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United States v. Gorham

United States District Court, District of Columbia

August 5, 2018

UNITED STATES OF AMERICA,
v.
STEVEN GORHAM, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Steven Gorham's motion to suppress physical evidence and statements. Dkt. 5. The relevant events occurred on December 4, 2017, when two Metropolitan Police Department ("MPD") officers approached Gorham at the Woodland Terrace apartment complex. At first Gorham ignored them, looking instead at his cell phone, but, as soon as one of the officers addressed him, Gorham fled. After a brief chase, an officer tackled him. Seconds later, another officer frisked Gorham while he was still pinned on the ground, and that frisk revealed a handgun. Based on that evidence and evidence that Gorham had a prior felony conviction, Gorham is charged with one count of violating 18 U.S.C. § 922(g)(1). He moves to suppress the gun and statements that he made after the police caught him, arguing that the officers lacked reasonable suspicion to seize and to frisk him. For the reasons explained below, the Court will DENY the motion to suppress.

         I. BACKGROUND

         The Court has reviewed Defendant's motion, Dkt. 5, the government's opposition, Dkt. 6, the government's supplemental brief, Dkt. 14, and Gorham's response to the government's supplemental brief, Dkt. 20. The Court held an evidentiary hearing on April 16, 2018, see Minute Entry (Apr. 16, 2018), and heard oral argument on May 18, 2018, see Minute Entry (May 18, 2018). A further evidentiary hearing was held on June 7, 2018, to hear from the officer who frisked Gorham, see Minute Order (May 21, 2018); Minute Entry (June 7, 2018), and the Court heard further oral argument on June 29, 2018, see Minute Entry (June 29, 2018). Cornel Kelemen, one of the MPD officers present at Gorham's arrest, testified at the initial evidentiary hearing and footage from his body-worn camera was admitted into evidence as Government's Exhibit 1. Footage from the body-worn camera of Officer Artavius Williams was introduced into evidence as Government's Exhibit 2. Minute Order (June 8, 2018). Officer Michael Moshier, who frisked Gorham, testified at the June 7, 2018 hearing. Minute Entry (June 7, 2018). Footage from his body-worn camera was introduced into evidence as Government's Exhibit 6. Where not otherwise noted, the facts described below are derived from the Court's review of the body-worn camera videos.

         On December 4, 2017, Kelemen and three other MPD officers were on patrol near the 2300 block of Ainger Place, S.E., in the District of Columbia. Dkt. 22 at 19. All were members of the MPD's Seventh District Crime Suppression Team, Dkt. 5 at 2, a specialized unit that does not answer radio calls but, instead, goes "to areas that have higher call volume, that have citizen complaints for drug activity, things like that." Dkt. 22 at 5. Members of the team receive additional training, including in identifying armed individuals. Id. at 6. On the afternoon of December 4, the four officers drove in a marked police car to Woodland Terrace, a group of apartment buildings located at 2317 Ainger Place, S.E. Dkt. 5 at 2. Each officer was wearing his MPD uniform. Dkt. 22 at 19. The team was responding to "a high number of sounds of gunshots specifically coming from the Woodland [Terrace] area." Id. at 12; id. at 13 (describing a "[n]umerous, numerous number of gunshots"). The gunshots had been identified by an automated system employed by the MPD called "ShotSpotter."[1] Id. at 12.

         Kelemen was sitting in the rear driver's side seat of the car as it approached a courtyard between several apartment buildings. His body-worn camera was on, but nothing meaningful is visible outside the vehicle. A second officer with a body-worn camera, Artavius Williams, was seated in the rear of the car on the passenger's side. Williams's video also shows little of what is occurring outside of the vehicle. Taken together with Kelemen's testimony, however, the Court finds that, as the police car drove slowly down an alley toward the courtyard, the officers "observed a group of individuals"-more than five, less than ten-standing together in the area between the buildings. Id. at 20. As the police car approached the group, "two individuals, one of [whom] was the defendant, . . . br[oke] away from that group and walk[ed] to the left side" of the area as viewed from the officers' perspective. Id. Kelemen and the other officers had never seen or encountered Gorham before, but their attention was drawn to him because, as the officers were "coming up, [Kelemen] didn't see [Gorham's] right hand swinging as hard as his left hand." Id. at 21. Gorham also "picked up a cellphone . . . with his left hand" as the officers approached. Id. Kelemen found "those two characteristics ... a little suspicious" and "traits of an armed gunman or somebody trying to hide something, distract the police officer with a cell phone." Id. at 21-22. The government elsewhere describes Gorham's movements as "blading his body away from the officers" and "walking without swinging his right arm." Dkt. 6 at 2.

         At that point, Kelemen and two of the other officers exited their vehicle. Gorham and a man in a red sweatshirt continued walking away from the group of people toward a concrete path running between several apartment buildings. Gorham had a cellphone in his left hand, which appeared to occupy his attention as the officers approached. He walked slowly away from them. Although it is not clear from the video whether Gorham kept his right arm from swinging as he walked, it does show that his right side was turned away from the officers. Around this time Kelemen and Williams activated their body-worn cameras, triggering the recording of sound and preserving the two minutes of footage that led up to the initial in-person encounter. As the officers drew close to the two men, Gorham's view shifted back and forth between his phone and the police. Kelemen called out, "How're you doing gentlemen? Happy holidays." At that point, Kelemen was only a few feet from Gorham, who stopped and raised his cell phone in his left hand, turning toward Kelemen. Gorham looked up from the phone momentarily, before turning to his right and sprinting away down the concrete walkway. None of the other individuals in the courtyard fled.

         Kelemen and Williams immediately gave chase. They said nothing to Gorham as they followed him at a full run down the pathway and around two apartment buildings. After about thirty seconds, Williams caught Gorham by his hair and pulled him to the ground. Once Gorham was on the ground, Williams handcuffed him with the assistance of Kelemen and the two other members of the patrol, all of whom arrived within a few seconds of Williams pulling Gorham to the ground. Moshier patted Gorham down after he had been handcuffed, and felt a weapon on Gorham's right thigh, inside of his pants. Dkt. 22 at 28-29. The officers loosened Gorham's belt and pulled down that side of his pants, revealing a handgun just below his waist on his right side. As Gorham was being handcuffed, he also said "I've got weed on me," but no drugs were seized. Id. at 29. The police then ran the gun's serial number and Gorham's name through electronic databases, which showed that the gun had been reported stolen and that Gorham had a previous felony conviction. Dkt. 6 at 2. The officers arrested Gorham, who was charged in the D.C. Superior Court on January 10, 2018. On January 22, 2018, Gorham was arraigned in this Court, and, at that time, the D.C. charges were dropped.

         II. ANALYSIS

         Defendant's motion raises three issues. First, he challenges the legality of the seizure of his person, arguing that Officer Williams lacked the reasonable suspicion required to conduct a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). Second, although not set forth as a separate ground for suppression in his motion, Gorham's arguments raise the question of whether the frisk that Moshier conducted after Gorham's seizure was lawful.[2] Third, because Gorham at times describes his motion as seeking to suppress physical evidence and statements, Dkt. 5 at 1; but see Id. at 8 (seeking only "to suppress the firearm recovered on December 4, 2017"); Dkt. 5-1 at 1 (same), the Court considers whether Gorham's statement "I've got weed on me," made after he was seized, should be suppressed.

         A. Seizure

         The parties agree that Terry and Illinois v. Wardlow, 528 U.S. 119 (2000), provide the relevant framework for evaluating whether the MPD officers lawfully seized Gorham. In Terry, the Supreme Court "held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Wardlow, 528 U.S. at 123. An officer making such an investigatory stop, however, "must be able to articulate more than an 'inchoate and unparticularized suspicion or "hunch"' of criminal activity." Id. at 123-24 (quoting Terry, 392 U.S. at 27). The Court in Wardlow applied the standard for reasonable suspicion articulated in Terry to hold that "unprovoked," "[h]eadlong flight" in combination with "presence in an area of expected criminal activity"-elsewhere referred to in the opinion as a "high[-]crime area" or "area of heavy narcotics trafficking"-suffices to justify further investigation through a brief detention. Wardlow, 528 U.S. at 124-26. Because Gorham's flight from the police occurred in a high-crime area, the Court concludes that the seizure of his person did not violate the Fourth Amendment. Each of Gorham's arguments to the contrary is unavailing.

         First, Gorham disputes the characterization of his flight as "unprovoked" because Officer Kelemen was "within two feet of Gorham when he fled. Dkt. 5 at 6. Gorham suggests that he was, in fact, the target of the police's approach and that Kelemen "clearly ha[d] manifested his physical presence and . . . direct[ed] it toward" the defendant. Id. He offers no support for the proposition that such actions somehow prevent the police from drawing the inference approved of by the Supreme Court in Wardlow. Although that opinion does not define what sort of flight falls under the aegis of "unprovoked," the D.C. Circuit has observed that the Supreme Court "str[uck] an explicit contrast between a person's 'right to ignore the police and go about his business' and 'unprovoked flight upon noticing the police.'" United States v. Stubblefield, 820 F.3d 445, 451 (D.C. Cir. 2016) (quoting Wardlow, 528 U.S. at 124-25). The body-worn camera footage in this case reveals nothing unusual or aggressive about the approach of the police officers that would have prevented a reasonable person from continuing to "go about his business." Gorham was free to walk away from the police-as indeed he did at first and the man in the red sweatshirt continued to do-and need not have spoken with them.[3] Conversely, the police were free to approach him and to attempt to engage him in conversation. His decision to sprint away from the officers as soon as one drew close enough to engage in such an exchange was more than "a mere refusal to cooperate" and represents the sort of unexplained, "headlong flight" contemplated by the Supreme Court in Wardlow. See 528 U.S. at 125.

         Second, Gorham asserts that the criminal activity the police have identified as occurring in the area where he was seized is of a different kind than the criminal activity at issue in Wardlow. He offers no legal basis, however, for drawing a distinction between "an area known for heavy narcotics trafficking"-as was the case in Wardlow-and an area suffering from a "recent spate of gun violence"-as was the case here. Dkt. 5 at 5. Nor does the case law support such a distinction. As noted above, the Wardlow Court itself described the area where that defendant was stopped in more general terms. See 528 U.S. at 123 (describing the Illinois state court opinions as referencing a "high[-]crime area"); id. at 124 ("[W]e have previously noted the fact that the stop occurred in a 'high[-]crime area' among the relevant contextual considerations in a Terry analysis."); id. (discussing "presence in an area of expected criminal activity" and "the relevant characteristics of a location"). Lower courts applying the decision, moreover, have held that a high incidence of criminal activity other than narcotics trafficking-such as gun and other violent crimes-can contribute to an officer's reasonable suspicion under the Wardlow test. See, e.g., United States v. Patton, 705 F.3d 734, 738 (7th Cir. 2013) (holding that reasonable suspicion sufficient for an investigatory stop and protective pat down existed, in part, because of "specific and recent indicia of violence, including gun-related violence"); United States v. Young, 707 F.3d 598, 604 (6th Cir. 2012) (describing as "high crime" for purposes of reasonable suspicion analysis an area with a history of only violent crime). The Court, accordingly, rejects Defendant's invitation to draw a categorical distinction between "area[s] known for heavy narcotics trafficking" and areas experiencing high levels of crime involving guns.[4] The Court does, however, consider the type and intensity of past crime in the area when evaluating the reasonableness of the officers' suspicion. See Wardlow, 528 U.S. at 124 (holding that officers need not "ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation"); Young, 707 F.3d at 604 (considering history of crime in an area when evaluating reasonableness of suspicion).

         Third, Gorham contends that the government has failed to present sufficient evidence that the apartment complex where the relevant events occurred was a high-crime area at the time of his flight. At the evidentiary hearing held on April 16, 2018, the government presented two types of evidence in support of its characterization of the apartment complex as a high-crime area. First, it offered the testimony of Officer Kelemen regarding his own experiences in the area as a member of a special crime suppression team. Second, it provided a list of crimes recently committed in the area that Kelemen and another officer assembled using the MPD's database of police reports. Dkt. 22 at 13-14.

         Taken together, the testimony of Officer Kelemen-who patrolled the area on a near daily basis-and the report adequately establish that the apartment complex at issue is a "high- crime area" within the meaning of Wardlow. There is significant narcotics activity in the area, Dkt. 22 at 10-11; the officers in Kelemen's unit frequently recover guns in the area (including two prior recoveries by Kelemen himself), id. at 11; Kelemen has been personally involved in the arrests of more than ten people in the area, id. at 9; gunshots are common in the area, id. at 12-13; and relative to other areas within Kelemen's district, it has a higher than average number of "illegal gun arrests" and amount of gun violence, id. at 11-12. Government's Exhibit Five (as corrected, see Dkt. 13 at 2) supports Kelemen's belief that the vicinity of the apartment complex has experienced a high degree of gun-related crime. In the thirty days preceding Kelemen's interaction with Gorham, there were four reports of gunshots, two reports of bullets striking property, an armed robbery, four assaults involving guns, and two incidents involving possession of unlicensed pistols in the area. See Government's Ex. 5; see also Dkt. 22 at 17-19. Although the government has not offered any detailed comparison of crime in other neighborhoods or areas, the Court notes that on an absolute scale, the amount of crime in the weeks prior to Gorham's seizure was substantial. Indeed, the crime suppression team had been dispatched to the area on the day of Gorham's arrest at least in part because of a recent spate of gunshots. The Court further credits the testimony of Officer Kelemen that the apartment complex stood out among those within his patrol area as a frequent site of gun violence and drug distribution.

         At oral argument, Gorham added a different twist to his argument, noting that the evidence of illegal gun use in the area involved activity occurring at night, while Gorham was seized in the late afternoon. He offers no support, however, for the proposition that the treatment of an area as a "high-crime" area for purposes of Wardlow depends on whether the flight and the past crime occurred around the same time of day. To be sure, time of day can factor into an officer's reasonable suspicion. United States v. Laing,889 F.2d 281, 286 (D.C. Cir. 1989); seealso United States v. Pacheco, 841 F.3d 384, 394 (6th Cir. 2016) (observing that "time of day is relevant without being independently dispositive" to the reasonable suspicion inquiry (internal quotation marks omitted)); United States v. Fager,811 F.3d 381, 386 (10th Cir. 2016) (stating that time of day "can influence an officer's reasonable suspicion"); United States v. Tiong,224 F.3d 1136, 1140 (9th Cir. 2000) (same). But that line of cases speaks to a distinct factor that can, at times, weigh in the totality of circumstances that determine whether there exists reasonable suspicion "that criminal activity is afoot." Wardlow, 528 U.S. at 123. Absent much more than Gorham has offered, however, the time of day does not preclude an officer from reasonably relying on an individual's decision to turn and flee when approached in a high-crime area, even if that criminal activity often occurs (or is often detected) later at night. To hold otherwise would run counter to the approach taken by the D.C. Circuit, see, e.g., Laing, 889 F.2d at 286 (describing "the 'high-crime' nature of the area" and "the time of day" as ...


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