UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) ) ) v. ) No. 16

– cr

– 0 0 72 (KBJ) ) ANTOINE MILLER, ) ) Defendant. ) ) MEMORANDUM OPINION Defendant Antoine Miller has been charged with one count of Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g) (1). ( See Indictment, ECF No. 1 at 1 .) 1 Before this Court at present is Miller ’s motion to suppress the gun and the ammunition that were recovered during his arrest. ( See Def.’s Mot. to Suppress Physical Evid. (“D ef.’s Mot.”), ECF N o. 7.) Miller contends that he

was unlawfully seized in violation of the Fourth Amendment when officers in the Metropolitan Police Department (“MPD”) Gun Recovery Unit approached him in an unmarked vehicle while he was walking down the sidewalk and repeatedly asked him whether or not he was carrying a gun. ( Id. at 4. ) On October 12, 2016 , t h is Court held an evidentiary hearing regarding Miller’s motion to suppress , during which Officers Matthew Hiller and J ohn Wright of the MPD

1 Page

- number citations to the documents the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assign s. However, page

- number citations to the October 12, 2016 evidentiary hearing transcript refer to the page numbers within that transcript, which was not filed in the Court’s electronic filing system.2

testified to the events surrounding Miller’s arrest. Miller also testified at the evidentiary hearing ; he provided an account of the events leading up to his arrest that directly contradicted the testimony of Officers Hiller and Wrig ht

. As explained fully below, this Court credits the testimony of Officers Hiller and Wright, and as a result, concludes that Miller was not seized for the purpose of the Fourth Amendment when the officers approached him and asked whethe r he was carrying a gun . Moreover, under binding precedents from the D.C. Circuit, it is clear that a Fourth Amendment seizure occurred only when Officer Hiller physically restrained and arrested Miller following Miller’s admission that he had a gun , and at that point, Off icer Hiller plainly had probable c ause to justify Miller’s arres t. Accordingly, Miller’s motion to suppress the gun and ammunition is DENIED

. I. BACKGROUND On April 26, 2016, a grand jury in the U.S. District Court for the District of Columbia indicted Defen dant Antoine Miller o f one count of being a felon

- in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ( See generally Indictment .) According to the indictment, Miller had “ unlawfully and knowingly” possessed a .40 caliber semiautomatic Smith & Wesson pistol and .40 caliber ammunition on or about March 31, 2016

. ( Id. at 1.) During the evidentiary hearing that this Court held regarding Miller’ s motion to suppress , the law enforcement officers who were involved in Miller’s arrest testified about the circumstances leading up to their discovery of the weapon , and Miller also testified to facts that contradicted the officers’ testimony in several respects. The different versions of the events preceding Miller’s
arrest are as follows.3

A. Arr est - Related Facts Attested To By Officers Hiller And Wright At approximately 9:53 PM on March 31, 2016 , Officer Matthew Hiller, Officer John Wright, and Detective Kirk Delpo of the MPD Narcotics and Special Investigation Division Gun Recovery Unit were pat rolling th e Seventh District in the District of Columbia. ( See Oct. 12, 2016 Suppression Hr’g Tr. (“Hr’g Tr.”), at 13:4

 23, 14:13

 22 ; Gov’t Opp’n to Def.’s Mot. to Suppress (“Gov’t Opp’n”), ECF No. 8 , at 1

. ) The Gun Recovery Unit , which is tasked with recovering illegal firearms in Washington, D.C. , had been dispatched to the Seventh District due to recent spikes in violent crim e and gun activity in that area

. ( See Hr’g Tr. at 12:20

 21 , 14:16

 18 .) The three officers rode in an unma rked gray Ford Explorer , and Officer Wright

— to whom the v ehicle had been assigned

— was driving . ( See i d. at 14:1

 8, 111:16

 17 , 117:8

 11 .) Officer Hiller was located in the front passenge r seat, and Detective Delpo was situated in the back seat. ( See i d. at 14:7

 12 , 112:5

 11 .) All three officers wore tactical vests bearing the word “Police” in white block lettering on the front and back. ( See i d. at 14:2

 4, 16:10

 1 4. ) Officers Hiller and Wright wore casual attire underneath their tactical vests, while Detective Del po wore an MPD shirt with a badge underneath his vest

. ( See i d. at 14:2

 4 , 45:7

 14.) 2 While driving northbound on the 4600 block of Livingston Road, Southeast, the officers observed Miller and another individual walking s outhbound on the sidewalk while apparently engaged in a conversation. ( See i d. at 14:19

 21 , 15:16

 19 , 22:14

 16 , 56:8

 12

. ) Consistent with his standard practice, Officer Wright slowed the car, pulled

2 Officer Hiller initially testified that all three officers wore casual attire underneath their tactical vests ( see Hr’g Tr. at 14:2

 4), but he later clarified that Detective Delpo was , in fact, wearing an MPD shirt with a badge underneath his tactical vest ( see id. at 45:12

 14).4

up alongside the two individuals, identified himself as police, and asked the two men if they were carrying any firear ms . ( See i d. at 16:24

 17: 10, 113:9

 10 , 119: 1

 5 .) Officer Hiller testified that, i n response to Officer Wright’s question, Miller replied, “no,” and then turned his body away from the police vehicle and lifted the back of his vest jacket to reveal his rear waistband. ( Id. at 17:12

 14 (testimony of Officer Hiller) ; see also id.
at 18:14

 21.) The second individual lowered his head and continued walking along the

s idewalk at a faster pace. ( See i d. at 17:14

 16.) Wh ile still seated in the vehicle, Officer Wright then c alled out to the second individual to ask if he was carrying any firearms . ( See i d. at 18:24

 19: 1.) A ccording to Officer Hiller ’ s testimony, in response to this question directed at the second individual, Miller “turned around almost frantically . . . and showed the back of his waistband again,” while repeatedly stating “no.” ( Id. at 19:2

 4 ( testimony of Officer Hiller ) .) After Miller reveal ed his rear waistband in this manner, he then continued to walk in the direction of the second individual. ( See i d. at 23:14

 15 .) Officer Hiller testified that, b ased on Miller’ s frantic demeanor and “strange” mannerisms , as well as the second individu al’s avoidant behavior, he and Detective Delpo decided to exit the vehicle to speak further with the two men. ( Id. at 24:2

 7 (testimony of Officer Hiller) ; see also id. at 68:4

 7.) Officer Hiller approached Miller, while Detective Delpo approached the second individual, who was standing approximately 20 feet away from Miller at this point

. ( See i d. at 25: 2

 8.) Officer Wright rem ained in the unmarked vehicle. ( See i d. at 25:9

 14.) Upon exiting the vehicle, Officer Hiller walked toward Miller and asked , “Hey

man can I talk to you?” (Gov’t Opp’n at 2; see also Hr’g Tr. at 61:8

 11 ( “ Q: Okay.5

And you said at that point you called out to Mr. Miller sayi ng, Hey, can I talk to you or something like that; is that right? A. Correct.”) (testimony of Officer Hiller) .) Officer Hiller’s firearm was visible in his right hip holster but was not drawn. ( See Hr ’ g Tr. at 24:8

 10, 61:12

 22.) In response to Officer Hiller’s question , Miller stopped walking, turned around to face Officer Hiller, and began walking toward Officer Hiller with a nervous look on his face . ( See i d. at 24:18

 19 , 25:23

 24 .) Officer Hiller then calmly asked , “Hey, man, do you hav e any firearms on you?” ( Id. at 27:13

 14 (testimony of Officer Hiller) ; see also id. at 24:11

 12 .) In response to this second question from Officer Hiller , Miller turned away from Officer Hiller to face the wrought

- iron fence that was beside the sidewalk , and again lift e d the back of his jacket to reveal his rear waistband. ( See i d. at 27:15

 18.) Officer Hiller testified that he did not instruct Miller to turn toward the fence in this manner. ( See i d. at 28: 19

 23.) Officer Hiller then asked, “What about the front of your waistband?” ( Id. at 30:23

 24 (testimony of Officer Hiller) .) In response, Miller grasped the wro ught iron fence with both hands , and mumbled something that, according to Offi cer Hiller , could not be underst oo d. ( See i d. at 30:24

 25, 32:1

 2.) Officer Hiller explained that he could not hear Miller , who was still facing away from Officer Hiller at this point

. ( See i d. at 32:20

 21.) Miller again replied by mumbling something that Officer Hiller could not understand. ( See i d. at 32:23

 24.) Officer Hiller then asked Miller to turn around, stating, “We’re both me n , we can talk face

- to

face.” ( Id. at 33:14

 16 (testimony of Officer Hiller) .) In response, Miller turned around to face Officer Hiller with a “nervous” and “frantic” look on his face. ( Id. at 34:23

 2 4 (testimony of Officer Hiller) .) While the two men stood face

- to

- face , Officer6

Hiller again asked whether Miller had a gun. ( See i d. at 34:24

 35: 1.) At this point, Miller exclaimed , “I have one [!] I’ve been telling you I have one. Just take it, you can have it, you can have it, just take it.” ( Id. at 35:2

 4 (testimony of Officer Hiller) .) Upon hearing Miller’s admission that he had a gun in his possession , Officer Hiller immediately placed Miller in to a “bear hug,” which is a maneuver whereby the of ficer place s his arms under the suspect’s shoulders and around his body in order to raise his arms upwards and thereby prevent the suspect from accessing the firearm. ( Id. at 36:10

 13, 37:24

 25.) Officer Hiller then called out a code word to the other of ficers, indicating the presence of a firearm, and Detective Delpo ran over to assist Officer Hiller in placing Miller in handcuffs and under arrest . ( See i d. at 37:5

 7.) At this point , Officer Wright

— who had been turning the car around in order to secure the perimeter during the period in which Officer Hiller and Detective Delpo were talking to Miller and his acquaintance

— exited the car to assist Officer Hiller and Detective Delpo. ( See i d. at 120:20

 23, 114:15

 18.) Once Miller was placed under

ar rest, the three officers called for a crime scene search officer to remove and process the firearm that Miller had referenced . ( See i d. at 53: 8

 25.) The crime scene search officer arrived approximately five minutes later, and removed a .40 caliber Smith & Wesson semi

- automatic handgun from Miller’s front waistband. ( See i d. at 50:12

 21, 53: 16

 25

. ) The handgun magazine was loaded with nine rounds of ammunition. ( See i d. at 50:22

 25, 51:9

 10.) B. A rrest - Related Facts That Miller Asserted During The H earing Miller also testified at the evidentiary heari ng, and he provided an account of the March 31 st encounter that differs from that of the officers in five notable r espects.7

First, Miller testified that, in addition to asking whether he had a firearm , the MPD officer specifically asked Miller and his companion an additional question from inside the vehicle: “Can we see your waistbands?” ( Id. at 75 : 19

 76: 5.) Miller testified that he lifted his jacket to reveal his rear waistband in response to this question. ( See i d. at 76:5

 6 , 100:24

 101: 3 .) Second, and more fundamentally, Miller testified that Officer Hiller was not the officer who approached him on the sidewalk , and in fact, Miller asserted that the entire conversation that Officer Hiller recounted in detail while on the stand

— testimony that Miller heard

— actually never occurred

. ( See i d. at 83: 21

 25, 107:22

 108: 11.) Miller maintained that it was the two other officers ( Off icer Wright and Detective Delpo) who exited the car and spoke with Miller on the sidewalk prior to his arrest

. ( See i d. at 77:4

 10 , 78:1

 4, 107:8

 9 .) In other words, despite the account that Officer s Hiller and Wright consistently testified to , M iller claimed that not one, but two, MPD officers approached him on the sidewalk, and that neither officer was Officer Hiller. ( See i d. at 107: 1

 108:11 .) Miller explained that he specifically recall ed that Officer Wright approach ed him because Officer W right had a distinctive beard. ( See i d. at 78:2

 4, 80:1

 9, 81: 5

 21.) The third key difference between Miller’s testimony and the officers ’ testimony

was the manner in which Miller characteriz ed the initial statement that one of the officers made to him upon exiting the vehicle

. Miller testified that when the two officers exited the unmarked vehicle and approached him , one officer said, “You two, hold up for a second[,]” or “You two stop for a second , hold up for a second [,] ” rather than “ Hey man can I talk to you ?” ( Id. at 102:24

 103:1, 106:8

 9.) Miller did not8

specify which officer allegedly made this statement

. ( See i d. at 102:24

 25

. ) Miller also testified that Officer Wright and Detective Delpo ordered him to turn toward the fence and to place his hands on the fence ( see i d. at 78:6

 13 , 79:12

 13) , and that he took both actions in compliance with the officers’ express orders ( see i d. at 78: 6

 8, 79:12

 13)

. Finally, Miller claimed that , wh en his hands were up against the fence, Officer Wright stated, “Before I search you, do you want to come clean about having something on you?” ( Id. at 79:17

 20, 82:13

 18.) Miller testified that he admitted that he was carrying a firearm because he “figured that they [were] already going to search [him] anyway and they had [him] surrounded against the fence.” ( Id. at 82:13

 18.) II. FINDINGS OF FACT As outlined above , at the Court’s evidentiary hearing, the witnesses for the prosecution and the defense provided directly conflicting accounts of the events of March 31, 2016. This Court has considered the testimony and demeanor of all of the witnesses, and it accepts the testimony of Officers Hiller and Wright because it finds that their account of the events pertaining to Miller’s arrest is most credible

. Several factors undercut Miller’s s tory
. As noted previously , Miller testified that the conversation Off icer Hiller r ecounted never occurred and that , in fact, Miller only spoke with Officer Wright and Detective Delpo . ( See i d. at 83:19

 25.) But Officer Hille r provided a detailed account of how he contacted Miller on the sidewalk , and in so doing, he exhibited a high degree of recall regarding this conversation. ( See , e.g. , id. at 33:15

 16 (“I actually said something to th[e] effect [of,] ‘We’re both men, we can talk face

- to

- face.’”).) Moreover , this Court believes Officer Hiller’s credible testimony9

regarding the events leading up to the dramatic culmination of this sidewalk
encounter

— whereby Officer Hiller wrapped Miller in a “chest

- to

- chest” bear hug following Miller’s admission that he was carrying a firearm ( id. at 37:19

 23)

— and, thus, it is difficult for the Court to cr edit Miller’s assertion that Officer Hiller was entirely uninvolved in Miller’ s arrest. What is more , Officer Hiller’s account of what happened was corroborated by Officer Wright , who was not present in the courtroom when Officer Hiller or Miller testifie d . Officer Wright explained that , a fter the initial inquiry, he remained in the vehicle and observed Officer Hiller talking to Miller . ( See i d. at 114: 1

 8 .) Officer Wright also explained that the Ford Explorer was his assigned vehicle and that he drives it the “overwhelming majority of the time” when he i s partnered with Officer Hiller, lending further support to Officers Hiller and Wright’s testimony that Officer Wright remained in the vehicle during the encounter. ( Id. at 117:16

 18 (testimony of Officer Wright) ; see also id. 117:8

 11 .) Officer Wright’s Gerstein affidavit further corroborate s the account t hat Officers Hiller and Wright provided during the hearing; it detail s the encounter in a manner that is subst antially similar to the officers ’ live testimony. ( See Gerstein Aff. of John Wright, Ex. 13 to Gov’t Opp’n, at 1.) 3 Finally, this Court can conceive of no reason why Officers Hiller and Wright would fabricate their account in the way that Miller suggests ; as far as this Court can tell, it makes no difference whether the contact was made by Officer Hille r alone, or Officer Wright and Detective Delpo together, and thus, the officers simply had no motivation to

3 A Gerstein affidavit is an arresting officer’s sworn statement that is prepared at or near the time of an arrest and that states that probable cause exists to believe that a crime was committed and that the person identified in the statement is the one who committed it. See Gers tein v. Pugh , 420 U.S. 103, 120, 124 n.25 (1975).10

misrepresent the identity of the officer who approached and arrested Miller. Cf. Jackson v. United States , 353 F.2d 862, 866 (D.C. Cir. 1965) (explaining that the court properly considers “whether the witness was interested in the outcome” when assessing credibility ); Wierzbicki v. United States , 32 F. Supp. 3d 1013, 1024 (D.S.D. 2014) (“In evaluating the credibility of a witness, a court considers . . . any motives that witness may have for testifying a certain way.” (intern al quotation marks and citation omitted) )

. In short, b ased on the credible and detailed testimony that the officers presented, the consistencies between Officer s Hiller and Wright’ s testimony and the Gerstein affidavit , and also the absence of a ny motive for Officers Hiller and Wright to fabricate their accounts, this Court credits Officers Hiller and Wright’s testimony regarding the circumstances leading up to Mi ller’s arrest, and does not accept Miller’s conflicting account of those same events

. III. ANALYSIS Having found ( for the purpose of evaluating Miller’s motion to suppress ) that the facts are as Officers Wright and Hiller described them during the hearing , this Court
now turns to evaluate Miller’s contention that he was unlawfully seized in violation of the Fourth Amendment, and thus, that the gun and ammunition that he was carrying on his person when the officers arrested him should be suppressed. As expla ined below, Miller was not seized for Fourth Amendment purposes until he was physically restrained, and at the time of this seizure, Officer Hiller had probable cause to believe that Miller was committing a crime. Consequently, there was no Fourth Amendme nt violation.11

A. Legal Standard 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. As a result of this guarantee, “all seizures” must “be founded u pon reasonable, objective justification.” United States v. Gross , 784 F.3d 784, 786 (D.C. Cir. 2015) (citation omitted) , cert. denied , 136 S. Ct. 247 (2015) . It is clear beyond cavil, however, that “not all interactions between police officers and citize ns amount to a ‘seizure’ for Fourth Amendment purposes.” Id. Consensual encounters plainly fall outside the scope of the Fourth Amendment. See Florida v. Bostick , 501 U.S. 429, 434 (1991); Florida v. Rodriguez , 469 U.S. 1, 5

 6 (1984). A Fourth Amendmen t seizure occurs only “when physical force is used to restrain movement or when a person submits to an officer’s ‘show of authority.’” United States v. Brodie , 742 F.3d 1058, 1061 (D.C. Cir. 2014) ( quoting California v. Hodari D. , 499 U.S. 621, 626 (1991) ). The threshold task of the Court , then, is to dete rmine when, if at all, a Fourth Amendment seizure occurred. N o seizure will have taken place unless a “ reasonable person in view of all the circumstances surrounding the incident , . . . would have beli eved that he was not free to leave.” United States v. Castle , 825 F.3d 625, 632 (D.C. Cir. 2016) (quotation marks omitted) (quoting United States v. Wood , 981 F.2d 536, 539 (D.C. Cir. 1992)); see also Gross , 784 F.3d at 787 (“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.’” (quoting United States v. Goddard , 491 F.3d 457, 460 (D.C. Cir. 2007) (per curiam))). Courts have concluded that “ [e] xamples of circumstances that might indicate a seizure, even where the person did not attempt to12

leave, would be 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 o f language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall , 446 U.S. 544, 554 (1980) (opinion of Stewart, J.); see also Goddard , 491 F.3d at 460 (“[W]e [also] consider the demeanor of the approaching officer, whether the officer . . . wore a uniform, and the time and place of the encounter.” (internal quotation marks and citations omitted))

. Significantly for present purposes, it is by now well established that “ [ l ] aw enforcement offi cers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.” United States v. Drayton , 536 U.S. 194, 200 (2002); see also id. at 201 (“Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and reque st consent to search luggage.” (citing Bostick , 501 U.S. at 434 ) ) ; Florida v. Royer , 460 U.S. 491 , 497 (1983) (plurality opinion); United States v. Lewis , 921 F.2d 1294, 1297

 98 (D.C. Cir. 1990). Such questioning rises to the level of a Fourth Amendment seizure only whe n the officers “‘convey a message that compliance with their re quests is required[,]’” Gross , 784 F.3d at 787 (quoting Bostick , 501 U.S. at 435) , or otherwise “induce cooperation by coercive means[,]” Drayton , 536 U.S. at 201. See also Castle , 825 F.3d at 633. The Supreme Court has also made clear that, “[w]hile mos t 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.” Drayton , 536 U.S. at 205 (internal quotation marks13

and citation o mitted)

. Once an encounter loses its consensual nature, it becomes a seizure for Fourth Amendment purposes , and must “be founded upon reasonable, objective justification.” Gross , 784 F.3d at 786 (citing United States v. Brignoni

- Ponce , 422 U.S. 873, 878 (1975)). The justification that is required depends up on the character of the police

citizen interaction at issue. Generally, Fourth Amendment seizures must be supported by probable cause. See Dunaway v. New York , 442 U.S. 200, 208

 09 (1979); see also id. at 208, n. 9 (“Probable cause exists where the facts and circumstances within

. . . [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief th at an offense has been or is being committed [by the person to be arrested].” ( alteration s in original ) (internal quotation marks and citations omitted)). However, in Terry v. Ohio , 392 U.S. 1 (1968), the Supreme Court recognized a narrow exception to the probable cause requirement, permitting officers to justify a “brief, investigatory stop” by providing “a reasonable, articulable suspicion t hat criminal activity is afoot.” Illinois v. Wardlow , 528 U.S. 119, 123 (2000). Thus , once a court has concluded that a seizure has occurred, in order to decide whether or not that seizure violated the Fourth Amendment, the court must identify the “rubric of police conduct” at issue, and then determine whether the officers have provided the requisite justification fo r that conduct. Dunaway , 442 U.S. at 209. Finally , as a general matter and subject to certain exceptions not implicated here , “[w]hen 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.14

Sheffield , 799 F. Supp. 2d 22, 28 (D.D.C. 2011) (citing Wong Sun v. United Stat es , 371 U.S. 471, 484 (1963)). “The 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). However, “[w]h en a defendant establishes that he was arrested or subjected to a search without a warrant, 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); see also United Sta tes v. Jones , 374 F. Supp. 2d 143, 147 (D.D.C. 200 5) (“The government bears the burden of justifying this warrantless seizure.”) ; 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(b) (5th ed. 2012) (“[I]f the search or seizur e was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant [,] the burden of proof is on the prosecutio n. ”). B. Discussion Miller raises two alternative arguments in support of his motion to suppress : ( 1 ) that t he officers subjected him to a show of authority (i.e., they seized him) when they initiated contact with him from inside their vehicle , or, alternatively, ( 2 ) that Officer Hiller subjected Miller to a show of authority when Officer Hiller exited the v ehicle and made furthe r contact with Miller

. ( See Hr’g Tr. at 9:24

 25 , 138:11

 16 ; Def.’s Mot. at 4

 5. ) For the reasons explained below, no seizure occurred at either of those point s in time and , indeed, a cognizable Fourth Amendment seizure occurred only when Off icer Hiller physically restrained Miller following Miller’s admission that he had a gu n, at which point there was ample probable cause to justify that seizure and Miller’s subsequent arrest

.15 1. Miller Was Not Seized Whe n The Officers Called Out To Him Fro m Inside Their Unmarked Vehicle To Ask If He Was Carrying A Gun In order to determine whether the police subjected Miller to a show of authority that qualifies as a seizure for the purpose of the Fourth Amendment , the Co urt must determine if , “ ‘ in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. ’ ” Wood , 981 F.2d at 539 (quoting Mendenhall , 446 U.S. at 554)

. M il ler contends that a reasonable person in his situation would not have felt free to leave once the officers called out to him from their unmarked vehicle, because there were multiple armed officers wearing tactical vests marke d “police , ” and the officers repeatedly asked whether Miller had a gun. ( See Def.’s Mot. at 4

 5 ; Hr’g Tr. at 139: 6

 15 .) But given the current state of the law in this Circuit, Miller is mistaken to maintain that these circumstanc es constitute a Fourth Amendment se izure

. A recent D.C. Circuit case, United States v. Gross , 784 F.3d 784 (D.C. Cir. 2015), is p articularly informative. In Gross , the Circuit evaluated a Fourth Amendment suppression motion in a case involving four Gun Recovery Unit officers w earing tactical vests who drove up beside the defendant as he was walking along the sidewalk

. See id. at 785. One officer spoke to the defendant “ from [inside] the police car, ” and

“ asked if [the defendant] was carrying a gun and would expose his waistband.” Id. at 787

. The D.C. Circuit consider ed

— and specifically reject ed

— all of the arguments that Miller now raises in support of his first seizure argument , and concluded that no seizure occurred. Specifically, the Gross panel made clear that, while certainly probative of the issue of whether the individual was subjected to a show of authority, “ ‘t he presence of multiple officers ’ wearing ‘ [police] gear, including guns and handcuffs, ’ doe s not16

‘ automatically mean that a stop has occurred. ’ ” Id. at 787 (alteration in original) (quoting Goddard , 491 F.3d at 461)

. And the D.C. Circuit emphasized that , “ [a] lthough the pre sence of a police car might be somewhat intimidating, the act of approachin g 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 contr ol the [person’ s] mov ement.” Id. at 788 ( first alteration added ) (internal quotat ion marks and citations omitted ) ; see also id

. at 787 (explaining that the circumstances were “ less suggestive of a seizure ” because “all four officers remained in a car sepa rated from [the defendant] by one lane of traffic dur ing [the officer’s] questioning ”). In th e instant case , according to the testimony of Officers Hiller and Wright , all three officers remained in the ir unmarked Ford Explorer while Officer Wright called o ut to Miller from the rolled

- down car window to ask if Miller had a gun. ( See Hr’g Tr. at 16:24

– 17:6, 113: 9

 12 .) As in Gross , “while the officers carried weapons, there is no indication that the weapons were visible to [the defendant] from the sidewalk.” Gross , 784 F.3d at 787

. In fact, Officer Hiller specifically testified that none of the officers had their weapons out while in side the car , and t hat his firearm was located on his right hip . ( See Hr’g Tr. at 23:3

 6, 61:12

 21). Moreover, Miller never indicated that he was able to see the officers’ firearms while they addressed him from in side their vehicle. There is likewise no evidence to sugges t that Officer Wright positioned the vehicle so as to block or otherwise limit Miller’s freedom of movement on the sidewalk. Thus, this Court concludes that the three MPD officers in tactical vests did not subject Miller17

to a show of authority merely by pulling their unmarked c ar alongside Miller while he was walking down the sidewalk

. The officers’ questioning of Miller from inside the vehicle similarly did not convert the encounter into a seizure. Although “the nature of a police officer’s question [ s ] can bear on whet her a person has been seized[,] [q]uestion s alone . . . ordinarily do not amount to a ‘show of authority’ sufficient to constitute a seizure.” Gross , 784 F.3d at 788 (first alteration in original) (citation omitted) ; see also id. (acknowledging that “direct accusations of criminal conduct by officers have weighed in favor of finding a seizure” (emphasis in original) (citation omitted)). As noted previously, Officers Hiller and Wright both testified that Officer Wright called out to Miller from inside the car a nd asked if Miller was carrying a gun. ( See Hr’g Tr. at 16:2 4

 17:10, 67:10

 13, 113:9

 14 .) The Gross Court a nalyz ed substantially similar officer questioning , see 784 F.3d at 788 ( “Do you have a gun ?”, “Can I see your waistband?”) , and concluded that the Gun Recovery Unit office rs “did not accuse [the defendant] of possess ing a gun or committing a crime[,]” and that the officer ’s question s “did not effect a seizure for p urposes of the Fourth Amendment[,] ” id. at 788

. This Court finds that the factual circumstances Miller emphasizes are materially indistinguishable from those in Gross , and that Gross compels the conclusion that no seizure occurred when the officers initiated contact with Miller from inside their vehicle. 2. Miller Was Not Seized When Officer Hiller Exited The Vehicle And

Asked To Speak With Miller Miller alternatively contends that the encounter progressed into a seizure when Officer Hiller , who was armed with a gun in his hip holster , exited the vehicle and18

approached Miller , an d when he again asked Miller whether he was carrying a gun. ( See Hr’g Tr. 138:11

 16 , 141: 12

 142: 19; Def.’s Mot. at 4

 5.) 4 T he issue of whether a seizure occurred at that point in the encounter presents a closer question, but this Court concludes that no Fourth Amendment seizure occurred when Officer Hiller exited the vehicle and asked to speak further with Miller for the following reasons

. First, Officer Hiller’s approach did not constitute a show of authority in and of itself, because “[t]he approach and direction of a question by a police officer cannot be, as a matter of fact or of law, a seizure of the person so approached.” Gomez v

. Turner , 672 F.2d 134, 142 (D.C. Cir. 1982). Rather, “[t]here must be some additional conduct by the officer to overcome the presumption that a reasonable person is willing to cooperate with a law enforcement officer.” Id

. Officer Hiller credibly testified that he exited the vehicle, approached Miller on the sidewalk , and asked something to the effect of , “Hey man can I talk to y ou?” (Gov’t Opp’n at 2; see also Hr’g Tr. at 61:8

 11 (test imony of Officer Hiller) .) Officer Hiller further testified that he made th is request in a calm, conversational tone. ( See Hr ’ g Tr. at 24:11

 12 , 24:20

 21 .) In responding to Officer Hiller’s q uestion, Miller halt ed his journey in the opposite direction, turned around, and walked toward Officer Hiller ( see id. at 24:18

 19 ) , which also indicates willing cooperation o n Miller ’ s part
. Thus, Officer Hiller did not seiz e Miller for Fourth Amendment purposes merely by exiting the vehicle and approaching him with a question

.

4 As explained above, during the hearing, Miller testified that it was Officer Wright and Detective Delpo

— not Officer Hiller

— who approached him in this manner. ( See Hr ’ g Tr. at 77:4

 10 , 78:1

 4, 107:8

 9 .) However, t his Court has already decided to credit the officers’ testimony regarding the identity of the officer who exited the vehicle and spoke directly to Miller, and, in any event, this discrepancy has no bearing on the Court’s legal analys is.19

Nor did Officer Hiller seize Miller when Officer Hiller posed further quest ions

w hile they were both standing on the sidewalk. The Supreme Court has “held repeatedly that mere police questioning does not constitute a seizure.” Bostick , 501 U.S. at 434 ; see also id. at 434

 35 (“[E]ven when officers have no basis for sus pecting a particular individual, they may generally ask questions of that individual.”)

. As explained, i t is well established that p olice o fficers may freely pose question s , so long

as they do not “convey a message that compliance w ith their requests is required. ” Id. at 4 35 . This means that the officer’s tone and statements might convey a message that rises to the level of a seizure. See, e.g. , Castle , 825 F.3d at 633 (finding seizur e where an officer instructed the defendant to rem ove his hands from his pockets and to “hold on,” while blocking the defendant’s path ) ; Wood , 981 F.2d at 540 (finding seizure where a uniformed officer, blocking the defendant’s path, ordered the defendant to “halt right there ” and “stop”); United States v. Jones , 142 F. Supp. 3d 49 , 54, 59 (D.D.C. 2015) ( finding seizure where Gun Recovery Unit officers exited their vehicle and attempted to keep the defendant from departing by stating, “I need to talk to you for a second, you need to stop”). However, h ere, no seizure occurred at the point i n which Officer Hill er p os ed additional questions to Miller , because Officer Hiller did not

s uggest that Miller was required to answer. Rather, Officer Hiller credibly testified that his investigatory questions were limited to inquiries such as : “He y man can I talk to you?”; “Hey, man, do you have any firearms on you? ” ; “What about the front of your waistband? ” ; and other , similar requests related to the potential presence of firearms

. ( Hr’g Tr. at 27:13

 14, 30:23

 24, 61:8

 11 ; Gov’t Opp’n at 2 .) Furthermore, w hen Miller turned away and Officer Hiller20

was unable to understand Miller’s responses, Officer Hiller asked Miller to turn back towards him in a respectful manner , stating, “We’re both men, we can talk face

- to

face.” ( Hr ’ g Tr. at 33:16 (testimony of Officer Hiller) ; see also id. at 33 : 14

 16

. ) Officer Hiller testified that his tone of voice remained calm throughout the encounter, and unlike the officers in the Castle or Wood cases, Officer Hiller never made any threatening commands, and credibly characterized the entire encounter as a mere conversation. ( See i d. at 33:20

 22, 34:6); cf. Castle , 825 F.3d at 633; Wood , 981 F.2d at 540. This Court is persuaded that the circumstances described were such that a reasonable person in Miller ’s position would have believed he was free to leave up until the point w hen Miller admitted he had a firearm ( see Hr ’ g Tr. at 35:21

 25, 51:17

 22) , and, therefore, in this Court ’ s view, n o seizure occurred at that point in the encounter ,
s ee Lewis , 921 F.2d at 1297

. 5 N otably, the fact that Officer Hiller was armed throug hout his c onversation with Miller does not , without more, alter this Court’s conclusion

. See Goddard , 491 F.3d at 461 ( “[T]he fact that

. . . officers [wear police] gear, including guns and handcuffs, does not mean that a stop occurred.” ) ; see also id. at 461

 62 ( concluding no seizure occurred when four officers “jump [ed]” out of their police car and approached the defendants while wearing police gear and carrying guns) ; United States v. Lloyd , 868 F.2d 447, 451 (D.C. Cir. 1989) ( concluding no seizure occurred when one officer

5 Although Miller ’s account of the interaction

— which featured one officer purportedly ordering Miller to “hold up for a second[,]” followed by Officer Wright and Detective Delpo “surround[ing]” Miller near the fence (Hr’g Tr. at 82:14, 106 :9)

— bears similarities to the circumstances that supported a seizure in the Castle , Wood , and Jones cases , this Court has declined to credit Miller’s testimony, and thus, it need not determine whether a Fourth Amendment seizure occurred under Miller’s version of even ts. Cf. Castle , 825 F.3d at 633; Wood , 981 F.2d at 540; Jones , 142 F. Supp. 3d at 54, 59.21

“dressed in plain clothes” “p olitely asked [the defendant] a series of questions, ” and “neither made threats nor brandished weapons ”). Officer Hiller credibly testified t hat he calmly approached Miller, and that his firearm was not brandished at any point during the encounter , despite the fact that it was visible in his hip holster . ( See Hr’g Tr.
at 23:3

 6, 24:8

 12, 61:12

 18.) In short, t here is no indication that Officer Hiller took any actions

— with his firearm or otherwise

— that were designed to threaten or intimidate Miller

. Consequently , the Court confidently concludes that no seiz ure occurred when Officer Hiller exited his vehicle and asked to speak further with Miller

. 6

3. Miller Was Seized When Officer Hiller Physically Restrained Him To Effectuate His Arrest ; However, At That Point , Offi cer Hiller Had Probable Cause For The Seizure Based On Miller’s Admission That He Was Carrying A Gun It is axiomatic that a “ ‘ Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied. ’ ” Scott v. Harris , 550 U.S. 372, 381 (2007) (alteration s in original) (quoting

6 The Court’s conclusion that there was no seizure at this point in Miller’s encounter with the police not only disposes of Miller’s argument that physical evidence (the gun itself) should be suppressed, but also addresses the argument Miller’s counsel made during the hearing regarding suppression of the pre arrest statements that Miller made in response to the officers’ repeated inquiries regarding the presence of guns. ( See Hr’g Tr. at 9:14

 16.) Defense counsel argued that, just as Miller was “seized” by the officers ’ repeated inquiries about guns , so too was Miller in “custody” for Miranda purposes when the officers questioned Miller in this manner . ( See id. at 9:2

 10:4.) C ourts employ discrete analyses when assessing whether a defendant was “seized” within the meaning of the Fourth Amendment, or was “in custody” for the purposes of Miranda ; however, these analyses are fundamental ly similar. See, e.g. , Thompson v. Keohane , 516 U.S. 99, 112 (1995) (“The ultimate ‘in custody’ determination for Miranda purposes” requires courts to employ an objective standard that focuses on whether “a reasonable person” in the suspect’s position would “have felt he or she was not at liberty to terminate the interrogation and leave”); Stansbury v. California , 511 U.S. 31 8, 323 (1994) (per curiam); United States v. Richardson , 36 F. Supp. 3d 120, 126

 27 (D.D.C. 2014) (“[W]hen determining whether a suspect is in ‘custody’ within the meaning of Miranda , courts have considered circumstances including the location and length o f the encounter, the number of officers and citizens present, whether the police entered the location by force, whether the officers’ weapons were visible or drawn, whether officers were present throughout the encounter, whether the suspect was handcuffed, and the tone and demeanor of the officers and the suspect.” (citations omitted)). T hus, b ecause this Court concludes that Miller was not “ seized ” when he responded to the officers’ questions for the reasons explained above , this Court likewise concludes Miller was not “ in custody ” for Miranda purposes , and accordingly denies Miller’s motion to suppress his pre

- arrest statements.22

Brower v. County of Inyo , 489 U.S. 593, 596

– 97 (1989)); see also Tennessee v. Garner , 471 U.S. 1, 7 (1985); Terry , 392 U.S. at 16 ( “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away , he has ‘seized’ that person.”). Officer Hiller’s actions following Miller’s admission that he was carrying a gun easily fit th is well

- established seizure definition. Officer Hiller credibly testified that, upon hearing Miller’s admission that he was carrying a gun, Officer Hiller immedi ately placed Miller in a chest

- to

- chest bear hug

— a maneuver whereby Officer Hiller placed his arms under Miller’s shoulders and around Miller’s body in order to raise Miller’s

arms upward and t o prevent Miller from accessing any firearm. ( See Hr’g Tr. at 36:10

 13, 37:24

 25.) Officer Hiller acknowledged that he physically restrained Miller in this manner in order to “make sure that we [could] place [Miller] under arrest witho ut anybody getting hurt.” ( Id. at 37:1

 3 (testimony of Officer Hiller) .) There can be little doubt that O fficer Hiller’s act

— which was plainly designed to restrain Miller’s freedom of movement while Officer Hiller effectuated the arrest

— constituted a Fourth Amendment seizure. See Terry , 392 U.S. at 16. Furthermore, wit h respect to the issue of whether the government has established the necessary justification for that warrant less seizure for Fourth Amendment purposes,
t his Court finds that, a t the moment Officer Hiller physically restrained Mil ler, Officer Hiller had the requisite probable cause to justify the arrest
. See Devenpeck v. Alford , 543 U.S. 146, 152 (2004) (“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.”). It is well established that “ [p] robable cause exists23

where ‘ the facts and circumstances within [the arresting officer’s ] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reason able caution in the belief that’ an offense has been or is being committed. ” Draper v. United States , 358 U.S. 307, 313 (1959) ( fourth alteration in original ) (quoting Carroll v. United States , 267 U.S. 132, 162 (1925)). And when Offi cer Hiller wrapped Miller in a bear hug, Officer Hiller had knowledge of the f ollowing facts: (i) Miller appeared nervous and frantic throughout the encounter; (ii) Miller had repeatedly shifted his body away from the officers in an effort to conceal the front portion of his waistband; (iii) similar efforts by individuals to conceal the ir waistband while communicating with the police had been a means of concealing the presence of a firearm 7 ; and (iv) Miller expressly admitted that he was carrying a firearm. ( See Hr’ g Tr. at 18:14

 21, 19:2

 4 , 24: 2

 7, 34:23

 35: 4, 68:4

 13 , 71:2

 16.) The Court concludes that, u nder the circumstances presented here , these facts were sufficient to justify Officer Hiller’s belief that Miller was committing a criminal offense when Officer Hiller seized him , and as a resu lt, Miller ’ s seizure was not an unlawful vio lation of the Fourth Amendment. IV. CONCLUSION Up until the moment that Officer Hiller physically restrained Miller, the encounter between Miller and the MPD officers (as the government has credibly described it) was a consensual interaction that does not warrant Fourth Amendment scrutiny. No Fourth Amendment seizure occurred until Officer Hiller wrapped Miller in a bear hug and, at that point in time , Officer Hiller had probable cause to justify

7 Officer Hiller testified that he kn ew this from his own experience . ( See Hr ’ g Tr. at 68:4

 13 , 71:2

 16.)24

Miller’s arres t, as explained above . Accordingly, and as se t forth in the order accompanying this opinion, Miller’s motion to suppress physical evidence is DENIED

.

DATE: November 11, 2016 

## Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judg e