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United States v. Devaugh

United States District Court, District of Columbia

November 12, 2019





         Before the Court is Defendant Richard Devaugh's supplemental motion to suppress evidence, ECF No. 25. The relevant events occurred on January 14, 2019, when Mr. Devaugh was being surveilled by an undercover officer outside Strand Liquors in Northeast Washington, D.C. Based on the undercover officer's observations, a team of responding officers approached Mr. Devaugh, ordered him out of his vehicle, and detained him. Mr. Devaugh moves here to suppress drugs, a weapon, and other evidence obtained during the encounter. For the reasons explained below, the Court will grant the motion to suppress.


         An initial motion to suppress evidence was filed on April 5, 2019. After Mr. Devaugh was appointed new counsel, the Court allowed a round of supplemental briefing and held a suppression hearing on November 4, 2019. At the hearing, the undercover officer (Officer Turner) and one of the responding officers (Officer Love) both testified; the Court found both officers credible and gives their testimony substantial weight.[1] Additionally, body-worn cameras footage from four of the responding officers-Officers Gabster, Gordon, Love, and Lyon-was admitted into evidence.[2] At the close of the hearing, the Court gave the parties the opportunity to provide additional briefing, which they did. As indicated by the citations, the facts below are based on both the officers' testimony at the suppression hearing and the body-worn camera footage.

         Testifying first was Officer Turner, an undercover officer currently assigned to the Narcotics Enforcement Unit of the Metropolitan Police Department (MPD). Suppression Hr'g Tr. (“Tr.”) at 7, ECF No. 36. On January 14, 2019, he was conducting undercover observations from an unmarked vehicle parked on Division Avenue near the intersection with Foote Street, directly across the street from Strand Liquors. Id. at 9-10, 12. He was alone in his vehicle, but a group of other officers, including a so-called “arrest team, ” was working in coordination with him nearby. Id. at 12, 17. According to Officer Turner, this area-near Marvin Gaye Park-was well-known for high levels of drug activity. See Id. at 8 (“So specifically at Division and Foote it's mainly known for heroin, but also crack cocaine, and they do sell marijuana up there.”). Officer Turner had previously been called for “hundreds” of assignments there and had conducted “numerous” controlled purchases in the area. Id.

         While seated in his vehicle around 3:00 p.m., Officer Turner saw someone-later identified as Mr. Devaugh-engage in a hand-to-hand transaction with an alleged buyer while the two were standing near a grey SUV parked nearby on Foote Street. Specifically, the buyer approached Mr. Devaugh, spoke with him briefly, handed him some money, and received in return “some small object or objects, ” which Officer Turner admitted he was unable to identify. Id. at 13-15. The buyer put the object(s) in a napkin, walked down Division Avenue, and entered Strand Liquors. Id. at 15-16. Mr. Devaugh also walked in that same direction, but remained outside the store. Id. at 16.

         After observing the transaction, Officer Turner used his cell phone to call his superior officer, Sergeant Cardinal. Id. at 17. Officer Turner “was giving him updates, lookouts, ” which Sergeant Cardinal was in turn “transmitting to the arrest team” via radio. Id. Officer Turner announced: “Look, I have a drug transaction going down. I have a buyer and a dealer.” Id. He gave descriptions of both individuals and relayed that the buyer had entered the store while the dealer was standing out front. Id.

         At that point, a car travelling down Division Avenue pulled alongside Officer Turner's vehicle and came to a stop. Id. at 17-18. The driver rolled down his window, looked at Mr. Devaugh, and said “[t]he Feds are up the street.” Id. at 18. Mr. Devaugh then walked back to the SUV, a fact which Officer Turner in turn relayed to Sergeant Cardinal. Id. at 19. As Mr. Devaugh was walking to the vehicle, Officer Turner noticed him “adjust[ing] his waistband area several times, ” which suggested to Officer Turner that he was “carrying a weapon or illegal firearm.” Id. Mr. Devaugh entered the driver's side of the vehicle and remained behind the wheel until the arrest team arrived. Id. at 20.

         Officer Love was a member of that arrest team. Id. at 91. As he testified, the team received a radio call from Sergeant Cardinal describing “two individuals that were believed to be involved in a drug transaction.” Id. They responded to the intersection of Foote and Division, where they found Mr. Devaugh seated behind the wheel of the SUV. Id. at 92.

         The actual encounter between Mr. Devaugh and the arrest team was recorded by multiple officers' body cameras. Officer Love's vehicle-an unmarked cruiser also carrying Officers Gabster, Lyon, and Banks-pulled in front of Mr. Devaugh's parked SUV. Id. at 91-93; Love BWC at 2:02-2:08. The officers turned on the unmarked cruiser's lights, exited the vehicle, and approached the SUV together. Tr. at 93. Officer Gabster, out in front of the group, held out his hand as he neared the driver's side of Mr. Devaugh's SUV; as he did so, a marked police SUV containing two additional officers (including Officer Gordon) drove up on his right side, stopping slightly behind Mr. Devaugh's vehicle. Love BWC at 2:08-2:15. Upon reaching Mr. Devaugh's car door, Officer Gabster issued a series of commands while making a variety of gestures, with Officer Banks occasionally interjecting as well: “No, no, hand back up . . . Alright, go ahead . . . Go ahead . . . Open the door or I'm gonna break that window . . . [Officer Banks: “Open the window.”] . . . Open the door . . . [Officer Banks: “Open the door.”]. . . Alright, I'll break it.” Id. at 2:16-2:28. As this was unfolding, Office Lyon had made his way to the passenger's side of Mr. Devaugh's SUV. Lyon BWC 1 at 2:03-2:18. Immediately upon exiting his vehicle, he had told Mr. Devaugh “[l]et me see your hands, ” holding his arms above his head to illustrate. Id. at 2:03-2:06. As Officer Lyon reached the front passenger's window, he drew his firearm and displayed it against the glass. Id. at 2:18-2:25. And in the midst of Officer Banks's and Officer Gabster's commands, he chimed in: “Open the window.” Id. at 2:20-2:22.

         At this point (approximately ten seconds after Officer Gabster first expressly ordered him to open the door), Mr. Devaugh complied and exited the vehicle. Love BWC at 2:28-2:31. Officer Gabster appears to begin placing Mr. Devaugh in handcuffs, taking hold of Mr. Devaugh's left arm and telling him twice to “[p]ut your hands behind your back”; at the same time, Office Banks grabbed Mr. Devaugh's right arm or jacket sleeve. Id. at 2:31-2:33; Gabster BWC at 2:25-2:26. As he was being restrained by the two officers, Mr. Devaugh tossed away a black plastic bag, which flew some distance over the parked police SUV. Love BWC at 2:31-2:33; Gordon BWC at 2:08-2:10. The officers then finished placing Mr. Devaugh in handcuffs-though with some difficulty, as Mr. Devaugh seemed to offer some resistance. Love BWC at 2:33-3:19. As Officer Love testified, a subsequent search of Mr. Devaugh's grey SUV revealed a firearm (a .44 Magnum), a digital scale, and some quantity of crack cocaine and opiates. Tr. at 98. The discarded black plastic bag was also recovered and found to contain marijuana. Id. at 96-97.

         III. ANALYSIS

         Two things are not meaningfully contested by the parties. First, Mr. Devaugh was undoubtedly “seized” within the meaning of the Fourth Amendment when he was surrounded by the arrest team and complied with their order to open his door. See California v. Hodari D., 499 U.S. 621 (1991) (holding that a seizure requires the application of physical force or submission to an assertion of authority). Second, the police did not have probable cause to arrest Mr. Devaugh until he tossed away the plastic bag.[3] As a result, Mr. Devaugh can prevail here on either of two theories: (1) if the initial stop was not based on reasonable suspicion, or (2) if the initial stop ripened into a full-blown arrest before he tossed away the bag. The Court will address each issue in turn.

         A. Was there reasonable suspicion for the stop?

         1. Legal Standard

         In Terry v. Ohio, 392 U.S. 1 (1968), 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.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). For such a stop to be reasonable, “[t]he officer 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).

         In reviewing whether a stop was justified, courts are “not limited to what the stopping officer says or to evidence of his subjective rationale; rather [courts] look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious.” United States v. McKie, 951 F.2d 399, 402 (D.C. Cir. 1991) (per curiam). In doing so, courts are not to engage in a “divide-and-conquer analysis” that asks whether each fact is “susceptible to an innocent explanation.United States v. Arvizu, 534 U.S. 266, 274 (2002); see also United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir. 2001) (“[E]ven though a single factor might not itself be sufficiently probative of wrongdoing to give rise to a reasonable suspicion, the combination of several factors-especially when viewed through the eyes of an experienced officer-may.”). The government ultimately bears the burden of demonstrating that reasonable suspicion for a stop existed. See United States v. Castle, 825 F.3d 625, 630 (D.C. Cir. 2016).

         2. Factors Justifying a Stop

         In this case, Officer Turner testified to a variety of factors justifying an investigatory stop. First, he explained that the area was well known for a high level of drug activity. See Wardlow, 528 U.S. 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.”); Edmonds, 240 F.3d at 60 (“[T]he fact that a given locale is well known for criminal activity will not by itself justify a Terry stop; but it is among the various factors that officers may take into account.”). While Officer Turner did not provide comparative statistics or define the “area” with block-by-block rigor, he explained that, over his sixteen years as an undercover officer, he had conducted a large number of assignments, including controlled buys, in the neighborhood. Tr. at 8, 62. Additionally, when pressed on the issue during cross-examination, he did identify areas in his assigned district that he would not describe as a high crime. Id. at 62-63. He also defined “high crime” with some specificity. See Id. at 63 (“Um, you have-well, high crime or high drug? It's a difference because you have areas that are high crime but not necessarily drugs. But as far as narcotics, you have some areas that are not high narcotics areas.”). In other words, Officer Turner did not merely suggest that the area “suffers from general, undifferentiated ‘crime,' but that it is home to the precise type of infraction[]” that he suspected Mr. Devaugh of committing. Edmonds, 240 F.3d at 60.

         Second, Officer Turner observed a hand-to-hand transaction between Mr. Devaugh and the alleged buyer, which was consistent with how drugs are “typically distributed in the area.” Tr. at 9. Of course, as Officer Turner freely admitted, he was unable to identify the “object” or “objects” that were exchanged for cash, and, as a result, such an interaction is highly “susceptible to an innocent explanation.Arvizu, 534 U.S. at 274. But even so, the observation would certainly contribute to a reasonable officer's suspicion. See, e.g., United States v. Garrett, 959 F.2d 1005, 1007 (D.C. Cir. 1992) (citing an officer's observation of the passing of “a small object retrieved from inside [a] car . . . in exchange for money” as relevant).

         Third, Officer Turner testified that Mr. Devaugh “walked to his vehicle” after being informed by the passerby of police presence in the area. Tr. at 18. This is considerably less probative than the “headlong flight” from police that the Supreme Court has characterized as the “consummate act of evasion.” Wardlow, 528 U.S. at 124. And normally, an “individual has a right to ignore the police and go about his business.” Id. at 125. Perhaps the most that can be said is that “[t]he context in which a person seeks to avoid contact with a peace officer is important.” United States v. Monsivais, 848 F.3d 353, 360 (5th Cir. 2017). In this context, Mr. Devaugh's response to a warning from the passing driver is not particularly inculpatory; like the hand-to-hand exchange, it is susceptible to innocent explanation. But it is another data point that Officer Turner was entitled to consider in light of his experience.

         Finally, Officer Turner observed Mr. Devaugh, “as he was walking back to that gray SUV, adjust his waistband area several times.” Tr. at 19. As Officer Turner clarified, “[b]ecause of my experience and training as a police officer, that's common for somebody who's carrying a weapon or illegal firearm in their waistband area, to adjust their waistband area.” Id. While Officer Turner's description of Mr. Devaugh's movement was not particularly specific, this kind of observation has been found relevant in reasonable suspicion and probable cause analyses. See, e.g., United States v. Moore, 75 F.Supp.3d 444, 449 (D.D.C. 2014) (defendant observed “adjust[ing] something around his waistband, which seemed consistent with the characteristics of an armed gunman”) (quotation omitted); United States v. Lovelace, 357 F.Supp.2d 39, 44 (D.D.C. 2004) (defendant observed “mak[ing] reaching motions towards his waistband, ” which supported “a reasonable suspicion that [defendant] was secreting a weapon.”).

         Considering “the totality of the circumstances-the whole picture, ” United States v. Cortez, 449 U.S. 411, 417 (1981), the Court is comfortable concluding that these factors establish reasonable suspicion for a stop. See Wardlow, 528 U.S. at 123 (explaining that reasonable suspicion requires only a “minimal level of objective justification for the stop”); see also United States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007) (noting that the standard for reasonable suspicion is “significantly lower” than that of probable cause).

         3. The Collective Knowledge Issue

         There is one additional wrinkle, however. Based on the testimony at the hearing, it is doubtful that all four of these circumstances establishing reasonable suspicion were actually communicated (1) by Officer Turner to Sergeant Cardinal and (2) by Sergeant Cardinal to the arrest team. For example, when Officer Turner was asked if he told Officer Cardinal about the drive-by warning (“[T]he Feds are up the street”), he was relatively certain that he had not:

I didn't tell him about-I don't believe I told him about the guy saying it, because like I said, it wasn't really pertinent to what was going on. It was-like I said, so I wasn't worried about him [the driver]. I was more so concerned with them being able to get in and stop your client and [the buyer], ...

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