United States v. Gibson ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Case No. 18-108 (EGS)
)
MARK A. GIBSON, )
)
Defendant. )
)
MEMORANDUM OPINION
I. Introduction
On April 2, 2018 at approximately 11:48 p.m., defendant
Mark Gibson was walking home from the bus stop. As he was
walking east on Galen Street at the intersection of 16th Street
and Galen Street Southeast in the District of Columbia, four
Metropolitan Police Department Gun Recovery Unit Officers (“MPD
officers” or “officers”) were patrolling in the same area,
seeking to recover firearms. After a brief encounter between the
officers and Mr. Gibson—the details of which are disputed—Mr.
Gibson fled. He was caught, arrested, searched, and found to be
in possession of cocaine base and a firearm. Thereafter, Mr.
Gibson was indicted on three counts: (1) unlawful possession of
a firearm by a felon in violation of 18 U.S.C. § 922(g); (2)
unlawful possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841; and (3) possessing a firearm in
1
furtherance of a drug trafficking offense in violation of 18
U.S.C. § 924(c). See Indictment, ECF No. 1.
Pending before the Court is Mr. Gibson’s motion to suppress
all tangible evidence. See ECF No. 6. Mr. Gibson argues that he
was unlawfully seized in violation of the Fourth Amendment of
the United States Constitution when the MPD Officers approached
him and ordered him to show his waistband and lift his jacket.
The Court held evidentiary hearings on September 17, 2018 and
September 20, 2018, at which both MPD Officer Matthew Hiller
(“Officer Hiller”) and Mr. Gibson testified. As explained fully
below, the Court credits Mr. Gibson’s testimony and finds that
the government has not met its burden to establish that the
seizure was lawful. Accordingly, after careful consideration of
Mr. Gibson’s motion, the responses and supplemental responses,
the replies and supplemental replies thereto, the evidence
presented at the evidentiary hearings, and the oral arguments
made at the September 25, 2018 and October 10, 2018 motion
hearings, Mr. Gibson’s motion to suppress all tangible evidence
is GRANTED.
II. Background
On April 24, 2018, Mr. Gibson was indicted for: (1)
unlawfully and knowingly possessing a Taurus .40 caliber semi-
automatic pistol as a felon; (2) knowingly and intentionally
possessing cocaine base; and (3) knowingly possessing a firearm
2
in furtherance of a drug trafficking offense. Indictment, ECF
No. 1. During the September 17, 2018 and September 20, 2018
evidentiary hearings, the Court viewed the relevant body-worn
camera footage. Officer Hiller and Mr. Gibson also testified
about the circumstances leading to Mr. Gibson’s arrest. Their
respective testimony conflicts on the critical question upon
which resolution of this motion depends—namely, whether one of
the MPD officers ordered Mr. Gibson to show his waistband.
A. Undisputed Facts
On April 2, 2018 four MPD officers—all members of the Gun
Recovery Unit—patrolled the Seventh District, seeking to recover
firearms in a “high-crime area.” See Mot. Hr’g Tr. (“Sept. 17
Tr.”), ECF No. 16 at 15-16 (Sept. 17, 2018).1 The officers were
riding in an unmarked car and all wore tactical vests marked
“POLICE” in large letters on the front and back. Id. at 12-13;
Gov’t’s Exs. 1-A, 1-B, 3. Officer John Wright drove the vehicle,
while Officer Hiller sat in the front passenger seat, and
Officers Matthew Mancini and Merissa McCaw sat in the back seat.
Sept. 17 Tr., ECF No. 16 at 12-13.
At approximately 11:48 p.m., the MPD officers encountered
Mr. Gibson as he walked east on Galen Street at the intersection
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3
of 16th Street and Galen Street Southeast. Sept. 17 Tr., ECF No.
16 at 17; Mot. Hr’g Tr. (“Sept. 20 Tr.”), ECF No. 17 at 46
(Sept. 20, 2018). Mr. Gibson had been walking home from a bus
stop after visiting a friend’s house. Sept. 20 Tr., ECF No. 17
at 45-46.
The officers drove alongside Mr. Gibson as he walked on the
sidewalk. Officer Wright slowed down, pointed a flashlight at
Mr. Gibson, greeted Mr. Gibson, and identified himself as a
police officer. See Sept. 17 Tr., ECF No. 16 at 18; see also
Sept. 20 Tr., ECF No. 17 at 49-50; Def.’s Exs. 3, 4. The parties
agree that Officer Wright first asked Mr. Gibson whether he had
a firearm on him and Mr. Gibson responded that he did not. Sept.
17 Tr., ECF No. 16 at 17-18; Sept. 20 Tr., ECF No. 17 at 49-50.
From here, the testimony diverges; the different versions of the
events are discussed below.
B. Officer Hiller’s Testimony
Officer Hiller testified that, after Mr. Gibson stated that
he did not have a gun, the MPD officers continued to drive
alongside Mr. Gibson. See Sept. 17 Tr., ECF No. 16 at 18.
Officer Hiller initially testified that Officer Wright asked Mr.
Gibson “if he minded showing us his waistband.” Id. Officer
Hiller later hedged this answer, testifying that Officer Wright
said “something almost exactly to that effect.” Id. at 56. On
cross-examination, however, Officer Hiller could not confirm the
4
“exact words used.” Id. at 89. While Officer Hiller could not
recall the exact words used, he testified that he had “never
heard” Officer Wright “demand to see somebody’s waistband.” Id.
at 89. According to Officer Hiller, Officer Wright’s tone and
demeanor was “conversational.” Id. at 18, 39, 111-12. Officer
Hiller stated that Mr. Gibson again denied having a weapon. Id.
at 18 (“Mr. Gibson again replied, ‘I ain’t got no guns. I ain’t
got no guns.’”).
Officer Hiller originally attested in the Gerstein Report2
he prepared that Mr. Gibson had his hands in his jacket pockets
throughout this encounter. Id. at 58-59, 63-66; Def.’s Ex. 1,
ECF No. 13-1 (“Officer Wright asked Mr. [Gibson] if he could see
his waistband and Mr. [Gibson] repeated ‘I ain’t got no guns, I
ain’t got no guns’ keeping his hands in his jacket pockets”).
Moreover, Officer Hiller did not mention Mr. Gibson’s hands in
his narrative testimony on direct examination. See Sept. 17 Tr.,
ECF No. 16 at 17-20. However, Officer Hiller agreed on cross-
examination, after watching the body-worn camera footage, that
Mr. Gibson raised his hands in the air with his palms facing the
2 A Gerstein report contains sworn statements by law enforcement
officers and is “used by prosecutors to establish probable cause
at the defendant's initial appearance before the court following
his arrest.” Littlejohn v. United States, 705 A.2d 1077, 1080
(D.C. 1997) (citing Gerstein v. Pugh, 420 U.S. 103, 120, 124 n.
25 (1975)); see Sept. 17 Tr., ECF No. 16 at 58; Def.’s Ex. 1,
ECF No. 13-1.
5
officers during the encounter. Id. at 62, 70-71. Officer Hiller
further testified that he could not remember Mr. Gibson raising
his hands in the air or why Mr. Gibson had raised his hands. Id.
at 70-71, 75-76.
Officer Hiller testified that, after Mr. Gibson denied
having a weapon for the second time, Officer Wright “pulled
forward a little bit” and Mr. Gibson “kind of stopped, turned
back towards 16th Street and ran back down towards 16th Street
where he was originally seen coming from.” Id. at 19. Once Mr.
Gibson fled, Officers Mancini and Hiller pursued him on foot.
Id. at 20-21. Shortly thereafter, Mr. Gibson “lost his footing”
and fell to the ground. Id. at 21. Officer Hiller testified that
a firearm fell and landed on the ground near Mr. Gibson. Id.;
see also id. at 26 (“the gun fell out”). At that time, Mr.
Gibson was arrested and searched. See id. at 22. The MPD
officers found plastic bags containing a substance that tested
positive for cocaine base. Id.; Gov’t’s Exs. 4, 6-10; Sept. 20
Tr., ECF No. 17 at 52.
The parties agree that all four MPD officers remained in
the car until Mr. Gibson began to run. Sept. 17 Tr., ECF No. 16
at 38; see also Sept. 20 Tr., ECF No. 17 at 64. The parties also
agree that Officer Wright was the only officer who spoke to Mr.
Gibson. Sept. 17 Tr., ECF No. 16 at 39-40; see also Sept. 20
Tr., ECF No. 17 at 60. Finally, the parties agree that none of
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the MPD officers drew or displayed their weapons. Sept. 17 Tr.,
ECF No. 16 at 19; see also Sept. 20 Tr., ECF No. 17 at 61.
C. Mr. Gibson’s Testimony
Mr. Gibson also testified at the evidentiary hearing. His
account of the April 2, 2018 encounter differs from Officer
Hiller’s testimony in one crucial respect.
Mr. Gibson agreed that he had been walking home when the
four MPD officers pulled up beside him in an unmarked car. Sept.
20 Tr., ECF No. 17 at 45, 48-49. He agrees that Officer Wright
pointed a flashlight at him, greeted him, and asked if he had a
weapon. Id. at 49-50. However, Mr. Gibson disputed that Officer
Wright then asked to see his waistband. Instead, Mr. Gibson
testified that Officer Wright ordered “let me see your
waistband.” Id. at 50. In response, Mr. Gibson raised both hands
in the air with his palms facing the officers, as Officer Hiller
agreed the body-worn camera footage showed. See Gov’t’s Ex. 1-B.
Mr. Gibson testified that he raised his arms “because they told
[him] to let them see [his] waistband.” Sept. 20 Tr., ECF No. 17
at 51.
After Mr. Gibson raised his arms, he testified that Officer
Wright responded by saying “lift your jacket.” Id. At that time,
Mr. Gibson testified that he turned and fled because he knew he
had contraband and was scared to get in trouble. Id. at 51-52.
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He agreed he fell while attempting to evade the officers chasing
him; the firearm fell out of his waistband. Id. at 52.
The Court’s task is to determine what Officer Wright said
to Mr. Gibson before he fled. Unfortunately, this determination
cannot be made from the best evidence available: the body-worn
camera footage. There is no audio available of the encounter
because none of the four MPD officers activated their cameras
when they came into contact with Mr. Gibson. The officers only
activated their body-worn cameras when they began to pursue Mr.
Gibson on foot. Sept. 17 Tr., ECF No. 16 at 141; Gov’t’s Exs. 1-
A, 1-B. The Court is able to see the encounter, even though the
MPD officers did not activate their body-worn cameras, because
the cameras store visual footage for the two minutes preceding
the moment that the cameras are activated. The camera does not
store the audio for those two minutes. Sept. 17 Tr., ECF No. 16
at 7-8, 14. Therefore, the Court is able to view the short
encounter between the MPD officers and Mr. Gibson but is unable
to hear the dialogue. The officers’ failure to activate their
body-worn cameras upon encountering Mr. Gibson was a violation
of MPD regulations.3 Id. at 84-85.
3 It is undisputed that the MPD officers violated an MPD General
Order by not activating their body-worn cameras upon coming into
contact with Mr. Gibson. See Sept. 17 Tr., ECF No. 16 at 83-85;
Def.’s Exs. 5, 6, ECF Nos. 13-4, 13-5; Oct. 10 Tr., ECF No. 28
at 34 (COURT: “[T]here was not compliance with the body camera
8
III. Standard of Review
Mr. Gibson argues that the tangible evidence recovered on
April 2, 2018 must be suppressed because the MPD officers seized
him without probable cause or reasonable suspicion in violation
of the Fourth Amendment. See Def.’s Mot. to Suppress (“Def.’s
Mot.”), ECF No. 6.
“When the government conducts an unconstitutional search or
seizure, the Court must exclude any evidence obtained as the
‘fruit’ of that search or seizure.” United States v. Sheffield,
799 F. Supp. 2d 22, 28 (D.D.C. 2011)(citing Wong Sun v. United
States, 371 U.S. 471, 484 (1963)). Typically, “[t]he proponent
of a motion to suppress has the burden of establishing that his
own Fourth Amendment rights were violated by the challenged
search or seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n.1
(1978)(citations omitted). However, “[w]hen a defendant
establishes that he was arrested or subjected to a search
without a warrant,” as is undisputedly the case here, “the
burden then shifts to the government to justify the warrantless
search.” United States v. Williams, 878 F. Supp. 2d 190, 197
(D.D.C. 2012)(citing, among other omitted authority, Mincey v.
Arizona, 437 U.S. 385, 390–91 (1978)).
directive . . . correct?” GOVERNMENT: “I think a literal reading
of the general order, the answer is probably yes”).
9
Here, the parties agree that the government has the burden
to prove by a preponderance of the evidence that there was no
seizure in violation of the Fourth Amendment. Sept. 20, 2018
Tr., ECF No. 17 at 4-6 (COURT: “So the government has the burden
of proof to prove by a preponderance that Mr. Gibson was not
seized and searched in violation of the Fourth Amendment,
correct?” GOVERNMENT: “Yes. That’s correct, Your Honor”).
IV. Analysis
The Fourth Amendment guarantees that the “right of the
people to be secure in their persons . . . against unreasonable
searches and seizures, shall not be violated, and no [w]arrants
shall issue, but upon probable cause . . . .” U.S. CONST. AMEND.
IV. Resulting from this guarantee, “all seizures, even ones
involving only a brief detention short of traditional arrest,”
must be “founded upon reasonable, objective justification.”
United States v. Gross, 784 F.3d 784, 786 (D.C. Cir. 2015)
(internal quotations and citations omitted); see also United
States v. Mendenhall, 446 U.S. 544, 551 (1980)(“The Fourth
Amendment's requirement that searches and seizures be founded
upon an objective justification, governs all seizures of the
person, including seizures that involve only a brief detention
short of traditional arrest.”)(quotations and citations
omitted).
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Not every interaction between law enforcement and private
persons amounts to a seizure within the meaning of the Fourth
Amendment. A seizure arises “[o]nly when the officer, by means
of physical force or show of authority, has in some way
restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1,
19 n.16 (1968). “Whether police action amounts to a ‘show of
authority’ requires the court to ask whether a ‘reasonable
person’ ‘in view of all the circumstances surrounding the
incident, . . . would have believed that he was not free to
leave.’” United States v. Castle, 825 F.3d 625, 632 (D.C. Cir.
2016)(quoting United States v. Wood, 981 F.2d 536, 539 (D.C.
Cir. 1992)). “That ‘reasonable person’ test asks, ‘not . . .
what the defendant himself . . . thought, but what a reasonable
man, innocent of any crime, would have thought had he been in
the defendant's shoes.’” Gross, 784 F.3d at 787 (quoting United
States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007)(per
curiam)).
Accordingly, the Court must first determine whether there
was a show of authority. A show of authority “does not occur
simply because a police officer approaches an individual and
asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434
(1991). Indeed, “even when officers ‘have no basis for
suspecting a particular individual, they may generally ask
questions of that individual . . . as long as the police do not
11
convey a message that compliance with their requests is
required.’” Gross, 784 F.3d at 787 (quoting Florida v. Bostick,
501 U.S. at 435). The United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) has outlined
several “factors” that a district court should consider “in
assessing whether an officer’s actions amounted to a show of
authority ‘includ[ing] whether the suspect was physically
intimidated or touched, whether the officer displayed a weapon,
wore a uniform, or restricted the defendant’s movements, the
time and place of the encounter, and whether the officer’s use
of language or tone of voice indicated that compliance with the
officer’s request might be compelled.’” Castle, 825 F.3d at 632-
33 (quoting Mendenhall, 446 U.S. at 554)(alterations omitted).
Assuming the Court finds there has been a show of
authority, the Court must also find that the defendant submitted
to that authority. California v. Hodari D., 499 U.S. 621, 628-29
(1991); see also United States v. Brodie, 742 F.3d 1058, 1061
(D.C. Cir. 2014); Wood, 981 F.2d at 538, 540-41. Below, the
Court separately considers: (1) whether the government met its
burden to prove there was no show of authority; and (2) whether
the government met its burden to prove there was no submission
to any show of authority.
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A. The Government Has Not Met Its Burden: Show of Authority
The MPD officers encountered Mr. Gibson while “ferret[ing]
out illegal firearms,” using a method known as a “rolling
roadblock,” whereby officers “randomly trawl high crime
neighborhoods asking occupants who fit a certain statistical
profile—mostly males in their late teens to early forties—if
they possess contraband[] [d]espite lacking any semblance of
particularized suspicion when the initial contact is made.”
Gross, 784 F.3d at 789 (Brown, J., concurring). It is clear that
this technique is “consistent with the Fourth Amendment,” so
long as the government meets its burden to prove there was no
show of authority such that a reasonable person would not feel
free to leave. Id.4
4 Judge Brown notes that the D.C. Circuit’s jurisprudence in
approving such techniques “perpetuates a fiction of voluntary
consent where none exists and validates a policy that subverts
the framework of Terry v. Ohio, 392 U.S. 1 (1968).” Gross, 784
F.3d at 789 (Brown, J., concurring). She observes that
“[n]othing about the Gun Recovery Unit’s modus operandi is
designed to convey a message that compliance is not required . .
. . [V]iewing such an encounter as consensual is roughly
equivalent to finding the latest Sasquatch sighting credible . .
. .” Id. at 790. Having listened to four days of testimony and
argument, the Court must agree. Indeed, the MPD’s rolling
roadblock practice is so prevalent in the District of Columbia
that individuals living in high-crime neighborhoods sometimes
show MPD officers their waistbands “without [MPD officers] even
saying anything.” Sept. 20 Tr., ECF No. 17 at 31 (Officer Hiller
testimony); see Patrick Madden, D.C.’s Aggressive Confiscation
of Illegal Guns Leaves Residents Feeling Targeted, NPR, Oct. 24,
2018, available at https://www.npr.org/2018/10/24/659980871/d-c-
s-aggressive-confiscation-of-illegal-guns-leaves-residents-
feeling-targeted ("Young black men say they feel targeted and
13
Mr. Gibson argues that he was seized when Officer Wright
purportedly ordered him to show his waistband, see Def.’s Mot.,
ECF No. 6 at 2, and again when Officer Wright purportedly
ordered him to lift his jacket, see Def.’s Suppl. Mem., ECF No.
19 at 17-18. Because Officer Wright allegedly ordered Mr. Gibson
to comply, Mr. Gibson argues that a reasonable person under the
circumstances would not feel free to disregard the command and
leave. Def.’s Suppl. Mem., ECF No. 19 at 15-16. The government
argues that Mr. Gibson was not seized because Officer Wright
merely asked him to see his waistband, an acceptable practice
pursuant to Supreme Court and D.C. Circuit precedent. See
generally Gov’t’s Opp’n, ECF No. 7; Gov’t’s Suppl. Mem., ECF No.
14-1. Thus, Mr. Gibson’s motion to suppress turns entirely on a
factual determination: whether Officer Wright ordered Mr. Gibson
harassed by these stops. To avoid being frisked, they say they
lift up their shirts when police drive by to show they don't
have a gun in their waistband."). Mr. Gibson testified that he
had at least two other encounters with police officers wanting
to see his waistband. Sept. 20 Tr., ECF No. 17 at 52. In each of
those experiences, Mr. Gibson did not feel that he had a choice
as to whether to show his waistband. Id. at 53. As Judge Brown
posited and Officer Hiller confirmed, such encounters would
never occur in Georgetown. See Gross, 748 F.3d at 790 (“[T]ry to
imagine this scene in Georgetown. Would results of that
neighborhood maintain there was no pressure to comply . . . ?”);
Sept. 20 Tr., ECF No. 17 at 30 (Officer Hiller: “we’re not asked
to go to Georgetown”).
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to see his waistband or merely asked Mr. Gibson to see his
waistband.5
1. Factual Findings
As described above, Officer Hiller and Mr. Gibson provided
directly conflicting accounts. The Court has considered the
evidence admitted,6 the demeanor and credibility of the
witnesses, and the testimony of Mr. Gibson and Officer Hiller.
In the final analysis, the Court concludes that the
government has not met its burden because its evidence is
insufficient to prove the seizure was lawful by a preponderance
of that evidence. The government’s only witness—Officer Hiller—
either could not remember or misremembered many of the critical
5 The government argued that the defendant “put out” “new
theories” that were not originally briefed because his initial
motion focused on illegal arrest and the search incident to that
arrest. See Sept. 25 Tr., ECF No. 24 at 4-8. The Court rejects
this argument. It is clear that Mr. Gibson argued in his initial
motion that he was seized “at the point that the police officer
stopped him.” Def.’s Mot., ECF No. 6 at 2. Moreover, the Court
allowed the parties to submit supplemental briefing to remedy
any lack of clarity in the original motion. The government
indeed filed a supplemental response, which the Court has
considered. See Gov’t’s Suppl. Mem., ECF No. 14-1.
6 The Court provisionally admitted several exhibits over
objection. See, e.g., Sept. 17 Tr., ECF No. 16 at 152-53 (COURT:
“I can let it in provisionally, take a look at it, if it’s not
relevant I can disregard it.”); Sept. 20 Tr., ECF No. 17 at 34.
Ultimately, the Court did not rely on any opposed exhibit in
granting Mr. Gibson’s motion, including defense exhibits 8 (Gun
Recovery Unit banner photograph), 9 (banner photo), 10 (photo of
MPD t-shirt), 13 (video of barbershop incident), and 15-16
(records from other proceedings). Thus, the Court need not
resolve such objections.
15
facts from the April 2, 2018 encounter. Specifically, Officer
Hiller could not remember the words Officer Wright used when
speaking to Mr. Gibson, the issue central to resolving the
motion. First, Officer Hiller testified that Officer Wright
asked Mr. Gibson “if he minded showing us his waistband.” Sept.
17 Tr., ECF No. 16 at 18. Then, after the Court asked Officer
Hiller what Officer Wright said to Mr. Gibson, Officer Hiller
hedged his answer, testifying that Officer Wright said
“something almost exactly to that effect.” Id. at 56. On cross-
examination, however, Officer Hiller could not confirm the
“exact words used,” id. at 89, and agreed that it was “hard to
remember,” id. at 72; Mot. Hr’g Tr. (“Oct. 10 Tr.”), ECF No. 28
at 23-25 (Oct. 10, 2018)(conceding that Officer Hiller could not
testify to the specific words uttered by Officer Wright); id. at
26 (COURT: “Wasn’t [Officer Hiller] still unclear about the
precise language [Officer Wright] used in his question to Mr.
Gibson?” GOVERNMENT: “I think the answer to that is yes, he did
not say he recalled these words specifically”).
Accordingly, the government asks the Court to accept
Officer Hiller’s testimony that Officer Wright would never
demand to see a waistband. See, e.g. Oct. 10 Tr., ECF No 28 at
32 (GOVERNMENT: “[W]e can prevail because the Officer said it
was in question form, whatever it was, was in question form.”).
True, Officer Hiller testified that Officer Wright never demands
16
to see a waistband because MPD officers are “instructed” to not
make demands: “every time we say that [referring to seeing
waistbands], it’s directed in question form.” Sept. 17 Tr., ECF
No. 16 at 117-18. However, the Court cannot agree with the
government that the actual words used are “not critical” in
light of Officer Hiller’s avowal that Officer Wright would never
demand to see a waistband. Oct. 10 Tr., ECF No. 28 at 36-37, 40.
Moreover, it would be error on the part of the Court to credit
without hesitation Officer Hiller’s testimony and accept the
government’s conclusory argument that “whatever it was” that
Officer Wright said, he “said [it] in question form.”
Of utmost importance in this case is Mr. Gibson’s Fourth
Amendment right: “[n]o right is held more sacred, or is more
carefully guarded . . . than the right of every individual to
the possession and control of his own person, free from all
restraint or interference of others, unless by clear and
unquestionable authority of law.” Terry, 392 U.S. at 9
(quotations and citations omitted). The Court cannot find that
the government met its burden of proof merely by offering
Officer Hiller’s blanket assurance that Officer Wright always
asks questions and never demands. That declaration is
insufficient because Officer Hiller could not recall what
Officer Wright actually said and because—due to the officers’
failure to activate their body-worn cameras during the initial
17
encounter—the audio was not captured in the footage. Oct. 10
Tr., ECF No. 28 at 38; see Sept. 17 Tr., ECF No. 16 at 75. A
mere assertion that Officer Wright asks questions rather than
makes demands is unsatisfactory considering Mr. Gibson’s
significant liberty interests and the Court’s solemn duty to
enforce the Constitution.
Likewise, the Court is troubled by other significant gaps
in Officer Hiller’s memory. For example, Officer Hiller did not
remember Mr. Gibson raising his two arms in the air—the most
salient part of the short encounter. Sept. 17 Tr., ECF No. 16 at
70-71 (Q: “You remember him having two hands in the air?” A: “I
don’t – I don’t remember”); id. at 154 (COURT: “Do you recall
seeing [Mr. Gibson’s] hands in the air . . .?” A: “I don’t
remember”). Indeed, Officer Hiller did not mention Mr. Gibson
raising his arms during his initial narrative testimony, despite
having viewed the body-worn camera footage in advance to prepare
for his testimony. Id. at 17-20, 67-68. Testimony about Mr.
Gibson’s lifted hands was only elicited on cross-examination.
Id. at 62. Moreover, Officer Hiller also omitted the key fact
that Mr. Gibson had raised his arms in response to Officer
Wright when he prepared and filed under oath a Gerstein Report
the day after arresting Mr. Gibson. See ECF No. 13-1 at 1-2;
Sept. 17 Tr., ECF No. 16 at 59-60. In that detailed document,
Officer Hiller attested that Mr. Gibson responded to Officer
18
Wright’s request to see his waistband while “keeping his hands
in his jacket pockets.” ECF No. 13-1 at 1. At no point did
Officer Hiller mention the fact that Mr. Gibson raised his arms
in the air in response to Officer Wright. See id. Although, a
Gerstein Report need not contain “every” detail about a
particular encounter, Oct. 10 Tr., ECF No. 28 at 74, the
omission is problematic, given the overall brevity of the
encounter and the significance of the surrendering act.
Finally, Officer Hiller could not remember other details
about the encounter. For example, because Officer Hiller did not
remember Mr. Gibson raising his hands in the air, he also could
not remember whether the MPD officers could see Mr. Gibson’s
waistband, a fact significant to the Court’s analysis. Sept. 17
Tr., ECF No. 16 at 154 (COURT: “At the time when [Mr. Gibson’s]
hands were in the air, could you see his waistband?” A: “I don’t
– I don’t remember, Your Honor”). Additionally, the MPD officers
encountered another individual and spoke to that individual
shortly before coming across Mr. Gibson. See Gov’t’s Ex. 1-B at
about 0:24-0:55. When asked about that encounter, Officer Hiller
could not remember who Officer Wright had been speaking to or
what Officer Wright said to that unknown individual, even though
the officers spoke to the individual less than a minute before
encountering Mr. Gibson. Sept. 20 Tr., ECF No. 17 at 20-21, 29
(Q: “So you have no memory of that?” A: “No, I don’t have a
19
memory of that. Like I said, I – it appeared from the video”).
Finally, Officer Hiller testified that he did not “even
remember” if he saw Mr. Gibson turn around to run away: “I just
remember Officer Mancini got out [of the vehicle], and that’s
why I got out with him. And then once I got out, I saw [Mr.
Gibson] running.” Sept. 17 Tr., ECF No. 16 at 155.
Clearly, the best evidence of what was said to Mr. Gibson
would have been the body-worn camera footage, had the audio been
captured. As discussed, the audio would have been captured had
any of the four MPD officers activated their cameras upon
“contact” with Mr. Gibson, as required by an MPD General Order.
Sept. 17 Tr., ECF No. 16 at 77-78 (Q: “But you knew by not
having activated [the body-worn camera] the conversation would
not be recorded, correct?” A: “Yes”); Def.’s Ex. 5, ECF No. 13-4
(MPD General Order 302.13). Officer Hiller and government
counsel agreed that the General Order required the officers to
activate their body-worn cameras once Officer Wright began
speaking to Mr. Gibson. Sept. 17 Tr., ECF No. 16 at 84-85; Oct.
20 Tr., ECF No. 28 at 34.
However, even without the audio, the video footage is the
best evidence of what happened when the MPD officers stopped Mr.
Gibson. The video shows the MPD officers driving down the street
in the dark for about two minutes. See Gov’t’s Ex. 1-B.
Suddenly, the vehicle’s speed decreases and Officer Wright
20
immediately takes out his flashlight and shines it at Mr. Gibson
from the front seat. See Gov’t’s Ex. 1-B at about 1:45-1:55.
Moments later, Mr. Gibson raises both hands in the air with his
palms facing the MPD officers at about head height. He holds his
hands in the air for a few seconds, taking about four or five
steps, and then quickly turns and runs away. See id. This
footage is consistent with Mr. Gibson’s testimony and
inconsistent with Officer Hiller’s. And it suggests that the MPD
officers may have directed Mr. Gibson to comply with an order,
as raising one’s hands is a gesture that symbolizes surrender
and compliance.
In light of the significant memory gaps in Officer Hiller’s
testimony, the lack of evidence in the record regarding the
words Officer Wright said to Mr. Gibson, and the video footage
corroborating Mr. Gibson’s testimony, the Court concludes that
the government has not met its burden to prove there was no show
of authority.
2. Credibility Findings
In view of the Court’s finding that the government has not
met its burden, the Court need not make any further credibility
determinations. See Oct. 10 Tr., ECF No. 28 at 42-43 (government
counsel conceding that the government cannot prevail if the
evidence is in equipoise). However, after presiding over two
days of testimony, the Court had the opportunity to observe the
21
demeanors of both witnesses and make determinations about
whether each “testified truthfully and also whether the witness
accurately observed, recalled, and described the matters about
which the witness testified.” Criminal Jury Instruction for the
District of Columbia 2.200 (“Credibility of Witnesses”)(“[a
juror] may consider the demeanor and the behavior of the witness
on the witness stand; the witness’s manner of testifying;
whether the witness impresses you as a truthful person; whether
the witness impresses you as having an accurate memory and
recollection; whether the witness has any motive for not telling
the truth . . . .”).
The Court credits Mr. Gibson’s testimony and finds that it
was more consistent with the body-worn camera footage, the best
evidence available in the case. As previously noted, Mr. Gibson
testified on September 20, 2018. See Sept. 20 Tr., ECF No. 17 at
43-91. His demeanor was calm—even under aggressive cross-
examination—and his answers were forthcoming, consistent, and
straightforward. Moreover, Mr. Gibson exhibited a high degree of
recall. See, e.g., id. at 61-62 (Q: “Would it be possible . . .
you don’t remember every word that Officer Wright said to you
that night. That’d be fair to say, right?” A: “No, I do” . . .
Q: “And if he had said, ‘Can I see your waistband,’ that’s
possible, isn’t it?” A: “No, he didn’t”). Unlike Officer Hiller,
Mr. Gibson did not have any significant memory lapses or revised
22
or inconsistent answers during his testimony. Finally, it is
probable and reasonable that Mr. Gibson’s memory is “really
good,” as he testified, because the arrest was a significant
event in his life. Id. at 88.
Most importantly and as discussed above, Mr. Gibson’s
testimony is corroborated by the body-worn camera footage. He
testified that he lifted his arms in response to a direct
command—“let me see your waistband”—so his jacket would “raise
enough that [the MPD officers] could see the waist of [his] . .
. jeans.” Sept. 20 Tr., ECF No. 17 at 50-51. His gesture is a
probable and reasonable reaction to an MPD officer shining a
flashlight on him while ordering him to show his waistband. See
Gov’t’s Ex. 1-B at about 1:45-1:55.
The government argues that the Court should not credit Mr.
Gibson’s testimony because he has a stake in the outcome, has a
criminal history, and was on court supervision at the time of
the arrest. See Oct. 10 Tr., ECF No. 28 at 31-32. But the Court
may find Mr. Gibson credible notwithstanding his interest in the
outcome and his prior convictions. See Reagan v. United States,
157 U.S. 301, 305 (1895) (“It is within the province of the
court to call the attention of the jury to any matters which
legitimately affect his testimony and his credibility. This does
not imply that the court may arbitrarily single out his
testimony, and denounce it as false. The fact that he is a
23
defendant does not condemn him as unworthy of belief, but at the
same time it creates an interest greater than that of any other
witness, and to that extent affects the question of
credibility.”); see also Criminal Jury Instruction for the
District of Columbia 2.209 (“Defendant As Witness”)(“[A
defendant’s] testimony should not be disbelieved merely because
s/he is the defendant.”). The Court has considered Mr. Gibson’s
stake in the outcome, his criminal history, and the fact that he
readily admitted his criminal past. Sept. 20 Tr., ECF No. 17 at
44-45, 55. Indeed, Mr. Gibson was forthcoming; he admitted that
he ran because he was scared: he knew he possessed contraband,
knew he was under court supervision, and knew he would get in
trouble. Id. at 43. Nothing about his testimony undermines his
credibility.
Conversely, the Court does not credit Officer Hiller’s
testimony. As thoroughly discussed, Officer Hiller admitted that
he could not remember the words Officer Wright used when
speaking to Mr. Gibson. He also admitted that he could neither
remember Mr. Gibson raising his arms in the air, nor whether Mr.
Gibson’s waistband was visible. Finally, Officer Hiller could
not remember if he saw Mr. Gibson flee. See supra Sec. IV.A.1.
The Court also observed Officer Hiller’s demeanor on the
stand and found his answers to be evasive and inconsistent. For
example, Officer Hiller originally testified that Officer Wright
24
asked Mr. Gibson “if he minded showing us his waistband.” Sept.
17 Tr., ECF No. 16 at 18. He did not originally testify that he
was unsure of the exact words used. As discussed, Officer Hiller
gradually changed his answer until he ultimately admitted that
he could not remember the words used. See, e.g., id. at 72.
Officer Hiller also originally testified that the MPD officers
had not complied with the MPD General Order because they did not
activate their body-worn cameras upon face-to-face contact with
Mr. Gibson. Id. at 77-78, 83-85. However, Officer Hiller later
changed his testimony on redirect, testifying that the MPD Order
may not have been invoked as the officers may not have had
“contact” with Mr. Gibson because they were in a vehicle while
Mr. Gibson was on the sidewalk, despite facing Mr. Gibson and
being in close proximity. Id. at 142-45. Upon further
questioning by the Court, Officer Hiller again changed his
answer, admitting that he would characterize the particular
encounter as a face-to-face contact. Id. at 145 (COURT: “[I]f’s
it’s not face to face, what is it? How would you characterize
this particular moment? . . . .” A: “I guess the best way to
characterize it is face to face.”).
Officer Hiller was also less forthcoming than Mr. Gibson,
omitting important details from his narrative testimony. Most
significantly, Officer Hiller failed to mention that Mr. Gibson
had raised his arms in response to something Officer Wright
25
said. This is a critical fact. Officer Hiller’s omission is
notable because he testified that he had watched the body-worn
camera footage to prepare for his testimony. Id. at 67-68.
Officer Hiller’s testimony was therefore also less consistent
with the body-worn camera footage. Moreover, as previously
discussed, Officer Hiller also failed to note that Mr. Gibson
had raised his arms in his sworn Gerstein report. See supra Sec.
IV.A.1.
Finally, the Court concludes that portions of Officer
Hiller’s testimony were not plausible. For example, Officer
Hiller testified that he and the other three MPD officers in the
vehicle failed to activate their body-worn cameras while Officer
Wright was speaking to Mr. Gibson because it was not possible at
the time. Id. at 141. He testified that he activated his camera
“as soon as I felt it reasonably possible.” Id. However, Officer
Hiller and Officer Mancini both activated their cameras while
pursuing Mr. Gibson on foot. See Gov’t’s Exs. 1-A, 1-B. Plainly,
it is not plausible that all four officers felt it was not
possible to activate their cameras by pushing a button while
seated in a car listening to a conversation, but did find it
possible to do so while sprinting after a fleeing defendant. The
Court need not infer that the MPD officers were intentionally
not activating their body-worn cameras. That said, the Court is
troubled that all four officers failed to adhere to MPD policy,
26
especially because the officers knew that not activating their
cameras would prevent the conversation from being recorded.
Sept. 17 Tr., ECF No. 16 at 78. Indeed, the very purpose of the
“Body-Worn Camera Program,” as set forth in General Order 302.13
is to “promote public trust, and enhance service to the
community by accurately documenting events, actions, conditions,
and statements during citizen encounters . . . and to help
ensure officer and public safety.” Def.’s Ex. 5, ECF No. 13-4 at
1. By failing to adhere to MPD policy and activate their body-
worn cameras, the MPD officers deprived the Court from reviewing
the best evidence available.
The government argues that the Court should credit Officer
Hiller’s testimony because, unlike Mr. Gibson, he does not have
a stake in the outcome of the case. Oct. 10 Tr., ECF No. 28 at
27-28. As discussed, the Court has considered the fact that Mr.
Gibson has a significant stake in the outcome of this motion.
However, the Court cannot agree that Officer Hiller has no stake
in the outcome. See id. As government counsel stated, there is
significant “import” to this Court not crediting Officer
Hiller’s testimony. Id. at 76-77. For one, “he’ll be on the
Louis [sic] list7 for the next several years or so.” Id. at 77.
7 The Lewis list is a list containing impeachable information for
government witnesses, including MPD officers. See Humberson v.
U.S. Attorney’s Office for District of Columbia, 236 F. Supp. 2d
27
Of course, Officer Hiller’s stake is small compared to Mr.
Gibson’s, but the Court cannot agree that he is a completely
unbiased witness and that his impartiality warrants crediting
his otherwise flawed testimony. Moreover, Officer Hiller’s
testimony is not afforded greater weight because he is a law
enforcement officer. See Criminal Jury Instruction for the
District of Columbia 2.207 (“Police Officer’s testimony”)(“ A
police officer’s testimony should be evaluated by you just as
any other evidence in the case. In evaluating the officer’s
credibility, you should use the same guidelines that you apply
to the testimony of any witness. In no event should you give
either greater or lesser weight to the testimony of any witness
merely because s/he is a police officer.”).
3. Legal Analysis
Having found that the government did not meet its burden,
the Court must now evaluate whether ordering Mr. Gibson to “let
me see your waistband” and “lift your jacket” constitutes a show
of authority under the circumstances. In directing district
courts to consider certain factors, the D.C. Circuit confirmed
that “the officer’s use of language or tone of voice” may
indicate that “compliance with the officer’s request might be
28, 29 (D.D.C. 2003). Inclusion on the list may therefore affect
an officer’s ability to testify.
28
compelled” in certain circumstances. Castle, 825 F.3d at 632-33
(quoting Mendenhall, 446 U.S. at 554)(quotations omitted).
Finding there was a show of authority here is consistent
with D.C. Circuit precedent. For example, in Castle, the D.C.
Circuit emphasized that a defendant may be seized when he
complies with directives. The Castle court “agree[d] with the
District Court that [the defendant] was seized when Officer
Oslzak touched Appellant and instructed him to ‘hold on’ and
Appellant complied.” Castle, 825 F.3d at 633. The conclusion was
warranted because “no reasonable person in Appellant’s position
and subject to Officer Olszak’s directives would have believed
that he was free to go on about his business.” Id. In Wood, the
D.C. Circuit found that the defendant was seized when a police
officer followed the defendant into a dark alley and directed
him to “halt right there,” an order that “indicate[d] that
compliance might be compelled.” United States v. Wood, 981 F.2d
536, 540 (D.C. Cir. 1992)(quoting Mendenhall, 446 U.S. at
554)(internal quotations and alterations omitted). In Jones, the
D.C. Circuit agreed that the appellant was “seized for purposes
of the Fourth Amendment” when a police officer approached the
defendant and ordered him to “come here.” United States v.
Jones, 584 F.3d 1083, 1087 (D.C. Cir. 2009).8 In Brodie, the D.C.
8 The seizure in Jones was legal because the police officers had
reasonable suspicion of possible criminal wrongdoing. 584 F.3d
29
Circuit agreed that the defendant had been seized when the
police pulled alongside the defendant and ordered him to put his
hands on a nearby car. United States v. Brodie, 742 F.3d 1058,
1061 (D.C. Cir. 2014). Finally, the D.C. Circuit favorably cited
and discussed In re J.F., a District of Columbia Court of
Appeals case, in Castle. See Castle, 825 F.3d at 633-34
(discussing and citing favorably 19 A.3d 304 (D.C. 2011)). In In
re J.F., the District of Columbia Court of Appeals found that a
defendant was seized after MPD officers, who were wearing
tactical vests, pulled up next to the defendant and, after
questioning him whether he heard gun shots, “ordered him to
remove his hands from his pockets.” 19 A.3d at 308-10. The Court
of Appeals concluded that a reasonable person would not have
felt free to ignore the officers’ order. Id. at 309.
Consistent with Castle, Wood, Jones, Brodie, and In re
J.F., there was a show of authority in Mr. Gibson’s case. The
Court has considered the totality of the circumstances, as it
must, and concludes that a reasonable person would not have
believed he was free to leave. See Castle, 825 F.3d at 632-33.
Specifically, the MPD officers were following Mr. Gibson in an
unmarked vehicle late at night while wearing tactical vests.
When the vehicle pulled up next to Mr. Gibson, Officer Wright
at 1087. Here, however, it is undisputed there was no reasonable
suspicion of criminal activity.
30
immediately shined a bright flashlight at him, and issued two,
successive directives: “let me see your waistband” and “lift
your jacket.” Officer Wright’s “use of language” indicated that
“compliance with the officer’s request might be compelled.”
Castle, 825 F.3d at 632-33. In fact, Officer Hiller himself
testified that ordering an individual to “show me your
waistband” would be “authoritative,” as it “wouldn’t have been a
question.” Sept. 17 Tr., ECF No. 16 at 56. The Court sees no
meaningful difference between “show me your waistband” and “let
me see your waistband.” As in Wood, “there are no elements of a
consensual, ‘benign police/citizen encounter’” in Mr. Gibson’s
case. Wood, 981 F.2d at 540 (quoting United States v. Jordan,
958 F.2d 1085, 1087 (D.C. Cir. 1992)).
The Court disagrees with the government that United States
v. Gross is “on all fours” and therefore, the Court must find
that there was no show of authority. Sept. 20 Tr., ECF No. 17 at
9; see also Gov’t’s Suppl. Mem., ECF No. 14-1 at 3. In Gross,
the D.C. Circuit found that the defendant was not seized within
the meaning of the Fourth Amendment because the government
proved that the law enforcement officers merely asked the
defendant to see his waistband and asked if they could check him
for a gun. Gross, 784 F.3d at 785-86. While noting that “the
‘nature of a police officer’s question[s]’ can bear on whether a
person has been seized,” id. at 788 (quoting Gomez v. Turner,
31
672 F.2d 134, 146 (D.C. Cir. 1982)), the Circuit held that
“[q]uestions alone, however, ordinarily do not amount to a ‘show
of authority’ sufficient to constitute seizure,” id. In Gross,
the police officers merely asked the defendant two questions;
they did not “accuse” Gross or order him to comply with a
directive. Id. As discussed above in great detail, the Court
credits Mr. Gibson’s testimony that Officer Wright ordered Mr.
Gibson to comply. Accordingly, the government’s comparisons9 are
unpersuasive.
Finally, the government contends that a verbal order alone
cannot constitute a show of authority for Fourth Amendment
purposes. See, e.g., Oct. 10 Tr., ECF No. 28 at 5, 7, 12, 26.
The government argues that the MPD officer either had to
approach Mr. Gibson or stop his progress. See id. at 26 (“those
words alone . . . is not enough for a seizure. There has to be
more”). The Court disagrees. See Brodie, 742 F.3d at 1061 (“The
government concedes that the police made a show of authority
when they ordered Brodie to put his hands on the car.”);
Goddard, 491 F.3d at 465 (“Usually, of course, a Terry stop
occurs only when police actually physically restrain a person or
make some verbal statement indicating the person is not free to
9 Likewise, the government’s reliance on United States v. Miller
is also misplaced, Oct. 10 Tr., ECF No. 28 at 4, because Judge
Jackson found that the MPD officers merely asked the defendant
questions, 2016 WL 8416761 at *7-8 (D.D.C. Nov. 11, 2016).
32
leave.”)(Brown, J., dissenting)(emphasis added). Moreover, the
Supreme Court implied that even one of the Mendenhall examples
may constitute a seizure by separating show of authority
examples with the word “or”: “examples . . . [include] the
threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating
that compliance with the officer's request might be compelled.”
Mendenhall, 446 U.S. at 554 (citations omitted)(emphasis
added)(finding that there was no show of authority in part
because “[the agents] did not demand to see the respondent’s
identification and ticket”).
More importantly, the Court does not base its ruling on
Officer Wright’s order alone. The Court considered the totality
of the circumstances, not just the two successive orders, and
made a factual determination based on several factors that a
reasonable person would not feel free to disregard Officer
Wright’s orders. See Castle, 825 F.3d at 632-33 (directing the
district courts to consider factors such as “the time and place
of the encounter,” whether the officers “wore a uniform,” and
whether the officer’s “use of language or tone of voice
indicated that compliance . . . might be compelled”); see also
supra p. 30-31 (considering the late hour of the encounter, that
the four MPD officers wore tactical vests, that Officer Wright
33
shined a bright light at Mr. Gibson, and that Officer Wright
issued two successive orders).
B. The Government Has Not Met Its Burden: Submission to
Authority
When a seizure occurs without physical force, as here, the
Court must also find that the defendant submitted to an
officer's “show of authority.” California v. Hodari D., 499 U.S.
621, 626-28 (1991)(holding that the Mendenhall test was “a
necessary, but not a sufficient condition for seizure—or, more
precisely, for seizure effected through a ‘show of
authority’”). Having found there was a show of authority, the
Court must therefore consider whether Mr. Gibson submitted to
that authority. See Brodie, 742 F.3d at 1061; Wood, 981 F.2d at
538, 540-41. Submission occurs when the defendant complies with
an officer’s order. See Brodie, 742 F.3d at 1061. This
compliance may be “momentary.” Id. Indeed, “it is the nature of
the interaction, and not its length, that matters.” United
States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2007)(citing
Delaware v. Prouse, 440 U.S. 648, 655 (1979) (“[S]topping an
automobile and detaining its occupants constitute a ‘seizure’ .
. . even though the purpose of the stop is limited and the
resulting detention quite brief.”)). Ultimately, “[w]hether
conduct constitutes submission to police authority will depend,
as does much of the Fourth Amendment analysis, on ‘the totality
34
of the circumstances—the whole picture.’” Id. (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)).
The uncontroverted evidence—the body-worn camera footage—
reveals that Mr. Gibson indeed complied with Officer Wright’s
order to “let me see your waistband” by raising both hands in
the air while walking alongside the police vehicle. See Gov’t’s
Ex. 1-B at about 1:45-1:55. Mr. Gibson testified that he raised
his hands in the air “because [he] knew if [he] d[id] that, that
[his] jacket will raise enough that they could see the waist of
[] [his] jeans.” Sept. 20 Tr., ECF No. 17 at 50-51. Just as in
Brodie, complying with an officer’s orders provides “no basis”
for classifying his action “as anything other than full
compliance with the officer’s request.” Brodie, 742 F.3d at
1061; see also United States v. Brown, 448 F.3d 239, 245-46 (3d
Cir. 2006)(finding that the defendant had submitted to authority
either by placing his hands on a car or being in the process of
placing his hands on a car when the police implied he was not
free to leave the scene). Indeed, “what may amount to submission
depends on what a person was doing before the show of authority:
a fleeing man is not seized until he is physically overpowered,
but one sitting in a chair may submit to authority by not
getting up to run away.” Brendlin v. California, 551 U.S. 249,
262 (2007). By raising both hands in the air after having had
his hands in his pockets, Mr. Gibson “signal[ed] submission” to
35
Officer Wright’s orders. Id. Moreover, the fact that Gibson
later ran away does not “negate a defendant’s initial
submission.” Brodie, 742 F.3d at 1061.
Indeed, the record is devoid of any evidence to suggest
that Mr. Gibson’s submissive act was inauthentic or that he had
an ulterior purpose in raising his hands in the air. See id. As
discussed, the government put forward no evidence or testimony
that Mr. Gibson’s waistband was not displayed. For example,
Officer Hiller could not remember whether he could see Mr.
Gibson’s waistband. Sept. 17 Tr., ECF No. 16 at 154 (COURT: “At
the time when [Mr. Gibson’s] hands were in the air, could you
see his waistband?” A: “I don’t remember, Your Honor”). Yet, the
government argues that Mr. Gibson did not submit because he
lacked the intent to actually show his waistband, evidenced by
the fact that he did not raise his hands higher than his head.
Oct. 10 Tr., ECF No. 28 at 10; see id. at 14 (“[T]here’s a
difference between raising your hands to your ears to prevent
the officers from seeing the firearm, and raising your hands to
the sky to show the officers your firearm.”). The government
cites Mr. Gibson’s testimony, in which he said that he did not
want the officers to be able to see the firearm. Oct. 10 Tr.,
ECF No. 28 at 10-11 (citing Sept. 20 Tr., ECF No. 17 at 73-74).
However, Mr. Gibson did not testify that he did not comply or
submit; instead, he testified that he ultimately hoped the MPD
36
would not see his contraband. Sept. 20 Tr., ECF No. 17 at 73-74
(Q: “You didn’t want [Officer Wright] to see [the firearm], did
you? Correct?” A: “Correct.”). As discussed, Mr. Gibson
testified that he raised his arms to show his waistband, id. at
50-51, and the body-worn camera footage corroborates that
testimony, see Gov’t’s Ex. 1-B. Moreover, it is probable that
Mr. Gibson may have indeed displayed his waistband, as Mr.
Gibson was wearing a short jacket and low-slung jeans. See
Gov’t’s Exs. 1-A, 1-B. Most importantly, however, there is no
evidence to the contrary in the record. The government therefore
failed to meet its burden to prove the seizure was lawful.
C. Mr. Gibson’s Remedy
“When the government conducts an unconstitutional search or
seizure, the Court must exclude any evidence obtained as the
‘fruit’ of that search or seizure.” United States v. Dolberry,
No. CR 15-0037, 2015 WL 4751023 at *2 (D.D.C. Aug. 11,
2015)(citing Wong Sun v. United States, 371 U.S. 471, 484
(1963); United States v. Matthews, 753 F.3d 1321, 1324 (D.C.
Cir. 2014) (“The admissibility of all the incriminating evidence
. . . depends upon the validity of the search.”)). “An illegal
search or seizure calls for suppression of evidence only if the
seizure is a but-for cause of the discovery of the evidence (a
necessary condition), and if the causal chain has not become
37
‘too attenuated to justify exclusion.’” Brodie, 742 F.3d at
1062-63 (quoting Hudson v. Michigan, 547 U.S. 586, 592 (2006)).
The government does not argue that the evidence should not
be suppressed because the causal chain has become “too
attenuated” or there was no but-for causation. See generally
Gov’t’s Opp’n, ECF No. 7; Gov’t’s Suppl. Mem., ECF No. 14-1;
Gov’t’s Suppl. Opp’n, ECF No. 22. For example, the government
does not contend, and the record does not suggest, that the
contraband would have been found had the officers not seized Mr.
Gibson. Indeed, the presence of but-for causation is quite
plain. As such, the Court must suppress the fruit of the illegal
seizure: the contraband found on Mr. Gibson on April 2, 2018.
V. Conclusion
The Court finds that the government has not met its burden to
prove there was no show of authority and no submission to that
authority. After carefully considering the evidence presented
and the extensive briefing, the Court concludes that Mr. Gibson
was seized in violation of the Fourth Amendment. As such, the
Court GRANTS the defendant’s motion and SUPPRESSES the tangible
evidence seized on April 2, 2018. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
December 21, 2018
38