Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CF-0388
DONTE J. CARTER, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2020-CF2-007280)
(Hon. Lynn Leibovitz, Trial Judge)
(Submitted April 18, 2024 Decided August 28, 2025)
Brian D. Shefferman was on the brief for appellant.
Chrisellen R. Kolb, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney at the time the brief was filed, and John P. Mannarino, Benjamin Helfand, Jacqueline Yarbro, and Michael C. Lee, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH and MCLEESE, Associate Judges, and WASHINGTON, * Senior Judge.
Opinion for the court by Senior Judge WASHINGTON.
* Senior Judge Fisher was originally assigned to this case. Following his retirement on August 22, 2024, Judge Fisher was replaced by Senior Judge Washington. 2
Concurring opinion by Associate Judge MCLEESE at page 31.
WASHINGTON, Senior Judge: Appellant Donte Carter was conversing amongst
a group of ten Black men on a sunlit sidewalk in Ward Four of the District. Despite
not having raised any suspicion of engaging in criminal activity, the group was
approached by four members of the Metropolitan Police Department’s Gun
Recovery Unit (GRU). One of the officers approached Mr. Carter from behind and
asked whether he was carrying a firearm. Mr. Carter replied that he was not and
twice lifted his shirt to demonstrate that nothing was hidden underneath. The officer
then asked Mr. Carter to “hike” his pants up. In this appeal, we are asked to
determine whether Mr. Carter was seized at this moment within the meaning of the
Fourth Amendment. We hold that he was.
I. Background
Our articulation of the facts is based on both the trial court’s extensive factual
findings and footage from body-cameras worn by the officers. Neither party
disputes these facts.
At some time between 3:00 and 4:00 pm on a sunny day in September 2020,
five officers of the GRU 1 drove two unmarked vehicles into Ward Four of the
1 The unit has since been renamed to the Violent Crime Impact Team (VCIT). 3
District, an area that consists predominantly of Black Americans, 2 to conduct a
firearm interdiction. They went there because of “an uptick in shootings and sounds
of gunfire” in the area. The officers observed ten Black men conversing on a
sidewalk and parked along the road opposite them. The group was split between
three men “sitting and standing near some planters,” and another seven men about
fifteen feet away. Among the group of seven men was appellant Mr. Carter, leaned
up against a parked car and facing everyone else.
Four officers, Officers Sanders, Guzman, DelBorrell, and Keleman, emerged
from the vehicles and approached the group. They wore tactical vests with “police”
written on the back as well as visible handcuffs, firearms, and other police
equipment. Officers Sanders and Guzman focused on the group of three and
announced that they were “checking for firearms.” Almost immediately, and
without being prompted to, one of the men lifted his shirt to reveal his waistband
seemingly to demonstrate that nothing was hidden underneath. Upon checking the
2 Ward Four consists of approximately 44 percent Black Americans and 29 percent White Americans. 2020 Consensus Information & Data: Table 3, D.C. Office of Plan., https://planning.dc.gov/publication/2020-census-information-and- data; https://perma.cc/B6QF-C8YQ. 4
man’s waistband and a small bag he was carrying, Officers Sanders and Guzman
continued toward the larger group.
Meanwhile, Officers DelBorrell and Keleman focused on Mr. Carter’s group.
Officer Keleman approached two individuals standing a few feet to Mr. Carter’s left
while Officer DelBorrell looped around the vehicle Mr. Carter was leaning on to
approach him from behind. As Officer DelBorrell rounded the vehicle, another man
approximately a foot ahead of Mr. Carter and several feet ahead of the officer also
lifted his shirt to reveal his waistband. Within three to four feet of Mr. Carter, Officer
DelBorrell asked how he was “doing,” to which Mr. Carter briefly replied, “how are
you doing” or “what’s up” before turning away. Officer DelBorrell then moved
closer to Mr. Carter but before he could say anything else, Mr. Carter also lifted his
shirt to show his waistband and then lowered it. As Mr. Carter raised his shirt,
DelBorrell asked, “[h]ey [c]hamp, you not got nothing on you?” Mr. Carter
responded, “no” and lifted his shirt again. Unsatisfied, Officer DelBorrell requested,
“[d]o you mind hiking your pants for me real quick?” Mr. Carter complied. “[I]n a
single quick motion, [Mr. Carter] hiked his pants [up] by holding them at the
waistband with two hands.” He “then lifted his shirt [again] and put it back down.”
While this was happening, Officer Guzman had begun to approach Mr. Carter
from the other group. When he was about six to ten feet away, he noticed a bulge in 5
Mr. Carter’s groin area. When Mr. Carter raised his pants in response to Officer
DelBorrell’s question, Officer Guzman, from approximately three to five feet away,
saw that the bulge was an L-shape, which he believed to be a firearm. Officer
Guzman then instructed Mr. Carter to “[s]tand up . . . one more time.” Mr. Carter
stood. Guzman then remarked, “[r]ight there, brother, right there,” pointing to Mr.
Carter’s right groin area. Mr. Carter replied, “[t]his is my phone,” pulling a phone
from his right pocket. Officer Guzman subsequently frisked Mr. Carter and after a
brief struggle in which the other officers on the scene joined, the officers recovered
a firearm hidden in Mr. Carter’s pants.
Based on this encounter, Mr. Carter was charged with eight offenses
connected to the firearm. He moved to suppress the firearm as well as a statement
he made following the incident on grounds that they were the result of an
unreasonable seizure in violation of the Fourth Amendment. The trial court denied
his motion. It rejected his argument that he was seized when Officer DelBorrell
asked him to raise his pants and held that Mr. Carter was seized only after he pulled
his pants up. The court held that by then, the officers had reasonable suspicion to
seize him based on Officer Guzman’s observation of an L-shaped bulge in his groin
area that he made only after Mr. Carter raised his pants. Accordingly, the court held
that the firearm and statement were not the product of an unreasonable seizure. 6
Mr. Carter was subsequently convicted on all eight counts following a trial on
stipulated facts. He timely appealed.
II. Analysis
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. U.S. Const. amend. IV. Under the Fourth
Amendment’s prohibition against unreasonable seizures, law enforcement officers
may not seize an individual unless they have reasonable suspicion or probable cause
to believe that the person is engaged in criminal activity. See Terry v. Ohio, 392
U.S. 1, 27 (1968); Robinson v. United States, 76 A.3d 329, 335 (D.C. 2013).
Mr. Carter’s sole claim on appeal is that the trial court erroneously denied his
motion to suppress. Contrary to the court’s holding, he argues that the officers seized
him within the meaning of the Fourth Amendment when Officer DelBorrell
requested that he raise his pants. Because, according to Mr. Carter, the officers
lacked reasonable suspicion or probable cause, such conduct violated his Fourth
Amendment rights. Mr. Carter claims that the trial court therefore should have
suppressed the fruits of that seizure—the firearm and his subsequent statement. See
Smith v. United States, 283 A.3d 88, 98 (D.C. 2022) (explaining that a court must
generally suppress any evidence “obtained as a direct result of” or “found to be a 7
derivative of” an illegal search or seizure (quoting Utah v. Strieff, 579 U.S. 232, 237
(2016))).
For its part, the government admits that it lacked reasonable suspicion or
probable cause to seize Mr. Carter when Officer DelBorrell asked him to raise his
pants. It also concedes that if it did seize Mr. Carter at that moment, the firearm and
statement were products of an unreasonable seizure and should have been
suppressed. The government’s sole argument on appeal is that it did not seize Mr.
Carter until after Officer DelBorrell’s request that Mr. Carter “hike” his pants up,
when it did have reasonable suspicion to seize him. Mr. Carter does not deny that
the officers had reasonable suspicion after Officer DelBorrell’s question and simply
argues that the seizure began before then.
Accordingly, the central question before us is whether Mr. Carter was seized
when Officer DelBorrell requested that he raise his pants. We review this question
de novo. Sharp v. United States, 132 A.3d 161, 166 (D.C. 2016) (holding that
whether a defendant was seized within the meaning of the Fourth Amendment is a
question of law, which we review de novo).
To determine whether a defendant was seized within the meaning of the
Fourth Amendment, we ask whether in view of all the circumstances surrounding
the defendant’s encounter with law enforcement, an objective and reasonable person 8
in the defendant’s shoes would have “felt free to terminate” the interaction and “go
about [their] business.” Jones v. United States, 154 A.3d 591, 592 (D.C. 2017); see
Graham v. Connor, 490 U.S. 386, 397 (1989) (explaining that the test for
reasonableness under the Fourth Amendment is an “objective one”).
“Circumstances that might signify a seizure include the ‘presence of several officers,
the display of a weapon by an officer, some physical touching of the [defendant], or
the use of language or tone of voice indicating that compliance with the officer[s’]
request[s] might [have been] compelled.’” T.W. v. United States, 292 A.3d 790, 795
(D.C. 2023) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). To
that list, we have added factors such as whether (1) the officers asked the defendant
questions of such an accusatory nature that an objective and reasonable person in the
defendant’s position would have felt “apprehensive” in failing to reply, see Jones,
154 A.3d at 596; (2) the officers continued to press the defendant with such
questions “in the face of an initial denial,” signaling that they “‘refused to accept’
the answer given,” T.W., 292 A.3d at 795 (quoting Golden v. United States, 248 A.3d
925, 938 (D.C. 2021)); (3) the encounter took place at night or the defendant was
alone or secluded, see Dozier v. United States, 220 A.3d 933, 944 (D.C. 2019); and
(4) “the officers . . . blocked the [defendant’s] potential exit paths or ‘means of
egress’” so as to signal that the defendant was not free to leave, T.W., 292 A.3d at
795 (quoting Golden, 248 A.3d at 939). In addition, we also consider the defendant’s 9
race and the role that it may have played in affecting their willingness to leave. See
Dozier, 220 A.3d at 944.
A.
At the outset, we acknowledge that this is a close case. Whereas several
aspects of Mr. Carter’s interaction with the officers strongly suggest that he was
seized, there are other features that sway us in the opposite direction.
Beginning with the case that favors Mr. Carter, we recognize that this case is
not too dissimilar from Golden, in which we held that the defendant was seized. See
generally Golden, 248 A.3d 925. In that case, the defendant, Brandon Golden, was
walking alone along a sidewalk at night when four GRU officers in a pair of
unmarked SUVs approached him from behind. Id. at 931. One of the SUVs stopped
at a curb in front of Mr. Golden and the other parked several feet to the left. Id.
With his window rolled down and his police badge, tactical vest, and firearm clearly
visible, an officer in the first car, Officer Vaillancourt, asked Mr. Golden, “in a
conversational tone . . . whether he had any weapons on him.” Id. at 932. Mr.
Golden replied that he did not. Id. Officer Vaillancourt then asked, “[c]an you just
show me your waistband[?]” Id. (second alteration in original). Mr. Golden
complied by pulling up the middle and left sides of his shirt but not the right. Id.
Suspecting that Mr. Golden was attempting to conceal something underneath the 10
right part of his shirt, Officer Vaillancourt continued to probe Mr. Golden about what
he was hiding. Id. Eventually, Officer Vaillancourt exited the vehicle, frisked Mr.
Golden, and discovered a firearm. Id. Mr. Golden was subsequently charged with
various firearm-related offenses and sought to suppress the firearm on grounds that
the officers seized him without reasonable suspicion or probable cause and that the
firearm was a product of this unreasonable seizure. Id. at 931, 933. The trial court
denied his motion and Mr. Golden was convicted. Id. at 933.
On appeal, we vacated Mr. Golden’s conviction and remanded. Id. at 949.
We held that the officers in the SUVs seized Mr. Golden the moment Officer
Vaillancourt requested to see his waistband. Id. at 936. Because the officers lacked
reasonable suspicion or probable cause at that point, the seizure was unreasonable.
Id. at 940. Accordingly, the trial court erred in failing to suppress the firearm. Id.
We arrived at the conclusion that Mr. Golden was seized by first recognizing
that Mr. Golden’s encounter with the officers was not merely one between “equals,”
which an objective and reasonable person would feel free to terminate, but rather
“commenced with an impressive show of police authority.” Id. at 936 (quoting
Jones, 154 A.3d at 595). We observed that “[n]ot one but four police officers in two
unmarked vehicles simultaneously converged on and partially surrounded [Mr. 11
Golden], with one of the vehicles blocking his path by stopping directly in front of
him[—]a visible signal that the police intended for him to stop.” Id.
Second, we held that Officer Vaillancourt’s immediate questioning of Mr.
Golden as to whether he was carrying any weapons was of such an accusatory nature
that it could not be viewed as merely “a simple request for information.” Id. at 937;
cf. Florida v. Bostick, 501 U.S. 429, 434 (1991) (holding that an officer does not
seize someone merely by approaching them and “ask[ing] a few questions”). Rather,
it indicated to Mr. Golden that he had been “singled . . . out” because the police
“suspected him of being armed and committing a crime,” thereby contributing to a
“sense of powerlessness in an investigative confrontation by the police,” one which
he could relieve himself of only by demonstrating his innocence. Golden, 248 A.3d
at 937 (second alteration in original).
Finally, we explained that Officer Vaillancourt’s request that Mr. Golden
reveal his waistband after Mr. Golden denied carrying a weapon took the interaction
“beyond mere questioning,” because it “implied” to Mr. Golden that the officers
would continue to view him with “heightened suspicion if he attempted to end the
encounter without first exposing his waist[band].” Id. We held that an objective
and reasonable person in Mr. Golden’s shoes “would not [have felt] free to frustrate 12
the police inquiry” without first complying with Officer Vaillancourt’s request in
order to “allay [his] suspicions” and “get the confrontation over with.” Id.
Here, Mr. Carter’s interaction with the officers bore many of the same features
that contributed to our finding that Mr. Golden was seized. First, like in Golden,
two police vehicles simultaneously approached Mr. Carter and others in his group.
Four officers then exited the vehicles and converged on the group, suggesting that
the men were not simply free to continue conversing amongst themselves as they
were previously. Officer DelBorrell also approached Mr. Carter from behind,
which—in our view—would make any objective and reasonable person feel uneasy
and intimidated, especially when faced with an openly visible firearm within close
proximity.
Second, like Officer Vaillancourt, Officer DelBorrell immediately asked Mr.
Carter whether he possessed a firearm. As we did in Golden, we view this question
as one that suggested to Mr. Carter that he, alongside other members of the group,
had been singled out as being suspected of criminal activity. An objective and
reasonable person in his shoes would have felt apprehensive in refusing to respond
to the officer’s question. See, e.g., Mayo v. United States, 315 A.3d 606, 628-29
(D.C. 2024) (en banc) (explaining that such a question is intimidating in part due to
the “illegal[ity] [of] carry[ing] a gun in the District without proper licensure and 13
registration”); T.W., 292 A.3d at 796-97 (explaining the coercive nature of a request
for a weapon). They may have felt fearful that refusing to answer such a question
would have suggested to “the suspicious officer[]” that they had “something to
hide.” Guadalupe v. United States, 585 A.2d 1348, 1360 (D.C. 1991).
Finally, despite Mr. Carter both denying carrying a firearm and raising his
shirt not once but twice to reveal his waistband, Officer DelBorrell continued to
probe him by asking him to “hik[e] [his] pants up.” We see no appreciable difference
between this request and that in Golden as both required the defendants to continue
assuaging the officers’ suspicions despite initially denying any wrongdoing. Indeed,
both requests implied to the defendants that they would continue to be suspected of
criminal activity until the officers stopped asking questions, thereby leaving them
with little choice but to respond. See T.W., 292 A.3d at 798 (seeing no meaningful
difference between the officer’s offer to pat down the defendant and Officer
Vaillancourt’s request to view Mr. Golden’s waistband because both questions were
asked after the defendants denied carrying a weapon).
While we recognize the similarities between this case and Golden, we also
acknowledge two key differences that prevent us from holding that Golden controls
the outcome here. Most notably, in Golden, we placed significant weight on the fact
that Mr. Golden was approached at night by four officers in a secluded setting where 14
there were no bystanders to witness the interaction. See Golden, 248 A.3d at 936-37.
This not only resulted in a more intimidating atmosphere, but it also heightened Mr.
Golden’s concern that he was being singled out for criminal activity and would need
to comply to dispel that suspicion. Id. at 937. Here, in contrast, Mr. Carter was not
singled out on his own but rather as a member of a larger group. This likely
mitigated Mr. Carter’s concern that he alone was being targeted by the police.
Further, Mr. Carter was not outnumbered by four officers in a secluded setting at
night. Less intimidating, the interaction took place in broad daylight with nine
potential witnesses, all occupying the attention of just four officers.
Second, whereas the officers in Golden exerted significant control over Mr.
Golden’s movement by partially surrounding him, thereby signaling that he was not
free to leave, the officers here did not restrict Mr. Carter’s movement. Rather, as the
trial court found in its suppression ruling, Mr. Carter “was not surrounded or
hemmed in by the police” and was “more surrounded by those he had been hanging
out with.” Indeed, unlike in Golden, any restriction on Mr. Carter’s movement was,
at least in part, self-imposed, namely by his decision to lean against a car in the
company of others. 3 See I.N.S. v. Delgado, 466 U.S. 210, 218 (1984) (holding that
3 We are unpersuaded by the government’s additional attempts to distinguish Golden. Namely, the government argues that Officer DelBorrell’s conduct toward Mr. Carter was less “intimidating” than Officer Vaillancourt’s actions toward Mr. Golden. It points to Officer DelBorrell’s casual tone, the fact that Mr. Carter did not 15
seem to be bothered, and that Officer Vaillancourt requested that Mr. Golden “acquiesce in a public unveiling of part of his body” whereas Officer DelBorrell merely asked Mr. Carter to raise his pants.
We disagree with the government that Officer DelBorrell was less intimidating than Officer Vaillancourt. To begin, as we recognized in Golden, Officer Vaillancourt’s tone was also “conversational.” Id. at 932. Despite that, we held that his questions were still intimidating due to their accusatory nature. Id. at 937. Indeed, we have previously discouraged courts from “attach[ing] undue weight to a police officer’s ‘conversational’ tone in speaking to a suspect.” T.W., 292 A.3d at 803 (quoting Golden, 248 A.3d at 935 n.26). “While a harsh and commanding tone could certainly convey to a person that their compliance is non-optional, a polite and conversational tone does little to dispel coercion that arises from the content of officers’ inquiries, or in how they have approached the suspect.” Id. at 803; see also Guadalupe, 585 A.2d at 1361 (explaining that police questioning does “not have to assume an intensity marking a shift from polite conversation to harsh words to create an intimidating atmosphere”). This is especially true when the officer’s inquiries are accusatory in nature, as they were here.
Second, we disagree with the government’s characterization of Mr. Carter as being “[un]bothered.” Almost immediately after Officer DelBorrell began questioning him, Mr. Carter raised his shirt up twice. If he were unbothered, we think it far more likely that he would ignore the officer’s questions or at minimum verbally deny possessing a firearm, let alone take the more drastic step of revealing his waistband. In any case, we place little weight on Mr. Carter’s subjective response to Officer DelBorrell’s conduct as the Fourth Amendment seizure inquiry is an objective one—that is, whether an objective and reasonable person in Mr. Carter’s shoes would feel free to terminate the encounter. See Jackson v. United States, 805 A.2d 979, 987 (D.C. 2002).
Finally, that Officer DelBorrell requested that Mr. Carter raise his pants whereas Officer Vaillancourt asked Mr. Golden to reveal his waistband is not legally significant for present purposes. Setting aside the fact that Mr. Carter had already raised his shirt twice before Officer DelBorrell called on him to raise his pants, our main point here in Golden was not that Mr. Golden was subject to a highly intrusive inquiry (though he was), it was that the officer indicated to him that he would not be free to leave until he fully satisfied the officer that he did not possess any weapons. See Golden, 248 A.3d at 937. Similarly here, by failing to take “‘no’ for an answer,” 16
workers in a factory were not seized despite officers being stationed at the factory
doors because the workers had already voluntarily limited their movement to the
factory floor before the officers arrived).
B.
In addition to the differences between Golden and this case, we previously
concluded in two cases—Brown and Kelly—that defendants in circumstances also
not too dissimilar to those here were not seized within the meaning of the Fourth
Amendment. See generally Brown v. United States, 983 A.2d 1023 (D.C. 2009);
Kelly v. United States, 580 A.2d 1282 (D.C. 1990). In Brown, two officers
approached a group of “five or six [people] standing on [a] sidewalk.” 983 A.2d at
1024-25. One of the officers approached the defendant, Valerie Brown, and asked
if she had “any guns, drugs, or narcotics on [her].” Id. at 1025. Ms. Brown replied
that she was “not doing anything” and that she was just “counting [her] money.” Id.
The officer repeated her question and Ms. Brown “reached into her purse and handed
the officer a brown pill bottle,” which later tested positive for cocaine. Id.
We held that Ms. Brown was not seized despite the fact that the officer asked
the same accusatory question twice. Id. at 1026. We relied on the fact that the
Officer DelBorrell gave Mr. Carter the impression that he would have to respond to all his questions before being let go. Id. (alterations in original). 17
officers were outnumbered by the group Ms. Brown was a part of, the fact that she
was approached by only one officer while the other was further away speaking to
two other individuals, that the officers did not engage in behavior, “such as
threatening gestures, orders, or intimidation, which might have caused the encounter
to lose its consensual nature,” and that other members of the group walked away
unimpeded, suggesting that an objective and reasonable person in Ms. Brown’s
shoes would have felt free to leave. Id. at 1025-26. That the officer asked an
accusatory question and that she repeated her question were insufficient to overcome
the non-coercive nature of the other aspects of the interaction. See id.
In Kelly, two officers approached the defendant, James Kelly, at Union
Station. Kelly, 580 A.2d at 1284. Both officers were in plain clothes and neither
was visibly carrying a firearm or displaying their badge. Id. One of the officers
asked Mr. Kelly if he “could speak with him” and Mr. Kelly replied, “yes.” Id.
Meanwhile, the other officer stood “about four feet in front of Kelly.” Id. The
questioning officer inquired about where Mr. Kelly was arriving from, where he
lived, and how long he had lived there. Id. The officer then introduced himself as a
member of the Narcotics Branch of the police department and asked if Mr. Kelly
was “carrying any drugs.” Id. Mr. Kelly replied, “no.” Id. The officer then asked
to search Mr. Kelly’s bag, which Mr. Kelly permitted. Id. 18
Like in Brown, we held that Mr. Kelly was not seized despite being repeatedly
asked an accusatory question. Id. at 1288. We explained that the officer “made no
demands” of Mr. Kelly, never produced a weapon, and never touched Mr. Kelly. Id.
at 1286. Further, we rejected Mr. Kelly’s argument that the non-questioning officer
was impeding his movement as the officer was four feet away, did not brandish a
weapon, or make any threatening gestures. Id. Finally, we emphasized that the
questioning officer asked Mr. Kelly if he could speak with him, thereby implying to
Mr. Kelly that he did not have to comply. Id.
Brown and Kelly suggest that we should similarly overlook the fact that Mr.
Carter was repeatedly asked accusatory questions as the other aspects of the
encounter were just as non-coercive as in those two cases. Like in Brown, Mr.
Carter’s group far outnumbered the officers who approached them. In fact, the
number of non-officers to officers was approximately the same in both cases (five
to two). Further, like in Brown, Mr. Carter was initially approached by one officer,
Officer DelBorrell, while the others focused elsewhere. Indeed, at the time Officer
DelBorrell requested that Mr. Carter raise his pants, Officer DelBorrell was the only
officer in Mr. Carter’s immediate vicinity. Officer Guzman, the next closest officer,
was still several feet away. Finally, like in Brown and Kelly, the officers here did not
make any threatening gestures or orders, nor did they touch Mr. Carter, so as to
suggest that compliance was mandatory. 19
The government goes so far as to argue that considering the similarities,
Brown and Kelly control the outcome in this case. While we certainly place
analytical weight on both cases, we reject the government’s claim that they are
controlling. Brown is distinguishable for two reasons. First, unlike in Brown, no
member of Mr. Carter’s group left once the police arrived. To the contrary, not only
did members of the group comply with the officers’ requests, but some went further
by raising their shirts before they were even asked. Accordingly, unlike in Brown,
the behavior of others surrounding Mr. Carter suggest that an objective and
reasonable person in his shoes would not have felt free to leave. Second, what made
the repetitive questioning less coercive in Brown was that Ms. Brown’s first answer
was non-responsive to the officer’s question. The officer asked whether she was
carrying any contraband, and rather than replying “yes” or “no,” Ms. Brown
answered that she was simply counting her money. Brown, 983 A.2d at 1025. Thus,
it was “entirely reasonable for the officer to ask her question again.” Gordon v.
United States, 120 A.3d 73, 82 (D.C. 2015) (differentiating Brown on grounds that
the repetitive questioning in Brown was simply to seek clarification to a non-
responsive initial answer); T.W., 292 A.3d at 801 (same). Here, in contrast, Mr.
Carter explicitly denied carrying a weapon and raised his shirt twice when Officer
DelBorrell questioned him. In the face of this denial, unlike in Brown, Officer
DelBorrell implied that he was unsatisfied by asking Mr. Carter to raise his pants. 20
Kelly is also distinguishable. Namely, the officer there requested Mr. Kelly’s
permission to speak with him before questioning him, thereby indicating that
cooperation was only optional. Kelly, 580 A.2d at 1284. An acknowledgement that
an individual need not comply significantly reduces the coercive nature of a police
encounter as it dispels doubt in an individual’s mind that they must cooperate to
terminate the interaction. Whereas the officer in Kelly effectively informed Mr.
Kelly of his right to walk away by asking him if he could speak, the officers did not
do so here. Officer DelBorrell simply approached Mr. Carter from behind and began
asking if he was carrying any weapons.
* * *
In light of the similarities between this case and those in which we both found
that the defendant was seized (Golden), and not seized (Brown and Kelly), we must
look beyond the mere conduct of the officers to objectively determine whether Mr.
Carter was seized. To do so, we examine the impact of the defendant’s race. Dozier,
220 A.3d at 944. Indeed, in its suppression ruling, the trial court implicitly
recognized the relevance of race to its Fourth Amendment seizure inquiry. It
acknowledged that “in certain neighborhoods among certain demographics that are
highly policed[,] the behavior of police can convey to a reasonable . . . person that
they are compelled to allay [the] officers’ suspicion by acceding to their wishes.” 21
The court went no further, however, and instead focused its analysis solely on the
coercive nature of the officers’ conduct. It did not delve further into how the
officers’ conduct might have uniquely impacted an objective and reasonable person
sharing Mr. Carter’s racial status as a Black man. Accordingly, in this next part, we
conduct a more thorough inquiry.
C.
Dozier requires that in addition to considering the coercive nature of the
officers’ conduct in a Fourth Amendment seizure analysis, we must also take into
account the defendant’s race. Id. More specifically, we are to consider whether an
objective and reasonable person sharing the defendant’s generalized lived
experiences arising out of their racial status would have felt free to terminate the
police encounter. See id. at 944-45. Our consideration of the defendant’s race
recognizes that a Fourth Amendment seizure inquiry would be incomplete, and
indeed, incongruent with the objective reality that people of color face during
interactions with law enforcement. Id. For people of color, and as relevant here,
Black men, feel “especially apprehensive” around the police such that conduct that 22
may not rise to the level of a seizure without consideration of race, may do so once
the defendant’s race and lived experiences are accounted for. Id. at 944. 4
To inform our analysis as to the role that Mr. Carter’s status as a Black man
may have played here, it is first important to understand why Black men, generally
speaking, are especially cautious around and more likely to comply with the
demands of law enforcement. There are two central reasons. First, “[i]t is no secret”
that Black Americans are disproportionately likely to be victims of violence at the
hands of police officers, particularly during suspicionless investigatory inquiries like
the one here. Bloom, supra at note 4, at 7 (quoting Strieff, 579 U.S. at 254 (2016)
(Sotomayor, J., dissenting)). In recent years, nationally, police officers have
threatened or used non-fatal force in roughly three percent of encounters they
initiated or which resulted from a traffic accident. Nazgol Ghandnoosh & Celeste
Barry, One in Five: Disparities in Crime and Policing 9 (2023),
For a more thorough discussion as to why considering the defendant’s race 4
is consistent with the objective nature of the Fourth Amendment seizure inquiry, see, e.g., Daniel S. Harawa, Coloring in the Fourth Amendment, 137 Harv. L. Rev. 1533 (2024); Aliza H. Bloom, Objective Enough: Race is Relevant to the Reasonable Person in Criminal Procedure, 19 Stan. J. C.R. & C.L. 1 (2023); Lindsey Webb, Legal Consciousness as Race Consciousness: Expansion of the Fourth Amendment Seizure Analysis Through Objective Knowledge of Police Impunity, 48 Seton Hall L. Rev. 403 (2018); Devon W. Carbado, (E)Racing the Fourth Amendment, 100 Mich. L. Rev. 946 (2002); Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter, 26 Val. U. L. Rev. 243 (1991). 23
https://www.sentencingproject.org/app/uploads/2023/11/One-in-Five-Disparities-
in-Crime-and-Policing.pdf; https://perma.cc/J367-HYVL. During these
interactions, Black individuals were over twice as likely to be subject to force or
threatened force as White individuals. Id. And with regard to fatal force, Black
Americans were over twice as likely to be shot and killed by police officers as White
Americans. Id. Twenty-one percent of Black adults have reported being victims of
police violence on account of their race (compared to three percent of white adults)
and nearly half have stated that they were at some point fearful for their life around
law enforcement (compared to sixteen percent of white adults). Craig Palosky, Poll:
7 in 10 Black Americans Say They Have Experienced Incidents of Discrimination or
Police Mistreatment in their Lifetime, Including Nearly Half Who Felt Their Lives
Were in Danger, KFF (June 18, 2020), https://www.kff.org/racial-equity-and-
health-policy/press-release/poll-7-in-10-black-americans-say-they-have-
experienced-incidents-of-discrimination-or-police-mistreatment-in-lifetime-
including-nearly-half-who-felt-lives-were-in-danger/; https://perma.cc/RR22-
LDNJ.
Naturally, this statistical reality has led to the perception among Black
Americans, and Black men in particular, that they are unsafe around law
enforcement and that they must engage in “particular kinds of performances” around
the police to “preempt” and mitigate the risks of “law enforcement discipline.” 24
Carbado, supra at note 4, at 966. Indeed, the inundation of countless stories of young
and unarmed Black men being killed by police for their failure to comply and
generations-worth of experience in dealing with the police within the Black
community have led Black parents to give their children “‘the talk’—instructing
them to never run down the street; always keep [their] hands where they can be seen;
[and to never] even think of talking back to . . . stranger[s]—all out of fear of how
an officer with a gun will react to them.” Strieff, 579 U.S. at 254 (Sotomayor, J.,
dissenting); see Rod K. Brunson, “Police Don’t Like Black People”: African-
American Young Men’s Accumulated Police Experiences, 6 Crim. & Pub. Pol’y 71,
88 (2007) (finding that “violence at the hands of the police . . . happened enough to
convince [Black youth] that it was a real possibility during any encounter with police
officers”); Rayan Succar et al., Understanding the Role of Media in the Formation
of Public Sentiment Towards the Police, Commc’ns Psych (2024) (describing the
influential role of individual media stories of police brutality on perceptions about
the police). Having been raised in this environment, and “being more vulnerable to
police violence” than other demographic groups, Black men are more likely to
comply with police demands rather than exercise their constitutional right to
terminate a suspicionless police encounter. Dozier, 220 A.3d at 945.
Second, even setting aside the risk of provoking violence, Black Americans
are especially distrustful of law enforcement and are thus less likely to terminate a 25
police encounter due to skepticism that any attempt to exercise their constitutional
rights will be respected. From slave patrols during the antebellum era to Black
Codes post-Reconstruction to disparate charging and sentencing practices today, the
criminal legal system has historically been used as a tool to undermine rather than
uphold the freedom and dignity of Black Americans. See Daniel S. Harawa,
Whitewashing the Fourth Amendment, 111 Geo. L.J. 923, 940 (2023); see generally
Michelle Alexander, The New Jim Crow (2010). Modern-day policing reflects this
history with Black communities disproportionately subject to adverse police
interactions. See Radley Balko, There’s Overwhelming Evidence that the Criminal
Justice System is Racist: Here’s the Proof, Wash. Post (June 10, 2020),
https://perma.cc/ND2K-SUGV (cataloging studies of racial bias in the criminal
justice system, including 46 peer-reviewed studies demonstrating racial bias in
policing and profiling over the prior five years). Black Americans are more likely
to be subject to suspicionless stops and are more likely to be searched and detained
during these stops. Bloom, supra at note 4, at 7, 13 (citing U.S. Dep’t Justice,
Investigation of the Ferguson Police Department 4 (2015),
https://www.justice.gov/sites/default/files/opa/press-
releases/attachments/2015/03/04/ferguson_police_department_report.pdf;
https://perma.cc/ZBT9-7BJP (concluding that Black drivers were “more than twice
as likely as white drivers to be searched during vehicle stops even after controlling 26
for non-race variables”)). Black men in particular also tend to be questioned more
accusatorily and aggressively—a product of both historical tension between law
enforcement and the Black community and, as social science research suggests,
stereotyping of Black men as being dangerous and criminally predisposed. Carbado,
supra at note 4, at 982; Graham Cronogue, Race and the Fourth Amendment: Why
the Reasonable Person Analysis Should Include Race as a Factor, 20 Tex. J. C.L &
C.R. 61 (2015). That is, whereas a police officer’s objective in questioning a White
individual will be to simply “check things out,” they will often “need more time with
and more information from the” Black individual given their perception that the
Black individual is more likely to engage in criminal activity. Carbado, supra at
note 4, at 982.
It should therefore come as “no surprise” that Black Americans “often
perceive their interactions with law enforcement differently than other
demographics.” State v. Spears, 839 S.E.2d 450, 463 (S.C. 2020) (Beatty, C.J.,
dissenting). Eighty-four percent of Black adults have said that in dealing with the
police, Black Americans are generally treated less fairly than other demographic
groups. Drew DeSilver et al., 10 Things we Know About Race and Policing in the
U.S., Pew Rsch. Ctr. (June 3, 2020), https://www.pewresearch.org/short-
reads/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/;
https://perma.cc/RH4E-D3UA. Eighty-seven percent have said that the criminal 27
legal system as a whole treats Black Americans less fairly. Id. Such distrust, sown
both historically through the use of the criminal legal system to subjugate Black
Americans and via biased modern police practices, has produced an objective reality
in which Black Americans lack confidence that the police will respect the exercise
of their rights. Maclin, supra at note 4, at 254. Rather, to avoid suffering physical
abuse and criminal consequences during suspicionless police interactions, Black
Americans, and Black men in particular, are often left with no other choice but to
remain “calm” and “congenial” and comply with the requests of law enforcement.
Id. at 278.
Applying this understanding as to why Black men are especially apprehensive
around police, it is clear that many of the historical features of blue-on-black
interaction that have led to this perception were present in Mr. Carter’s encounter.
First, Mr. Carter was confronted in a predominantly Black area in a group consisting
entirely of Black men by GRU officers who were wearing tactical gear and who
were visibly displaying their firearms. This alone was likely sufficient to trigger the
elevated fear that Black men experience around law enforcement not only because
the officers were carrying openly visible firearms but also because their selective
targeting reflected a pervasive understanding that the police target Black men and
treat them unfairly. Moreover, the GRU (now the VCIT) has a “reputation for
[aggression].” Mayo, 315 A.3d at 631; Robinson, 76 A.3d at 331-32, 339 (noting 28
GRU’s acknowledged “technique” of confronting people on the street, “ask[ing]
people if they have a gun,” and then “looking for a reaction,” including people’s
“movements” in response to the question (internal quotation marks omitted)); United
States v. Gibson, 366 F. Supp. 3d 14, 21 (D.D.C. 2018) (describing how the GRU
“trawl[s]” certain “neighborhoods asking occupants who fit a certain statistical
profile—mostly males in their late teens to early forties—if they possess contraband[
] [d]espite lacking any semblance of particularized suspicion when the initial contact
is made” (quoting United States v. Gross, 784 F.3d 784, 789 (D.C. Cir. 2015)
(Brown, J., concurring))). It is also known to selectively target Black individuals.
See Michael G. Tobin, Metropolitan Police Department Narcotics and Specialized
Investigations Division 5, 20, 26, (2020),
https://policecomplaints.dc.gov/sites/default/files/dc/sites/office%20of%20police%
20complaints/publication/attachments/National%20Police%20Foundation%20MP
D%20NSID%20Report%20September%202020%20Final.pdf;
https://perma.cc/S29N-PMF7 (reporting that between August 1, 2019 and January
31, 2020, Black individuals were the subject of over 87% of GRU stops, 91% of
arrests, and 100% of use-of-force incidents). Given this background, it should not
come as a shock that several of the men in Mr. Carter’s group immediately
capitulated to the police presence, including Mr. Carter, by raising their shirts despite
not being asked to. Indeed, whereas any reasonable person would be fearful of 29
failing to cooperate under these circumstances, a Black man would be especially
cautious here so as to avoid potential physical retaliation. 5
Second, compounding the already racially charged and coercive environment
in which Mr. Carter’s interaction with the police took place, Officer DelBorrell
accusatorily and repetitively questioned him regarding whether he possessed a
firearm. As explained above, Black men already widely believe that police officers
disrespect their rights. We view it as likely that Officer DelBorrell’s failure to accept
Mr. Carter’s initial denial triggered a fear that Officer DelBorrell would not permit
Mr. Carter to terminate the encounter without first dispelling his suspicions. To
avoid prolonging the suspicion, Mr. Carter felt compelled to comply rather than
attempt to exercise his constitutional rights.
5 The VCIT and similar police tactical units that engage in large-scale suspicionless investigations are generally distinguishable from those police units that are engaged in what many refer to as community policing activities. Generally speaking, community policing promotes the systematic use of partnerships and problem-solving techniques to proactively address the conditions that give rise to public safety issues. U.S. Dep’t Justice, Community Policing Defined 1 (2014), https://portal.cops.usdoj.gov/resourcecenter/content.ashx/cops-p157-pub.pdf; https://perma.cc/9GU6-CNH7. Typically, police officers are assigned to particular communities where they get to know and work with community leaders and others to address the immediate conditions that give rise to public safety issues. 30
III. Conclusion
Accordingly, taking into account the coercive nature of the officers’ conduct
and factoring in the elevated effect that this would have had on an objective and
reasonable Black man in Mr. Carter’s shoes, we hold that Mr. Carter was seized
within the meaning of the Fourth Amendment when Officer DelBorrell requested
that he raise his pants. The combination of the impressive show of authority
reflected in the officers’ initial approach and the accusatory and repetitive nature of
Officer DelBorrell’s questioning already resembled a scenario in which we held a
seizure took place. Compounding the compulsive effect of the police tactics here
was that they were used against a man for whom, by virtue of his race and lived
experiences, it would have been objectively reasonable to be apprehensive around
police officers. Given the facts of this case, we believe that such apprehension would
have led an objective and reasonable Black man in Mr. Carter’s shoes to feel as
though he had to comply with the officers’ demands rather than terminating the
encounter. For this reason, we are satisfied that Mr. Carter was seized when Officer
Delborrell disbelieved his initial response, and further requested that he raise his
pants. Because this seizure was not based on reasonable suspicion or probable cause,
it was unreasonable and violated the Fourth Amendment. The trial court thus erred
in failing to suppress the fruits of the seizure—the firearm and Mr. Carter’s later
statement. 31
For the foregoing reasons, we vacate Mr. Carter’s convictions and remand for
further proceedings.
So ordered.
MCLEESE, Associate Judge, concurring in the judgment: The opinion for the
court holds that Mr. Carter was unlawfully seized. Ante at 30. I respectfully concur
in the judgment.
As the opinion for the court notes, the key facts are undisputed: (1) in public
and during the daytime, a group of five officers approached a group of ten men that
included Mr. Carter; (2) one of the officers asked Mr. Carter how he was doing;
(3) Mr. Carter lifted his shirt to show his waistband; (4) the officer asked if Mr.
Carter had “nothing” on him; (5) Mr. Carter responded no and lifted his shirt again;
and (6) the officer asked if Mr. Carter “mind[ed] hiking [his] pants for me real
quick?” Ante at 2-4.
Describing the case as “close,” ante at 9, the opinion for the court appears to
give dispositive weight to an additional consideration: that Mr. Carter as a Black
man would reasonably be “especially apprehensive around police” and “especially
distrustful of law enforcement,” ante at 24, 27, and therefore would reasonably have
felt obliged to comply with the officer’s request to hike up his pants, ante at 30. 32
In support of the conclusion that Mr. Carter’s race is properly considered in
determining whether Mr. Carter was seized, the opinion for the court relies on this
court’s decision in Dozier v. United States, 220 A.3d 933 (D.C. 2019). I concurred
in the judgment in Dozier. Id. at 948-51 (McLeese, J., concurring in the judgment).
Among other things, I expressed uncertainty as to whether the race of a suspect can
permissibly be considered in assessing whether police conduct constitutes a seizure.
Id. at 950-51 (citing conflicting authority on issue). The opinion for the court in
Dozier held, however, that Mr. Dozier’s race should be so considered. Id. at 943-45.
That holding is binding on me. E.g., M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
Taking as a given that Mr. Carter’s race may properly be considered, I agree
with the conclusion of the opinion for the court that, although this is a close case,
Mr. Carter was seized. Ante at 9, 30. I therefore respectfully concur in the judgment.