UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) UNITED STATES OF AMERICA ) ) ) v. ) Criminal No. 19-cr-315 (ESH) ) DESHAWN HOOD, ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION

Defendant Deshawn Hood has been charged with possession of a firearm by a convicted

felon, in violation of

(g). On November 22, 2019, Hood moved to suppress

evidence seized following the September 16, 2019 police stop that led to his arrest and the

charge in this case. (See Mot. to Suppress [ECF 19].) He argues that since the police lacked a

reasonable, articulable suspicion to suspect him of a crime, the stop violated the Fourth

Amendment and any evidence seized as a result must be suppressed. (See id.; see also Def.’s

Supp. Br. [ECF 26].)

An evidentiary hearing and argument were held on this motion on January 10 and 14,

2020. For the reasons stated herein, Hood’s motion will be granted, and the evidence seized

following his unconstitutional stop will be suppressed. FACTUAL BACKGROUND1

At approximately 11:30 p.m. on September 16, 2019, officers from the Metropolitan

Police Department’s Narcotics and Special Investigations Division Gun Recovery Unit (“GRU”)

were driving in Northeast D.C. According to Officer James Jacobs, who testified at the hearing,

the GRU generally travels in groups of two to four cars, and while their vehicles are unmarked,

“most people in the neighborhoods [they] patrol know” and are able to identify them as the “guns

squad.” (Tr. of January 10, 2020 Hearing (“Jan. 10 Tr.”).2) In this particular instance, the GRU

officers were traveling in two unmarked cars. They were patrolling this area because it “has had

many sounds of gunshots, violent crimes, as well as shootings and homicides.” (Id.) While

driving northbound on 42nd Street, N.E., the first GRU car—in which Officers Murrell and

Joseph were driving—made contact with Hood, who greeted the officers. (See id.) According to

Officer Jacobs, Hood also said something to the effect that he “was just trying to get home.”3

(Id.)

Hood, who was traveling southbound on 42nd Street at the time, continued on his way,

making a left turn onto Foote Street, N.E. Officer Jacobs testified that while walking away,

Hood looked back at the officers’ vehicle. (See id.) At that time, one of the officers from the

lead car came over the radio and requested that the officers in the second car—Officer Torres,

who was driving, and Officer Jacobs in the passenger seat—“speak to him [Hood] real quick.”

1 The facts necessary to decide this motion are essentially undisputed. The Court credits Officer James Jacobs’ testimony, which is corroborated by footage from his body-worn camera, which captured the entire incident from the moment Officer Jacobs exited his car. 2 The Court cites to the transcript of the January 10, 2020 hearing but does not include page or line numbers as the transcript is not yet finalized. An updated Memorandum Opinion will be released with page and line numbers once a final transcript has been filed. 3 Officer Jacobs only learned what Hood said after the fact, when Officer Joseph told him sometime following the arrest. (See Jan. 10 Tr.) 2 (See id.; see also Gov’t Ex. 5 at 55:13 (recording of that radio transmission).) Following that

directive, the second car made a right turn onto Foote Street and pulled up next to Hood, who

was walking off the sidewalk and entering the street from the north side. Officer Jacobs and

Torres’ car stopped in the middle of the street, at which point Officer Jacobs activated his body

camera and began to quickly exit the car.4 At this point, Hood had already raised his hands in

the air, although he did this without any request by the police. (See Jan. 10 Tr.)

Officer Jacobs said “hold on a sec”5 while gesturing at Hood with his right arm. (See

Gov’t Ex. 1A (“Video”) at 2:02.6) Although his tone was conversational, he did not explain why

he was telling Hood to hold on. (See Jan. 10 Tr.) He continued around the front of the police car

and approached Hood, whose hands remained in the air. Although Officer Jacobs was wearing a

vest with the word “police” prominently displayed on the vest, he did not draw his gun and his

partner had not activated the siren or the lights on top of the car. Hood can be heard saying

repeatedly that the police “did not have consent to search [him].” (See Video at 2:03.) At the

same time, outside of the view of the camera, Officer Torres had also exited the vehicle. (See

4 When an officer activates his body camera, the camera’s software automatically saves the prior two minutes of video, though the footage is silent until the point at which the camera is activated. (See Jan. 10 Tr.) Because of this, the Court is able to see the car in which Officer Jacobs was driving make a right turn onto Foote Street and pull up to the right of Hood in the street, but there is no audio until he began to exit the car at approximately two minutes into the recording. 5 It is unclear whether Officer Jacobs said “hold on” or “hold up,” and the parties referred to these two phrasings interchangeably throughout the hearing and their briefs. (See generally Jan. 10 Tr.) The parties have made no suggestion that the word choice of “on” versus “up” would be outcome-determinative in this situation, and so the Court simply refers to Officer Jacobs’ first words as “hold on a sec” consistently throughout this Memorandum Opinion. 6 When the Court refers to a time on the body-worn camera footage, it is referring not to the timestamp shown in the upper-right-hand corner of the video—which is in Zulu, and therefore four hours ahead of Eastern time—but to the minute and second position of a particular moment within the video recording the Court was given. For example, this particular citation refers to what happens starting at two minutes and two seconds into the video.

3 Jan. 10 Tr.) Hood took several steps while Officer Jacobs approached, going several feet further

into the middle of the street and in front of the police car. (See Video at 2:05.) After taking

these several steps, and as the distance between him and Officer Jacobs narrowed, Hood stopped

walking and stood still with his hands held in the air. He repeated that Officer Jacobs did not

have consent to search him and indicated that he was going to his house. (See

.)

Officer Jacobs testified that when he approached Hood, he saw an “abnormally large

bulge, which was not consistent with the human anatomy, . . . to the left of [Hood’s] groin area in

his pants” and the bulge was “very noticeable.”7 (Jan. 10 Tr.) He testified that he believed

Officer Torres had also seen the bulge, because “[h]e shined his flashlight on the same area as

he[ was] approaching as well, so at that point I knew that we were both on the same page and

believed that it was a firearm in Mr. Hood’s pants.” (Id.) At approximately 2:12, Officer Jacobs

told Hood—who had taken several steps backwards upon Officer Jacobs’ approach—to “stop

backing away.” (See Video at 2:11.)

Officer Jacobs then said, “Let me just ask you about that bulge in the front of your

pants.” (See

.) In response, Hood lowered his arms to his waistband and looked down,

at which point Officer Jacobs told him not to reach for his waistband. (See

.) Hood

told Officer Jacobs that the bulge in the front of his pants was his penis. (See

.) He

again indicated that his house was right across the street, and Officer Jacobs replied that he

understood Hood wanted to go to his house. (See

.) At the same time, in the

background of Officer Jacobs’ video—behind Hood—the first GRU car can be seen going into

reverse and making a right turn onto Foote Street.

7 Because Hood was wearing a cropped shirt, which came only several inches down his chest and left the majority of his chest and waist exposed, his waistband and the groin area of his pants were clearly visible to the officers. (See Gov’t Ex. 4 (still photo from body-worn camera footage showing Hood, facing police officers).) 4 When Hood again repeated that Officer Jacobs did not have consent to search him,

Officer Jacobs responded that he did not want his consent for a search, he just wanted to know

what was in the front of Hood’s pants. (See

.) Hood indicated that he was going to

keep walking to his house, and again said that the bulge in his pants was his penis. (See

.) At approximately 2:30, several more police officers exited the other GRU vehicle and

began walking towards Hood. By 2:38, one of the other officers had walked up and also

indicated that they just wanted to know what was in the front of his pants. (See

.) By

this time, Hood was surrounded by at least five police officers. (See

.)

Hood continued backing towards the cars parked on the left side of the street, at which

time the officers handcuffed him. (See

.) One of the officers (possibly Officer Jacobs)

can be heard telling Hood to stop, to which he replied he wasn’t doing anything. (See

.) At 3:03, a transmission was broadcast over the radio by one of the officers—either Joseph

or Murrell—saying “1-800”; at the hearing, Officer Jacobs testified that this is what their squad

radioed whenever they found a gun. (See Jan. 10 Tr.) When an officer looked into Hood’s

pants, he identified the gun as a loaded Glock with an extended magazine. (See Video at 3:50.)

ANALYSIS

I. LEGAL STANDARDS

The Fourth Amendment guarantees the “right of the people to be secure in their

persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. “But not all

interactions between police officers and citizens amount to a ‘seizure’ for Fourth Amendment

purposes.” United States v. Gross,

(D.C. Cir. 2015).

An individual is seized only when an “officer, by means of physical force or show of

authority, has in some way restrained [his] liberty.” Terry v. Ohio,

, 19 n.16 (1968).

“Whether police action amounts to a ‘show of authority’ requires a court to ask whether a 5 ‘reasonable person’ ‘in view of all the circumstances surrounding the incident, . . . would have

believed that he was not free to leave.’” United States v. Castle,

(D.C. Cir.

2016) (quoting United States v. Wood,

(D.C. Cir. 1992)). Factors a court must

consider in deciding whether the action was a show of authority include “the threatening

presence of several officers, the display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.” United States v. Mendenhall,

(1980).

The D.C. Circuit has also suggested that courts consider “the demeanor of the approaching

officer, whether the officer . . . wore a uniform, and the time and place of the encounter.” United

States v. Goddard,

(D.C. Cir. 2007) (internal quotation marks and citations

omitted). The test here is not what the particular person seized thought about the encounter, but

what “a reasonable man, innocent of any crime, would have thought had he been in the

defendant’s shoes.”

As a result, “neither the subjective impressions of the defendant nor the

subjective intentions of the officer determine whether a seizure has occurred.”

Once it has been determined that an individual was seized, a court must assess whether

the police had constitutional justification for doing so. Under the law announced by the Supreme

Court in Terry v. Ohio, a police officer may stop an individual “even if the officer lacks probable

cause.” United States v. Smith,

(D.D.C. 2019) (quoting United States

v. Sokolow,

(1989)). Nevertheless, the stop must still “be founded upon

reasonable, objective justification.” Gross,

. If an officer has “reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot,’” he may conduct a

brief, investigatory stop. Sokolow,

. In determining whether an officer had

reasonable suspicion for a Terry stop, a court gives weight not to an officer’s “inchoate and

6 unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is

entitled to draw from the facts in light of his experience.” Terry,

.

“When the government conducts an unconstitutional search or seizure, the Court must

exclude any evidence obtained as the ‘fruit’ of that search or seizure.” Smith,

(internal quotation marks omitted). While generally the defendant bears the burden of

proving he was subjected to an unconstitutional search or seizure, when he is seized or searched

without a warrant, as is the case here, “the burden shifts to the government to justify the

warrantless arrest or search.”

(internal quotation marks omitted).

II. HOOD WAS SEIZED WHEN OFFICER JACOBS TOLD HIM TO “HOLD ON A SEC”

The narrow issue in dispute is when did the police seize Hood. Hood argues that “[t]he

officers’ initial interaction with Mr. Hood was so overpowering” that he was seized at the time

Officers Jacobs and Torres exited their vehicle and Officer Jacobs told him to “hold on a sec.”

(See Def. Mot. at 4.) The government, on the other hand, argues that Hood was not seized until,

at the earliest, Officer Jacobs told Hood to “stop backing away” and Hood stopped. (See Gov’t

Supp. Br. at 1 [ECF 25].)

The Court acknowledges that this is an extremely close question. As noted above, a

seizure occurs as a result of a “show of authority,” when “a reasonable person would not have

believed he was free to leave.” United States v. Gibson,

(D.D.C. 2018).

Like Gibson, another decision from this Court, the officers engaging Hood were “in an unmarked

vehicle late at night while wearing tactical vests.”

They quickly exited their vehicle, with

guns and handcuffs showing and wearing identifiable MPD vests and badges. (See Jan. 10 Tr.)

Furthermore, Officer Torres shone a flashlight at Hood upon exiting his car, the use of which

was also deemed probative in Gibson. See Gibson,

(finding a seizure when

7 a police vehicle “pulled up next to [the defendant], . . . immediately shined a bright flashlight at

him, and issued two, successive directives”). And Officer Jacobs is gesturing with his arms at

Hood from the moment he exits the car, although he did not touch the defendant or restrict his

movement. (See Video at 2:02.)

The characterization of the language used by Officer Jacobs is significant. It is well-

settled that “a seizure does not occur simply because a police officer approaches an individual

and asks a few questions.” Florida v. Bostick,

(1991). However, Officer

Jacobs’ initial statement to Hood was not phrased as a question or a request, but as a statement.

And there is little discernable difference between the phrase “hold on a sec” and “stop”—both

command that the target stop moving. The Court recognizes that Officer Jacobs’ tone when he

said “hold on a sec” was conversational. (See Video at 2:02.) But Officer Jacobs’ words to

Hood—as he was being approached late at night by two armed police officers—conveyed the

message that Hood was not free to leave. While Officer Jacobs testified at the hearing that he

had only been instructed to “speak to [Hood] real quick,” an innocent individual told to “hold on

a sec” by the police late at night, on a residential street, would conclude that he could not walk

away. See United States v. Wood,

(D.C. Cir. 1992) (“When [the officer] told

Wood to stop, he was not extending a greeting or positing a question; rather, he was giving an

order in ‘language . . . indicating that compliance . . . might be compelled.’” (quoting

Mendenhall,

)). Here too, the totality of the circumstances supports a finding

that compliance was required, and a reasonable person in this situation would not have believed

he was free to leave. See Mendenhall,

(requiring a court to assess “in view of all

of the circumstances surrounding the incident, [whether] a reasonable person would have

8 believed that he was not free to leave”). As observed by Circuit Judge Janice Rogers Brown

when describing the modus operandi of the Gun Recovery Unit,

“[R]ather than rely upon particularized suspicions in the first instance, the District maximizes its odds of illegal firearm recovery by patrolling high crime neighborhoods ‘looking for guns,’ or more accurately, looking for people likely to have guns. But playing the odds is not the same thing as reasonable suspicion.”

Gross,

(Brown, J., concurring) (citations omitted).

The government argues in the alternative that if “hold on a sec” constituted a “show of

authority,” Hood cannot rely on that show of authority because he did not submit. (See Gov’t

Supp. Br. at 3 (citing California v. Hodari D.,

(1991)).) The Court rejects this line

of attack based on its review of Officer Jacobs’ body-worn camera footage. While Hood took

several steps after being told to “hold on a sec,” he clearly stopped and turned to face the officers

almost immediately after Jacobs’ first statement. Prior to being stopped, he was crossing from

the north to the south side of Foote Street, and by the time he stopped walking he was still in

front of the police car, which had stopped in the right lane of traffic. (See Video at 2:02–2:12.)

Upon Officer Jacobs’ approach, Hood took another several steps back, but after Officer Jacobs’

command to “stop backing away,” he promptly stopped. (See

at 2:10–2:14.)

These several steps are insufficient to constitute a refusal to submit to the officers’ show

of authority. It is not equivalent, for example, to the headlong flight that is described as the

paradigm of non-submissiveness in California v. Hodari D. See

(“[The word

‘seizure’] does not remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the

name of the law!’ at a fleeing form that continues to flee. That is no seizure.”). Considering the

totality of the circumstances, the Court concludes that Hood’s actions are consistent with those

of an individual who understood himself to be unable to leave. See Castle,

(concluding that defendant who walked further after being told to “hold on” by a police officer

9 was nonetheless seized, as he was still “exhibit[ing] complete submission”); see also Brendlin v.

California,

(2007) (“[W]hat may amount to submission depends on what a

person was doing before the show of authority: a fleeing man is not seized until he is physically

overpowered, but one sitting in a chair may submit to authority by not getting up to run away.”).

III. THE POLICE DID NOT HAVE REASONABLE SUSPICION AT THE TIME OF HOOD’S SEIZURE

Having concluded that Hood was seized for Fourth Amendment purposes at the time

Officer Jacobs told him to “hold on a sec,” the Court must now decide whether, at that time, the

officers had a reasonable, articulable suspicion that Hood was engaged in criminal activity. The

Court concludes they did not.

Officer Jacobs told Hood to “hold on a sec” while he was exiting the passenger side of

the police vehicle; it was not until several seconds later that the officers observed the bulge in

Hood’s pants, which the Court agrees would have provided sufficient support for a finding of

reasonable suspicion. According to the government, however, there was nonetheless reasonable

suspicion before that time based on the following facts: “the defendant was walking around in a

high crime area, blading his body away from the view of officers, while putting his hands up

unsolicited.” (Gov’t Supp. Br. at 4.) Upon review of the body-worn camera footage, the Court

cannot agree with this characterization. First, it does not appear that Hood was in fact “blading”

his body away, at least not at the time Officer Jacobs stopped him. (See Video at 2:02.) To the

contrary, the positioning of his body seems consistent with an individual who was crossing a

street at a diagonal from north to south. Next, the street on which Hood was walking was

residential; it was also the street on which he lived. Although the “the fact that the stop occurred

in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis,”

Illinois v. Wardlow,

(2000), this factor cannot bear the weight the government

10 assigns it. Lastly, Hood’s decision to put his hands up unsolicited is hardly surprising, given

how the GRU operates in neighborhoods such as his—i.e., essentially as a “rolling roadblock,”

see Gross,

(Brown, J., concurring), trawling the streets and asking to see

individual’s waistbands. See, e.g., Gibson,

(describing how, at the

direction of the GRU, defendant “raise[d] both hands in the air with his palms facing the MPD

officers at about head height”); see also United States v. Meekins,

, at *1

(D.D.C. Aug. 13, 2019) (officers drove up next to defendant and said “Do you mind showing me

your waistband?”); United States v. Jones,

(D.D.C. 2015) (officer

approached and asked men if they had weapons, then “asked if he could see the men’s

waistbands”).

Other factors suggested by the government do not alter this conclusion. For example, the

government—citing Wardlow—argues that “an ‘act of evasion[]’ [is] ‘certainly suggestive’ of

criminal activity.” (Gov’t Supp. Br. at 4.) However, there is no evidence that Hood attempted to

evade the officers, nor are there any furtive gestures, two telltale signs used by the police to

justify a stop. And while the government cites the “late hour” (id. at 5), the Court cannot

conclude that the hour (11:30 p.m.) is suggestive of criminality. Lastly, although Hood’s choice

to “say without any prompting that he was going home” upon his first encounter with the police

(id. at 4) may not be typical, Officer Jacobs did not know at the time Hood was seized what

exactly Hood had told the officers in the other car. No officer had seen the bulge when Office

Jacobs told Hood to “hold on a sec” and he had not done anything to give the officers a

“reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’”

Sokolow,

. For these reasons, the Court concludes that Hood’s seizure was

unlawful.

11 IV. THE DOCTRINE OF INEVITABLE DISCOVERY DOES NOT APPLY

Lastly, the government argues that “even if the Court finds that there was an unlawful

seizure at the time that Officer Jacobs’ said, ‘Hold [on] a sec,’ the discovery of the bulge did not

rely on the seizure,” because Officer Jacobs would have seen the bulge regardless. (Gov’t Supp.

Br. at 5.) Based on its own review of the body-worn camera footage, the Court again disagrees.

As noted above, at the time Officer Jacobs exited the police car, Hood was walking diagonally

from the north to the south side of Foote Street; if Officer Jacobs had not told Hood to “hold on a

sec,” and Hood had not been forced to stop, it is unclear how Officer Jacobs would have seen the

bulge in the front of Hood’s pants. “To prevail on an inevitable discovery theory, the

government must prove by a preponderance of the evidence that, even without the unlawful

seizure, the evidence it seeks to admit would have been discovered anyway.” United States v.

Holmes,

(D.C. Cir. 2007). Furthermore, “inevitable discovery involves no

speculative elements but focuses on demonstrated historical facts.”

It is speculation to

assume that, had Hood not been seized, he would have stopped in the middle of the street such

that Officer Jacobs could have seen the bulge in the front of his sweatpants, especially given the

direction in which Hood was walking.

CONCLUSION

For the foregoing reasons, the Court concludes that (1) the police “seized” Hood, for

purposes of the Fourth Amendment, when Officer Jacobs told him to “hold on a sec”; (2) at that

time, the GRU officers lacked any articulable, reasonable suspicion of wrongdoing; and (3) the

doctrine of inevitable discovery does not apply. As a result, the Court concludes that the

government has not met its burden to show that the police did not violate Hood’s Fourth

12 Amendment rights, and therefore, all evidence resulting from Hood’s seizure must be

suppressed. A separate Order accompanies this Memorandum Opinion.

_______________________

ELLEN S. HUVELLE United States District Judge Date: January 21, 2020

13