United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 24, 2023 Decided August 1, 2023
No. 22-3017
UNITED STATES OF AMERICA,
APPELLEE
v.
JOHNNIE GAMBLE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cr-00255-1)
Tony Axam, Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.
Chimnomnso N. Kalu, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Chrisellen R.
Kolb, Nicholas P. Coleman, and Kevin Birney, Assistant U.S.
Attorneys.
Before: SRINIVASAN, Chief Judge, WILKINS and PAN,
Circuit Judges.
2
Opinion for the Court filed by Chief Judge SRINIVASAN.
Concurring opinion filed by Chief Judge SRINIVASAN.
Concurring opinion filed by Circuit Judge PAN.
SRINIVASAN, Chief Judge: In November 2020, a D.C.
Metropolitan Police Department officer approached appellant
Johnnie Gamble and asked if he was carrying a gun. Gamble
said no, and the officer then told Gamble to show his
waistband, which Gamble did. The officer noted an object
tucked behind Gamble’s pants and instructed Gamble to lift his
shirt again. Gamble complied, but he then turned and fled.
During the ensuing chase, Gamble discarded a firearm, which
officers recovered before apprehending him.
Gamble was charged with unlawful possession of a
firearm by a person who has been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). He moved to suppress the
firearm, contending that it was the fruit of an unlawful seizure.
The district court denied the motion, reasoning that Gamble
had not been seized until the second time he was told to show
his waistband, by which time, in the court’s view, reasonable
suspicion supported the seizure. We conclude, though, that
Gamble had been seized the first time the officer told Gamble
to show his waistband, a statement the district court viewed to
be a “demand” or “command” by the officer. The government
neither contests that characterization nor attempts to show that
there was reasonable suspicion for a seizure at that time. We
thus vacate the denial of Gamble’s suppression motion.
3
I.
A.
On the evening of November 2, 2020, three Metropolitan
Police Department officers on vehicle patrol observed
individuals who appeared to be smoking marijuana in the entry
to an apartment building. The officers parked their car, and
two officers went inside the building to investigate. The third
officer, Officer Brian Tejada, remained outside.
Appellant Johnnie Gamble was standing outside the
apartment building at the time. When the officers exited their
car, Gamble began slowly walking backwards with his hands
in the air. Officer Tejada approached Gamble and said, “Just
making sure there’s no guns, that’s it. Ain’t got no gun on you,
man?” Gamble stopped moving and replied, “No. I’m cool.”
Officer Tejada then stated to Gamble, “Let me see your
waistband.” Gamble adjusted the waistband of his pants
several times before lifting his jacket to expose his waistband.
After Gamble lowered his jacket, Officer Tejada shined a
flashlight at Gamble and said, “Lift up your shirt again.”
Gamble complied, at which point Officer Tejada nodded
towards another officer who had arrived at the scene. That
officer began taking a few steps towards Gamble, prompting
Gamble to turn and sprint away.
As Gamble started to flee, another officer arrived at the
scene and ran after Gamble, apprehending him after a fifty-
second chase. Before he was caught, Gamble discarded a
firearm, which Officer Tejada retrieved.
4
B.
A grand jury charged Gamble with unlawful possession of
a firearm by a person previously convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). Gamble moved to suppress
the firearm from being admitted into evidence against him. He
argued that he had been unlawfully seized by Officer Tejada
and that the firearm was the fruit of the unlawful seizure.
During the district court’s hearing on the suppression
motion, Officer Tejada testified that Gamble was not a target
of the officers’ suspicions when they initially arrived at the
scene. Officer Tejada further testified that Gamble already had
his hands up when the officers got out of their car, and that
Gamble’s reaction to the officers was not an uncommon one in
Officer Tejada’s experience. And according to Officer Tejada,
when he then asked Gamble, “Ain’t got no gun on you, man?,”
Gamble was free to leave.
But when Officer Tejada next said to Gamble, “Let me see
your waistband,” the officer thought Gamble’s reaction of
adjusting his pants several times before raising his jacket was
“a little bit strange” and raised suspicions that Gamble “was
trying to conceal something.” Mot. Hr’g Tr. at 15, App. 71.
After Gamble lifted his jacket to reveal his waistband, Officer
Tejada testified that he noticed Gamble was wearing more than
one pair of compression pants under his jeans and that he saw
an “object in between [Gamble’s] compression pants and his
white T-shirt.” Id. at 15–16. Officer Tejada explained that, in
his experience, “[i]ndividuals usually in D.C. or anywhere,
when they use multiple layers of compression pants, it’s like
kind [of] a makeshift holster for a firearm.” Id. at 16. And
after Gamble complied with Officer Tejada’s ensuing direction
to “[l]ift up your shirt again,” Officer Tejada saw “a dark in
color object in between the compression pants and the white T-
5
shirt.” Id. at 18. The object, according to Officer Tejada, was
inconsistent with a cellphone or “male anatomy.” Id. at 67, 69.
The district court denied Gamble’s suppression motion.
The court twice described Officer Tejada’s initial request to see
Gamble’s waistband—“Let me see your waistband”—as a
“demand,” explaining that, even if Officer Tejada did not use
“a hostile tone of voice,” he “clearly makes a demand [to] show
me your waist.” Status Hr’g Tr. at 7, 12, App. 175, 180. The
court also twice characterized that same statement by Officer
Tejada as a “command.” Id. at 8, 12. The court, however,
concluded that Gamble was seized only after Officer Tejada’s
second “demand” (or “command”) for Gamble to show his
waistband—“Lift up your shirt again.” Id. at 12. And that
seizure was lawful, the court held, because Officer Tejada by
then had reasonable suspicion to seize Gamble, based in
significant part on what Officer Tejada had seen after his first
demand for Gamble to show his waistband—i.e., Gamble’s
reaction of raising his pants several times before lifting his
jacket, his wearing of multiple compression pants under his
jeans, and the apparent presence of an object behind those
pants. Id. at 13–14.
The district court later held a stipulated bench trial, at the
close of which the court found Gamble guilty of violating 18
U.S.C. § 922(g)(1). Gamble now appeals the denial of his
suppression motion.
II.
The government argues that Gamble was lawfully seized.
It submits that Gamble was not seized until Officer Tejada’s
second demand for Gamble to show his waistband and that
reasonable suspicion had accrued by then. We conclude,
however, that Gamble was seized earlier, as of Officer Tejada’s
6
first demand for Gamble to show his waistband. The
government fails to establish the existence of reasonable
suspicion at that point. We also reject the government’s
contention that the firearm was not the fruit of that unlawful
seizure.
A.
“A Fourth Amendment seizure occurs when physical force
is used to restrain movement or when a person submits to an
officer’s show of authority.” United States v. Delaney, 955
F.3d 1077, 1081 (D.C. Cir. 2020) (internal quotation marks and
citation omitted). Here, officers did not use physical force
against Gamble before he fled, so the questions in assessing if
(and when) Gamble was seized are: (i) whether officers made
a “show of authority”; and (ii) if so, whether Gamble submitted
to the show of authority. See United States v. Mabry, 997 F.3d
1239, 1243 (D.C. Cir. 2021).
As to the first of those questions, “[a] show of authority
sufficient to constitute a seizure occurs where the police
conduct would have communicated to a reasonable person that
he was not at liberty to ignore the police presence and go about
his business, or, put another way, where a reasonable person
would have believed that he was not free to leave.” Id. (internal
quotation marks and citation omitted). In examining that issue,
we “consider the totality of the circumstances, including
whether the suspect was physically intimidated or touched,
whether the officer displayed a weapon, wore a uniform, or
restricted the defendant’s movements, the time and place of the
encounter, and whether the officer’s use of language or tone of
voice indicated that compliance with the officer’s request
might be compelled.” Id. (internal quotation marks and citation
omitted).
7
Here, Officer Tejada initially approached Gamble and
asked him a question: “Ain’t got no gun on you, man?” And
it is well-settled that a “seizure does not occur simply because
a police officer approaches an individual and asks a few
questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). But
it is also settled that “a consensual encounter with the police
can . . . ripen into a show of authority that triggers the Fourth
Amendment.” Mabry, 997 F.3d at 1244. For instance,
officers’ “questioning can evolve into a show of authority if
they convey a message that compliance with their requests is
required.” Id. (internal quotation marks and citation omitted).
That is what occurred in this case.
In particular, after Gamble responded “no” when asked if
he was carrying a gun, Officer Tejada instructed Gamble: “Let
me see your waistband.” To be sure, we have held that an
officer merely asking, “Can I see your waistband?” is not a
show of authority. United States v. Gross, 784 F.3d 784, 788
(D.C. Cir. 2015). But that is because of the general notion that
officers can ask questions if they “do not convey a message that
compliance with their requests is required.” Id. at 787 (internal
quotation marks and citation omitted). Here, by contrast, the
district court concluded that Officer Tejada’s statement, “Let
me see your waistband,” carried the message that compliance
was obligatory: the court repeatedly described that statement
as a “demand” or “command,” on one occasion explaining that
it “clearly makes a demand.” Page 5, supra. And the very
nature of a demand or command—as opposed to a mere
question—is that compliance is mandatory. See United States
v. Wood, 981 F.2d 536, 540 (D.C. Cir. 1992) (distinguishing
between “positing a question” and “giving an order”).
A district court’s assessment of whether an officer’s
statements amounted to “commands” rather than “questions”
would, if challenged, be reviewed only for clear error. Mabry,
8
997 F.3d at 1244 n.1. Here, though, the government does not
contest the district court’s considered characterization of
Officer Tejada’s statement as a command, so we have no
occasion to revisit it. And because a reasonable person would
not feel free to disregard that kind of command by an officer
and simply go about his business, Officer Tejada’s statement—
“Let me see your waistband”—amounted to a show of
authority. See Wood, 981 F.2d at 540; cf. California v. Hodari
D., 499 U.S. 621, 627 (1991) (“[P]olicemen do not command
‘Stop!’ expecting to be ignored . . . .”).
That show of authority by Officer Tejada thus effected a
seizure if Gamble submitted to it. See Mabry, 997 F.3d at 1243.
On that score, the government makes no argument that, if
Officer Tejada’s statement constituted a show of authority,
Gamble did not submit to it. That is understandable, as Gamble
acceded to Officer Tejada’s show of authority by staying in
place and complying. See, e.g., Brendlin v. California, 551
U.S. 249, 262 (2007) (“[O]ne sitting in a chair may submit to
authority by not getting up to run away.”). True, Gamble soon
fled after Officer Tejada told him a second time to show his
waistband. But as we have explained in precisely the same
circumstances of a person who initially accedes to a show of
authority but then flees, “the short duration of [the person’s]
submission means only that the seizure was brief, not that no
seizure occurred. Later acts of noncompliance do not negate a
defendant’s initial submission.” United States v. Brodie, 742
F.3d 1058, 1061 (D.C. Cir. 2014) (citations omitted); accord
Mabry, 997 F.3d at 1246–47. So here, even if Gamble’s “initial
submission” to Officer Tejada’s show of authority was of
“short duration,” a seizure still occurred. Brodie, 742 F.3d at
1061.
9
B.
We now turn to whether Officer Tejada’s seizure of
Gamble when demanding, “Let me see your waistband,” was
lawful. For a seizure to be lawful, an officer must have at least
“a reasonable, articulable suspicion that criminal activity is
afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing
Terry v. Ohio, 392 U.S. 1, 30 (1968)). And the “government
bears the burden to provide evidence sufficient to support
reasonable suspicion.” Delaney, 955 F.3d at 1081 (internal
quotation marks and citation omitted).
Here, the government necessarily fails to carry its burden
because it does not argue that Officer Tejada had reasonable
suspicion to detain Gamble at the time of the seizure—i.e.,
when Officer Tejada first demanded, “Let me see your
waistband.” Rather, the government’s sole argument is that
reasonable suspicion had accrued by the time Officer Tejada
commanded Gamble to show his waistband a second time, by
saying, “Lift up your shirt again.” In making that argument,
the government relies on facts unknown to Officer Tejada (or
any officers at the scene) when he made his first demand, such
as Gamble’s wearing of multiple layers of compression pants
and Officer Tejada’s observation of an object tucked under
those pants. And an otherwise unreasonable seizure of course
cannot be transformed into a reasonable one by virtue of
information that comes to light only after the seizure. See
United States v. Castle, 825 F.3d 625, 636 (D.C. Cir. 2016).
C.
We last consider whether the gun discarded by Gamble
while being chased after he fled the scene should be suppressed
as the fruit of his unlawful seizure. The government contends
that, even if Gamble was unlawfully seized, the gun should not
10
be suppressed because intervening circumstances—namely,
Gamble’s flight and his discarding of the firearm—purged the
taint of the illegal seizure. That argument cannot be squared
with our decision in United States v. Brodie.
As we explained there, “[a]n illegal search or seizure calls
for suppression of evidence only if the seizure is a but-for cause
of the discovery of evidence (a necessary condition), and if the
causal chain has not become ‘too attenuated to justify
exclusion.’” Brodie, 742 F.3d at 1062–63 (quoting Hudson v.
Michigan, 547 U.S. 586, 592 (2006)). Brodie involved facts
closely paralleling this case: the officers unlawfully seized
Brodie, and he attempted to flee on foot a few seconds later,
discarding three firearms during the ensuing chase. Id. at 1060.
We held that the “but-for causation” between the unlawful
seizure and the recovery of the discarded firearms was “quite
plain.” Id. at 1063. And we rejected the government’s
argument that “Brodie’s flight and abandonment of evidence
were intervening circumstances that purged the taint.” Id.
Rather, “[a]s those events flowed directly from the seizure,” it
was “hard to spot any attenuation.” Id.
That holding governs here. While the government
“believe[s] that this case presents an opportunity for this Court
to re-examine the wisdom of Brodie,” Gov’t Br. 37 n.12, a
panel of this court is bound by Brodie in materially
indistinguishable circumstances like those in this case.
* * * * *
For the foregoing reasons, we vacate the district court’s
denial of Gamble’s suppression motion as well as his ensuing
conviction, and we remand for further proceedings.
So ordered.
SRINIVASAN, Chief Judge, concurring: This case is an
example of a situation in which police seize a person under the
Fourth Amendment without physically touching him. That can
happen when police issue a verbal command such as “Stop!”—
or, as in this case, “Let me see your waistband”—such that a
reasonable person would not feel free to disobey the directive
and go about his business. If the person submits to such a show
of authority by an officer, a seizure will have taken place, even
though there has been no physical contact in the interaction.
See Op. 6, supra.
But what does it mean for a person subjected to an officer’s
show of authority to “submit” to it for purposes of establishing
a seizure? The answer is straightforward when an officer
commands, “Stop!” A person submits to that show of authority
by staying in place, at which point there is a seizure. What if
the officer, though, commands a person to do more than stop?
In this case, for example, Officer Tejada demanded that
Gamble not just stay put but also show his waistband. Gamble
plainly submitted because he both remained in place and
showed his waistband. Imagine, though, that Gamble had
instead said in response to Officer Tejada’s demand, “I’ll stay
in place because you’re not letting me leave, but I won’t show
you my waistband.” Would that count as submitting to the
show of authority, thereby establishing a seizure?
The premise of my colleague’s concurring opinion is no—
i.e., that Gamble could not submit to Officer Tejada’s show of
authority unless (and until) he showed his waistband. See
Concurring Op. 1–2, infra. If so, Gamble’s ostensibly pre-
submission—and hence pre-seizure—act of raising his pants
before showing his waistband could have been advanced by the
government as a fact supporting reasonable suspicion for the
seizure. Id. at 2. As my colleague notes, there would still be a
question whether an order to show one’s waistband ranges
beyond the permissible scope of a frisk under Terry v. Ohio,
392 U.S. 1, 30–31 (1968). But whatever the answer to that
2
question, as to the issue of what Gamble would need to do to
submit to Officer Tejada’s show of authority for purposes of
establishing a seizure, Gamble, under my colleague’s
approach, would need to show his waistband.
As I see things, though, a person presumably submits to an
officer’s show of authority—and thus becomes seized—when
he stays in place rather than leaves. And that is so even if the
officer also commanded the person to show his waistband (or
open his coat, empty his pockets, display the contents of his
backpack, or perhaps all of the above) and the person has not
complied with those kinds of additional demands. After all, a
stop-and-frisk under Terry involves both a seizure (a stop) and
a search (a frisk), and they are distinct Fourth Amendment
events. E.g., Illinois v. Wardlow, 528 U.S. 119, 124 n.2 (2000).
The question of whether a person has submitted to an officer’s
show of authority goes to whether he has been seized, see
California v. Hodari D., 499 U.S. 621, 623–28 (1991)—which,
in the case of a stop-and-frisk, occurs when there is a stop. To
the extent the officer demands that the person also assent to
some manner of frisk or other search, that raises distinct Fourth
Amendment issues beyond whether there has been a seizure.
Under that understanding, Gamble became seized when he
stayed in place in response to Officer Tejada’s show of
authority. It is true that Officer Tejada commanded Gamble to
show his waistband, but that directive necessarily carried an
implicit demand to remain in place—after all, Gamble could
not show his waistband to the officer if he turned and walked
away. My colleague supposes that a person in theory could
show his waistband while walking away, Concurring Op. 3, but
if an order to show one’s waistband in fact permitted walking
away, it may not have been a show of authority in the first
place. See United States v. Mabry, 997 F.3d 1239, 1243 (D.C.
Cir. 2021) (show of authority occurs “where a reasonable
3
person would have believed that he was not free to leave”)
(internal quotation marks and citation omitted). Here, then,
once Gamble stayed in place in response to the officer’s show
of authority, he was seized, regardless of whether he had also
complied with the demand to accede to a search by showing his
waistband.
PAN, Circuit Judge, concurring: I fully concur with the
Court’s opinion. The government bears the burden of
justifying a seizure under the Fourth Amendment, United
States v. Delaney, 955 F.3d 1077, 1081 (D.C. Cir. 2020), and
it failed to do so here. Before the district court, and in this
Court on appeal, the government made no argument that if
Gamble were seized when Officer Tejada first demanded to see
his waistband, such a seizure was lawful. I write separately to
observe that, despite the government’s failure to address the
issue, Gamble’s initial seizure may well have been supported
by reasonable, articulable suspicion.
As the Court’s opinion notes, a seizure occurs when
“physical force is used to restrain movement or when a person
submits to an officer’s show of authority.” Id. (internal
quotation marks and citation omitted). The point of seizure is
when there is “submission to the assertion of authority.”
California v. Hodari D., 499 U.S. 621, 626 (1991) (emphasis
in original); accord United States v. Johnson, 212 F.3d 1313,
1316 (D.C. Cir. 2000).
Officer Tejada’s statement, “Let me see your waistband,”
effected a seizure because the district court characterized it as
a “command” or a “demand.” Op. at 5. At the point when
Gamble submitted to that first show of authority by lifting his
shirt, several factual findings by the district court arguably
supported a finding of reasonable suspicion.
First, the encounter occurred “in a high crime area” with a
“history of criminal activity in the area specifically related to
. . . both violent and nonviolent related gun matters.” App.
172; see Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[T]he
fact that the stop occurred in a ‘high crime area’ [is] among the
relevant contextual considerations in a Terry analysis.”);
United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir. 2001)
(“[T]he probative value of a neighborhood’s reputation as a
high-crime area is firmly established.”); but see United States
2
v. Castle, 825 F.3d 625, 636 (D.C. Cir. 2016) (“[T]he high
crime nature of the neighborhood . . . is not unimportant. But
it is only a contextual consideration and, as such, cannot
provide the kind of information particular to Appellant that is
necessary to demonstrate reasonable suspicion.” (cleaned up)).
Second, when the officer got out of his car, the officer
“saw the defendant separating himself from the other men he
had been standing with and not only was [the defendant]
separating himself, but had his hands up, which could be
construed in different ways.” App. 173; Wardlow, 528 U.S.
at 124 (“[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.”); Edmonds, 240 F.3d at 60
(positing that law enforcement officers’ “training and
experiences enable [them] to draw inferences and make
deductions from seemingly innocuous facts . . . that might well
elude an untrained person” (cleaned up)).
Third, and most significantly, in response to the officer’s
“demand” to show his waistband — and before he submitted to
this show of authority — Gamble “[didn’t] just pull up his shirt
or jacket to show his waist, but he also pull[ed] up his pants in
the process which . . . [was] suspicious.” App. 175. Instead of
just raising his shirt, Gamble “[sought] to try and actually
conceal [his] waist.” Id.; see Johnson, 212 F.3d at 1317
(reasoning that “continued furtive gestures” in response to
being confronted by a police officer is “suspicious enough to
support a reasonable belief that [a defendant] may have been
engaged in criminal activity”).
I express no opinion as to whether these facts, if argued,
would have changed the outcome of this case. Notably, another
issue left unexplored by the parties is whether an officer’s
demand to see a suspect’s waistband that implicitly requires the
suspect to lift his shirt is within the lawful scope of a Terry
3
stop. Compare Terry v. Ohio, 392 U.S. 1, 30–31 (1968)
(allowing officers “to conduct a carefully limited search of the
outer clothing” of a suspect, based on reasonable, articulable
suspicion that the suspect is armed (emphasis added)), with
United States v. Askew, 529 F.3d 1119, 1133, 1144 (D.C. Cir.
2008) (en banc) (holding that partially unzipping and peeling
back a suspect’s jacket to reveal the clothing underneath
“exceed[s] the bounds of Terry” and thus violates the Fourth
Amendment). If the officer’s demand to see Gamble’s
waistband went beyond what Terry permits, then the officer’s
reasonable, articulable suspicion would be insufficient to
justify either a stop or a search. See Askew, 529 F.3d at 1144.
Instead, the government would be required to establish
probable cause to arrest the defendant, which would allow a
search incident to arrest, see Chimel v. California, 395 U.S. 752
(1969), or some other “well delineated exception[]” to the
warrant requirement under the Fourth Amendment, Minnesota
v. Dickerson, 508 U.S. 366, 372 (1993).
My colleague’s concurring opinion disagrees with my
view that Gamble’s submission to the show of authority
occurred when he lifted his shirt to reveal his waistband; my
colleague suggests instead that Gamble’s submission began at
the moment he stayed in place in response to Officer Tejada’s
demand. But “Let me see your waistband” does not necessarily
require a suspect to stay in place — a suspect could show an
officer his waistband while backing up or walking away. In
my opinion, whether a suspect submitted to a show of authority
is a fact-based inquiry premised on compliance with an
officer’s specific demand. See, e.g., United States v. Veney,
45 F.4th 403, 406 (D.C. Cir. 2022) (parsing an officer’s
specific demand and concluding that it “left no doubt that in
addition to wanting [the suspect] to turn around[,] . . . [the
officer] also wanted [the suspect] not to walk away” (emphasis
in original)); United States v. Wood, 981 F.2d 536, 540 (D.C.
4
Cir. 1992) (“To satisfy the second prong of Hodari D., the court
must determine whether Wood’s actions constituted a
submission to the assertion of authority.” (internal quotation
marks omitted) (emphasis in original)); Brendlin v. California,
551 U.S. 249, 262 (2007) (“[W]hat may amount to submission
depends on what a person was doing before the show of
authority.”). Under the facts of this case, I believe that
Gamble’s submission to a show of authority (and thus his
seizure) occurred when he showed his waistband, just as
Officer Tejada commanded.