United States of America v. Antonio Malachi Bryant

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2024 Decided August 6, 2024
No. 21-3064
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTONIO MALACHI BRYANT,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cr-00262-1)
Sandra Roland, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Chimnomnso N. Kalu, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Chrisellen R.
Kolb and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: WILKINS and CHILDS, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.

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WILKINS, Circuit Judge: Five police officers from the
Crime Suppression Team were patrolling Southeast
Washington when they spotted Appellant Antonio Malachi
Bryant. They searched him and found a gun on his person.
Charged as a previously-convicted felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), Bryant moved to
suppress the gun because it was the fruit of a seizure that
arguably violated the Fourth Amendment. The District Court
denied Bryant’s motion to suppress. We agree with the District
Court that officers had reasonable articulable suspicion when
they seized Bryant and thus the seizure was constitutional.
I.
A.
The following factual summary is based on the District
Court’s factual findings, parties’ statements, and footage from
two officers’ body-worn cameras (“BWC”). Officer Anthony
Smith and Officer Manuel Benites’s BWC were on before,
during, and after the relevant time period.1 Their videos have
the same timestamps.
On the evening of Monday, November 9, 2020, five police
officers were conducting two-car firearm interdiction in the
Southeast quadrant of Washington, D.C. Appellant’s
Appendix (“A.”) 164. While Officers Smith, Benites, and
Dennis Sfoglia were in an unmarked car, two other officers
were in a different marked car. Id. All five of them were
wearing their uniforms and carrying their weapons. Id. Both
police cars drove up opposite ends of the “horseshoe-shaped”
driveway of the Friendship Court Apartments. Id. at 164–65.
1 Only Officer Smith’s body-worn camera recorded audio during the
relevant time period.

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As Officer Smith explained in his testimony, the driveway
had a parking lot in the middle and on the top of the hill that is
not visible from the street. Id. at 96. Officer Smith testified
that, when his police car was pulling into the horseshoe
driveway, his car window was open and he heard someone yell,
“12[,]” which is a colloquial code word for police. Id. at 165.
As his police car was still moving toward the parking lot, he
saw Bryant walk away from two individuals who were standing
by a black sedan, which was parked parallel to the sidewalk.
Id. Officer Smith first saw Bryant from his police car when he
was about three or four car lengths from him. Id. Walking
away from the black sedan and the direction that Officer
Smith’s police car was coming from, Bryant headed toward a
white SUV, which was parked behind the black sedan and
adjacent to the same sidewalk. Id. at 166. According to Officer
Smith, Bryant adjusted his waistband, and looked over his
shoulder several times. Id. The white SUV’s passenger-side
front door was open by the sidewalk. A woman was standing
behind the open car door. Id. at 167.
As shown by his BWC footage, Officer Smith exited the
unmarked police car at 19:39:48. Id. at 166. At that time,
Bryant was on the sidewalk near the woman standing by the
white SUV. Id. While the woman and the white SUV were on
one side of the sidewalk, a row of trash cans, bushes, and a
fence were on the other side. Id. at 167. Having seen Bryant
walk up the sidewalk and look over his shoulder, Officer Smith
decided to follow him and began “walk[ing] briskly up the road
toward[]” him. Id. at 166. During the walk, Officer Smith
passed six or seven individuals. Id. Three or four individuals
were near or inside the black sedan, and three other people were
standing by the back of the white SUV. Id. at 166–68. Officer
Benites walked behind Officer Smith. Both officers confirmed
with each other that a child was in the black sedan. See Officer
Smith’s BWC Footage at 19:39:50. An unidentified man
repeatedly told someone else to “get the babies.” Id. at

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19:39:51–56. Officer Smith briefly greeted the people standing
by the black sedan while walking toward Bryant. Id. at
19:39:52.
When Officer Smith was making his way to Bryant from
one side of the driveway, the marked police car travelled up the
other side of the driveway and became visible in Officer
Smith’s BWC at 19:39:51. The marked police car stopped a
few car lengths from the back of the white SUV and turned on
its top lights, which shone in the general direction of the white
SUV but did not illuminate Bryant or the area behind the SUV
where he was standing. A. 167, 176.
At 19:39:55, Officer Smith walked past the front of the
white SUV and toward its rear. Bypassing the sidewalk area
by the front of the SUV, he went around the rear of the SUV to
reach the sidewalk and Bryant from the other side. See Officer
Smith’s BWC Footage at 19:39:55–19:40:00. Bryant turned
his head away from Officer Benites—who was about three or
five feet from the front of the white SUV and was approaching
Bryant from the road—and toward the back of the SUV, the
direction that Officer Smith was coming from. See Officer
Benites’s BWC at 19:39:59. A second later (and twelve
seconds after Officer Smith exited the police car), Officer
Smith had cleared the corner and could see Bryant, who was
approximately half a car length away. A. 176.
Still walking toward Bryant, Officer Smith said, “You
ain’t got no guns on you, do ya?” Officer Smith’s BWC at
19:40:00. Officer Smith briefly raised his left arm. Officer
Benites’s BWC Footage at 19:40:01. He also placed his right
foot on the sidewalk at the same time. Bryant responded,
“Nah.” Officer Smith’s BWC Footage at 19:40:01. Officer
Smith asked Bryant if he “stepped off” then said, “What’s that?
What’s that bulge right there, bro? Hold up. Right there.” Id.
at 19:40:02–05. Bryant then turned his head toward Officer

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Benites, who proceeded to point his flashlight at him. Bryant
took two steps away from Officer Smith and toward Officer
Benites, then put his hands inside his sweatshirt’s front pocket.
Officer Benites’s BWC Footage at 19:40:03–06. The woman
who was standing by the SUV’s passenger-side door left the
area. Id. at 19:40:05–08. Officer Smith grabbed Bryant’s hand
inside the pocket and said, “That’s not a gun? HOLD IT! Wait
a minute!” Officer Smith’s BWC Footage at 19:40:06–07.
Bryant resisted. During the struggle, Officer Smith said,
“7A[,]” which is a police code word for a gun. Id. at 19:40:15.
After a struggle, the officers recovered the gun on Bryant’s left
calf and had to cut his pants to do so. A. 171.
B.
The District Court concluded that it did not need to decide
when exactly the encounter turned into a seizure because it
began after Officer Smith saw the bulge and, by then, Officer
Smith had a reasonable articulable suspicion to detain and
search Bryant. A. 187.
II.
When the District Court “denies a defendant’s suppression
motion, we review de novo ‘claims regarding whether and
when a seizure occurred’ as well as the ‘district court’s ultimate
determination of whether a police officer had the reasonable,
articulable suspicion . . . necessary to legally effectuate’ the
stop.” United States v. Delaney, 955 F.3d 1077, 1081–82 (D.C.
Cir. 2020) (alteration in original) (quoting United States v.
Castle, 825 F.3d 625, 632 (D.C. Cir. 2016)).
We review the District Court’s factual findings for clear
error. Castle, 825 F.3d at 635. Under that standard, we will
affirm those findings unless we are “left with the definite and
firm conviction that a mistake has been committed.” United
States v. Hale-Cusanelli, 3 F.4th 449, 455 (D.C. Cir. 2021)

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(quoting United States v. Munchel, 991 F.3d 1273, 1282 (D.C.
Cir. 2021)). We must “give due weight to inferences drawn
from those facts by [district court] judges[.]” Ornelas v. United
States, 517 U.S. 690, 699 (1996).
III.
A Fourth Amendment seizure occurs when police officers
use a “show of authority” to which an individual yields. Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968); see also California v.
Hodari D., 499 U.S. 621, 626 (1991). If an individual submits
through “passive acquiescence,” the “test for telling when a
seizure occurs” is whether, “in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed he was not free to leave[.]” Brendlin v. California,
551 U.S. 249, 255 (2007) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)). To decide whether a
reasonable person would have believed they were free to leave,
we “consider the totality of the circumstances[.]” Delaney, 955
F.3d at 1081. The relevant factors for making such a
determination include “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 (quotation marks, citation, and
alteration omitted); see also Delaney, 955 F.3d at 1081.
Further, “[t]he person challenging the seizure ‘bears the burden
of demonstrating that he was seized.’” Delaney, 955 F.3d at
1081 (quoting Castle, 825 F.3d at 633).
As relevant here, if an officer seizes an individual without
probable cause, the seizure is lawful only if the officer has
reasonable articulable suspicion that the individual being
seized “is engaged in criminal activity.” Reid v. Georgia,

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448 U.S. 438, 440 (1980). The government has the burden “to
provide evidence sufficient to support reasonable suspicion
justifying any such stop.” Castle, 825 F.3d at 634.
Bryant conceded that the District Court correctly ruled
Officer Smith had reasonable articulable suspicion to stop and
search Bryant once Officer Smith saw the bulge. Bryant’s
Reply Br. at 14; Oral Argument Tr. at 15. Following this logic,
Bryant can prevail on his appeal only if he shows that he was
seized before Officer Smith observed the bulge. But the record
shows otherwise.
Bryant contends that he was seized at 19:40:00, when
Officer Smith rounded the white SUV and asked him about
having guns, because, at that time, his means of egress on the
sidewalk was blocked on both sides, with one officer on each
side. According to Bryant, Officer Smith had not seen the
bulge by that time. As the District Court found, “at
19:40:00, . . . Officer Smith cleared the back of the white SUV
and stepped onto the sidewalk.” A. 168. Officer Benites’s
BWC footage shows that Officer Smith was not blocking
Bryant’s means of egress at that time. At 19:40:01, Officer
Smith only had one foot on the edge of the sidewalk. This is
fatal to Bryant’s argument that he was blocked and seized at
19:40:00.
The District Court further found that Officer Smith saw the
bulge around that time. A. 169 (crediting Officer Smith’s
testimony that he saw the bulge while asking the initial
questions). As explained by the District Court, Officer Smith’s
testimony is corroborated by Officer Benites’s BWC footage,
which shows Officer Smith raising his left arm for the first time
at 19:40:01, a second after he asked the first question about
having guns, and using the same arm to point at Bryant’s waist
at 19:40:03. Id. The District Court’s conclusion is consistent

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with Officer Benites’s BWC footage, which also shows Officer
Smith focusing his attention on Bryant’s waist at 19:40:02.
In the end, the record demonstrates that Officer Smith
observed the bulge when he was stepping onto the sidewalk,
and thus he developed reasonable articulable suspicion at the
same time he began to block Bryant’s path. Because Officer
Smith had reasonable articulable suspicion when he seized
Bryant immediately after, the seizure did not violate the Fourth
Amendment.
Bryant challenges the District Court’s findings that Bryant
decided to restrict his own movement by staying beside the
SUV and that he did not know where Officer Benites was, so
he could not have known that he was blocked on both sides or
was about to be. But whether the District Court erred in making
these findings would not change the analysis here. After all,
any such “blocking,” whether perceived by Bryant or not, did
not occur until after Officer Smith developed reasonable
articulable suspicion.
Prior to when Officers Benites and Smith blocked Bryant’s
path from both directions, Bryant was not seized through other
means. It is not sufficient that two uniformed police officers
walked directly to Bryant at night and approached him from
both directions, where police cars were present and where one
of those police cars had its top lights on.
Police officers have the right to approach an individual in
a public place. See Florida v. Royer, 460 U.S. 491, 497 (1983)
(explaining that “law enforcement officers do not violate the
Fourth Amendment by merely approaching an individual on
the street or in another public place”). We clarified in Delaney
that officers can approach an individual without turning the
encounter into a seizure, unless the “police conduct [at issue]
‘lacks a traditional hallmark of a police-citizen consensual
encounter: the seemingly routine approach of the police

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officer.’” 955 F.3d at 1084 (alteration omitted) (quoting
United States v. Jones, 678 F.3d 293, 300 (4th Cir. 2012)).
When officers clearly target a defendant, that hallmark is
generally not present. Id. In Delaney, where the police officers
parked in the narrow parking lot’s exit lane a few feet from the
front of the defendant’s car and shone their take-down lights on
the defendant’s car, id. at 1083–84, we said such “‘targeted’[]
conduct toward [the defendant] indicated that he was not free
to ignore their presence[,”] id. at 1084. We took partial
blocking into account there because the police officers impeded
the only means of egress from the parking lot as they
approached Delaney’s vehicle. Here, the officers did not block
or impede Bryant’s only means of egress from the sidewalk as
they approached him.
Assuming that Officer Smith did not see the bulge until
after asking his first question, his first question—“you ain’t got
no guns on you, do ya?”—did not turn the encounter into a
seizure. See Gomez v. Turner, 672 F.2d 134, 142 (D.C. Cir.
1982) (“The approach and direction of a question by a police
officer cannot be, as a matter of fact or of law, a seizure of the
person so approached.”).
Nor did “the presence of multiple officers” transform an
encounter into a seizure in this case. United States v. Goddard,
491 F.3d 457, 461 (D.C. Cir. 2007). As the District Court
pointed out, police officers “often approach [individuals (in
groups of two or more)] not as a show of authority but to
reasonably ensure both the safety of the officers and the
approached individual in the community.” A. 181.
IV.
For the foregoing reasons, we affirm the District Court’s
denial of Bryant’s motion to suppress tangible evidence.
So ordered.

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