UNITED STATES OF AMERICA v. DESHAWN HOOD
Criminal No. 19-cr-315 (ESH)
January 21, 2020
ELLEN S. HUVELLE, United States District Judge
MEMORANDUM OPINION
Defendant Deshawn Hood has been charged with possession of a firearm by a convicted felon, in violation of
An evidentiary hearing and argument were held on this motion on January 10
FACTUAL BACKGROUND1
At approximately 11:30 p.m. on September 16, 2019, officers from the Metropolitan Police Department‘s Narcotics and Special Investigations Division Gun Recovery Unit (“GRU“) were driving in Northeast D.C. According to Officer James Jacobs, who testified at the hearing, the GRU generally travels in groups of two to four cars, and while their vehicles are unmarked, “most people in the neighborhoods [they] patrol know” and are able to identify them as the “guns squad.” (Tr. of January 10, 2020 Hearing (“Jan. 10 Tr.“).2) In this particular instance, the GRU officers were traveling in two unmarked cars. They were patrolling this area because it “has had many sounds of gunshots, violent crimes, as well as shootings and homicides.” (Id.) While driving northbound on 42nd Street, N.E., the first GRU car—in which Officers Murrell and Joseph were driving—made contact with Hood, who greeted the officers. (See id.) According to Officer Jacobs, Hood also said something to the effect that he “was just trying to get home.”3 (Id.)
Hood, who was traveling southbound on 42nd Street at the time, continued on his way, making a left turn onto Foote Street, N.E. Officer Jacobs testified that while walking away, Hood looked back at the officers’ vehicle. (See id.) At that time, one of the officers from the lead car came over the radio and requested that the officers in the second car—Officer Torres, who was driving, and Officer Jacobs in the passenger seat—“speak to him [Hood] real quick.” (See id.; see also Gov‘t Ex. 5 at 55:13 (recording of that radio transmission).) Following that directive, the second car made a right turn onto Foote Street and pulled up next to Hood, who was walking off the sidewalk and entering the street from the north side. Officer Jacobs and Torres’ car stopped in the middle of the street, at which point Officer Jacobs activated his body camera and began to quickly exit the car.4 At this point, Hood had already raised his hands in the air, although he did this without any request by the police. (See Jan. 10 Tr.)
Officer Jacobs said “hold on a sec”5 while gesturing at Hood with his right
Officer Jacobs testified that when he approached Hood, he saw an “abnormally large bulge, which was not consistent with the human anatomy, . . . to the left of [Hood‘s] groin area in his pants” and the bulge was “very noticeable.”7 (Jan. 10 Tr.) He testified that he believed Officer Torres had also seen the bulge, because “[h]e shined his flashlight on the same area as he[ was] approaching as well, so at that point I knew that we were both on the same page and believed that it was a firearm in Mr. Hood‘s pants.” (Id.) At approximately 2:12, Officer Jacobs told Hood—who had taken several steps backwards upon Officer Jacobs’ approach—to “stop backing away.” (See Video at 2:11.)
Officer Jacobs then said, “Let me just ask you about that bulge in the front of your pants.” (See id. at 2:14.) In response, Hood lowered his arms to his waistband and looked down, at which point Officer Jacobs told him not to reach for his waistband. (See id. at 2:15.) Hood told Officer Jacobs that the bulge in the front of his pants was his penis. (See id. at 2:17.) He again indicated that his house was right across the street, and Officer Jacobs replied that he understood Hood wanted to go to his house. (See id. at 2:19.) At the same time, in the background of Officer Jacobs’ video—behind Hood—the first GRU car can be seen going into reverse and making a right turn onto Foote Street.
When Hood again repeated that Officer Jacobs did not have consent to search him, Officer Jacobs responded that he did not want his consent for a search, he just wanted to know what was in the front of Hood‘s pants. (See id. at 2:23.) Hood indicated that he was going to keep walking to his house, and again said that the bulge in his pants was his penis. (See id. at 2:26.)
Hood continued backing towards the cars parked on the left side of the street, at which time the officers handcuffed him. (See id. at 2:57.) One of the officers (possibly Officer Jacobs) can be heard telling Hood to stop, to which he replied he wasn‘t doing anything. (See id. at 2:58.) At 3:03, a transmission was broadcast over the radio by one of the officers—either Joseph or Murrell saying “1-800“; at the hearing, Officer Jacobs testified that this is what their squad radioed whenever they found a gun. (See Jan. 10 Tr.) When an officer looked into Hood‘s pants, he identified the gun as a loaded Glock with an extended magazine. (See Video at 3:50.)
ANALYSIS
I. LEGAL STANDARDS
The
An individual is seized only when an “officer, by means of physical force or show of authority, has in some way restrained [his] liberty.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “Whether police action amounts to a ‘show of authority’ requires a 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)). Factors a court must consider in deciding whether the action was a show of authority 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.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). The D.C. Circuit has also suggested that courts consider “the demeanor of the approaching officer, whether the officer . wore a uniform, and the time and place of the encounter.” United States v. Goddard, 491 F.3d 537, 460 (D.C. Cir. 2007) (internal quotation marks and citations omitted). The test here is not what the particular person seized thought about the encounter, but what “a reasonable man, innocent of any crime, would have thought had he been in the defendant‘s shoes.” Id. As a result, “neither the subjective impressions of the defendant nor the subjective intentions of the officer determine whether a seizure has occurred.” Id.
Once it has been determined that an individual was seized, a court must assess whether the police had constitutional justification for doing so. Under the law announced by the Supreme Court in Terry v. Ohio, a police officer may stop an individual “even if the officer lacks probable cause.” United States v. Smith, 373 F. Supp. 3d 223, 236 (D.D.C. 2019) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Nevertheless, the stop must still “be founded upon reasonable, objective justification.” Gross, 784 F.3d at 786. If an officer has
“When the government conducts an unconstitutional search or seizure, the Court must exclude any evidence obtained as the ‘fruit’ of that search or seizure.” Smith, 373 F. Supp. 3d at 236 (internal quotation marks omitted). While generally the defendant bears the burden of proving he was subjected to an unconstitutional search or seizure, when he is seized or searched without a warrant, as is the case here, “the burden shifts to the government to justify the warrantless arrest or search.” Id. (internal quotation marks omitted).
II. HOOD WAS SEIZED WHEN OFFICER JACOBS TOLD HIM TO “HOLD ON A SEC”
The narrow issue in dispute is when did the police seize Hood. Hood argues that “[t]he officers’ initial interaction with Mr. Hood was so overpowering” that he was seized at the time Officers Jacobs and Torres exited their vehicle and Officer Jacobs told him to “hold on a sec.” (See Def. Mot. at 4.) The government, on the other hand, argues that Hood was not seized until, at the earliest, Officer Jacobs told Hood to “stop backing away” and Hood stopped. (See Gov‘t Supp. Br. at 1 [ECF 25].)
The Court acknowledges that this is an extremely close question. As noted above, a seizure occurs as a result of a “show of authority,” when “a reasonable person would not have believed he was free to leave.” United States v. Gibson, 366 F. Supp. 3d 14, 28 (D.D.C. 2018). Like Gibson, another decision from this Court, the officers engaging Hood were “in an unmarked vehicle late at night while wearing tactical vests.” Id. They quickly exited their vehicle, with guns and handcuffs showing and wearing identifiable MPD vests and badges. (See Jan. 10 Tr.) Furthermore, Officer Torres shone a flashlight at Hood upon exiting his car, the use of which was also deemed probative in Gibson. See Gibson, 366 F. Supp. 3d at 28 (finding a seizure when a police vehicle “pulled up next to [the defendant], . . . immediately shined a bright flashlight at him, and issued two, successive directives“). And Officer Jacobs is gesturing with his arms at Hood from the moment he exits the car, although he did not touch the defendant or restrict his movement. (See Video at 2:02.)
The characterization of the language used by Officer Jacobs is significant. It is well-settled 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). However, Officer Jacobs’ initial statement to Hood was not phrased as a question or a request, but as a statement. And there is little discernable difference between the phrase “hold on a sec” and “stop“—both command that the target stop moving. The Court recognizes that Officer Jacobs’ tone when he said “hold on a sec” was conversational. (See Video at 2:02.) But Officer Jacobs’ words to Hood—as he was being approached late at night by two armed police officers—conveyed the message that Hood was not free to leave. While Officer Jacobs testified at the hearing that he had only been instructed
“[R]ather 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. But playing the odds is not the same thing as reasonable suspicion.”
Gross, 784 F.3d at 789 (Brown, J., concurring) (citations omitted).
The government argues in the alternative that if “hold on a sec” constituted a “show of authority,” Hood cannot rely on that show of authority because he did not submit. (See Gov‘t Supp. Br. at 3 (citing California v. Hodari D., 499 U.S. 621 (1991)).) The Court rejects this line of attack based on its review of Officer Jacobs’ body-worn camera footage. While Hood took several steps after being told to “hold on a sec,” he clearly stopped and turned to face the officers almost immediately after Jacobs’ first statement. Prior to being stopped, he was crossing from the north to the south side of Foote Street, and by the time he stopped walking he was still in front of the police car, which had stopped in the right lane of traffic. (See Video at 2:02–2:12.) Upon Officer Jacobs’ approach, Hood took another several steps back, but after Officer Jacobs’ command to “stop backing away,” he promptly stopped. (See id. at 2:10–2:14.)
These several steps are insufficient to constitute a refusal to submit to the officers’ show of authority. It is not equivalent, for example, to the headlong flight that is described as the paradigm of non-submissiveness in California v. Hodari D. See 499 U.S. at 626 (“[The word ‘seizure‘] does not remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure.“). Considering the totality of the circumstances, the Court concludes that Hood‘s actions are consistent with those of an individual who understood himself to be unable to leave. See Castle, 825 F.3d at 634 (concluding that defendant who walked further after being told to “hold on” by a police officer was nonetheless seized, as he was still “exhibit[ing] complete submission“); see also Brendlin v. California, 551 U.S. 249, 262 (2007) (“[W]hat 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.“).
III. THE POLICE DID NOT HAVE REASONABLE SUSPICION AT THE TIME OF HOOD‘S SEIZURE
Having concluded that Hood was seized for
Officer Jacobs told Hood to “hold on a sec” while he was exiting the passenger side of the police vehicle; it was not until several seconds later that the officers observed the bulge in Hood‘s pants, which the Court agrees would have provided sufficient support for a finding of reasonable suspicion. According to the government, however, there was nonetheless reasonable suspicion before that time based on the following facts: “the defendant was walking around in a high crime area, blading his body away from the view of officers, while putting his hands up unsolicited.” (Gov‘t Supp. Br. at 4.) Upon review of the body-worn camera footage, the Court cannot agree with this characterization. First, it does not appear that Hood was in fact “blading” his body away, at least not at the time Officer Jacobs stopped him. (See Video at 2:02.) To the contrary, the positioning of his body seems consistent with an individual who was crossing a street at a diagonal from north to south. Next, the street on which Hood was walking was residential; it was also the street on which he lived. Although the “the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis,” Illinois v. Wardlow, 528 U.S. 119, 124 (2000), this factor cannot bear the weight the government assigns it. Lastly, Hood‘s decision to put his hands up unsolicited is hardly surprising, given how the GRU operates in neighborhoods such as his—i.e., essentially as a “rolling roadblock,” see Gross, 784 F.3d at 789 (Brown, J., concurring), trawling the streets and asking to see individual‘s waistbands. See, e.g., Gibson, 366 F. Supp. 3d at 24 (describing how, at the direction of the GRU, defendant “raise[d] both hands in the air with his palms facing the MPD officers at about head height“); see also United States v. Meekins, 2019 WL 3802944, at *1 (D.D.C. Aug. 13, 2019) (officers drove up next to defendant and said “Do you mind showing me your waistband?“); United States v. Jones, 142 F. Supp. 3d 49, 53 (D.D.C. 2015) (officer approached and asked men if they had weapons, then “asked if he could see the men‘s waistbands“).
Other factors suggested by the government do not alter this conclusion. For example, the government—citing Wardlow—argues that “an ‘act of evasion[]’ [is] ‘certainly suggestive’ of criminal activity.” (Gov‘t Supp. Br. at 4.) However, there is no evidence that Hood attempted to evade the officers, nor are there any furtive gestures, two telltale signs used by the police to justify a stop. And while the government cites the “late hour” (id. at 5), the Court cannot conclude that the hour (11:30 p.m.) is suggestive of criminality. Lastly, although Hood‘s choice to “say without any prompting that he was going home” upon his first encounter with the police (id. at 4) may not be typical, Officer Jacobs did not know at the time Hood was seized what exactly Hood had told the officers in the other car. No officer had seen the bulge when Officer Jacobs told Hood to “hold on a sec” and he had not done anything to give the officers a “reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.‘” Sokolow, 490 U.S. at 7. For these reasons, the Court concludes that Hood‘s seizure was unlawful.
IV. THE DOCTRINE OF INEVITABLE DISCOVERY DOES NOT APPLY
Lastly, the government argues that “even if the Court finds that there
CONCLUSION
For the foregoing reasons, the Court concludes that (1) the police “seized” Hood, for purposes of the
Date: January 21, 2020
ELLEN S. HUVELLE
United States District Judge