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 ...