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United States v. Miller

United States District Court, District of Columbia

November 11, 2016



          KETANJI BROWN JACKSON United States District Judge.

         Defendant Antoine Miller has been charged with one count of Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1). (See Indictment, ECF No. 1 at l.)[1] Before this Court at present is Miller's motion to suppress the gun and the ammunition that were recovered during his arrest. (See Def 's Mot to Suppress Physical Evid ("Def 's Mot "), ECF No. 7.) Miller contends that he was unlawfully seized in violation of the Fourth Amendment when officers in the Metropolitan Police Department ("MPD") Gun Recovery Unit approached him in an unmarked vehicle while he was walking down the sidewalk and repeatedly asked him whether or not he was carrying a gun. (Id. at 4.)

         On October 12, 2016, this Court held an evidentiary hearing regarding Miller's motion to suppress, during which Officers Matthew Hiller and John Wright of the MPD testified to the events surrounding Miller's arrest. Miller also testified at the evidentiary hearing; he provided an account of the events leading up to his arrest that directly contradicted the testimony of Officers Hiller and Wright. As explained fully below, this Court credits the testimony of Officers Hiller and Wright, and as a result, concludes that Miller was not seized for the purpose of the Fourth Amendment when the officers approached him and asked whether he was carrying a gun. Moreover, under binding precedents from the D.C. Circuit, it is clear that a Fourth Amendment seizure occurred only when Officer Hiller physically restrained and arrested Miller following Miller's admission that he had a gun, and at that point, Officer Hiller plainly had probable cause to justify Miller's arrest. Accordingly, Miller's motion to suppress the gun and ammunition is DENIED.

         I. BACKGROUND On April 26, 2016, a grand jury in the U.S. District Court for the District of Columbia indicted Defendant Antoine Miller of one count of being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See generally Indictment.) According to the indictment, Miller had “unlawfully and knowingly” possessed a .40 caliber semiautomatic Smith & Wesson pistol and .40 caliber ammunition on or about March 31, 2016. (Id. at 1.) During the evidentiary hearing that this Court held regarding Miller's motion to suppress, the law enforcement officers who were involved in Miller's arrest testified about the circumstances leading up to their discovery of the weapon, and Miller also testified to facts that contradicted the officers' testimony in several respects. The different versions of the events preceding Miller's arrest are as follows.

         A. Arrest-Related Facts Attested To By Officers Hiller And Wright

         At approximately 9:53 PM on March 31, 2016, Officer Matthew Hiller, Officer John Wright, and Detective Kirk Delpo of the MPD Narcotics and Special Investigation Division Gun Recovery Unit were patrolling the Seventh District in the District of Columbia. (See Oct. 12, 2016 Suppression Hr'g Tr. (“Hr'g Tr.”), at 13:4-23, 14:13-22; Gov't Opp'n to Def.'s Mot. to Suppress (“Gov't Opp'n”), ECF No. 8, at 1.) The Gun Recovery Unit, which is tasked with recovering illegal firearms in Washington, D.C., had been dispatched to the Seventh District due to recent spikes in violent crime and gun activity in that area. (See Hr'g Tr. at 12:20-21, 14:16-18.) The three officers rode in an unmarked gray Ford Explorer, and Officer Wright-to whom the vehicle had been assigned-was driving. (See Id. at 14:1-8, 111:16-17, 117:8-11.) Officer Hiller was located in the front passenger seat, and Detective Delpo was situated in the back seat. (See Id. at 14:7-12, 112:5-11.) All three officers wore tactical vests bearing the word “Police” in white block lettering on the front and back. (See Id. at 14:2-4, 16:10-14.) Officers Hiller and Wright wore casual attire underneath their tactical vests, while Detective Delpo wore an MPD shirt with a badge underneath his vest. (See Id. at 14:2-4, 45:7-14.)[2]

         While driving northbound on the 4600 block of Livingston Road, Southeast, the officers observed Miller and another individual walking southbound on the sidewalk while apparently engaged in a conversation. (See Id. at 14:19-21, 15:16-19, 22:14-16, 56:8-12.) Consistent with his standard practice, Officer Wright slowed the car, pulled up alongside the two individuals, identified himself as police, and asked the two men if they were carrying any firearms. (See Id. at 16:24-17:10, 113:9-10, 119:1-5.) Officer Hiller testified that, in response to Officer Wright's question, Miller replied, “no, ” and then turned his body away from the police vehicle and lifted the back of his vest jacket to reveal his rear waistband. (Id. at 17:12-14 (testimony of Officer Hiller); see also Id. at 18:14-21.) The second individual lowered his head and continued walking along the sidewalk at a faster pace. (See Id. at 17:14-16.)

         While still seated in the vehicle, Officer Wright then called out to the second individual to ask if he was carrying any firearms. (See Id. at 18:24-19:1.) According to Officer Hiller's testimony, in response to this question directed at the second individual, Miller “turned around almost frantically . . . and showed the back of his waistband again, ” while repeatedly stating “no.” (Id. at 19:2-4 (testimony of Officer Hiller).) After Miller revealed his rear waistband in this manner, he then continued to walk in the direction of the second individual. (See Id. at 23:14-15.)

         Officer Hiller testified that, based on Miller's frantic demeanor and “strange” mannerisms, as well as the second individual's avoidant behavior, he and Detective Delpo decided to exit the vehicle to speak further with the two men. (Id. at 24:2-7 (testimony of Officer Hiller); see also Id. at 68:4-7.) Officer Hiller approached Miller, while Detective Delpo approached the second individual, who was standing approximately 20 feet away from Miller at this point. (See Id. at 25:2-8.) Officer Wright remained in the unmarked vehicle. (See Id. at 25:9-14.)

         Upon exiting the vehicle, Officer Hiller walked toward Miller and asked, “Hey man can I talk to you?” (Gov't Opp'n at 2; see also Hr'g Tr. at 61:8-11 (“Q: Okay. And you said at that point you called out to Mr. Miller saying, Hey, can I talk to you or something like that; is that right? A. Correct.”) (testimony of Officer Hiller).) Officer Hiller's firearm was visible in his right hip holster but was not drawn. (See Hr'g Tr. at 24:8-10, 61:12-22.) In response to Officer Hiller's question, Miller stopped walking, turned around to face Officer Hiller, and began walking toward Officer Hiller with a nervous look on his face. (See Id. at 24:18-19, 25:23-24.) Officer Hiller then calmly asked, “Hey, man, do you have any firearms on you?” (Id. at 27:13-14 (testimony of Officer Hiller); see also Id. at 24:11-12.)

         In response to this second question from Officer Hiller, Miller turned away from Officer Hiller to face the wrought-iron fence that was beside the sidewalk, and again lifted the back of his jacket to reveal his rear waistband. (See Id. at 27:15-18.) Officer Hiller testified that he did not instruct Miller to turn toward the fence in this manner. (See Id. at 28:19-23.) Officer Hiller then asked, “What about the front of your waistband?” (Id. at 30:23-24 (testimony of Officer Hiller).) In response, Miller grasped the wrought iron fence with both hands, and mumbled something that, according to Officer Hiller, could not be understood. (See Id. at 30:24-25, 32:1-2.) Officer Hiller explained that he could not hear Miller, who was still facing away from Officer Hiller at this point. (See Id. at 32:20-21.) Miller again replied by mumbling something that Officer Hiller could not understand. (See Id. at 32:23-24.) Officer Hiller then asked Miller to turn around, stating, “We're both men, we can talk face-to-face.” (Id. at 33:14-16 (testimony of Officer Hiller).) In response, Miller turned around to face Officer Hiller with a “nervous” and “frantic” look on his face. (Id. at 34:23-24 (testimony of Officer Hiller).) While the two men stood face-to-face, Officer Hiller again asked whether Miller had a gun. (See Id. at 34:24-35:1.) At this point, Miller exclaimed, “I have one[!] I've been telling you I have one. Just take it, you can have it, you can have it, just take it.” (Id. at 35:2-4 (testimony of Officer Hiller).)

         Upon hearing Miller's admission that he had a gun in his possession, Officer Hiller immediately placed Miller into a “bear hug, ” which is a maneuver whereby the officer places his arms under the suspect's shoulders and around his body in order to raise his arms upwards and thereby prevent the suspect from accessing the firearm. (Id. at 36:10-13, 37:24-25.) Officer Hiller then called out a code word to the other officers, indicating the presence of a firearm, and Detective Delpo ran over to assist Officer Hiller in placing Miller in handcuffs and under arrest. (See Id. at 37:5-7.)

         At this point, Officer Wright-who had been turning the car around in order to secure the perimeter during the period in which Officer Hiller and Detective Delpo were talking to Miller and his acquaintance-exited the car to assist Officer Hiller and Detective Delpo. (See Id. at 120:20-23, 114:15-18.) Once Miller was placed under arrest, the three officers called for a crime scene search officer to remove and process the firearm that Miller had referenced. (See Id. at 53:8-25.) The crime scene search officer arrived approximately five minutes later, and removed a .40 caliber Smith & Wesson semi-automatic handgun from Miller's front waistband. (See Id. at 50:12-21, 53:16-25.) The handgun magazine was loaded with nine rounds of ammunition. (See Id. at 50:22-25, 51:9-10.)

         B. Arrest-Related Facts That Miller Asserted During The Hearing

         Miller also testified at the evidentiary hearing, and he provided an account of the March 31st encounter that differs from that of the officers in five notable respects. First, Miller testified that, in addition to asking whether he had a firearm, the MPD officer specifically asked Miller and his companion an additional question from inside the vehicle: “Can we see your waistbands?” (Id. at 75:19-76:5.) Miller testified that he lifted his jacket to reveal his rear waistband in response to this question. (See Id. at 76:5-6, 100:24-101:3.)

         Second, and more fundamentally, Miller testified that Officer Hiller was not the officer who approached him on the sidewalk, and in fact, Miller asserted that the entire conversation that Officer Hiller recounted in detail while on the stand-testimony that Miller heard-actually never occurred. (See Id. at 83:21-25, 107:22-108:11.) Miller maintained that it was the two other officers (Officer Wright and Detective Delpo) who exited the car and spoke with Miller on the sidewalk prior to his arrest. (See Id. at 77:4-10, 78:1-4, 107:8-9.) In other words, despite the account that Officers Hiller and Wright consistently testified to, Miller claimed that not one, but two, MPD officers approached him on the sidewalk, and that neither officer was Officer Hiller. (See Id. at 107:1-108:11.) Miller explained that he specifically recalled that Officer Wright approached him because Officer Wright had a distinctive beard. (See Id. at 78:2-4, 80:1-9, 81: 5-21.)

         The third key difference between Miller's testimony and the officers' testimony was the manner in which Miller characterized the initial statement that one of the officers made to him upon exiting the vehicle. Miller testified that when the two officers exited the unmarked vehicle and approached him, one officer said, “You two, hold up for a second[, ]” or “You two stop for a second, hold up for a second[, ]” rather than “Hey man can I talk to you?” (Id. at 102:24-103:1, 106:8-9.) Miller did not specify which officer allegedly made this statement. (See Id. at 102:24-25.) Miller also testified that Officer Wright and Detective Delpo ordered him to turn toward the ...

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