                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

                                  )
UNITED STATES OF AMERICA,         )
                                  )
           v.                     ) Criminal Case No. 18-108 (EGS)
                                  )
MARK A. GIBSON,                   )
                                  )
                  Defendant.      )
                                  )

                          MEMORANDUM OPINION

  I.     Introduction

       On April 2, 2018 at approximately 11:48 p.m., defendant

Mark Gibson was walking home from the bus stop. As he was

walking east on Galen Street at the intersection of 16th Street

and Galen Street Southeast in the District of Columbia, four

Metropolitan Police Department Gun Recovery Unit Officers (“MPD

officers” or “officers”) were patrolling in the same area,

seeking to recover firearms. After a brief encounter between the

officers and Mr. Gibson—the details of which are disputed—Mr.

Gibson fled. He was caught, arrested, searched, and found to be

in possession of cocaine base and a firearm. Thereafter, Mr.

Gibson was indicted on three counts: (1) unlawful possession of

a firearm by a felon in violation of 18 U.S.C. § 922(g); (2)

unlawful possession with intent to distribute cocaine base in

violation of 21 U.S.C. § 841; and (3) possessing a firearm in



                                  1
furtherance of a drug trafficking offense in violation of 18

U.S.C. § 924(c). See Indictment, ECF No. 1.

    Pending before the Court is Mr. Gibson’s motion to suppress

all tangible evidence. See ECF No. 6. Mr. Gibson argues that he

was unlawfully seized in violation of the Fourth Amendment of

the United States Constitution when the MPD Officers approached

him and ordered him to show his waistband and lift his jacket.

The Court held evidentiary hearings on September 17, 2018 and

September 20, 2018, at which both MPD Officer Matthew Hiller

(“Officer Hiller”) and Mr. Gibson testified. As explained fully

below, the Court credits Mr. Gibson’s testimony and finds that

the government has not met its burden to establish that the

seizure was lawful. Accordingly, after careful consideration of

Mr. Gibson’s motion, the responses and supplemental responses,

the replies and supplemental replies thereto, the evidence

presented at the evidentiary hearings, and the oral arguments

made at the September 25, 2018 and October 10, 2018 motion

hearings, Mr. Gibson’s motion to suppress all tangible evidence

is GRANTED.

  II.   Background

    On April 24, 2018, Mr. Gibson was indicted for: (1)

unlawfully and knowingly possessing a Taurus .40 caliber semi-

automatic pistol as a felon; (2) knowingly and intentionally

possessing cocaine base; and (3) knowingly possessing a firearm

                                2
in furtherance of a drug trafficking offense. Indictment, ECF

No. 1. During the September 17, 2018 and September 20, 2018

evidentiary hearings, the Court viewed the relevant body-worn

camera footage. Officer Hiller and Mr. Gibson also testified

about the circumstances leading to Mr. Gibson’s arrest. Their

respective testimony conflicts on the critical question upon

which resolution of this motion depends—namely, whether one of

the MPD officers ordered Mr. Gibson to show his waistband.

     A. Undisputed Facts

     On April 2, 2018 four MPD officers—all members of the Gun

Recovery Unit—patrolled the Seventh District, seeking to recover

firearms in a “high-crime area.” See Mot. Hr’g Tr. (“Sept. 17

Tr.”), ECF No. 16 at 15-16 (Sept. 17, 2018).1 The officers were

riding in an unmarked car and all wore tactical vests marked

“POLICE” in large letters on the front and back. Id. at 12-13;

Gov’t’s Exs. 1-A, 1-B, 3. Officer John Wright drove the vehicle,

while Officer Hiller sat in the front passenger seat, and

Officers Matthew Mancini and Merissa McCaw sat in the back seat.

Sept. 17 Tr., ECF No. 16 at 12-13.

     At approximately 11:48 p.m., the MPD officers encountered

Mr. Gibson as he walked east on Galen Street at the intersection




1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
                                3
of 16th Street and Galen Street Southeast. Sept. 17 Tr., ECF No.

16 at 17; Mot. Hr’g Tr. (“Sept. 20 Tr.”), ECF No. 17 at 46

(Sept. 20, 2018). Mr. Gibson had been walking home from a bus

stop after visiting a friend’s house. Sept. 20 Tr., ECF No. 17

at 45-46.

    The officers drove alongside Mr. Gibson as he walked on the

sidewalk. Officer Wright slowed down, pointed a flashlight at

Mr. Gibson, greeted Mr. Gibson, and identified himself as a

police officer. See Sept. 17 Tr., ECF No. 16 at 18; see also

Sept. 20 Tr., ECF No. 17 at 49-50; Def.’s Exs. 3, 4. The parties

agree that Officer Wright first asked Mr. Gibson whether he had

a firearm on him and Mr. Gibson responded that he did not. Sept.

17 Tr., ECF No. 16 at 17-18; Sept. 20 Tr., ECF No. 17 at 49-50.

From here, the testimony diverges; the different versions of the

events are discussed below.

    B. Officer Hiller’s Testimony

    Officer Hiller testified that, after Mr. Gibson stated that

he did not have a gun, the MPD officers continued to drive

alongside Mr. Gibson. See Sept. 17 Tr., ECF No. 16 at 18.

Officer Hiller initially testified that Officer Wright asked Mr.

Gibson “if he minded showing us his waistband.” Id. Officer

Hiller later hedged this answer, testifying that Officer Wright

said “something almost exactly to that effect.” Id. at 56. On

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

                                4
“exact words used.” Id. at 89. While Officer Hiller could not

recall the exact words used, he testified that he had “never

heard” Officer Wright “demand to see somebody’s waistband.” Id.

at 89. According to Officer Hiller, Officer Wright’s tone and

demeanor was “conversational.” Id. at 18, 39, 111-12. Officer

Hiller stated that Mr. Gibson again denied having a weapon. Id.

at 18 (“Mr. Gibson again replied, ‘I ain’t got no guns. I ain’t

got no guns.’”).

    Officer Hiller originally attested in the Gerstein Report2

he prepared that Mr. Gibson had his hands in his jacket pockets

throughout this encounter. Id. at 58-59, 63-66; Def.’s Ex. 1,

ECF No. 13-1 (“Officer Wright asked Mr. [Gibson] if he could see

his waistband and Mr. [Gibson] repeated ‘I ain’t got no guns, I

ain’t got no guns’ keeping his hands in his jacket pockets”).

Moreover, Officer Hiller did not mention Mr. Gibson’s hands in

his narrative testimony on direct examination. See Sept. 17 Tr.,

ECF No. 16 at 17-20. However, Officer Hiller agreed on cross-

examination, after watching the body-worn camera footage, that

Mr. Gibson raised his hands in the air with his palms facing the




2 A Gerstein report contains sworn statements by law enforcement
officers and is “used by prosecutors to establish probable cause
at the defendant's initial appearance before the court following
his arrest.” Littlejohn v. United States, 705 A.2d 1077, 1080
(D.C. 1997) (citing Gerstein v. Pugh, 420 U.S. 103, 120, 124 n.
25 (1975)); see Sept. 17 Tr., ECF No. 16 at 58; Def.’s Ex. 1,
ECF No. 13-1.
                                5
officers during the encounter. Id. at 62, 70-71. Officer Hiller

further testified that he could not remember Mr. Gibson raising

his hands in the air or why Mr. Gibson had raised his hands. Id.

at 70-71, 75-76.

    Officer Hiller testified that, after Mr. Gibson denied

having a weapon for the second time, Officer Wright “pulled

forward a little bit” and Mr. Gibson “kind of stopped, turned

back towards 16th Street and ran back down towards 16th Street

where he was originally seen coming from.” Id. at 19. Once Mr.

Gibson fled, Officers Mancini and Hiller pursued him on foot.

Id. at 20-21. Shortly thereafter, Mr. Gibson “lost his footing”

and fell to the ground. Id. at 21. Officer Hiller testified that

a firearm fell and landed on the ground near Mr. Gibson. Id.;

see also id. at 26 (“the gun fell out”). At that time, Mr.

Gibson was arrested and searched. See id. at 22. The MPD

officers found plastic bags containing a substance that tested

positive for cocaine base. Id.; Gov’t’s Exs. 4, 6-10; Sept. 20

Tr., ECF No. 17 at 52.

    The parties agree that all four MPD officers remained in

the car until Mr. Gibson began to run. Sept. 17 Tr., ECF No. 16

at 38; see also Sept. 20 Tr., ECF No. 17 at 64. The parties also

agree that Officer Wright was the only officer who spoke to Mr.

Gibson. Sept. 17 Tr., ECF No. 16 at 39-40; see also Sept. 20

Tr., ECF No. 17 at 60. Finally, the parties agree that none of

                                6
the MPD officers drew or displayed their weapons. Sept. 17 Tr.,

ECF No. 16 at 19; see also Sept. 20 Tr., ECF No. 17 at 61.

    C. Mr. Gibson’s Testimony

    Mr. Gibson also testified at the evidentiary hearing. His

account of the April 2, 2018 encounter differs from Officer

Hiller’s testimony in one crucial respect.

    Mr. Gibson agreed that he had been walking home when the

four MPD officers pulled up beside him in an unmarked car. Sept.

20 Tr., ECF No. 17 at 45, 48-49. He agrees that Officer Wright

pointed a flashlight at him, greeted him, and asked if he had a

weapon. Id. at 49-50. However, Mr. Gibson disputed that Officer

Wright then asked to see his waistband. Instead, Mr. Gibson

testified that Officer Wright ordered “let me see your

waistband.” Id. at 50. In response, Mr. Gibson raised both hands

in the air with his palms facing the officers, as Officer Hiller

agreed the body-worn camera footage showed. See Gov’t’s Ex. 1-B.

Mr. Gibson testified that he raised his arms “because they told

[him] to let them see [his] waistband.” Sept. 20 Tr., ECF No. 17

at 51.

    After Mr. Gibson raised his arms, he testified that Officer

Wright responded by saying “lift your jacket.” Id. At that time,

Mr. Gibson testified that he turned and fled because he knew he

had contraband and was scared to get in trouble. Id. at 51-52.



                                7
He agreed he fell while attempting to evade the officers chasing

him; the firearm fell out of his waistband. Id. at 52.

     The Court’s task is to determine what Officer Wright said

to Mr. Gibson before he fled. Unfortunately, this determination

cannot be made from the best evidence available: the body-worn

camera footage. There is no audio available of the encounter

because none of the four MPD officers activated their cameras

when they came into contact with Mr. Gibson. The officers only

activated their body-worn cameras when they began to pursue Mr.

Gibson on foot. Sept. 17 Tr., ECF No. 16 at 141; Gov’t’s Exs. 1-

A, 1-B. The Court is able to see the encounter, even though the

MPD officers did not activate their body-worn cameras, because

the cameras store visual footage for the two minutes preceding

the moment that the cameras are activated. The camera does not

store the audio for those two minutes. Sept. 17 Tr., ECF No. 16

at 7-8, 14. Therefore, the Court is able to view the short

encounter between the MPD officers and Mr. Gibson but is unable

to hear the dialogue. The officers’ failure to activate their

body-worn cameras upon encountering Mr. Gibson was a violation

of MPD regulations.3 Id. at 84-85.




3 It is undisputed that the MPD officers violated an MPD General
Order by not activating their body-worn cameras upon coming into
contact with Mr. Gibson. See Sept. 17 Tr., ECF No. 16 at 83-85;
Def.’s Exs. 5, 6, ECF Nos. 13-4, 13-5; Oct. 10 Tr., ECF No. 28
at 34 (COURT: “[T]here was not compliance with the body camera
                                8
  III. Standard of Review

    Mr. Gibson argues that the tangible evidence recovered on

April 2, 2018 must be suppressed because the MPD officers seized

him without probable cause or reasonable suspicion in violation

of the Fourth Amendment. See Def.’s Mot. to Suppress (“Def.’s

Mot.”), ECF No. 6.

    “When the government conducts an unconstitutional search or

seizure, the Court must exclude any evidence obtained as the

‘fruit’ of that search or seizure.” United States v. Sheffield,

799 F. Supp. 2d 22, 28 (D.D.C. 2011)(citing Wong Sun v. United

States, 371 U.S. 471, 484 (1963)). Typically, “[t]he proponent

of a motion to suppress has the burden of establishing that his

own Fourth Amendment rights were violated by the challenged

search or seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n.1

(1978)(citations omitted). However, “[w]hen a defendant

establishes that he was arrested or subjected to a search

without a warrant,” as is undisputedly the case here, “the

burden then shifts to the government to justify the warrantless

search.” United States v. Williams, 878 F. Supp. 2d 190, 197

(D.D.C. 2012)(citing, among other omitted authority, Mincey v.

Arizona, 437 U.S. 385, 390–91 (1978)).




directive . . . correct?” GOVERNMENT: “I think a literal reading
of the general order, the answer is probably yes”).
                                9
    Here, the parties agree that the government has the burden

to prove by a preponderance of the evidence that there was no

seizure in violation of the Fourth Amendment. Sept. 20, 2018

Tr., ECF No. 17 at 4-6 (COURT: “So the government has the burden

of proof to prove by a preponderance that Mr. Gibson was not

seized and searched in violation of the Fourth Amendment,

correct?” GOVERNMENT: “Yes. That’s correct, Your Honor”).

  IV.   Analysis

    The Fourth Amendment guarantees that the “right of the

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

searches and seizures, shall not be violated, and no [w]arrants

shall issue, but upon probable cause . . . .” U.S. CONST. AMEND.

IV. Resulting from this guarantee, “all seizures, even ones

involving only a brief detention short of traditional arrest,”

must be “founded upon reasonable, objective justification.”

United States v. Gross, 784 F.3d 784, 786 (D.C. Cir. 2015)

(internal quotations and citations omitted); see also United

States v. Mendenhall, 446 U.S. 544, 551 (1980)(“The Fourth

Amendment's requirement that searches and seizures be founded

upon an objective justification, governs all seizures of the

person, including seizures that involve only a brief detention

short of traditional arrest.”)(quotations and citations

omitted).



                               10
    Not every interaction between law enforcement and private

persons amounts to a seizure within the meaning of the Fourth

Amendment. A seizure arises “[o]nly when the officer, by means

of physical force or show of authority, has in some way

restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1,

19 n.16 (1968). “Whether police action amounts to a ‘show of

authority’ requires the court to ask whether a ‘reasonable

person’ ‘in view of all the circumstances surrounding the

incident, . . . would have believed that he was not free to

leave.’” United States v. Castle, 825 F.3d 625, 632 (D.C. Cir.

2016)(quoting United States v. Wood, 981 F.2d 536, 539 (D.C.

Cir. 1992)). “That ‘reasonable person’ test asks, ‘not . . .

what the defendant himself . . . thought, but what a reasonable

man, innocent of any crime, would have thought had he been in

the defendant's shoes.’” Gross, 784 F.3d at 787 (quoting United

States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007)(per

curiam)).

    Accordingly, the Court must first determine whether there

was a show of authority. A show of authority “does not occur

simply because a police officer approaches an individual and

asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434

(1991). Indeed, “even when officers ‘have no basis for

suspecting a particular individual, they may generally ask

questions of that individual . . . as long as the police do not

                               11
convey a message that compliance with their requests is

required.’” Gross, 784 F.3d at 787 (quoting Florida v. Bostick,

501 U.S. at 435). The United States Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) has outlined

several “factors” that a district court should consider “in

assessing whether an officer’s actions amounted to a show of

authority ‘includ[ing] whether the suspect was physically

intimidated or touched, whether the officer displayed a weapon,

wore a uniform, or restricted the defendant’s movements, the

time and place of the encounter, and whether the officer’s use

of language or tone of voice indicated that compliance with the

officer’s request might be compelled.’” Castle, 825 F.3d at 632-

33 (quoting Mendenhall, 446 U.S. at 554)(alterations omitted).

    Assuming the Court finds there has been a show of

authority, the Court must also find that the defendant submitted

to that authority. California v. Hodari D., 499 U.S. 621, 628-29

(1991); see also United States v. Brodie, 742 F.3d 1058, 1061

(D.C. Cir. 2014); Wood, 981 F.2d at 538, 540-41. Below, the

Court separately considers: (1) whether the government met its

burden to prove there was no show of authority; and (2) whether

the government met its burden to prove there was no submission

to any show of authority.




                               12
     A. The Government Has Not Met Its Burden: Show of Authority

     The MPD officers encountered Mr. Gibson while “ferret[ing]

out illegal firearms,” using a method known as a “rolling

roadblock,” whereby officers “randomly trawl high crime

neighborhoods asking occupants who fit a certain statistical

profile—mostly males in their late teens to early forties—if

they possess contraband[] [d]espite lacking any semblance of

particularized suspicion when the initial contact is made.”

Gross, 784 F.3d at 789 (Brown, J., concurring). It is clear that

this technique is “consistent with the Fourth Amendment,” so

long as the government meets its burden to prove there was no

show of authority such that a reasonable person would not feel

free to leave. Id.4


4 Judge Brown notes that the D.C. Circuit’s jurisprudence in
approving such techniques “perpetuates a fiction of voluntary
consent where none exists and validates a policy that subverts
the framework of Terry v. Ohio, 392 U.S. 1 (1968).” Gross, 784
F.3d at 789 (Brown, J., concurring). She observes that
“[n]othing about the Gun Recovery Unit’s modus operandi is
designed to convey a message that compliance is not required . .
. . [V]iewing such an encounter as consensual is roughly
equivalent to finding the latest Sasquatch sighting credible . .
. .” Id. at 790. Having listened to four days of testimony and
argument, the Court must agree. Indeed, the MPD’s rolling
roadblock practice is so prevalent in the District of Columbia
that individuals living in high-crime neighborhoods sometimes
show MPD officers their waistbands “without [MPD officers] even
saying anything.” Sept. 20 Tr., ECF No. 17 at 31 (Officer Hiller
testimony); see Patrick Madden, D.C.’s Aggressive Confiscation
of Illegal Guns Leaves Residents Feeling Targeted, NPR, Oct. 24,
2018, available at https://www.npr.org/2018/10/24/659980871/d-c-
s-aggressive-confiscation-of-illegal-guns-leaves-residents-
feeling-targeted ("Young black men say they feel targeted and
                               13
    Mr. Gibson argues that he was seized when Officer Wright

purportedly ordered him to show his waistband, see Def.’s Mot.,

ECF No. 6 at 2, and again when Officer Wright purportedly

ordered him to lift his jacket, see Def.’s Suppl. Mem., ECF No.

19 at 17-18. Because Officer Wright allegedly ordered Mr. Gibson

to comply, Mr. Gibson argues that a reasonable person under the

circumstances would not feel free to disregard the command and

leave. Def.’s Suppl. Mem., ECF No. 19 at 15-16. The government

argues that Mr. Gibson was not seized because Officer Wright

merely asked him to see his waistband, an acceptable practice

pursuant to Supreme Court and D.C. Circuit precedent. See

generally Gov’t’s Opp’n, ECF No. 7; Gov’t’s Suppl. Mem., ECF No.

14-1. Thus, Mr. Gibson’s motion to suppress turns entirely on a

factual determination: whether Officer Wright ordered Mr. Gibson




harassed by these stops. To avoid being frisked, they say they
lift up their shirts when police drive by to show they don't
have a gun in their waistband."). Mr. Gibson testified that he
had at least two other encounters with police officers wanting
to see his waistband. Sept. 20 Tr., ECF No. 17 at 52. In each of
those experiences, Mr. Gibson did not feel that he had a choice
as to whether to show his waistband. Id. at 53. As Judge Brown
posited and Officer Hiller confirmed, such encounters would
never occur in Georgetown. See Gross, 748 F.3d at 790 (“[T]ry to
imagine this scene in Georgetown. Would results of that
neighborhood maintain there was no pressure to comply . . . ?”);
Sept. 20 Tr., ECF No. 17 at 30 (Officer Hiller: “we’re not asked
to go to Georgetown”).
                               14
to see his waistband or merely asked Mr. Gibson to see his

waistband.5

          1. Factual Findings

     As described above, Officer Hiller and Mr. Gibson provided

directly conflicting accounts. The Court has considered the

evidence admitted,6 the demeanor and credibility of the

witnesses, and the testimony of Mr. Gibson and Officer Hiller.

     In the final analysis, the Court concludes that the

government has not met its burden because its evidence is

insufficient to prove the seizure was lawful by a preponderance

of that evidence. The government’s only witness—Officer Hiller—

either could not remember or misremembered many of the critical




5 The government argued that the defendant “put out” “new
theories” that were not originally briefed because his initial
motion focused on illegal arrest and the search incident to that
arrest. See Sept. 25 Tr., ECF No. 24 at 4-8. The Court rejects
this argument. It is clear that Mr. Gibson argued in his initial
motion that he was seized “at the point that the police officer
stopped him.” Def.’s Mot., ECF No. 6 at 2. Moreover, the Court
allowed the parties to submit supplemental briefing to remedy
any lack of clarity in the original motion. The government
indeed filed a supplemental response, which the Court has
considered. See Gov’t’s Suppl. Mem., ECF No. 14-1.
6 The Court provisionally admitted several exhibits over

objection. See, e.g., Sept. 17 Tr., ECF No. 16 at 152-53 (COURT:
“I can let it in provisionally, take a look at it, if it’s not
relevant I can disregard it.”); Sept. 20 Tr., ECF No. 17 at 34.
Ultimately, the Court did not rely on any opposed exhibit in
granting Mr. Gibson’s motion, including defense exhibits 8 (Gun
Recovery Unit banner photograph), 9 (banner photo), 10 (photo of
MPD t-shirt), 13 (video of barbershop incident), and 15-16
(records from other proceedings). Thus, the Court need not
resolve such objections.
                                15
facts from the April 2, 2018 encounter. Specifically, Officer

Hiller could not remember the words Officer Wright used when

speaking to Mr. Gibson, the issue central to resolving the

motion. First, Officer Hiller testified that Officer Wright

asked Mr. Gibson “if he minded showing us his waistband.” Sept.

17 Tr., ECF No. 16 at 18. Then, after the Court asked Officer

Hiller what Officer Wright said to Mr. Gibson, Officer Hiller

hedged his answer, testifying that Officer Wright said

“something almost exactly to that effect.” Id. at 56. On cross-

examination, however, Officer Hiller could not confirm the

“exact words used,” id. at 89, and agreed that it was “hard to

remember,” id. at 72; Mot. Hr’g Tr. (“Oct. 10 Tr.”), ECF No. 28

at 23-25 (Oct. 10, 2018)(conceding that Officer Hiller could not

testify to the specific words uttered by Officer Wright); id. at

26 (COURT: “Wasn’t [Officer Hiller] still unclear about the

precise language [Officer Wright] used in his question to Mr.

Gibson?” GOVERNMENT: “I think the answer to that is yes, he did

not say he recalled these words specifically”).

    Accordingly, the government asks the Court to accept

Officer Hiller’s testimony that Officer Wright would never

demand to see a waistband. See, e.g. Oct. 10 Tr., ECF No 28 at

32 (GOVERNMENT: “[W]e can prevail because the Officer said it

was in question form, whatever it was, was in question form.”).

True, Officer Hiller testified that Officer Wright never demands

                               16
to see a waistband because MPD officers are “instructed” to not

make demands: “every time we say that [referring to seeing

waistbands], it’s directed in question form.” Sept. 17 Tr., ECF

No. 16 at 117-18. However, the Court cannot agree with the

government that the actual words used are “not critical” in

light of Officer Hiller’s avowal that Officer Wright would never

demand to see a waistband. Oct. 10 Tr., ECF No. 28 at 36-37, 40.

Moreover, it would be error on the part of the Court to credit

without hesitation Officer Hiller’s testimony and accept the

government’s conclusory argument that “whatever it was” that

Officer Wright said, he “said [it] in question form.”

    Of utmost importance in this case is Mr. Gibson’s Fourth

Amendment right: “[n]o right is held more sacred, or is more

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

the possession and control of his own person, free from all

restraint or interference of others, unless by clear and

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

(quotations and citations omitted). The Court cannot find that

the government met its burden of proof merely by offering

Officer Hiller’s blanket assurance that Officer Wright always

asks questions and never demands. That declaration is

insufficient because Officer Hiller could not recall what

Officer Wright actually said and because—due to the officers’

failure to activate their body-worn cameras during the initial

                               17
encounter—the audio was not captured in the footage. Oct. 10

Tr., ECF No. 28 at 38; see Sept. 17 Tr., ECF No. 16 at 75. A

mere assertion that Officer Wright asks questions rather than

makes demands is unsatisfactory considering Mr. Gibson’s

significant liberty interests and the Court’s solemn duty to

enforce the Constitution.

    Likewise, the Court is troubled by other significant gaps

in Officer Hiller’s memory. For example, Officer Hiller did not

remember Mr. Gibson raising his two arms in the air—the most

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

70-71 (Q: “You remember him having two hands in the air?” A: “I

don’t – I don’t remember”); id. at 154 (COURT: “Do you recall

seeing [Mr. Gibson’s] hands in the air . . .?” A: “I don’t

remember”). Indeed, Officer Hiller did not mention Mr. Gibson

raising his arms during his initial narrative testimony, despite

having viewed the body-worn camera footage in advance to prepare

for his testimony. Id. at 17-20, 67-68. Testimony about Mr.

Gibson’s lifted hands was only elicited on cross-examination.

Id. at 62. Moreover, Officer Hiller also omitted the key fact

that Mr. Gibson had raised his arms in response to Officer

Wright when he prepared and filed under oath a Gerstein Report

the day after arresting Mr. Gibson. See ECF No. 13-1 at 1-2;

Sept. 17 Tr., ECF No. 16 at 59-60. In that detailed document,

Officer Hiller attested that Mr. Gibson responded to Officer

                               18
Wright’s request to see his waistband while “keeping his hands

in his jacket pockets.” ECF No. 13-1 at 1. At no point did

Officer Hiller mention the fact that Mr. Gibson raised his arms

in the air in response to Officer Wright. See id. Although, a

Gerstein Report need not contain “every” detail about a

particular encounter, Oct. 10 Tr., ECF No. 28 at 74, the

omission is problematic, given the overall brevity of the

encounter and the significance of the surrendering act.

    Finally, Officer Hiller could not remember other details

about the encounter. For example, because Officer Hiller did not

remember Mr. Gibson raising his hands in the air, he also could

not remember whether the MPD officers could see Mr. Gibson’s

waistband, a fact significant to the Court’s analysis. Sept. 17

Tr., ECF No. 16 at 154 (COURT: “At the time when [Mr. Gibson’s]

hands were in the air, could you see his waistband?” A: “I don’t

– I don’t remember, Your Honor”). Additionally, the MPD officers

encountered another individual and spoke to that individual

shortly before coming across Mr. Gibson. See Gov’t’s Ex. 1-B at

about 0:24-0:55. When asked about that encounter, Officer Hiller

could not remember who Officer Wright had been speaking to or

what Officer Wright said to that unknown individual, even though

the officers spoke to the individual less than a minute before

encountering Mr. Gibson. Sept. 20 Tr., ECF No. 17 at 20-21, 29

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

                               19
memory of that. Like I said, I – it appeared from the video”).

Finally, Officer Hiller testified that he did not “even

remember” if he saw Mr. Gibson turn around to run away: “I just

remember Officer Mancini got out [of the vehicle], and that’s

why I got out with him. And then once I got out, I saw [Mr.

Gibson] running.” Sept. 17 Tr., ECF No. 16 at 155.

    Clearly, the best evidence of what was said to Mr. Gibson

would have been the body-worn camera footage, had the audio been

captured. As discussed, the audio would have been captured had

any of the four MPD officers activated their cameras upon

“contact” with Mr. Gibson, as required by an MPD General Order.

Sept. 17 Tr., ECF No. 16 at 77-78 (Q: “But you knew by not

having activated [the body-worn camera] the conversation would

not be recorded, correct?” A: “Yes”); Def.’s Ex. 5, ECF No. 13-4

(MPD General Order 302.13). Officer Hiller and government

counsel agreed that the General Order required the officers to

activate their body-worn cameras once Officer Wright began

speaking to Mr. Gibson. Sept. 17 Tr., ECF No. 16 at 84-85; Oct.

20 Tr., ECF No. 28 at 34.

    However, even without the audio, the video footage is the

best evidence of what happened when the MPD officers stopped Mr.

Gibson. The video shows the MPD officers driving down the street

in the dark for about two minutes. See Gov’t’s Ex. 1-B.

Suddenly, the vehicle’s speed decreases and Officer Wright

                               20
immediately takes out his flashlight and shines it at Mr. Gibson

from the front seat. See Gov’t’s Ex. 1-B at about 1:45-1:55.

Moments later, Mr. Gibson raises both hands in the air with his

palms facing the MPD officers at about head height. He holds his

hands in the air for a few seconds, taking about four or five

steps, and then quickly turns and runs away. See id. This

footage is consistent with Mr. Gibson’s testimony and

inconsistent with Officer Hiller’s. And it suggests that the MPD

officers may have directed Mr. Gibson to comply with an order,

as raising one’s hands is a gesture that symbolizes surrender

and compliance.

   In light of the significant memory gaps in Officer Hiller’s

testimony, the lack of evidence in the record regarding the

words Officer Wright said to Mr. Gibson, and the video footage

corroborating Mr. Gibson’s testimony, the Court concludes that

the government has not met its burden to prove there was no show

of authority.

         2. Credibility Findings

    In view of the Court’s finding that the government has not

met its burden, the Court need not make any further credibility

determinations. See Oct. 10 Tr., ECF No. 28 at 42-43 (government

counsel conceding that the government cannot prevail if the

evidence is in equipoise). However, after presiding over two

days of testimony, the Court had the opportunity to observe the

                               21
demeanors of both witnesses and make determinations about

whether each “testified truthfully and also whether the witness

accurately observed, recalled, and described the matters about

which the witness testified.” Criminal Jury Instruction for the

District of Columbia 2.200 (“Credibility of Witnesses”)(“[a

juror] may consider the demeanor and the behavior of the witness

on the witness stand; the witness’s manner of testifying;

whether the witness impresses you as a truthful person; whether

the witness impresses you as having an accurate memory and

recollection; whether the witness has any motive for not telling

the truth . . . .”).

    The Court credits Mr. Gibson’s testimony and finds that it

was more consistent with the body-worn camera footage, the best

evidence available in the case. As previously noted, Mr. Gibson

testified on September 20, 2018. See Sept. 20 Tr., ECF No. 17 at

43-91. His demeanor was calm—even under aggressive cross-

examination—and his answers were forthcoming, consistent, and

straightforward. Moreover, Mr. Gibson exhibited a high degree of

recall. See, e.g., id. at   61-62 (Q: “Would it be possible . . .

you don’t remember every word that Officer Wright said to you

that night. That’d be fair to say, right?” A: “No, I do” . . .

Q: “And if he had said, ‘Can I see your waistband,’ that’s

possible, isn’t it?” A: “No, he didn’t”). Unlike Officer Hiller,

Mr. Gibson did not have any significant memory lapses or revised

                                22
or inconsistent answers during his testimony. Finally, it is

probable and reasonable that Mr. Gibson’s memory is “really

good,” as he testified, because the arrest was a significant

event in his life. Id. at 88.

    Most importantly and as discussed above, Mr. Gibson’s

testimony is corroborated by the body-worn camera footage. He

testified that he lifted his arms in response to a direct

command—“let me see your waistband”—so his jacket would “raise

enough that [the MPD officers] could see the waist of [his] . .

. jeans.” Sept. 20 Tr., ECF No. 17 at 50-51. His gesture is a

probable and reasonable reaction to an MPD officer shining a

flashlight on him while ordering him to show his waistband. See

Gov’t’s Ex. 1-B at about 1:45-1:55.

    The government argues that the Court should not credit Mr.

Gibson’s testimony because he has a stake in the outcome, has a

criminal history, and was on court supervision at the time of

the arrest. See Oct. 10 Tr., ECF No. 28 at 31-32. But the Court

may find Mr. Gibson credible notwithstanding his interest in the

outcome and his prior convictions. See Reagan v. United States,

157 U.S. 301, 305 (1895) (“It is within the province of the

court to call the attention of the jury to any matters which

legitimately affect his testimony and his credibility. This does

not imply that the court may arbitrarily single out his

testimony, and denounce it as false. The fact that he is a

                                23
defendant does not condemn him as unworthy of belief, but at the

same time it creates an interest greater than that of any other

witness, and to that extent affects the question of

credibility.”); see also Criminal Jury Instruction for the

District of Columbia 2.209 (“Defendant As Witness”)(“[A

defendant’s] testimony should not be disbelieved merely because

s/he is the defendant.”). The Court has considered Mr. Gibson’s

stake in the outcome, his criminal history, and the fact that he

readily admitted his criminal past. Sept. 20 Tr., ECF No. 17 at

44-45, 55. Indeed, Mr. Gibson was forthcoming; he admitted that

he ran because he was scared: he knew he possessed contraband,

knew he was under court supervision, and knew he would get in

trouble. Id. at 43. Nothing about his testimony undermines his

credibility.

    Conversely, the Court does not credit Officer Hiller’s

testimony. As thoroughly discussed, Officer Hiller admitted that

he could not remember the words Officer Wright used when

speaking to Mr. Gibson. He also admitted that he could neither

remember Mr. Gibson raising his arms in the air, nor whether Mr.

Gibson’s waistband was visible. Finally, Officer Hiller could

not remember if he saw Mr. Gibson flee. See supra Sec. IV.A.1.

    The Court also observed Officer Hiller’s demeanor on the

stand and found his answers to be evasive and inconsistent. For

example, Officer Hiller originally testified that Officer Wright

                               24
asked Mr. Gibson “if he minded showing us his waistband.” Sept.

17 Tr., ECF No. 16 at 18. He did not originally testify that he

was unsure of the exact words used. As discussed, Officer Hiller

gradually changed his answer until he ultimately admitted that

he could not remember the words used. See, e.g., id. at 72.

Officer Hiller also originally testified that the MPD officers

had not complied with the MPD General Order because they did not

activate their body-worn cameras upon face-to-face contact with

Mr. Gibson. Id. at 77-78, 83-85. However, Officer Hiller later

changed his testimony on redirect, testifying that the MPD Order

may not have been invoked as the officers may not have had

“contact” with Mr. Gibson because they were in a vehicle while

Mr. Gibson was on the sidewalk, despite facing Mr. Gibson and

being in close proximity. Id. at 142-45. Upon further

questioning by the Court, Officer Hiller again changed his

answer, admitting that he would characterize the particular

encounter as a face-to-face contact. Id. at 145 (COURT: “[I]f’s

it’s not face to face, what is it? How would you characterize

this particular moment? . . . .” A: “I guess the best way to

characterize it is face to face.”).

    Officer Hiller was also less forthcoming than Mr. Gibson,

omitting important details from his narrative testimony. Most

significantly, Officer Hiller failed to mention that Mr. Gibson

had raised his arms in response to something Officer Wright

                               25
said. This is a critical fact. Officer Hiller’s omission is

notable because he testified that he had watched the body-worn

camera footage to prepare for his testimony. Id. at 67-68.

Officer Hiller’s testimony was therefore also less consistent

with the body-worn camera footage. Moreover, as previously

discussed, Officer Hiller also failed to note that Mr. Gibson

had raised his arms in his sworn Gerstein report. See supra Sec.

IV.A.1.

    Finally, the Court concludes that portions of Officer

Hiller’s testimony were not plausible. For example, Officer

Hiller testified that he and the other three MPD officers in the

vehicle failed to activate their body-worn cameras while Officer

Wright was speaking to Mr. Gibson because it was not possible at

the time. Id. at 141. He testified that he activated his camera

“as soon as I felt it reasonably possible.” Id. However, Officer

Hiller and Officer Mancini both activated their cameras while

pursuing Mr. Gibson on foot. See Gov’t’s Exs. 1-A, 1-B. Plainly,

it is not plausible that all four officers felt it was not

possible to activate their cameras by pushing a button while

seated in a car listening to a conversation, but did find it

possible to do so while sprinting after a fleeing defendant. The

Court need not infer that the MPD officers were intentionally

not activating their body-worn cameras. That said, the Court is

troubled that all four officers failed to adhere to MPD policy,

                               26
especially because the officers knew that not activating their

cameras would prevent the conversation from being recorded.

Sept. 17 Tr., ECF No. 16 at 78. Indeed, the very purpose of the

“Body-Worn Camera Program,” as set forth in General Order 302.13

is to “promote public trust, and enhance service to the

community by accurately documenting events, actions, conditions,

and statements during citizen encounters . . . and to help

ensure officer and public safety.” Def.’s Ex. 5, ECF No. 13-4 at

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

worn cameras, the MPD officers deprived the Court from reviewing

the best evidence available.

     The government argues that the Court should credit Officer

Hiller’s testimony because, unlike Mr. Gibson, he does not have

a stake in the outcome of the case. Oct. 10 Tr., ECF No. 28 at

27-28. As discussed, the Court has considered the fact that Mr.

Gibson has a significant stake in the outcome of this motion.

However, the Court cannot agree that Officer Hiller has no stake

in the outcome. See id. As government counsel stated, there is

significant “import” to this Court not crediting Officer

Hiller’s testimony. Id. at 76-77. For one, “he’ll be on the

Louis [sic] list7 for the next several years or so.” Id. at 77.




7 The Lewis list is a list containing impeachable information for
government witnesses, including MPD officers. See Humberson v.
U.S. Attorney’s Office for District of Columbia, 236 F. Supp. 2d
                               27
Of course, Officer Hiller’s stake is small compared to Mr.

Gibson’s, but the Court cannot agree that he is a completely

unbiased witness and that his impartiality warrants crediting

his otherwise flawed testimony. Moreover, Officer Hiller’s

testimony is not afforded greater weight because he is a law

enforcement officer. See Criminal Jury Instruction for the

District of Columbia 2.207 (“Police Officer’s testimony”)(“ A

police officer’s testimony should be evaluated by you just as

any other evidence in the case. In evaluating the officer’s

credibility, you should use the same guidelines that you apply

to the testimony of any witness. In no event should you give

either greater or lesser weight to the testimony of any witness

merely because s/he is a police officer.”).

          3. Legal Analysis

     Having found that the government did not meet its burden,

the Court must now evaluate whether ordering Mr. Gibson to “let

me see your waistband” and “lift your jacket” constitutes a show

of authority under the circumstances. In directing district

courts to consider certain factors, the D.C. Circuit confirmed

that “the officer’s use of language or tone of voice” may

indicate that “compliance with the officer’s request might be




28, 29 (D.D.C. 2003). Inclusion on the list may therefore affect
an officer’s ability to testify.
                               28
compelled” in certain circumstances. Castle, 825 F.3d at 632-33

(quoting Mendenhall, 446 U.S. at 554)(quotations omitted).

     Finding there was a show of authority here is consistent

with D.C. Circuit precedent. For example, in Castle, the D.C.

Circuit emphasized that a defendant may be seized when he

complies with directives. The Castle court “agree[d] with the

District Court that [the defendant] was seized when Officer

Oslzak touched Appellant and instructed him to ‘hold on’ and

Appellant complied.” Castle, 825 F.3d at 633. The conclusion was

warranted because “no reasonable person in Appellant’s position

and subject to Officer Olszak’s directives would have believed

that he was free to go on about his business.” Id. In Wood, the

D.C. Circuit found that the defendant was seized when a police

officer followed the defendant into a dark alley and directed

him to “halt right there,” an order that “indicate[d] that

compliance might be compelled.” United States v. Wood, 981 F.2d

536, 540 (D.C. Cir. 1992)(quoting Mendenhall, 446 U.S. at

554)(internal quotations and alterations omitted). In Jones, the

D.C. Circuit agreed that the appellant was “seized for purposes

of the Fourth Amendment” when a police officer approached the

defendant and ordered him to “come here.” United States v.

Jones, 584 F.3d 1083, 1087 (D.C. Cir. 2009).8 In Brodie, the D.C.


8 The seizure in Jones was legal because the police officers had
reasonable suspicion of possible criminal wrongdoing. 584 F.3d
                               29
Circuit agreed that the defendant had been seized when the

police pulled alongside the defendant and ordered him to put his

hands on a nearby car. United States v. Brodie, 742 F.3d 1058,

1061 (D.C. Cir. 2014). Finally, the D.C. Circuit favorably cited

and discussed In re J.F., a District of Columbia Court of

Appeals case, in Castle. See Castle, 825 F.3d at 633-34

(discussing and citing favorably 19 A.3d 304 (D.C. 2011)). In In

re J.F., the District of Columbia Court of Appeals found that a

defendant was seized after MPD officers, who were wearing

tactical vests, pulled up next to the defendant and, after

questioning him whether he heard gun shots, “ordered him to

remove his hands from his pockets.” 19 A.3d at 308-10. The Court

of Appeals concluded that a reasonable person would not have

felt free to ignore the officers’ order. Id. at 309.

    Consistent with Castle, Wood, Jones, Brodie, and In re

J.F., there was a show of authority in Mr. Gibson’s case. The

Court has considered the totality of the circumstances, as it

must, and concludes that a reasonable person would not have

believed he was free to leave. See Castle, 825 F.3d at 632-33.

Specifically, the MPD officers were following Mr. Gibson in an

unmarked vehicle late at night while wearing tactical vests.

When the vehicle pulled up next to Mr. Gibson, Officer Wright



at 1087. Here, however, it is undisputed there was no reasonable
suspicion of criminal activity.
                               30
immediately shined a bright flashlight at him, and issued two,

successive directives: “let me see your waistband” and “lift

your jacket.” Officer Wright’s “use of language” indicated that

“compliance with the officer’s request might be compelled.”

Castle, 825 F.3d at 632-33. In fact, Officer Hiller himself

testified that ordering an individual to “show me your

waistband” would be “authoritative,” as it “wouldn’t have been a

question.” Sept. 17 Tr., ECF No. 16 at 56. The Court sees no

meaningful difference between “show me your waistband” and “let

me see your waistband.” As in Wood, “there are no elements of a

consensual, ‘benign police/citizen encounter’” in Mr. Gibson’s

case. Wood, 981 F.2d at 540 (quoting United States v. Jordan,

958 F.2d 1085, 1087 (D.C. Cir. 1992)).

    The Court disagrees with the government that United States

v. Gross is “on all fours” and therefore, the Court must find

that there was no show of authority. Sept. 20 Tr., ECF No. 17 at

9; see also Gov’t’s Suppl. Mem., ECF No. 14-1 at 3. In Gross,

the D.C. Circuit found that the defendant was not seized within

the meaning of the Fourth Amendment because the government

proved that the law enforcement officers merely asked the

defendant to see his waistband and asked if they could check him

for a gun. Gross, 784 F.3d at 785-86. While noting that “the

‘nature of a police officer’s question[s]’ can bear on whether a

person has been seized,” id. at 788 (quoting Gomez v. Turner,

                               31
672 F.2d 134, 146 (D.C. Cir. 1982)), the Circuit held that

“[q]uestions alone, however, ordinarily do not amount to a ‘show

of authority’ sufficient to constitute seizure,” id. In Gross,

the police officers merely asked the defendant two questions;

they did not “accuse” Gross or order him to comply with a

directive. Id. As discussed above in great detail, the Court

credits Mr. Gibson’s testimony that Officer Wright ordered Mr.

Gibson to comply. Accordingly, the government’s comparisons9 are

unpersuasive.

     Finally, the government contends that a verbal order alone

cannot constitute a show of authority for Fourth Amendment

purposes. See, e.g., Oct. 10 Tr., ECF No. 28 at 5, 7, 12, 26.

The government argues that the MPD officer either had to

approach Mr. Gibson or stop his progress. See id. at 26 (“those

words alone . . . is not enough for a seizure. There has to be

more”). The Court disagrees. See Brodie, 742 F.3d at 1061 (“The

government concedes that the police made a show of authority

when they ordered Brodie to put his hands on the car.”);

Goddard, 491 F.3d at 465 (“Usually, of course, a Terry stop

occurs only when police actually physically restrain a person or

make some verbal statement indicating the person is not free to


9 Likewise, the government’s reliance on United States v. Miller
is also misplaced, Oct. 10 Tr., ECF No. 28 at 4, because Judge
Jackson found that the MPD officers merely asked the defendant
questions, 2016 WL 8416761 at *7-8 (D.D.C. Nov. 11, 2016).
                               32
leave.”)(Brown, J., dissenting)(emphasis added). Moreover, the

Supreme Court implied that even one of the Mendenhall examples

may constitute a seizure by separating show of authority

examples with the word “or”: “examples . . . [include] the

threatening presence of several officers, the display of a

weapon by an officer, some physical touching of the person of

the citizen, or the use of language or tone of voice indicating

that compliance with the officer's request might be compelled.”

Mendenhall, 446 U.S. at 554 (citations omitted)(emphasis

added)(finding that there was no show of authority in part

because “[the agents] did not demand to see the respondent’s

identification and ticket”).

    More importantly, the Court does not base its ruling on

Officer Wright’s order alone. The Court considered the totality

of the circumstances, not just the two successive orders, and

made a factual determination based on several factors that a

reasonable person would not feel free to disregard Officer

Wright’s orders. See Castle, 825 F.3d at 632-33 (directing the

district courts to consider factors such as “the time and place

of the encounter,” whether the officers “wore a uniform,” and

whether the officer’s “use of language or tone of voice

indicated that compliance . . . might be compelled”); see also

supra p. 30-31 (considering the late hour of the encounter, that

the four MPD officers wore tactical vests, that Officer Wright

                               33
shined a bright light at Mr. Gibson, and that Officer Wright

issued two successive orders).

    B. The Government Has Not Met Its Burden: Submission to
       Authority

    When a seizure occurs without physical force, as here, the

Court must also find that the defendant submitted to an

officer's “show of authority.” California v. Hodari D., 499 U.S.

621, 626-28 (1991)(holding that the Mendenhall test was “a

necessary, but not a sufficient condition for seizure—or, more

precisely, for seizure effected through a ‘show of

authority’”). Having found there was a show of authority, the

Court must therefore consider whether Mr. Gibson submitted to

that authority. See Brodie, 742 F.3d at 1061; Wood, 981 F.2d at

538, 540-41. Submission occurs when the defendant complies with

an officer’s order. See Brodie, 742 F.3d at 1061. This

compliance may be “momentary.” Id. Indeed, “it is the nature of

the interaction, and not its length, that matters.” United

States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2007)(citing

Delaware v. Prouse, 440 U.S. 648, 655 (1979) (“[S]topping an

automobile and detaining its occupants constitute a ‘seizure’ .

. . even though the purpose of the stop is limited and the

resulting detention quite brief.”)). Ultimately, “[w]hether

conduct constitutes submission to police authority will depend,

as does much of the Fourth Amendment analysis, on ‘the totality


                                 34
of the circumstances—the whole picture.’” Id. (quoting United

States v. Cortez, 449 U.S. 411, 417 (1981)).

    The uncontroverted evidence—the body-worn camera footage—

reveals that Mr. Gibson indeed complied with Officer Wright’s

order to “let me see your waistband” by raising both hands in

the air while walking alongside the police vehicle. See Gov’t’s

Ex. 1-B at about 1:45-1:55. Mr. Gibson testified that he raised

his hands in the air “because [he] knew if [he] d[id] that, that

[his] jacket will raise enough that they could see the waist of

[] [his] jeans.” Sept. 20 Tr., ECF No. 17 at 50-51. Just as in

Brodie, complying with an officer’s orders provides “no basis”

for classifying his action “as anything other than full

compliance with the officer’s request.” Brodie, 742 F.3d at

1061; see also United States v. Brown, 448 F.3d 239, 245-46 (3d

Cir. 2006)(finding that the defendant had submitted to authority

either by placing his hands on a car or being in the process of

placing his hands on a car when the police implied he was not

free to leave the scene). Indeed, “what may amount to submission

depends on what a person was doing before the show of authority:

a fleeing man is not seized until he is physically overpowered,

but one sitting in a chair may submit to authority by not

getting up to run away.” Brendlin v. California, 551 U.S. 249,

262 (2007). By raising both hands in the air after having had

his hands in his pockets, Mr. Gibson “signal[ed] submission” to

                               35
Officer Wright’s orders. Id. Moreover, the fact that Gibson

later ran away does not “negate a defendant’s initial

submission.” Brodie, 742 F.3d at 1061.

    Indeed, the record is devoid of any evidence to suggest

that Mr. Gibson’s submissive act was inauthentic or that he had

an ulterior purpose in raising his hands in the air. See id. As

discussed, the government put forward no evidence or testimony

that Mr. Gibson’s waistband was not displayed. For example,

Officer Hiller could not remember whether he could see Mr.

Gibson’s waistband. Sept. 17 Tr., ECF No. 16 at 154 (COURT: “At

the time when [Mr. Gibson’s] hands were in the air, could you

see his waistband?” A: “I don’t remember, Your Honor”). Yet, the

government argues that Mr. Gibson did not submit because he

lacked the intent to actually show his waistband, evidenced by

the fact that he did not raise his hands higher than his head.

Oct. 10 Tr., ECF No. 28 at 10; see id. at 14 (“[T]here’s a

difference between raising your hands to your ears to prevent

the officers from seeing the firearm, and raising your hands to

the sky to show the officers your firearm.”). The government

cites Mr. Gibson’s testimony, in which he said that he did not

want the officers to be able to see the firearm. Oct. 10 Tr.,

ECF No. 28 at 10-11 (citing Sept. 20 Tr., ECF No. 17 at 73-74).

However, Mr. Gibson did not testify that he did not comply or

submit; instead, he testified that he ultimately hoped the MPD

                               36
would not see his contraband. Sept. 20 Tr., ECF No. 17 at 73-74

(Q: “You didn’t want [Officer Wright] to see [the firearm], did

you? Correct?” A: “Correct.”). As discussed, Mr. Gibson

testified that he raised his arms to show his waistband, id. at

50-51, and the body-worn camera footage corroborates that

testimony, see Gov’t’s Ex. 1-B. Moreover, it is probable that

Mr. Gibson may have indeed displayed his waistband, as Mr.

Gibson was wearing a short jacket and low-slung jeans. See

Gov’t’s Exs. 1-A, 1-B. Most importantly, however, there is no

evidence to the contrary in the record. The government therefore

failed to meet its burden to prove the seizure was lawful.

    C. Mr. Gibson’s Remedy

    “When the government conducts an unconstitutional search or

seizure, the Court must exclude any evidence obtained as the

‘fruit’ of that search or seizure.” United States v. Dolberry,

No. CR 15-0037, 2015 WL 4751023 at *2 (D.D.C. Aug. 11,

2015)(citing Wong Sun v. United States, 371 U.S. 471, 484

(1963); United States v. Matthews, 753 F.3d 1321, 1324 (D.C.

Cir. 2014) (“The admissibility of all the incriminating evidence

. . . depends upon the validity of the search.”)). “An illegal

search or seizure calls for suppression of evidence only if the

seizure is a but-for cause of the discovery of the evidence (a

necessary condition), and if the causal chain has not become



                               37
‘too attenuated to justify exclusion.’” Brodie, 742 F.3d at

1062-63 (quoting Hudson v. Michigan, 547 U.S. 586, 592 (2006)).

       The government does not argue that the evidence should not

be suppressed because the causal chain has become “too

attenuated” or there was no but-for causation. See generally

Gov’t’s Opp’n, ECF No. 7; Gov’t’s Suppl. Mem., ECF No. 14-1;

Gov’t’s Suppl. Opp’n, ECF No. 22. For example, the government

does not contend, and the record does not suggest, that the

contraband would have been found had the officers not seized Mr.

Gibson. Indeed, the presence of but-for causation is quite

plain. As such, the Court must suppress the fruit of the illegal

seizure: the contraband found on Mr. Gibson on April 2, 2018.

  V.      Conclusion

  The Court finds that the government has not met its burden to

prove there was no show of authority and no submission to that

authority. After carefully considering the evidence presented

and the extensive briefing, the Court concludes that Mr. Gibson

was seized in violation of the Fourth Amendment. As such, the

Court GRANTS the defendant’s motion and SUPPRESSES the tangible

evidence seized on April 2, 2018. An appropriate Order

accompanies this Memorandum Opinion.

  SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            December 21, 2018

                                 38
