                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
UNITED STATES OF AMERICA,                 )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                 Case No. 18-cr-00222 (APM)
                                          )
GERALD MEEKINS,                           )
                                          )
      Defendant.                          )
_________________________________________ )

                         MEMORANDUM OPINION AND ORDER

I.     INTRODUCTION

       On July 24, 2019, a grand jury indicted Defendant Gerald Meekins on one count of

Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable

by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1).

See Indictment, ECF No. 1. Defendant now moves to suppress the gun and ammunition he is

alleged to have possessed. The government claims that Defendant tossed the loaded gun to the

ground as officers approached him, thereby abandoning any expectation of privacy in the weapon.

Defendant, on the other hand, argues that the officers lacked reasonable suspicion to seize him and

that his alleged tossing of the weapon occurred after the illegal seizure. This sequence of events,

he contends, makes the gun and ammunition fruit of the illegal seizure and thus subject to

suppression. See Def.’s Mot., ECF No. 12 [hereinafter Def.’s Mot.].

       For the reasons that follow, Defendant’s motion is denied.
II.    BACKGROUND

       A.      Findings of Fact

       The following findings of fact are based on (1) the testimony of Officer Merissa McCaw,

the lone witness called by either party during the suppression hearing held on March 1, 2019;

(2) evidence presented at the hearing, including body-worn camera footage; and (3) evidence

submitted with the parties’ pleadings.

       On June 26, 2018, at approximately 11:50 p.m., Officers Matthew Hiller, Matthew

Mancini, and Merissa McCaw of the Metropolitan Police Department’s (“MPD”) Narcotics and

Special Investigations Division Gun Recovery Unit were on patrol within the Seventh District in

the District of Columbia. See Tr. of May 1, 2019, Hr’g. on Mot. to Suppress, ECF No. 34

[hereinafter Hr’g. Tr.], at 52–54. The officers were assigned to this area as part of the MPD’s

“Summer Crime Initiative,” a program to increase police presence in parts of the city with the most

violent crime. Id. at 50–53. The three officers were wearing plain clothes with outer tactical vests

marked “POLICE” on the front and back, and they patrolled the area in an unmarked car. Id. at

54. Officer Hiller was at the wheel. Id. at 55.

       While driving westbound on the 2000 block of Savannah Terrace, Southeast, the officers

observed Defendant walking alone in the same direction in which they were heading. Id. at 54.

The officers noticed that Defendant was walking with both hands held close to his body and balled

up in front of his waistband. Id. Based on this hand position, Officer Hiller slowed the car and

pulled up next to Defendant. Id. at 54–55. While driving slowly alongside Defendant, through

the open window of the police car and separated from Defendant by a row of parked cars, Officer

Hiller identified himself as a police officer and asked, “Everything good?” Id. at 55, 59. Defendant




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replied, “I’m good,” and continued to walk with his hands balled in front of his waistband. Id. at

55.

        Officer Hiller then asked Defendant, “No guns, right?” Id. Defendant continued to walk

down the street and responded, “I’m just going home.” Id. at 60. Officer Hiller then asked him,

“Do you mind showing me your waistband?” Id. At this point, Officer Hiller cast his flashlight

on Defendant. See Gov’t. Hr’g Ex. 1 (Body Cam Footage from Officer McCaw) [hereinafter Ex.

1], at 1:51. Defendant looked down to his waistband and, while keeping his left hand balled in

front of his waistband, grabbed but did not lift the right side of his shirt. Hr’g. Tr. at 55, 61.

        Officer McCaw testified that the officers, at that time, decided to stop and get out of the

car. Their intent was to do a pat-down of Defendant. Id. at 56, 149. Officer McCaw deemed

Defendant’s behavior suspicious because of his “unusual” hand position and walk, and because he

had not directly answered whether he had a gun and he had refused to show his waistband. Id. at

148. According to Officer McCaw, after Defendant did not lift his waistband, “all of us believed

he had a firearm in his waistband.” Id. at 56.

        As Officers Mancini and McCaw got out of the car, both turned on their body-worn

cameras, which began recording both audio and video. Ex. 1 at 1:57. 1 Neither officer drew a

weapon. Officer McCaw testified that, while rounding a parked SUV, she momentarily lost sight

of Defendant and that, upon seeing him again, Defendant had his shirt pulled up with his hands in

the air. Hr’g Tr. at 55. While walking towards Defendant, Officer Mancini asked, “Just no gun

on you, boss?” Id. at 55–56; Ex. 1. at 2:03. 2 With Defendant now having stopped, Officer Mancini

1
  The body-worn camera commences audio recording only once officers turn the camera on. As for video, once turned
on, the body-worn camera captures for later review contemporaneous events and the two minutes prior to activating
the camera. Thus, here, the entire encounter with Defendant is captured on video, but the dialogue between Defendant
and the officers begins only when the officers turned on the body-worn camera upon leaving the car.
2
  Defendant suggested on cross-examination that Officer Mancini told Defendant to “hold up,” but Office McCaw
denied that Officer Mancini said those words. Id. at 137–38. The court credits Officer McCaw’s testimony. Also,


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continued to approach and said to Defendant, “Can you spread your legs, I’m going to pat you

down real quick.” Hr’g. Tr. at 115, 138; Ex. 1 at 2:08. Officer McCaw testified that throughout

the encounter, the officers and Defendant remained calm, and the video recordings confirm this.

Hr’g. Tr. at 59, 96, 102.

         Officer Hiller initially remained in the car. After Officers McCaw and Mancini got out

and began walking towards Defendant, Officer Hiller saw Defendant reach into his waistband, pull

out an object, and make a tossing motion down and away from his body. Id. at 56. Officer Hiller

then left the car, walked in front of a parked car, pointed his flashlight towards the ground where

he had seen Defendant make a tossing motion, and saw what he immediately identified as a

firearm. Id. Officer Hiller then voiced the Unit’s code word for the presence of a firearm, walked

towards Defendant, and placed him into a “bear hug,” a maneuver designed to prevent the suspect

from moving or being able to access a firearm. Id. at 101–02; Ex. 1 at 2:11. Officers then

handcuffed Defendant and placed him under arrest, and Hr’g. Tr. at 102; Ex. 1 at 2:14, and later

seized the firearm, a 9-millimeter handgun loaded with one round of ammunition in the chamber

and 12 rounds in the magazine. Hr’g. Tr. at 70.

         B.       Procedural Background

         Defendant filed his motion to suppress physical evidence on December 14, 2018, to which

the Government responded. Def.’s Mot.; Gov’t Opp’n, ECF No. 13; Gov’t Am. Opp’n, ECF No.

17 [hereinafter Gov’t Opp’n]. At the court’s request, Defendant submitted supplemental briefing

in March 2019. See Def.’s Reply to Gov’t Opp’n., ECF No. 18 [hereinafter Def.’s Reply]. The

court held an evidentiary hearing on May 1, 2019. See Minute Entry for May 1, 2019. At the

hearing, the court heard from one of the officers who arrested Defendant, Officer Merissa McCaw,


Defendant did not raise this as a contested issue of fact in his post-hearing brief. See Def.’s Post-Hearing Mem., Def.’s
Post-Hearing Reply.

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and viewed video and audio footage from the body-worn cameras of Officers McCaw, Hiller, and

Mancini. Hr’g. Tr. at 71–72. This footage was admitted into evidence as Government’s Exhibits

1, 2, and 3, respectively. Id. Both parties submitted supplemental briefings following the hearing.

See Gov’t Post-Hearing Supp. Opp’n, ECF No. 37 [hereinafter Gov’t Post-Hearing Opp’n.]; Def.’s

Post-Hearing Supp. Mem., ECF No. 38 [hereinafter Def.’s Post-Hearing Mem.]; Gov’t Post-

Hearing Supp. Reply, ECF No. 39 [hereinafter Gov’t Post-Hearing Reply]; Def.’s Post-Hearing

Supp. Reply, ECF No. 40 [hereinafter Def.’s Post-Hearing Reply].

III.   CREDIBILITY DETERMINATION

       As stated above, at the evidentiary hearing, the government presented the testimony of

Officer McCaw. Defendant presented no witnesses but did cross-examine Officer McCaw on a

number of issues. In its post-hearing briefings, Defendant does not contest any issues of fact.

See generally Def.’s Post-Hearing Mem.; Def.’s Post-Hearing Reply. Nor does his post-hearing

submission assert that Office McCaw’s testimony was not credible.

       Defendant argued at the evidentiary hearing that a prior adverse credibility finding against

Officer Hiller, who was at the scene but did not testify at the hearing, should bear on the credibility

of Officer McCaw. Hr’g Tr. at 9–12. He renews this argument in his post-hearing brief, and he

adds that adverse credibility findings against Officer John Wright, an officer who was “assigned

to [Officer McCaw’s] car” but was not present for Defendant’s arrest and who did not testify at

the hearing, should also be considered. Def.’s Post-Hearing Mem. at 1.

       The court credits the testimony of Officer McCaw, because it finds her account credible,

unrefuted, and corroborated by the video evidence. With regard to Defendant’s argument that the

court should take account of adverse credibility findings pertaining to non-testifying officers, it is




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a “bridge too far to somehow impute that taint to the government” when neither officer in question

testified. Hr’g. Tr. at 24.

IV.     DISCUSSION

        The precise time of Defendant’s seizure in this case dictates whether he had a valid Fourth

Amendment interest in the recovered weapon. “When an individual abandons property, he forfeits

any reasonable expectation of privacy in it.” United States v. Lewis, 921 F.2d 1294, 1302 (D.C.

Cir. 1990); see also California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that “cocaine

abandoned while [defendant] was running [and before he was seized] was . . . not the fruit of a

seizure” and could not be suppressed). However, if there is a “direct nexus” between an illegal

seizure and the act of abandoning the property, the property remains subject to suppression.

United States v. Wood, 981 F.2d 536, 541 (D.C. Cir. 1992).        For example, in United States v.

Wood, the D.C. Circuit affirmed suppression of a gun dropped by a defendant after police had

unlawfully ordered him to “halt right there.” Id. at 537. Although the defendant had discarded the

weapon, the court held that “a direct nexus [existed] between the illegal seizure and the recovery

of the weapon.” Id. at 541. Similarly, in United States v. Brodie, the defendant submitted to a

show of authority and placed his hands on a car. 742 F.3d 1058, 1060–61 (D.C. Cir. 2014). The

defendant then ran and, while doing so, discarded three weapons. See id. The court found the

defendant’s seizure unlawful and ordered the weapons suppressed, even though they were

abandoned during flight, because their recovery was not sufficiently attenuated from the initial

illegal stop. See id. at 1063–64. As these cases demonstrate, the D.C. Circuit will “not treat an

item as voluntarily abandoned when a person discards it ‘due to the unlawful activities of police

officers, as where the disposal was prompted by police efforts to make an illegal arrest or search.’”




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United States v. Griffith, 867 F.3d 1265, 1279 (D.C. Cir. 2017) (quoting 2 Wayne R. LaFave et

al., Criminal Procedure § 3.2(h) (4th ed. 2016)).

       Defendant contends he was seized when, “after the officers’ questions [were] not answered

and their request for consent to search was rebuffed, they escalate[d] the encounter by exiting their

car . . . thereby conveying that they will not take no for an answer.” Def.’s Post-Hearing Reply

at 1. Thus, he contends, when the officers left the car, they were “communicating that he was no

longer free to ignore them,” and he “submitted by stopping,” before discarding the gun. Def.’s

Post-Hearing Mem. at 5. The government, on the other hand, contends Defendant’s seizure

occurred later in time. Specifically, it argues that law enforcement stopped Defendant only when

Officer Mancini asked Defendant to spread his legs for a pat down, which occurred after Defendant

tossed the gun. See Gov’t Post-Hearing Opp’n. at 9.

       This case is similar to, but not on all fours with, United States v. Gross. Like this case,

Gross involved officers of the Gun Recovery Unit questioning a suspect walking on a sidewalk

about possessing a gun while driving alongside him in an unmarked police car. 784 F.3d 784,

785–86 (D.C. Cir. 2015). While in the car, the officers identified themselves as police, asked the

defendant if he had a gun (“[H]ey, it is the police, how are you doing? Do you have a gun?”), and

asked to see his waistband (“Can I see your waistband?”). Id. at 785. The defendant did not

respond but lifted his jacket slightly to show his left side. Id. at 785–86. The officers then stopped

the car and one of them got out and asked whether he could search the defendant (“[H]ey man, can

I check you out for a gun?”). See id. at 786. The defendant then ran and, once caught, an officer

frisked him and found a gun in his waistband. See id. The Circuit concluded that the officers’

questioning of the defendant while they remained in the car did not constitute a seizure; thus,




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recovery of the gun after he fled was not unlawful. Id. at 788. So, just as in Gross, Defendant was

not seized while officers questioned him about a gun while driving alongside of him.

       The court in Gross did not, however, answer the question presented here: Is a suspect seized

the moment officers get out of a car and ask whether the suspect will submit to a search, after

initially questioning the suspect from the car about his possession of a weapon? See id. (stating

that defendant did not challenge the district court’s finding that the “circumstances did not

subsequently ripen into a seizure when [the officer] exited the police car and asked if he could

check [the defendant] for a gun”).

       The Circuit addressed the question left unanswered in Gross in United States v. Miller,

albeit in an unpublished disposition. See 739 Fed. App’x 6 (D.C. Cir. 2018). Miller likewise

involved Gun Recovery Unit officers driving an unmarked car while questioning whether a suspect

had a gun. See United States v. Miller, No. 16-CR-0072 (KBJ), 2016 WL 8416761, at *2 (D.D.C.

Nov. 11, 2016), aff’d, 739 Fed. App’x 6 (D.C. Cir. 2018). The officers drove alongside the suspect

and a companion as they walked down the sidewalk, identified themselves as police, and asked if

the men were carrying any firearms. Id. The defendant replied, “no,” lifted the back of his jacket

to reveal his rear waistband, and continued walking. Id. Two of the officers then left the car and

approached the defendant asking, “Hey man can I talk to you?” and “Hey, man, do you have any

firearms on you?” Id. In response, the defendant turned away from the officers and again showed

his rear waistband. Id. at *3. The officers asked the defendant to turn around and again asked

whether he had a gun, at which point he confessed he did. Id. The district court concluded that

Miller was seized neither when officers called to him while inside the car nor when they got out

of the car. Id. at *7–9. He became seized, the trial court held, only when the officer physically

restrained him in a chest-to-chest bear hug to effectuate the arrest. Id. at *9–10. The Circuit



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agreed. It held that “the district court’s determination that Miller was not seized when an officer

exited the vehicle and questioned him is consistent with our precedents.” Miller, 739 Fed. App’x

at *7.

         Miller is virtually indistinguishable from this case. In both cases, Gun Recovery Unit

officers asked the defendants questions while driving slowly in a car, including requesting that the

defendant show his waistband to prove he is not carrying a weapon. The officers in both cases

then left their cars, approached the defendant, and continued to ask questions about gun possession.

Those facts did not give rise to a seizure in Miller. So, too, here.

         This court shares the concern, expressed by Judge Brown in Gross, that not treating these

types of encounters as “seizures” under the Fourth Amendment means that individuals who

encounter Gun Recovery Unit officers often face a false choice: “‘voluntarily’ acquiesce to the

officers’ request or [] have any reaction to the officers’ inquiries—regardless of how objectively

benign—serve as the factual predicate justifying a Terry search.” Gross, 784 F.3d at 791 (Brown,

J., concurring). This court is not at liberty, however, to depart from the Circuit’s holdings in Gross

and Miller. Under those precedents, Defendant was not seized until Officer Mancini ordered him

to spread his legs to prepare for a pat down. He had tossed the gun by this point, thereby forfeiting

any privacy interest in it. Defendant’s motion is therefore denied.

V.       CONCLUSION AND ORDER

         For the foregoing reasons, Defendant’s motion to suppress physical evidence, ECF No. 12,

is denied.




Dated: August 13, 2019                                Amit P. Mehta
                                                      United States District Court Judge



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