RUDOLPH CONTRERAS, United States District Judge.
Before the Court is Defendant Richard Devaugh's supplemental motion to suppress evidence, ECF No. 25. The relevant events occurred on January 14, 2019, when Mr. Devaugh was being surveilled by an undercover officer outside Strand Liquors in Northeast Washington, D.C. Based on the undercover officer's observations, a team of responding officers approached Mr. Devaugh, ordered him out of his vehicle, and detained him. Mr. Devaugh moves here to suppress drugs, a weapon, and other evidence obtained during the encounter. For the reasons explained below, the Court will grant the motion to suppress.
An initial motion to suppress evidence was filed on April 5, 2019. After Mr. Devaugh was appointed new counsel, the Court allowed a round of supplemental briefing and held a suppression hearing on November 4, 2019. At the hearing, the undercover officer (Officer Turner) and one of the responding officers (Officer Love) both testified; the Court found both officers credible and gives their testimony substantial weight.
Testifying first was Officer Turner, an undercover officer currently assigned to the Narcotics Enforcement Unit of the Metropolitan Police Department (MPD). Suppression Hr'g Tr. ("Tr.") at 7, ECF No. 36. On January 14, 2019, he was conducting undercover observations from an unmarked vehicle parked on Division Avenue near the intersection with Foote Street, directly across the street from Strand Liquors. Id. at 9-10, 12. He was alone in his vehicle, but a group of other officers, including a so-called "arrest team," was working in coordination with him nearby. Id. at 12, 17. According to Officer Turner, this area—near Marvin Gaye Park—was well-known for high levels of drug activity. See id. at 8 ("So specifically at Division and Foote it's mainly known for heroin, but also crack cocaine, and they do sell marijuana up there."). Officer Turner had previously been called for "hundreds" of assignments there and had conducted "numerous" controlled purchases in the area. Id.
While seated in his vehicle around 3:00 p.m., Officer Turner saw someone—later identified as Mr. Devaugh—engage in a hand-to-hand transaction with an alleged buyer while the two were standing near a grey SUV parked nearby on Foote Street. Specifically, the buyer approached Mr. Devaugh, spoke with him briefly, handed him some money, and received in return "some small object or objects," which Officer Turner admitted he was unable to identify. Id. at 13-15. The buyer put the object(s) in a napkin, walked down Division Avenue, and entered Strand Liquors. Id. at 15-16. Mr. Devaugh also walked in that same direction, but remained outside the store. Id. at 16.
After observing the transaction, Officer Turner used his cell phone to call his superior officer, Sergeant Cardinal. Id. at 17. Officer Turner "was giving him updates, lookouts," which Sergeant Cardinal was in turn "transmitting to the arrest team" via radio. Id. Officer Turner announced: "Look, I have a drug transaction going down. I have a buyer and a dealer." Id. He gave descriptions of both individuals and relayed that the buyer had entered the store while the dealer was standing out front. Id.
At that point, a car travelling down Division Avenue pulled alongside Officer Turner's vehicle and came to a stop. Id. at 17-18. The driver rolled down his window, looked at Mr. Devaugh, and said "[t]he Feds are up the street." Id. at 18. Mr. Devaugh then walked back to the SUV, a fact which Officer Turner in turn relayed to Sergeant Cardinal. Id. at 19. As Mr. Devaugh was walking to the vehicle, Officer Turner noticed him "adjust[ing] his waistband area several times," which suggested to Officer Turner that he was "carrying a weapon or illegal firearm." Id. Mr. Devaugh entered the driver's side of the vehicle and remained behind the wheel until the arrest team arrived. Id. at 20.
Officer Love was a member of that arrest team. Id. at 91. As he testified, the team received a radio call from Sergeant Cardinal describing "two individuals that were believed to be involved in a drug transaction." Id. They responded to the intersection of Foote and Division, where they found Mr. Devaugh seated behind the wheel of the SUV. Id. at 92.
The actual encounter between Mr. Devaugh and the arrest team was recorded by multiple officers' body cameras. Officer Love's vehicle—an unmarked cruiser also carrying Officers Gabster, Lyon, and Banks—pulled in front of Mr. Devaugh's parked SUV. Id. at 91-93; Love BWC at 2:02-2:08. The officers turned on the unmarked cruiser's lights, exited the vehicle,
At this point (approximately ten seconds after Officer Gabster first expressly ordered him to open the door), Mr. Devaugh complied and exited the vehicle. Love BWC at 2:28-2:31. Officer Gabster appears to begin placing Mr. Devaugh in handcuffs, taking hold of Mr. Devaugh's left arm and telling him twice to "[p]ut your hands behind your back"; at the same time, Office Banks grabbed Mr. Devaugh's right arm or jacket sleeve. Id. at 2:31-2:33; Gabster BWC at 2:25-2:26. As he was being restrained by the two officers, Mr. Devaugh tossed away a black plastic bag, which flew some distance over the parked police SUV. Love BWC at 2:31-2:33; Gordon BWC at 2:08-2:10. The officers then finished placing Mr. Devaugh in handcuffs—though with some difficulty, as Mr. Devaugh seemed to offer some resistance. Love BWC at 2:33-3:19. As Officer Love testified, a subsequent search of Mr. Devaugh's grey SUV revealed a firearm (a .44 Magnum), a digital scale, and some quantity of crack cocaine and opiates. Tr. at 98. The discarded black plastic bag was also recovered and found to contain marijuana. Id. at 96-97.
Two things are not meaningfully contested by the parties. First, Mr. Devaugh was undoubtedly "seized" within the meaning of the Fourth Amendment when he was surrounded by the arrest team and complied with their order to open his door. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that a seizure requires the application of physical force or submission to an assertion of authority). Second, the police did not have probable cause to arrest Mr. Devaugh until he tossed away the plastic bag.
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court "held that an 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, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). For such a stop to be reasonable, "[t]he officer must be able to articulate more than an `inchoate and unparticularized suspicion or "hunch'" of criminal activity." Id. at 123-24, 120 S.Ct. 673 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868).
In reviewing whether a stop was justified, courts are "not limited to what the stopping officer says or to evidence of his subjective rationale; rather [courts] look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious." United States v. McKie, 951 F.2d 399, 402 (D.C. Cir. 1991) (per curiam). In doing so, courts are not to engage in a "divide-and-conquer analysis" that asks whether each fact is "susceptible to an innocent explanation." United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); see also United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir. 2001) ("[E]ven 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."). The government ultimately bears the burden of demonstrating that reasonable suspicion for a stop existed. See United States v. Castle, 825 F.3d 625, 630 (D.C. Cir. 2016).
In this case, Officer Turner testified to a variety of factors justifying an investigatory stop. First, he explained that the area was well known for a high level of drug activity. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673 ("[W]e have previously noted the fact that the stop occurred in a `high crime area' among the relevant contextual considerations in a Terry analysis."); Edmonds, 240 F.3d at 60 ("[T]he fact that a given locale is well known for criminal activity will not by itself justify a Terry stop; but it is among the various factors that officers may take into account."). While Officer Turner did not provide comparative statistics or define the "area" with block-by-block rigor, he explained that, over his sixteen years as an undercover officer, he had conducted a large number of assignments, including controlled buys, in the neighborhood. Tr. at 8, 62. Additionally, when pressed on the issue during cross-examination, he did identify areas in his assigned district that he would not describe as a high crime. Id. at 62-63. He also defined "high crime" with some specificity. See id. at 63 ("Um, you have—well, high crime or high drug? It's a difference because you have areas that are high crime but not necessarily drugs. But as far as narcotics, you have some areas that are not high narcotics areas."). In other words, Officer Turner did not merely suggest that the area "suffers from general, undifferentiated `crime,' but that it is home to the precise type of infraction[]" that he suspected Mr. Devaugh of committing. Edmonds, 240 F.3d at 60.
Second, Officer Turner observed a hand-to-hand transaction between Mr. Devaugh
Third, Officer Turner testified that Mr. Devaugh "walked to his vehicle" after being informed by the passerby of police presence in the area. Tr. at 18. This is considerably less probative than the "headlong flight" from police that the Supreme Court has characterized as the "consummate act of evasion." Wardlow, 528 U.S. at 124, 120 S.Ct. 673. And normally, an "individual has a right to ignore the police and go about his business." Id. at 125, 120 S.Ct. 673. Perhaps the most that can be said is that "[t]he context in which a person seeks to avoid contact with a peace officer is important." United States v. Monsivais, 848 F.3d 353, 360 (5th Cir. 2017). In this context, Mr. Devaugh's response to a warning from the passing driver is not particularly inculpatory; like the hand-to-hand exchange, it is susceptible to innocent explanation. But it is another data point that Officer Turner was entitled to consider in light of his experience.
Finally, Officer Turner observed Mr. Devaugh, "as he was walking back to that gray SUV, adjust his waistband area several times." Tr. at 19. As Officer Turner clarified, "[b]ecause of my experience and training as a police officer, that's common for somebody who's carrying a weapon or illegal firearm in their waistband area, to adjust their waistband area." Id. While Officer Turner's description of Mr. Devaugh's movement was not particularly specific, this kind of observation has been found relevant in reasonable suspicion and probable cause analyses. See, e.g., United States v. Moore, 75 F.Supp.3d 444, 449 (D.D.C. 2014) (defendant observed "adjust[ing] something around his waistband, which seemed consistent with the characteristics of an armed gunman") (quotation omitted); United States v. Lovelace, 357 F.Supp.2d 39, 44 (D.D.C. 2004) (defendant observed "mak[ing] reaching motions towards his waistband," which supported "a reasonable suspicion that [defendant] was secreting a weapon.").
Considering "the totality of the circumstances —the whole picture," United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Court is comfortable concluding that these factors establish reasonable suspicion for a stop. See Wardlow, 528 U.S. at 123, 120 S.Ct. 673 (explaining that reasonable suspicion requires only a "minimal level of objective justification for the stop"); see also United States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007) (noting that the standard for reasonable suspicion is "significantly lower" than that of probable cause).
There is one additional wrinkle, however. Based on the testimony at the hearing, it is doubtful that all four of these circumstances establishing reasonable suspicion were actually communicated (1) by Officer Turner to Sergeant Cardinal and (2) by Sergeant Cardinal to the arrest team. For example, when Officer Turner was asked if he told Officer Cardinal about the drive-by warning ("[T]he Feds are up the street"), he was relatively certain that he had not:
Tr. at 82. Similarly, Officer Turner was unsure if he had mentioned anything about the waistband adjustment. He focused instead on the basic details: the occurrence of a transaction, the parties' appearance, and their changing locations:
Tr. at 71-72.
In certain circuits, the potential lack of communication of these specific details would be of no moment, thanks to an aggressive interpretation of the so-called collective knowledge doctrine. See United States v. Cook, 277 F.3d 82, 86 (1st Cir. 2002) ("[C]ommon sense suggests that, where law enforcement officers are jointly involved in executing an investigative stop, the knowledge of each officer should be imputed to others jointly involved in executing the stop."); United States v. Woods, 544 F.2d 242, 260 (6th Cir. 1976) ("[W]e do mutually impute the knowledge of all the agents working together on the scene and in communication with each other."); United
Our Circuit has not yet endorsed a particular interpretation of the collective knowledge rule. It has noted in passing that "[p]robable cause may be based on the `collective knowledge of the police.'" United States v. Burnett, 827 F.3d 1108, 1114 (D.C. Cir. 2016) (quoting United States v. Hawkins, 595 F.2d 751, 752 n.2 (D.C. Cir. 1978)). But as Judge Moss recently observed, "read in context, this assertion [in Burnett] merely reflects the well-settled rule ... that an officer may act on a request to stop and search a suspect made by another officer—or another law enforcement agency—who had probable cause to justify the stop and search." United States v. Gorham, 317 F.Supp.3d 459, 471 (D.D.C. 2018); see also United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (holding that police officers could rely on a "flyer or bulletin" produced by other officers in order to establish probable cause, even though the arresting officers were not "themselves aware of the specific facts which led their colleagues to seek their assistance").
Here, as the passages quoted above illustrate, the record is unfortunately less than clear about which information was relayed to Sergeant Cardinal and the arrest team—and when. But there is at least some indication that Officer Turner himself recommended that the arrest team move in, based on his own firsthand observations. See Tr. at 75 ("[I'm g]iving them lookouts, and then at which point when I'm, like, you know, `Move in, move in,' he's [Sergeant Cardinal] telling them to move in."). There was also this exchange:
Tr. at 87-88 (emphasis added). This language suggests that it was Officer Turner's decision to investigate further, after he observed Mr. Devaugh returning to his vehicle. And this scenario—where the observing officer, though without necessarily articulating the specific facts or circumstances giving rise to his or her suspicions, reasonably suggests that fellow officers investigate —is enough to satisfy even the most restrictive version of the collective knowledge rule. See Burnett, 827 F.3d at
"The point at which an investigative stop becomes an arrest is not marked with a bright line." Hall v. District of Columbia, 867 F.3d 138, 153 (D.C. Cir. 2017). But generally, "[a] Terry stop must (1) `last no longer than is necessary to effectuate the purpose of a stop' and (2) employ `the least intrusive means reasonably available to verify or dispel the officer's suspicion.'" United States v. Smith, 373 F.Supp.3d 223, 238 (D.D.C. 2019) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)). In other words, "a stop that is unduly prolonged or intrusive transforms from an investigative stop into an arrest requiring probable cause." Hall, 867 F.3d at 153.
As these cases make clear, determining whether a particular stop is unreasonably intrusive is not a precise science. Of course, "the right to make ... [an] investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "In examining the reasonableness of the force used in making a stop, courts have considered such factors as the time of day, the `high crime' nature of the area, a tip that the suspect may be armed, furtive hand movements, flight or attempted flight, a pressing need for immediate action, and the involvement of drugs." United States v. Clark, 24 F.3d 299, 302 (D.C. Cir. 1994).
Here, the Court concludes that there were a number of factors, which, taken together, transformed the stop into an arrest.
First, Officer Lyon's display of his firearm. "The use or display of arms may, but does not necessarily, convert a stop into an arrest." United States v. White, 648 F.2d 29, 34 (D.C. Cir. 1981); see also Dunaway v. New York, 442 U.S. 200, 215 & n.17, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (citing officers' drawn guns as one of "the trappings of a technical formal arrest").
Second, the officers' use of force to restrain Mr. Devaugh, including the use of handcuffs. While the introduction of handcuffs does not "automatically" take an encounter beyond the bounds of a Terry stop, Hargraves v. District of Columbia, 134 F.Supp.3d 68, 82 (D.D.C. 2015), they are "generally recognized as a hallmark of a formal arrest," United States v. Newton, 369 F.3d 659, 676 (2d Cir. 2004) (citing cases). See also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2(d) (5th ed. 2019) ("Search and Seizure") (noting that "handcuffing of the suspect is not ordinarily proper" during an investigative stop). Officers can use handcuffs without converting a stop into an arrest only when specific circumstances make it reasonable to do so, such as "when they reasonably fear for their safety or the safety of others." Smith, 373 F. Supp. 3d at 238; see also United States v. Dykes, 406 F.3d 717, 720 (D.C. Cir. 2005) (approving the use of handcuffs during a Terry stop where it was "reasonable for officers to fear that [the suspect] had a weapon in his waistband").
Viewed as a whole, these steps appear to the Court to have exceeded the reasonable degree of force and intrusion required. The record does not suggest that Mr. Devaugh posed "an immediate threat to the safety of the officers or others" or was "actively resisting arrest or attempting to evade arrest by flight." Dykes, 406 F.3d at 720 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). To the contrary, Officer Love testified that he and the arrest team did not believe Mr. Devaugh was armed. Tr. at 119 ("[If we believed he had a weapon,] we would have been a little more cautious..."); compare United States v. Clipper, 973 F.2d 944, 952 (D.C. Cir. 1992) (abrogated on other grounds) (reasoning that "the information that [the defendant] was armed made it reasonable for [the officer] to believe that it was necessary for her to draw her weapon"). Similarly, he was not aware of Mr. Devaugh making any "unusual or suspicious movements" or "adjusting his waist area." Tr. at 117-18.
The government argues that "the officers knew that the defendant was suspected of selling narcotics" and therefore "had sound reason to believe, then, that the defendant might be armed, and placing him in handcuffs was reasonable." Gov't.'s Post-Hearing Br. at 2, ECF No. 37. And as the government notes, our Circuit has "recognized many times that `drugs and guns go together.'" United States v. Johnson, 592 F.3d 164, 169 (D.C. Cir. 2010) (quoting United States v. Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991)). Indeed, some circuits, relying on that association, have adopted a kind of per se rule, allowing officers to assume that anyone possessing drugs or involved in a drug transaction is armed.
The government offers two additional arguments that require consideration. First, it suggests that it was only after Mr. Devaugh tossed away the bag that the officers placed him in handcuffs—meaning that they had ample probable cause at that point to effect a full-blown arrest. See Gov't.'s Post-Hearing Br. at 4. However, the Court is not convinced that this chronology is the best interpretation of the body-camera footage, which shows that the handcuffing occurred (or at least began) before Mr. Devaugh tossed away the bag. Additionally, while it is not conclusive on this point, Officer Love agreed that it was his intention, upon exiting the undercover vehicle, "to go in, get Mr. Devaugh out of the car and handcuff him." Tr. at 118.
Second, at least in its initial briefing in opposition, the government suggests that the officers saw "contraband in the SUV in plain view," apparently in reference to a green digital scale that was recovered from the center console of Mr. Devaugh's SUV. Gov't.'s Opp'n at 4, ECF No. 26. On this theory, assuming the initial approach to the vehicle was valid, the officers would be justified in seizing clearly visible illegal goods. See Texas v. Brown, 460 U.S. 730, 738, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) (explaining that "`plain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment"). However, the viability of this theory was undermined during the suppression hearing (when Office Love candidly admitted that "I don't know if I would have readily recognized it to be a scale," Tr. at 129), and the government has not attempted to revive it. See United States v. Pindell, 336 F.3d 1049, 1055 (D.C. Cir. 2003) (noting that, under the plain view doctrine, the incriminating nature of the item must be "immediately apparent").
For the foregoing reasons, the Court finds that the officers exceeded the scope of a permissible Terry stop when they began handcuffing Mr. Devaugh. "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, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The government has not offered any substantial arguments as to the inapplicability of the exclusionary rule here.
Tr. at 117-18. This also suggests that Officer Turner did not mention the waistband adjustment to Sergeant Cardinal, as one would reasonably expect a sergeant to inform his or her arrest team if a target was potentially armed.
