United States v. Gorham

• Court: District Court, District of Columbia
• Decided: August 5, 2018
• Docket: Criminal No. 2018-0008
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 18-08 (RDM) STEVEN GORHAM,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Steven Gorham’s motion to suppress

physical evidence and statements. Dkt. 5. The relevant events occurred on December 4, 2017,

when two Metropolitan Police Department (“MPD”) officers approached Gorham at the

Woodland Terrace apartment complex. At first Gorham ignored them, looking instead at his cell

phone, but, as soon as one of the officers addressed him, Gorham fled. After a brief chase, an

officer tackled him. Seconds later, another officer frisked Gorham while he was still pinned on

the ground, and that frisk revealed a handgun. Based on that evidence and evidence that Gorham

had a prior felony conviction, Gorham is charged with one count of violating 18 U.S.C.

§ 922(g)(1). He moves to suppress the gun and statements that he made after the police caught

him, arguing that the officers lacked reasonable suspicion to seize and to frisk him. For the

reasons explained below, the Court will DENY the motion to suppress.

I. BACKGROUND

The Court has reviewed Defendant’s motion, Dkt. 5, the government’s opposition, Dkt. 6,

the government’s supplemental brief, Dkt. 14, and Gorham’s response to the government’s

supplemental brief, Dkt. 20. The Court held an evidentiary hearing on April 16, 2018, see

Minute Entry (Apr. 16, 2018), and heard oral argument on May 18, 2018, see Minute Entry (May 18, 2018). A further evidentiary hearing was held on June 7, 2018, to hear from the officer who

frisked Gorham, see Minute Order (May 21, 2018); Minute Entry (June 7, 2018), and the Court

heard further oral argument on June 29, 2018, see Minute Entry (June 29, 2018). Cornel

Kelemen, one of the MPD officers present at Gorham’s arrest, testified at the initial evidentiary

hearing and footage from his body-worn camera was admitted into evidence as Government’s

Exhibit 1. Footage from the body-worn camera of Officer Artavius Williams was introduced

into evidence as Government’s Exhibit 2. Minute Order (June 8, 2018). Officer Michael

Moshier, who frisked Gorham, testified at the June 7, 2018 hearing. Minute Entry (June 7,

2018). Footage from his body-worn camera was introduced into evidence as Government’s

Exhibit 6. Where not otherwise noted, the facts described below are derived from the Court’s

review of the body-worn camera videos.

On December 4, 2017, Kelemen and three other MPD officers were on patrol near the

2300 block of Ainger Place, S.E., in the District of Columbia. Dkt. 22 at 19. All were members

of the MPD’s Seventh District Crime Suppression Team, Dkt. 5 at 2, a specialized unit that does

not answer radio calls but, instead, goes “to areas that have higher call volume, that have citizen

complaints for drug activity, things like that.” Dkt. 22 at 5. Members of the team receive

additional training, including in identifying armed individuals. Id. at 6. On the afternoon of

December 4, the four officers drove in a marked police car to Woodland Terrace, a group of

apartment buildings located at 2317 Ainger Place, S.E. Dkt. 5 at 2. Each officer was wearing

his MPD uniform. Dkt. 22 at 19. The team was responding to “a high number of sounds of

gunshots specifically coming from the Woodland [Terrace] area.” Id. at 12; id. at 13 (describing

2 a “[n]umerous, numerous number of gunshots”). The gunshots had been identified by an

automated system employed by the MPD called “ShotSpotter.”1 Id. at 12.

Kelemen was sitting in the rear driver’s side seat of the car as it approached a courtyard

between several apartment buildings. His body-worn camera was on, but nothing meaningful is

visible outside the vehicle. A second officer with a body-worn camera, Artavius Williams, was

seated in the rear of the car on the passenger’s side. Williams’s video also shows little of what is

occurring outside of the vehicle. Taken together with Kelemen’s testimony, however, the Court

finds that, as the police car drove slowly down an alley toward the courtyard, the officers

“observed a group of individuals”—more than five, less than ten—standing together in the area

between the buildings. Id. at 20. As the police car approached the group, “two individuals, one

of [whom] was the defendant, . . . br[oke] away from that group and walk[ed] to the left side” of

the area as viewed from the officers’ perspective. Id. Kelemen and the other officers had never

seen or encountered Gorham before, but their attention was drawn to him because, as the officers

were “coming up, [Kelemen] didn’t see [Gorham’s] right hand swinging as hard as his left

hand.” Id. at 21. Gorham also “picked up a cellphone . . . with his left hand” as the officers

approached. Id. Kelemen found “those two characteristics . . . a little suspicious” and “traits of

an armed gunman or somebody trying to hide something, distract the police officer with a cell

phone.” Id. at 21–22. The government elsewhere describes Gorham’s movements as “blading

his body away from the officers” and “walking without swinging his right arm.” Dkt. 6 at 2.

At that point, Kelemen and two of the other officers exited their vehicle. Gorham and a

man in a red sweatshirt continued walking away from the group of people toward a concrete path

1 “ShotSpotter is a system used to automatically detect gunfire and automatically report it to the police.” United States v. Hidalgo, No. 13-cr-10017, 2015 WL 13388426, at *5 n.5 (D. Mass. Jan. 23, 2015).

3 running between several apartment buildings. Gorham had a cellphone in his left hand, which

appeared to occupy his attention as the officers approached. He walked slowly away from them.

Although it is not clear from the video whether Gorham kept his right arm from swinging as he

walked, it does show that his right side was turned away from the officers. Around this time

Kelemen and Williams activated their body-worn cameras, triggering the recording of sound and

preserving the two minutes of footage that led up to the initial in-person encounter. As the

officers drew close to the two men, Gorham’s view shifted back and forth between his phone and

the police. Kelemen called out, “How’re you doing gentlemen? Happy holidays.” At that point,

Kelemen was only a few feet from Gorham, who stopped and raised his cell phone in his left

hand, turning toward Kelemen. Gorham looked up from the phone momentarily, before turning

to his right and sprinting away down the concrete walkway. None of the other individuals in the

courtyard fled.

Kelemen and Williams immediately gave chase. They said nothing to Gorham as they

followed him at a full run down the pathway and around two apartment buildings. After about

thirty seconds, Williams caught Gorham by his hair and pulled him to the ground. Once Gorham

was on the ground, Williams handcuffed him with the assistance of Kelemen and the two other

members of the patrol, all of whom arrived within a few seconds of Williams pulling Gorham to

the ground. Moshier patted Gorham down after he had been handcuffed, and felt a weapon on

Gorham’s right thigh, inside of his pants. Dkt. 22 at 28–29. The officers loosened Gorham’s

belt and pulled down that side of his pants, revealing a handgun just below his waist on his right

side. As Gorham was being handcuffed, he also said “I’ve got weed on me,” but no drugs were

seized. Id. at 29. The police then ran the gun’s serial number and Gorham’s name through

electronic databases, which showed that the gun had been reported stolen and that Gorham had a

4 previous felony conviction. Dkt. 6 at 2. The officers arrested Gorham, who was charged in the

D.C. Superior Court on January 10, 2018. On January 22, 2018, Gorham was arraigned in this

Court, and, at that time, the D.C. charges were dropped.

II. ANALYSIS

Defendant’s motion raises three issues. First, he challenges the legality of the seizure of

his person, arguing that Officer Williams lacked the reasonable suspicion required to conduct a

Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). Second, although not set forth as a separate

ground for suppression in his motion, Gorham’s arguments raise the question of whether the

frisk that Moshier conducted after Gorham’s seizure was lawful.2 Third, because Gorham at

times describes his motion as seeking to suppress physical evidence and statements, Dkt. 5 at 1;

but see id. at 8 (seeking only “to suppress the firearm recovered on December 4, 2017”); Dkt. 5-1

at 1 (same), the Court considers whether Gorham’s statement “I’ve got weed on me,” made after

he was seized, should be suppressed.

A. Seizure

The parties agree that Terry and Illinois v. Wardlow, 528 U.S. 119 (2000), provide the

relevant framework for evaluating whether the MPD officers lawfully seized Gorham. In Terry,

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.” Wardlow, 528 U.S. at 123. An officer making such an investigatory stop,

however, “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). The Court in

2 Gorham did raise the legality of the search as an independent ground for suppression at the Court’s second hearing on the motion. May 18, 2018 Hrg. Tr. (Rough at 2:2–3, 9:1–9, 11:20– 21).

5 Wardlow applied the standard for reasonable suspicion articulated in Terry to hold that

“unprovoked,” “[h]eadlong flight” in combination with “presence in an area of expected criminal

activity”—elsewhere referred to in the opinion as a “high[-]crime area” or “area of heavy

narcotics trafficking”—suffices to justify further investigation through a brief detention.

Wardlow, 528 U.S. at 124–26. Because Gorham’s flight from the police occurred in a high-

crime area, the Court concludes that the seizure of his person did not violate the Fourth

Amendment. Each of Gorham’s arguments to the contrary is unavailing.

First, Gorham disputes the characterization of his flight as “unprovoked” because Officer

Kelemen was “within two feet of” Gorham when he fled. Dkt. 5 at 6. Gorham suggests that he

was, in fact, the target of the police’s approach and that Kelemen “clearly ha[d] manifested his

physical presence and . . . direct[ed] it toward” the defendant. Id. He offers no support for the

proposition that such actions somehow prevent the police from drawing the inference approved

of by the Supreme Court in Wardlow. Although that opinion does not define what sort of flight

falls under the aegis of “unprovoked,” the D.C. Circuit has observed that the Supreme Court

“str[uck] an explicit contrast between a person’s ‘right to ignore the police and go about his

business’ and ‘unprovoked flight upon noticing the police.’” United States v. Stubblefield, 820

F.3d 445, 451 (D.C. Cir. 2016) (quoting Wardlow, 528 U.S. at 124–25). The body-worn camera

footage in this case reveals nothing unusual or aggressive about the approach of the police

officers that would have prevented a reasonable person from continuing to “go about his

business.” Gorham was free to walk away from the police—as indeed he did at first and the man

in the red sweatshirt continued to do—and need not have spoken with them.3 Conversely, the

3 Gorham does not argue that he was seized prior to being tackled. Dkt. 5 at 7 (“Because Mr. Gorham did not yield to the police officer pursuing him, the seizure takes place when he is

6 police were free to approach him and to attempt to engage him in conversation. His decision to

sprint away from the officers as soon as one drew close enough to engage in such an exchange

was more than “a mere refusal to cooperate” and represents the sort of unexplained, “headlong

flight” contemplated by the Supreme Court in Wardlow. See 528 U.S. at 125.

Second, Gorham asserts that the criminal activity the police have identified as occurring

in the area where he was seized is of a different kind than the criminal activity at issue in

Wardlow. He offers no legal basis, however, for drawing a distinction between “an area known

for heavy narcotics trafficking”—as was the case in Wardlow—and an area suffering from a

“recent spate of gun violence”—as was the case here. Dkt. 5 at 5. Nor does the case law support

such a distinction. As noted above, the Wardlow Court itself described the area where that

defendant was stopped in more general terms. See 528 U.S. at 123 (describing the Illinois state

court opinions as referencing a “high[-]crime area”); id. 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.”); id. (discussing “presence in an area of expected criminal activity” and “the

relevant characteristics of a location”). Lower courts applying the decision, moreover, have held

that a high incidence of criminal activity other than narcotics trafficking—such as gun and other

violent crimes—can contribute to an officer’s reasonable suspicion under the Wardlow test. See,

e.g., United States v. Patton, 705 F.3d 734, 738 (7th Cir. 2013) (holding that reasonable

suspicion sufficient for an investigatory stop and protective pat down existed, in part, because of

“specific and recent indicia of violence, including gun-related violence”); United States v.

forcibly stopped.”). Nor could he. See United States v. Goddard, 491 F.3d 457, 461 (D.C. Cir. 2007) (holding that no seizure occurred when four police officers, “all with guns and handcuffs showing and wearing identifiable MPD jackets and badges,” quickly exited police car and approached defendant).

7 Young, 707 F.3d 598, 604 (6th Cir. 2012) (describing as “high crime” for purposes of reasonable

suspicion analysis an area with a history of only violent crime). The Court, accordingly, rejects

Defendant’s invitation to draw a categorical distinction between “area[s] known for heavy

narcotics trafficking” and areas experiencing high levels of crime involving guns.4 The Court

does, however, consider the type and intensity of past crime in the area when evaluating the

reasonableness of the officers’ suspicion. See Wardlow, 528 U.S. at 124 (holding that officers

need not “ignore the relevant characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further investigation”); Young, 707 F.3d at

604 (considering history of crime in an area when evaluating reasonableness of suspicion).

Third, Gorham contends that the government has failed to present sufficient evidence that

the apartment complex where the relevant events occurred was a high-crime area at the time of

his flight. At the evidentiary hearing held on April 16, 2018, the government presented two

types of evidence in support of its characterization of the apartment complex as a high-crime

area. First, it offered the testimony of Officer Kelemen regarding his own experiences in the

area as a member of a special crime suppression team. Second, it provided a list of crimes

recently committed in the area that Kelemen and another officer assembled using the MPD’s

database of police reports. Dkt. 22 at 13–14.

Taken together, the testimony of Officer Kelemen—who patrolled the area on a near

daily basis—and the report adequately establish that the apartment complex at issue is a “high-

4 The Court also notes that Kelemen testified that his unit patrols areas with high numbers of “citizen complaints” about “drug activity,” Dkt. 22 at 5, and that the apartment complex where Gorham was first confronted had generated “a lot of citizen complaints . . . for people hanging out selling drugs,” id. at 10; see also id. at 45. Even if the Court were to conclude that Wardlow speaks only to areas with heavy narcotics activity, in light of Kelemen’s testimony, it would still reject Gorham’s argument that the area in question could not have contributed to the reasonable suspicion of the officers who arrested him.

8 crime area” within the meaning of Wardlow. There is significant narcotics activity in the area,

Dkt. 22 at 10–11; the officers in Kelemen’s unit frequently recover guns in the area (including

two prior recoveries by Kelemen himself), id. at 11; Kelemen has been personally involved in

the arrests of more than ten people in the area, id. at 9; gunshots are common in the area, id. at

12–13; and relative to other areas within Kelemen’s district, it has a higher than average number

of “illegal gun arrests” and amount of gun violence, id. at 11–12. Government’s Exhibit Five (as

corrected, see Dkt. 13 at 2) supports Kelemen’s belief that the vicinity of the apartment complex

has experienced a high degree of gun-related crime. In the thirty days preceding Kelemen’s

interaction with Gorham, there were four reports of gunshots, two reports of bullets striking

property, an armed robbery, four assaults involving guns, and two incidents involving possession

of unlicensed pistols in the area. See Government’s Ex. 5; see also Dkt. 22 at 17–19. Although

the government has not offered any detailed comparison of crime in other neighborhoods or

areas, the Court notes that on an absolute scale, the amount of crime in the weeks prior to

Gorham’s seizure was substantial. Indeed, the crime suppression team had been dispatched to

the area on the day of Gorham’s arrest at least in part because of a recent spate of gunshots. The

Court further credits the testimony of Officer Kelemen that the apartment complex stood out

among those within his patrol area as a frequent site of gun violence and drug distribution.

At oral argument, Gorham added a different twist to his argument, noting that the

evidence of illegal gun use in the area involved activity occurring at night, while Gorham was

seized in the late afternoon. He offers no support, however, for the proposition that the treatment

of an area as a “high-crime” area for purposes of Wardlow depends on whether the flight and the

past crime occurred around the same time of day. To be sure, time of day can factor into an

officer’s reasonable suspicion. United States v. Laing, 889 F.2d 281, 286 (D.C. Cir. 1989); see

9 also United States v. Pacheco, 841 F.3d 384, 394 (6th Cir. 2016) (observing that “time of day is

relevant without being independently dispositive” to the reasonable suspicion inquiry (internal

quotation marks omitted)); United States v. Fager, 811 F.3d 381, 386 (10th Cir. 2016) (stating

that time of day “can influence an officer’s reasonable suspicion”); United States v. Tiong, 224

F.3d 1136, 1140 (9th Cir. 2000) (same). But that line of cases speaks to a distinct factor that can,

at times, weigh in the totality of circumstances that determine whether there exists reasonable

suspicion “that criminal activity is afoot.” Wardlow, 528 U.S. at 123. Absent much more than

Gorham has offered, however, the time of day does not preclude an officer from reasonably

relying on an individual’s decision to turn and flee when approached in a high-crime area, even

if that criminal activity often occurs (or is often detected) later at night. To hold otherwise would

run counter to the approach taken by the D.C. Circuit, see, e.g., Laing, 889 F.2d at 286

(describing “the ‘high-crime’ nature of the area” and “the time of day” as separate considerations

within the reasonable suspicion analysis, and not referencing any temporal element to the

former); United States v. Edmonds, 240 F.3d 55, 60–61 (D.C. Cir. 2001) (same); United States v.

Reid, 997 F.2d 1576, 1581 (D.C. Cir. 1993) (same), and to the commonsense notion that drugs,

guns, and other contraband do not simply appear and disappear as the sun sets and rises.

The Court, accordingly, concludes that, because Gorham took headlong flight without

provocation upon the approach of police officers in a high-crime area, the officers had

reasonable suspicion to conduct an investigatory stop. That conclusion is buttressed by the

additional indicia of suspicious activity Gorham displayed. First, as officers approached the

area, Gorham immediately walked away from a larger group of people while observing the

police and while all but one of the remaining members of the group took no action. Second, his

body language while leaving the group—in particular his failure to swing his right arm, his

10 apparent effort to keep his right side facing away from the police, and his focus on his cell phone

while ignoring the approaching officers—appeared indicative of firearm possession to an officer

with special training in identifying armed individuals. Third, even though a second individual

also walked away from the group, Gorham alone took flight as soon as Kelemen addressed him.

At oral argument, Gorham’s counsel stressed that this conduct is fully consistent with innocent

or “everyday” behavior. May 18, 2018 Hrg. Tr. (Rough at 12:15–13:6). The Supreme Court,

however, rejected a similar argument in Wardlow, holding that “ambiguous” conduct that is

“susceptible of innocent explanation” can nonetheless support a reasonable suspicion when

considered in light of “the totality of the circumstances.” Wardlow, 528 U.S. at 125–26. Fourth,

Kelemen observed that, as Gorham ran, he at times failed to “swing his right arm fully” and “a

couple of times . . . held [his right arm] for a second as if he’s checking something or adjusting

something while he’s running.” Dkt. 22 at 43–44. Although the body-worn camera footage is

too choppy to confirm or refute this testimony, the Court finds that Kelemen’s testimony was

credible.

Gorham’s final objection to the Terry stop rests on the fact that, even if Kelemen had

reasonable suspicion to seize Gorham, Kelemen is not the officer that seized him. Gorham notes

that the case law requires the reasonable suspicion inquiry begin with “what facts were known to

the officer” at the time of the seizure, United States v. McKie, 951 F.2d 399, 402 (D.C. Cir.

1991) (per curiam), and argues that, because Williams—the seizing officer—did not testify, the

facts known to him remain unclear. Although the Court would have benefited from hearing from

Williams, the Court does not agree that his testimony was essential. As the D.C. Circuit has

explained, “[t]he Terry standard [is] one of objective reasonableness.” Id. That means that the

Court is “not limited to what the stopping officer says or to evidence of his subjective rationale;

11 rather [the Court] look[s] to the record as a whole to determine what facts were known to the

officer and then consider[s] whether a reasonable officer in those circumstances would have been

suspicious.” Id.

Assuming for the sake of argument that Williams—situated mere feet away—saw none

of the specific, suspicious movements described by Kelemen, the record makes clear that

Williams still possessed sufficient information to support an investigatory stop. First, as shown

by his pursuit of Gorham and his body-worn camera footage, Williams was fully aware that

Gorham had taken headlong, unprovoked flight. Second, Kelemen’s testimony regarding the

high-crime reputation of the area leaves little doubt that this fact was widely known to the

officers who patrolled the area. Kelemen testified, for instance, that the crime suppression team

of which he and Williams were both members regularly responded to the area, was patrolling in

the area after receiving ShotSpotter reports of gunfire, and was well aware of the criminal

activity occurring in the area. Dkt. 22 at 45–47. The Court need not have before it Williams’s

own testimony or other “evidence of his subjective rationale,” McKie, 951 F.2d at 402, to

conclude that a reasonable officer, familiar with the area and observing Gorham’s headlong

flight, had an objectively reasonable basis to seize the defendant, Wardlow, 528 U.S. at 124.

For these reasons, Officer Williams’s seizure of Gorham was based on “more than an

‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity,” Wardlow, 528 U.S. at

123–24 (quoting Terry, 392 U.S. at 27), and, accordingly, did not violate the Fourth

Amendment.5

5 Although his motion references the manner in which he was seized, Gorham has not expressly challenged the force used to affect that seizure. But, even if the Court were to construe his motion to raise such an objection, the D.C. Circuit’s decision in United States v. Dykes, 403 F.3d 717 (D.C. Cir. 2005), would decide the matter. In that case, the court held that tackling and

12 B. Search

The Court’s determination that the seizure of Gorham’s person comported with the

Fourth Amendment does not, on its own, decide the question whether Moshier’s frisk of Gorham

after that seizure was constitutional. A police officer may conduct “a reasonable search for

weapons for the protection of the police officer, when he has reason to believe that he is dealing

with an armed and dangerous individual, regardless of whether he has probable cause to arrest

the individual for a crime.” Terry, 392 U.S. at 27. “The officer need not be absolutely certain

that the individual is armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.” Id. As with the

seizure discussed above, the officer may not rely on an “inchoate and unparticularized suspicion

or ‘hunch,’” but, rather, must rest his decision to conduct a limited search for weapons on

“specific reasonable inferences which he is entitled to draw from the facts in light of his

experience.” Id.

The present case resembles United States v. Gross, in which four police officers drove

alongside a young man, calling out “Hey it’s the police, how are you doing? Do you have a

gun?” and “Can I see your waistband?” 784 F.3d 784, 785 (D.C. Cir. 2015). The police

eventually stopped, got out of the vehicle, and asked if they could search the man. Id. at 786.

He ran away instead. Id. An officer giving chase observed behavior similar to Gorham’s

handcuffing a suspect who had fled after being approached by police officers was lawful. Dykes, 403 F.3d at 720 (“[B]ecause Dykes was in full flight from officers who were justified in stopping him, tackling him was a reasonable method of effectuating the stop.”); see also id. (holding that handcuffing suspect was reasonable because “Dykes had kept his hands near his waistband, resisting both the officers’ commands and their physical efforts to move his hands into plain view,” making “it reasonable for the officers to fear that Dykes had a weapon in his waistband”). Although the suspicious behavior that supported the inference that Gorham could be armed and thus justified tackling and handcuffing him primarily occurred prior to his apprehension, it was no less significant than the behavior observed in Dykes.

13 actions, including that the suspect “patt[ed] his right side with his hand as he ran, behavior that

[the officer] later testified ‘can mean someone is trying to hold a gun in their waistband.’” Id.

Once the officer caught the fleeing suspect, he frisked him and recovered a handgun from

“underneath [the man’s] waistband.” Id. Although not challenged on appeal, the “district court

determin[ed] that, once [the defendant] attempted to flee in response to [the officers’]

question[ing], the officers had authority to stop him and conduct the frisk that uncovered the

handgun on his person.” Id. at 788. The police in Gross also smelled PCP during their chase, a

factor absent from this case, but Gorham’s flight occurred in a high-crime area and came after

additional behavior Kelemen testified was suggestive of gun possession.

Similarly, the D.C. Circuit held in United States v. Dykes that handcuffing and frisking a

suspect apprehended after flight was lawful because the officers were “justified in believing that

the individual whose suspicious behavior [they] [were] investigating at close range [was] armed

and presently dangerous.” 406 F.3d at 720. The suspect “had kept his hands near his waistband,

resisting both the officers’ commands and their physical efforts to move his hands into plain

view” after he was tackled to the ground. Id. “Under these circumstances, it was reasonable for

the officers to fear that Dykes had a weapon in his waistband, and to take the necessary steps to

ensure that he could not use it.” Id. Gorham did not resist the arresting officers’ commands, but

prior to and during his flight, his movements—particularly turning the right side of his body

away from approaching officers, walking stiffly, and touching his waistband or side while in

flight—gave rise to a similarly reasonable suspicion that he was armed and presently dangerous.

See Hargraves v. District of Columbia, 134 F. Supp. 3d 68, 83 (D.D.C. 2015) (finding

reasonable suspicion that a suspect was potentially armed “based upon his hand gesture to his

waistband,” officers’ “perception of the [suspect’s] nervous behavior upon seeing the police[,]

14 and unprovoked flight”). The D.C. Circuit, moreover, has held that the sort of gestures observed

during Gorham’s flight “independently would justify a protective frisk,” let alone when

accompanied by a stop “in a medium- to high-crime area” and evasive activity by the suspect.

United States v. Bullock, 510 F.3d 342, 348 (D.C. Cir. 2007) (collecting cases).

That leaves Gorham’s argument that, even if the facts known to Kelemen at the time of

the search would have led “a reasonably prudent man in the circumstances [to] be warranted in

the belief that his safety or that of others was in danger” because he had “reason to believe that

he [was] dealing with an armed and dangerous individual,” Terry, 392 U.S. at 27, Moshier—the

officer who conducted the frisk—lacked that knowledge. As Moshier testified, he based his

decision to frisk Gorham on Gorham’s flight in a high-crime area. Dkt. 23 at 19–20. He did not

rely on his observation of the movements (e.g., walking with his right side obscured from view

and without swinging his right arm, touching his right side while running) that Kelemen testified

made him suspicious that Gorham was armed. And, although he testified that he saw a bulge on

Gorham’s right side, he could not recall whether he saw “the bulge before” or after he “patted

[Gorham] down.” Id. at 34–35. Given that uncertainty, and because the government bears the

burden of proof, United States v. Castle, 825 F.3d 625, 634 (D.C. Cir. 2016); United States v.

Jones, 142 F. Supp. 3d 49, 56 (D.D.C. 2015), the Court must conclude that Moshier knew only

that Gorham fled the police in a high-crime area. According to Gorham, that is not enough.

June 29, 2018 Hrg. Tr. (Rough at 23:15–24:7).

The government responds with two arguments. First, it suggests that headlong,

unprovoked flight in a high-crime area, without more, supports a frisk upon apprehension. Id.

(Rough at 3:21–4:3) (“[F]light in a high-crime area . . . give[s] an officer reasonable suspicion to

stop and do a protective pat down, which is exactly what happened in this case.”). At least on

15 the present record, the Court is unconvinced. As Terry held, a protective pat down or frisk is a

search, and whether a search is reasonable under the Fourth Amendment is distinct from whether

a seizure that precedes such a search is reasonable. 392 U.S. at 27. There will of course be cases

in which the justification for the seizure supplies the justification for the search—when, for

example, an individual is stopped because the officers have reasonable suspicion to believe the

individual recently committed or is about to commit a crime that often involves a weapon, see,

e.g., Terry, 392 U.S. at 28; Bullock, 510 F.3d at 346. The government, however, presses a more

categorical rule—that “flight in a high crime area,” without more, is sufficient to “support[] a

finding of reasonable suspicion to conduct a Terry stop and frisk.” Dkt. 14 at 4 (emphasis

added). In support of this sweeping proposition, the government cites Wardlow, 528 U.S. at

121–23, Dkt. 14 at 4, but the government’s reading of Wardlow is plainly wrong: Wardlow dealt

with only the legality of the defendant’s seizure and the Court “express[ed] no opinion as to the

lawfulness of the frisk independently of the stop.” Wardlow, 528 U.S. at 124 n.2 (emphasis

added).

Relying exclusively on Wardlow, the government fails to cite any case addressing the

question whether and when flight in a high crime area might, without more, support reasonable

suspicion to frisk a suspect who is lawfully stopped. Nor is that omission surprising, since the

government and the courts typically point to some additional indicia of risk to the safety of the

police or others. As noted above, for example, the D.C. Circuit did not rest its decision

upholding the search in Dykes exclusively on the defendant’s flight from the police in “an area

‘known for the sales of cocaine and marijuana.’” 406 F.3d at 720. To be sure, the court found

that the defendant’s flight was sufficient to justify his stop. Id. But, when it came to the search,

the court added that “it was reasonable for the officers to fear that” the defendant “had a weapon

16 in his waistband” because he “kept his hands near his waistband” and resisted the officers’

“efforts to move his hands into plain view.” Id. Here, the government fails to identify any such

additional information that was available to Moshier, who testified that he merely believed that

Gorham was “concealing some sort of illegal contraband or [was the subject of some sort of] a

warrant.” Dkt. 23 at 18 (emphasis added). As a result, the Court is left to consider without any

relevant precedent, and without sufficient factual development, whether Gorham’s flight alone

justified Moshier’s decision to conduct a frisk. Given these shortcomings, and in light of the

Court’s ultimate holding, the Court declines to do so.

The government’s second argument also raises an unsettled issue, but one that can be

resolved on the record currently before the Court. In its supplemental brief, the government

argues that the doctrine of “collective knowledge” permitted Moshier to rely on facts known to

other officers in forming his suspicion that Gorham was presently armed and dangerous, even

though Moshier himself was unaware of the facts on which those officers’ suspicion was based.

Dkt. 14 at 4–6. For this proposition, the government cites United States v. Hensley, 469 U.S. 221

(1985), in which the Supreme Court held that police officers could rely on a flyer produced by

officers from another police department in forming probable cause for an arrest, even though the

arresting officers were not “themselves aware of the specific facts which led their colleagues to

seek their assistance,” id. at 231. In reaching this decision, the Hensley Court relied on the

Court’s earlier decision in Whitely v. Warden, 401 U.S. 560 (1971), which “suggest[ed] that,”

where a police officer issues a “radio bulletin” based on that officer’s possession of probable

cause to make an arrest, other officers may make the arrest, “even though they [are] unaware of

the specific facts that established probable cause.” Hensley, 469 U.S. at 230–31.

17 Whitely, Hensley, and their progeny, however, do not extend as far as the government

posits. They do not hold that the knowledge of one officer is imputed to all other officers, but

rather stand for the more modest proposition that an officer who lacks “direct personal

knowledge of all the facts necessary to give rise to reasonable suspicion or probable cause,”

United States v. Ramirez, 473 F.3d 1026, 1033 (9th Cir. 2007), may act on “a directive or request

from another officer or agency,” Wayne R. LaFave, 2 Search and Seizure: A Treatise on the

Fourth Amendment, § 3.5(c) (Oct. 2017 update). As the Supreme Court explained in Hensley,

the rule is a practical one that permits law enforcement officers “to act promptly in reliance on”

directives and requests made by other law enforcement officers. 469 U.S. at 231; see also

United States v. Hawkins, 595 F.2d 751, 752 n.2 (D.C. Cir. 1978) (acknowledging that “the

authority of an individual officer” is not “circumscribed by the scope of his first[-]hand

knowledge of facts concerning a crime or alleged crime” (quoting Williams v. United States, 308

F.2d 326, 327 (D.C. Cir. 1962))). Other courts have applied the collective knowledge doctrine in

this manner, describing it at times as “vertical” collective knowledge. See United States v.

Massenburg, 654 F.3d 480, 493 (4th Cir. 2011); United States v. Rodriguez-Rodriguez, 550 F.3d

1223, 1228 n.5 (10th Cir. 2008); see also Ramirez, 473 F.3d at 1033; United States v. Burton,

288 F.3d 91, 99 (3d Cir. 2002); United States v. Ibarra-Sanchez, 199 F.3d 753, 759–60 (5th Cir.

1999); United States v. Rodriguez, 831 F.2d 162, 166 (7th Cir. 1987).

The question presented in this case, however, is not whether Moshier could have relied

on information, conclusions, or a directive relayed to him by Kelemen or any other officer, a

situation that would be analogous to the facts of Whitely and Hensley. It is instead whether the

Court can impute to Moshier the knowledge or concern that Kelemen had regarding the risk that

Gorham was armed, even in the absence of any evidence that Kelemen or any other officer

18 conveyed Kelemen’s concern to Moshier or directed or requested that he act based on that

concern. The government finds support for this broader interpretation of the collective

knowledge doctrine in United States v. Burnett, 827 F.3d 1108 (D.C. Cir. 2016). The Court is

unpersuaded.

In Burnett, the D.C. Circuit did state that because “[p]robable cause may be based on the

‘collective knowledge of the police,’” it would “refer to the federal agents and the Maryland

Police collectively as the ‘officers.’” Id. at 1114–15 (quoting Hawkins, 595 F.2d at 752 n.2).

But, read in context, this assertion merely reflects the well-settled rule, set forth in Hensley, 469

U.S. at 230–31, and in the D.C. Circuit’s decision in Hawkins, 595 F.2d at 752 n.2, that an

officer may act on a request to stop and search a suspect made by another officer—or another

law enforcement agency—who had probable cause to justify the stop and search. As the

reasoning of the Burnett court makes clear, federal agents developed probable cause to stop and

search the defendant’s car; they asked the Maryland State Police to execute the stop and search;

and the Maryland State Police complied with that request in reliance on the probable cause that

the federal agents possessed. See 827 F.3d at 1115 (describing observations made over a period

of months as part of a long-running investigation involving multiple officers); see also United

States v. Burnett, No. 12-cr-42, Defendant’s Motion to Suppress Physical Evidence and

Controvert Search Warrant, ECF No. 54 at 45 (Affidavit in Support of Search Warrant) (“At the

direction of DEA agents, a Maryland State Trooper conducted a traffic stop on [the] vehicle

. . . .”). That is precisely what Hensley and Hawkins permit, and the Burnett decision goes no

further than those cases. Nor has the D.C. Circuit had occasion to decide in any other case

whether the government’s more sweeping view of the collective knowledge doctrine withstands

scrutiny.

19 Those courts of appeals that have confronted the issue are divided. The First, Third, and

Seventh Circuits have held that information may be aggregated “horizontally” among officers

working closely together even absent evidence of a communication or directive. See United

States v. Whitfield, 634 F.3d 741, 746 (3d Cir. 2010) (“It would make little sense to decline to

apply the collective knowledge doctrine in a fast-paced, dynamic situation such as we have

before us, in which the officers worked together as a unified and tight-knit team; indeed, it would

be impractical to expect an officer in such a situation to communicate to the other officers every

fact that could be pertinent in a subsequent reasonable suspicion analysis.”); United States v.

Cook, 277 F.3d 82, 86 (1st Cir. 2002) (“[C]ommon sense suggests that, where law enforcement

officers are jointly involved in executing an investigative stop, the knowledge of each officer

should be imputed to others jointly involved in executing the stop. . . . Officers who jointly

make such stops rarely will have an opportunity to confer during the course of the stop.”); United

States v. Edwards, 885 F.2d 377, 382 (7th Cir. 1989). But see United States v. Williams, 627

F.3d 247, 252 (7th Cir. 2010) (describing collective knowledge doctrine as only encompassing

situations involving vertical collective knowledge).

The Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits have also permitted the aggregation

of knowledge “regardless of whether any information giving rise to probable cause was actually

communicated to the officer conducting the stop, search, or arrest,” albeit only when the officers

are working as a team, as evidenced by some “communication among agents.” Ramirez, 473

F.3d at 1031–33 (internal quotation marks, citations, emphasis, and alterations omitted); see also

United States v. Terry, 400 F.3d 575, 581 (8th Cir. 2005) (holding that “if there has been some

degree of communication between the officers” who are “work[ing] together on an

investigation,” the court applies “the so-called ‘collective knowledge’ theory to impute the

20 knowledge of one officer to others” (internal quotation marks omitted)); United States v. Kye Soo

Lee, 962 F.2d 430, 435 (5th Cir. 1992) (“It is not necessary that the arresting officer himself have

personal knowledge of all of the facts. . . . [P]robable cause can rest upon the collective

knowledge of the police, rather than solely on that of the officer who actually makes the arrest,

when there is some degree of communication between the two.” (internal quotation marks and

citations omitted)); Collins v. Nagle, 892 F.2d 489, 495 (6th Cir. 1989) (“Since the knowledge of

the . . . investigators working together on the scene and in communication with each other is

mutually imputed, we do not require that every arresting officer possess all of the information

that, when amassed, gives rise to probable cause.”); United States v. Willis, 759 F.2d 1486, 1494

(11th Cir. 1985) (“A reviewing court may examine the collective knowledge of law officers if

they maintained at least a minimal level of communication during their investigation.”); United

States v. Woods, 544 F.2d 242, 260 (6th Cir. 1976) (“[W]e do mutually impute the knowledge of

all the agents working together on the scene and in communication with each other.”). Although

this theory of aggregation does not require that the officers share information relevant to the

probable cause (or reasonable suspicion) determination, it requires some communication among

the officers as a means of determining whether the officers are “functioning as a team” or

functioning as “independent actors who merely happen to be investigating the same subject.”

Terry, 400 F.3d at 581.

The Second, Fourth, and Tenth Circuits, in contrast, have categorically rejected the

“horizontal” collective knowledge doctrine. See United States v. Hussain, 835 F.3d 307, 316 n.8

(2d Cir. 2016) (“Absent record evidence that [the first officer] communicated his suspicion or

any relevant information to [the second officer] before the latter began to conduct the protective

search, we will not impute his knowledge or reasonable suspicion to [the second officer] under

21 the doctrine of collective knowledge.”); Massenburg, 654 F.3d at 493 (discussed below); United

States v. Chavez, 534 F.3d 1338, 1347 (10th Cir. 2008) (rejecting “a rule that information

known, individually, to officers is pooled (as if they were one sentient law-enforcing organism)

even absent any evidence of communication” of that information); United States v. Shareef, 100

F.3d 1491, 1504 (10th Cir. 1996) (acknowledging “the value in imputing knowledge among

officers working closely together” and noting that “[e]ven in the absence of evidence of

communication among officers . . . when officers act collectively it may sometimes be

appropriate to look to their collective knowledge in determining whether they behaved

reasonably,” but declining to do so).

On this question of first impression in this circuit, the Court finds the reasoning of the

Fourth Circuit in United States v. Massenburg persuasive. The Fourth Circuit observed in that

case that “[t]he rationale behind the Supreme Court’s collective-knowledge doctrine is, as the

Court noted in Hensley, ‘a matter of common sense: [the rule] minimizes the volume of

information concerning suspects that must be transmitted to other jurisdictions [or officers] and

enables police . . . to act promptly in reliance on information from another jurisdiction [or

officer].’” Massenburg, 654 F.3d at 494 (quoting Hensley, 469 U.S. at 231). Under this

“vertical” understanding of the collective knowledge doctrine, “law enforcement efficiency and

responsiveness [is] increased,” id., and individual officers are allowed to rely on the implicit

representation from their colleagues that sufficient grounds exist for the search or seizure. In this

sense, the executing officers are acting as the agents or proxies of, or are relying on information

provided by, the officers who possess probable cause or reasonable suspicion.

The “horizontal” collective knowledge doctrine, in contrast, goes considerably further.

Absent some requirement of communication of the relevant facts or conclusions, or an

22 instruction premised on those facts or conclusions, “[t]he officer deciding whether or not to

perform a given search will simply know that she lacks cause,” and, “in ordinary circumstances,

she will have no way of estimating the likelihood that her fellow officers hold enough

uncommunicated information to justify the search.” Id. That goes beyond the type of “useful

shortcut[]” that allows the executing officer to rely on the implicit representation that probable

cause (or reasonable suspicion) exists, as occurs in the “vertical” collective knowledge decisions.

Id. As the Fourth Circuit correctly concluded, “[t]he [g]overnment’s proposed aggregation rule

would perversely reward officers acting in bad faith according to the result of an after-the-fact

aggregation inquiry that is simply academic.” Id. The Court, accordingly, will not extend the

collective knowledge doctrine to encompass cases in which no actual communication or

direction occurs between the officer conducting the search or seizure and the officer in

possession of the information giving rise to the required reasonable suspicion and where the

relevant facts are merely aggregated after the fact.

In light of a separate strand of persuasive authority, however, the Court nevertheless

concludes that the gun seized during Moshier’s frisk of Gorham should not be suppressed. In

United States v. Ragsdale, 470 F.2d 24 (5th Cir. 1972), the Fifth Circuit confronted a situation

similar to the present case. There, two police officers were engaged in a car stop. Id. at 26. One

officer observed a pistol on the front floorboard of the car. Id. “As [that officer] walked with

[the defendant] past [the second officer] on the way to the patrol car, he whispered” to the second

officer that he had seen a gun and was going to search the defendant’s person. Id. The second

officer searched the car and found the gun, but he later testified that he had never heard the first

officer’s whisper. Id. at 26–28. The issue before the court—just as in this case—was whether

the search was reasonable, despite the searching officer having lacked actual knowledge of the

23 facts that would have justified a search, and if not, whether the exclusionary rule should be

applied to exclude the fruits of the search. Id. at 28–31.

The Fifth Circuit concluded that the search was indeed reasonable, because the first

officer “was duty-bound to make a search or cause one to be made to recover the evidence of

what he reasonably believed to be a more serious crime.” Id. at 29. The court recognized that,

“[i]f the knowledge of th[e] team of officers [was treated as] fragmented,” one might reasonably

contend that the officer who had observed the gun “should be the only one allowed to search

since he may have been the only one who knew this last, utterly conclusive fact”—that is, that a

potentially unlawful gun was present. Id. at 30. But the court then held that “logic require[d]

that [it] focus on the broader concept—reasonableness.” Id. “Unless [the first officer] was to be

derelict in his duty,” a search “had to be” conducted before the defendant could be released, and

the car “had to be searched during the moments that” the defendant was temporarily and properly

detained. Id. If the second officer had not searched the car himself, the officer in possession of

the knowledge that an unlawful gun might be present “would surely have commanded it, or . . .

performed it himself.” Id. The Fifth Circuit concluded that “the fact that one member of the

team moved too swiftly,” was not sufficient ground to invalidate the search that his partner

would “surely” have conducted or directed. Id. For a court “to insist on bifurcating the

knowledge of the officers and isolating [one] from the realities of the existing situation” would

lead to a “hypertechnical” result. Id.

In the view of a leading treatise, the “result [in Ragsdale] is not open to serious question.”

LaFave, Search and Seizure, § 3.5(c), and at least one other circuit has embraced the Fifth

Circuit’s reasoning, United States v. Meade, 110 F.3d 190, 198 n.12 (1st Cir. 1997) (holding that

“regardless of the presently unknown knowledge of the other agents (none testified at the

24 suppression hearing), it is apparent that [the officer possessing sufficient knowledge] would have

imminently and lawfully discovered and arrested [the defendant]” even if another officer had not

previously “begun the arrest process”). To be sure, the facts of Ragsdale are “unusual” and it is

unclear “[j]ust how far the Ragsdale rule may be pushed.” LaFave, Search and Seizure, § 3.5(c).

But the central premise of the decision is both persuasive and applicable to the facts of this case.

At the time of the search, an officer present at the scene who was duty bound to act believed that

the defendant possessed a gun and, therefore, posed a risk to that officer and others. The only

reason that officer failed to conduct the search, moreover, was simply that another “member of

the team moved too swiftly.” Ragsdale, 470 F.2d at 30. If he had not done so, the officer who

believed the defendant possessed a gun “would surely have commanded it, or would have

. . . performed [the search] himself.” Id.

Unlike in the typical “horizontal” collective knowledge case, Ragsdale does not require a

post-hoc aggregation of information among officers; rather, an officer with all the required

information was present and “it is clear the search would imminently and lawfully have been

made.” LaFave, Search and Seizure, § 3.5(c) (internal quotation marks omitted). As a result, the

principal concerns raised in Massenburg are not present and the purposes of the exclusionary

rule would not be served by excluding the evidence. In the words of Fifth Circuit:

Unless we were to presume the unlikely possibility that an officer would be encouraged to conduct an unlawful search on the faint hope that his partner possessed probable cause, no proper purpose of that rule would be served by denying to justice the truth which the search disclosed.

Ragsdale, 470 F.2d at 31.

The facts of this case are, if anything, even more compelling than those in Ragsdale.

Kelemen was in possession of all the knowledge necessary to justify a protective frisk of

Gorham and had, by chasing and helping to handcuff Gorham, “indicat[ed] his mind had

25 operated upon those facts so as to conclude that he could or should” conduct a further

investigation of Gorham. LaFave, Search and Seizure, § 3.5(c). He was working closely with

three other officers, who had observed him pursue Gorham. Immediately upon the seizure of

Gorham, the officers begin discussing what to do next, working together to handcuff him. These

facts demonstrate a team working closely together as part of an investigation, and an officer

(Kelemen) who was duty-bound to conduct a frisk—or to see to it that others conducted a frisk—

the moment the defendant was secured. Unlike most “horizontal” collective knowledge cases,

no aggregation is required in the present case—one of the officers present and personally

involved in the seizure of Gorham possessed all of the information necessary to support the frisk.

Although he did not communicate his concern to Moshier, it is inconceivable that Kelemen

would have sat by while the handcuffs were removed from a suspect who he believed to be

armed without first ensuring that that his suspicion was allayed. “The fact that one member of

the team moved too swiftly,” Ragsdale, 470 F.2d at 30, and began the search before a directive

could be given or Kelemen himself could frisk Gorham is of no moment.

The Court’s conclusion that Kelemen “would surely have” directed his colleagues to

conduct a frisk, or “would have . . . performed it himself,” id., moreover, is bolstered by footage

from the officers’ body-worn cameras. That footage shows Kelemen personally involved in

restraining Gorham, and it shows that as soon as Gorham was turned over, a large object can be

seen on the right side of his thigh, where, according to Kelemen’s testimony, he already believed

Gorham had hidden his gun. Dkt. 22 at 43–44. In short, the Court is convinced that, if given

another moment, Kelemen would have either communicated his concern or would have frisked

Gorham himself.

26 Finally, the Court notes that, as in Ragsdale, there is no evidence that Moshier or any of

the other officers acted in bad faith. The Court has heard testimony from both Moshier and

Kelemen and has reviewed the footage from the body-worn cameras used by Moshier, Kelemen,

and Williams. This evidence, which depicts in detail the events surrounding the search, supports

the conclusion that Moshier acted on a good faith belief that he possessed a reasonable suspicion

that Gorham was armed and dangerous. The Court declines to reach the question whether that

belief was in fact reasonable, and a good faith mistaken belief could not, of course, justify a

search. But it is evident that Moshier was not attempting to justify an unlawful search based on

the uncommunicated observations of his fellow officers. The presence of bad faith would

compel a different result from the one the Court reaches here.

Although it is unclear whether the Ragsdale rule is best understood as a variation on the

collective knowledge doctrine or as an exception to the exclusionary rule akin to the inevitable

discovery rule, the soundness of the rule in the unique circumstances presented in Ragsdale, and

here, “is not open to serious question.” LaFave, Search and Seizure, § 3.5(c). The Court,

accordingly, concludes that the gun recovered from Gorham’s person will not be suppressed.

C. Statements

For statements made by a defendant in response to police questioning while in custody to

be admissible at trial, the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966),

generally requires a series of warnings have first been read to the accused, id. at 478.

“[S]pontaneous statements,” however, “are admissible without Miranda warnings.” United

States v. Samuels, 938 F.2d 210, 214 (D.C. Cir. 1991) (citing United States v. Gonzalez, 875 F.2d

875, 881 (D.C. Cir. 1989)). Here, the parties do not dispute that—although clearly in custody at

the time—Gorham “volunteered the statement” regarding marijuana “without prompting from

the police.” Id. That means that Miranda does not require its suppression. 27 CONCLUSION

Based on the totality of the circumstances, the Court concludes that the seizure of

Gorham’s person was justified by a reasonable suspicion that he might be engaging in criminal

activity. The Court further concludes, moreover, that the gun discovered during Moshier’s pat

down of Gorham need not be suppressed. Finally, the Court concludes that Gorham’s statement

regarding marijuana after he was seized was spontaneous, and thus need not have been preceded

by Miranda warnings to be admissible. The Court, accordingly, DENIES Defendant’s motion to

suppress physical evidence and statements. Dkt. 5.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: August 6, 2018