On April 21, 2015, the Court of Appeals of the District of Columbia decided the United States v. Gross [i], which serves as an excellent review of the law pertaining to consensual encounters and Terry Stops, particularly as often used by police street crime units. The relevant facts of Gross, taken directly from the case, are as follows:
On the evening of February 4, 2013, four officers of the Washington, D.C. Metropolitan Police Department’s Gun Recovery Unit drove along the 4000 block of 9th Street, S.E. The officers were working on “gun patrol,” which involved “[r]iding through the area looking to see if [they] could recover any guns.” Mot. Hr’g Tr. 40 (June 17, 2013). The officers’ car was unmarked, but each officer wore a tactical vest that said “police” in large letters on the front and back. Officer Jason Bagshaw drove the vehicle and Officer Jordan Katz rode in the rear driver-side seat. Two other officers—whose conduct is not at issue—sat in the passenger-side seats.
Around 7 p.m., the officers came across appellant Gross on 9th Street as he walked along the sidewalk to the left of the car. When the officers reached the corner of 9th and Bellevue Street, they turned left onto Bellevue. Gross also turned onto Bellevue and continued to travel in the same direction as the officers. Officer Bagshaw slowed the car as it moved next to Gross and shined a flashlight on Gross to get his attention. Officer Bagshaw then called out to Gross from the car, “[H]ey, it is the police, how are you doing? Do you have a gun?” Id. at 10. Gross stopped, but did not answer, and Officer Bagshaw stopped the car to remain parallel with Gross. Bagshaw then asked Gross, “Can I see your waistband?” Id. at 12. Still not speaking, Gross responded by lifting his jacket slightly to show his left side, looking back over his shoulder in the process. Officer Bagshaw, apparently satisfied with the interaction, began to roll the car forward.
Officer Katz, however, asked Officer Bagshaw to stop the car. Suspicious of Gross, Officer Katz opened the driver-side rear door and asked, while stepping out of the vehicle, “[H]ey man, can I check you out for a gun?” Id. at 15. As soon as Officer Katz began to exit the car, Gross turned and ran back towards 9th Street. Officer Katz gave chase. He observed Gross patting his right side with his hand as he ran, behavior that Officer Katz later testified “can mean someone is trying to hold a gun in their waistband.” Id. at 15-16. Officer Katz also smelled PCP while pursuing Gross. After a short chase, Officer Katz apprehended Gross. With Gross in handcuffs, Officer Katz performed a frisk and recovered a .40-caliber semiautomatic handgun from underneath Gross’s waistband. [ii]
Gross was later indicted under federal law for federal firearms offenses and filed a motion to suppress, arguing that he was initially detained without sufficient reasonable suspicion. The district court denied the motion. Gross was convicted at a bench trial and then appealed the denial of his motion to suppress.
On appeal, Gross argued that he was initially subjected to an unlawful seizure, absent reasonable suspicion, when he was asked if he had a gun and asked if he would reveal his waist band. Gross bases his argument on the following circumstances: (1) there were four officers in the police car, all wearing tactical vests; (2) the officers followed him; and (3) Officer Bagshaw’s initial questions were allegedly accusatory and implied that Gross could not leave until he proved his innocence.
At the outset, the court looked to precedent from the United States Supreme Court. The court stated:
A Fourth Amendment seizure occurs only when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Unless “a reasonable person would have believed that he was not free to leave,” no seizure will have taken place. United States v. Maragh, 894 F.2d 415, 418 (D.C. Cir. 1990) (quoting Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). That “reasonable person” test asks, “not . . . what the defendant himself . . . thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes.” United States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007) (per curiam).
Gross argues that he was subjected to a Fourth Amendment seizure when Officer Bagshaw, speaking to him from the police car, asked if he was carrying a gun and would expose his waistband. Right out of the gate, Gross’s argument runs into the settled principle 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). Even when officers “have no basis for suspecting a particular individual, they may generally ask questions of that individual . . . as long as the police do not convey a message that compliance with their requests is required.” Id. at 435. And “[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” United States v. Drayton, 536 U.S. 194, 205 (2002). [iii]
The court of appeals then applied the above rules to Gross’s argument on appeal. First, the court looked at the presence of four officers wearing tactical vests. They examined the United States v. Goddard [iv], in which they held that four officers wearing tactical vests that exited their police car and approached the defendant to ask him questions did not amount to a seizure of the defendant. In other words, the presence of multiple officers does not automatically mean that a stop occurred. When you apply that case to Gross’s case, the court observed that the officers in Gross’s case were less intrusive in that they remained in the police vehicle when they initially asked if he had a gun.
Second, the court considered whether following Gross converted the encounter into a seizure. The court noted that the United States Supreme Court, in Michigan v. Chesternut, [v] held that officers did not seize the defendant when they drove parallel to him as he ran. Quoting Chesternut, the court stated:
[T]he act of approaching a person in a police car “does not constitute a seizure where the officers [do] not use their siren or flashers, [do] not command the [person] to stop, [do] not display their weapons, and [do] not drive aggressively to block or control the [person’s] movement… [vi] [emphasis added]
Lastly, regarding whether Officer Bagshaw’s question about whether Gross had a gun and if Gross would reveal his waistband, the court stated:
[T]he “nature of a police officer’s question[s]” can bear on whether a person has been seized. Gomez v. Turner, 672 F.2d 134, 146 (D.C. Cir. 1982). Questions alone, however, ordinarily do not amount to a “show of authority” sufficient to constitute a seizure. Gross points to cases in which direct accusations of criminal conduct by officers have weighed in favor of finding a seizure. See, e.g., United States v. Tyler, 512 F.3d 405 (7th Cir. 2008). But Officer Bagshaw’s questions (“Do you have a gun?”, “Can I see your waistband?”) did not accuse Gross of possessing a gun or committing a crime. [vii] [emphasis added]
The court then applied the above analysis to each of Gross’s arguments and viewed the circumstances in their totality. Even still, the court held that Gross was not seized at the point that Officer Bagshaw asked him if he had a gun and if he would reveal his waistband.
As such, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 13-3102 (D.C. Cir. Decided April 21, 2015)
[ii] Id. at 2-3
[iii] Id. at 5
[iv] 491 F.3d 457 (D.C. Cir. 2007)
[v] 486 U.S. 567 (1988)
[vi] Gross at 7