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July 2021

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Welcome to this installment of The Federal Law Enforcement Informer (The Informer). The Legal Training Division of the Federal 

Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful 

and timely United States Supreme Court and federal Circuit Courts of Appeals reviews, interesting developments in the law, and 

legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and 

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

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by clicking on the link below. 

This edition of The Informer may be cited as 7 INFORMER 21.
2

The Informer – July 2021

Case Summaries

United States Supreme Court

Lombardo v. City of St. Louis: Whether the Eighth Circuit Court of Appeals considered

the relevant facts and circumstances surrounding the use of force applied by police officers

to determine whether the officers were entitled to qualified immunity.............................................3

Circuit Courts of Appeals

Fourth Circuit

United States v. Buzzard: Whether an officer unreasonably prolonged the duration of a

traffic stop by asking the defendant whether there was anything illegal in his vehicle......................4

Seventh Circuit

United States v. Leal: Whether the defendant was in custody for Miranda purposes when

questioned by federal agents.............................................................................................................5

Eighth Circuit

United States v. Simmermaker: Whether the defendant’s lockbox was within the scope of 

the warrant that authorized the search of the house she was visiting.................................................7

United States v. Short: Whether the warrantless search of the defendant’s vehicle under 

the automobile exception was unreasonable because the vehicle had a flat tire, causing the 

vehicle to lose its inherent mobility..................................................................................................8

United States v. Keck: Whether the warrantless search of the defendant’s van and seizure

of his electronic devices was lawful under the automobile exception...............................................9

District of Columbia Circuit

United States v. Jones: Whether officers had reasonable suspicion to stop a defendant 

who was the only person on the street when responding to a late-night call of shots 

fired in a neighborhood...................................................................................................................10

♦
3

CASE SUMMARIES

United States Supreme Court

Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021) 

City of St. Louis, Missouri police officers arrested Nicholas Gilbert for trespassing in a 

condemned building and failing to appear in court for a traffic ticket. Officers brought Gilbert to 

the St. Louis Metropolitan Police Department’s central station and placed him in a holding cell. 

At some point, an officer saw Gilbert tie a piece of clothing around the bars of his cell and put it 

around his neck, in an apparent attempt to hang himself. Three officers responded and entered 

Gilbert’s cell. One grabbed Gilbert’s wrist to handcuff him, but Gilbert evaded the officer and 

began to struggle. The three officers brought Gilbert, who was 5’3” and 160 pounds, down to a 

kneeling position over a concrete bench in the cell and handcuffed his arms behind his back. 

Gilbert reared back, kicking the officers and hitting his head on the bench. After Gilbert kicked 

one of the officers in the groin, they called for more help and leg shackles. While Gilbert continued 

to struggle, two officers shackled his legs together. 

Emergency medical services personnel were phoned for assistance. Several more officers 

responded. They relieved two of the original three officers, leaving six officers in the cell with 

Gilbert, who was now handcuffed and in leg irons. The officers moved Gilbert to a prone position, 

face down on the floor. Three officers held Gilbert’s limbs down at the shoulders, biceps, and 

legs. At least one other placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, 

saying, “It hurts. Stop.” After 15 minutes of struggling in this position, Gilbert’s breathing became 

abnormal and he stopped moving. The officers rolled Gilbert onto his side and then his back to 

check for a pulse. Finding none, they performed chest compressions and rescue breathing. An 

ambulance eventually transported Gilbert to the hospital, where he was pronounced dead.

Gilbert’s parents (Plaintiffs) sued, alleging that the officers had used excessive force against him. 

The district court granted summary judgment in favor of the officers, concluding that they were 

entitled to qualified immunity because they did not violate a constitutional right that was clearly 

established at the time of the incident. On appeal, the Eighth Circuit affirmed the judgment of the 

district court, holding that the officers did not apply unconstitutionally excessive force against 

Gilbert. The Plaintiffs appealed and the Supreme Court agreed to hear the case.

In Graham v. Connor, the Supreme Court held that to determine if a police officer used excessive 

force, courts will ask “whether the officers’ actions are ‘objectively reasonable’ in light of the 

facts and circumstances confronting them.” The court added that this inquiry “requires careful 

attention to the facts and circumstances of each particular case.” Citing its decision in Kingsley 

v. Hendrickson, the Court found that those circumstances include: 1) the relationship between the 

need for the use of force and the amount of force used; 2) the extent of the plaintiff’s injury; 3) 

any effort made by the officer to temper or to limit the amount of force; 4) the severity of the 

security problem at issue; 5) the threat reasonably perceived by the officer; and 6) whether the 

plaintiff was actively resisting.”

In this case, the Court found that the Eighth Circuit incorrectly characterized as “insignificant” 

circumstances that could potentially be important under Kingsley, including that Gilbert was 
4

already handcuffed and leg shackled when officers moved him to the prone position and that 

officers kept him in that position for fifteen minutes. 

The Court commented that such details could matter when deciding whether the officers were 

entitled to qualified immunity. For example, the evidence presented in the district court showed 

that officers placed pressure on Gilbert’s back even though their department instructs its officers 

that pressing down on the back of a prone subject can cause suffocation. In addition, it was 

established that well-known police guidance recommends that officers get a subject off his 

stomach as soon as he is handcuffed because of that risk. The guidance further indicates that the 

struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey 

officers’ commands. The Court concluded that such evidence, when considered alongside the 

duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may 

be pertinent to: 1) the relationship between the need for the use of force and the amount of force 

used; 2) the security problem at issue; and 3) the threat, to both Gilbert and others, reasonably 

perceived by the officers. 

The Court concluded by stating that it “expressed no view as to whether the officers used 

unconstitutionally excessive force or, if they did, whether Gilbert’s right to be free of such force 

in these circumstances was clearly established at the time of his death.” Instead, the Court 

remanded the case to give the Eighth Circuit Court of Appeals an opportunity to consider the facts 

and circumstances it failed to consider in its previous analysis, and then determine if the officers 

were entitled to qualified immunity.

For the Court’s opinion: https://www.supremecourt.gov/opinions/20pdf/20-391_2c83.pdf

*****

Circuit Courts of Appeals

Fourth Circuit

United States v. Buzzard, 2021 U.S. App. LEXIS 17518 (4th Cir. WV June 11, 2021) 

Around 1:30 a.m., a police officer pulled over a car for a defective brake light. Jason Buzzard 

was driving, and Paul Martin was in the passenger seat of the car. When the officer made contact 

with the Buzzard, he requested Buzzard’s license, registration, and proof of insurance. While 

Buzzard was looking for these items, the officer noticed Martin. The officer recognized Martin 

from previous encounters and knew that he had a history of drug addiction, that he had recently 

gotten out of prison, and that he was a convicted felon. As the officer spoke with Buzzard, Martin 

kept moving and looking around. Because it was late at night, and there were two individuals in 

the car, one of whom the officer thought might run, the officer decided to wait for another officer 

to arrive before returning to his vehicle to check what information he could, as Buzzard had been 

unable to provide a driver’s license, registration, or proof of insurance. 

While he waited, the officer asked Buzzard if there was anything illegal in the vehicle. The officer 

asked this question because of “the time of night and the high crime drug area, Mr. Martin’s 

history, and Mr. Martin’s behavior.” In response, Buzzard and Martin (the defendants) both 

volunteered drug paraphernalia: Buzzard produced a marijuana “bowl” from under his shirt and 

Martin produced a hypodermic needle and syringe.
5

When additional officers arrived a short time later, the defendants were removed from the vehicle. 

The officers searched the car and recovered two handguns wrapped in socks, one from under the 

driver’s seat and one from under the passenger’s seat. The officers arrested defendants, who were 

each charged with being a felon in possession of firearms. 

The defendants filed motions to suppress the guns, along with additional evidence found in the 

vehicle. The defendants claimed the officer unlawfully prolonged the duration of the stop by 

asking them whether there was anything illegal in the car, a question that was not related to the 

traffic stop’s mission concerning the defective brake light. 

The district court disagreed, holding that the officer’s question related to officer safety, reasoning 

that it “could expose dangerous weapons or narcotics” and that courts “have already recognized 

the authority of officers conducting a traffic stop to inquire about dangerous weapons.” The 

defendants appealed.

The Fourth Circuit Court of Appeals agreed with the district court. The court found that the officer

was in the middle of the stop when he asked whether there was anything illegal in the vehicle. At 

this point, the officer did not have the information he needed to perform the customary checks on 

the driver and vehicle, and he was waiting for an additional officer to arrive so he could safely 

proceed with the stop. Consequently, the court held that, because the question was asked during 

a lawful traffic stop and did not prolong the duration of the stop, the officer did not violate the 

Fourth Amendment by asking it. 

Alternatively, the court also agreed with the district court’s finding that the officer’s question 

related to officer safety; therefore, it related to the traffic stops mission. Given the defendants’ 

behavior, the fact that the officer was outnumbered, and that the stop occurred at night in a high 

crime area, and the court held that it made “sense that he needed to know more about what Buzzard 

and Martin had in the car.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca4/20-4087/20-4087-

2021-06-11.pdf?ts=1623436229

*****

Seventh Circuit

United States v. Leal, 2021 U.S. App. LEXIS 18359 (7th Cir. IL June 21, 2021) 

In July 2019, Jorge Leal contacted a user on Grindr, an online dating application. Unknown to 

Leal, that user was an undercover Federal Bureau of Investigation (FBI) agent looking to identify 

and locate individuals who have a sexual interest in children. The agent, posing as a teenage boy, 

informed Leal that he was 15 years old. Despite learning that the user was underage, Leal 

continued to engage in sexually explicit conversations and eventually solicited oral sex. A week 

after the initial conversation, Leal asked the user for his location. The agent provided Leal the 

address of a house that the FBI was using for the operation.

Leal arrived at the house on the evening of July 19. An FBI surveillance team watched Leal drive 

around the block and stop in an alley behind the house. Wary of a potential trap, Leal asked the 

supposed minor to flick on the outside lights to the house. When one of the surveillance team 

officers, U.S. Marshal Clark Meadows, drove an unmarked vehicle up the alley, Leal sped off.

Meadows pursued Leal and stopped him approximately two blocks from the house.
6

Three law enforcement agents were present during the stop. Meadows wore a green tactical vest 

with a badge and “U.S. Marshal” written across the front and back. The other two, FBI special 

agent Adam Buiter and a local police officer, each wore plain clothes under a vest with the words 

“Police” displayed across the front and back. Buiter identified himself as an FBI agent and asked 

Leal if he would step out of the car. Leal agreed, exited the vehicle, and consented to a pat down 

during which Buiter retrieved Leal’s wallet. When Buiter asked Leal if he had a cellphone, Leal 

pointed to it and handed it over. Buiter next explained to Leal that he was not under arrest and 

that he was stopped as part of an ongoing investigation. Buiter asked whether Leal would 

voluntarily consent to speak with other agents in a nearby house, and Leal said, “Yes.” Before 

leaving, Buiter asked Leal for his car keys so an agent could move his car off the road to a nearby 

parking lot. Again, Leal consented and handed over his keys.

Meadows then drove Leal back to the house. When they arrived, another FBI agent escorted Leal 

through the back door and took him to a bedroom, where two new FBI agents were located. The 

agents placed Leal’s wallet and cellphone on a table; his car keys remained with law enforcement. 

Leal agreed to the interview, which proceeded with the door closed and was audiotaped. The 

agents neither handcuffed nor restrained Leal during this entire episode.

Leal quickly confessed. After explaining to Leal that the interview was informal and that they are 

“just going to have a conversation,” the agents began by asking, “What brings you out this way?”

Within two minutes, Leal admitted to driving to the house after “chatting with a younger male 

through the Grindr app.” A few minutes later, an agent asked, “What was the point of you coming 

here tonight?” Leal then admitted that he came to the house “to play around sexually” with and 

receive oral sex from a minor. Leal also confessed that he knew showing up to meet with a fifteenyear-old was wrong, but he did so anyway. Only after Leal’s confession did the agents read aloud 

the Grindr chat log containing Leal’s solicitation messages. Leal confirmed he had sent these 

messages. At the end of the interview, which lasted approximately eighteen minutes, the FBI 

arrested Leal.

The government charged Leal with knowingly attempting to entice a minor to engage in sexual 

activity. Leal moved to suppress his statements in the interview, arguing that the agents conducted 

a custodial interrogation without first advising him of his Miranda rights. The district court 

agreed. The district court concluded that Leal was “in custody” for Miranda purposes during the 

interview with the agents. The government appealed.

Miranda warnings are required when a person is subjected to custodial interrogation. A person is 

in custody for Miranda purposes when formally arrested or when officers restrain the person’s 

freedom of movement to the degree associated with a formal arrest. To determine the issue of 

custody, courts must determine whether “a reasonable person [would] have felt he or she was not 

at liberty to terminate the encounter and leave.” The court added this is an objective test and that 

a person’s subjective beliefs are irrelevant. Relevant factors to determine whether a person is in 

custody for Miranda purposes include: 1) the location and duration of the questioning; 2) 

statements made by the officers; 3) the presence or absence of physical restraints during the 

questioning; and 4) the release of the person at the end of the questioning. 

Applying the circumstances surrounding Leal’s encounter with the officers against this 

framework, the Eighth Circuit Court of Appeals held that Leal was not in custody for Miranda

purposes while the agents interviewed him and reversed the district court. 
7

As an initial matter, the court noted that the district court erroneously considered Leal’s subjective 

beliefs when it held that he was in custody for Miranda purposes. For example, in analyzing the 

“location” factor, the district court emphasized that Leal subjectively felt “obligated” to stay 

because he was “caught in the act.” The court conclude that this was erroneous: the fact that Leal 

believed he was in a precarious position from the moment he drove up the alley indicated nothing 

about the behavior of the officers or whether a reasonable person would have felt bound to stay. 

Next, the court held that under an objective view of the totality of the circumstances, the agents’ 

interview of Leal did not rise to the level of a custodial interrogation. First, the court found that 

Leal voluntarily consented at every stage of the encounter: stepping out of the car; complying 

with the pat down; surrendering his cellphone, wallet, and car keys, accompanying Meadows to 

the house; and speaking with the two agents inside the interview room. Second, the agents told 

Leal initially that he was not under arrest, and Leal never asked the agents to end the encounter or

otherwise indicated that he wanted to leave. Third, the court found that the short duration of the 

interview, which was less than twenty-minutes, in addition to the fact that agents did not use 

physical restraint or brandish their weapons weighed against a finding of custody. Fourth, the 

agents did not confront Leal with evidence of his guilt until after he had voluntarily confessed. 

Finally, the fact that the agents arrested Leal at the end of the interview was not relevant, as it had 

no bearing as to whether a reasonable person would have believed that he was free to end the 

questioning and leave. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca7/20-3102/20-3102-

2021-06-21.pdf?ts=1624294924

*****

Eighth Circuit

United States v. Simmermaker, 998 F.3d 1008 (8th Cir. 2021)

Police officers executed a search warrant of a home in Tipton, Iowa, that belonged to W.S., 

someone familiar to the officers through drug investigations. The warrant authorized a search of 

the house and of W.S. It also authorized the search of items related to drug trafficking and “locked 

containers, safes, hidden compartments or other items or areas capable of storing or concealing 

any of the other items listed herein.” 

During the search, officers found Michelle Simmermaker asleep on the couch in the living room 

of the house. Close by on the couch was a meth pipe and a Brink’s security lockbox that belonged 

to Simmermaker. The keys to the Brink’s box were near the box. Officers woke Simmermaker, 

handcuffed her, and removed her from the room. Simmermaker told officers she had been staying 

at the home for a week, but the officers later learned she had been there for two nights. The officers 

unlocked the Brink’s box and found 10.95 grams of methamphetamine and a digital scale inside. 

The government charged Simmermaker with possession of methamphetamine with intent to 

distribute.

Simmermaker filed a motion to suppress the evidence seized from the Brink’s box, arguing that 

her lockbox was not within the scope of the search warrant for the house. The district court denied 

the motion and Simmermaker appealed.

The Eighth Circuit Court of Appeals commented that “a visitor’s privacy interest is complicated 

when the visitor is connected to the illegal activity at the location” to be searched. In this case, 
8

the search warrant was for evidence of drug use and distribution. When the officers entered the 

house, they saw Simmermaker on the couch, asleep, with a meth pipe next to her. The court 

concluded that this gave the officers “particularized suspicion” that Simmermaker was 

connected to the illicit activity that provided the basis for the warrant. Consequently, the court 

held that Simmermaker’s personal belongings, including the Brink’s box, would be subject to the 

warrant, especially because the warrant included all “locked containers.”

The court added that while Simmermaker had a reasonable expectation of privacy in the Brink’s 

box, officers had probable cause that she was involved in the criminal activity that formed the 

basis for the warrant. As a result, the court held that Simmermaker’s Brink’s box fell within the 

scope of the warrant and searching it was lawful.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/20-2071/20-2071-

2021-06-01.pdf?ts=1622561428

*****

United States v. Short, 2021 U.S. App. LEXIS 19242 (8th Cir. IA June 29, 2021)

Police officers responded to a report of gunshots fired at an apartment complex. Various 911 

callers reported that three potential suspects were involved and that two black cars were involved, 

including a black Dodge Charger. When an officer arrived at the apartment complex, he saw 

Shaun Short walking in the parking lot near a black Dodge Charger. Officer Miller recognized 

Short as matching the description reported by one of the 911 callers as a black male with 

dreadlocks wearing a white shirt and blue pants. The officer approached Short and asked him a 

series of questions regarding the reported gunshots. After placing Short in handcuffs, the officer 

detected a strong odor of marijuana emanating from the rear driver’s side window of the Charger, 

which was open an inch or two.

The officer called a narcotics officer to the scene. After the narcotics officer smelled the odor of 

marijuana coming from the Charger, officers searched the car. The officers found approximately 

two grams of marijuana and an identification card for Short, indicating that he lived in the 

apartment complex. 

In the meantime, elsewhere at the apartment complex, officers identified two individuals 

reportedly involved in the shooting. Both men admitted to their involvement in the shooting and 

stated that they had come to the complex to purchase marijuana from Short. Based on this 

information as well as the evidence seized from the Charger, officers obtained a warrant to search 

Short’s apartment. In Short’s apartment, officers found approximately 70 grams of marijuana, 

baggies with marijuana residue, $12,000 in cash, working digital scales, and two firearms.

Prior to trial, Short filed a motion to suppress the evidence found during the warrantless search of 

the Charger. The district court denied the motion, holding that the smell of marijuana gave the 

officers probable cause to search the vehicle under the automobile exception to the Fourth 

Amendment’s warrant requirement. 

On appeal, Short did not contest the district court’s conclusion that the smell of marijuana gave 

the officers probable cause to search his vehicle. Instead, Short argued that the automobile 

exception did not apply because his car was parked in the apartment complex lot with a flat tire, 

thereby rendering it immobile.
9

The Eight Circuit Court of Appeals disagreed. Under the automobile exception, the Supreme 

Court has held, “if a car is readily mobile and probable cause exists to believe it contains 

contraband,” police officers may search it without a warrant. The court stated that Short had failed 

to cite any case in which a court had found that the automobile exception does not apply when the 

vehicle to be searched is temporarily immobilized. Instead, the court pointed to an unpublished 

opinion in the Eighth Circuit and published opinions in the Fifth and Tenth Circuits, which have 

held to the contrary. Consequently, the court held that it was undisputed that the officers had 

probable cause to search Short’s vehicle, and that an easily repairable flat tire did not cause the 

vehicle to lose its inherent mobility. Accordingly, the court held that the automobile exception 

applied, and the district court properly denied Short’s motion to suppress the evidence seized from 

his vehicle.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/20-1533/20-1533-

2021-06-29.pdf?ts=1624980623

*****

United States v. Keck, 2021 U.S. App. LEXIS 19240 (8th Cir. AR June 29, 2021) 

In 2016, the Swiss federal police told the Federal Bureau of Investigation (FBI) that an internet 

protocol (“IP”) address in Arkansas was distributing child pornography on a file sharing website 

known as GigaTribe. The FBI tied the IP address to Matthew Fee. Agents then questioned Fee 

and his fiancée, Danika Keck, (the Fees). The Fees told the agents they should investigate Joseph 

Keck, Fee’s future father-in-law. The Fees told the agents that Keck worked as a long-haul truck 

driver and that he stayed at their house periodically when he was in town. In addition, several 

years earlier, Keck had spent thirty days in jail and paid a $16,000 fine for a child-pornography 

conviction.

When the agents first interviewed the Fees on a Friday night, the couple consented to the seizure 

and search of their personal electronic devices. Those searches revealed no child-pornographyrelated evidence. The following Monday, agents discovered that another jurisdiction was 

investigating Keck for child-pornography-related crimes. The Fees also told the agents that they 

expected Keck to return to their house that afternoon.

The lead agent on the case asked his supervisor and the FBI’s in-house legal counsel for advice. 

The agent was advised that the FBI could lawfully seize Keck’s electronic devices without a 

warrant to prevent Keck from destroying them, and the agents needed to do so as soon as Keck 

returned to town.

When Keck arrived at the Fees’ house on Monday, two FBI agents were there waiting for him. 

The agents then told Keck they needed his electronic media. Keck gathered his devices, including 

two laptops, a cell phone, a portable hard drive, and a memory card, from his van and gave them 

to the agents.

After obtaining a warrant to search Keck’s electronic devices, the FBI’s examination revealed, 

among other things, folders with thousands of child pornography videos and images. The 

government charged Keck with several child-pornography-related offenses.

Keck filed a motion to suppress the evidence recovered from his electronic devices. The district 

court denied the motion and Keck was subsequently convicted. On appeal, Keck claimed the 
10

agents’ warrantless search of his van and seizure of his electronic devices violated the Fourth 

Amendment. 

The Eighth Circuit Court of Appeals disagreed. One exception to the Fourth Amendment’s 

warrant requirement is the automobile exception. When police officers have probable cause to 

believe that an automobile contains contraband or evidence of a crime, the officers are justified to 

conduct a warrantless search of the automobile. 

The court explained that the scope of the automobile exception includes “the automobile and the 

containers within it where [officers] have probable cause to believe contraband or evidence is 

contained.” The court further explained that “probable cause exists when, given the totality of the 

circumstances, a reasonable person could believe there is a fair probability that contraband or 

evidence of a crime,” to include electronic evidence, “would be found in a particular place.”

In this case, the court found that, before the FBI agents encountered Keck in the Fees’ driveway 

and searched his van, the agents: 1) knew that someone associated with the Fees’ IP address had 

downloaded child pornography; 2) were told by Keck’s future son-in-law and Keck’s daughter 

that Keck was the likely suspect; 3) confirmed that none of the Fees’ electronic devices contained 

child pornography, which further supported Keck as the primary suspect as well as a belief that 

he had the devices with him on the road; and 4) knew that Keck had previously committed a childpornography-related crime. Based on these facts, the court concluded there was a fair probability 

that contraband or evidence of a crime would be found in Keck’s van. As a result, the court held 

that the agents lawfully searched Keck’s van and seized his electronic devices under the 

automobile exception. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/19-3534/19-3534-

2021-06-29.pdf?ts=1624980621

*****

District of Columbia Circuit

United States v. Jones, 2021 U.S. App. LEXIS 17756 (D.C. Cir. June 15, 2021) 

On the night of April 6, 2019, the Metropolitan Police Department (MPD) alerted two police 

officers that its ShotSpotter system had identified the sound of gunshots in the 3500 block of 13th 

Street Southeast in Washington, D.C. ShotSpotter is “a surveillance network of GPS-enabled 

acoustic sensors” that “use[s] sophisticated microphones to record gunshots in a specific area.”

The officers arrived on the block a minute and a half after receiving the alert. The officers saw a 

man, later identified as Chauncey Jones, walking quickly and observed that there was no one else 

outside on the block. While the officers checked for victims, a dispatcher reported over their radio 

that citizens on neighboring blocks were calling 911 to report gunshots heard at either end of the 

3500 block. The officers believed these were the same shots reported by ShotSpotter, as they had 

heard no additional shots since arriving on the block.

Finding no victims, the officers decided to stop Jones, following him around the corner onto 

Trenton Place, where a third officer joined them. As Jones continued to walk away, one of the 

officers called out to him, “Hello, how ya doin’? Hello. Excuse me! Hello. You don’t hear me 

talking to you?” After approximately ten seconds, Jones, who was wearing a hooded jacket, 

stopped and turned back toward the officers, removing the headphones he was wearing under the 
11

jacket’s hood. According to officer testimony, Jones “kept moving, like moving a lot,” and his 

“hand kept moving, gravitating towards his waistband area,” which led one of the officers to grab 

Jones’s hand while telling him to stop moving. Observing an item jostle in Jones’s waistband, 

another officer tackled Jones and, after a struggle, recovered the item, which was a pistol. 

Jones, who had a previous felony conviction, was charged with unlawful possession of a firearm 

and filed a motion to suppress the pistol, arguing that the police officers’ stop had violated the 

Fourth Amendment because they lacked a reasonable and articulable suspicion that Jones was 

engaged in criminal activity. The district court denied the motion and Jones was subsequently 

convicted. On appeal, Jones claimed that the pistol should have been suppressed because the 

officers lacked reasonable suspicion to stop him in the first place.

The DC Circuit Court of Appeals disagreed. Under Terry v. Ohio, the Supreme Court held that 

officers may stop a citizen if they are “able to point to specific and articulable facts which, taken 

together with rational inferences from those facts, support a reasonable and articulable suspicion 

that the person seized is engaged in criminal activity.” A Terry stop, which constitutes 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.” The Supreme Court clarified in Illinois v. Wardlaw

that evidence must include more than mere “presence in an area of expected criminal activity.” 

In the case at hand, both parties agreed that the stop occurred when Jones stopped walking and 

removed his headphones at the officer’s direction. Jones conceded that the officers had reasonable 

suspicion that a gun was fired on the 3500 block of 13th Street Southeast shortly before their 

arrival but Jones disputed whether the officers had grounds to suspect that he had been involved. 

The court found that the totality of the information known to officers when Jones was stopped

sufficed to raise a reasonable suspicion because: 1) the ShotSpotter alert and dispatcher report 

from MPD indicated that shots were fired in the 3500 block of 13th Street Southeast; 2) the 

officers arrived at the location of the reported gunshots within a minute and a half of the MPD 

call; 3) officers testified that they saw that Jones was the only person on that block; 4) Jones was 

walking quickly away from the location of the shooting; and 5) Jones did not initially respond to 

an officer’s repeated efforts to get his attention and continued to walk away. 

In addition, while Jones did not initially respond to one officer’s repeated efforts to get his 

attention, when he did finally respond, he reached up in a gesture suggesting he was removing 

earbuds, which might indicate that he didn’t hear the officer’s calling out to him. While officers 

could have drawn an alternative, non-suspicious inference from Jones’s failing to respond and 

continuing to walk away, e.g., he could have been listening to loud music and initially failed to 

hear calls out to him, the district court found that when the officer commanded Jones to stop, the 

officer could not see that Jones was wearing headphones and, therefore, it was reasonable for 

officers to treat Jones’s non-responsiveness as grounds for suspicion. 

The DC Circuit Court of Appeals affirmed the district court’s denial of Jones’s motion to suppress 

the firearm seized from his waistband, holding that the officers that seized the gun had reasonable 

suspicion, based on the totality of the facts, that Jones was involved in criminal activity.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/cadc/20-3034/20-3034-

2021-06-15.pdf?ts=1623769263

*****