UNITED STATES v. TAYLOR (2024)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Timothy Taylor's motion to suppress tangible evidence. Dkt. 18. For the reasons explained below, the Court will DENY the motion.

I. BACKGROUND

The Court held an evidentiary hearing on Defendant's motion on April 1, 2024, which was continued to April 3, 2024. See Min. Entry (Apr. 1, 2024); Min. Entry (Apr. 3, 2024). The evidence offered at the hearing included, inter alia, the testimony of Officer Matthew Zumbrun, one of the Metropolitan Police Department (“MPD”) officers present at Taylor's arrest and footage from his body-worn camera; footage from the body-worn camera of Officer Anel Salkanovic, another MPD officer present at Taylor's arrest; the testimony of Officer Marcus Harmon, yet another MPD officer present at the arrest, and footage for his body-worn camera; and the testimony from Tyrees Smith, a defense investigator, and photographs that he took. This and other evidence shows as follows:

Around 5:30 p.m. on August 11, 2023, MPD Officers Zumbrun, Salkanovic, Billies, and Harmon were in a marked police car patrolling in Washington, D.C.’s seventh district—specifically, in Patrol Service Area (“PSA”) 708. Apr. 1, 2024 Hrg. Tr. (Rough at 4–6) (Zumbrun); Apr. 3, 2024 Hrg. Tr. (Rough at 4–5) (Harmon). Office Zumbrun was driving, Officer Salkanovic sat in the front passenger seat, Officer Billies sat in the rear passenger seat behind Zumbrun, and Officer Harmon was in the rear passenger seat behind Salkanovic. Apr. 1, 2024 Hrg. Tr. (Rough at 6) (Zumbrun); Apr. 3, 2024 Hrg. Tr. (Rough at 5) (Harmon). Although the weather was overcast, it was “still light outside.” Apr. 1, 2024 Hrg. Tr. (Rough at 15) (Zumbrun).

The officers were driving west on Livingston Terrace, S.E., towards 3rd Street, S.E., when Officer Zumbrun noticed Defendant Timothy Taylor. Id. (Rough at 13). When the police car stopped at the intersection of Livingston Terrace and 3rd Street, Officer Zumbrun saw Taylor on the west sidewalk of 3rd Street, conversing with another individual and carrying a satchel. Id. (Rough at 16). At that time, Taylor was facing north and the satchel was on the right side of his body, facing the street. Id. (Rough at 16–18). Officer Zumbrun testified that he “noticed that there was an L shape, a very distinct like popping out L shape from the satchel.” Id. (Rough at 16). Officer Zumbrun had never encountered Taylor before, but he thought the L shape was very distinct, so he told the other officers in the car what he saw. Id. (Rough at 17). The officers “collectively” decided to “get another look” at the satchel, so they turned right and drove along 3rd Street. Id.; see also Apr. 3, 2024 Hrg. Tr. (Rough at 11, 23) (Harmon). Officer Zumbrun first drove north along 3rd Street until he reached a parking lot, where he turned the car around and drove south back to Taylor (on the same side of the street where Taylor was standing). Apr. 1, 2024 Hrg. Tr. (Rough at 17) (Zumbrun); see also Gov't Ex. 8 at 17:25:30–26:40 (Salkanovic BWC).

By the time the officers reached Taylor, two things had changed. First, Taylor had proceeded north along 3rd Street and was now standing closer to the door to the apartment building behind him and further from the crosswalk where Officer Zumbrun had first seen him. Apr. 3, 2024 Hrg. Tr. (Rough at 17) (Harmon). Second, Taylor had moved his satchel to the left side of his body, so it was facing away from the street (and thus away from the officers). Id. (Rough at 6) (Harmon); Apr. 1, 2024 Hrg. Tr. (Rough at 18) (Zumbrun). Officer Zumbrun also noticed that Taylor was standing in a “bladed” stance, which, according to Officer Zumbrun, is often “indicative of attempting to conceal something.” Apr. 1, 2024 Hrg. Tr. (Rough at 18) (Zumbrun).

Officer Zumbrun stopped the police car near Taylor, and Officer Salkanovic rolled down his window and began talking with him. Id. (Rough at 19); Apr. 3, 2024 Hrg. Tr. (Rough at 6) (Harmon). The officers’ body-worn cameras did not record any audio during this portion of the interaction, see Gov't Ex. 8; Gov't Ex. 9; Def. Ex. 1, and none of the witnesses remember precisely how the exchange occurred. The officers do recall, however, that Officer Salkanovic asked Taylor to bend the satchel, gesturing with his hands to demonstrate what he wanted Taylor to do. Apr. 1, 2024 Hrg. Tr. (Rough at 27) (Zumbrun); Apr. 3, 2024 Hrg. Tr. (Rough at 7) (Harmon); see also Gov't Ex. 8 at 17:26:50–53 (Salkanovic BWC). The officers also recall that one of the officers asked, “Do you have a gun in that bag?” Apr. 1, 2024 Hrg. Tr. (Rough at 19) (Zumbrun); Apr. 3, 2024 Hrg. Tr. (Rough at 7) (Harmon). In response, Taylor “deflect[ed],” stating, “I live right here.” Apr. 1, 2024 Hrg. Tr. (Rough at 20) (Zumbrun); Apr. 3, 2024 Hrg. Tr. (Rough at 7) (Harmon).

At that point, three things happened in rapid succession: First, the officers decided to get out of the car and thus activated their body-worn cameras, which, in turn, triggered the audio-recording feature. Gov't Ex. 8 at 17:27:04 (Salkanovic BWC); Gov't Ex. 9 at 17:27:04 (Harmon BWC); Def. Ex. 1 at 17:27:05 (Zumbrun BWC). Second, Officer Harmon stepped out of the police car, followed almost immediately by Officer Salkanovic. Apr. 3, 2024 Hrg. Tr. (Rough at 8) (Harmon); Gov't Ex. 9 at 17:27:04 (Harmon BWC); see also Gov't Ex. 8 at 17:27:05 (Salkanovic BWC). Third, as soon as he saw that the police officers were emerging from the vehicle, Taylor took off running. Apr. 3, 2024 Hrg. Tr. (Rough at 8) (Harmon); Gov't Ex. 9 at 17:27:06 (Harmon BWC). He ran towards the apartment building behind him, dropped a bottle of wine that he was holding, which shattered, ran into the building and up the stairs, tried to enter a doorway but was unable to do so, and was met on the second floor by Officer Harmon, who was in close pursuit. Gov't Ex. 9 at 17:27:09–16 (Harmon BWC); Apr. 3, 2024 Hrg. Tr. (Rough at 12) (Harmon). Seconds later, they were joined by Officers Salkanovic and Billies. Gov't Ex. 8 at 17:27:05–16 (Salkanovic BWC). Officer Zumbrun, who was driving, quickly parked the vehicle and joined the other officers moments later. Def. Ex. 1 at 17:27:05–20 (Zumbrun BWC).

As soon as the officers caught up with Taylor on the second-floor, one of them said, “don't do it!” and either the same officer or another officer repeated that command another three times. Gov't Ex. 9 at 17:27:12–16 (Harmon BWC). Taylor positioned himself in a slightly defensive crouch with one of his arms down by the satchel, partially covering it. Id. While one officer repeated, “stop, stop, stop, stop,” id. at 17:27:14–16, Officer Harmon repeated, “you're stopped, you're stopped, you're stopped, you're stopped,” id. at 17:27:16–22. The officers almost immediately reached for Taylor's arms and began to handcuff him. Id. at 17:27:17–21. Officer Harmon then reached for Taylor's satchel and patted it down, feeling a shape that he described as a firearm with an extended magazine. Id. at 17:27:21–23; Apr. 3, 2024 Hrg. Tr. (Rough at 13) (Harmon). When Officer Zumbrun reached the landing, he inquired: “7A?”—which was the officers’ code for the presence of a firearm. Apr. 3, 2024 Hrg. Tr. (Rough at 14) (Harmon); Gov't Ex. 9 at 17:27:22 (Harmon BWC). Officer Harmon responded, “7A, 7A.” Id. at 17:27:22–23. Officer Harmon then unclipped the satchel strap, took the bag from Taylor, flipped its front flap open, and placed the bag on the ground in front of him while he pointed a flashlight inside. See id. at 17:27:28–44. The gun's extended magazine protruded from the top of the bag. Id. at 17:27:43–47; see also Apr. 3, 2024 Hrg. Tr. (Rough at 15) (Harmon).

Officer Harmon asked Taylor, “You have a license to carry?” Gov't Ex. 9 at 17:27:56 (Harmon BWC). When Taylor did not answer the question, Officer Harmon asked again, “Do you have a license to carry a firearm?” Id. at 17:27:59. Once again, Taylor did not reply. Id. Officer Harmon then reached into the satchel with a gloved hand, removed the firearm, and placed it on top of the bag. Id. at 17:28:05–13. Officer Harmon then took the firearm and satchel outside, placing the satchel on the hood of the police car and holding the firearm in his right hand until he was able to secure it in an evidence bag. Id. at 17:28:54–29:05. After doing so, Officer Harmon observed that firearm was loaded and that there were bullets in the chamber. Id. at 17:31:37–43; Apr. 3, 2024 Hrg. Tr. (Rough at 16) (Harmon). Meanwhile, Officer Salkanovic escorted Taylor, handcuffed, down the stairs and out to the sidewalk, where they waited for transportation to the seventh district police station. Gov't Ex. 8 at 17:28:27–29:06 (Salkanovic BWC).

One of the officers asked if Taylor had identification in his bag, and Officer Harmon then opened the satchel and pulled out a number of items: a clear plastic bag with a paper and small bottle inside, another small bottle with amber liquid that he believed to be PCP based on its distinctive smell, a pack of cigarettes that he believed were for dipping the PCP, two additional tiny vials with amber liquid within the cigarette box, and some keys. Gov't Ex. 9 at 17:29:33–30:12 (Harmon BWC); id. at 17:31:46–32:01; see also Apr. 3, 2024 (Rough at 18) (Harmon). Taylor did not have any identification in the satchel. Gov't Ex. 9 at 17:30:11–12 (Harmon BWC).

Taylor was arraigned on November 17, 2023. Min. Entry (Nov. 17, 2023). On February 19, 2024, he moved to “suppress the use as evidence at trial all tangible objects seized from him” and “any other fruits” of that search and seizure. Dkt. 18 at 1. Prior to the suppression hearing, defense counsel and her investigator, Tyrees Smith, went to the location of Taylor's arrest. They took three photos, which were admitted into evidence as Defense Exhibits 2, 8 and 9. Defense Exhibit 2 shows the view from the sidewalk where, according to defense counsel, Officer Zumbrun first observed Taylor. Defense Exhibit 8 shows the same view but with defense counsel standing on the sidewalk where, she asserts, Taylor stood when the officers stopped him. And Defense Exhibit 9 shows the same view but with defense counsel's right side facing the camera.

II. ANALYSIS

Defendant's motion challenges the legality of the seizure of his person, arguing that the officers lacked the reasonable suspicion needed to conduct a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20–27 (1968). According to the defense, the officers “seized [Taylor] when they made a show of authority to which [he] submitted.” Dkt. 18 at 4. Defendant further argues that “moments after they unlawfully seized” him, the officers “arrested him and conducted a search of his person and his belongings” without probable cause to believe that he had committed a crime and without a warrant. Id. The motion raises three questions: whether the officers had sufficient grounds to conduct a Terry stop; whether they had sufficient grounds to conduct a protective pat down; and whether they had sufficient grounds to make an arrest.

A. Reasonable articulable suspicion for the investigative stop

“[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). An officer making such an investigatory stop, however, “must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch’ ” of criminal activity.” Id. at 123–24 (quoting Terry, 392 U.S. at 27). The Court in Wardlow applied the standard for reasonable suspicion articulated in Terry and held that “unprovoked,” “[h]eadlong flight” in a “high[-]crime area” suffices to justify further investigation through a brief detention. Wardlow, 528 U.S. at 124–26. As the Court explained, “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion” and “[h]eadlong flight—wherever it occurs—is the consummate act of evasion: [i]t is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at 124.

As applied here, the Court is persuaded that the officers had a reasonable, articulable suspicion that Taylor was engaged in criminal activity. The evidence demonstrates that PSA 708 was a high-crime area. See Gov't Exs. 2–7 (incident reports for homicides and other firearm offenses close in time to Taylor's arrest and in a small radius around the location of Taylor's arrest); Apr. 1, 2024 Hrg. Tr. (Rough at 51) (Zumbrun) (describing how PSA 708 was designated as part of D.C.’s summer crime initiative and its THRIVE initiative because of the statistics of violent crime in that area); see also Dkt. 19 at 9–11. The “high[-]crime nature of the neighborhood” is a “contextual consideration” that alone is insufficient to create reasonable suspicion, but in conjunction with other factors, including flight when approached by uniformed police officers (arriving in a marked police car), it is significant. United States v. Castle, 825 F.3d 625, 636–37 (D.C. Cir. 2016); see also United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir. 2001). Here, when the uniformed officers asked Taylor whether he possessed a gun and then stepped out of their marked police car, Taylor immediately fled. Under Wardlow, 528 U.S. at 124–25, his unprovoked flight from uniformed officers in a high-crime area is sufficient to find that the officers’ investigative Terry stop was lawful under the Fourth Amendment.

Taylor's response that his flight was “provoked” is unpersuasive. See Apr. 3, 2024 Hrg. Tr. (Rough at 49). The mere presence of police officers cannot transform the flight into a provoked flight or every flight from officers, including the one at issue in Wardlow, would be “provoked.” There is no evidence in the record suggesting that the officers’ behavior—either while in the car or when opening the car doors—was antagonistic, aggressive, or otherwise threatening. Gov't Ex. 8 & 9; Def. Ex. 1. As the Court explained in United States v. Gorham, the Court may consider flight “unprovoked” when the body-worn camera footage “reveals nothing unusual or aggressive about the approach of the police officers that would have prevented a reasonable person from continuing to ‘go about his business.’ ” 317 F. Supp. 3d 459, 463 (D.D.C. 2018). Here, moreover, the Court need not rely exclusively on Taylor's unprovoked flight. For the reasons discussed below, the Court also credits Officer Zumbrun's testimony that he saw a distinctive L-shaped object in Taylor's satchel, resembling a gun. And the Court also credits the officers’ further testimony that Taylor appeared evasive when one of the officers (while still in the car) asked if he had a gun in his bag, responding “I live right here,” and that (as they approached in the car) Taylor seemed to be “blading” in an apparent effort to keep the officers from observing the satchel. See Apr. 1, 2024 Hrg. Tr. (Rough at 18–20).

The Court, accordingly, finds that the officers did not violate the Fourth Amendment when they seized Taylor to conduct an investigative stop.

B. Reasonable articulable suspicion that Taylor was armed and dangerous

During an investigative stop, a police officer may conduct “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry, 392 U.S. at 27. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. As with a Terry stop, the officer may not rely on an “inchoate and unparticularized suspicion or ‘hunch,’ ” but must, instead, rely on “specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. “When determining whether reasonable suspicion existed,” the Court should “consider the totality of the circumstances” rather than “ ‘separately scrutiniz[ing] each factor relied upon by the officer conducting the search.’ ” United States v. Veney, 444 F. Supp. 3d 56, 65 (D.D.C. 2020), aff'd, 45 F.4th 403 (D.C. Cir. 2022) (quoting Edmonds, 240 F.3d at 59–60). Accordingly, “even though a single factor might not itself be sufficiently probative of wrongdoing to give rise to a reasonable suspicion, the combination of several factors—especially when viewed through the eyes of an experienced officer—may.” Edmonds, 240 F.3d at 60.

Here, the government relies on multiple factors. First, the government argues that Officer Zumbrun observed an L-shaped bulge in the satchel that Taylor was carrying.¹ Second, the government points to Taylor's evasiveness, including the testimony that he moved the satchel from one side to the other, so that it was no longer facing the street; that he was “blading” and standing unnaturally; and that, when asked if he had a gun in his bag, he answered that he lived right there. Finally, the government relies on the evidence that Taylor fled from the officers as soon as they opened the doors of the police car. See Apr. 3, 2024 Hrg. Tr. (Rough at 40–42).

Although the Court must consider the relevant evidence as a whole, Officer Zumbrun's testimony that there was an L-shaped bulge in Taylor's satchel is the most significant evidence offered in support of the government's contention that the officers had reason to believe that Taylor was armed and dangerous. See Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977); Veney, 444 F. Supp. 3d at 65. Officer Zumbrun testified that when he drove up to the stop sign at the intersection of Livingston Terrace and 3rd Street around 5:30 p.m. on August 11, 2023, he noticed “there was an L-shape, a very distinct like popping out L shape from the satchel.” Apr. 1, 2023 Hrg. Tr. (Rough at 16) (Zumbrun). He further testified that he had personal experience “recovering firearms from satchels” and knew that “especially during the summer months, ․ individuals who do attempt to conceal firearms ha[d] been more frequently using a [satchel] as a means to do so” and that the shape “will sometimes cause the firearm to print, essentially push the material of the outside [of] the bag.” Id. (Rough at 16–17).²

Taylor disputes that Officer Zumbrun saw an L-shaped bulge in his satchel and argues that, even if he saw a protrusion of some sort, Officer Zumbrun's testimony that he believed it was a firearm is not credible. See Apr. 3, 2024 Hrg. Tr. (Rough at 50). Taylor makes three arguments. First, he relies on a series of photographs taken by a defense investigator. The photographs attempt to recreate the view that Officer Zumbrun would have had of Taylor, when the police officers first arrived at the corner of Livingston Terrace and 3rd Street, S.E. In two of the photographs, defense counsel is standing near the entrance to the building into which Taylor eventually fled, and she is carrying a satchel. In one of the two photographs, moreover, the satchel contains “an item,” which the investigator testified that he could not see from the corner of Livingston Terrace and 3rd Street, S.E. Def. Ex. 8; Def. Ex. 9. The point of the photographs and testimony was to show that Officer Zumbrun could not have seen an L-shaped bulge in Taylor's satchel from that distance.

For several reasons, this evidence fails to cast doubt on the veracity of Officer Zumbrun's testimony. As an initial matter, the Court notes that the photographs were taken in different conditions and that the “item” contained in counsel's satchel was a book, rather than a gun. The gun that the police officers ultimately recovered from Taylor's satchel, moreover, is quite large, and, indeed, barely fit in the satchel, increasing the likelihood that it would be seen at a distance. See Gov't Ex. 9a. But most significantly, in the photographs offered by the defense, defense counsel is standing almost twice as far from the intersection of Livingston Terrace and 3rd Street, S.E., as Taylor was when Officer Zumbrun first saw him. According to the testimony offered at the suppression hearing, when Officer Zumbrun first saw him, Taylor was standing to the south of the entrance to the building, “right past [the] tree in the clearing between” two “black vehicles past [the] stop sign.” Apr. 3, 2024 Hrg. Tr. (Rough at 17) (Harmon). The officer's body-worn camera footage, then, shows that the referenced “tree” and “stop sign” are almost directly across the street from where Officer Zumbrun claims to have seen the L-shaped bulge in Taylor's satchel. See Gov't Ex. 9 at 17:28:47–49 (Harmon BWC). To be sure, Taylor subsequently moved north on 3rd Street, S.E., to the area where he first spoke with the officers. That area is close to the entrance to the building and close to where defense counsel posed for the photographs. It is not, however, where Taylor was standing when Officer Zumbrun says that he saw the L-shaped bulge in Taylor's satchel. The photographs are thus unhelpful.

Second, separate from the photographs, the defense's investigator testified that he could not see that defense counsel had something in her bag. Apr. 3, 2024 Hrg. Tr. (Rough at 35) (Smith). For the same reasons just discussed, this testimony fails to cast doubt on Officer Zumbrun's testimony. In particular, the investigator testified that he was standing about 99 feet away from defense counsel, while the evidence suggests that Officer Zumbrun was standing approximately half that distance from Taylor at the relevant time. See id. (Rough at 36); Def. Ex. 2; Apr. 3, 2024 Hrg. Tr. (Rough at 17) (Harmon). In addition, the defense investigator candidly acknowledged that he has no experience recovering firearms, let alone recovering a firearm in a satchel, Apr. 3, 2024 Hrg. Tr. (Rough at 36–37) (Smith), while Officer Zumbrun testified that he had participated in over 100 arrests relating to firearms and had “personally recovered firearms from satchels,” Apr. 1, 2024 Hrg. Tr. (Rough at 4, 16) (Zumbrun). “An officer's training and experience enable[s] him to ‘draw[ ] inferences and make[ ] deductions’ from seemingly innocuous facts—‘inferences and deductions that might well elude an untrained person.’ ” Veney, 444 F. Supp. 3d at 65 (internal citation omitted). This is not to say that Officer Zumbrun was better equipped than the defense witness to see at a distance. But it does mean that he was better equipped to make sense of what he saw.

Third, Taylor attempts to discredit Officer Zumbrun's testimony by drawing the Court's attention to his disciplinary record. See Apr. 1, 2024 Hrg. Tr. (Rough at 43–49) (Zumbrun). Defense counsel suggests that Officer Zumbrun has a motive to lie about what he saw because of the MPD's progressive discipline policy—that is, he has previously been disciplined, so he would face a risk of progressively more severe discipline if the MPD were to find that he had effectuated an unlawful search and seizure. Id. (Rough at 49–50). As the government notes, however, Officer Zumbrun would face an equally harsh, if not harsher, penalty if he committed perjury before this Court. Id. (Rough at 53–54). Moreover, as Officer Zumbrun explained, others bore greater responsibility for both of the prior incidents involving Fourth Amendment violations: in the first, he acted under the direction of multiple, more senior officers, and in the second, he was merely present on the scene and swept into a general complaint. Apr. 1, 2024 Hrg. Tr. (Rough at 45–49) (Zumbrun).

Based on the totality of the testimony and evidence, the Court finds that Officer Zumbrun truthfully testified that he observed an L-shaped bulge in Taylor's satchel when he first saw Taylor standing near the tree and two black vehicles parked on 3rd Street, S.E. Cf. United States v. Evans, 98 F.4th 335 (D.C. Cir. 2024) (affirming the district court's determination that the officers’ testimony was credible that they initiated the Terry stop after observing a bulge in defendant's pants that they believed to be a gun). That testimony, moreover, was corroborated by Officer Harmon's testimony, including his testimony that Officer Zumbrun contemporaneously voiced his observation to the other officers in the police car, see Apr. 3, 2024 Hrg. Tr. (Rough at 23) (Harmon); by the body-worn camera's audio that captured Officer Zumbrun telling Taylor, after he was seized, that he had seen the bulge from the firearm in his satchel, Def. Ex. 1 at 17:28:17–19 (Zumbrun BWC); by other body-worn camera footage, which shows Officer Salkanovic gesturing with his hands to request that Taylor bend the satchel, presumably to determine whether, in fact, it contained a gun, as soon as the officers pulled up next to him outside the building, Gov't Ex. 8 at 17:26:50–59 (Salkanovic BWC); see also Apr. 1, 2024 Hrg. Tr. (Rough at 27) (Zumbrun); and by the body-worn camera footage showing that the gun and magazine were quite large and barely fit in the satchel, see Gov't Ex. 9a; Gov't Ex. 9 at 17:28:03–12 (Harmon BWC).

The officers’ reasonable, articulable suspicion that Taylor was armed and dangerous was further confirmed, moreover, by Taylor's behavior. According to the officers’ testimony, which the Court credits, Taylor made efforts to conceal the satchel from the officers’ view. Although he was initially wearing the satchel on his right side, facing the street, after seeing the officers drive up to 3rd Street, Taylor switched the satchel to the left side of his body, so that it was facing away from the street and away from the officers. Apr. 3, 2024 Hrg. Tr. (Rough at 6, 7–8) (Harmon). When Officer Zumbrun stopped the police car near Taylor on the west side of 3rd Street, Taylor was “blading”—that is, standing in an unnatural, offset manner that served to obscure the satchel from the officers’ view. See id. (Rough at 11–12); Apr. 1, 2024 Hrg. Tr. (Rough at 18) (Zumbrun). These behaviors contributed to the totality of the circumstances that informed the officers’ reasonable suspicion. Edmonds, 240 F.3d at 61 (holding that efforts to conceal something after observation of police presence can support reasonable suspicion).

Taylor's evasiveness continued when the officers first engaged him in conversation. As noted above, Officer Salkanovic asked Taylor to bend his satchel bag, Apr. 3, 2024 Hrg. Tr. (Rough at 7) (Harmon); see also Gov't Ex. 8 at 17:26:51 (Salkanovic BWC), but Taylor failed to do so. When one of the officers asked Taylor whether he had “a gun in that bag,” Taylor replied, “I live right here.” Apr. 3, 2024 Hrg. Tr. (Rough at 7) (Harmon). And, against this backdrop, after obscuring the satchel, declining to bend the bag, and declining to indicate whether the satchel contained a gun, Taylor fled as soon as the officers stepped out of the police car. To be sure, Taylor's flight—if considered in isolation—would not support a reasonable suspicion that he was armed and dangerous. See Gorham, 317 F. Supp. 3d at 469. But when a police officer sees what appears to be the outline of gun, the suspect takes steps to hide the item at issue and evades the officers’ inquiries about whether he is armed, and he—then—takes off in a headlong flight from the officers, dropping a bottle of wine on the sidewalk, and not even hesitating to see what has happened to the bottle, the officers have ample reason to believe that they were “dealing with an armed and dangerous individual,” Terry, 392 U.S. at 27.

Taylor objects that the officers did not reasonably suspect that Taylor was “armed” and also “dangerous.” Apr. 3, 2024 Hrg. Tr. (Rough at 50). Taylor argues that because D.C. law allows concealed carry, the suspected presence of a firearm cannot alone justify a pat down. Id. (Rough at 52). Defense counsel was unable, however, to identify a single case holding that the reasonable suspicion that an individual in a high-crime area is armed fails to justify a protective pat down. Id.

For several reasons, moreover, the Court need not wade into the nuances of whether and how the Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), might—at least at times—affect the application of Terry. To start, the D.C. municipal regulations for concealed carry require the licensee to “carry any pistol in a holster on their person in a firmly secure manner that is reasonably designed to prevent loss, theft, or accidental discharge of the pistol.” 24 D.C. Mun. Regs. tit. 24, § 2344.2 (emphasis added); see also Apr. 3, 2024 Hrg. Tr. (Rough at 19) (Harmon). The officers reasonably suspected that Taylor was carrying the firearm in his satchel, not in a holster. In addition, Taylor failed to comply with the affirmative requirements for concealed carry licensees. Under D.C. law:

If a law enforcement officer initiates an investigative stop of a licensee carrying a concealed pistol pursuant to § 22-4506, the licensee, and any other licensee carrying a concealed pistol pursuant to § 22-4506 who is with the stopped licensee at the time of the investigative stop, shall: (1) Disclose to the officer that he or she is carrying a concealed pistol; (2) Present the license and registration certificate; (3) Identify the location of the concealed pistol; and (4) Comply with all lawful orders and directions from the officer, including allowing a pat down of his or her person and permitting the law enforcement officer to take possession of the pistol for so long as is necessary for the safety of the officer or the public.

D.C. Code § 7-2509.04. Once Taylor was stopped on the second-floor landing of the apartment building, he did not disclose to the officers that he was carrying a concealed pistol, he did not present a license and registration certificate, and he did not identify the location of the concealed pistol. The fact that Taylor did not disclose this information to the officers when they stopped him, particularly given that they had, moments before, asked him whether he had a gun, provided the officers with reason to believe that Taylor was carrying the gun unlawfully and that he posed a risk to their safety. Notably, Taylor does not challenge the constitutionality of the D.C. gun laws, nor does he dispute that there is reason to believe that someone who is unlawfully carrying a concealed firearm in a high-crime area poses a danger to officers attempting to conduct a Terry stop. Finally, although not enough standing alone, Taylor's evasive behavior (including his flight) further supports the Court's finding that the officers had reasonable grounds to fear for their safety when they ultimately stopped Taylor on the second-floor landing; Taylor was armed and did not want to be stopped.

The Court, accordingly, finds that the officers had reasonable, articulable grounds to believe that they were dealing with an individual who was armed and dangerous, justifying a protective pat down.

C. Probable cause for an arrest

Taylor also argues that, even if the officers had sufficient grounds to conduct a Terry stop and a protective pat down, they did not have probable cause to effect an arrest. See District of Columbia v. Wesby, 583 U.S. 48, 56–57 (2018). Taylor does not dispute that the officers had probable cause after Officer Harmon opened his satchel and saw the firearm inside; rather, he argues that the officers placed him under arrest as soon as they handcuffed him on the second-floor landing and that they lacked probable cause at that time. Apr. 3, 2024 Hrg. Tr. (Rough at 55). The Court is unpersuaded.

“[T]he use of handcuffs during a Terry stop does not automatically convert it into an arrest since ‘the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.’ ” Hargraves v. District of Columbia, 134 F. Supp. 3d 68, 82 (D.D.C. 2015) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)); see also United States v. Dykes, 406 F.3d 717, 720 (D.C. Cir. 2005). “In deciding what degree of force is permissible, courts must look to ‘the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’ ” Dykes, 406 F.3d at 720. Here, Taylor had attempted to evade arrest by flight and the officers reasonably suspected that he was armed and dangerous. Under these circumstances, the officers’ use of handcuffs constituted a reasonable use of force to effectuate the investigatory stop and did not immediately convert the stop into an arrest. See Womack v. United States, 673 A.2d 603, 609 (D.C. 1996) (“Courts have routinely held the use of handcuffs in the Terry context to be reasonable in situations where suspects attempted to resist police, made furtive gestures, ignored police commands, attempted to flee, or otherwise frustrated police inquiry.”).

As the officers placed Taylor in handcuffs, Officer Harmon conducted a protective pat down, and, at that time, he “[f]elt the presence of a firearm” in the satchel. Apr. 3, 2024 Hrg. Tr. (Rough at 28) (Harmon). He can be heard on the body-worn camera footage immediately saying, “7A, 7A,”—thus reporting to the other officers that Taylor was, in fact, carrying a firearm. Gov't Ex. 9 at 17:27:22–23 (Harmon BWC). There is no uncertainty in his reaction, and, after reviewing the body-worn camera footage, the Court has no doubt that it was obvious to Officer Harmon that Taylor was carrying a firearm. Then, before removing the gun from the satchel, one of the officers asks Taylor whether he has a license to carry, and, rather than respond to that question, Taylor merely argues that the officers lacked probable cause to stop him in the first place. As the D.C. Circuit has observed, moreover, “no warrant is needed for an opening of a container whose contents become known through a lawful touching of the outside.” United States v. Williams, 822 F.2d 1174, 1184 (D.C. Cir. 1987).

The Court, accordingly, finds that, by the time Taylor was placed under arrest, the officers had probable cause to believe that he had the committed a crime and that his arrest and the subsequent, more intrusive search of the satchel (which also revealed the Phencyclidine charged in the indictment) was lawful.

CONCLUSION

For the foregoing reasons, the Court concludes that the officers’ seizure and search of Taylor on August 11, 2023, did not violate the Fourth Amendment. Defendant's motion to suppress, Dkt. 18, is hereby DENIED.

SO ORDERED.

FOOTNOTES

1.   Although Officer Zumbrun observed the bulge in Taylor's satchel and Officer Harmon conducted the pat down of Taylor's satchel, the Court can rely on Officer Zumbrun's observation in evaluating Officer Harmon's action because Officer Zumbrun shared his observation with the other officers in the car. Apr. 1, 2024 Hrg. Tr. (Rough at 17) (Zumbrun); Apr. 3, 2024 Hrg. Tr. (Rough at 23) (Harmon). This distinguishes the case from United States v. Gorham, where the Court declined to adopt a doctrine of horizontal collective knowledge to impute knowledge between officers in a case where there was no evidence that information was ever communicated between the officers. 317 F. Supp. 3d 459, 470–71 (D.D.C. 2018). Here, the question is “whether [Harmon] could have relied on information, conclusions, or a directive relayed to him” by another officer, which distinguishes this case from Gorham. Id. at 470. As the Court explained in Gorham, the cases Whiteley v. Warden, 401 U.S. 560 (1971), United States v. Hensley, 469 U.S. 221 (1985), and United States v. Burnett, 827 F.3d 1108 (D.C. Cir. 2016), all support the conclusion that officers may rely on information that is communicated to them by another officer, at least where the observing officer himself has a reasonable, articulable basis for the observation. Gorham, 317 F. Supp. 3d at 470–71.

2.   Although such a general trend is, standing alone, insufficient to support the search of a satchel, see Hawkins v. United States, 248 A.3d 125, 131 (D.C. 2021) (holding that an “officer's conclusory reference to a ‘trend’ of finding guns hidden in satchels that summer was not supported by details which would allow the court to ‘evaluate the reasonableness of [this] particular search’ ” (alteration in original) (quoting Terry, 392 U.S. at 21)), Officer Zumbrun's experience is relevant in considering the totality of the circumstances.

RANDOLPH D. MOSS, United States District Judge