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United States v. Gibson

United States District Court, District of Columbia

December 21, 2018

UNITED STATES OF AMERICA,
v.
MARK A. GIBSON, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan, United States District Judge

         I. Introduction

         On 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.

         Pending 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 GRANTED.

         II. Background

         On 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 waistband.

         A. Undisputed Facts

         On 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).[1] 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.

         At 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.

         The 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.

         B. Officer Hiller's Testimony

         Officer 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.'”).

         Officer Hiller originally attested in the Gerstein Report[2] 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.

         Officer 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.

         The 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.

         C. Mr. Gibson's Testimony

         Mr. 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.

         Mr. 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.

         After 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.

         The 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.[3] Id. at 84-85.

         III. Standard of Review

         Mr. 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.

         “When 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 the ...


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