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
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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.
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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
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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.
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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.
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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
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