United States District Court, District of Columbia
G. Sullivan, United States District Judge
April 2, 2018 at approximately 11:48 p.m., defendant Mark
Gibson was walking home from the bus stop. As he was walking
east on Galen Street at the intersection of 16th Street and
Galen Street Southeast in the District of Columbia, four
Metropolitan Police Department Gun Recovery Unit Officers
(“MPD officers” or “officers”) were
patrolling in the same area, seeking to recover firearms.
After a brief encounter between the officers and Mr.
Gibson-the details of which are disputed-Mr. Gibson fled. He
was caught, arrested, searched, and found to be in possession
of cocaine base and a firearm. Thereafter, Mr. Gibson was
indicted on three counts: (1) unlawful possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g);
(2) unlawful possession with intent to distribute cocaine
base in violation of 21 U.S.C. § 841; and (3) possessing
a firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c). See
Indictment, ECF No. 1.
before the Court is Mr. Gibson's motion to suppress all
tangible evidence. See ECF No. 6. Mr. Gibson argues
that he was unlawfully seized in violation of the Fourth
Amendment of the United States Constitution when the MPD
Officers approached him and ordered him to show his waistband
and lift his jacket. The Court held evidentiary hearings on
September 17, 2018 and September 20, 2018, at which both MPD
Officer Matthew Hiller (“Officer Hiller”) and Mr.
Gibson testified. As explained fully below, the Court credits
Mr. Gibson's testimony and finds that the government has
not met its burden to establish that the seizure was lawful.
Accordingly, after careful consideration of Mr. Gibson's
motion, the responses and supplemental responses, the replies
and supplemental replies thereto, the evidence presented at
the evidentiary hearings, and the oral arguments made at the
September 25, 2018 and October 10, 2018 motion hearings, Mr.
Gibson's motion to suppress all tangible evidence is
April 24, 2018, Mr. Gibson was indicted for: (1) unlawfully
and knowingly possessing a Taurus .40 caliber semiautomatic
pistol as a felon; (2) knowingly and intentionally possessing
cocaine base; and (3) knowingly possessing a firearm in
furtherance of a drug trafficking offense. Indictment, ECF
No. 1. During the September 17, 2018 and September 20, 2018
evidentiary hearings, the Court viewed the relevant body-worn
camera footage. Officer Hiller and Mr. Gibson also testified
about the circumstances leading to Mr. Gibson's arrest.
Their respective testimony conflicts on the critical question
upon which resolution of this motion depends-namely, whether
one of the MPD officers ordered Mr. Gibson to show his
April 2, 2018 four MPD officers-all members of the Gun
Recovery Unit-patrolled the Seventh District, seeking to
recover firearms in a “high-crime area.”
See Mot. Hr'g Tr. (“Sept. 17 Tr.”),
ECF No. 16 at 15-16 (Sept. 17, 2018). The officers were riding in
an unmarked car and all wore tactical vests marked
“POLICE” in large letters on the front and back.
Id. at 12-13; Gov't's Exs. 1-A, 1-B, 3.
Officer John Wright drove the vehicle, while Officer Hiller
sat in the front passenger seat, and Officers Matthew Mancini
and Merissa McCaw sat in the back seat. Sept. 17 Tr., ECF No.
16 at 12-13.
approximately 11:48 p.m., the MPD officers encountered Mr.
Gibson as he walked east on Galen Street at the intersection
of 16th Street and Galen Street Southeast. Sept. 17 Tr., ECF
No. 16 at 17; Mot. Hr'g Tr. (“Sept. 20 Tr.”),
ECF No. 17 at 46 (Sept. 20, 2018). Mr. Gibson had been
walking home from a bus stop after visiting a friend's
house. Sept. 20 Tr., ECF No. 17 at 45-46.
officers drove alongside Mr. Gibson as he walked on the
sidewalk. Officer Wright slowed down, pointed a flashlight at
Mr. Gibson, greeted Mr. Gibson, and identified himself as a
police officer. See Sept. 17 Tr., ECF No. 16 at 18;
see also Sept. 20 Tr., ECF No. 17 at 49-50;
Def.'s Exs. 3, 4. The parties agree that Officer Wright
first asked Mr. Gibson whether he had a firearm on him and
Mr. Gibson responded that he did not. Sept. 17 Tr., ECF No.
16 at 17-18; Sept. 20 Tr., ECF No. 17 at 49-50. From here,
the testimony diverges; the different versions of the events
are discussed below.
Officer Hiller's Testimony
Hiller testified that, after Mr. Gibson stated that he did
not have a gun, the MPD officers continued to drive alongside
Mr. Gibson. See Sept. 17 Tr., ECF No. 16 at 18.
Officer Hiller initially testified that Officer Wright asked
Mr. Gibson “if he minded showing us his
waistband.” Id. Officer Hiller later hedged
this answer, testifying that Officer Wright said
“something almost exactly to that effect.”
Id. at 56. On cross-examination, however, Officer
Hiller could not confirm the “exact words used.”
Id. at 89. While Officer Hiller could not recall the
exact words used, he testified that he had “never
heard” Officer Wright “demand to see
somebody's waistband.” Id. at 89.
According to Officer Hiller, Officer Wright's tone and
demeanor was “conversational.” Id. at
18, 39, 111-12. Officer Hiller stated that Mr. Gibson again
denied having a weapon. Id. at 18 (“Mr. Gibson
again replied, ‘I ain't got no guns. I ain't
got no guns.'”).
Hiller originally attested in the Gerstein
Report he prepared that Mr. Gibson had his hands
in his jacket pockets throughout this encounter. Id.
at 58-59, 63-66; Def.'s Ex. 1, ECF No. 13-1
(“Officer Wright asked Mr. [Gibson] if he could see his
waistband and Mr. [Gibson] repeated ‘I ain't got no
guns, I ain't got no guns' keeping his hands in his
jacket pockets”). Moreover, Officer Hiller did not
mention Mr. Gibson's hands in his narrative testimony on
direct examination. See Sept. 17 Tr., ECF No. 16 at
17-20. However, Officer Hiller agreed on cross-examination,
after watching the body-worn camera footage, that Mr. Gibson
raised his hands in the air with his palms facing the
officers during the encounter. Id. at 62, 70-71.
Officer Hiller further testified that he could not remember
Mr. Gibson raising his hands in the air or why Mr. Gibson had
raised his hands. Id. at 70-71, 75-76.
Hiller testified that, after Mr. Gibson denied having a
weapon for the second time, Officer Wright “pulled
forward a little bit” and Mr. Gibson “kind of
stopped, turned back towards 16th Street and ran back down
towards 16th Street where he was originally seen coming
from.” Id. at 19. Once Mr. Gibson fled,
Officers Mancini and Hiller pursued him on foot. Id.
at 20-21. Shortly thereafter, Mr. Gibson “lost his
footing” and fell to the ground. Id. at 21.
Officer Hiller testified that a firearm fell and landed on
the ground near Mr. Gibson. Id.; see also
Id. at 26 (“the gun fell out”). At that
time, Mr. Gibson was arrested and searched. See Id.
at 22. The MPD officers found plastic bags containing a
substance that tested positive for cocaine base.
Id.; Gov't's Exs. 4, 6-10; Sept. 20 Tr., ECF
No. 17 at 52.
parties agree that all four MPD officers remained in the car
until Mr. Gibson began to run. Sept. 17 Tr., ECF No. 16 at
38; see also Sept. 20 Tr., ECF No. 17 at 64. The
parties also agree that Officer Wright was the only officer
who spoke to Mr. Gibson. Sept. 17 Tr., ECF No. 16 at 39-40;
see also Sept. 20 Tr., ECF No. 17 at 60. Finally,
the parties agree that none of the MPD officers drew or
displayed their weapons. Sept. 17 Tr., ECF No. 16 at 19;
see also Sept. 20 Tr., ECF No. 17 at 61.
Mr. Gibson's Testimony
Gibson also testified at the evidentiary hearing. His account
of the April 2, 2018 encounter differs from Officer
Hiller's testimony in one crucial respect.
Gibson agreed that he had been walking home when the four MPD
officers pulled up beside him in an unmarked car. Sept. 20
Tr., ECF No. 17 at 45, 48-49. He agrees that Officer Wright
pointed a flashlight at him, greeted him, and asked if he had
a weapon. Id. at 49-50. However, Mr. Gibson disputed
that Officer Wright then asked to see his waistband. Instead,
Mr. Gibson testified that Officer Wright ordered “let
me see your waistband.” Id. at 50. In
response, Mr. Gibson raised both hands in the air with his
palms facing the officers, as Officer Hiller agreed the
body-worn camera footage showed. See Gov't's
Ex. 1-B. Mr. Gibson testified that he raised his arms
“because they told [him] to let them see [his]
waistband.” Sept. 20 Tr., ECF No. 17 at 51.
Mr. Gibson raised his arms, he testified that Officer Wright
responded by saying “lift your jacket.”
Id. At that time, Mr. Gibson testified that he
turned and fled because he knew he had contraband and was
scared to get in trouble. Id. at 51-52. He agreed he
fell while attempting to evade the officers chasing him; the
firearm fell out of his waistband. Id. at 52.
Court's task is to determine what Officer Wright said to
Mr. Gibson before he fled. Unfortunately, this determination
cannot be made from the best evidence available: the
body-worn camera footage. There is no audio available of the
encounter because none of the four MPD officers activated
their cameras when they came into contact with Mr. Gibson.
The officers only activated their body-worn cameras when they
began to pursue Mr. Gibson on foot. Sept. 17 Tr., ECF No. 16
at 141; Gov't's Exs. 1-A, 1-B. The Court is able to
see the encounter, even though the MPD officers did not
activate their body-worn cameras, because the cameras store
visual footage for the two minutes preceding the moment that
the cameras are activated. The camera does not store the
audio for those two minutes. Sept. 17 Tr., ECF No. 16 at 7-8,
14. Therefore, the Court is able to view the short encounter
between the MPD officers and Mr. Gibson but is unable to hear
the dialogue. The officers' failure to activate their
body-worn cameras upon encountering Mr. Gibson was a
violation of MPD regulations. Id. at 84-85.
Standard of Review
Gibson argues that the tangible evidence recovered on April
2, 2018 must be suppressed because the MPD officers seized
him without probable cause or reasonable suspicion in
violation of the Fourth Amendment. See Def.'s
Mot. to Suppress (“Def.'s Mot.”), ECF No. 6.
the government conducts an unconstitutional search or
seizure, the Court must exclude any evidence obtained as the
‘fruit' of that search or seizure.”
United States v. Sheffield,799 F.Supp.2d 22, 28
(D.D.C. 2011)(citing Wong Sun v. United States, 371
U.S. 471, 484 (1963)). Typically, “[t]he proponent of a
motion to suppress has the burden of establishing that his
own Fourth Amendment rights were violated by the challenged
search or seizure.” Rakas v. Illinois, 439
U.S. 128, 130 n.1 (1978)(citations omitted). However,
“[w]hen a defendant establishes that he was arrested or
subjected to a search without a warrant, ” as is
undisputedly the case here, “the burden then shifts to