United States v. Veney, 2022 WL 3330370 (D.C. Cir. 2022)
Four officers patrolling a high crime area in an unmarked car saw a hand-to-hand exchange between Amistad Veney and another man. Veney looked toward the officers and walked in the opposite direction. Three officers exited their car and walked toward him. At a corner, Veney stopped and an officer asked him, “Big man, you got nothing on you, man?”
Veney replied, “I ain’t got s— on me.” The officer asked, “You mind turning around for me?” Veney said, “I’m not, man,” and began to walk down the sidewalk, away from the officers: “Nah, I’m going to walk off.” The officer followed and said, “No, I just want to make sure you don’t got no guns.”
Veney continued to walk away. As he did, he swiveled his upper body back toward the officer and lifted his arms away from his body. “I don’t got s— on me.” But whatever he didn’t have made a bulge in his waistband—and the officers saw it. An officer placed his hands on Veney’s chest and said, “Ok, hold on, hold on.” He frisked the area around Veney’s waistband, felt the outline of a gun, lifted Veney’s shirt and found a loaded handgun.
Veney was not seized until the officer blocked his path.
Veney was convicted of being a felon unlawfully possessing a loaded firearm. He appealed, claiming the frisk followed an illegal seizure that occurred when Veney “submitted” to a show of authority by the officer. Veney claimed the officer’s “no” was a show of authority and that he subsequently submitted. The prosecution conceded the officer’s “no” in response to Veney’s statement, “I’m going to walk off,” was a show of authority. Veney also claimed he “slowed his pace” in response to the officer, though the body-worn camera video showed Veney did not, in fact, slow. At that point, the officer had not yet seen the bulge in Veney’s waistband.
The appellate court stated that Veney did not submit to a show of authority. The court held Veney could not “submit” while he “continued moving forward” and noted the officer’s “no” command may not have expressly ordered Veney to stop, but did so implicitly. Nonetheless, Veney was not seized until the officer blocked his path. By then, the officer had seen the bulge of Veney’s gun in his waistband, giving the officer the reasonable suspicion required for the stop and frisk that followed.