United States v. Will Gross ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2014 Decided April 21, 2015
No. 13-3102
UNITED STATES OF AMERICA,
APPELLEE
v.
WILL GROSS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00068-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and
Stephen J. Gripkey, Assistant U.S. Attorneys.
Before: BROWN and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
2
Concurring opinion filed by Circuit Judge BROWN.
SRINIVASAN, Circuit Judge: Appellant Will Gross was
indicted on one count of unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Gross
filed a motion to suppress the firearm, arguing that its
discovery on his person was the fruit of an unlawful seizure.
The district court denied the motion, reasoning that Gross had
not been seized when officers approached him and asked if he
was carrying a gun. The case then proceeded to trial,
culminating in Gross’s conviction. Gross now appeals the
denial of his motion to suppress, arguing that officers subjected
him to an unlawful seizure before finding the gun. We
conclude that no unlawful seizure occurred, and we therefore
affirm.
I.
On the evening of February 4, 2013, four officers of the
Washington, D.C. Metropolitan Police Department’s Gun
Recovery Unit drove along the 4000 block of 9th Street, S.E.
The officers were working on “gun patrol,” which involved
“[r]iding through the area looking to see if [they] could recover
any guns.” Mot. Hr’g Tr. 40 (June 17, 2013). The officers’
car was unmarked, but each officer wore a tactical vest that
said “police” in large letters on the front and back. Officer
Jason Bagshaw drove the vehicle and Officer Jordan Katz rode
in the rear driver-side seat. Two other officers—whose
conduct is not at issue—sat in the passenger-side seats.
Around 7 p.m., the officers came across appellant Gross
on 9th Street as he walked along the sidewalk to the left of the
car. When the officers reached the corner of 9th and Bellevue
Street, they turned left onto Bellevue. Gross also turned onto
Bellevue and continued to travel in the same direction as the
3
officers. Officer Bagshaw slowed the car as it moved next to
Gross and shined a flashlight on Gross to get his attention.
Officer Bagshaw then called out to Gross from the car, “[H]ey,
it is the police, how are you doing? Do you have a gun?” Id. at
10. Gross stopped, but did not answer, and Officer Bagshaw
stopped the car to remain parallel with Gross. Bagshaw then
asked Gross, “Can I see your waistband?” Id. at 12. Still not
speaking, Gross responded by lifting his jacket slightly to show
his left side, looking back over his shoulder in the process.
Officer Bagshaw, apparently satisfied with the interaction,
began to roll the car forward.
Officer Katz, however, asked Officer Bagshaw to stop the
car. Suspicious of Gross, Officer Katz opened the driver-side
rear door and asked, while stepping out of the vehicle, “[H]ey
man, can I check you out for a gun?” Id. at 15. As soon as
Officer Katz began to exit the car, Gross turned and ran back
towards 9th Street. Officer Katz gave chase. He observed
Gross patting his right side with his hand as he ran, behavior
that Officer Katz later testified “can mean someone is trying to
hold a gun in their waistband.” Id. at 15-16. Officer Katz
also smelled PCP while pursuing Gross. After a short chase,
Officer Katz apprehended Gross. With Gross in handcuffs,
Officer Katz performed a frisk and recovered a .40-caliber
semiautomatic handgun from underneath Gross’s waistband.
After his indictment, Gross filed a motion to suppress the
handgun on the ground that its recovery derived from an
unlawful seizure. At the motion hearing, Officer Katz
testified about his recollections of the encounter with Gross,
describing both his actions and those of Officer Bagshaw.
After hearing Officer Katz’s testimony and arguments from
both sides, the district court denied Gross’s motion. The court
reasoned that no Fourth Amendment seizure occurred until
after Gross fled because nothing to that point would have
4
indicated to a reasonable person that he lacked freedom to
disregard the officers’ questions and walk away. The court
concluded that Gross’s flight, when considered in conjunction
with his other behavior, provided the officers with reasonable
grounds to detain him and conduct a pat-down frisk for
weapons.
After the district court denied his motion to suppress,
Gross waived his right to a jury trial and proceeded to a bench
trial. The district court found Gross guilty and sentenced him
to twenty-one months of imprisonment followed by three years
of supervised release. Gross now appeals the district court’s
denial of his suppression motion.
II.
Gross argues that the district court erred in denying his
motion to suppress the handgun found on his person.
According to Gross, he was subjected to an unlawful seizure
when Officer Bagshaw asked if he was carrying a gun and
would reveal his waistband. The government argues that
Gross is barred from raising that seizure argument on appeal
because he failed to raise it with adequate specificity in the
district court. We decline to resolve whether Gross forfeited
his argument. We instead conclude that, even assuming Gross
adequately preserved the argument he now presses, his
unlawful-seizure argument fails on the merits.
The Fourth Amendment guarantees the “right of the
people to be secure in their persons . . . against unreasonable
searches and seizures.” U.S. Const. amend. IV. The
prohibition against unreasonable seizures requires that all
seizures, even ones involving “only a brief detention short of
traditional arrest,” be founded upon reasonable, objective
justification. United States v. Brignoni-Ponce, 422 U.S. 873,
5
878 (1975). But not all interactions between police officers
and citizens amount to a “seizure” for Fourth Amendment
purposes.
A Fourth Amendment seizure occurs only when an 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). Unless “a reasonable person would
have believed that he was not free to leave,” no seizure will
have taken place. United States v. Maragh, 894 F.2d 415, 418
(D.C. Cir. 1990) (quoting Michigan v. Chesternut, 486 U.S.
567, 573 (1988)). 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.” United States v. Goddard, 491 F.3d
457, 460 (D.C. Cir. 2007) (per curiam).
Gross argues that he was subjected to a Fourth
Amendment seizure when Officer Bagshaw, speaking to him
from the police car, asked if he was carrying a gun and would
expose his waistband. Right out of the gate, Gross’s argument
runs into the settled principle that a “seizure 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). 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 convey a message
that compliance with their requests is required.” Id. at 435.
And “[w]hile most citizens will respond to a police request, the
fact that people do so, and do so without being told they are
free not to respond, hardly eliminates the consensual nature of
the response.” United States v. Drayton, 536 U.S. 194, 205
(2002).
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Gross contends that a reasonable, innocent person
nonetheless would have considered his encounter with Officer
Bagshaw to be nonconsensual in light of the particular
circumstances. Gross emphasizes three factual considerations
in support of his argument: (i) there were four officers in the
car, each of whom wore a tactical vest; (ii) the officers
followed Gross; and (iii) Officer Bagshaw’s questions were
accusatory, implying that Gross could not leave until he proved
his innocence (i.e., that he did not possess a gun). Because we
consider “the totality of the circumstances” in assessing
whether there was a seizure, see Samson v. California, 547
U.S. 843, 848 (2006), we examine the particular factual
considerations emphasized by Gross in the context of the
overall effect of the encounter. We conclude that the
circumstances are materially indistinguishable from those in
cases in which our court, or the Supreme Court, has determined
that no seizure took place. Those decisions compel the same
outcome here.
Gross initially points to the fact that four officers were
present in the car and that the officers wore tactical vests
marked “police.” We confronted comparable circumstances
in United States v. Goddard, 491 F.3d 457. There, four
officers exited their police car and approached the defendants
while wearing badges and jackets marked with a police logo.
See id. at 459. We concluded that those circumstances did not
amount to a seizure. As we explained, “the presence of
multiple officers” wearing “[police] gear, including guns and
handcuffs,” does not “automatically mean that a stop has
occurred.” Id. at 461. The circumstances of this case are, if
anything, less suggestive of a seizure than those in Goddard.
Here, all four officers remained in a car separated from Gross
by one lane of traffic during Officer Bagshaw’s questioning.
And while the officers carried weapons, there is no indication
that the weapons were visible to Gross from the sidewalk.
7
The officers’ “following” of Gross likewise did not
convert the encounter into a seizure. Testimony from the
motion hearing showed that the officers merely turned in the
same direction as Gross and then slowed their car for a few
seconds as it passed next to him across one lane of traffic. In
Michigan v. Chesternut, 486 U.S. 567, the Supreme Court
concluded that no seizure had occurred when four officers in a
police car “accelerated to catch up with a running pedestrian
and drove parallel to him for a short while.” Goddard, 491
F.3d at 461 (describing Chesternut). Although the “presence
of a police car might be ‘somewhat intimidating,’ ” id. at 461
(quoting Chesternut, 486 U.S. at 575), the act of approaching a
person in a police car “does not constitute a seizure where the
officers [do] not use their siren or flashers, [do] not command
the [person] to stop, [do] not display their weapons, and [do]
not drive aggressively to block or control the [person’s]
movement,” id. Just as in Chesternut and Goddard, the
officers did none of that in this case.
With regard to the questions posed by Officer Bagshaw,
the “nature of a police officer’s question[s]” can bear on
whether a person has been seized. Gomez v. Turner, 672 F.2d
134, 146 (D.C. Cir. 1982). Questions alone, however,
ordinarily do not amount to a “show of authority” sufficient to
constitute a seizure. Gross points to cases in which direct
accusations of criminal conduct by officers have weighed in
favor of finding a seizure. See, e.g., United States v. Tyler,
512 F.3d 405 (7th Cir. 2008). But Officer Bagshaw’s
questions (“Do you have a gun?”, “Can I see your
waistband?”) did not accuse Gross of possessing a gun or
committing a crime.
The Supreme Court’s decision in United States v.
Drayton, 536 U.S. 194, is instructive. The Court held that no
seizure had taken place when multiple officers wearing visible
8
badges boarded a bus and asked passengers numerous
questions. Id. at 198-99. Of particular salience, one officer
asked if a passenger “had any weapons or drugs in his
possession,” and then asked, “Do you mind if I check your
person?” Id. at 199. Officer Bagshaw posed highly similar
questions to Gross. Indeed, whereas the officer in Drayton
asked if he could perform a search of the passenger’s person,
here, Officer Bagshaw merely asked whether Gross himself
would reveal his waistband. And while the passengers in
Drayton were questioned while inside a bus with an officer
positioned near the exit, see id. at 205, the street encounter in
this case posed no physical impediment to Gross’s freedom to
walk away.
Reviewing the totality of the circumstances in this case in
light of precedents involving comparable interactions, we
conclude that Officer Bagshaw’s questioning of Gross did not
effect a seizure for purposes of the Fourth Amendment.
Moreover, Gross raises no challenge to the district court’s
conclusion that the circumstances did not subsequently ripen
into a seizure when Officer Katz exited the police car and
asked if he could check Gross for a gun. Nor does Gross
contest the district court’s determination that, once he
attempted to flee in response to that question, the officers had
authority to stop him and conduct the frisk that uncovered the
handgun on his person. Consequently, there is no ground for
disallowing the introduction of the firearm into evidence.
* * * * *
For the foregoing reasons, we affirm the district court’s
denial of Gross’s motion to suppress.
So ordered.
BROWN, Circuit Judge, concurring:
In its efforts to ferret out illegal firearms the District has
implemented a “rolling roadblock.” 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. Despite lacking any
semblance of particularized suspicion when the initial contact
is made, the police subject these individuals to intrusive
searches unless they can prove their innocence. Our case law
considers such a policy consistent with the Fourth
Amendment. See, e.g., United States v. Goddard, 491 F.3d
457 (D.C. Cir. 2007). I continue to think this is error. Our
jurisprudence 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).
***
“Nothing is more clear than that the Fourth Amendment
was meant to prevent wholesale intrusions upon the personal
security of our citizenry.” Davis v. Mississippi, 394 U.S. 721,
726 (1969). “Terry for the first time recognized an exception
to the requirement that Fourth Amendment seizures of
persons must be based on probable cause.” Dunaway v. New
York, 442 U.S. 200, 208–09 (1979). There, the Supreme
Court wisely found that where police officers “ha[ve] reason
to believe [they] [are] dealing with an armed and dangerous
individual . . . the[y] [] need not be absolutely certain that the
individual is armed,” so long as there are particularized facts
that could lead a “reasonably prudent person to believe their
safety or that of others [is] in danger.” Terry, 392 U.S. at 27.
There is a further exemption beyond the narrow Terry
rule; voluntary consent to a search dispels any “inference of
coercion.” United States v. Drayton, 536 U.S. 194, 207
(2002). Because no Fourth Amendment interest is triggered a
2
search may proceed on the basis of individual consent, despite
the absence of reasonable and particularized suspicion of
misconduct. See id. at 201, 207–08; Florida v. Rodriguez,
469 U.S. 1, 5–6 (1984) (“[C]onsensual encounter[s] []
implicate[] no Fourth Amendment interest.”).
The District’s Gun Recovery Unit relies on the latitude
afforded by voluntary consent to facilitate both suspicionless
“consented” searches and Terry seizures premised on
purportedly reasonable suspicions. But in the particulars of
its application, the District’s policy perverts the logic
underlying Terry.
Terry’s premise is straightforward: “police officer[s]
must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant [] intrusion” into a citizen’s autonomy.
392 U.S. at 21. But rather than rely upon particularized
suspicions in the first instance, the District maximizes its odds
of illegal firearm recovery by patrolling high crime
neighborhoods “looking for guns,” or more accurately,
looking for people likely to have guns. Transcript of Motions
Hearing at 40, United States v. Gross, No. CR13-068 (D.D.C.
June 17, 2013). But playing the odds is not the same thing as
reasonable suspicion. See also United States v. Black, 707
F.3d 531, 542 (4th Cir. 2013) (mere presence in a high crime
area at night does not support involuntary detention by
police).
In the absence of any particularized reports, evidence, or
suspicions, patrolling officers simply question every likely
person they encounter. They “employ[] a simple technique:
they ask[] any individual they encounter[] if he or she ha[s] a
gun and then watch[] to see if that individual engage[s] in
what the officers perceive[] to be suspicious behavior.”
3
Robinson v. United States, 76 A.3d 329, 331 (D.C. 2013). If
consent to question or search is refused, officers frequently
construe citizens’ varied reactions to their probes as
rationalizing a Terry stop. 1
The Gun Recovery Unit’s officers have all but candidly
recognized that their policy amounts to statistical
gamesmanship. In a prior case involving the same policy,
Officer Katz, for example, noted that the unit’s officers
targeted a particular “high crime” area for patrols because it
“was one of [the officer’s] top-yielding gun areas as far as
recovering firearms off of people” and stopped an individual
for questioning without “any discussion among” the officers
about the rationale for the stop, where neither Officer Katz
nor the other officers “[saw] anything, initially, about him” to
suggest he had a gun. Transcript of Motions Hearing at 8, 24,
United States v. Robinson, No. 2011-CF2-023024 (D.C.
Super. Ct. May 10, 2012). See also id. at 29 (Officer Katz
stating, “I didn’t see anything that would make me think that
[the defendant] had a gun,” prior to questioning him about
firearm possession). As the D.C. Superior Court noted, like
all officers in the District’s Gun Recovery Unit, “[Officer
Katz] asked [the individual] whether he had a weapon, not
because he had any suspicion that he did, but because that’s
his job. He’s a gun recover[er]—and he asks everyone.
Apparently, he goes down the street asking everyone, do you
have a gun.” Id. at 120 (emphasis added).
As a thought experiment, try to imagine this scene in
Georgetown. Would residents of that neighborhood maintain
1
The act of refusal itself does not, however, form the basis of the
justification. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000)
(“[R]efusal to cooperate, without more, does not furnish the
minimal level of objective justification needed for a . . . seizure.”).
4
there was no pressure to comply, if the District’s police
officers patrolled Prospect Street in tactical gear, questioning
each person they encountered about whether they were
carrying an illegal firearm? Nothing about the Gun Recovery
Unit’s modus operandi is designed to convey a message that
compliance is not required. While viewing such an encounter
as consensual is roughly equivalent to finding the latest
Sasquatch sighting credible, I submit to the prevailing
orthodoxy, but I continue to reject its counterintuitive
premise.
Under our Circuit precedents there is little question we
must treat consent to such questioning as voluntary, even
when—as here—multiple officers in tactical gear engage an
individual, repeatedly question him about his possession of
illegal firearms, and ask that he consent to a search. Brief of
Appellant at 4–6, United States v. Gross, No. 13-3102 (D.C.
Cir. June 12, 2014). Our decision in Goddard, for example,
involved facts more extreme than the present. This Court
nonetheless found no Terry stop where four officers dressed
in police gear used their patrol car to block the entrance of a
gas station—where the defendant stood with a group of other
young men—and then “jumped out” of their vehicle to
confront them. 491 F.3d at 461–62.
Yet our case law’s stubborn mythology that consent is
truly voluntary belies the all but foreordained nature of the
resulting search. Individuals approached by the District’s
Gun Recovery Unit officers know they possess little more
freedom than to elect the manner in which to be skewered
upon Morton’s Fork. 2 The outcome is effectively
2
Morton’s Fork derives from “Archbishop of Canterbury, Cardinal,
and Minister of Henry VII John Morton’s (supposed) method of
levying forced loans by arguing that those who were obviously rich
5
predetermined. They will be searched. The choice they face
is to “voluntarily” acquiesce to the officers’ request or to have
any reaction to the officers’ inquiries—regardless of how
objectively benign—serve as the factual predicate justifying a
Terry search. See, e.g., Transcript of Motions Hearing at 80,
United States v. Gross (finding articulable facts warranting
Officer Katz’s search of Gross, who looked to the rear after
noticing the officers and failed to completely comply with a
request that he voluntarily show his waistband, lifting only
part of his shirt).
With the guise of voluntary consent stripped away, the
reality of the District’s regime is revealed. It is a rolling
roadblock that sweeps citizens up at random and subjects
them to undesired police interactions culminating in a search
of their persons and effects. If the Fourth Amendment is
intended to offer meaningful protection in the context of
Terry stops, the voluntary consent exemption cannot be used
to engage with members of the public en masse and at random
to fabricate articulable suspicions for virtually every citizen
officers encounter on patrol.
“No 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. Our
could afford to pay, and those who lived frugally must have
amassed savings. Hence in extended and allusive use it is: a
practical dilemma, especially one in which both of the choices . . .
available disadvantage or discredit the chooser.” United States v.
Johnson, 482 F. App’x 137, 145 n.14 (6th Cir. 2012) (internal
punctuation marks and citations omitted).
6
precedents, however, fail to safeguard this fundamental right,
and instead permits encounters intended to coerce
“consented” searches and justify Terry stops through
purposive interpretation of citizens’ reactions to “voluntary”
questioning.
Persons questioned by the District’s Gun Recovery Unit
patrols may reasonably be at a loss as to how to react to these
contacts. Is there a means to react to such nominally
voluntary encounters that might preserve their constitutional
prerogatives? I offer this advice: speak to officers firmly,
politely, respectfully. Tell them, “I do not wish to have an
encounter with the police right now. Am I free to leave?” If
the answer is “no,” then coercion will cease to masquerade as
consent. Our courts will be forced, at last, to directly grapple
with the reality of the District’s policy of routinized and
involuntary seizures.