UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________ 

) 

UNITED STATES OF AMERICA, ) 

) 

v. ) 

) Crim. Action No. 23-0206 (ABJ)

STEVEN GORHAM, ) 

) 

Defendant. ) 

____________________________________) 

MEMORANDUM OPINION AND ORDER

In this case, Metropolitan Police Department (“MPD”) officers peered into the defendant’s 

unoccupied parked car with the aid of a handheld flashlight, observed a weapon, and forced the

car open in order to recover it. Defendant’s attempt to suppress the firearm began as a vague 

smorgasbord of theories, but it eventually crystallized into a motion based primarily on the 

Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), and the theory that the 

officers committed a common-law trespass in violation of the Fourth Amendment by touching the 

car for the purpose of gathering information. The Court finds that the Jones decision does not go 

so far as to reach the officers’ non-invasive interactions with the defendant’s car; nor was the 

unoccupied automobile “seized” by the officersin violation of the Constitution. While this opinion 

should not be read as a ringing endorsement of the MPD operation at issue, the motion to suppress 

will be denied. 

BACKGROUND

On October 7, 2022, at approximately 6:52 p.m., officers from the Metropolitan Police 

Department’s Violent Crime Impact Team were dispatched to the Woodland Terrace Public 

Housing Complex in Southeast D.C. Gov’t Opp. to Def.’s Suppl. Br. (“Gov’t Suppl. Opp.”) [Dkt. 
2

#37] at 1; Def.’s Suppl. Br. [Dkt #34] (“Def.’s Suppl. Br.”) at 6. The complex is comprised of 

multiple two-story buildings that each contain several units, and the buildings and their respective 

parking lots are spread out over a several block area. See generally Officer Schemmel Body-Worn 

Camera Clip, Gov’t Hrg. Ex. 1 (“Gov’t Ex. 1”). Approximately ten to fifteen officers arrived in 

three unmarked patrol vehicles and on foot. Def.’s Suppl. Br. at 6. Officers Thomas Schemmel 

and Bryan Madera testified that they were sent to the neighborhood that day to conduct community 

engagement and gun interdiction, with a “primary focus . . . to try and find unregistered firearms 

within the community.” Tr. of Proceedings Oct. 2, 2023 [Dkt #32] (“Oct. 2 Tr.”) at 17–18, 135. 

The officers were not responding to any reports of gunfire or citizen complaints at time; they had 

been sent to the scene as part of a site-specific canvass undertaken as part of the Team’s gun 

interdiction efforts. Oct. 2 Tr. at 57, 164. 

Upon arrival, the officers dispersed and began conducting a walkthrough near the public 

parking lot in front of 2744 Bruce Place SE, Washington, D.C. 20020. Oct. 2 Tr.at 17, 68–69. 

The officers examined the public areas surrounding the lot with the aid of flashlights, and they 

looked into the interiors of several parked, unoccupied vehicles. See Oct. 2 Tr. at 69–70, 162. The 

officers were equipped with body-worn cameras at the time, and their movements can be observed 

on Government Hearing Exhibits 1–5 and Defendant’s Hearing Exhibits 2–4, 6, 7B, 8–10, 12–13, 

15B–18, and 21–26.

During the course of the evening, Officer Schemmel walked around a black Dodge 

Charger, later identified as belonging to defendant, and he looked into its tinted windows from 

various angles with the aid of a flashlight. Oct. 2 Tr. at 22–23, 26; Officer Schemmel Body-Worn 

Camera Clip, Gov’t Hrg. Ex. 2 (“Gov’t Ex. 2”). According to Officer Schemmel, he remained 

“standing on the ground” during the entire examination of defendant’s car, Oct. 2 Tr. at 30–31, 
3

and the defendant has not pointed to any evidence to the contrary. It is apparent from Officer 

Schemmel’s body-worn camera footage that the interior of the vehicle became visible to him when

he held up the flashlight.

Gov’t Ex. 2 at 18:55:07. 

However, the same footage also reveals that Officer Schemmel and another officer made

physical contact with defendant’s car during this process. For example, in Officer Schemmel’s 

body-worn camera video, Officer Schemmel can be seen grasping a flashlight with his right hand 

and resting that same hand on the windshield of defendant’s vehicle, Gov’t Ex. 2 at 18:55:27–

18:55:30, while a second officer simultaneously cups his hands around his eyes, and the edge of 

each hand is pressed directly against the front passenger-side window while he looks inside. Id.
4

Gov’t Ex. 2 at 18:55:30. Evidence established during the suppression hearing also confirmed that 

Officer Schemmel looked into the car after another officer, Officer Madera, had already done so.

Oct. 2 Tr. at 72:13–73:8; see Def.’s Ex. 4 (Madera body-worn camera video).

On cross-examination, Officer Schemmel acknowledged what had taken place: 

Q: And is it your practice to look into vehicles multiple times?

A: Yes, ma’am.

Q: With multiple officers?

A: Yes, ma’am.

Q: Okay. And why is that?

A: Just like anything, it’s always better to have a second set of eyes look at something.

Q: You watched some of your fellow officers conduct these flashlight searches, correct?

A: I have.

Q: Some of them will put their hands on the vehicles, correct?

A: Yes, ma’am.

Q: And press the flashlight against the window –

A: Yes, ma’am.

Q: -- in order to get a better look, if you will?

A: Yes, ma’am.

Oct. 2 Tr. at 73–73. 
5

After looking into the front of the car, Officer Schemmel walked around to the rear driverside window and again used his flashlight to observe the interior. Gov’t Ex. 2 at 18:55:33–

18:56:02. Camera footage reveals that Officer Schemmel was not touching the vehicle at that 

point, but instead hovering next to the vehicle while grasping his flashlight in one hand and 

cupping his other hand against his face:

Gov’t Ex. 2 at 18:56:02. Officer Schemmel then called out “1-800,” a signal to alert others to the 

presence of a firearm. Gov’t Ex. 2 at 18:56:05–18:56:08. Officer Schemmel testified that he made 

the announcement upon seeing the handle and rear sights of a handgun sticking up out of the rear 

seat pocket of the front passenger seat. Oct. 2 Tr. at 19.

Law enforcement officers later opened the vehicle and retrieved a black Smith and Wesson 

handgun from the pocket on the back of the passenger seat. See Gov’t Suppl. Opp. at 2; Oct. 2 Tr. 

at 49. It had one round in the chamber and seventeen rounds of ammunition in an extended 

magazine. Oct. 2 Tr. at 49. They also found defendant’s Maryland driver’s license in the car, 
6

along with several other documents bearing his name, including billing material and an 

identification card. Oct. 2 Tr. 42–48. They made no arrests at the time. Oct. 2 Tr. at 34. 

Investigators later obtained a warrant to take an oral swab from the defendant to use for DNA 

comparison purposes. Def.’s Mot. to Suppress Tangible Evid. [Dkt. # 17] (“Def.’s Mot.”) at 3.

He was indicted by a federal grand jury in June of 2023 and charged with unlawful possession of 

a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). See Indictment 

[Dkt. # 1] at 1. 

PROCEDURAL HISTORY

On August 7, 2023, defendant filed a motion to suppress the firearm, as well as any 

evidence obtained pursuant to the warrant for the buccal swab, on the grounds that the warrantless 

seizure of the weapon violated the Fourth Amendment, and the DNA sample was the fruit of that 

constitutional violation. Def.’s Mot. at 1. The precise theory underlying the motion was unclear;

the defense maintained that “Mr. Gorham’s vehicle was seized when three cars full of armed 

officers surrounded the vehicle both with their vehicles and themselves, preventing any egress[,]” 

id. at 6, and that the officers had undertaken a search that could not be sustained under either the 

automobile or the plain view exception to the warrant requirement. Id. Defendant also complained

that there was no “particularized indication” that the vehicles in the parking lot had been associated 

with criminal activity; “[t]he officers were simply searching cars on a whim to see what they might 

find.” Id. Defendant observed that “officers used flashlights and at times made physical contact 

with the vehicle to look intently inside the tinted windows at the vehicle’s content,” id. at 6, but he 

did not identify any authority or legal doctrine to support an argument that such conduct would be 

unlawful. The government opposed the motion, taking the position that the weapon was in plain 

view, and that under Supreme Court precedent, the use of the flashlight alone did not transform 
7

the officers’ observation of the interior of the car into a “search” for purposes of the Fourth 

Amendment. Gov’t Opp. to Def.’s Mot. [Dkt. # 24] (“Gov’t Opp.”). Defendant filed a reply. 

Def.’s Reply to Gov’t Opp. [Dkt. # 29] (“Def.’s Reply”). 

The Court heard argument on October 2, 2023, and at the close of the evidence, defense 

counsel contended that the Fourth Amendment was violated when the officers pulled up in their 

cars and blocked ingress and egress from the parking lot – in effect, seizing the parked cars without 

the reasonable suspicion necessary to support a Terry stop. Oct. 2 Tr. at 179–82. Counsel 

suggested that there may be “an equal protection issue at play,” but failed to articulate how those 

considerations bore on the motion to suppress. Oct. 2 Tr. at 166; see also id. at 9 (“We have a 

public housing community comprising of a lower socioeconomic class of people whose rights have 

been essentially relegated to unimportant -- I think we would all agree this would not happen in 

the Palisades.”). Counsel also maintained that the case fell outside the plain view exception given 

the particular facts and circumstances here: that the officers pressed the flashlight “up against the 
8 

glass, . . . making contact with the vehicle, lingering, having one officer doing a pass . . . [and] 

another officer coming back around.” Id. at 185–86.1

 

The Court invited both parties to supplement the record with additional authority. See Oct. 

2 Tr. at 182; Minute Order (Oct. 2, 2023). On October 24, defendant filed a supplemental brief, 

Def.’s Suppl. Br., this time predicating the motion on United States v. Jones, 565 U.S. 400 (2102),

and its progeny, and the government filed another brief in opposition. Gov’t Suppl. Opp. Given 

the evolving nature of the legal theories at issue, the Court convened another hearing on 

November 14, 2023 before taking the matter under advisement. Minute Entry (Nov. 14, 2023). 

1 Defense counsel also conceded at the first hearing that the officers were lawfully present 

given the location of the vehicle in a public housing complex. Oct. 2 Tr. at 182–83. (Q: “[T]here’s 

the three-pronged [test] about whether [the police] can see [the seized evidence] in plain view, 

whether its incriminating character was immediately apparent, [and] whether [the police] were 

lawfully there in the first place. Were [the police] lawfully there in the first place?” A: “It is 

public housing, Your Honor. I think we do take umbrage with the obviously incriminating 

piece.”). However, the government pointed out that even if the defendant had a license to carry 

the firearm, or the gun was registered, the transportation of a loaded firearm that was accessible 

from the passenger seat, and that was not hidden from public view, contravened multiple 

provisions of the D.C. Code and D.C. Municipal Regulations. See Gov’t Opp. at 10–11, citing 

D.C. Code § 22-4504.02(b) (“(1) If the transportation of the firearm is by a vehicle, the firearm 

shall be unloaded, and neither the firearm nor any ammunition being transported shall be readily 

accessible or directly accessible from the passenger compartment of the transporting vehicle. (2) If 

the transporting vehicle does not have a compartment separate from the driver’s compartment, the 

firearm or ammunition shall be contained in a locked container other than the glove compartment 

or console, and the firearm shall be unloaded.”); D.C. Municipal Regulation § 24-2348.2 (“When 

not in storage, each registrant shall carry the firearm on his or her person or within such close 

proximity that he or she can readily retrieve or use it as if he or she carried it on his or her person; 

provided, that the firearm is entirely hidden from view of the public.”); and § 24-2344.1 (“A 

licensee shall carry any pistol in a manner that it is entirely hidden from view of the public when 

carried on or about a person, or when in a vehicle in such a way as it is entirely hidden from view 

of the public.”).
9 

LEGAL STANDARD

The Fourth Amendment to the United States Constitution guarantees “[t]he right of the 

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and 

seizures . . . .” U.S. Const. amend. IV. This protection extends beyond the walls of a private 

dwelling and into “every container that conceals its contents from plain view,” including vehicles. 

United States v. Ross, 456 U.S. 798, 822–23 (1982). “A warrantless search is the quintessential 

intrusion and is presumptively unreasonable” under the Fourth Amendment. United States v.

Peyton, 745 F.3d 546, 552 (D.C. Cir. 2014). The government therefore bears the burden of 

justifying the warrantless search through the applicability of an exception to the warrant 

requirement. See, e.g., United States v. Jeffers, 342 U.S. 48, 51 (1951), and United States v. 

Mangum, 100 F.3d 164, 169 (D.C. Cir. 1996). 

ANALYSIS

The Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), frames the 

parties’ dispute over the propriety of the officers’ conduct and whether the fruits of that conduct 

must be suppressed.2 According to defendant, “[t]he Supreme Court was clear in Jones[] that a 

2 While the defense did not press the argument at the second motion hearing, in the first 

section of his supplemental brief, defendant also argues that the firearm was the fruit of an 

unconstitutional seizure of his car. Def.’s Suppl. Br. at 1 ( “Officers seized Mr. Gorham’s vehicle 

when 10-15 armed police officers parked three police vehicles in a manner that prohibited ingress 

and egress from the public housing parking lots, descended upon the parking area, and began 

searching inside containers and vehicles with flashlights absent reasonable suspicion or probable 

cause.”). He insists that “[c]ourts have long recognized that police action blocking in a car 

constitutes a seizure of the vehicle,” id. at 12, pointing to a series of cases, including United States 

v. Gross, 662 F.3d 393 (6th Cir. 2011), but those authorities do not support his position. 
10 

First of all, as defendant’s own summaries of the cases reveal, see Def.’s Supp. Br. at 12–

14, the decisions in Gross, United States v. Kerr, 817 F.2d 1384 (9th Cir. 1987), United States v. 

Jones, 759 F.2d 633 (1st Cir. 1985), Pane v. Gramaglia, 509 Fed. Appx. 101 (2nd Cir. 2013), 

United States v. Delaney, 955 F.3d 1077 (D.C. Cir. 2020), and United States v. Johnson, 212 F.3d 

1313 (D.C. Cir. 2000), concerned whether the defendants had been seized for purposes of the 

Fourth Amendment, not their vehicles. For example, in Gross, a police officer “parked his police 

vehicle directly behind [a legally parked] Oldsmobile and turned on his vehicle spotlights” in an 

effort to see how the defendant would react. See 662 F.3d at 396. He then approached the car and 

asked the defendant a series of questions. Id. at 397. The Court found that blocking in the vehicle 

“would cause a reasonable person not to feel free to leave the area,” and that the encounter 

constituted a “seizure” of the defendant requiring reasonable suspicion under Terry v. Ohio, 

392 U.S. 1 (1968). Id. at 399. Notably, in Gross, Kerr, Jones, and Delaney, the defendants were

in their cars when the police pulled in behind them. See id. at 300; Kerr, 817 F. 2d at 1386; Jones, 

759 F. 2d at 640; Delaney, 955 F.3d at 1079–80. 

The defendant did cite one case in which the driver had left the car after it was parked, but 

it, too, was about whether the driver’s liberty had been curtailed; it does not stand for the principle 

that the police action in that case amounted to an unconstitutional “seizure of the vehicle.” In 

United States v. Green, 111 F.3d 515 (7th Cir. 1997), the police were following a car, and after the 

defendant David Green, who was driving, pulled into a driveway and began walking, the officers 

pulled their car in behind his. Id. at 517. The defendant’s brother remained in the car. Id. The

officers then approached the driver in the street. Id. After they spoke with him and allegedly 

obtained his consent, they searched the vehicle. Id. Among other findings, the court held that the 

officers had indeed “stopped” the Greens for Terry purposes: 

[W]hile in some circumstances a driver may stop his automobile on 

his own resulting in a consensual encounter . . . , the officers pulled 

their car in behind the Greens, blocking the car’s exit. Under these 

circumstances, a reasonable person would not feel that he was free 

to leave. Thus, for purposes of the Fourth Amendment, the officers 

stopped the Greens – it was not a consensual encounter.

111 F.3d at 520 n.1 (citations omitted). The only case cited in which the court found that the 

vehicle itself was seized is an unreported decision from the Northern District of California, United 

States v. Nunn, Case No. 14-cr-636-TEH, 2015 WL 3764181 (N.D. Cal. June 16, 2015). 

Here, the defendant was not seated in the car, and the officers did not confront or detain 

the defendant on the street, so there is no need to determine whether they had the level of suspicion 

needed to impede his movements. And there can be no concern as to whether, “in view of all of 

the circumstances surrounding the incident, a reasonable person would have believed that he was 

not free to leave,” United States v. Mendenhall, 446 U.S. 544, 554 (1980), because defendant did 

just that. Body-worn camera footage reveals that the defendant was not in his vehicle, but he was 

standing with a group of others nearby when the officers arrived. See Gov’t Ex. 1 at 18:53:26–

18:54:04. He then calmly left the scene when the officers began canvassing the area. Oct. 2 Tr. 
11 

search occurs the moment officers physically intrude onto an individual’s property for the purpose 

of gaining information.” Def.’s Suppl. Br. at 17, citing Jones at 565 U.S. at 404–05. And the 

defense argues, in reliance on Jones and three cases from other circuits applying that decision, that 

“a search occurred when officers physically touched Mr. Gorham’s car with their hands, faces, 

bodies and flashlights, in order to better see and gather information about the contents inside his 

vehicle.” Def.’s Suppl. Br. at 15.

3

 The government counters by distinguishing Jones and relying 

on a series of cases holding that the use of a flashlight to aid officers in their inspection of what is 

at 144 (“[Defendant] was hanging out behind the vehicle. When we started looking into the 

vehicle, he walked away and disappeared.”). 

 

Moreover, the video evidence does not support the defendant’s core factual contention that 

the positioning of the police cars “prohibited ingress and egress from the public housing parking 

lots.” Def.’s Suppl. Br. at 1. It is obvious from the video evidence and defense exhibits 1, 5A, 

and 11 that much of the parking area in the complex was entirely unaffected, and that cars could 

get by the two unmarked polices cars parked in the alley. It is true that one police car pulled up 

perpendicular to and behind two cars that were parked in head-in spaces, blocking the defendant’s 

car and another car in, but the evidence also reveals that they moved the car when the driver of the 

vehicle next to defendant’s announced that she wanted to leave. See Officer Schemmel BodyWorn Camera Footage, Def. Hrg. Ex. 2 (“Def. Ex. 2”) at 19:03:18–19:03:26 (body-worn camera 

footage depicting departure of vehicle from parking lot); see also Oct. 2 Tr. at 62 (“Q: So the 

Benz, she attempted to leave, correct? A: Correct. Q: And she asked the officers to move the car 

because she could not leave with it parked there, correct? A: Correct. . . . A vehicle could fit 

through there. Q: Okay. . . (Video played.) So there one of the other officers moved the vehicle 

out of the way, correct? A: Yes, ma’am. . . . Q: And she’s leaving out the exit there. You can 

see kind of between those two curbs, correct? A: Yeah, . . . .”).

3 During the second hearing, defense counsel agreed that the relevant time period for 

purposes of the motion was from the moment the officers began their canvass until the moment

Officer Schemmel signaled the presence of a firearm in defendant’s car. Tr. of Proceedings Nov. 

14, 2024 (“Nov. 14 Tr.”) (Rough Tr.) at 10 (“THE COURT: So let’s go to the facts of this case . . . 

and I’m not interested in what other officers did to other cars or what other officers did to this car 

after he said 1-800 because at that point would you say that he had alerted the other officers to the 

presence of a gun and then there was more cause for them to look? Would that be fair?” [Defense 

Counsel]: (Nods head.) THE COURT: “All Right. You’re nodding.”). 
12 

otherwise in plain view does not constitute a “search” at all. See Gov’t Suppl. Opp. at 8–11.4 But 

the cases the government proffered pre-date Jones, and they do not address the central question 

raised by defendant: whether the officers’ touching of his vehicle – with their hands, faces, and 

flashlights – for investigative purposes somehow makes this case different. Therefore, it is 

essential to determine whether Jones altered the Fourth Amendment landscape in a manner that 

would call for a different outcome. 

Jones arose out of a narcotics investigation in which law enforcement officers attached a 

GPS tracking device to the underside of a vehicle controlled by the defendant. Jones, 565 U.S. at 

403. The government utilized the device to track the defendant’s movements for a month,

generating evidence that resulted in a multiple-count indictment against him. Id. The defendant 

moved to suppress the evidence obtained from the GPS tracking device, but his motion was denied,

and he was eventually convicted. Id. at 403–04. His conviction was overturned by the D.C. Circuit 

on appeal in a decision entitled United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), in which 

4 See United States v. Dunn, 480 U.S. 294 (1987) (officers utilized flashlight to observe 

interior of barn located within defendant’s property to discover existence of drug laboratory);

Texas v. Brown, 460 U.S. 730 (1983) (officer stopped defendant’s automobile at a routine driver’s 

license checkpoint, asked him for his license, and shined his flashlight into the car, thereby

discovering contraband); United States v. Allen, 573 F.3d 42 (1st Cir. 2009) (officer utilized 

flashlight to inspect interior of while “leaning over the hood and shining his flashlight into the 

window”); United States v. Willis, 37 F.3d 313 (7th Cir. 1994) (in response to complaints of a 

disturbance in a schoolyard, officer utilized flashlight to inspect interior of a car parked in the 

school parking lot to discover firearm); United States v. Gonzalez-Acosta, 989 F.2d 384 (10th Cir. 

1993) (Border Patrol agents utilized mirror and flashlight to inspect underbody of vehicle, 

discovering that gas tank had been altered to conceal narcotics); United States v. Price, 869 F.2d 

801 (5th Cir. 1989) (Border Patrol agent utilized flashlight to observe underbody of vehicle, 

discovering compartment containing suspiciously wrapped material); United States v. Reynoso, 

Criminal Case No. 18-cr-253, 2018 WL 6067430 (D.D.C. Nov. 19, 2018) (officer utilized 

flashlight during traffic stop to inspect interior of vehicle through open vehicle doors, discovering 

firearm magazine). 
13

the Court of Appeals held that obtaining evidence through the warrantless use of the GPS device 

violated the Fourth Amendment. Id. at 404, citing Maynard; see 615 F.3d at 556–65. 

Applying Katz v. United States, 389 U.S. 347 (1967), the Maynard Court held that the 

government’s continuous tracking of the defendant’s location enabled by the GPS device violated 

the defendant’s “reasonable expectation of privacy” in the totality of his movements. Maynard, 

615 F.3d at 555–66. The Circuit reasoned that while an individual does not necessarily have an 

expectation of privacy in that which is exposed to the public, “[a] reasonable person does not 

expect anyone to monitor and retain a record of every time he drives his car, including his origin, 

route, destination, and each place he stops and how long he stays there.” Id. at 563. Because the

GPS device enabled the government to do precisely that, the Circuit held that the investigators 

should have obtained a warrant before affixing it to Jones’s car. Id. at 565–66.

The Supreme Court affirmed the Circuit’s decision. Importantly, though, the opinion of 

the Court was not based on the reasonable-expectation-of-privacy theory derived from Katz, which

animated the Circuit’s decision. Instead, Justice Scalia invoked the doctrine of common-law 

trespass, to which, he explained, Fourth Amendment jurisprudence has historically been “tied.” 

Jones, 565 U.S. at 405. In order to determine whether Jones and its trespass analysis governs the 

instant situation, it is necessary to undertake a careful examination of what that decision did and 

did not say.

A close reading of the Jones opinion reveals a lack of support for the defense’s assertion 

that “a search occurred when officers physically touched Mr. Gorham’s car with their hands, faces, 

bodies and flashlights, in order to better see and gather information about the contents inside his 

vehicle.” Def.’s Suppl. Br. at 15. First of all, the decision announced in Jones was “that the 

Government’s installation of a GPS device on a target’s vehicle, and its use of that device to 
14 

monitor the vehicle’s movements, constitutes a ‘search.’” 565 U.S. at 404 (emphasis added)

(footnote omitted). That is a very narrow and specific finding in a situation that is not analogous 

to this case. One cannot distill a rule against “touching” automobiles from that two-pronged 

conclusion. And even if one were to ignore the second portion of the sentence, which specifically

includes the monitoring as part of the basis for the holding, one must still grapple with the Court’s 

use of the term “installation,” which was fundamental to the finding that a trespass had occurred. 

Justice Scalia took great pains to make that plain: 

It is important to be clear about what occurred in this case: The Government 

physically occupied private property for the purpose of obtaining 

information. We have no doubt that such a physical intrusion would have 

been considered a “search” within the meaning of the Fourth Amendment 

when it was adopted.

Id. at 404–05 (emphasis added). He explained that prior to Katz, Fourth Amendment jurisprudence 

was focused on common-law trespass, and that while Katz expanded the grounds for finding a

Fourth Amendment violation, it did not supplant the old trespass concepts. Id. at 406–407 (“[F]or 

most of our history the Fourth Amendment was understood to embody a particular concern for 

government trespass upon the areas (‘persons, houses, papers, and effects’) it 

enumerates. Katz did not repudiate that understanding.”) (footnote omitted). Justice Scalia

pointed to a concurring opinion by Justice Brennan in a prior case, which underscored that “Katz

did not erode the principle ‘that, when the Government does engage in physical intrusion of a 

constitutionally protected area in order to obtain information, that intrusion may constitute a 

violation of the Fourth Amendment.’” Id. at 407, quoting United States v. Knotts, 460 U.S. 276, 

286 (1983) (Brennan, J., concurring). Again, the emphasis is upon physical intrusion. 

The opinion of the Court in Jones also specifically differentiated a physical encroachment, 

reaching into a vehicle, from a mere visual inspection: 
15 

The Government also points to our exposition in New York v.

Class, that “[t]he exterior of a car . . . is thrust into the public eye, and 

thus to examine it does not constitute a ‘search.’” That statement is of 

marginal relevance here since, as the Government acknowledges, “the 

officers in this case did more than conduct a visual inspection of 

respondent’s vehicle.” By attaching the device to the Jeep, officers 

encroached on a protected area. In Class itself we suggested that this 

would make a difference, for we concluded that an officer’s momentary 

reaching into the interior of a vehicle did constitute a search.

565 U.S. at 410 (emphasis in original) (internal citations omitted). And the next paragraph of the 

opinion, differentiating the Jones situation from a trespass on an open field, again emphasizes a 

“physical intrusion.” Id. at 411 (“The Government's physical intrusion on [an open field] – unlike 

its intrusion on the ‘effect’ at issue here – is of no Fourth Amendment significance.”) (emphasis 

added). 

In sum, there is no point in the Jones opinion where the Court characterizes the mere

“touching” of a vehicle – even for the purpose of gathering information – as a “trespass”; the 

objectional conduct was the physical intrusion into, or encroachment upon, private property.5

It appears, then, that defendant’s formulation comes not from Jones, but from the out-ofcircuit cases cited in his supplemental brief: United States v. Richmond, 915 F.3d 352 (5th Cir. 

5 The Supreme Court appears to have cited Jones only once, and its consideration of

common-law trespass principles also took note in that case of the fundamental privacy interests 

that attach to one’s home. In Florida v. Jardines, 569 U.S. 1 (2013), the Supreme Court applied 

Jones to hold that the use of a drug-sniffing dog on the front porch of a home constituted a Fourth 

Amendment “search.” Id. at 5–6. The Court acknowledged that the common law recognized an 

implicit license “to approach the home by the front path, knock promptly, wait briefly to be 

received, and then (absent invitation to linger longer) leave.” Id. at 8. But it held that a canine 

forensic investigation lay outside that license. Id. at 9. (“[I]ntroducing a trained police dog to 

explore the area around the home in hopes of discovering incriminating evidence is something 

else. There is no customary invitation to do that.” Id. (emphasis in original). Therefore, the Court 

found that the police officer’s conduct, which involved a trespass on land outside the implied 

license to seek entry to the home, constituted a “search.” Id. 10. That holding provides little

guidance here.
16 

2019); United States v. Dixon, 984 F.3d 814 (9th Cir. 2020); and Taylor v. City of Saginaw, 

922 F.3d 328 (6th Cir. 2019). See Def.’s Suppl. Br. at 17. Putting aside the fact that this Court is 

not bound to follow any of them, none of those cases is analogous to this one on its facts. 

In Richmond, the Fifth Circuit considered whether a police officer’s pressing on a tire for 

the purpose of determining whether the tire contained hidden contraband was a Fourth Amendment 

search. 915 F.3d 352. The panel decided that under Jones, a search arises where there is a “trespass

. . . ‘conjoined’ with ‘an attempt to find something or obtain information.’” 915 F.3d at 357, citing

Jones, 565 U.S. at 408, n.5. The panel held that the police officers’ conduct met this test. Id. at 

358. “In terms of the physical intrusion,” the Fifth Circuit saw “no difference between the Jones

device touching the car and an officer touching the tire.” Id. And although the trespass was 

“relatively minor,” in the court’s view, it “occurred to learn what was inside the tires” and therefore 

“qualifies as a search.” Id.6 Importantly, the panel distinguished the situation from “mere physical 

touching, such as when an officer leans on the door of a car while questioning its driver,” which it 

posited would not be a “search” under Jones. Id. at 357. 

In Dixon, the Ninth Circuit evaluated whether an officer’s insertion of a key into the lock 

on a minivan was a search under Jones, and it concluded that it was. 984 F.3d at 820. The court 

characterized Jones as holding “that officers could not physically intrude on a Jeep to plant a GPS 

6 In advance of the Court’s hearing on November 14, 2023, defendant also directed the Court 

to United States v. Duncan, 2023 WL 2403444, Criminal Action No. 22-76 (E.D. La. March 8, 

2023). Notice of Filing [Dkt. # 41]. In that case, the district court applied Richmond to hold that 

a police officer’s positioning of himself “with his arms and torso on the vehicle so that he could 

stretch to closely [l]ook through the darkly tinted windshield” constituted a “search.” Id. at *5. 

“He was touching the car and the windshield to obtain more information about the car and its 

contents. . . . This situation is analogous to Richmond, and the Court finds that [the officer’s] 

conduct constituted a trespass.” Id. The case is distinguishable from the instant case as Officer 

Schemmel did not position his body on defendant’s car. 
17 

tracking device,” and it noted that Jones “expressly rejected the notion that the exterior of a car is 

entitled to less protection under” the trespass test. Id. Therefore, when the officer “inserted the 

key into the minivan’s lock, an ‘effect,’ he physically intruded onto a constitutionally protected 

area.” Id. And the physical intrusion was undertaken “for the express purpose of obtaining 

information, specifically to learn whether [the defendant] exercised control over the minivan. 

Thus, the insertion of the key into the minivan’s lock constituted a search within the meaning of 

the Fourth Amendment.” Id.

And in Taylor, the Sixth Circuit considered the practice of “chalking,” in which parking 

enforcement officers use chalk to mark the tires of parked vehicles to track how long they have 

remained in place. 922 F.3d at 330. Officers would return to the car after a posted time for parking 

has passed, and if the presence of chalk marks revealed that the vehicle had not moved, they would 

issue a citation. Id. at 330–31. As with the Fifth Circuit in Richmond, the Sixth Circuit began its 

assessment with the “threshold question” of “whether chalking constitutes common-law trespass 

upon a constitutionally protected area.” Id. at 333. It looked to the Restatement (Second) of Torts 

for guidance and explained that common-law trespass encompasses “‘an act which brings [about] 

intended physical contact with a chattel in the possession of another.’” Id., quoting Restatement

(Second) of Torts § 217 cmt. e (1965). It added that “[a]n actor may . . . commit a trespass by so 

acting upon a chattel as intentionally to cause it to come in contact with some other object.” Id.

(edit and omission in original). Adopting that definition, the panel held that a trespass occurred 

“because the City made intentional physical contact with Taylor’s vehicle.” Id. And because the 

practice of chalking “amounts to an attempt to obtain information,” the panel held it qualified as a 

“search” under Jones. Id.
18 

None of these opinions is binding upon this Court, and the Court finds Dixon, which 

involved a type of clear intrusion – inserting a key in the lock and operating the lock – the most 

persuasive of the three. And although the Fifth Circuit saw “no difference between 

the Jones device touching the car and an officer touching [a] tire” in Richmond, 915 F.3d at 658, 

this Court is not persuaded that the invasions are comparable. After all, it was not the touching of 

the vehicle in Jones that transformed the officers’ conduct into a trespass; it was the “installation” 

of a GPS device, both modifying the integrity of the vehicle and enabling the government to track 

the defendant’s whereabouts. Id. at 404. This was clearly an affront to the “inviolability” of 

Jones’s car in a way that the treatment of defendant’s car here was not. Id. at 419 n.2 (JJ. Alito, 

Ginsburg, Breyer, Kagan, concurring). Therefore, the Court does not find it appropriate to extend 

the Jones trespass-based analysis beyond its clear holding based on the Richmond decision.7 

7 Furthermore, in concluding that attaching a GPS to the exterior of a vehicle was a 

trespass, Jones relied on its reading of the common law of trespass not as that tort is defined today, 

but as it existed in 1791 when the Fourth Amendment was ratified, and as modified by the unique 

customs of this country. See Jones, 565 U.S. at 404–05, citing Entick v. Carrington, 95 Eng. Rep. 

807 (C.P. 1765); see also Jardines, 569 U.S. at 8, citing McKee v. Gratz, 260 U.S. 127, 136 

(1922). The appropriate yardstick, then, would be case law and secondary sources explaining the 

scope of trespass at common law, rather than the modern articulation of a trespass on chattels 

contained in the Restatement (Second) of Torts. And at common law, a trespass on chattels was 

actionable where there was a violation of “the dignitary interest in the inviolability of chattels,” 

irrespective of whether there is “actual damage to the chattel.” W. Keeton, D. Dobbs, R. Keeton, 

& D. Owen, Prosser & Keeton on Law of Torts 87 (5th ed.1984). 

This would suggest that officers need not damage or otherwise modify a defendant’s 

property for the contact to amount to a trespass, and thus constitute a potential Fourth Amendment 

“search.” But that is not to say that the mere touching of property suffices to meet this standard in 

all circumstances. As Prosser and Keeton note, whether conduct similar to that challenged here –

“as where, for example, [an individual] merely lays hands upon the plaintiff’s horse” without 

inducing harm – was actionable at common law is both a matter of dispute and the subject of “a 

surprising dearth of authority.” Id. 
19 

But even if one were inclined to take the three circuit decisions cited by defendant into 

account, they can be easily distinguished. In Richmond, the Fifth Circuit found the touching to 

constitute a trespass in a situation where the touching was the means to acquire information that 

was otherwise inaccessible to the officers: was there something inside the tires? Here, the officers 

could see inside the car with the flashlight alone, and the touching was merely incidental to those 

observations. In Taylor, the chalking altered the physical appearance of the vehicle – something 

a mere passerby would not have license to do – while here, the Dodge Charger remained unaltered

as the police circled it and looked inside. And in Dixon, there was an actual physical intrusion – 

the insertion of the key – and an operation of the locking mechanism; two interactions with the car 

that extended well beyond what could reasonably be expected when one parks a car on a public 

street. 

This ruling is not only consistent with Jones but is further supported by the Supreme 

Court’s consistent treatment of cars under a privacy-based approach. As the Court emphasized in 

New York v. Class: 

[T]he physical characteristics of an automobile and its use result in a lessened 

expectation of privacy therein: “One has a lesser expectation of privacy in a motor 

vehicle because its function is transportation and it seldom serves as one’s residence 

or as the repository of personal effects. A car has little capacity for escaping public 

scrutiny. It travels public thoroughfares where both its occupants and its contents 

are in plain view.” 

475 U.S. 106, 112–113, quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion). 

Indeed, “[t]here is no legitimate expectation of privacy shielding that portion of the interior of an 

automobile which may be viewed from outside the vehicle by either inquisitive passersby or 

diligent police officers.” Brown, 460 U.S. at 40 (internal citations omitted). Moreover, the Court 

has ruled that it is “beyond dispute” that shining a flashlight “to illuminate the interior of [an 
20 

individual’s] car trenche[s] upon no right secured to the latter by the Fourth Amendment.” Id. at 

739–40. 

Defense counsel conceded as much at the second hearing, stating that “get[ting] up close 

to a window of car without touching it” and peering in would not be a trespass. See Nov. 14 Tr.

at 11–12. Counsel further agreed that looking in with a flashlight without touching the window 

would not be a trespass. Id. And counsel agreed that officers could cup their hands around their 

eyes to get a better look, explaining that the Fourth Amendment would be triggered only if the 

edge of their hands touched the car. Id. Thus, defendant’s motion turns upon whether the fact that 

the officers touched the vehicle in connection with their lawful exploratory use of the flashlight – 
21 

and that fact alone – transformed the activity into a search with constitutional implications. The 

Court cannot find support for that position in either Supreme Court or D.C. Circuit precedent.8

Finally, the Fourth Amendment’s exclusionary rule is only triggered “when the 

constitutional violation is “a ‘but-for’ cause of obtaining evidence.” United States v. Weaver, 

808 F.3d 26, 34 (D.C. Cir. 2015), quoting Hudson v. Michigan, 547 U.S. 586, 592 (2006). 

Although not laid out explicitly, this legal requirement is present in many of the cases defendant 

cites, as the physical contact permitted the officers to learn something that was not otherwise in 

plain view. For example, in Richmond, the physical trespass enabled the officers to test the 

composition of the tire’s interior, and thus learn that the defendant was concealing something 

8 Even if the Court were to find that merely touching an unoccupied vehicle parked in a

public space – in an attempt to gain information, but in the absence of the sort of physical intrusion 

that troubled the Court in Jones – constitutes a “search,” that in itself would not render the search 

unlawful. The Fourth Amendment does not prohibit all warrantless searches, but only 

“unreasonable” ones. So the Court would then have to undertake an analysis of the reasonableness 

of the search, which, ordinarily involves balancing the extent and nature of the trespass or intrusion 

on defendant’s privacy, against the level of concern or suspicion that prompted the search in the 

first place. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 534–535, 536–537 (1967).

Here, the intrusion was minimal, even if it can technically be characterized as a trespass. 

But there is no dispute that the police had no grounds to suspect that this particular car contained 

contraband or evidence of a crime before they started peering into it. And the evidence in the 

record as to the reason for the general search being conducted in the neighborhood was limited: 

Officer Madera testified that the neighborhood in question is “plagued with gun violence,” Oct. 2 

Tr. at 163, and the video evidence did reveal the presence of a memorial in a tree box to a recent 

victim of gun violence. Nov. 14 Tr. at 41. During the second oral argument, the government made 

reference to studies showing that many illegally possessed guns are stolen from cars. Id.; see e.g.,

Megan J. O’Toole, Jay Szkola, and Sarah Burd-Sharpes, Gun Thefts from Cars: The Largest 

Source of Stolen Guns, Everytown (May 9, 2022), available at https://perma.cc/69UY-SAQ8. But 

there is no evidence in the record that this animated MPD’s decision to authorize or undertake the 

operation in question. And even if that record had been fully developed, it is not clear whether

evidence concerning broad legitimate public safety reasons underlying police activity would be 

what is called for when conducting the reasonableness inquiry with respect to a particular search 

of a particular vehicle under the Fourth Amendment. Since the Court has not found the necessary 

physical intrusion, it need not engage in the analysis, and it will not as the record has not been 

fully developed on that point. 
22 

within. 915 F.3d at 354. And in Dixon, police were able to determine that the obtained key fit 

into the car lock, and thus that the vehicle was in fact owned by the defendant. 984 F.3d at 818–

19. 

The same simply cannot be said here. While the officers’ occasional use of their hands

may have facilitated or improved their ability to look inside the car, the body-worn camera footage 

shows that physical contact was not necessary to enable Officer Schemmel to look inside, and 

indeed, he was not touching the car when he saw the weapon and signaled “1-800.” Defendant 

has thus failed to establish that the only alleged constitutional violation – touching the car – 

communicated any information that was not otherwise available through the officers’ lawful use 

of their flashlights.

 The Court’s decision should not be interpreted as a license for officers to descend on a 

neighborhood and physically engage with the parked cars in any fashion. Whether other forms of 

conduct, such as climbing on top of a vehicle to peer inside, would constitute a “search” under 

Jones is not before the Court. But it should be noted that a court in the District of Columbia

recently held that it was. See Tr. of Proceedings, United States v. Alexander, Case No. 2021 CF2 

002232 (D.C. Sup. Ct. Oct. 30, 2023), Ex. in Supp. of Def.’s Mot. [Dkt. # 36-8] at 8 (“I therefore 

find and conclude that by climbing onto the defendant’s car and putting their hands and their faces 

right up on the windshield to look inside for the purpose of seeing more inside than they had been 

able to see just from standing on the street, on the outside of the car, that that was a search within 
23 

the meaning of the Fourth Amendment.”).9 The Court simply holds today that an officer’s mere

touching of a window in the course of a flashlight-enabled visual inspection does not constitute a 

“search” for purposes of the Fourth Amendment and United States v. Jones. 

 For the foregoing reasons, defendant’s motion to suppress [Dkt. # 17] is DENIED. 

SO ORDERED. 

AMY BERMAN JACKSON

United States District Judge

DATE: January 10, 2024 

9 Testimony was presented that at some point during the police officers’ inspection, at least 

one officer climbed on top of a vehicle to look inside. See Oct. 2 Tr. at 153–154. The Court need 

not address that particular conduct here. Not only did the climbed-upon car belong to someone 

other than defendant – thereby implicating someone else’s Fourth Amendment rights – that 

conduct yielded no evidence pertaining to defendant’s case. See id. Moreover, that particular 

event occurred after Officer Schemmel signaled the presence of a gun in defendant’s car. Id. To 

the extent that the D.C. Superior Court’s thoughtful decision in Raymond Alexander, Case No. 

2021 CF2 2232 (D.C. Sup. Ct. Oct. 30, 2023), is persuasive, it is therefore easily distinguished.