1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA , ) ) v. ) Criminal Case No. 18

- 108 (EGS) ) MARK A. GIBSON , ) ) Defendant . ) ) MEMORANDUM OPINION I. Introduction On April 2, 2018 at approximately 11:48 p.m., defendant Mark Gibson was walking home from the bus stop. As he was walking east on Galen Street at the intersection o f 16th Street and Galen Street Southeast in the District of Columbia , four Metropolitan Police Department Gun Recovery Unit Officers (“ MPD

o fficers” or “officers ” ) were patrolling in the same area, seeking to recover firearms. After a brief encounter between the officers and Mr. Gibson

— t he details of which are disputed

— Mr. Gibson fled . He was caught, arrested, searched, and found to be in possession of cocaine base and a firearm . Thereafter, Mr. Gibson was indicted on three counts: (1) unlawful possession of a firearm by a felon in violation of 18 U . S . C . § 922(g); (2)

un lawful possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841; and (3) possessing a firearm in2

furtherance of a drug trafficking offense in violation of 18 U . S . C . § 924(c). See Indictment, ECF No. 1. Pending before the Court is Mr. Gibson’s motion to suppress all tangible evidence . See ECF No. 6. Mr. Gibson argues that he was unlawfully seized in violation of the Fourth Amendment of the United States Constitution when the MPD Officers approached him and ordered him to show his wa istband and lift his jacket. The Court held evidentiary hearings on September 17, 2018 and September 20, 2018, at which both MPD Officer Matthew Hiller (“Officer Hiller”) and Mr. Gibson testified. As explained fully below, the Court credits Mr. Gibson’s testimony and finds that the government has not met its burden to establish that the seizure was lawful. Accordingly, after careful consideration of Mr. Gibson’s motion, the response s and supplement al responses , the repl ies and supplemental replies thereto, the evidence presented at the evidentiary hearings , and the oral arguments made at the September 25, 2018 and October 10, 2018 motion hearing s , Mr. Gibson’s motion to suppress all tangible evidenc e is GRANTED . II. Background On April 24, 2018 , Mr. Gibson was indicted for : (1) unlawfully and knowingly possessing a Taurus .40 caliber semi

automatic pistol as a felon ; (2) knowingly and intentionally possessing cocaine base; and (3) knowingly possessing a firearm3

in furtherance of a drug trafficking offense. Indictment, ECF No. 1. During the September 17, 2018 and September 20, 2018 evidentiary hearings , the Court view ed the relevant body

- worn camera footage. Officer Hiller and Mr. Gibson also testified about the circumstances leading to Mr. Gibson’s arrest. The ir respective testimony conflicts on the critical question upon which resolution of this motion depends

— n amely, whether one of the MPD officers ordered Mr. Gi bson to show his waistband . A. Undisputed Facts On April 2, 2018 four MPD of ficers

— all members of the Gun Recovery U nit

— patrolled the Seventh District, seeking to recover firearms in a “high

- crime area.” See Mot. Hr’ g Tr. (“Sept. 17 Tr.”) , ECF No. 16 at 15

- 16 (Sept. 17 , 2018) . 1 The officers were riding in an unmarked car and all wore tactical vests marked

“ POLICE ” in large letters on the front and back. Id. at 12

- 13; Gov’t ’s Ex s . 1

- A, 1

- B, 3. Officer John Wright drove the vehicle, while Officer Hiller sat in the front passenger seat , and Officers Matthew Mancini and Merissa McCaw sat in the back seat . Sept. 17 Tr., ECF No. 16 at 12

- 13. At approximately 11:48 p . m . , the MPD o fficers encountered Mr. Gibson as he walked east on Galen Street at the intersection

1 When citing elec tronic filings throughout this O pinion, the Court cites to the ECF page number, not the page number of the filed document.4

of 16th Street and Galen Street Southeast. Sept. 17 Tr., ECF No. 16 at 17; Mot. Hr’g Tr. (“Sept. 20 Tr.”) , ECF No. 1 7 at 46 (Sept. 20, 2018) . Mr. Gibson had been walking h ome from a bus stop after visiting a friend’s house. Sept. 20 Tr., ECF No. 17 at 45

- 46. The officers drove alongside Mr. Gibson as he walked on the sidewalk. Officer Wright slowed down, pointed a flashlight at Mr. Gibson, greeted Mr. Gibson, and identified himself as a police officer . See Sept. 17 Tr., ECF No. 16 at 18; see also Sept. 20 Tr., ECF No. 17 at 49

- 50; Def.’s Exs. 3, 4. The p arties agree that Officer Wright first ask ed Mr. Gibson whether he had a firearm on him and Mr. Gibson responded that he did not . Sept. 17 Tr., ECF No. 16 at 17

- 18; Sept. 20 Tr., ECF No. 17 at 49

- 50. From here , the testimony diverge s ; the different versions of the events are discussed below. B. Officer Hiller’s Testimony Officer Hiller testified that, after Mr. Gibson stated that he did not have a gun , the MPD officers continue d to drive alongside Mr. Gibson. See Sept. 17 Tr., ECF No. 1 6 at 18 . Officer Hiller initially testified that Officer Wright asked Mr. Gibson “if he minded showing us his wai stband .” Id. Officer Hiller later hedged t his answer, testifying that Officer Wright said “something almost exactly to that effect.” Id. at 56. On

cross - examination, however, Officer Hiller could not confirm the5

“exact word s used. ” I d. at 89 . While Officer Hiller could not recall the exact words used, he testified that he had “ never heard ” Officer Wright “demand to see somebody’s waistband.” Id. at 89. According to Officer Hiller, Officer Wright’s tone and demeanor was “conversational.” Id. at 18, 39 , 111

- 12 . Officer Hiller stated that Mr. Gibson again denied having a weapon . Id. at 18 (“Mr. Gibson again replied, ‘I ain’t got no guns. I ain’t got no guns.’”). Officer Hiller originally attested in the Gerstein Report 2 he prepared that Mr. Gib son had his hands in his jacket pockets throughout this encounter. Id. at 58

- 59, 63

- 66; Def.’s Ex. 1, ECF No. 13

- 1 (“Officer Wright asked Mr. [Gibson] if he could see his waistband and Mr. [Gibson] repeated ‘I ain’t g ot no guns, I ain’t got no guns’ keepin g his hands in his jacket pockets”). Moreover , Officer Hiller did not mention Mr. Gibson’s hands in his narrative testimony on direct examination. See Sep t. 17 Tr., ECF No. 16 at 17

- 20. However, Officer Hiller agreed on cross examination , after watching the body

- worn camera footage, that Mr. Gibson raised his hands in the air with his palms facing the

2 A Gerstein report contains sworn statement s by la w enforcement officer s and is “used by prosecutors to establish probable cause at the defendant's initial appearance before the court following his arrest.” Littlejohn v. United States , 705 A.2d 1077, 1080 (D.C. 1997) (citing Gerstein v. Pugh , 420 U.S. 103, 120, 124 n. 25 (1975) ) ; s ee Sept. 17 Tr., ECF No. 16 at 58; Def.’s Ex. 1 , ECF No. 13

- 1.6

officers during the encounter. Id. at 62, 70

- 71. Officer Hiller further testified that he could not remember Mr. Gibson raising his hands i n the air or why Mr. Gibson had raised his hands. Id. at 70

- 71, 75

- 76. Officer Hiller testified that, a fter Mr. Gibson denied having a weapon for the second time , Officer Wright “pulled forward a little bit” and Mr. Gibson “kind of stopped, turned back towards 16th Street and ran back down towards 16th Street where he was originally seen coming from.” Id. at 19. Once Mr. Gibson fled , Officers Mancini and Hiller pursued him on foot. Id. at 20

- 21. Shortly thereafter, Mr. Gibson “lost his footing” and fell to the ground. Id. at 21. Officer Hiller testified that

a firearm fell and landed on the ground near Mr. Gibson . Id. ; see also id. at 26 (“the gun fell out”). At that time, Mr. Gibson was arre sted and searched. See i d. at 22. The MPD officers found plastic bags containing a substance that tested positive for cocaine base. Id. ; Gov’t ’s Exs. 4, 6

- 10 ; Sept. 20 Tr., ECF No . 17 at 52. The parties agree that all four MPD officers remained in the car until Mr. Gibson began to run. Sept. 17 Tr., ECF No. 16 at 38; see also Sept. 20 Tr., ECF No. 17 at 64. The parties also agree that Officer Wright was the only officer who spoke to Mr. Gibson. S ept. 17 Tr., ECF No. 16 at 39

- 40; see also Sept. 20 Tr., ECF No. 17 at 60. Finally, the parties agree that none of7

the MPD officers drew or displayed their weapons . Sept. 17 Tr., ECF No. 16 at 19 ; see also Sept. 20 Tr., ECF No. 17 at 61. C. Mr. Gibson’s Te stimony Mr. Gibson also testi fied at the evidentiary hearing . H is account of the April 2, 2018 encounter differs from Officer Hiller’s tes timony in one crucial respect. Mr. Gibson agreed that he had been walking home when the four MPD officers pulled up b eside him in an unmarked car. Sept. 20 Tr., ECF No. 17 at 45, 48

- 49. He agrees that Officer Wright pointed a flashlight at him, greeted him, and asked if he had a weapon. Id. at 49

- 50. However, Mr. Gibson disputed that Officer Wright then asked to see his waistband. Instead, Mr. Gibson testified that Officer Wright ordered “let me see your waistband.” Id. at 50. In response , Mr. Gibson raised both hands in the air with his palms facing the officers, as Officer Hiller agreed the body

- worn camera footage showed. See Gov’t ’s Ex. 1

- B. Mr. Gibson testified that he raised his arms “because they told [him] to let them see [his] waistband.” Sept. 20 Tr., ECF No. 17 at 51. After Mr. Gibson raised his arms, he testified that Officer Wrig ht respond ed by saying “lift your jacket.” Id. At that time, Mr. Gibson testified that he turned and fled because he knew he had contraband and was scared to get in trouble. Id. at 51

- 52.8

He agreed he fell while attempting to evade the officers chasing him; the firearm fell out of his waistband. Id. at 52. T he Court ’s task is to determine what Officer Wright said to Mr. Gibson before he fled. Unfortunately, this determination cannot be made from the best evidence available: the body

- worn camera footage. The r e is no audio available of the en counter because none of the four MPD o fficers activated their cameras when they came into contact with Mr. Gibson . The officers only activated their body

- worn cameras when they began to pursue Mr. Gibson on foot. Sept. 17 Tr., ECF No. 16 at 141 ; Gov’t’s Exs. 1

- A, 1

- B . The Court is able to see the encounter, even though the MPD officers did not activate their body

- worn cameras, because the cameras store visual footage for the two minutes preceding the moment that th e cameras are activated. The camera does not store the audio for those two minutes. Sept. 17 Tr., ECF No. 16 at 7

- 8, 14. Therefore , the Court is able to view the short encounter between the MPD officers and Mr. Gibson but is unable to hear the dialogue . Th e officers’ failure to activate their body

- worn cameras upon encountering Mr. Gibson was a violation of MPD regulations. 3 Id. at 84

- 85.

3 It is undisputed that the MPD officers violated an MPD General Order by not activating their body

- worn cameras upon coming into contact with Mr. Gibson. See Sept. 17 Tr., ECF No. 16 at 83

- 85; Def.’s Exs. 5, 6 , ECF Nos. 13

- 4, 13

- 5 ; Oct. 10 Tr., ECF No. 28 at 34 (COURT: “[T]here was not compliance with the body camera9

III. Standard of Review Mr. Gibson argues that the tangible evidence recovered on April 2, 2018 must be suppressed because the MPD officers seized him without probable cause or reasonable suspicion in violation of the Fourth Amendment . See Def.’s Mot. to Suppre ss (“Def.’s Mot.”) , ECF No. 6 . “When the government conducts an unconstitutional search or seizure, the Court must exclude any evidence obtained as the ‘fruit’ of that search or seizure.” United States v. Sheffield , 799 F . Supp. 2d 22, 28 (D.D.C. 2011) (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963)). Typically, “[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978) (citations omitted) . However, “[w]hen a defendant establishes that he was arrested or subjected to a search without a warrant,” as is undisputedly the case here, “the burden then shifts to the government to justify the warrantless search.” United States v. Williams , 878 F. Supp. 2d 190, 197 (D.D.C. 2012) (citing, among other omitted authority, Mincey v. Arizona , 437 U.S. 385, 390

– 91 (1978)).

directive . . . correct?” GOVERNMENT: “I think a literal reading of the genera l order, the answer is probably yes”).10

H ere, the parties agree that the government has the burden to prove by a preponderance of the evidence that the re was no seizure in violation of the Fourth Amendment . Sept. 20, 2018 Tr., ECF No. 1 7 at 4

- 6 ( COURT: “ So the government has the burden of proof to prove by a preponderance that Mr. Gibson was not seized and searched in violation of the Fourth Amendment,

c orrect? ” GOVERNMENT: “Yes. That’s correct, Your Honor ”). IV. Analysis The Fourth Amendment guarantees that the “right of the peopl e to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no [w] arrants shall issue, but upon probable cause . . . . ” U.S. CONST . AMEND . IV. Resulting from this guarantee, “all seizures, even ones involving only a brief detention short of traditional arrest,” must be “founded upon reasonable, objective justification.” United States v. Gross , 784 F.3d 784, 786 (D.C. Cir. 2015) (internal quotations and citations omitted); see also United States v. Mendenhall , 446 U.S. 544, 551 (1980)(“The Fourth Amendment's requirement that searches and seizures be founded upon an objective justificat ion, governs all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.”)(quotations and citations omitted ).11

Not every interaction between law enforcement and private persons amounts to a seizure with in the meaning of the Fourth Amendment. A seizure arises “[o]nly when the 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). “Whether police action amou nts to a ‘show of authority’ requires the court to ask whether a ‘reasonable person’ ‘in view of all the circumstances surrounding the incident, . . . would have believed that he was not free to leave.’” United States v. Castle , 825 F.3d 625 , 632 (D.C. Cir . 2016)(quoting United States v. Wood , 981 F.2d 536, 539 (D.C. Cir. 1992)). “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 de fendant's shoes.’” Gross , 784 F.3d at 787 (quoting United States v. Goddard, 491 F.3d 457, 460 (D.C . Cir. 2007) (per curiam)). Accordingly , the Court must first determine whether there was a show of authority. A show of authority “ does not occur simply beca use a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). Indeed, “even when officers ‘have no basis for suspecting a particular individual, they may generally a sk questions of that individual . . . as long as the police do not12

convey a message that compliance with their requests is required.’” Gross , 784 F.3d at 787 (quoting Florida v. Bostick , 501 U.S. at 435). T he United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has outlined several “factors” that a district court should consider “in assessing whether an officer’s actions a mounted to a show of authority ‘includ[ ing] whether the suspect was physically intimidated or touched, wh ether 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 com pelled. ’ ” Castle, 825 F.3d at 632

- 33 ( quoting Mendenhall , 446 U.S. at 554 ) (alterations omitted) . Assuming the Court finds there has been a show of authority, the Court must also find that the defendant submitted to that authority. California v. Hodari D. , 499 U.S. 621, 628

- 29 (1991); see also United States v. Brodie , 742 F.3d 1058, 1061 (D.C. Cir. 2014) ; Wood , 981 F.2d at 538 , 540

- 41 . Below, t he Court separately considers : (1) whether the government met its burden to prove there was no show of authority ; and (2) whether the government met its burden to prove there was no submission to any show of authority.13

A. The Government Has Not Met Its Burden: Show of Authority The MPD officers encountered Mr. Gibson while “ferret[ing] out illegal firearms,” using a metho d known as a “rolling roadblock, ” whereby 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[] [d]espite lacking any sem blance of particularized suspicion when the initial contact is made.” Gross , 784 F.3d at 789 (Brown, J . , concurring). It is clear that this technique is “consistent with t he Fourth Amendment , ” so long as the government meets its burden to prove there was no show of authority such that a reasonable person would not feel free to leave . Id. 4

4 Judge Brown notes that the D.C. Circuit’s jurisprudence in approving such techniques “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).” Gross , 784 F.3d at 789 (Brown, J. , concurring). She observes that “[n]othing about the Gun Recovery Unit’s modus operandi is designed to convey a message that compliance is not required . . . . [V]iewing such an encounter as consensual is roughly equivalent to finding the latest Sasquatch sighting credible . . . .” Id. at 790. Having listened to four days of testimony and argument, the Court must agree. Indeed, the MPD’s rolling roadblock practice is so p revalent in the District of Columbia that individuals living in high

- crime neighborhoods sometimes show MPD officers their waistbands “without [ MPD officers] even saying anything.” Sept. 20 Tr., ECF No. 17 at 31 (Officer Hiller testimony) ; see Patrick Madd en, D.C.’s Aggressive Confiscation of Illegal Guns Leaves Residents Feeling Targeted , NPR , Oct. 24, 2018, available at https://www.npr.org/2018/10/24/659980871/d

- c s - aggressive

- confiscation

- of

- illegal

- guns - leaves

- residents

feeling

- targeted ( "Young black men say they feel targeted and14

Mr. Gibson argues that he was seized when Officer Wright purportedly ordered him to show his waistband, see Def.’s Mot., ECF No. 6 at 2, and again when Officer Wright pu rportedly ordered him to lift his jacket, see Def.’s Suppl. Mem., ECF No. 19 at 17

- 18. Because Officer Wright allegedly ordered Mr. Gibson to comply , Mr. Gibson argues that a reasonable person under the circumstance s would not feel free to disregard the command and leave. Def.’s Suppl. Mem., ECF No. 19 at 15

- 16 . The government argues that Mr. Gibson was not seized because Officer Wright merely asked him to see his waistband, an acceptable practice pursuant to Supreme Court and D.C. Circuit precedent. See generally Gov’t ’s Opp’n, ECF No. 7; Gov’t ’s Suppl. Mem., ECF No. 14

- 1 . Thus, Mr. Gibson’s motion to suppress turns entirely on a factual determination: whether Officer Wright ordered M r. Gibson

harassed by these stops. To avoid being frisked, they say they lift up their shirts when police drive by to show they don't have a gun in their waistband.") . Mr. Gibson testified that he had at least two other encounters with police officers wanting to see his waistband. Sept. 20 Tr., ECF No. 17 at 52. In each of those experiences, Mr. Gibson did not feel that he had a choice as to whether to show his waistband. Id. at 53. As Judge Brown posited and Officer Hiller confirmed, s uch encounter s would never occur in Georgetown. See Gross , 748 F.3d at 790 (“[T]ry to imagine this scene in Georgetown. Would results of that neighborhood maintain there was no pressure to comply . . . ?”); Sept. 20 Tr., ECF No. 17 at 30 (Officer Hiller: “ we’re not asked to go to Georgetown”).15

to see his waistband or merely asked Mr. Gibson to see his waistband. 5

1. Factual Findings As described above, Officer Hiller and Mr. Gibson provided directly conflicting accounts. The Court has considered the evidence admitted , 6 the demeanor and credibility of the witnesses, and the testimony of Mr. Gibson and Officer Hiller . In the final analysis , the Court c oncludes that the government has not met its burden because its evidence is insufficient to prove the seizure was lawful by a preponderance of th at ev idence. The government’s only witness

— Officer Hiller

— either could not remember or misremembered many of the critical

5 The government argued that the defendant “put out” “new theories” that were not originally briefed be cause his initial motion focused on illegal arrest and the search incident to that arrest. See Sept. 25 Tr., ECF No. 24 at 4

- 8. The Court rejects this argument. It is clear that Mr. Gibson argued in his initial motion that he was seized “at the point that the police officer stopped him.” Def.’s Mot., ECF No. 6 at 2. Moreover, the Court allowed the parties t o submit supplemental briefing to remedy any lack of clarity in the original motion. The government indeed filed a supplemental response , which the Court has considered . See Gov’t’s Suppl. Mem., ECF No. 14

- 1. 6 The Court provisionally admitted several exhi bits over objection. See, e.g. , Sept. 17 Tr., ECF No. 16 at 152

- 53 ( COURT:
“ I can let it in provisionally, take a look at it, if it’s not relevant I can disregard it.”); Sept. 20 Tr., ECF No. 17 at 34. Ultimately, the Court did not rely on any opposed exhi bit in granting Mr. Gibson’s motion, including defense exhibits 8 (Gun Recovery Unit banner photograph), 9 (banner photo), 10 (photo of MPD t
- shirt), 13 (video of barbershop incident), and 15

- 16 (records from other proceedings) . Thus, the Court need not resolve such objections.16

facts from the April 2, 2018 encounter. Specifically , Officer Hiller could not remember the words Officer Wright used when speaking to Mr. Gibson, the issue central to resolving the motion . First, Officer Hiller testified that Officer Wright asked Mr. Gibson “if he minded showing us his wai stband.” Sept. 17 Tr., ECF No. 1 6 at 18. Then, after the Court asked Officer H iller what Officer Wright said to Mr. Gibson, Officer Hiller hedged his answer, testif ying that Officer Wright said “something almost exactly to that effect .” Id. at 56. O n cross examination, however, Officer Hiller could not confirm the “exact word s used, ” id. at 89, and agreed that it was “hard to remember,” i d. at 72 ; Mot. Hr’g Tr. (“ Oct. 10 Tr. ”) , ECF No. 28 at 23

- 25 (Oct. 10, 2018) (conceding that Officer Hiller could not testify to the specific words uttered by Officer Wright) ; id. at 26 (COURT: “Wasn’t [Officer Hiller] still unclear about the precise language [Officer Wright] used in his question to Mr. Gibson?” GOVERNMENT : “I think the answer to that is yes, he did not say he recalled these words specifically”). Accordingly, t he g overnment asks the Court to accept Officer Hiller’s testimony that Officer Wright would never demand to see a waistband. See, e.g. Oct. 10 Tr., ECF No 28 at 32 ( GOVERNMENT : “[W]e can prevail because the Officer said it was in question form, whatever it was , was in question form.”) . True , Officer Hiller testified that Officer Wright never demands17

to see a waistband because MPD officers are “instructed” to not make demands: “every time we say that [referring to seeing waistbands], it’s directed in question form.” Sept. 17 Tr., ECF No. 16 at 117

- 18. However, the Court cannot agree with the government that the actual words used are “not critical” in light of Offic er Hiller’s avowal that Officer Wright would never demand to see a waistband. Oct. 10 Tr., ECF No. 28 at 36

- 37, 40. Moreover, it would be error on the part of the Court to credit without hesitation Officer Hiller’s testimony and accept the government ’s conclusory argument that “whatever it was” that Officer Wright said, he “said [it] in question form.” Of utmost importance in this case is Mr. Gibson’s Fourth Amendment right : “ [n] o 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 (quotations and citations omitted) . The Court cannot find that the government met its burden of proof merely by offering Officer Hiller’s blanket assurance that Officer Wright always asks questions and never demands . That declaration is insufficient because Officer Hiller could not recall what Officer Wright actually said and because

— due to the officers’ failure to activate their body

- worn cameras during the initial18

encounter

— the audio was not captured in the footage . Oct. 10 Tr., ECF No. 28 at 38; see Sept. 17 Tr., ECF No . 16 at 75. A

mere assertion that Officer Wright asks questions rather than makes demands is unsatisfactory considering Mr. Gibson’s significant liberty interests and the Court’s solemn duty to enforce the Constitution . Likewise, t he Court is troubled by other significant gaps in Officer Hiller’s memory. For example, Officer Hiller did not remember Mr. Gibson raising his two arms in the air

— the most salient part of the short encounter. Sept. 17 Tr., ECF No. 16 at 70

- 71 (Q: “You remember him having two hands in the air?” A: “I don’t

– I don’t remember” ); id. at 154 (COURT: “Do you recall seeing [Mr. Gibson’s] hands in the air . . .?” A: “I don’t remember”). Indeed, Officer Hiller did not mention Mr. Gibson raising his arms during his initial narrative te stimony, despite having viewed the body

- worn camera footage in advance to prepare for his testimony. Id. at 17

- 20, 67

- 68. T esti mony about Mr. Gibson’s lifted hands was only elicited on cross

- examination. Id. at 62. Moreover, Officer Hiller also omitted the key fact that Mr. Gibson had raised his arms in response to Officer Wright when he prepared and filed under oath a Gerstein Report the day after arresting Mr. Gibson . See E CF No. 13

- 1 at 1

- 2; Sept. 17 Tr ., ECF No. 16 at 59

- 60. In th at detailed document, Officer Hiller attested that Mr. Gibson responded to Officer19

Wright’s request to see his waistband while “keeping his hands in his jacket pockets.” ECF No. 13

- 1 at 1. At no point did Officer Hiller mention the fact that Mr. Gibson raise d his arms in the air in response to Officer Wright . See id. Although , a Gerstein R eport need not contain “every” detail about a particular encounter, Oct. 10 Tr., ECF No. 28 at 74, the omission is problematic , given the overall brevity of the encounter an d the significance of the surrendering act. Finally, Officer Hiller could not remember other details about the encounter. For example, because Officer Hiller did not remember Mr. Gibson raising his hands in the air, he also could not remember whether the MPD officers could see Mr. Gibson’s waistband, a fact significant to the Court’s analysis. Sept. 17 Tr., ECF No. 16 at 154 (COURT: “At the time when [Mr. Gibson’s ] hands were in the air, could you see his waistband?” A: “I don’t

– I don’t remember, Your Honor”). Additionally, the MPD officers encountered another individual and spoke to that individual shortly before coming across Mr. Gibson. See G o v ’ t’s Ex. 1

- B at about 0:24

- 0:55. When asked about that encounter, Officer Hiller could not remember who Officer Wright had been speaking to or what Officer Wright said to that unknown individual , even though the officers spoke to the individual less than a minute before encountering Mr. Gibson . Sept. 20 Tr., ECF No. 17 at 20

- 21, 29 (Q: “So you have no memory of that?” A: “No, I don’t have a20

memory of that. Like I said, I

– it appeared from the video”). Finally, Officer Hiller testified that he did not “even remember” if h e saw Mr. Gibson turn around to run away: “I just remember Officer Mancini got out [of the vehicle], and that’s why I got out with him. And then once I got out, I saw [Mr. Gibson] running.” Sept. 17 Tr., ECF No. 16 at 155. Clearly, the best evidence of wha t was said to Mr. Gibson would have been the body

- worn camera footage, had the audio been captured. As discussed, the audio would have been captured had any of the four MPD officers activated their cameras upon “contact” with Mr. Gibson , as required by a n MPD General Order. Sept. 17 Tr., ECF No. 16 at 77

- 78 (Q: “But you knew by not having activated [the body

- worn camera] the conversation would not be recorded, correct?” A: “Yes”) ; Def.’s Ex. 5, ECF No. 13

- 4 (MPD General Order 302.13 ) . Officer Hiller and government counsel agreed that the General Order required the officers to activate their body

- worn cameras once Officer Wright began speaking to Mr. Gibson. Sept. 17 Tr., ECF No. 16 at 84

- 85; Oct. 20 Tr., ECF No. 28 at 34. However, even without the audio, the video footage is the best evidence of what happened when the MPD officers stopped Mr. Gibson. The video shows the MPD officers driving down the street in the dark for about two minutes. See Gov’t’s Ex. 1

- B. Sudde nly, the vehicle’s s peed decreases and Officer Wright21

immediately takes out his flashlight and shines it at Mr. Gibson from the front seat. See Gov’t’s Ex. 1

- B at about 1:45

- 1:55. Moments later, Mr. Gibson raises both hands in the air with his palms facing the MPD officers at about head height. He holds his hands in the air for a few seconds, taking about four or five steps, and then quickly turns and runs away. See id. This footage is consistent with Mr. Gibson’s testimony and inconsistent with Officer Hiller’s . And it sugges ts that the MPD officers may have directed Mr. Gibson to comply with an order, as raising one’s hands is a gesture that symbolizes surrender and compliance. In light of the significant memory gaps in Officer Hiller’s testimony , the lack of evidence in the record regarding the words Officer Wright said to Mr. Gibson, and the video footage corroborating Mr. Gibson’s testimony, the Court conclude s that the government has not met its burden to prove there was no show of authority .

2. C redibility Findings In view of the Court’s finding that the government has not met its burden, the Court need not make any further credibility determinations. See Oct. 10 Tr., ECF No. 28 at 42

- 43 (government counsel conceding that the government cannot prevail if the evidence is in equipoise). However, after presiding over two days of testimony, the Court had the opportunity to observe the22

demeanors of both witnesses and make determinations about whether each “ testified truthfully and also whether the wi tness accurately observed, recalled, and described the matters about which the witness testified.” Criminal Jury Instruction for the District of Columbia 2.20 0 (“Credibility of Witnesses”)(“[a juror] may consider the demeanor and the behavior of the witnes s on the witness stand; the witness’s manner of testifying; whether the witness impresses you as a truthful person; whether the witness impresses you as having an accurate memory and recollection; whether the witness has any motive for not telling the trut h . . . .”). T he Court credits Mr. Gibson’s testimony and find s that it was more consistent with the body

- worn camera footage, the best evidence available in the case. As previously noted, Mr. Gibson testified on September 20, 2018. See Sept. 2 0 Tr., ECF No. 17 at 43

- 91 . His demeanor was calm

— even under aggressive cross

examination

— and his answers were forthcoming , consistent, and straightforward. Moreover, Mr. Gibson exh ibited a high degree of recall. See, e.g. , id. at 61

- 62 (Q: “Would it be possible . . . you don’t remember every word that Officer Wright said to you that night. That’d be fair to say, right?” A: “No, I do” . . . Q: “And if he had s aid, ‘Can I see your waistband,’ that’s possible, isn’t it?” A: “ No, he didn’t”). Unlike Officer Hiller , Mr. Gibson did not have any significant memory lapses or revised23

or inconsistent answers during his testimony. Finally, i t is probable and reasonable that Mr. Gibson’s memory is “really good ,” as he testified, because the arrest was a significant event in his life. Id. at 88. Most importantly and as discussed above, Mr. Gibson’s testimony is corroborated by the body

- worn camera footage . He testified that he lifted his arms in response to a direct command

— “let me see your waistband”

— so his jacket would “raise enough that [the MPD officers] could see the waist of [his] . . . jeans.” Sept. 20 Tr., ECF No. 17 at 50

- 51. His gesture is a probable and reasonable reaction to an MPD officer shining a flashlight on him while orderin g him to show his waistband. See Gov’t ’s Ex. 1

- B at about 1:45

- 1:55. The government argues that the Court should not credit Mr. Gibson’s testimony because he has a stake in the outcome , has a criminal history, and was on court supervision at the time of t he arrest . See Oct. 10 Tr., ECF No. 28 at 31

- 32. But t he Court may find Mr. Gibson credible notwithstanding his interest in the outcome and his prior convictions. See Reagan v. United States , 157 U.S. 301, 305 (1895) (“ It is within the province of the court to call the attention of the jury to any matters which legitimately affect his testimony and his credibility. This does not imply that the court may arbitrarily single out his testimony, and denounce it as false. The fact that he is a24

defendant does not condemn him as unworthy of belief, but at the same time it creates an interest greater than that of any other witness, and to that extent affects the question of credibility. ”); see also Criminal Jury Instruction for th e District of Columbia 2.209 (“Defendant As Witness” ) (“[A defendant’s] testimony should not be disbelieved merely because s/he is the defendant.”). T he Court has considered Mr. Gibson’s stake in the outcome, his criminal history, and the fact that he readi ly admitted his criminal past . Sept. 20 Tr., ECF No. 17 at 44

- 45 , 55. Indeed, Mr. Gibson was forthcoming; he admitted that he ran because he was scared: he knew he possessed contraband, knew he was under court supervision, and knew he would get in trouble. Id. at 43. Nothing about his testimony undermines his credibility . Conversely, the Court does not credit Officer Hiller’s testimony. As thoroughly discussed, Officer Hiller admitted that he could not remember the words Officer Wright used when speaking to Mr. Gibson. He also admitted that he could neither remember Mr. Gibson raising his arms in the air, nor whether Mr. Gibson’s waistband was visible. Finally, Officer Hiller could not remember if he saw Mr. Gibson flee . See supra S ec. IV.A.1. T he Court also observed Officer Hiller’s demeanor on the stand and found his answers to be evasive and inconsistent. For example, Officer Hiller originally testified that Officer Wright25

asked Mr. Gibson “if he minded showing us his waistband. ” Sep t. 17 Tr., ECF No. 1 6 at 18. He did not originally testify that he was unsure of the exact words used. As discussed, Officer Hille r gradually changed his answer until he ultimately admitted that he could not remember the words used. See, e.g. , id. at 72. O fficer Hiller also originally testified that the MPD officers had not complied with the MPD General Order because they did not activate their body

- worn cameras upon face

- to
- face contact with Mr. Gibson . Id. at 77

- 78, 83

- 85. However, Officer Hiller later ch anged his testimony on redirect, testifying that the MPD Order may not have been invoked as the officers may not have had

“ contact ” with Mr. Gibson because they were in a vehicle while Mr. Gibson was on the sidewalk , despite facing Mr. Gibs on and being in close proximity . Id. at 142

- 45. Upon further questioning by the Court, Officer Hiller again changed his answer, admitting that he would characterize the particular encounter as a face

- to
- face contact. Id. at 145 (COURT: “[I]f’s it ’ s not face to face, what is it? How would you characterize this particular moment? . . . .” A: “I guess the best way to characterize it is face to face.”). Officer Hiller was also less forthcoming than Mr. Gibson , omitting important details from his narrative testimony. Most sign ificantly, Officer Hiller failed to mention that Mr. Gibson had raised his arms in response t o something Officer Wright26

said. This is a critical fact . Officer Hiller’s omission is notable because he testified that he had watched the body

- worn

camera footage to prepare for his testimony. Id. at 67

- 68. Officer Hiller’s testimony was therefore also less consistent with the body

- worn camera footage. Moreover, as previously discussed, Officer Hiller also failed to note that Mr. Gibson had raised his arms i n his sworn Gerstein report . See supra Sec. IV.A.1. Finally, the Court concludes that portions of Officer Hiller’s testimony were not plausible . For example, Officer Hiller testified that he and the other three MPD officers in the vehicle failed to activa te their body

- worn cameras while Officer Wright was speaking to Mr. Gibson b ecause it was not possible at the time . Id. at 141. He testified that he activated his camera “as soon as I felt it reasonably possible.” Id. However, Officer Hiller and Officer Mancini both activated their cameras while pursuing Mr. Gibson on foot. See Gov’t ’s Exs. 1

- A, 1

- B. Plainly, i t is not plausible that all four officers felt it was not possible to activate their cameras by pushing a butto n while seated in a car listening to a conversation, but did find it possible to do so while sprinting after a fleeing defendant. The Court need not infer that the MPD officers were intentionally not activating their body

- worn cameras. That said, the Court is troubled that all four officers failed to adhere to MPD policy,27

especially because the officers knew that not activating their cameras would prevent the conversation from being recorded. Sept. 17 Tr., ECF No. 16 at 78. Indeed, the very purpose of the

“ Body

- Worn Camera Program,” as set forth in General Order 302.13 is to “promote public trust, and enhance service to the community by accurately documenting events, actions, conditions, and statements during citizen encounters . . . and to help ensure offic er and public safety.” Def.’s Ex. 5, ECF No. 13

- 4 at 1. By failing to adhere to MPD policy and activate their body

worn cameras, the MPD officers deprived the Court from review ing the best evidence available . The government argues that the Court should credit Officer Hiller’s testimony because , unlike Mr. Gibson , he does not have a stake in the outcome of the case. Oct. 10 Tr., ECF No. 28 at 27

- 28. As discussed, the Court has considered the fact that Mr. Gibson has a significant stake in the outcome of t his motion. However, the Court cannot agree that Officer Hiller has no stake in the outcome. See id. As government counsel stated , there is significant “import” to this Court not crediting Officer Hiller’s testimony. Id. at 76

- 77. For one, “he’ll be on the Louis [sic] list 7 for the next several years or so.” Id. at 77.

7 The Lewis list is a list containing impeachable information for government witnesses , including MPD officers . See Humberson v. U.S. Attorney’s Office for District of Columbia , 236 F. Supp. 2d28

Of course, Officer Hiller’s stake is small compared to Mr. Gibson’s, but the Court cannot agree that he is a completely unbiased witness and that his impartiality warrants crediting his other wise flawed testimony. Moreover , Officer Hiller’s testimony is not afforded greater weight because he is a law enforcement officer. See Criminal Jury Instruction for the District of Columbia 2.20 7 (“ Police Officer’s testimony ”)(“ A police officer’s testimo ny should be evaluated by you just as any other evidence in the case. In evaluating the officer’s credibility, you should use the same guidelines that you apply to the testimony of any witness. In no event should you give either greater or lesser weight to the testimony of any witness merely because s/he is a police officer. ”).

3. Legal Analysis Having found that the government did not meet its burden , the Court must now evaluate whether ordering Mr. Gibson to “let me see your waistband” and “lift your jacket” constitutes a show of authority under the circumstances . In directing district courts to consider certain factors, the D.C. Circuit confirmed that “the officer’s use of language or tone of voice” may indicate that “compliance with the officer’s req uest might be

28, 29 (D.D.C. 2003). Inclusion on th e list may therefore affect an officer’s ability to testify.29

compelled” in certain circumstances. Castle , 825 F.3d at 632

- 33 (quoting Mendenhall , 446 U.S. at 554)(quotation s omitted). Finding there was a show of authority here is consistent with D.C. Circuit precedent. For example, in Castle , the D.C. Circuit emphasized that a defendant may be seized when he complies with directives. The Castle court “agree[d] with the District Court that [ the defendant ] was seized when Officer Oslzak touched Appellant and instructed him to ‘hold on’ and Appe llant complied.” Castle , 825 F.3d at 633. The conclusion was warranted because “no reasonable person in Appellant’s position and subject t o Officer Olszak’s directives would have believed that he was free to go on about his business.” Id. In Wood , the D.C. Circuit found that the defendant was seized when a police officer followed the defendant into a dark alley and directed him to “halt right there , ” an order that “indicate[d] that compliance might be compelled.” United States v. Wood , 981 F.2d 536, 540 (D.C. Cir. 1992) (quoting Mendenhall , 446 U.S. at 554)(internal quotations and alterations omitted). In Jones , the D.C. Circuit agreed that the appellant was “seized for purposes of the Fourth Amendment” when a police officer approached the defendant and o rdered him to “come here.” United States v. Jones , 584 F.3d 1083, 1087 (D.C. Cir. 2009). 8 I n Brodie , the D.C.

8 The seizure in Jones was legal because the police offi cers had reasonable suspicion of possible criminal wrongdoing. 584 F.3d30

Circuit agreed that the defendant had been seized when the police pulled alongside the defendant a nd ordered him to put his hands on a nearby car. United States v. Brodie , 742 F.3d 1058, 10 61 (D.C. Cir. 2014). Finally, the D.C. Circuit favorably cited and discussed In re J.F. , a District of Columbia Court of Appeals case , in Castle . See Castle , 825 F.3d at 633

- 34 (discussing and citing favorably 19 A.3d 304 (D.C. 2011)). In In re J.F. , the District of Columbia Court of Appeals found that a defendant was seized after MPD officers , who were wearing tactical vests, pulled up next to the defendant and, after questioning him whether he heard gun shots, “ordered him to remove his hands from his pockets.” 19 A.3d at 308

- 10 . The Court of Appeals concluded that a reasonable person would not have felt free t o ignore the officer s ’ order. Id. at 309. Consistent with Castle , Wood , Jones , Brodie , and In re J.F. , there was a show of authority in Mr. Gibson’s case . Th e Court has considered the totality of the circumstances, as it must , and concludes that a reasonable person would not have believed he was free to leave. See Castle , 825 F.3d at 632

- 33 . Specifically , t he MPD officers were following Mr. Gibson in an unmarked vehicle late at night while wearing tactical vests. When the vehicle pulled up next to Mr. Gibson, Officer Wright

at 1087. Here, however, i t is undisputed th ere was no reasonable suspicion of criminal activity.31

immediately shined a bright flas hlight at him , and is sued two,

success ive directives: “let me see your waistband” and “lift your jacket.” Officer Wright’s “use of language” indicated that “compliance with the officer’s request might be compelled.” Castle , 825 F.3d at 632

- 33. In fact, Officer Hiller himself testified that ord ering an individual to “show me your waistband” would be “authoritative,” as it “wouldn’t have been a question.” Sept. 17 Tr., ECF No. 16 at 56. The Court sees no meaningful difference between “show me your waistband” and “let me see your waistband . ” As in Wood , “there are no elements of a consensual, ‘ benign police/citizen encounter ’” in Mr. Gibson’s

case. Wood , 981 F.2d at 540 (quoting United States v. Jordan , 958 F.2d 108 5, 108 7 (D.C. Cir. 1992 ) ). The Court disagrees with t he government that United States v. Gross is “on all fours” and therefore, the Court must find that there was no show of authority. Sept. 20 Tr., ECF No. 17 at 9; see also Gov’t ’s Suppl. Mem., ECF No. 14

- 1 at 3 . In Gross , the D.C. Circuit found that the defendant was not seized wi thin the meaning of the Fourth Amendment because the government proved that the law enforcement officers merely asked the defendant to see his waistband and asked if they could check him for a gun. Gross , 784 F.3d at 785

- 86. While noting that “the ‘nature of a police officer’s question[s]’ can bear on whether a person has been seized,” id. at 788 (quoting Gomez v. Turner ,32

672 F.2d 134, 146 (D.C. Cir. 1982) ) , the Circuit held that “[q]uestions alone, howev er, ordinarily do not amount to a ‘show of authority’ sufficient to constitute seizure,” id. In Gross , the police officers merely asked the defendant two questions; they did not “accuse” Gross or order him to comply with a directive. I d. As discussed above in great detail , the Court credits Mr. Gibson’s testimony that Officer Wright order ed Mr. Gibson to comply. Accordingly, the government’s comparisons 9 are unpersuasive. Finally, the government contends that a verbal order alone cannot constitute a show of authority for Fourth Amendment purposes. See, e.g. , Oct. 10 Tr., ECF No. 28 at 5, 7, 12, 26. The government argue s that the MPD officer either had to approach Mr. Gibson or stop his progress. See id. at 26 (“those words alone . . . is not enough fo r a seizure. There has to be more”). The Court disagrees . See Brodie , 742 F.3d at 1061 (“The government concedes that the police made a show of authority when they ordered Brodie to put his hands on the car.”) ; Goddard , 491 F.3d at 465 (“Usually, of course, a Terry stop occurs only when police actually physically restrain a person or make some verbal statement indicating the person is not free to

9 Likewise, the government’s reliance on United States v. Miller is also misplaced, Oct. 10 Tr., ECF No. 28 at 4, because Judge Jackson found that the MPD officers merely asked the defendant questions , 2016 WL 8416761 at *7

- 8 (D.D.C. Nov. 11, 2016).33

leave.”)( Brown, J. , dissenting)(emphasis added) . Moreover, the Supreme Court implied that even one of the Mendenhall examples may constitute a seizure by separating show of authority examples with the word “or”: “ examples . . . [include] the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled .” Mendenhall, 446 U.S. at 554 ( citations omitted)(emphasis added ) (finding that there was no show of authority in part because “[the agents] did not demand to see the respondent’s identification and ticket”) . More importantly , the Court does not base its ruling on Officer Wright’s order alone. The Court considered the totality of the circumstances , not just the two successive orders, and made a factual determination based on several factors that a reasonable person would not feel free to disregard Officer Wright’s orders. See Castle , 825 F.3d at 632

- 33 (directing the district courts to consider factors such as “the time and place of the encounter,” whether the officers “wore a uniform,” and

w hether the officer’s “use of language or tone of voice indicated that compli ance . . . might be compelled ” ); see also supra p. 30

- 31 (considering the late hour of the encounter , that the four MPD officers wore tactical vests, that Officer Wright34

shined a b right light at Mr. Gibson, and that Officer Wright issued two successive orders). B. The Government Has Not Met Its Burden: Submission to Authority When a seizure occurs without physical force, as here, the Court must also find that the defendant submitted to an officer's “show of authority.” California v. Hodari D., 499 U.S. 621, 626

- 28 (1991) (holding that the Mendenhall test was “a necessary, but not a sufficient condition for seizure

— or, more precisely, for seizure effected through a ‘show of authority’”) . Having found there was a show of authority, the Court must therefore consider whether Mr. Gibson submitted to that authority. See Brodie , 742 F.3d at 1061; Wood , 981 F.2d at 538 , 540

- 41 . Submission occurs when the defendant complies with an officer’s order. See Brodie , 742 F.3d at 1061. This compliance may be “momentary.” Id. Indeed, “i t is the nature of the interaction, and not its length, that matters.” United States v. Baldwin , 49 6 F.3d 215, 219 (2d Cir. 2007) (citing Delaware v. Prouse, 440 U.S. 648, 655 (1979) (“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ .

. . even though the purpose of the stop is limited and the resulting detention quite brief.”) ). Ultimately, “[w]hether conduct constitutes submission to police authority will depend, as does much of the Fourth Amendment analysis, on ‘the totality35

of the cir cumstances

— the whole picture.’” Id. (quoting United States v. Cortez , 449 U.S. 411, 417 (198 1)). The uncontroverted evidence

— the body

- worn ca mera footage

— reveals that Mr. Gibson indeed complied with Officer Wright’s order to “let me see your waistband” by raising both hands in the air while walking alongside the police vehicle. See Gov’t ’s Ex. 1

- B at about 1:45

- 1:55. Mr. Gibson testified that he raised his hands in the air “because [he] knew if [he] d[id] that, that [his] jacket will raise enough that they could see the waist of [] [his] jeans.” Sept. 20 Tr., ECF No. 17 at 50

- 51 . Just as in Brodie , complying with an officer’s orders provides “no basis” for classifying his action “as anything other than full compliance with the officer’s request.” Brodie , 742 F.3d at 1061; see also United States v. Brown , 448 F.3d 239, 245

- 46 (3d Cir. 2006)(finding that the defendant had submitted to authority either by placing his hands on a car or being in the process of placing his hands on a car when the police implied he was not free to leave the scene). Indeed, “wha t may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” Brendlin v. Calif ornia , 551 U.S. 249, 262 (2007). By raising both hands in the air after having had his hands in his pockets , Mr. Gibson “signal[ed] submission” to36

Officer Wright’s orders. Id. Moreover, t he fact that Gibson later ran away does not “negate a defendant’s ini tial submission.” Brodie , 742 F.3d at 1061. Indeed, the record is devoid of any evidence to suggest that Mr. Gibson’s submissive act was inauthentic or that he had an ulterior purpose in raising his hands in the air. See id. As discussed, t he government put forward no evidence or testimony that Mr. Gibson’s waistband was not displayed. For example, Officer Hiller could not remember whether he could see Mr. Gibson’s waistband. Sept. 17 Tr., ECF No. 16 at 154 (COURT: “At the time when [Mr. Gibson’s] hands w ere in the air, could you see his waistband?” A: “I don’t remember, Your Honor”). Yet, the government argues that Mr. Gibson did not submit because he lacked the intent to actually show his waistband, evidenced by the fact that he did not raise his hands h igher than his head. Oct. 10 Tr., ECF No. 28 at 10; see id. at 14 (“[T]here’s a difference between raising your hands to your ears to prevent the officers from seeing the firearm, and raising your hands to the sky to show the officers your firearm.”). The government cites Mr. Gibson’s testimony, in which he said that he did not want the officers to be able to see the firearm . Oct. 10 Tr., ECF No. 28 at 10

- 11 (citing Sept. 20 Tr., ECF No. 17 at 73

- 74). However, Mr. Gibson did not testify that he did not comply or submit ; instead, he testified that he ultimately hoped the MPD37

would not see his contraband. Sept. 20 Tr., ECF No. 17 at 73

- 74 (Q: “You didn’t want [Officer Wright] to see [the firearm], did you? Correct?” A: “Correct.”). As discussed, Mr. Gibson testified that he raised his arms to s how his waistband, i d. at 50

- 51, and the body

- worn camera footage corroborates that testimony, see Gov’t ’s Ex. 1

- B. Moreover, it is probable that Mr. Gibson may have indeed displayed his waistband, as Mr. Gibson was w earing a short jacket and low

- slung jeans. See Gov’t ’s Exs. 1

- A, 1

- B. Most importantly, however, t here is no evidence to the contrary in the record. The government therefore failed to meet its burden to prove the seizure was lawful . C. Mr. Gibson’s Remedy

“ When the government conducts an unconstitutional search or seizure, the Court must exclud e any evidence obtained as the ‘fruit’ of that search or seizure. ” United States v. Dolberry , No. CR 15

- 0037, 2015 WL 4751023 at *2 (D.D.C. Aug. 11, 2015) (citing Wong Sun v. United States , 371 U.S. 471, 484 (1963); United States v. Matthews , 753 F.3d 1321, 1324 (D.C. Cir. 2014) (“The admissibility of all the incriminating evidence

. . . depends upon the validity of the search.”) ) . “ An illegal search or seizure calls for suppression of evidence only if the seizure is a but

- for cause of the discovery of the evidence (a necessary condition), and if t he causal chain has not become38

‘ too atten uated to justify exclusion . ’ ” Brodie , 742 F.3d at 1062

- 63 (quoting Hudson v. Michigan, 547 U.S. 586, 592 (2006) ) . The government does not argue that the evidence should not be suppressed because the causal ch ain has become “too attenuated” or there was no but

- for causation. See generally Gov’t ’s Opp’n , ECF No. 7 ; Gov’t ’s Suppl. Mem., ECF No. 14

- 1 ; Gov’t’s Suppl. Opp’n, ECF No. 22 . For example, the government does not contend, and the record does not suggest , that the contraband would have been found had the officers not seized Mr. Gibson. Indeed, the presence of but

- for causation is quite plain. As such, the Court must suppress t he fruit of the illegal seizure: the contraband found on Mr. Gibson on April 2, 2018 . V. Conclusion T he Court finds that the government has not met its burden to prove there was no show of authority and no submission to that authority . After carefully considering the evidence presented and the extensive briefing , the Court concludes that Mr. Gibson was seized in violation of the Fourth Amendment. As such, the Court GRANT S the defendant’s motion and SUPPRESS ES the tangible evidence seized on April 2, 2018. An appropriate Order accompanies this Memorandum Opinion. SO ORDERED. Signed: Emmet G. Sullivan

United States District Judge December 21, 2018