Ervin v. United States

CourtDistrict of Columbia Court of Appeals
DecidedJanuary 22, 2026
Docket24-CF-0803
StatusPublished

This text of Ervin v. United States (Ervin v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ervin v. United States, (D.C. 2026).

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-CF-0803

DAVEION A. ERVIN, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the District of Columbia (2023-CF2-003352)

(Hon. Jason Park, Trial Judge)

(Submitted October 1, 2025 Decided January 22, 2026)

Nigel A. Barrella was on the brief for appellant.

Edward R. Martin, Jr., United States Attorney at the time the brief was filed, and Megan Abrameit, Chrisellen R. Kolb, Eric Hansford, and Samuel Ison, Assistant United States Attorneys, were on the brief for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and DEAHL, Associate Judges.

DEAHL, Associate Judge: Daveion Ervin was with his daughter and his partner

at a playground in a public park when several police officers approached him. The

first two officers approached him in a casual manner and explained to Ervin that they

wanted to speak with him because he had walked away from a group of individuals 2

that other officers had approached in another part of the park. Ervin explained that

he was “there with [his] kid” and had gone to “holler at” some of the individuals in

the group but then returned to his daughter and partner “because there was a lot of

police coming” and he did not want to be involved with that. In the meantime, three

more officers approached Ervin from different directions, with the now-five officers

effectively encircling him. One of the officers then asked Ervin if he had a firearm,

and he admitted that he did. The officers recovered a firearm from Ervin’s waistband

and arrested him. Ervin moved to suppress the firearm as the fruit of an unlawful

seizure. The trial court denied that motion and Ervin was convicted of several

firearms-related offenses.

Ervin now appeals his convictions, challenging the trial court’s denial of his

motion to suppress. He argues, among other things, that he was seized without

reasonable articulable suspicion when the group of five armed and uniformed police

officers encircled him specifically and that the recovered firearm was a fruit of that

unlawful seizure. We agree with Ervin and reverse each of his convictions.

I. Background

At around 6:30 p.m. one May evening, while it was still bright out, several

police officers on routine patrol noticed a group of about a dozen Black men in a

public park near the Marvin Gaye Recreation Center. The armed and uniformed 3

officers were not responding to any report of criminal activity in the area, but they

believed some of the men were smoking marijuana. Appellant Daveion Ervin broke

off from the group as officers first approached it, and he walked about fifty yards

over to where his daughter was playing at a playground on the other side of the park.

One of the officers pointed at Ervin as he was walking away and radioed Investigator

Robert Marsh, who had remained outside the park, to go “make contact with” Ervin.

Marsh and Lieutenant Kenyon Hogans approached Ervin on the playground,

and their interaction with him was captured on multiple officers’ body worn

cameras. Ervin was facing the play structure where his daughter was playing and

where his partner was sitting. Marsh and Hogans both casually walked up to Ervin

from his left side as Hogans asked, “how you doing, sir?” Ervin responded, “what’s

up,” and Hogans continued, “we just came to check you out, man.” Ervin

immediately lifted his arms as if preparing to be searched, and Hogans responded,

“hold on, no,” or something to that effect. 1 Ervin lowered his hands and said, “I’m

chilling. I’m right here with my kid, man. I’m chilling.” Hogans then said, “the

only reason we came, we pulled up, is back there you started looking all crazy,”

pointing toward the group Ervin had walked away from. Ervin responded that he

1 The exact exchange is hard to hear, but the trial court found that Hogans said, “No, wait. Hey, hey. Look,” and interpreted that to mean “Hey, I’m not asking you to raise your hands. That’s not what I was asking for.” 4

had “just stepped out because there was a lot of police coming here” and “just went

over there to holler” at the group before returning to the playground. Ervin’s arms

were outstretched along his sides with his palms facing down.

As that conversation took place over the course of about fifteen seconds,

Marsh walked to the other side of Ervin so that he and Hogans stood on opposite

sides of him, while three other officers came from two different directions to

effectively encircle Ervin. Marsh and Hogans were within arm’s reach of Ervin

while the other three officers stood about five to ten feet away from him. Ervin’s

partner was at his 12 o’clock, on the play structure, while the five officers stood

approximately at Ervin’s 2, 3, 6, 9, and 11 o’clock. The officer’s precise positioning

is depicted in the still frame below, which is an image taken from the body-worn

camera of Officer Allorie Kelemen, the late-arriving officer at Ervin’s 2 o’clock.

Ervin is the man standing in the circle of officers with his arms extended out to his

sides, while his partner is the woman sitting at the foot of the play structure. 5

With the officers so positioned, and about one second after what is depicted

above, Officer Marsh (in the forefront of the still image above, at Ervin’s 3 o’clock)

asked Ervin: “You don’t have a firearm on you?” Ervin responded: “yeah I have a

firearm.” Officers then grabbed Ervin’s arms and conducted a frisk, during which

they recovered a firearm from his waistband. Ervin was charged with (1) unlawful

possession of a firearm; (2) carrying a pistol without a license; and (3) possession of

an unregistered firearm.

Ervin moved to suppress the firearm as the fruit of an unlawful seizure. After

a hearing where the above facts were established, the trial court found that Ervin was

not seized until after he admitted to having a firearm, when the officers grabbed his

arms. The trial court acknowledged that five armed and uniformed police officers 6

stood on “all different sides” of Ervin, with Marsh and Hogans “close enough to

potentially touch him” before Ervin admitted that he had a firearm. But in the trial

court’s view, the “mere fact that [Ervin] was surrounded by officers” did not

constitute a seizure given the officers’ “cordial” tone when questioning Ervin, their

casual approach “one at a time,” the brevity of the encounter, and the fact that it took

place in a public park during the day with others around.

The case proceeded to trial and a jury convicted Ervin on all three counts.

Ervin now appeals.

II. Analysis

Ervin argues that (1) officers unlawfully seized him before he admitted that

he had a firearm; (2) even after his admission, officers did not have reasonable

articulable suspicion to frisk him, or probable cause to arrest him, because they had

no particular reason to believe that Ervin was not in lawful possession of his firearm;

and (3) the District’s laws regulating the registration and licensure of firearms are

unconstitutional in light of the Supreme Court’s recent decision in New York State

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