United States v. Will Gross

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2014 Decided April 21, 2015

No. 13-3102

UNITED STATES OF AMERICA,

APPELLEE

v.

WILL GROSS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cr-00068-1)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A.J.

Kramer, Federal Public Defender.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and Elizabeth Trosman and

Stephen J. Gripkey, Assistant U.S. Attorneys.

Before: BROWN and SRINIVASAN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

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Concurring opinion filed by Circuit Judge BROWN.

SRINIVASAN, Circuit Judge: Appellant Will Gross was

indicted on one count of unlawful possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). Gross

filed a motion to suppress the firearm, arguing that its

discovery on his person was the fruit of an unlawful seizure.

The district court denied the motion, reasoning that Gross had

not been seized when officers approached him and asked if he

was carrying a gun. The case then proceeded to trial,

culminating in Gross’s conviction. Gross now appeals the

denial of his motion to suppress, arguing that officers subjected

him to an unlawful seizure before finding the gun. We

conclude that no unlawful seizure occurred, and we therefore

affirm.

I.

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

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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.

After his indictment, Gross filed a motion to suppress the

handgun on the ground that its recovery derived from an

unlawful seizure. At the motion hearing, Officer Katz

testified about his recollections of the encounter with Gross,

describing both his actions and those of Officer Bagshaw.

After hearing Officer Katz’s testimony and arguments from

both sides, the district court denied Gross’s motion. The court

reasoned that no Fourth Amendment seizure occurred until

after Gross fled because nothing to that point would have

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indicated to a reasonable person that he lacked freedom to

disregard the officers’ questions and walk away. The court

concluded that Gross’s flight, when considered in conjunction

with his other behavior, provided the officers with reasonable

grounds to detain him and conduct a pat-down frisk for

weapons.

After the district court denied his motion to suppress,

Gross waived his right to a jury trial and proceeded to a bench

trial. The district court found Gross guilty and sentenced him

to twenty-one months of imprisonment followed by three years

of supervised release. Gross now appeals the district court’s

denial of his suppression motion.

II.

Gross argues that the district court erred in denying his

motion to suppress the handgun found on his person.

According to Gross, he was subjected to an unlawful seizure

when Officer Bagshaw asked if he was carrying a gun and

would reveal his waistband. The government argues that

Gross is barred from raising that seizure argument on appeal

because he failed to raise it with adequate specificity in the

district court. We decline to resolve whether Gross forfeited

his argument. We instead conclude that, even assuming Gross

adequately preserved the argument he now presses, his

unlawful-seizure argument fails on the merits.

The Fourth Amendment guarantees the “right of the

people to be secure in their persons . . . against unreasonable

searches and seizures.” U.S. Const. amend. IV. The

prohibition against unreasonable seizures requires that all

seizures, even ones involving “only a brief detention short of

traditional arrest,” be founded upon reasonable, objective

justification. United States v. Brignoni-Ponce, 422 U.S. 873,

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878 (1975). But not all interactions between police officers

and citizens amount to a “seizure” for Fourth Amendment

purposes.

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).

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Gross contends that a reasonable, innocent person

nonetheless would have considered his encounter with Officer

Bagshaw to be nonconsensual in light of the particular

circumstances. Gross emphasizes three factual considerations

in support of his argument: (i) there were four officers in the

car, each of whom wore a tactical vest; (ii) the officers

followed Gross; and (iii) Officer Bagshaw’s questions were

accusatory, implying that Gross could not leave until he proved

his innocence (i.e., that he did not possess a gun). Because we

consider “the totality of the circumstances” in assessing

whether there was a seizure, see Samson v. California, 547

U.S. 843, 848 (2006), we examine the particular factual

considerations emphasized by Gross in the context of the

overall effect of the encounter. We conclude that the

circumstances are materially indistinguishable from those in

cases in which our court, or the Supreme Court, has determined

that no seizure took place. Those decisions compel the same

outcome here.

Gross initially points to the fact that four officers were

present in the car and that the officers wore tactical vests

marked “police.” We confronted comparable circumstances

in United States v. Goddard, 491 F.3d 457. There, four

officers exited their police car and approached the defendants

while wearing badges and jackets marked with a police logo.

See id. at 459. We concluded that those circumstances did not

amount to a seizure. As we explained, “the presence of

multiple officers” wearing “[police] gear, including guns and

handcuffs,” does not “automatically mean that a stop has

occurred.” Id. at 461. The circumstances of this case are, if

anything, less suggestive of a seizure than those in Goddard.

Here, all four officers remained in a car separated from Gross

by one lane of traffic during Officer Bagshaw’s questioning.

And while the officers carried weapons, there is no indication

that the weapons were visible to Gross from the sidewalk.

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The officers’ “following” of Gross likewise did not

convert the encounter into a seizure. Testimony from the

motion hearing showed that the officers merely turned in the

same direction as Gross and then slowed their car for a few

seconds as it passed next to him across one lane of traffic. In

Michigan v. Chesternut, 486 U.S. 567, the Supreme Court

concluded that no seizure had occurred when four officers in a

police car “accelerated to catch up with a running pedestrian

and drove parallel to him for a short while.” Goddard, 491

F.3d at 461 (describing Chesternut). Although the “presence

of a police car might be ‘somewhat intimidating,’ ” id. at 461

(quoting Chesternut, 486 U.S. at 575), the 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,” id. Just as in Chesternut and Goddard, the

officers did none of that in this case.

With regard to the questions posed by Officer Bagshaw,

the “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.

The Supreme Court’s decision in United States v.

Drayton, 536 U.S. 194, is instructive. The Court held that no

seizure had taken place when multiple officers wearing visible

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badges boarded a bus and asked passengers numerous

questions. Id. at 198-99. Of particular salience, one officer

asked if a passenger “had any weapons or drugs in his

possession,” and then asked, “Do you mind if I check your

person?” Id. at 199. Officer Bagshaw posed highly similar

questions to Gross. Indeed, whereas the officer in Drayton

asked if he could perform a search of the passenger’s person,

here, Officer Bagshaw merely asked whether Gross himself

would reveal his waistband. And while the passengers in

Drayton were questioned while inside a bus with an officer

positioned near the exit, see id. at 205, the street encounter in

this case posed no physical impediment to Gross’s freedom to

walk away.

Reviewing the totality of the circumstances in this case in

light of precedents involving comparable interactions, we

conclude that Officer Bagshaw’s questioning of Gross did not

effect a seizure for purposes of the Fourth Amendment.

Moreover, Gross raises no challenge to the district court’s

conclusion that the circumstances did not subsequently ripen

into a seizure when Officer Katz exited the police car and

asked if he could check Gross for a gun. Nor does Gross

contest the district court’s determination that, once he

attempted to flee in response to that question, the officers had

authority to stop him and conduct the frisk that uncovered the

handgun on his person. Consequently, there is no ground for

disallowing the introduction of the firearm into evidence.

* * * * *

For the foregoing reasons, we affirm the district court’s

denial of Gross’s motion to suppress.

So ordered.

BROWN, Circuit Judge, concurring:

In its efforts to ferret out illegal firearms the District has

implemented a “rolling roadblock.” Officers randomly trawl

high crime neighborhoods asking occupants who fit a certain

statistical profile—mostly males in their late teens to early

forties—if they possess contraband. Despite lacking any

semblance of particularized suspicion when the initial contact

is made, the police subject these individuals to intrusive

searches unless they can prove their innocence. Our case law

considers such a policy consistent with the Fourth

Amendment. See, e.g., United States v. Goddard, 491 F.3d

457 (D.C. Cir. 2007). I continue to think this is error. Our

jurisprudence perpetuates a fiction of voluntary consent where

none exists and validates a policy that subverts the framework

of Terry v. Ohio, 392 U.S. 1 (1968).

***

“Nothing is more clear than that the Fourth Amendment

was meant to prevent wholesale intrusions upon the personal

security of our citizenry.” Davis v. Mississippi, 394 U.S. 721,

726 (1969). “Terry for the first time recognized an exception

to the requirement that Fourth Amendment seizures of

persons must be based on probable cause.” Dunaway v. New

York, 442 U.S. 200, 208–09 (1979). There, the Supreme

Court wisely found that where police officers “ha[ve] reason

to believe [they] [are] dealing with an armed and dangerous

individual . . . the[y] [] need not be absolutely certain that the

individual is armed,” so long as there are particularized facts

that could lead a “reasonably prudent person to believe their

safety or that of others [is] in danger.” Terry, 392 U.S. at 27.

There is a further exemption beyond the narrow Terry

rule; voluntary consent to a search dispels any “inference of

coercion.” United States v. Drayton, 536 U.S. 194, 207

(2002). Because no Fourth Amendment interest is triggered a

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search may proceed on the basis of individual consent, despite

the absence of reasonable and particularized suspicion of

misconduct. See id. at 201, 207–08; Florida v. Rodriguez,

469 U.S. 1, 5–6 (1984) (“[C]onsensual encounter[s] []

implicate[] no Fourth Amendment interest.”).

The District’s Gun Recovery Unit relies on the latitude

afforded by voluntary consent to facilitate both suspicionless

“consented” searches and Terry seizures premised on

purportedly reasonable suspicions. But in the particulars of

its application, the District’s policy perverts the logic

underlying Terry.

Terry’s premise is straightforward: “police officer[s]

must be able to point to specific and articulable facts which,

taken together with rational inferences from those facts,

reasonably warrant [] intrusion” into a citizen’s autonomy.

392 U.S. at 21. But rather than rely upon particularized

suspicions in the first instance, the District maximizes its odds

of illegal firearm recovery by patrolling high crime

neighborhoods “looking for guns,” or more accurately,

looking for people likely to have guns. Transcript of Motions

Hearing at 40, United States v. Gross, No. CR13-068 (D.D.C.

June 17, 2013). But playing the odds is not the same thing as

reasonable suspicion. See also United States v. Black, 707

F.3d 531, 542 (4th Cir. 2013) (mere presence in a high crime

area at night does not support involuntary detention by

police).

In the absence of any particularized reports, evidence, or

suspicions, patrolling officers simply question every likely

person they encounter. They “employ[] a simple technique:

they ask[] any individual they encounter[] if he or she ha[s] a

gun and then watch[] to see if that individual engage[s] in

what the officers perceive[] to be suspicious behavior.”

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Robinson v. United States, 76 A.3d 329, 331 (D.C. 2013). If

consent to question or search is refused, officers frequently

construe citizens’ varied reactions to their probes as

rationalizing a Terry stop. 1

The Gun Recovery Unit’s officers have all but candidly

recognized that their policy amounts to statistical

gamesmanship. In a prior case involving the same policy,

Officer Katz, for example, noted that the unit’s officers

targeted a particular “high crime” area for patrols because it

“was one of [the officer’s] top-yielding gun areas as far as

recovering firearms off of people” and stopped an individual

for questioning without “any discussion among” the officers

about the rationale for the stop, where neither Officer Katz

nor the other officers “[saw] anything, initially, about him” to

suggest he had a gun. Transcript of Motions Hearing at 8, 24,

United States v. Robinson, No. 2011-CF2-023024 (D.C.

Super. Ct. May 10, 2012). See also id. at 29 (Officer Katz

stating, “I didn’t see anything that would make me think that

[the defendant] had a gun,” prior to questioning him about

firearm possession). As the D.C. Superior Court noted, like

all officers in the District’s Gun Recovery Unit, “[Officer

Katz] asked [the individual] whether he had a weapon, not

because he had any suspicion that he did, but because that’s

his job. He’s a gun recover[er]—and he asks everyone.

Apparently, he goes down the street asking everyone, do you

have a gun.” Id. at 120 (emphasis added).

As a thought experiment, try to imagine this scene in

Georgetown. Would residents of that neighborhood maintain

1

The act of refusal itself does not, however, form the basis of the

justification. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000)

(“[R]efusal to cooperate, without more, does not furnish the

minimal level of objective justification needed for a . . . seizure.”).

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there was no pressure to comply, if the District’s police

officers patrolled Prospect Street in tactical gear, questioning

each person they encountered about whether they were

carrying an illegal firearm? Nothing about the Gun Recovery

Unit’s modus operandi is designed to convey a message that

compliance is not required. While viewing such an encounter

as consensual is roughly equivalent to finding the latest

Sasquatch sighting credible, I submit to the prevailing

orthodoxy, but I continue to reject its counterintuitive

premise.

Under our Circuit precedents there is little question we

must treat consent to such questioning as voluntary, even

when—as here—multiple officers in tactical gear engage an

individual, repeatedly question him about his possession of

illegal firearms, and ask that he consent to a search. Brief of

Appellant at 4–6, United States v. Gross, No. 13-3102 (D.C.

Cir. June 12, 2014). Our decision in Goddard, for example,

involved facts more extreme than the present. This Court

nonetheless found no Terry stop where four officers dressed

in police gear used their patrol car to block the entrance of a

gas station—where the defendant stood with a group of other

young men—and then “jumped out” of their vehicle to

confront them. 491 F.3d at 461–62.

Yet our case law’s stubborn mythology that consent is

truly voluntary belies the all but foreordained nature of the

resulting search. Individuals approached by the District’s

Gun Recovery Unit officers know they possess little more

freedom than to elect the manner in which to be skewered

upon Morton’s Fork. 2 The outcome is effectively

2

Morton’s Fork derives from “Archbishop of Canterbury, Cardinal,

and Minister of Henry VII John Morton’s (supposed) method of

levying forced loans by arguing that those who were obviously rich

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predetermined. They will be searched. The choice they face

is to “voluntarily” acquiesce to the officers’ request or to have

any reaction to the officers’ inquiries—regardless of how

objectively benign—serve as the factual predicate justifying a

Terry search. See, e.g., Transcript of Motions Hearing at 80,

United States v. Gross (finding articulable facts warranting

Officer Katz’s search of Gross, who looked to the rear after

noticing the officers and failed to completely comply with a

request that he voluntarily show his waistband, lifting only

part of his shirt).

With the guise of voluntary consent stripped away, the

reality of the District’s regime is revealed. It is a rolling

roadblock that sweeps citizens up at random and subjects

them to undesired police interactions culminating in a search

of their persons and effects. If the Fourth Amendment is

intended to offer meaningful protection in the context of

Terry stops, the voluntary consent exemption cannot be used

to engage with members of the public en masse and at random

to fabricate articulable suspicions for virtually every citizen

officers encounter on patrol.

“No right is held more sacred, or is more carefully

guarded . . . than the right of every individual to the

possession and control of his own person, free from all

restraint or interference of others, unless by clear and

unquestionable authority of law.” Terry, 392 U.S. at 9. Our

could afford to pay, and those who lived frugally must have

amassed savings. Hence in extended and allusive use it is: a

practical dilemma, especially one in which both of the choices . . .

available disadvantage or discredit the chooser.” United States v.

Johnson, 482 F. App’x 137, 145 n.14 (6th Cir. 2012) (internal

punctuation marks and citations omitted).

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precedents, however, fail to safeguard this fundamental right,

and instead permits encounters intended to coerce

“consented” searches and justify Terry stops through

purposive interpretation of citizens’ reactions to “voluntary”

questioning.

Persons questioned by the District’s Gun Recovery Unit

patrols may reasonably be at a loss as to how to react to these

contacts. Is there a means to react to such nominally

voluntary encounters that might preserve their constitutional

prerogatives? I offer this advice: speak to officers firmly,

politely, respectfully. Tell them, “I do not wish to have an

encounter with the police right now. Am I free to leave?” If

the answer is “no,” then coercion will cease to masquerade as

consent. Our courts will be forced, at last, to directly grapple

with the reality of the District’s policy of routinized and

involuntary seizures.