                                  Page 18 of 30
probable cause to believe contraband or evidence is contained.”). The question in this case is

whether (1) the police officers had probable cause to search the car, and (2) whether the search of

the car could include the center console.

                       a.      Officers Had Probable Cause to Search the Vehicle

       Probable cause is “an objective standard requiring an analysis of the totality of the

circumstances and the facts known to the officers at the time of the search.” United States v.

Jackson, 415 F.3d 88, 91 (D.C. Cir. 2005). Law enforcement officers’ subjective intentions

“play no role in ordinary, probable-cause Fourth Amendment analysis, and the officers’ actual

motives for conducting the search are not relevant as long as their actions were objectively

reasonable.” Id. (internal quotation marks and citations omitted). Analogous to the facts in this

case, courts have previously held that officers had probable cause to search a vehicle when they

could smell marijuana. See United States v. Turner, 119 F.3d 18, 20 (D.C. Cir. 1997) (finding

probable cause to search vehicle when there was the “smell of burnt marijuana emanating from

the car, the pieces of torn cigar paper arrayed around [the defendant], and the ziplock bag of

green weed material found on the floor behind his seat.”); United States v. Jackson, 167 F. App’x

812, 813 (D.C. Cir. 2005) (“[T]he smell of burnt marijuana emanating from the vehicle provided

probable cause to justify the agents’ search of the vehicle [the defendant] was driving.”); United

States v. Lovelace, 357 F. Supp. 2d 39, 44 (D.D.C. 2004) (stating that, among other factors,

officers “detected the smell of marijuana, which clearly gave rise to at least reasonable suspicion,

if not probable cause, that a crime was being committed”); see also United States v. Vasquez-

Castillo, 258 F.3d 1207, 1213 (10th Cir. 2001) (“When an officer encounters the smell of raw

marijuana, there is the fair probability that the vehicle is being used to transport marijuana and

that the marijuana has been secreted in places other than the passenger compartment.”) (citation



                                            Page 19 of 30
and quotation marks omitted); Minnick v. United States, 607 A.2d 519, 525 (D.C. 1992) (“The

question for this court is an easy one: did [detectives] have probable cause to believe that drugs

were to be found inside [the defendant’s] car? The odor of PCP noticed by both detectives

provides a clear answer to that question. This court has repeatedly found probable cause to

search an automobile based, at least in part, on an officer’s recognition of the smell of drugs . . . .

While none of our earlier cases involved a situation in which the distinctive smell of a drug alone

provided police officers with probable cause to search, we have no difficulty reaching that

conclusion here.”).

       Furthermore, in a 2001 opinion, the D.C. Circuit wrote that “this Court recognizes that

‘furtive’ gestures in response to the presence of the police can serve as the basis of an officer’s

reasonable suspicion.” United States v. Edmonds, 240 F.3d 55, 61 (D.C. Cir. 2001); see also

United States v. Wright, 565 F.2d 486, 488 n.3 (8th Cir. 1977) (noting that “furtive gestures”

could constitute “suspicious behavior”).

       In this case, the totality of circumstances created probable cause. The officers had

previously observed drug transactions at Maurice Williams’ home, from which he initiated his

trip on October 21, 2011. As in Edmonds, where the defendant’s reaching under the seat as he

saw police approach in an apparent attempt to conceal something contributed to raising the level

of suspicion, in this case, after Maurice Williams was stopped by police, the officers witnessed

him moving objects from his jacket into the car’s center console. See Edmonds, 240 F.3d at 61-

62; Tr. at 14, lines 16-18. Finally, as the officers approached the car, they smelled “a strong

scent of fresh marijuana[.]” Tr. at 15, lines 20-23.




                                             Page 20 of 30
                            b.       Scope of the Vehicle Search

         In United States v. Ross, 456 U.S. 798 (1982), the Supreme Court held that the “scope of

a warrantless search of an automobile . . . is defined by the object of the search and the places in

which there is probable cause to believe that it may be found.” Id. at 824. “If probable cause

justifies the search of a lawfully stopped vehicle,” the Court stated, “it justifies the search of

every part of the vehicle and its contents that may conceal the object of the search.” Id.; see also

Acevedo, 500 U.S. at 580; Turner, 119 F.3d at 20.

         In this case, the officers observed Maurice Williams place items inside of the center

console, along with smelling marijuana. In these circumstances, the officers had probable cause

to believe that contraband may have been in the center console of the defendant’s vehicle. See

id. (finding officers had probable cause to search locked trunk of a car after smelling burning

marijuana in the car).

         Accordingly, the Court concludes that the stop and subsequent search of Maurice

Williams’ car on October 21, 2011 was legal and his motion to suppress evidence from the

search on that day, ECF No. 22, will be DENIED.

         B.       Motion to Suppress Evidence from Automobile Search on February 1, 2012

         The Court now turns to defendant Maurice Williams’ second pending motion to suppress

marijuana and cocaine recovered during a warrantless search of his car on February 1, 2012,

shortly after he was arrested in this case.7 Def.’s Mot. to Suppress, ECF No. 42. Although he is


7
  At the suppression hearing, counsel for defendant Maurice Williams raised the issue that the government had failed
to respond to his subpoena for the property receipt of Maurice Williams’ belongings taken following his arrest on
February 1, 2012. Tr. at 4, lines 22-25; id. at 5, lines 18-19; id. at 6, lines 8-13. Counsel argued that this receipt was
necessary for effective cross-examination of Officer Thompkins. Id. at 37, lines 1-5. Hearing testimony established
that the keys were confiscated from Maurice Williams at the time of arrest and put into a property bag. Id. at 61,
lines 18-25. These keys were subsequently removed from the bag, at which time Officer Thompkins determined the
blue sedan to be parked in front of the police station. Id. The timing of when the blue sedan was located by police
was not made clear by the testimony. Compare id. at 61, lines 18-19 (Officer Thompkins says “[i]t would be after
the interview [of Maurice Williams].”), with id. at 65, lines 21-22 (Officer Thompkins says “during the interview [of

                                                     Page 21 of 30
not charged with the drugs found during this search, the government has moved to admit this

evidence under Federal Rule of Evidence 404(b), as discussed infra. Gov’t’s Mot. to Admit

Other Crimes Evid., ECF No. 34, at 6.

         As a threshold matter, evidence sought to be admitted pursuant to Rule 404(b) is subject

to Fourth Amendment challenge. See United States v. Askew, 88 F.3d 1065, 1072 (D.C. Cir.

1996); United States v. Knight, 185 F. Supp. 2d 65, 68 (D.D.C. 2002) (noting that the D.C.

Circuit in Askew “appeared to assume – without analysis – that the exclusionary rule might bar

404(b) evidence”); see also United States v. Campbell, 609 F. Supp. 2d 674, 683 (E.D. Mich.

2009) (collecting cases where “courts have addressed the question of whether the Fourth

Amendment’s exclusionary rule applies to 404(b) evidence” and noting that “all of those courts

agree that it does, at least under certain circumstances.”); United States v. Bailey, No. 08-026,

2008 U.S. Dist. LEXIS 48214 (N.D. Okla. June 24, 2008) (granting Motion to Suppress 404(b)

evidence because government did not meet its burden of proving by a preponderance of evidence

that the cocaine at issue would have been discovered independently of the unlawful search of the

defendant’s pocket).

         The government contends that the evidence seized on February 1, 2012 is admissible

under Federal Rule of Evidence 404(b), since under the automobile exception, the warrantless

search of Maurice Williams’ car on February 1, 2012, was valid. Gov’t’s Resp. to Def. Maurice

Williams’ Mot. to Suppress, ECF No. 43, at 2. The government argues that there was probable

cause to conduct the search because officers smelled the odor of fresh marijuana through a


Maurice Williams] we located the blue sedan.”). However, the government does not seek to justify the search of
the car as a search incident to arrest, which must be executed contemporaneous with the arrest. See Gov’t’s Resp. to
Mot. to Suppress, ECF No. 43, at 2; see also Arizona v. Gant, 556 U.S. 332, 351 (2009). Rather, the government
relies upon the automobile exception, which has no temporal limitations that would be implicated by the facts of this
case. See Gov’t’s Resp. to Def. Maurice Williams’ Mot. to Suppress, ECF No. 43, at 2; see also Lawson, 410 F.3d
at 741. Therefore, the Court is not persuaded that the receipt was necessary to an effective cross-examination.


                                                   Page 22 of 30
partially opened window of the vehicle and confirmed their suspicions when a drug-sniffing dog

alerted to the vehicle. Id. The Court agrees.

       As noted, the law is absolutely clear that law enforcement authorities may conduct a

warrantless search of a motor vehicle “[i]f a car is readily mobile and probable cause exists to

believe it contains contraband.” Maynard, 615 F.3d at 567 (quoting Pennsylvania v.

Labron, 518 U.S. 938, 940 (1996)); see also Lawson, 410 F.3d at 740-41; Carroll, 267 U.S. 132

(1925). The fact that the car subject to the search on February 1, 2012 was parked and

inaccessible to defendant Maurice Williams, who was already under arrest at the time the search

was executed and had turned over the car keys to the police, does not render the automobile

exception inapplicable. See Olaniyi v. District of Columbia, 763 F. Supp. 2d 70, 103-104

(D.D.C. 2011) (applying automobile exception when evaluating qualified immunity claim to

justify warrantless search of vehicle when occupants were already in police custody) (citing

United States v. Young, 371 F. App’x. 358, 361 (4th Cir. 2010) (“[T]he inherent mobility of the

[van], combined with the lesser expectation of privacy in an automobile as compared to a home

or office, justify application of the exception even if the police have control over the automobile

at the time of the warrantless search.”); California v. Carney, 471 U.S. 386, 391 (1985) (“Even

in cases where an automobile [is] not immediately mobile, the lesser expectation of privacy

resulting from its use as a readily mobile vehicle justifie[s] application of the vehicular

exception.”)). Thus, the Court proceeds to determine whether the officers had probable cause to

conduct the warrantless search on February 1, 2012.

       As discussed supra, the D.C. Circuit has previously held that officers had probable cause

to search a vehicle when they could smell marijuana. Turner, 119 F.3d at 20 (finding probable

cause to search vehicle when there was the “smell of burnt marijuana emanating from the car, the



                                            Page 23 of 30
pieces of torn cigar paper arrayed around [the defendant], and the ziplock bag of green weed

material found on the floor behind his seat”). Moreover, this Circuit has also indicated that an

alert from a drug-sniffing dog can create probable cause. United States v. Maddox, 398 F. App’x

613, 613 (D.C. Cir. 2010) (“The reliable informant’s reports and the police officer’s

corroboration of those reports provided reasonable suspicion to briefly detain Maddox’s car, and

the narcotics-detection dog’s alert provided probable cause for the search.”) (citing Illinois v.

Caballes, 543 U.S. 405, 409 (2005)); see also United States v. Tartaglia, 864 F.2d 837, 841-42

(D.C. Cir. 1989).

       In this case, officers connected the car with Maurice Williams through the key fob taken

from him at the time of his arrest, smelled fresh marijuana, and confirmed their suspicion the car

might contain drugs with a trained narcotics dog. Thus, there was probable cause to support a

warrantless search of Maurice Williams’ vehicle. For these reasons, defendant Maurice

Williams’ motion to suppress evidence seized on February 1, 2012 will be DENIED.

       C.      Motion to Admit Evidence from Automobile Search on February 1, 2012
               Pursuant to Federal Rule of Evidence 404(b)

       The Court now turns to the government’s related motion to admit evidence of defendants

Ronald and Maurice Williams’ prior criminal conduct. Gov’t’s Mot. to Admit Other Crimes

Evid., ECF No. 34. With respect to Ronald Williams, the government sought to introduce

evidence of two prior convictions: a 1997 conviction for attempted distribution of cocaine and a

2000 conviction for attempted possession with intent to distribute cocaine. Id. at 4-6. The Court

granted the government’s motion with respect to Ronald Williams’ convictions at the hearing

held on July 3, 2012, and reserved judgment as to Maurice Williams pending a decision on

defendant Maurice Williams’ related Motion to Suppress evidence seized from his automobile on

February 1, 2012. Pending before the Court is the government’s motion with respect to Maurice


                                            Page 24 of 30
Williams, in which the government seeks to introduce evidence of uncharged criminal conduct,

namely, his possession of narcotics at the time of his arrest on February 1, 2012. Id. at 6.

       Defendant Maurice Williams objects to the admissibility of the illegal narcotics under

Rule 404(b) on grounds that he “has never been charged or convicted of the drugs found in the

car on February 1, 2012,” and that admission of this evidence “will create another trial within the

trial,” forcing him to defend against both the charges in the indictment and the evidence of the

drugs in the car, which would result in unfair prejudice under Rule 403. Def. M. Williams’ Opp.

to Mot. to Admit Other Crimes Evid., ECF No. 41, at 2.

       Under Federal Rule of Evidence 404(b), evidence of a “crime, wrong, or other act” is

“not admissible to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.” FED. R. EVID. 404(b)(1). However, such

evidence “may be admissible for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” FED. R. EVID.

404(b)(2).

       The D.C. Circuit has pointed out that “[a]lthough the first sentence of Rule 404(b) is

framed restrictively, the rule itself is quite permissive, prohibiting the admission of other crimes

evidence in but one circumstance—for the purpose of proving that a person’s actions conformed

to his character.” United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000) (citations and

quotation marks omitted). In short, “Rule 404(b) is a rule of inclusion rather than exclusion.”

Id. at 929. Even if evidence may be admissible under Rule 404(b), however, the Court must

continue its analysis. The D.C. Circuit has instructed that “[c]ompliance with Rule 404(b) does

not itself assure admission of the other crimes evidence. If the defendant moves under Rule 403,

the court may exclude the evidence on the basis that it is unfairly prejudicial, cumulative or the



                                            Page 25 of 30
like, its relevance notwithstanding.” Id. at 930 (citation and quotation marks omitted). “This

two-step analysis—certification of a proper and relevant purpose under Rule 404(b), followed by

the weighing of probity and prejudice under Rule 403—is firmly rooted in the law of this

circuit.” United States v. Miller, 895 F.2d 1431, 1435 (D.C. Cir. 1990); see also United States v.

Sitzmann, No. 08-0242, 2012 WL 1345713, at *4 (D.D.C. Apr. 13, 2012) (applying the two-step

analysis described in Miller).

        In evaluating the admissibility of evidence under Rule 403, the Court is cognizant that

this Rule “does not bar powerful, or even prejudicial evidence. Instead, the Rule focuses on the

danger of unfair prejudice, and gives the court discretion to exclude evidence only if that danger

substantially outweigh[s] the evidence’s probative value.” United States v. Pettiford, 517 F.3d

584, 590 (D.C. Cir. 2008) (quotation marks and citations omitted) (emphasis and brackets in

original).

        This Circuit has allowed evidence of uncharged crimes to be introduced as relevant to

proving knowledge and intent particularly if the uncharged crimes involve a similar type of

offense. For example, in United States v. Bowie, 232 F.3d 923, 926 (D.C. Cir. 2000), the

defendant was arrested and charged with possession of counterfeit currency for his possession on

May 16, 1997. The District Court admitted evidence that the defendant was also arrested on

April 17, 1997, for the same offense, though not charged for possession on that day. Id. at 927.

The Circuit Court found that the uncharged criminal conduct evidence was properly admitted

because its probative value outweighed its prejudicial effect. Id. at 933.

        Similarly, defendant Maurice Williams’ uncharged possession of marijuana and cocaine

on February 1, 2012 involves the same two narcotics he is charged with possessing on October

21, 2011. In addition, the marijuana was discovered in the same location in the two vehicles, the



                                           Page 26 of 30
center console, on both occasions. Thus, the evidence seized on February 1, 2012 has substantial

probative value that outweighs any prejudicial effect, and the government will be permitted to

present this evidence. For these reasons, the government’s Motion to Admit Other Crimes

Evidence Pursuant to Federal Rule of Evidence 404(b), ECF No. 34, will be GRANTED.

       D.      Oral Motion to Suppress Statement Made on February 1, 2012

       Finally, the Court turns to defendant Maurice Williams’ oral motion stated on the record

at the suppression hearing to suppress a statement he allegedly made at the time of his arrest on

February 1, 2012 that he had been “dropped off” at the police station. Tr. at 91, lines 18-24; id.

at 93, line 25; id. at 94, lines 1-2. The government conceded that this statement was made before

Maurice Williams was advised of his Miranda rights and was given in response to a police

question of how he had arrived at the station. Id. at 96, lines 4-17.

       The requirements of Miranda apply only when there is a custodial interrogation. United

States v. Vinton, 594 F.3d 14, 26-27 (D.C. Cir. 2010). A custodial interrogation is “questioning

initiated by law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. For

Miranda to apply, the defendant must be in custody and an interrogation must be taking place.

Vinton, 594 F.3d at 26 (“Miranda warnings are required ‘where a suspect in custody is subjected

to interrogation.’”) (quoting Rhode Island v. Innis, 446 U.S. 291, 300 (1980)).

       Since defendant Maurice Williams was under formal arrest at the time he made the

statement in question, it is clear that the custodial prong of the test is met. See United States v.

Gaston, 357 F.3d 77, 82 (D.C. Cir. 2004) (“The ultimate inquiry . . . is simply whether there is a

formal arrest or restraint on freedom of movement of the degree associated with a formal

arrest.”) (internal quotation marks and citations omitted).



                                            Page 27 of 30
       Therefore, the issue turns on whether the defendant was subject to interrogation. The test

is whether the police action was “reasonably likely to elicit an incriminating response[.]” United

States v. Morton, 391 F.3d 274, 276 (D.C. Cir. 2004) (quoting Rhode Island v. Innis, 446 U.S.

291, 301 (1980)). The statement was concededly given in response to a direct question by

police. The government argues, however, that it should not be suppressed because it was made

while the suspect was being processed for arrest, thus falling within the “booking question”

exception. Tr. at 93, lines 9-13.

       The Supreme Court and this Circuit have held that “officers asking routine booking

questions ‘reasonably related to the police’s administrative concerns’ are not engaged in

interrogation within Miranda’s meaning and therefore do not have to give Miranda warnings.”

Gaston, 357 F.3d at 82 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 601–02 (1990)). In

Gaston, the defendant’s house was searched pursuant to a warrant. Id. at 80-81. While he was

handcuffed, but before he was given his Miranda warnings, the defendant was asked for his

name, address, date of birth, social security number, and whether he owned the house being

searched. Id. The Court rejected the defendant’s argument that his statement regarding

ownership of the house should be suppressed, holding that his “address and ownership interest in

the house . . . related to administrative concerns” because officers are required to give a copy of

the warrant and a receipt for property seized to the person from whom that property was taken.

See id. at 82 (internal quotation marks and citations omitted).

       By contrast, in United States v. Peterson, 506 F. Supp. 2d 21, 24-25 (D.D.C. 2007), the

court found that, while questions about the defendant’s ownership of the apartment fell within

the booking exception, his answer to the question about which bedroom he used did not, and

therefore that statement was suppressed. The court noted the contrast between “the types of



                                           Page 28 of 30
identifying and administrative information” that routine booking questions elicit, and the

question about which bedroom was occupied by the defendant, which “is more plausibly

construed as . . . intended to determine whether defendant could be connected to any evidence of

a crime found in the apartment.” Id. at 25.

         In this case, asking Maurice Williams how he had arrived at the police station falls

outside the routine identifying questions contemplated by the booking question exception. His

mode of transportation on that particular day is not a personal identifying characteristic, nor was

his answer necessary to serve a required property seizure receipt. The government seeks to use

the fact that the question was asked during the booking process to automatically make this a

booking question. Tr. at 96, lines 11-17. However, the mere timing of the question is

insufficient to make it a legitimate booking question, and the Court finds that the question was

not “reasonably related to the police’s administrative concerns.” See Gaston, 357 F.3d at 82.

Though the police may not have been fully aware at the time it was asked, the question also

relates directly to Maurice Williams’ connection with evidence of criminal activity, and therefore

will be suppressed because he had not yet been advised of his rights. Accordingly, defendant

Maurice Williams’ motion to suppress the statement will be GRANTED.8

IV.      CONCLUSION

         For the reasons stated above, the Court will DENY defendant Maurice Williams’

Motions to Suppress physical evidence seized on October 21, 2011 and February 1, 2012, ECF

Nos. 22, 42; GRANT the Motion to Suppress the single statement defendant Maurice Williams

allegedly made at the police station that he got “dropped off” at the station; and GRANT the

government’s Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence

8
 The Court notes that statements that are suppressed for “violating the strictures of Miranda are admissible for
impeachment if their trustworthiness . . . satisfies legal standards.” United States v. Murdock, 667 F.3d 1302, 1305
(D.C. Cir. 2012) (quoting Mincey v. Arizona, 437 U.S. 385, 397-98 (1978) (internal quotation marks omitted)).

                                                   Page 29 of 30
404(b) with respect to Maurice Williams. An Order consistent with this Memorandum Opinion

will be issued.



Date: July 20, 2012
                                                 /s/ Beryl A. Howell_
                                                 BERYL A. HOWELL
                                                 United States District Judge




                                       Page 30 of 30
