United States v. Hood, Criminal No. 19-cr-315 (ESH)

435 F.Supp.3d 1

UNITED STATES of America

v.Deshawn HOOD, Defendant.

Criminal No. 19-cr-315 (ESH)

United States District Court, District of Columbia.

Signed January 21, 2020

Steven B. Wasserman, Vivian Kim, Lisa N. Walters, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Howard Bernard Katzoff, Law Offices of Howard Katzoff, Washington, DC, Michael Edward Lawlor, Nicholas George Madiou, Brennan, McKenna & Lawlor, Chartered, Greenbelt, MD, for Defendant.

MEMORANDUM OPINION

ELLEN S. HUVELLE, United States District Judge

Defendant Deshawn Hood has been charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On November 22, 2019, Hood moved to suppress evidence seized following the September 16, 2019 police stop that led to his arrest and the charge in this case. (See Mot. to Suppress [ECF 19].) He argues that since the police lacked a reasonable, articulable suspicion to suspect him of a crime, the stop violated the Fourth Amendment and any evidence seized as a result must be suppressed. (See id. ; see also Def.’s Supp. Br. [ECF 26].)

An evidentiary hearing and argument were held on this motion on January 10 and 14, 2020. For the reasons stated herein, Hood’s motion will be granted, and the evidence seized following his unconstitutional stop will be suppressed.

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 42^nd 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 42^nd 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 arm. (See Gov't Ex. 1A ("Video") at 2:02.⁶ ) Although his tone was conversational, he did not explain why he was telling Hood to hold on. (See Jan. 10 Tr.) He continued around the front of the police car and approached Hood, whose hands remained in the air. Although Officer Jacobs was wearing a vest with the word "police" prominently displayed on the vest, he did not draw his gun and his partner had not activated the siren or the lights on top of the car. Hood can be heard saying repeatedly that the police "did not have consent to search [him]." (See Video at 2:03.) At the same time, outside of the view of the camera, Officer Torres had also exited the vehicle. (See Jan. 10 Tr.) Hood took several steps while Officer Jacobs approached, going several feet further into the middle of the street and in front of the police car. (See Video at 2:05.) After taking these several steps, and as the distance between him and Officer Jacobs narrowed, Hood stopped walking and stood still with his hands held in the air. He repeated that Officer Jacobs did not have consent to search him and indicated that he was going to his house. (See id. at 2:09.)

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.)

At approximately 2:30, several more police officers exited the other GRU vehicle and began walking towards Hood. By 2:38, one of the other officers had walked up and also indicated that they just wanted to know what was in the front of his pants. (See id. at 2:38.) By this time, Hood was surrounded by at least five police officers. (See id. at 2:45.)

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 Fourth Amendment guarantees the "right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. "But not all interactions between police officers and citizens amount to a ‘seizure’ for Fourth Amendment purposes." United States v. Gross , 784 F.3d 784, 786 (D.C. Cir. 2015).

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 100 S.Ct. 1870, 64 L.Ed.2d 497 (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, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ). Nevertheless, the stop must still "be founded upon reasonable, objective justification." Gross , 784...