Mayo v. United States ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CF-1132
LANDON R. MAYO, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2016-CF2-017614)
(Hon. José M. López, Trial Judge)
(Argued En Banc June 6, 2023 Decided May 23, 2024)
Sean R. Day for appellant.
Jaclyn S. Frankfurt, Public Defender Service, with whom Samia Fam and KC
Bridges, Public Defender Service, were on the brief as amicus curiae in support of
appellant.
Timothy R. Cahill, Assistant United States Attorney, with whom Matthew M.
Graves, United States Attorney, Chrisellen R. Kolb, Monica Dolin, and Meredith E.
Mayer-Dempsey, Assistant United States Attorneys, were on the brief for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH, EASTERLY,
MCLEESE, DEAHL, HOWARD, and SHANKER, Associate Judges.
2
Opinion for the court by Associate Judge EASTERLY, with whom
BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH, DEAHL, HOWARD, and
SHANKER, Associate Judges, join.
Dissenting opinion by Associate Judge MCLEESE at page 67.
EASTERLY, Associate Judge: Based on an assessment of the totality of the
circumstances, a division of this court held that Landon Mayo was seized in violation
of his Fourth Amendment rights by the Metropolitan Police Department’s Gun
Recovery Unit (“GRU”) and reversed his convictions on that basis. Mayo v. United
States, 266 A.3d 244 (D.C. 2022). According to the government’s witness at the
suppression hearing, nineteen-year-old Mr. Mayo was “just hanging out” with some
people in an alley in the Kenilworth neighborhood when three GRU officers who
were part of a two-car team pulled up. The officers exited their vehicle and focused
their attention on Mr. Mayo, who, like others in the alley, had moved away from the
police. The officers followed Mr. Mayo and told him they just wanted to talk—but
then asked if he had a gun. When Mr. Mayo started to run, one officer dove to tackle
him. Although the officer got a hand on Mr. Mayo’s foot and tripped him up,
Mr. Mayo managed to continue running. He was apprehended a short distance away
by GRU officers from the other car. The GRU officers subsequently recovered a
gun and drugs they believed Mr. Mayo to have discarded or handed off to others in
flight.
3
The government sought review of the division’s holding that the GRU officers
violated Mr. Mayo’s Fourth Amendment rights to be free from unreasonable
searches and seizures, arguing that it conflicted with the Supreme Court’s decision
in Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). The government argued that,
under Wardlow, flight from police in a “high-crime area” alone gives police the
requisite reasonable articulable suspicion to conduct a brief stop of an individual
under Terry v. Ohio, 392 U.S. 1, 21-22 (1968). This en banc court granted the
government’s request for review and vacated the division’s decision. Mayo v.
United States, 284 A.3d 403 (D.C. 2022). After receiving further briefing and
hearing argument, the en banc court again holds that the GRU’s seizure of Mr. Mayo
was unjustified and unconstitutional.
With this opinion, we first reaffirm the division’s predicate holding,
uncontested by the government, that Mr. Mayo was seized when the GRU officer
dove to tackle him and grabbed his foot, even though he got away. This holding is
compelled by Torres v. Madrid, 592 U.S. 306 (2021), which effectively overruled
this court’s decision in Henson v. United States, 55 A.3d 859 (D.C. 2012). Second,
we reject the government’s interpretation of Wardlow as authorizing police to make
Terry stops whenever they perceive anyone seeking to evade them in an area labeled
“high crime.” We hold, in keeping with our understanding of Wardlow, that (1) in
assessing reasonable articulable suspicion, flight must be examined in the context of
4
the totality of the circumstances and (2) general locational crime evidence, if
relevant and nonconclusory, may provide context for police observations of
ambiguous conduct, but its appropriate weight will turn on its quality and specificity.
Applying this framework, we reaffirm the division’s conclusion that Mr. Mayo’s
rights under the Fourth Amendment were violated. Lastly, because the government
did not seek en banc review on this question, we reinstate the division’s holding that
the items of physical evidence subsequently recovered by the police from
Mr. Mayo’s person and in the area of the chase were fruits of his unlawful seizure
that must be suppressed. See Appellee’s Petition for Rehearing or in the Alternative
Rehearing En Banc, dated April 19, 2022. We also reinstate Associate Judge
McLeese’s dissent to that holding.
I. Facts and Procedural History
A. Suppression Hearing
At the hearing on Mr. Mayo’s motion to suppress, the government presented
testimony from Sergeant José Jaquez, one of the seven GRU officers who
participated in Mr. Mayo’s seizure and subsequent arrest. Sergeant Jaquez was the
officer who dove to tackle Mr. Mayo and briefly got a hand on him. Other GRU
officers re-seized and arrested Mr. Mayo and recovered a gun and drugs from his
flight path, and Sergeant Jaquez testified to what these officers told him. As
5
Sergeant Jaquez explained, there was no body-worn camera footage of the GRU
officers’ encounter with Mr. Mayo because they did not start wearing body-worn
cameras until the following year.
Sergeant Jaquez explained that on the evening of October 26, 2016, he was
riding in an unmarked car with two other GRU officers, John Wright and Michael
Ashley. All three wore tactical vests and badges identifying them as police. The
GRU officers were out looking for illegal weapons, along with four other GRU
officers riding in a separate vehicle. They were in “the Kenilworth area” in the
Northeast quadrant of the District, which (in the prosecutor’s words)
Sergeant Jaquez “kind of gestured to” on a map but did not define by specific
boundaries. 1 According to Sergeant Jaquez, his GRU unit was “often sent to patrol
that area,” and they had recovered “multiple weapons, handguns, and also
narcotics.” When asked by the prosecutor to “estimate . . . how many guns [were]
recovered,” from that area, Sergeant Jaquez responded that, in the preceding three
years, his unit had recovered “over 10 guns. It could be more . . . but I feel
1
The government displayed the map but did not move it into evidence as an
exhibit at the suppression hearing. At trial, the government moved several maps into
evidence: “an overview image” with a “red thing [showing] an approximate area of
what we’re talking about,” a “zoomed-in image,” and an “even more zoomed-in”
image of the same area—but it is unclear if any of these maps was the one used by
the government at the suppression hearing. By the time this case was argued on
appeal, the government was unable to locate the maps admitted into evidence at trial.
6
comfortable at this time saying about 10.” And when asked to compare “the number
of guns that [were] recovered in that area compare[d] to other areas,”
Sergeant Jaquez testified that this was “one of the . . . higher amounts of guns that
we’ve recovered compared to other parts of the city.” Sergeant Jaquez did not say
that the GRU had received any reports about guns or had recovered other guns in
this area on the date of Mr. Mayo’s arrest or in the days or weeks preceding.
The car in which Sergeant Jaquez was riding pulled into an alley off of
Quarles Street NE, in between and parallel to Kenilworth Avenue and 45th Street
NE. There, the GRU officers saw a group of at least five individuals “just hanging
out.” Still sitting in the car, Sergeant Jaquez focused on one individual, later
identified as Mr. Mayo. According to Sergeant Jaquez, Mr. Mayo “immediately
disengage[d] from the group” and moved “to engage with a []man in a wheelchair”
near a dumpster in the alley. While facing this other person, Mr. Mayo’s back was
to the officers. Sergeant Jaquez could not see Mr. Mayo’s hands and observed “just
motions from his back.” Sergeant Jaquez demonstrated this movement, which the
prosecutor then characterized for the record: “[J]ust as [Sergeant Jaquez] was
gesturing, [Mr. Mayo’s] back was turned to [Sergeant Jaquez], and you could see
shoulders kind of moving up and down as though the hands were kind of in the center
of a waistband.” Notwithstanding his vantage point behind Mr. Mayo,
7
Sergeant Jaquez asserted that Mr. Mayo was “making slight adjustments with his
front waistband.”
After “a few seconds,” Mr. Mayo walked away from the man in the
wheelchair and toward another person standing further away from the officers in a
walkway area off the alley leading toward 45th Street (where Sergeant Jaquez knew
the other car of GRU officers was located). Around that time, the three GRU officers
exited their car. Officers Wright and Ashley walked directly toward Mr. Mayo,
while Sergeant Jaquez split off to one side and also walked in Mr. Mayo’s direction.
As the three GRU officers approached Mr. Mayo, Officer Wright called out to him,
“[h]ey, we just want to talk. We just want to talk to you. Do you have any guns?”
When the GRU officers got closer, Mr. Mayo began to run from them. As he ran
past Sergeant Jaquez, Sergeant Jaquez “tried to tackle him.” Although
Sergeant Jaquez “leaped . . . with the hope and the intent to just grab [Mr. Mayo]
right there,” when he “reached out” to Mr. Mayo, he only “managed to trip up one
of [Mr. Mayo’s] feet.” (Sergeant Jaquez also described his action as a “d[i]ve to try
to stop” Mr. Mayo, which explains why, when he “reached out,” he touched
Mr. Mayo’s foot.) As a result of this dive-tackle-grab, Mr. Mayo “kind of fell,” but
“put his hand down” to catch his balance and then continued running away from
Sergeant Jaquez and his two GRU colleagues who had joined the chase.
8
Sergeant Jaquez and Officer Ashley eventually discontinued pursuit of
Mr. Mayo, but Officer Wright kept running after him. Within a short distance, 2 the
GRU officers in the second car, who had been alerted to Mr. Mayo’s flight on the
radio, stopped him. Meanwhile, Officer Wright searched the purse of a woman
Mr. Mayo had run past as he fled and recovered a loaded handgun. (At trial the
government presented evidence that subsequent fingerprint examination and DNA
analysis connected the handgun to Mr. Mayo.) Another GRU officer found ziplock
bags containing marijuana in the bushes adjacent to Mr. Mayo’s flight path. The
GRU officers also searched Mr. Mayo’s person and found smaller, unused bags that
matched those found in the bushes, as well as several hundred dollars and a large
ziplock bag of marijuana.
The defense called an eyewitness, Dwayne Lane, to testify at the suppression
hearing. According to Mr. Lane, he and Mr. Mayo were part of a larger group just
“hanging” and “talking” in the alley when the GRU officers “pulled up and stopped”
to “harass[]” them. Mr. Lane knew there was at least one other car of GRU officers
nearby because, referring to the GRU officers by their tactics but not by name, “when
2
According to Sergeant Jaquez’s testimony, Mr. Mayo appears to have run
only just beyond the square block of Kenilworth Avenue, Quarles Street, 45th Street,
and Douglas Street before he was stopped by the second car of GRU officers;
measurements by a defense investigator indicated that the total distance of
Mr. Mayo’s flight was less than 700 feet.
9
they come through the neighborhood, they come like two or three ways.” While still
sitting in their car, the GRU officers asked Mr. Lane and his friends, “do [you] have
any guns?” In response, Mr. Lane testified that he and his friends all spread out and
answered “no,” and everyone, including Mr. Mayo, “lift[ed] [their] jackets up [to]
show[] [the GRU officers] that [they] didn’t have any guns.” 3 Mr. Lane explained
that when these officers “come in the neighborhood, we already know what they
[are] coming for”—“we . . . kn[o]w what they want us to do”—“so we automatically
just show our waistband, like we don’t have anything.” Mr. Lane testified that the
group’s actions did not satisfy the GRU officers; “they still got out [of] the car” and
walked toward him, Mr. Mayo, and their companions, at which point everyone in
the group “just scattered,” with “everybody” running away from the officers.
Mr. Lane explained that the fact that the police continued to approach “worried” him
and the others in the group: “We all were just like[,] ‘we are going to take off.’”
Mr. Lane was trying to “get[] away from” the GRU officers, but he was not their
3
Mr. Lane’s testimony that the group lifted their jackets was uncontested.
Sergeant Jaquez did not testify about what the three GRU officers had or had not
said before they got out of their car. And the government did not seek to challenge
Mr. Lane’s testimony about the GRU officers’ interaction with the group at this point
in time, either on cross-examination of Mr. Lane or in its argument to the court in
support of denying Mr. Mayo’s motion to suppress. Although we understand our
precedent would permit us to, see infra Part I.B, we opt not to rely on this testimony
in our analysis.
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target. After he started running, he turned to look back and saw that they had focused
on and were chasing Mr. Mayo.
B. Trial Court’s Rulings
The trial court initially granted Mr. Mayo’s suppression motion from the
bench. The court found that “there [wa]s no evidence at all” that the GRU officers
had stopped in the alley because “there was any issue with guns”; “[t]hey were not
called about anybody with a gun or any shooting. They were just [o]n their usual
patrol . . . hunting for illegal guns.” The court further found that when the police
first saw the group that included Mr. Mayo, “they did not say there was any criminal
activity afoot. They didn’t see anything.” The court acknowledged that
Sergeant Jaquez had testified that Mr. Mayo had “detached from the group when he
saw the [GRU] arrive.” But after explaining that “there [wa]s nothing to put any
doubt on the testimony of Mr. Lane that all of those guys in that group understood
what that [GRU] vehicle was and what [the GRU officers] were coming to do,” the
court stated it “tend[ed] to believe more” that all the individuals in the group had
“started to disperse” when the GRU officers arrived in the alley, as Mr. Lane
testified, rather than that Mr. Mayo alone had separated from the group, as
Sergeant Jaquez testified.
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The court found that after Mr. Mayo walked over to the man in the wheelchair,
the police saw Mr. Mayo making movements “around his groin area.” 4 The court
acknowledged that these movements made Sergeant Jaquez suspect that Mr. Mayo
had a gun. 5 But the court indicated that Sergeant Jaquez’s suspicion lacked adequate
foundation because the police “didn’t see the front” of Mr. Mayo’s body, “didn’t see
any bulge” in his clothing, and only saw the movement “from the back.” Relatedly,
regarding the locational crime evidence, the court observed that “although there
was . . . talk [that this was] a crime infested area, there was no evidence of . . . drug
or narcotics sales,” and the evidence that the police had recovered ten guns in the
area over three years was insufficient in the court’s view.
Lastly, the court “accept[ed] as a fact that everybody knew why the police was
there and that they are the gun recovery unit,” but noted that even though “people
started to disperse because they kn[ew] what [wa]s going on,” “nobody” ran and, in
particular, Mr. Mayo did not “just run as soon as he saw the police.” Instead, “the
4
Because there was no testimony that Mr. Mayo’s hand movements were
around his “groin area,” we presume the trial court meant “groin area” to be
synonymous with “waistband.”
5
Describing Sergeant Jaquez’s testimony, the court stated that Mr. Mayo’s
movements “bring [] the officer suspicion that usually this is done by people that are
carrying a gun in their waistbelt” and later noted that Mr. Mayo “had the movement
that they say creates the suspicions of weapons.”
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running beg[a]n when Officer Jaquez goes over to Mr. Mayo . . . and says, hey, I
want to talk to you, do you have a gun? That is when Mr. Mayo begins to run.”
Based on these findings of fact, the court concluded both that the police did
not have reasonable articulable suspicion to stop Mr. Mayo at the point when the
police asked to speak with him and he ran and that Mr. Mayo did not have to talk to
the police if he did not want to. Skipping over Sergeant Jaquez’s dive-tackle-grab
as a potential seizure, the court further determined that the government had failed to
prove that the GRU officers in the other car had a lawful basis for their actions when
they seized and searched Mr. Mayo because the government had presented no
testimony from anyone who had been present who could say “how and why” these
actions were taken. Based on these legal rulings, the court concluded that the
evidence recovered from Mr. Mayo’s person was “the fruit of an illegal stop and [an]
illegal search” and, as to this evidence, granted his motion to suppress.
The government immediately asked the court to reconsider. Similarly
overlooking Sergeant Jaquez’s dive-tackle-grab, the government argued that under
the Supreme Court’s decision in Wardlow, 528 U.S. 119, Mr. Mayo’s “unprovoked
flight” in a “[h]igh crime area,” as well as his “messing with [his] waistband,” gave
the GRU officers in the second car ample basis to conduct a Terry stop. The court
declined to alter its ruling based on the government’s oral motion for
13
reconsideration. Specifically responding to the government’s characterization of the
location as a high-crime area, the court “invite[d] the government to point to where
there is any evidence that quote/unquote this is a high crime area,” reiterating it “was
not satisfied that that came out in the evidence as being a high[-]crime area simply
because they recovered 10 guns over three years and not in just that area, but in that
neighborhood.”
The government subsequently moved for reconsideration in writing, arguing
that the police had not seized Mr. Mayo until his successful capture, by which point
they had reasonable articulable suspicion to justify his seizure. In his opposition,
Mr. Mayo argued that he had been seized as soon as he tried to leave the alley, when
Sergeant Jaquez dove to tackle him and grabbed one of Mr. Mayo’s feet. The trial
court sided with the government as to the timing of Mr. Mayo’s seizure and,
reversing its initial ruling, concluded that the GRU possessed the requisite
reasonable articulable suspicion to stop Mr. Mayo.
In making its final ruling denying Mr. Mayo’s motion to suppress, the trial
court relied on (1) Sergeant Jaquez’s initial observation of Mr. Mayo’s body
“movement[s]” before the GRU officers approached him, although it continued to
acknowledge that “he d[id not] see what[ was] going on in front of [Mr. Mayo’s]
body”; he only saw “movement of the body”; (2) Mr. Mayo’s flight from the GRU
14
officers; (3) the GRU officers’ discovery of drugs and a gun in the area of the chase;
and (4) the evidence about guns recovered in the area. Regarding this final
consideration, the court acknowledged that it continued to experience
“difficulty[,] . . . in terms of the evidence that came[] in,” with labeling the area
“high[]crime.” But the court determined the salient point was that “in the mind of
the officer[,] we’re dealing with an experience that the officer had in that area” and
“[s]o a certain alertness on his part has to be understood.” The court rejected defense
counsel’s argument that the government’s evidence did not permit an assessment of
whether the GRU officers’ “wariness was reasonable because we don’t know the
details of what would have made them wary,” e.g., how, where, or when prior guns
had been recovered. Instead, the court concluded that Sergeant Jaquez’s “wariness”
was sufficiently supported because “he [had] recovered 10 guns in that area” and
“[w]e know what area it is because the evidence shows pictures of the area and the
neighborhood and the name of the neighborhood. So it’s not the entire District of
Columbia but it’s that particular neighborhood.”
After a trial, a jury found Mr. Mayo guilty of an array of drug and gun
offenses.
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II. Analysis
In the past, divisions of this court, like the government in its brief, have
described our review of a ruling denying a motion to suppress as “limited,” see, e.g.,
Jones v. United States, 972 A.2d 821, 824 (D.C. 2009), or “narrow in scope,” or
suggested that we will affirm a suppression ruling so long as “the trial court had a
substantial basis for concluding that no constitutional violation occurred,” see, e.g.,
Jenkins v. United States, 152 A.3d 585, 589 (D.C. 2017) (internal quotation marks
omitted). We now retire these unhelpful and potentially confusing descriptors. Our
review of legal issues raised by a suppression motion is and has always been de
novo. See United States v. Lewis, 147 A.3d 236, 239 (D.C. 2016) (en banc); Hooks
v. United States, 208 A.3d 741, 745 (D.C. 2019) (citing Lewis among other cases to
show this standard of review is unquestioned and long-established). In conducting
our analysis, we generally defer to the trial court’s findings of fact “unless they are
clearly erroneous.” Hooks, 208 A.3d at 745.
Although we are generally bound by the trial court’s express findings of fact
and determinations of credibility (which, unusually in this case, were largely made
in the context of the court’s initial ruling granting Mr. Mayo’s motion to suppress),
we have not considered ourselves to be limited to them. Instead, we have examined
other record evidence presented at a suppression hearing to determine whether the
16
government proved that a defendant’s constitutional rights were not violated.
Germany v. United States, 984 A.2d 1217, 1221 (D.C. 2009) (explaining that, in
evaluating whether a “motion to suppress was properly denied, we may of course
consider all of the evidence at the suppression hearing” (quoting Lewis v. United
States, 594 A.2d 542, 543 n.3 (D.C. 1991))); see, e.g., T.W. v. United States, 292
A.3d 790, 803 (D.C. 2023) (“not[ing] that our conclusion that T.W. was seized is
heavily influenced by the body-worn camera footage” introduced at the suppression
hearing, which “captures just how jarring the officers’ approach was in this case”);
Bingman v. United States, 267 A.3d 1084, 1087, 1089-90 (D.C. 2022) (after
concluding the trial court’s findings did not provide a basis to uphold a Terry
“patdown” of the defendant for weapons, confirming that other evidence in the
record at the time of the suppression hearing did not justify the actions of the police).
We have viewed these record facts in the light most favorable either to the
prevailing party, Lewis, 147 A.3d at 239, or to the court’s ruling, 6 see, e.g., Bingman,
267 A.3d at 1087. But neither approach compels us to ignore—or treat as refuted—
undisputed facts from the suppression hearing that support a defendant’s claim that
their Fourth Amendment rights were violated and that evidence must be suppressed.
6
Both constructions present challenges in this case where the trial court did
not rule on the principal question before us—the constitutionality of Mr. Mayo’s
dive-tackle-grab seizure by Sergeant Jaquez—because the trial court did not
recognize it as a seizure. See supra Part I.B.
17
As we explained in Germany, our court is “not limited to considering the facts the
[trial] court found at the conclusion of the suppression hearing” and may instead
“tak[e] into account [the defendant’s] undisputed testimony at the suppression
hearing in determining whether [the] trial court erred in denying [the] motion to
suppress.” 984 A.2d at 1221 (internal quotation marks omitted); see also Masiello
v. United States, 304 F.2d 399, 400-01 (D.C. Cir. 1962) (holding that the trial court
erred in ruling that the entry and search of defendant’s home was lawful where
defendant’s suppression hearing testimony about the circumstances of the officers’
entry was “uncontradicted” and “not inherently implausible”); see generally Ward
v. United States, 365 A.2d 378, 381 n.3 (D.C. 1976) (explaining that our ultimate
object is to determine whether there is “any reasonable view of the evidence” to
support the ruling denying suppression).
The Public Defender Service (“PDS”), as amicus, challenges our examination
of the full record when reviewing suppression rulings. Explaining that it was
“borrowed from the sufficiency of the evidence context [and] date[s] from an era
when no factual findings were required and courts issued general suppression
rulings,” PDS asserts that our court should cease our “light-most-favorable”
interpretation of the record facts and limit ourselves to the specific findings of
“essential” facts that Superior Court Rule of Criminal Procedure 12(d) as revised in
2016 requires trial courts to make. Super. Ct. Crim. R. 12(d) (2016) (“When factual
18
issues are involved in deciding a motion, the court must state its essential findings
on the record.”); cf. United States v. Bailey, 622 F.3d 1, 5 n.1 (D.C. Cir. 2010)
(explaining that the D.C. Circuit only views the evidence in the light most favorable
to the District Court’s suppression ruling when that court has failed to make the
requisite factual findings under Fed. R. Crim. P. 12([d])). The dissent appears to
support this view. See Post at 71-72. We decline to address this argument, which
was first raised in PDS’s reply brief, and assume for the purposes of this case that to
the extent we are able to look beyond the trial court’s findings, we should view the
facts of this case in the light most favorable to the trial court’s ultimate suppression
ruling (acknowledging, however, that some undisputed facts may simply be
unfavorable, see supra).
In evaluating the trial court’s ruling, we confront three questions: (1) when
was Mr. Mayo seized; (2) whether, at the time of his seizure, the GRU officers had
reasonable articulable suspicion under Terry to justify stopping Mr. Mayo; and
(3) whether the fruits of his seizure must be suppressed. The now-vacated division
decision determined that Mr. Mayo had been seized when Sergeant Jaquez dove to
tackle him and grabbed his foot; at that point the GRU lacked the requisite
reasonable articulable suspicion to stop Mr. Mayo; and suppression was required.
Mayo, 266 A.3d at 255-56, 268, 272. The government asked this court to grant en
banc review only as to the second issue—the question of reasonable articulable
19
suspicion. Because the question whether officers had reasonable articulable
suspicion to seize Mr. Mayo depends on the existence of a seizure and a
determination of when the seizure occurred, we address and reaffirm the division’s
determination that Mr. Mayo was seized at the time of the dive-tackle-grab. We then
review, pursuant to the government’s request, whether the GRU officers had
reasonable articulable suspicion at this time and conclude that it did not. Lastly, we
reinstate the division’s analysis that the gun and drugs recovered subsequent to
Mr. Mayo’s illegal seizure must be suppressed.
A. Whether Sergeant Jaquez Seized Mr. Mayo
A division of this court previously rejected the “argument that an unsuccessful
attempt by a police officer to detain an individual [by application of physical force]
constitutes a seizure” in Henson v. United States, 55 A.3d 859, 862, 865-66 (D.C.
2012). We acknowledged statements in the Supreme Court’s decision in California
v. Hodari D., 499 U.S. 621 (1991), indicating that a defendant need not yield to an
application of force to be seized. Henson, 55 A.3d at 864 & n.6 (quoting Hodari D.,
499 U.S. at 624 (“To constitute an arrest, however—the quintessential ‘seizure of
the person’ under our Fourth Amendment jurisprudence—the mere grasping or
application of physical force with lawful authority, whether or not it succeeded in
subduing the arrestee, was sufficient.”)); Hodari D., 499 U.S. at 626 (“The word
20
‘seizure’ readily bears the meaning of a laying on of hands or application of physical
force to restrain movement, even when it is ultimately unsuccessful.”). We
concluded, however, that this language (1) pertained to “the historical, common law
definition of seizure,” not a seizure for Fourth Amendment purposes, and (2) was
dicta, in any event, because Hodari D. only concerned a failure to yield to an
officer’s show of authority. Henson, 55 A.3d at 864-66. Accordingly, we held in
Henson “that an individual is seized within the meaning of the Fourth Amendment
only when he or she is within the officer’s control or yields to the officer’s show of
authority or application of force.” Id. at 870.
In the proceedings before the division, the government initially relied on
Henson to argue that Mr. Mayo was not seized by Sergeant Jaquez. But after the
parties submitted their briefs to the division, the Supreme Court granted certiorari in
Torres v. Madrid, 140 S. Ct. 680 (2019). The question presented in Torres was
whether “an unsuccessful attempt to detain a suspect by use of physical force [is] a
‘seizure’ within the meaning of the Fourth Amendment . . . or [whether] physical
force [must] be successful in detaining a suspect to constitute a ‘seizure.’” Petition
for Writ of Certiorari at I, Torres v. Madrid (No. 19-292), 2019 WL 4203519.
Because this case and Torres “raise[d] the same Fourth Amendment seizure issue,”
the government moved to hold this appeal in abeyance pending a decision in Torres.
We granted the government’s motion.
21
In its decision in Torres, the Supreme Court effectively overruled Henson’s
holding regarding what constitutes a seizure. Relying on Hodari D., the Court
rejected the distinction drawn in Henson between common law arrests and seizures
for the purposes of the Fourth Amendment, and squarely decided that because “the
common law considered the application of force to the body of a person with intent
to restrain to be an arrest, no matter whether the arrestee escaped,” the same was true
under the Fourth Amendment. Torres, 592 U.S. at 311-12. Furthermore, the Court
explained that because under the common law a “mere[ ]touch” was “sufficient to
constitute an arrest,” so too under the Fourth Amendment the “slightest” contact
could suffice. Id. at 313-14. But the Court stressed that the use of force must be
accompanied by the “objectively manifest[ed] . . . intent to restrain,” and that
“[a]ccidental force will not qualify” as a Fourth Amendment seizure. Id. at 317. In
short, the Court held “that the application of [any] physical force to the body of a
person with intent to restrain is a seizure [within the meaning of the Fourth
Amendment] even if the person does not submit and is not subdued.” Id. at 325.
In supplemental briefing requested by this court after the Supreme Court
issued its decision in Torres, the parties agreed that Sergeant Jaquez’s dive-tackle-
grab constituted a seizure. We now hold the same “based on our independent review
of the merits after a thorough examination of the record.” Rose v. United States, 629
22
A.2d 526, 533 (D.C. 1993) (internal quotation marks omitted). We briefly set forth
our reasoning.
Under Torres, Sergeant Jaquez’s contact with Mr. Mayo, causing Mr. Mayo
to trip and “kind of” fall, plainly amounted to an application of force to Mr. Mayo’s
body. And this application of physical force objectively manifested an intent to
restrain. See Torres, 592 U.S. at 318 (concluding that an officer used physical force
and “objectively manifested an intent to restrain” the defendant by ordering her to
stop and then shooting at her). Even considered in the light most favorable to the
government, the record evidence provides no support for an argument that
Sergeant Jaquez’s contact with Mr. Mayo was accidental. Rather, the only
reasonable understanding of Sergeant Jaquez’s purpose in dive-tackling Mr. Mayo
and grabbing his foot is that Sergeant Jaquez was attempting to restrain Mr. Mayo
to prevent him from running away, and Sergeant Jaquez conceded that was his aim.
B. Whether Sergeant Jaquez Had Reasonable Articulable Suspicion to
Seize Mr. Mayo
“[A] police officer is not entitled to seize and search every person whom he
sees on the street or of whom he makes inquiries.” Robinson v. United States, 76
A.3d 329, 335 (D.C. 2013) (quoting the companion case to Terry, Sibron v. New
York, 392 U.S. 40, 64 (1968)); see also Brown v. United States, 590 A.2d 1008, 1013
23
(D.C. 1991) (whether in their homes or out in public, individuals in the District have
a Fourth Amendment right generally “to be left alone” by the police) (internal
quotation marks omitted). Under the Fourth Amendment, the police must have
either probable cause to arrest an individual for a crime or at least reasonable
articulable suspicion that an individual is engaged in criminal conduct to effect the
“lesser intrusion” of a “brief[]” Terry “stop” to investigate whether that is in fact the
case. Brown, 590 A.2d at 1013. Thus, “[e]ven a brief restraining stop of a person
[by the police] is an unreasonable seizure in violation of the Fourth Amendment if
it is conducted for investigatory purposes without a reasonable suspicion supported
by specific and articulable facts that the individual is involved in criminal activity.”
Golden v. United States, 248 A.3d 925, 933 (D.C. 2021) (internal quotation marks
omitted).
Terry’s reasonable articulable suspicion standard “requires . . . considerably
less than proof of wrongdoing by a preponderance of the evidence, and obviously
less than is necessary for probable cause.” Kansas v. Glover, 589 U.S. 376, 380
(2020) (internal quotation marks omitted). It “is not onerous, but it is not toothless
either.” Robinson, 76 A.3d at 336 (citation and internal quotation marks omitted).
“An officer’s ‘inchoate and unparticularized suspicion or hunch of criminal
activity’” will not suffice. Pleasant-Bey v. United States, 988 A.2d 496, 500 (D.C.
2010) (quoting Wardlow, 528 U.S. at 123-24). Nor will a “subjective good faith”
24
belief in the propriety of a stop. Pridgen v. United States, 134 A.3d 297, 301 (D.C.
2016).
Reasonable articulable suspicion is a legal term of art, but, as the Supreme
Court has acknowledged, “[a]rticulating precisely what [it] . . . mean[s] is not
possible.” Ornelas v. United States, 517 U.S. 690, 695 (1996) (internal quotation
marks omitted). The Court has described it as a “commonsense, nontechnical
conception[] that deal[s] with the factual and practical considerations of everyday
life on which reasonable and prudent [people], not legal technicians, act.” Id.(quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)); see also Washington v. State,
287 A.3d 301, 317 (Md. 2022) (explaining “[t]he meaning of reasonable suspicion
is not fixed,” and “relies on a commonsense understanding of the factual and
practical aspects of daily life and how reasonable and prudent people act”) (internal
quotation marks omitted). Assessing whether law enforcement officers had the
requisite reasonable articulable suspicion to justify a Terry stop, however, also
requires some balancing by judges of the “weighty social objective,” Brown v.
Texas, 443 U.S. 47, 52 (1979), of “effective crime prevention and detection” against
the Fourth Amendment’s protection of the “sanctity of the individual,” Terry, 392
U.S. at 22, 26.
25
To determine if a Terry stop was supported by reasonable articulable
suspicion, a court must examine whether the totality of “the facts available to the
officer at the moment of the seizure . . . ‘warrant a [person] of reasonable caution in
the belief’ that [the stop] was appropriate.” Terry, 392 U.S. at 21-22; see also United
States v. Arvizu, 534 U.S. 266, 273 (2002) (acknowledging that “officers [may] draw
on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them”). The facts
contributing to reasonable articulable suspicion must be specific and provide a
“particularized and objective basis” to suspect that “the particular individual being
stopped is engaged in wrongdoing.” United States v. Cortez, 449 U.S. 411, 417-18
(1981) (explaining that “[t]his demand for specificity in the information upon which
police action is predicated is the central teaching of [the Supreme] Court’s Fourth
Amendment jurisprudence” (quoting Terry, 392 U.S. at 21 n.18)). “Multiple factors
may contribute to the totality of the circumstances”; these “includ[e] the time of day,
flight, the . . . nature of the location, furtive hand movements, an informant’s tip, a
person’s reaction to questioning, a report of criminal activity or gunshots, and
viewing of an object or bulge indicating a weapon.” Posey v. United States, 201
A.3d 1198, 1201-02 (D.C. 2019) (internal quotation marks omitted). In short, “the
mosaic which is analyzed for a reasonable-suspicion . . . inquiry is multi-faceted,”
Ornelas, 517 U.S. at 698, and the “fluid concept[]” of reasonable suspicion “take[s]
26
[its] substantive content from the particular contexts in which [it is] being assessed.”
Id. at 696.
Through our scrutiny of the particular factual mosaic of a case, our court
ensures that the “narrow” scope of the exception created by Terry to the Fourth
Amendment requirement that an arrest be supported by probable cause is not unduly
expanded. Robinson, 76 A.3d at 335 (quoting Ybarra v. Illinois, 444 U.S. 85, 93
(1979)); cf. Ornelas, 517 U.S. at 699 (explaining that courts should carefully
scrutinize warrantless searches as “[t]he Fourth Amendment demonstrates a strong
preference for searches conducted pursuant to a warrant . . . and the police are more
likely to use the warrant process if the scrutiny applied to a . . . probable-cause
determination to issue a warrant is less than that for warrantless searches” (internal
quotation marks omitted)).
To give reasoned consideration to all the factors alleged to contribute to
reasonable articulable suspicion, we do not consider them as a jumble. Instead, as
part of our totality of the circumstances analysis, we first assess the legitimacy and
weight of each of the factors that possibly contribute to that totality; we then weigh
that information all together. In re D.A.D., 763 A.2d 1152, 1155 (D.C. 2000)
(explaining that to assess whether the police had reasonable articulable suspicion,
“we evaluate each factor individually and then as a whole”); see also United States
27
v. Bowman, 884 F.3d 200, 214 (4th Cir. 2018) (“[I]n considering whether the factors
articulated by a police officer amount to reasonable suspicion, this court ‘will
separately address each of these factors before evaluating them together with the
other circumstances.’” (quoting United States v. Powell, 666 F.3d 180, 187-88 (4th
Cir. 2011))).
Here, we consider whether there was reasonable suspicion to justify a seizure
based on the circumstances known to the police before Sergeant Jaquez dove to
tackle Mr. Mayo. Specifically, we consider (1) the GRU officers’ initial
observations of Mr. Mayo’s presence in a group in an alley, the dispersal of that
group, and his subsequent interactions with two other individuals; (2) the officers’
observation of his flight after they exited their vehicle, approached him, and asked
him and only him if he had a gun; and (3) their previous seizures of guns in that area.
Based on a consideration of the particular circumstances of this case, both
individually, infra Part II.B.1-3, and collectively, infra Part II.B.4, we conclude
Mr. Mayo’s seizure was not supported by reasonable articulable suspicion and was
thus unlawful.
1. The GRU Officers’ Initial Observations of Mr. Mayo
This street encounter began when Sergeant Jaquez and his fellow GRU
officers decided to pull their vehicle into an alley and approach a group of
28
individuals who, according to Sergeant Jaquez, were “just hanging out.” As the trial
court found, the officers were not responding to any tip or report of a crime in the
area and they did not see “any criminal activity afoot. They didn’t see anything”—
they were simply “just [o]n their usual patrol . . . hunting for illegal guns.” See
Posey, 201 A.3d at 1203 (in concluding police lacked justification to conduct Terry
stop, assigning significance to their lack of observation of “any illegal activity or
any indicia of illegal activity as the officers approached the group of men that
included [the appellant]”).
Thereafter, the GRU officers “singled out” Mr. Mayo, allegedly because he
“disengaged” or walked away from one cluster of individuals and toward other
individuals nearby. But the trial court credited testimony from Mr. Lane, another
member of the group in the alley, that, in fact, the entire group dispersed as the police
arrived. As the trial court found, they “kn[ew]” the GRU, they understood what the
GRU were there for, and they were seeking to stave off further interaction. The trial
court explained that “there [wa]s nothing to put any doubt on the testimony of
Mr. Lane that all of those guys in that group understood what that vehicle was and
what they were coming to do” and thus it “tend[ed] to believe more” that all the
individuals in the group had “started to disperse” when the GRU officers arrived, as
Mr. Lane testified, rather than that Mr. Mayo alone had separated from the group, as
Sergeant Jaquez testified. Given the trial court’s finding that the entire group
29
dispersed, as well as our previous recognition that “an individual’s ‘attempt to
exercise his right not to participate in an encounter’ with police officers does not
‘constitute the kind of conduct on the scene that could significantly bolster the
government’s showing of articulable suspicion,’” Bennett v. United States, 26 A.3d
745, 753 (D.C. 2011) (ellipsis omitted) (quoting Brown, 590 A.2d at 1019-20),
Mr. Mayo’s actions in response to the GRU’s arrival provided little support for the
officers’ decision to seize him, see In re T.L.L., 729 A.2d 334, 340-42 (D.C. 1999)
(holding appellant’s seizure was unsupported by reasonable articulable suspicion
where, in response to the arrival of police at the scene who were investigating a
vague lookout, the appellant and the “entire group of young men”—“the innocent as
well as the possibly guilty”—“tr[ied] to make themselves scarce” by running into an
apartment).
The GRU officers also focused on what they perceived to be Mr. Mayo’s hand
movements while interacting with the man in the wheelchair, the first person he
approached after he allegedly separated from the people he had been talking to when
the police pulled into the alley. According to Sergeant Jaquez, Mr. Mayo was
“making slight adjustments with his front waistband.” Such movements might have
provided some basis for suspecting Mr. Mayo had a weapon in that location had
30
Sergeant Jaquez in fact been able to see them. 7 But the evidence did not establish
that Sergeant Jaquez saw Mr. Mayo’s hands touch his waistband. At the time
Sergeant Jaquez was observing Mr. Mayo, he and his fellow GRU officers were still
in the police car and Mr. Mayo was standing some distance away with his back to
them. As the prosecutor documented after Sergeant Jaquez’s in-court demonstration
of Mr. Mayo’s movements, all Sergeant Jaquez could see were shoulder shrugs,
which made it seem like Mr. Mayo’s hands were moving somewhere in front of him
near the waistband level. The trial court made a specific finding that Sergeant Jaquez
“didn’t see the front” of Mr. Mayo’s body and only saw movement around
Mr. Mayo’s “groin area,” (but see supra note 4) “from the back.” 8
7
The government represents that the trial court inferred from these
movements that Mr. Mayo was armed. But the transcript pages to which the
government cites document that the court was simply acknowledging
Sergeant Jaquez’s speculative testimony regarding Mr. Mayo’s hand movements.
See supra note 5.
8
In its brief to the en banc court, the government highlights trial testimony
from Officer Wright, whom the government did not call to testify at the suppression
hearing. According to Officer Wright, after the police drove into the alley and
Mr. Mayo “disengage[d] from the group,” he appeared to adjust something at his
waistband before he approached the man in the wheelchair and then “appear[ed] to
move his jacket up” as though he were “going to hand something to the []man in the
wheelchair.” Based on these observations, Officer Wright testified that he suspected
Mr. Mayo had a gun.
We have previously recognized our ability to consider undisputed trial
testimony in reviewing a ruling on a motion to suppress—though our decisions are
inconsistent as to whether such undisputed testimony may only be used to uphold
31
Viewed in the context of this record, including the lack of any report of a gun
sighting in the area and the weak locational crime evidence, see infra Part II.B.3,
Mr. Mayo’s gestures are “capable of too many innocent explanations” to provide
much, if any, support for a reasonable articulable suspicion that Mr. Mayo was
armed or otherwise engaged in criminal activity. Duhart v. United States, 589 A.2d
895, 899 (D.C. 1991) (internal quotation marks omitted). This court has repeatedly
held that hand movements that have been directly observed and are consistent with
mundane behavior do not necessarily contribute to reasonable articulable suspicion.
For example, in Duhart, this court rejected the government’s argument that an
the trial court’s suppression ruling, see, e.g., West v. United States, 604 A.2d 422,
427 (D.C. 1992), or whether it may also be used to support a conclusion that the
court erred in denying suppression, see, e.g., Miles v. United States, 181 A.3d 633,
643-44 & n.17 (D.C. 2018) (relying on undisputed trial testimony that the police
drove up onto the sidewalk and blocked the defendant’s path and explaining that
these actions diminished the possibility that defendant’s flight was a product of
consciousness of guilt). Even assuming that only the more limited use of undisputed
trial testimony is proper, but see post at 72 (questioning the “wisdom and fairness”
of considering any trial testimony when reviewing a suppression ruling), we decline
to give Officer Wright’s testimony much, if any, weight. See, e.g., Armstrong v.
United States, 164 A.3d 102, 106 n.7 (D.C. 2017) (explaining that undisputed trial
testimony “may be considered in determining whether error was committed in ruling
on a pretrial motion to suppress” (emphasis added)). While not directly disputed,
Officer Wright’s testimony that he could see Mr. Mayo adjust something at his
waistband and appear to move his jacket up conflicted with and was placed in
considerable doubt by Sergeant Jaquez’s testimony both at the suppression hearing
and at trial that Mr. Mayo only made hand movements at his waistband level while
his back was to the GRU officers (who were still all together in their vehicle),
making it impossible to see either his hands or the front side of his body.
32
officer’s observation of the appellant and another individual “examining
‘something’” in an area “known for high narcotics activity” and the appellant’s
subsequent act of “shov[ing] an item into his pocket” after seeing the police officer
furnished “particularized fact[s] from which [the officer] could conclude that what
had transpired had some connection with drugs.” Id. at 897-900; see also id. at 899
(“There is nothing ‘unusual’ or even mildly ‘suspicious’ about such activity, which
must occur as a matter of course between individuals every day, and there are
innumerable innocent explanations for such behavior.”). Similarly, in In re A.S.,
827 A.2d 46 (D.C. 2003), this court concluded that the appellant’s “stuffing motion
with his right hand into [his] waistband area” could have been the innocuous act of
“tucking in his shirt, scratching his side, pulling up his pants, arranging his
underwear, pager, cell phone, or walkman, etc.” and thus could not support
reasonable articulable suspicion to justify a seizure. Id. at 47-48 (internal quotation
marks omitted); see also In re D.J., 532 A.2d 138, 142-43 (D.C. 1987) (modified on
other grounds by Allison v. United States, 623 A.2d 590 (D.C. 1993)) (rejecting the
government’s argument that appellant’s act of “putting his hands in his pockets”
“raised sufficient cause for suspicion to justify a Terry stop”); cf. Morgan v. United
States, 121 A.3d 1235, 1237-38 (D.C. 2015) (holding police officers had reasonable
articulable suspicion to conduct a Terry stop based on a report from a citizen who
saw appellant “‘reach[] into the back of his pants and pull[] something out and put
33
it back in’ during the exchange of small objects with another man,” because there
was “no plausible, innocent explanation for such conduct” (brackets omitted)). 9
Because here, the GRU officers could not actually observe Mr. Mayo’s hands, the
innocuous possibilities multiply and the value of these movements in constructing
reasonable articulable suspicion correspondingly diminishes. 10
In short, the GRU officers’ observations of Mr. Mayo’s actions before he fled
from them do not, on their own, provide much in the way of support for the
government’s argument that the officers had a lawful basis to stop him.
9
The dissent argues that, in some circumstances, “hand movements that ‘are
consistent with mundane behavior’ can contribute to reasonable, articulable
suspicion” when combined with other evidence that makes those particular hand
movements indicative of wrongdoing. Post at 79. We do not disagree. Our point is
that innocuous hand movements do not contribute to reasonable articulable suspicion
absent other factors that make that behavior more salient.
10
In its brief, the government highlights Sergeant Jaquez’s trial testimony—
more pointed than the testimony he provided at the suppression hearing, see supra
Part I.A—that he “believed” Mr. Mayo might have been trying to “pass [a gun] off”
to someone else. Even if we were to consider this testimony, but see supra note 8,
given Sergeant Jaquez’s conceded limited ability to observe Mr. Mayo, who was
“[f]acing away from [him and his fellow GRU officers],” see supra id., his “belief”
about what Mr. Mayo was doing is speculative and unhelpful to our analysis. See
Parsons v. United States, 15 A.3d 276, 280 (D.C. 2011) (“A court may not simply
rely on a police officer’s conclusory assertions in deciding whether a search or
seizure was justified under the Fourth Amendment, but rather must evaluate the facts
underlying those assertions.” (internal quotation marks omitted)).
34
2. Mr. Mayo’s Flight from the GRU Officers
After Mr. Mayo spoke to the man in the wheelchair, he moved further away
from the GRU officers to speak to another individual. At that point, the GRU
officers exited their vehicle, approached Mr. Mayo, and called out to him, asking if
he had a gun. Mr. Mayo then ran. We consider the import of Mr. Mayo’s flight at
this point in his encounter with the GRU.
“[A] defendant’s flight [from the police] can be a relevant factor in the
reasonable suspicion analysis.” Miles v. United States, 181 A.3d 633, 641 (D.C.
2018). As the Supreme Court observed in Wardlow, “[h]eadlong flight . . . is the
consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such.” 528 U.S. at 124; see also District of Columbia v.
Wesby, 583 U.S. 48, 59 (2018) (observing that “deliberately furtive actions and flight
at the approach of law officers are strong indicia of mens rea” which “can be treated
as ‘suspicious behavior’ that factors into the totality of the circumstances” (ellipses
and internal quotation marks omitted)); Glover, 589 U.S. at 383 (acknowledging
Wardlow’s determination that “[h]eadlong flight . . . could factor into a police
officer’s reasonable suspicion determination” (internal quotation marks omitted)).
That said, as we have previously explained and once more reaffirm, “flight cannot
imply consciousness of guilt in all cases.” Miles, 181 A.3d at 641 (quoting
35
589 A.2d at 900 (quoting Smith v. United States, 558 A.2d 312, 316 (D.C. 1989) (en
banc))). “Flight is not merely a box that, once checked, automatically justifies a
stop.” Posey, 201 A.3d at 1204.
An assessment of reasonable articulable suspicion always requires
consideration of the totality of the circumstances and the particularity of the evidence
as to the defendant. Miles, 181 A.3d at 637-38; Cortez, 449 U.S. at 417-18. A
defendant’s flight, just “like any [other] factor in our comprehensive analysis . . . is
viewed in the context of the specific facts and corroborating circumstances of each
individual case.” 11 Posey, 201 A.3d at 1204; see also Washington, 287 A.3d at 334
(endorsing a totality of the circumstances analysis and observing that “[j]ust as a
bulge in a person’s clothing has different implications for a reasonable suspicion
analysis depending on where it is, what it looks like, or the circumstances
surrounding its observation[,] . . . the nature and circumstances surrounding flight
from police make a difference” (internal quotation marks omitted)); cf. Glover, 589
11
Indicating that it disagrees with the majority opinion, the dissent notes that
(1) “Terry stops can permissibly be based on police observations of actions that
might have an innocent explanation, as long as those actions, considered as a whole,
are sufficiently suspicious” and thus (2) “the mere fact that flight from the police
might in some circumstances be lawful and innocent does not preclude [its]
consideration as part of the totality of circumstances bearing on whether a Terry stop
was permissible.” Post at 80-81. If the dissent is arguing that flight must be assessed
in context, then we agree. If the dissent is arguing that flight must always be
perceived as inculpatory, but may be counterbalanced by other evidence, then we
part ways with the dissent for the reasons set forth infra.
36
U.S. at 386 (explaining that under a totality of the circumstances analysis “the
presence of additional facts might dispel reasonable suspicion”).
“There are myriad reasons an innocent person might run away from the
police.” Miles, 181 A.3d at 641. “[A]n individual may be motivated to avoid the
police by a natural fear or dislike of authority, a distaste for police officers based
upon past experience, a[] . . . fear of police brutality or harassment, a fear of being
apprehended as the guilty party, or other legitimate personal reasons.” Id. (internal
quotation marks and brackets omitted). If, hypothetically, the chief of a city’s police
department announced, as part of an initiative to get guns off the streets of the
District, that her officers were going to stop and frisk every young male in a
particular part of the city under the age of twenty-five without any regard for the
legality of those searches or the ability to later win criminal convictions, it would be
unreasonable to mechanically view flight from the police by individuals in that
demographic group as necessarily indicative of consciousness of guilt. Rather,
without any other contextual information, the much stronger inference would be that
these individuals were seeking to avoid having their liberty suspended and their
dignity compromised. See Terry, 392 U.S. at 16-17 (recognizing that “whenever a
police officer accosts an individual and restrains his freedom to walk away, he has
‘seized’ that person”; the “careful exploration of the outer surfaces of a person’s
clothing all over his or her body in an attempt to find weapons is . . . a ‘search’”; and
37
“such a procedure performed in public by a policeman while the citizen stands
helpless, perhaps facing a wall with his hands raised . . . is a serious intrusion upon
the sanctity of the person, which may inflict great indignity and arouse strong
resentment”).
In short, flight, even from the police, does not automatically justify a Terry
stop, and the degree to which flight reasonably gives rise to an inference of
consciousness of guilt and thereby contributes to reasonable articulable suspicion
depends on context. Duhart, 589 A.2d at 900 (explaining that “the circumstances of
the suspect’s efforts to avoid the police must be such as permit[] a rational
conclusion that flight indicated a consciousness of guilt” (internal quotation marks
omitted)); see also, e.g., Miles, 181 A.3d at 644 (considering whether the “character”
of appellant’s flight was “incriminating” to assess whether police had the requisite
justification to conduct a Terry stop); see generally Glover, 589 U.S. at 385-86
(noting that “[t]his court’s precedents have repeatedly affirmed that the ultimate
touchstone of the Fourth Amendment is reasonableness” (internal quotation marks
omitted)).
Our approach to evaluating flight is consistent with Supreme Court precedent.
The Court first discussed flight as a justification for a Terry stop in Wardlow. See
528 U.S. at 124-25. Notably, the Court declined the State’s request to adopt a
38
“bright-line rule” that seizure of anyone who flees “upon the sight of a clearly
identifiable officer, as a matter of law, justifies” such a stop. Petitioner’s Br. at 5,
10-11, 13, Wardlow (No. 98-1036), 1999 WL 451857; see also Wardlow, 528 U.S.
at 127-28 (Stevens, J., concurring in part and dissenting in part) (“agree[ing] with
the Court’s rejection of the per se rule[]” the State proffered). Instead, the Court
reaffirmed that “the determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior,” and conducted a
totality of the circumstances analysis to discern if police had “reasonable,
particularized suspicion” that Mr. Wardlow was “committing a crime” considering
the “relevant contextual considerations.” Wardlow, 528 U.S. at 124-25. The Court
took note of the fact that the officers in that case were part of a caravan “converging
on an area known for heavy narcotics trafficking,” and “expected to find a crowd of
people in the area, including lookouts and customers,” when they saw an individual
in that area “standing next to” 4035 West Van Buren holding an opaque bag who
“looked in the direction of the officers and fled.” 12 Id. at 121-22, see also id. at
124-25.
12
The dissent highlights this court’s observation in Wilson v. United States
that Mr. Wardlow’s possession of an opaque bag “played no part in the [Supreme]
Court’s reasoning” in Wardlow. 802 A.2d 367, 371 (D.C. 2002); post at 105. But
Wilson’s view that Wardlow injected extraneous facts into its opinion even as it
embraced a totality of the circumstances analysis is subject to doubt. And in
39
In subsequent decisions, the Court has made clear that Wardlow did not
articulate a rigid rule that all flight, regardless of context, supports a reasonable
articulable suspicion calculus. In Missouri v. McNeely, 569 U.S. 141 (2013)
(plurality opinion), the Court cited Wardlow as an example of a “fact-intensive,
totality of the circumstances analys[is]” and not one performed “according to
categorical rules.” Id. at 158. And as noted above, in Glover, the Court explained
that flight “could factor into a police officer’s reasonable suspicion determination,”
589 U.S. at 383 (emphasis added), even as it reaffirmed that the reasonable
articulable suspicion standard “takes into account the totality of the circumstances—
the whole picture,” id. at 386. Likewise, in Wesby, after noting that flight “can be
treated as ‘suspicious behavior’ that factors into the totality of the circumstances,”
583 U.S. at 59 (emphasis added), the Court explained why, in the context of that
case, the individuals’ flight from officers was suspicious: having observed a late-
night party in an abandoned, filthy house where among other things, “the living room
had been converted into a makeshift strip club,” “[a] reasonable officer could infer
decisions since Wilson our court has expressed an understanding, shared by other
courts, that the opaque bag was part of the totality of the circumstances the Court
considered in Wardlow. See Gordon v. United States, 120 A.3d 73, 84 (D.C. 2015);
Miles, 181 A.3d at 640-41; Henson, 55 A.3d at 871 (Blackburne-Rigsby, C.J.,
concurring); see also, e.g., United States v. Navedo, 694 F.3d 463, 471 (3d Cir.
2012); United States v. Brown, 925 F.3d 1150, 1155-56 (9th Cir. 2019). Even if we
disregard the opaque bag referenced in Wardlow, however, our analysis of that case
and the guidance it provides us here would not change.
40
that [the individuals’] scattering and hiding was an indication that they knew they
were not supposed to be there.” Id. at 58-59.
We acknowledge that prior decisions of this court have interpreted flight as
inculpatory without examining whether an individual defendant’s flight evinced
consciousness of guilt under the particular circumstances of the case. In Wilson v.
United States, 802 A.2d 367 (D.C. 2002), we indicated that we understood Wardlow
to hold that all “unprovoked flight” weighs in favor of reasonable articulable
suspicion. Id. at 370-71. And in Henson, already partially overruled, see supra Part
II.A, we indicated that all flight from known police officers is inculpatory, save that
which is responsive to the use of excessive force by those officers. 55 A.3d at 868-
70. These categorical views are irreconcilable with a central concern of the
reasonable articulable suspicion inquiry—to discern whether a defendant’s behavior
reasonably indicates a guilty mind—and sub silentio, if not expressly, we have
recognized that these cases are inconsistent with binding precedent. See Miles, 181
A.3d at 644 n.18 (discussing Henson and explaining that “it would be a mistake to
focus entirely on the propriety of the police officers’ conduct” when evaluating
flight, “given that the key question is whether the defendant’s flight is probative of
his or her participation in criminal activity,” not whether a defendant reasonably
believes they had a right to act in self-defense by fleeing from excessive force).
41
Turning to this case, we consider to what degree Mr. Mayo’s flight,
considered in context, could have been reasonably interpreted by the officers as
consciousness of guilt. To begin with, we note that this case is nothing like
Wardlow, where the defendant, who was holding an opaque bag (see supra note 12)
and standing at an address in an area of high narcotics activity on which officers
were “converging,” took one look at police officers and ran. See 528 U.S. at 121-22,
124-25. Nor is it akin to Wesby, where the police heard loud music and smelled
marijuana coming from an abandoned, filthy house where it appeared a strip-club
party was being held and many of the occupants “scattered at the sight of the
uniformed officers.” 583 U.S. at 59. Here, the GRU officers had no reason to
believe they would find any criminal activity in the alley and observed none. And
the court credited Mr. Lane’s testimony that although people dispersed when the
police first drove up, “nobody” ran at that point.
Furthermore, Mr. Mayo took flight only after the GRU officers took a series
of actions that they should have reasonably understood to communicate to a person
in Mr. Mayo’s position that they planned to stop him. After observing Mr. Mayo
and his companions from their police cruiser, the GRU officers exited their vehicle
wearing tactical gear and singled Mr. Mayo out from the already-dispersed group.
They followed him as he walked down a pathway off the alley toward the location
of another car of GRU officers, with two officers directly behind Mr. Mayo and
42
another taking a parallel path. And they called out as they closed in on him, “[h]ey,
we just want to talk. We just want to talk to you. Do you have any guns?” As the
trial court found, only then did Mr. Mayo decide to run.
The GRU officers’ appearance and actions make this case much like Miles,
where we concluded that “there was nothing about the character of Mr. Miles’s flight
that seemed particularly incriminating” under the circumstances. 181 A.3d at 644.
In that case, the police followed Mr. Miles on foot from behind and cut off his path
with a police car from the front, before asking (effectively ordering) him to stop.
Miles, 181 A.3d at 636, 643-44. We explained that, regardless of their legality or
propriety, the officers’ actions “would be startling and possibly frightening to many
reasonable people,” demonstrating “a reason other than consciousness of guilt for
[appellant] to have fled.” Id. at 644 & n.18; see also Dozier v. United States, 220
A.3d 933, 942 (D.C. 2019) (identifying the manner in which the armed police
officers positioned themselves as they engaged with the appellant in an alley,
including by “park[ing] the patrol car at the entrance to the alley” and “walking
closer to appellant as they called out to him,” as one factor that made the police
encounter with appellant “particularly intimidating”). We acknowledge that, unlike
in Miles, the GRU officers did not, in so many words, direct Mr. Mayo to stop. But
we do not think this single fact mitigates the coercive nature of the GRU officers’
approach because they had already communicated to Mr. Mayo by their actions that
43
they did not intend to allow him to leave without engaging with them. See T.W. v.
United States, 292 A.3d 790, 796 (D.C. 2023) (“The officers’ approach signaled that
they suspected T.W. of criminal activity . . . and that they would detain him unless
disabused of their suspicions.”).
Moreover, we must consider what the officers did say. Focusing on Mr. Mayo
specifically, they asked if he had a gun. We examined similar conduct in Golden:
the GRU officers targeted a young man on the street and asked, in a “conversational”
tone, if “he had any weapons on him.” 13 248 A.3d at 932. We explained that “[i]t
would be a mistake to view the [GRU officers’ ‘do you have a gun’] inquiry as
equivalent to a simple request for information that an officer might put to an ordinary
civilian who is not a suspect but merely may be helpful in an investigation.” Id. at
937. Because it is illegal to carry a gun in the District without proper licensure and
registration, D.C. Code §§ 22-4504(a); 7-2502.01(a), we elaborated:
With this question, the officer gave [the appellant] reason
to understand that a group of police officers in unmarked
cars had singled him out and partially surrounded him
because they suspected him of being armed and
committing a crime at that very moment. [The appellant]
(and any reasonable innocent person in his position) could
not know what grounds the police had to suspect this, what
13
Golden is not factually on all fours with this case. But the distinctions in
precisely how the defendant was approached by the GRU are immaterial for the
purpose of our analysis of the coercive nature of the question, “do you have a gun?”
44
else the police suspected about him, or how dangerous the
police officers deemed him to be.
Id.; accord Dozier, 220 A.3d at 938, 941 (explaining that, where police in tactical
gear single out one person and ask “hey, man, can I talk to you?” and then ask if the
person is armed, it would be reasonable for the targeted individual “to feel vulnerable
and apprehensive” because such “questioning is at least implicitly accusatory (if not
explicitly so)” (internal quotation marks omitted)). 14 As the court asked in Golden,
“[w]ho among us would not have been uneasy if a squad of police suddenly
appeared, partially surrounded us on the street at night, and began interrogating us
as a criminal suspect?” 248 A.3d at 945-46. Given that accusatory questioning,
“particularly in conjunction with other intimidating or coercive circumstances,”
could convey a message to a reasonable person that they were not free to leave, id.
at 935-36; see also T.W., 292 A.3d at 796-97, 803, it is no logical leap to conclude
that the same police conduct could also prompt a reasonable, innocent person who
fears unjustified arrest to flee. Indeed, such a “flashbang method of approaching and
questioning a subject” after “jump[ing] out of halting vehicles” “seems designed to
produce” such fear, which could lead either to “temporary paralysis or flight.” T.W.,
14
In Dozier, we observed that a reasonable person might submit to this show
of authority out of fear that an attempt to “ignor[e] [the] police presence[] or refus[e]
to answer police questions . . . might lead to detention and, possibly, more
aggressive police action.” 220 A.3d at 944. This fear came true in Mr. Mayo’s case:
Sergeant Jaquez responded to Mr. Mayo’s attempt not to engage with the police by
dive-tackling him.
45
292 A.3d at 803; cf. State v. Nicholson, 188 S.W.3d 649, 660-62 (Tenn. 2006)
(recognizing that “innocent reasons for flight” may “includ[e] . . . fear of being
wrongfully apprehended as a guilty party,” rejecting the government’s argument that
defendant’s seizure was justified under Wardlow, and holding under the Tennessee
Constitution that officers lacked reasonable articulable suspicion where defendant
fled from an officer after being asked to “hold up” near “an area being investigated
for gang activity”). 15
15
The government points to a handful of decisions from outside this
jurisdiction to argue that “[n]umerous other courts have inferred consciousness of
guilt when defendants fled from police in circumstances equally or more adversarial
than those presented here.” The dissent makes a similar argument. We are
unpersuaded.
Many of the decisions cited by the government and the dissent either fail to
apply a totality of the circumstances analysis and conclude defendants’ flight
contributed to reasonable suspicion simply because the defendants fled officers in a
“high-crime area,” United States v. Wilson, 963 F.3d 701, 704 (7th Cir. 2020)
(concluding, without further analysis, that the officer had reasonable articulable
suspicion because of defendant’s “unprovoked, headlong flight from police in a
high-crime area”); United States v. Ward, 482 F. App’x 771, 773 (4th Cir. 2012)
(concluding, without more, that “officers possessed reasonable suspicion” because
of factors, including the defendant’s “presence in a high-crime area” and his
“unprovoked flight”)—or they conclude that flight in the absence of police
misconduct is categorically inculpatory, United States v. Jeter, 721 F.3d 746, 754-55
(6th Cir. 2013) (concluding defendant’s flight supported finding reasonable
articulable suspicion in part because there was “no evidence that . . . officers used
fraud to provoke [defendant’s] flight” and because he admitted after his arrest that
he “ran because [he] had a gun” (internal quotation marks omitted)); State v. Law,
112 So.3d 611, 613 (Fla. Dist. Ct. App. 2013) (per curiam) (concluding that
defendant’s flight weighed in favor of finding reasonable articulable suspicion
46
Lastly, accepting “the reality that not all encounters with the police proceed
from the same footing, but are based on experiences and expectations,” Dozier, 220
A.3d at 945, and that “uneven policing practices can affect innocent people’s
reaction to law enforcement,” Washington, 287 A.3d at 331 (internal quotation
marks omitted), any evaluation of a reasonable police officer’s interpretation of
Mr. Mayo’s flight must take into account that some individuals in highly policed
communities might fear over-aggressive police conduct and may flee as a result even
if they are innocent of any wrongdoing. See United States v. Brown, 925 F.3d 1150,
because his flight was not provoked by “substantial evidence of an ‘unreasonable
show of force’” by the officers involved).
The remaining cases, although they appear to apply a true totality of the
circumstances analysis, are not at all analogous to this case because they involve
circumstances where the police had specific information linking a defendant (or
someone who looked like the defendant) to a specific crime, which put the
defendant’s flight in a different light. See United States v. Velez, No. CR 15-00102,
2015 WL 3465738, at *3-4 (N.D. Cal. June 1, 2015) (concluding that officers had
reasonable articulable suspicion where police located defendant in the vicinity
shortly after a robbery had occurred, he largely matched the description of the
suspect, and his flight from police was combined with other suspicious behaviors,
such as “hiding behind a utility box”); United States v. Lawson, 233 F. App’x 367,
368, 370 (5th Cir. 2007) (holding that officer had reasonable articulable suspicion
where he was investigating a tip that an individual in a particular neighborhood
named “G Dog” or “Jerome” was involved in several armed robberies, saw a man
matching the suspect’s description, and after he initiated contact, the defendant ran);
In re D.M., 781 A.2d 1161, 1162, 1164-65 (Pa. 2001) (holding that officer had
reasonable articulable suspicion where he received a radio call regarding a man with
a gun a block away, when officer drove over to that location he saw that defendant
matched the description for the man with the gun, and after officer instructed
defendant to “come over” to the officer, defendant ran).
47
1156 (9th Cir. 2019) (explaining that “[t]here is little doubt that uneven policing may
reasonably affect the reaction of certain individuals—including those who are
innocent—to law enforcement” and “awareness of these issues . . . can inform the
inferences to be drawn from an individual who decides to step away, run, or flee
from police”); Washington, 287 A.3d at 324-25 (explaining that “the Supreme Court
has recognized that the totality of the circumstances analysis includes ‘information
that is accessible to people generally,’ whether members of the public or police
officers,” and concluding that information included “the particular history of police
misconduct in Baltimore,” which had been “part of the ‘factual and practical aspects
of daily life’” for its residents); see also, e.g., Commonwealth v. Warren, 58 N.E.3d
333, 342 (Mass. 2016) (concluding flight as a factor in the reasonable suspicion
analysis could not be separated from recent findings in a report that the Boston Police
Department had engaged in a pattern of racial profiling of African-American men).
Or to put it in the words of a recent concurring opinion endorsed by five out of seven
members of the California Supreme Court, the totality of the circumstances cannot
be assessed “devoid of real world context,” namely, the fact that many individuals
“commonly hold a perception that engaging in any manner with police, including in
seemingly casual or innocuous ways, entails a degree of risk to one’s safety.” People
v. Flores, S267522, 2024 WL 1919992, at *10-11 (Cal. May 2, 2024) (Evans, J.,
concurring).
48
While any reasonable police officer should be aware that some individuals in
highly policed communities might fear aggressive tactics, our particular focus is on
what a reasonable officer “on the scene,” in Mr. Mayo’s case, Posey, 201 A.3d at
1201—i.e., a GRU officer—would have understood. 16 The GRU officers’ entrance
into the Kenilworth neighborhood on the night of Mr. Mayo’s arrest was not a one-
off. Sergeant Jaquez testified that his unit of the GRU was “often sent to patrol” that
area and the trial court found that Mr. Mayo and his companions “knew them” and
“understood . . . what they were coming to do”: they were “hunting for illegal guns.”
The GRU has a reputation for being aggressive in that “hunt,” a reputation any
reasonable GRU officer would have been aware of. See, e.g., Robinson, 76 A.3d at
16
Although we focus here on the GRU, this court has previously
acknowledged both that Black and Brown men in particular have reason to be
apprehensive of police, Dozier, 220 A.3d at 944-45, and that this apprehension may
be considered in assessing whether the actions the police observe provide reasonable
articulable suspicion, see Miles, 181 A.3d at 641 n.14. See also Brown, 925 F.3d at
1156-57 (explaining that “the burden of aggressive and intrusive police
action . . . falls disproportionately on African-American, and sometimes Latino,
males” and, thus, “racial dynamics in our society . . . [can] offer an innocent
explanation of flight” that cannot be discounted in a reasonable suspicion analysis
(internal quotation marks omitted)); Flores, 2024 WL 1919992, at *11 (Evans, J.,
concurring) (acknowledging the “unfortunate and longstanding realities of policing
in many minority communities across the country, as well as the police killings
of . . . thousands of . . . people in the last decade alone” and observing that “[g]iven
this context, it is apparent why attempting to avoid police officers reflects, for many
people, simply a desire to avoid risking injury or death”); Washington, 287 A.3d at
323-25 (noting that racially disproportionate rates of police stops, arrests, and use of
excessive force may give young Black men “innocent reasons” to flee police).
49
331-32, 339 (noting GRU’s acknowledged “technique” of confronting people on the
street, “ask[ing] people if they have a gun,” and then “looking for a reaction,”
including people’s “movements” in response to the question (internal quotation
marks omitted)); United States v. Gibson, 366 F. Supp. 3d 14, 21 (D.D.C. 2018)
(describing how the GRU “trawl[s]” certain “neighborhoods asking occupants who
fit a certain statistical profile—mostly males in their late teens to early forties—if
they possess contraband[] [d]espite lacking any semblance of particularized
suspicion when the initial contact is made” (quoting United States v. Gross, 784 F.3d
784, 789 (D.C. Cir. 2015) (Brown, J., concurring))); see also Jones v. United States,
263 A.3d 445, 449, 459 (D.C. 2021) (holding GRU officers could be impeached for
bias with a photograph they had taken with a unit banner featuring a bullet-pierced
skull and a motto “vest up, one in the chamber” and had posted online, because the
banner communicated a message that the unit’s mission was to “frighten and
control”). 17
17
The dissent “agree[s] that, as a matter of common sense, reasonable police
officers and judges should be aware of . . . [broader contextual] considerations”
“such as general concerns about over-aggressive police conduct, particularly in
highly policed communities and among particular groups.” Post at 90-91. But the
dissent also argues that credited evidence regarding the GRU’s tactics and reputation
in this case cannot inform an understanding of Mr. Mayo’s flight because Justice
Stevens in his separate opinion in Wardlow noted the possibility of these
considerations, and yet the Court “gave substantial weight to flight
notwithstanding.” Id. at 90-91. The dissent is either overlooking the fact that the
50
The police play a critical role in ensuring public safety. But when the
aggressive nature of a police presence in a community makes flight simply to avoid
police interactions a plausible response, such flight cannot automatically be
understood as a manifestation of consciousness of guilt and its value in a reasonable
articulable suspicion analysis is significantly reduced. See Pridgen, 134 A.3d at 303
& n.17 (recognizing that “[a]mong some citizens, particularly minorities and those
residing in high[ly] [policed] areas, there is . . . the possibility that the fleeing
person . . . believes that contact with the police itself can be dangerous” (quoting
Wardlow, 528 U.S. at 132 (Stevens, J., concurring in part and dissenting in part))).
As the totality of these facts demonstrates, Mr. Mayo and his companions
were already familiar with and worried about what Mr. Lane characterized as the
GRU officers’ “harassment” that evening. Before Mr. Mayo fled from the GRU
officers, they had communicated that they specifically suspected him (without
sufficient basis, see supra Part II.B.1) of criminal activity and were targeting him
for investigation or worse. And the GRU officers should have known that
individuals such as Mr. Mayo and his companions would fear their approach and
might take flight, even if they had engaged in no wrongdoing. Under these
record in Wardlow did not contain similar credited evidence or arguing that flight
need not be considered in context, despite its acknowledgement to the contrary, post
at 79; see also post at 94.
51
circumstances, the officers could not reasonably perceive Mr. Mayo’s flight as
clearly reflecting consciousness of guilt; rather it is more consistent with the
“apprehensiveness that would naturally be felt” by a person in his situation. Dozier,
220 A.3d at 942.
3. General Locational Crime Evidence
In past cases, this court has considered whether a defendant was in a “high-
crime area” in analyzing whether the police had reasonable articulable suspicion to
conduct a Terry stop, and the government in this case urges us to consider the “high-
crime-area” evidence it asserts was supplied by Sergeant Jaquez and credited by the
trial court. While we reaffirm that general locational crime evidence—i.e., evidence
that has no link to a particular defendant—may provide context for a defendant’s
actions and inform (in either direction 18) the presence of reasonable articulable
suspicion, we disavow the unhelpful “high-crime area” label. We clarify that the
focus in a Terry analysis should be on the relevant, nonconclusory details about
crime in the location in which a stop is conducted and hold that the weight to be
given to such information will turn on its quality and specificity.
18
See Glover, 589 U.S. at 386 (explaining that under a totality of the
circumstances analysis “the presence of additional facts might dispel reasonable
suspicion”).
52
There is no question that locational evidence about criminal activity presented
by the government can be a relevant consideration in a Terry analysis. In Wardlow,
the Supreme Court affirmed the use of such evidence to put conduct observed by the
police in context. 528 U.S. at 124. As noted above, the central issue in Wardlow
was whether headlong flight after seeing police could justify a Terry stop, or whether
more was needed. See supra Part II.B.2. Although the Court upheld the
constitutionality of the stop, it declined to adopt a rule that flight alone would provide
reasonable articulable suspicion and reaffirmed a totality of the circumstances
analysis. 528 U.S. at 124-25. In so doing, the Court looked to “the relevant
characteristics of a location.” Id. at 124. Specifically, the Court observed that the
officers who conducted the Terry stop in Wardlow had been “converging on an area
known for heavy narcotics trafficking” “in order to investigate drug transactions”
and that they “anticipated encountering a large number of people in the area,
including drug customers and individuals serving as lookouts” when they saw
Mr. Wardlow, standing in that area, “holding an opaque bag.” Id. at 121-22, 124(explaining that the officers decided to investigate “in this context”) (emphasis
added); see supra note 12.
In conducting its analysis, the Supreme Court in Wardlow made a single
reference to “high crime area,” explaining that “the fact that [a] stop occurred in a
‘high crime area’” was “among the relevant contextual considerations in a Terry
53
analysis.” 528 U.S. at 124. But nowhere did the Court indicate that it was
announcing that Terry stops could be substantiated based on the mere affixing of a
dangling comparative label of “high crime” to certain city blocks or even entire
neighborhoods. 528 U.S. at 124. Such an interpretation of Wardlow flies in the face
of its reliance on location as context for Mr. Wardlow’s flight—specifically, his
presence at a particular location where active drug activity was anticipated—as well
as the general Fourth Amendment principle that the police must have individualized,
particularized suspicion in order to conduct a Terry stop. See, e.g., Glover, 589 U.S.
at 385 n.1 (“reiterat[ing] that the Fourth Amendment requires . . . an individualized
suspicion that a particular citizen was engaged in a particular crime”); Armstrong v.
United States, 164 A.3d 102, 108 (D.C. 2017) (“[A] generalized description
applicable to large numbers of people contradicts the Fourth Amendment’s
jurisprudence demanding specificity.”).
Because “thousands of citizens live and go about their legitimate day-to-day
activities in areas which surface . . . in court testimony[] as being high crime
neighborhoods,” Smith, 558 A.2d at 316, our court has long warned against reliance
on the “high crime area” phrase as a “talismanic litany” to justify Terry stops, Curtis
v. United States, 349 A.2d 469, 472 (D.C. 1975); see also In re D.J., 532 A.2d at
143 (quoting Curtis); Smith, 558 A.2d at 316 (quoting In re D.J. (quoting Curtis));
Duhart, 589 A.2d at 900 (quoting In re D.J. (quoting Curtis)); Cousart v. United
54
States, 618 A.2d 96, 106 (D.C. 1992) (en banc) (quoting Smith (quoting In re D.J.));
Jackson v. United States, 805 A.2d 979, 990 (D.C. 2002) (quoting Duhart (quoting
In re D.J. (quoting Curtis))). Our abiding concern is that “residents of certain
neighborhoods in the District of Columbia may be more likely to be suspected of
engaging in criminal activity simply because of where they live or frequent,” and we
have “cautioned against over-reliance on this amorphous term to support reasonable
articulable suspicion to effect a seizure.” Dozier, 220 A.3d at 943 n.12; see also
Maye v. United States, 260 A.3d 638, 647 (D.C. 2021) (noting that “the officers’
testimony about this being a high-crime area was short on specifics” and explaining
“[w]e would need a great deal more than what the government offers here for the
location of the encounter” to provide helpful context for a reasonable articulable
suspicion analysis (internal quotation marks omitted)); Robinson, 76 A.3d at 340
(“[R]eliance on the character of the streets . . . is not the same as the particularized,
individualized suspicion that is required under Terry” and “does not authorize
[police] officers to rove troubled neighborhoods and briefly detain and patdown
anyone they encounter.” (internal quotation marks omitted)). Nevertheless, this
unhelpful language continues to be invoked and relied upon as a factor in the
reasonable articulable suspicion analysis, as this case illustrates.
We thus now hold that courts should no longer give weight to a bare “high-
crime area” label in assessing the validity of a Terry stop. Rather, consistent with
55
Wardlow and the Supreme Court’s understanding of that case in subsequent
opinions, the exclusive focus in assessing general locational crime information
should be on the particular details that make an individual’s actions more or less
suspicious when viewed in context. See Glover, 589 U.S. at 386 (explaining that a
totality of the circumstances analysis “takes into account . . . the whole picture”); cf.
McNeely, 569 U.S. at 158 (describing Wardlow as an example of a “fact-intensive,
totality of the circumstances analys[is,] rather than” the application of “categorical
rules”). In other words, courts must consider how general locational crime
information—that is, evidence that other people have committed crimes in an area—
meaningfully aids in the assessment of the individualized suspicion that is
constitutionally required for a Terry stop.
To provide a meaningful context for potentially suspicious behavior, any
general evidence about crime in a location must be relevant to the conduct at issue.
For example, the fact that an individual is in an area where there has been a recent
spate of carjackings will not help a reasonable police officer assess whether that
individual’s ambiguous conduct gives rise to reasonable articulable suspicion that
they are selling drugs. 19 Furthermore, conclusory assertions will not suffice; an
19
We acknowledge the Supreme Court’s recent statement in Glover that
police officers must have reasonable articulable suspicion that “a particular citizen
was engaged in a particular crime.” 589 U.S. at 385 n.1 (emphasis added). But we
56
officer instead must be able to point to “specific evidence . . . that led the officer to
suspect criminal activity in a particular circumstance.” Singleton v. United States,
998 A.2d 295, 300-01 (D.C. 2010); see also Terry, 392 U.S. at 21 (explaining that
“[t]he scheme of the Fourth Amendment becomes meaningful only when it is
assured that at some point the conduct of those charged with enforcing the laws can
be subjected to the more detached, neutral scrutiny of a judge who must evaluate the
reasonableness of a particular search or seizure in light of the particular
circumstances”); Milline v. United States, 856 A.2d 616, 619 (D.C. 2004)
(explaining that “in assessing the constitutionality of an investigatory stop, a court’s
determination of the existence of reasonable suspicion ‘cannot be a mere ratification
of the conclusions of others’” (quoting Gates, 462 U.S. at 239)); Golden, 248 A.3d
at 941 (rejecting reliance on conclusory statements in a reasonable articulable
suspicion analysis).
Beyond these requirements, assessing the value of general locational crime
information in interpreting potentially suspicious conduct will be a fact-intensive
inquiry. This inquiry should turn on the quality and specificity of the information,
need not decide whether the Court meant that literally or whether officers must have
reasonable articulable suspicion as to a particular category of crimes. Even if we
assume the latter, we conclude that the general locational crime information here did
not adequately support a reasonable suspicion that Mr. Mayo was committing some
offense within a category of gun-related crimes. See infra.
57
with particular focus on the recency, frequency, and geographic proximity of the
relevant criminal activity. See, e.g., Washington, 287 A.3d at 330 (explaining that
to be of value in a reasonable articulable suspicion analysis, information about crime
in the area “must be particularized as to the location or geographic area at issue, the
criminal activity known to occur in the area, and the temporal proximity of the
criminal activity known to occur in the area to the time of the stop”); United States
v. Wright, 485 F.3d 45, 53-54 (1st Cir. 2007) (directing trial courts assessing
reasonable articulable suspicion to consider “the nexus between the type of crime
most prevalent or common in the area and the type of crime suspected in the instant
case,” the “limited geographic boundaries of the ‘area’ or ‘neighborhood’ being
evaluated,” and the “temporal proximity between evidence of heightened criminal
activity and the date of the stop or search at issue”); United States v. Montero-
Camargo, 208 F.3d 1122, 1138 & 1139 n.32 (9th Cir. 2000) (en banc) (explaining
that, to be relevant in an assessment of reasonable articulable suspicion,
consideration of “high crime area” evidence—a term the court recognized “may well
be an invitation to trouble”—must be “limited to specific, circumscribed locations
where particular crimes occur with unusual regularity” and instructing courts to
consider the underlying support for any assertions about crime levels in a particular
58
area so as not to “tar people with the sins of their neighbors”), cert. denied, 531 U.S.
889 (2000). 20
We entrust trial courts with the obligation in the first instance to conduct a
careful assessment of any general locational crime information and to ascribe to this
locational information only the weight as is appropriate based on the record created.
Here, we conclude that the trial court, at least initially, rightly declined to find that
Sergeant Jaquez’s testimony about crime in the location of Mr. Mayo’s arrest
20
There is nothing “rigid” about this inquiry. And none of the cases the
dissent cites as having “declined to impose rigid prerequisites to the consideration
of general locational crime evidence,” post at 96-97, undermine our observation that
the value of general locational crime information will depend on its relevance,
quality, and specificity. In United States v. Weaver, 9 F.4th 129, 151 n.86 (2d Cir.
2021) (en banc), the Second Circuit rejected the notion that “[s]tatistical data . . . [is]
required” before general locational crime evidence may become relevant, but we
impose no such requirement in this decision. In United States v. Guardado, 699
F.3d 1220, 1222-23 (10th Cir. 2012), the Tenth Circuit upheld reliance on a “area’s
disposition toward criminal activity as a factor that contributes to an officer’s
reasonable suspicion,” seemingly referring to a detective’s conclusory testimony that
the defendant was in “an extremely high crime area,” without requiring supporting
information of any kind, a position even the dissent appears to disavow. Post at
94-95. And in United States v. Baskin, 401 F.3d 788, 792-93 (7th Cir. 2005), the
Seventh Circuit actually relied on general locational crime information that we too
would accord weight: the defendant was stopped late at night, in a remote area, in
“close proximity to a newly discovered methamphetamine lab.”
59
provided objectively useful context for Mr. Mayo’s actions in a reasonable
articulable suspicion calculus. 21
Sergeant Jaquez’s vague testimony about narcotics activity had no
demonstrated connection to a suspicion that Mr. Mayo was armed. 22 Although
relevant, his testimony about guns lacked meaningful specificity. His assertion that
in three years he had “recovered multiple weapons, handguns and also narcotics,”
provided no geographic boundaries other than that this police work had occurred in
“the Kenilworth area.” He apparently gestured to a map, but that map was not
introduced into evidence, see supra note 1, and the trial court’s finding that he had
identified “a particular neighborhood” of unknown boundaries, not “the entire
District of Columbia,” is hardly support for particularized suspicion.
21
After initially granting Mr. Mayo’s motion to suppress, the court
reconsidered its ruling and overcame the “difficulty” it previously had with
Sergeant Jaquez’s testimony. The court indicated that it did not matter whether it
was objectively true that Mr. Mayo was seized in a “high crime area”; instead, what
was “in the mind of the officer” was dispositive. But the law is the exact opposite.
In evaluating the legality of a stop, “it is imperative that the facts be judged against
an objective standard,” lest Fourth Amendment guarantees be left “to the discretion
of the police.” Terry, 392 U.S. at 21-22.
22
At trial, Officer Wright asserted that the whole “neighborhood” was “an
open-air drug market.” The government does not seek to rely on this testimony;
even if it had, our analysis would not change. Such unsubstantiated hyperbole is
less than helpful in assessing reasonable articulable suspicion.
60
Further, Sergeant Jaquez’s estimate that his unit had recovered “over 10 guns”
in a three-year period was weak tea at best. He provided no meaningful detail about
how these guns had been detected and recovered. We do not know whether the ten
guns Sergeant Jaquez referenced were recovered from individual street (or alley)
seizures as opposed to one or more home raids conducted with a warrant. While the
recovery of any unlicensed handguns in a neighborhood is understandably
concerning to its residents and visitors, the fact that an average of three to four guns
had been recovered per year in an undefined geographic area without a basis of
comparison (other than Sergeant Jaquez’s vague assertion that this number was “one
of the . . . higher amounts of guns [the GRU had] recovered compared to other parts
of the city”) adds little to the contextual consideration of location in a reasonable
articulable suspicion analysis. See Maye, 260 A.3d at 641-42, 646-47 (concluding
that similarly vague testimony that over the course of five or more years officers had
confronted multiple individuals with guns or drugs on a specific block did not
provide meaningful context for evaluating “innocuous behavior like adjusting one’s
waistband” in a reasonable articulable suspicion analysis); see also State v.
Goldsmith, 277 A.3d 1028, 1040-41 (N.J. 2022) (acknowledging that “the character
and prevalence of crime in an area—although insufficient on its own to support
particularized suspicion—can be one factor in determining whether reasonable
suspicion exist[s],” but cautioning that the State must provide “at least some
61
evidence to support the assertion” that the character of the area is relevant and
concluding that an officer’s testimony that a particular block had been the site of
“shootings” and he had seen “[f]ive to ten” drug transactions and arrested individuals
there over the course of his twenty-year career was too “vague” to provide such a
foundation).
In sum, we cannot say that the general locational crime information that the
government presented was sufficiently specific or well-grounded to place
Mr. Mayo’s innocuous conduct in a different light or make his flight more indicative
of consciousness of guilt.
4. Totality of the Circumstances
Having separately examined (1) the GRU officer’s initial observations of
Mr. Mayo; (2) Mr. Mayo’s flight from the GRU officers; and (3) the general location
crime evidence presented by the government, we now consider whether,
collectively, the “totality of the[se] circumstances” supports a determination that the
GRU officers had reasonable articulable suspicion to seize Mr. Mayo. Arvizu, 534
U.S. at 274 (internal quotation marks omitted). We conclude it does not.
To reiterate, the GRU officers did not see “any criminal activity afoot” as they
approached Mr. Mayo and his companions; at most, they observed the group
62
disperse and witnessed, from behind, Mr. Mayo move his hands somewhere in the
vicinity of his waistband. Mr. Mayo then took flight after three GRU officers, who
should have known that individuals might fear their aggressive tactics, began
approaching Mr. Mayo from different angles and asked him if he had “any guns” in
a way that indicated they suspected him of criminal activity. These actions took
place in a location which the government argued was within a “high-crime area,”
but especially without a comparator we are unconvinced that the number of
seizures—ten guns over a three-year period—was “high,” and the government’s
evidence lacked any meaningful specificity about the nature of these seizures or the
boundaries of the “area” within which they were conducted. Even taken together,
we cannot say these facts establish that GRU officers had reasonable articulable
suspicion that Mr. Mayo was engaged in criminal activity prior to seizing him. At
most, the facts establish that GRU officers had an inchoate and unparticularized
hunch that Mr. Mayo was carrying a weapon.
In making this decision, we rely Supreme Court decisions discussed earlier in
this opinion and the principles we extract therefrom. We acknowledge we are bound
by Wardlow and Wesby in particular, but those cases, with their very different
records creating a very different mosaic of facts, only get us so far. Ornelas, 517
U.S. at 696, 698 (explaining that the “fluid concept[]” of reasonable suspicion
“take[s] [its] substantive content from the particular contexts in which [it is] being
63
assessed” and “the mosaic which is analyzed for a reasonable-suspicion . . . inquiry
is multi-faceted”). Hewing to their facts as if they constituted some sort of precise
measuring stick would “impose a rigid structure on the concept of reasonableness,”
Glover, 589 U.S. at 384, that the fundamental Fourth Amendment inquiry—
examining whether a search or seizure of a particular individual is reasonable under
the totality of the circumstances—does not allow. See Johnson v. United States, 253
A.3d 1050, 1062 (D.C. 2021) (Blackburne-Rigsby, C.J., concurring) (cautioning that
Wardlow should not be applied so “formulaically” that consideration of flight and
“high crime” evidence “become[s] a substitute for requiring police officers to have
particularized suspicion of an individual’s suspected criminal activity prior to a
lawful seizure”).
Hence, we look beyond those cases to our court’s decisions for additional
guidance. See, e.g., Miles, 181 A.3d 633; Posey, 201 A.3d 1198. We acknowledge
that, like the Supreme Court’s decisions, they are not factually on all fours with this
case either. But they fill out the picture of the definition-defying concept of
reasonable articulable suspicion, see Ornelas, 517 U.S. at 695, and inform this en
banc court’s understanding of the requisite Fourth Amendment analysis, an analysis
which was undertaken in this case precisely because the law was perceived to need
clarification.
64
We also look to decisions from other courts to support our conclusion that
Mr. Mayo’s seizure, based on little more than his flight from the GRU and weak
general locational crime evidence, was not a lawful Terry stop. Some of these cases
helpfully analyze flight evidence, and others analyze general locational crime
evidence, see supra. Some address both of these considerations. See, e.g., United
States v. Conerly, 75 F. Supp. 3d 1154, 1157, 1165 (N.D. Cal. 2014) (ruling that
officers lacked reasonable articulable suspicion to detain Mr. Conerly based on
evidence that after the police saw him walking down the street in an area the police
asserted but failed to substantiate was “commonly frequented by individuals
possessing firearms and engaging in drug dealing” and told him to stop, he
“immediately fled”); McKinney v. State, 444 S.W.3d 128, 130, 133, 134 (Tex. App.
2014) (holding defendant’s “flight . . . without more” could not justify a Terry stop
and defendant’s presence in an area the police simply asserted was “known for”
“numerous drug complaints,” a “lot of gang activity” and “multiple shootings” did
not combine with his flight to give the police reasonable articulable suspicion);
Monjaras v. State, 679 S.W.3d 834, 848-49 (Tex. App. 2023) (holding that officers
lacked reasonable articulable suspicion to seize and search the defendant who
officers testified was in a “high-crime” area, appeared “nervous[],” and may have
run from police); People v. Harris, 957 N.E.2d 930, 935-38 (Ill. App. Ct. 2011)
(holding that officers lacked reasonable articulable suspicion to stop a defendant
65
where officers testified that the defendant ran from police and offered “[a]
conclusory and unsubstantiated statement” about “the level of crime in the area
where defendant was stopped”); D.R. v. State, 941 So.2d 536, 537-38 (Fla. App. Ct.
2006) (holding that officers lacked reasonable articulable suspicion to stop defendant
where defendant ran after two officers drove up beside her in an area where there
had been “multiple narcotic complaints” over “some unknown” period of time). 23
That said, we are wary of over-relying on attempts at case matching. We
recognize that in this fact-specific context, “two cases are seldom sufficiently alike,”
Gomez v. United States, 597 A.2d 884, 889 (D.C. 1991), and, further, that the nature
of policing and reasonable expectations of privacy and personal autonomy are not
static concepts. Requiring us to identify a precise predicate case match before we
23
We are unpersuaded by the cases the dissent perceives to be comparable to
Mr. Mayo’s where courts determined a seizure was supported by reasonable
articulable suspicion. Notably, the government’s reports of “high crime” in the area
went unchallenged in all of these cases. See Jeter, 721 F.3d at 754-55; United States
v. Bridges, 382 F. Supp. 3d 62, 65 (D.D.C. 2019); United States v. Jones, 609 F.
Supp. 2d 113, 124 (D. Mass. 2009); United States v. Smith, 633 F.3d 889, 894 (9th
Cir. 2011); McGee v. State, 818 So.2d 558, 559 (Fla. App. Ct. 2002). And these
cases have other legally and factually distinguishing features. For instance, in Jeter,
721 F.3d at 755, the Sixth Circuit appeared to rely in part on the defendant’s after-
the-fact admission he had a gun to justify his seizure, which we deem impermissible.
And in Bridges, 382 F. Supp. 3d at 64-65, 70, and Jones, 609 F. Supp. 2d at 120-23,
128, the courts’ conclusions that officers had reasonable articulable suspicion to
seize individuals who fled from them in “high crime” areas rested in part on the fact
that the police were responding to specific reports of relevant crime in the area,
which was not the case here.
66
acknowledge a Fourth Amendment violation would stifle any development in this
inherently dynamic area of the law.
Because we conclude that the facts of this case did not give rise to reasonable
articulable suspicion, we hold Sergeant Jaquez’s seizure of Mr. Mayo was unlawful
and violated his rights under the Fourth Amendment.
C. Whether the Evidence Should Be Suppressed
When it sought rehearing en banc, the United States addressed only the
division’s holding that the officers lacked reasonable articulable suspicion. The
order granting rehearing en banc did not explicitly indicate that rehearing en banc
was being granted only on that issue. Moreover, the en banc court’s order vacated
the division’s decision in its entirety and directed the parties to file new briefs to
supersede the earlier briefs in the case. Understandably, the parties briefed and
argued before the en banc court not only the issue of reasonable articulable suspicion
but also exclusionary-rule issues. Although the en banc court’s initial order was not
clear on this point, we granted review only with respect to the issue of reasonable
articulable suspicion. The en banc court therefore does not address the exclusionary-
rule issues. See Mashaud v. Boone, 295 A.3d 1139, 1148 n.3 (D.C. 2023) (en
banc) (explaining that petitioner’s failure to raise a sufficiency issue in a petition for
rehearing en banc would give us grounds “to bypass [that issue] entirely”).
67
Accordingly, we reinstate Part II.C of the division opinion, Mayo, 266 A.3d at 268-
72, concluding the evidence recovered subsequent to Mr. Mayo’s seizure—the drugs
found on his person as well as the gun and drugs he apparently discarded or handed
off to another person after Sergeant Jaquez seized him and he pulled away—must be
suppressed pursuant to the exclusionary rule. We also reinstate Part V of Judge
McLeese’s dissent, id. at 282-83.
III. Conclusion
For the reasons set forth above, we hold that Mr. Mayo was illegally seized,
and the physical evidence obtained by the police from his person and in the area of
his flight should have been suppressed. Accordingly, we vacate Mr. Mayo’s
convictions and remand for further proceedings consistent with this opinion.
So ordered.
MCLEESE, Associate Judge, dissenting: The en banc court holds that the police
violated Mr. Mayo’s Fourth Amendment right to be free from an unreasonable
seizure of his person. Although I view this as a close case, I ultimately conclude
that the seizure of Mr. Mayo was lawful. Moreover, for the reasons given in the
reinstated portion of my dissent as a member of the division, I believe that the trial
68
court should consider in the first instance whether suppression of the evidence would
be warranted under the exclusionary rule. See Mayo v. United States, 266 A.3d 244,
282-83 (D.C. 2022) (McLeese, J., dissenting). I therefore respectfully dissent.
I. The Factual and Procedural Background
A. The Evidence at the Suppression Hearing
The opinion of the en banc court describes the evidence at the suppression
hearing. Supra at 4-10. In sum, the United States’s evidence was as follows. Police
officers wearing badges drove an unmarked cruiser into an alley in the Kenilworth
neighborhood. The officers worked in the Gun Recovery Unit (“GRU”), which often
patrolled in that area. In the preceding three years, the GRU had recovered narcotics
and ten or more guns from the area. That was “one of the . . . higher amounts,”
compared to other areas of the city. One of the officers, Sergeant Jaquez, focused
on Mr. Mayo, who had been standing with a group of other individuals. Mr. Mayo
walked over to a man in a wheelchair. Mr. Mayo was facing away from
Sergeant Jaquez, who therefore could not see Mr. Mayo’s hands. Sergeant Jaquez
saw Mr. Mayo’s shoulders moving up and down, and he believed that Mr. Mayo was
making adjustments in the area of his front waistband. After a few seconds,
Mr. Mayo left the man in the wheelchair and walked away from the officers. Three
officers got out of the cruiser and began walking toward Mr. Mayo. One of them
69
said to Mr. Mayo, “Hey, we just want to talk. We just want to talk to you. Do you
have any guns?” Mr. Mayo then began to run, at which point Sergeant Jaquez
tripped him. Mr. Mayo continued to flee, but other officers apprehended him. Id.
As the opinion of the en banc court explains, supra at 8-10, Mr. Lane, a
defense witness who was present during the incident, testified to a somewhat
different version of events. In sum, Mr. Lane testified that a car including four police
officers approached a group that included Mr. Lane and Mr. Mayo. The officers
asked the group if they had any guns, and in response all of the members of the group
lifted up their jackets to show the police that they did not have any guns. The officers
then got out of the car, which worried the group, so everyone in the group scattered
and ran away from the officers. Mr. Lane further testified that when the police come
into the neighborhood the group knows what the police are coming for, so the
members of the group automatically show their waistbands. Id.
B. The Trial Court’s Factual Findings
As the opinion of the en banc court explains, the trial court initially granted
the motion to suppress but then reconsidered and denied the motion. Supra at 10-14.
In sum, the trial court made the following factual findings in the course of those
rulings.
70
The trial court credited Mr. Lane’s testimony that the group dispersed when
the police arrived because, as the trial court put it, the group knew the officers as
members of the GRU who were “regular[s],” and the members of the group therefore
knew what the officers were coming to do. (The trial court’s description of
Mr. Lane’s testimony on this point ran somewhat beyond Mr. Lane’s actual
testimony, as described above.) Mr. Mayo walked over to the man in the wheelchair
and made motions around his groin area that Sergeant Jaquez said created a
suspicion of weapons. Sergeant Jaquez did not see Mr. Mayo’s front, however, and
did not see a bulge. The running began when Sergeant Jaquez went over to
Mr. Mayo and asked if Mr. Mayo had a gun.
With respect to the evidence of prior crime in the neighborhood, the trial court
credited Sergeant Jaquez’s testimony that the GRU had recovered ten guns in the
Kenilworth neighborhood in the preceding three years.
C. The Standard of Review and Consideration of Trial Evidence
The decision of the en banc court “retire[s] . . . unhelpful and potentially
confusing” language in our prior cases stating that our review of suppression rulings
is “narrow” or “limited.” Supra at 15 (internal quotation marks omitted). I agree
with the en banc court on that point. I further agree that we must decide de novo the
legal issues presented in this case. Id. I therefore see no need to discuss the trial
71
court’s legal analysis in either the initial or the final suppression ruling. I also agree
that we review the trial court’s factual determinations for clear error. Id. Finally, I
agree with the decision of the en banc court to assume without deciding that where
the trial court made no explicit finding, this court should view the evidence in the
light most favorable to the trial court’s ultimate suppression ruling. Id. at 17-18.
I see two points as more complicated. First, I am skeptical of the en banc
court’s statement that this court can appropriately reverse a trial court’s suppression-
hearing ruling based on facts that this court itself finds for the first time on appeal
simply because this court views the evidence at the suppression hearing with respect
to those facts to be “undisputed.” Supra at 16. I can agree that this court could treat
something as fact, even if not found by the trial court, if it would be clear error to
reach any other conclusion given the record at the suppression hearing. In general,
though, “[w]here [factfinders] of reason and fairness may entertain differing views
as to the truth of the testimony, whether it be uncontradicted, uncontroverted or even
undisputed, evidence of such a character is for the trier of fact.” Hamilton v. Hojeij
Branded Food, Inc., 41 A.3d 464, 473 (D.C. 2012) (brackets and internal quotation
marks omitted).
Second, the en banc court acknowledges that our prior decisions are
inconsistent on whether this court can rely on “undisputed” trial testimony to reverse
72
a trial court’s suppression ruling. Supra at 30-31 n.8. For reasons that I explained
in my dissent as a member of the division, Mayo, 266 A.3d at 275-76 (McLeese, J,
dissenting), in my view our prior binding authority precludes such use of trial
testimony. The en banc court declines to decide the issue. Supra at 30-31 n.8. I
have no objection to that approach, because the parties have not squarely presented
the issue for decision in this case and because I agree that we need not decide the
issue to resolve this case. In an appropriate case, though, I would be inclined to
reiterate our binding holdings that “undisputed” trial testimony cannot be relied upon
by this court as a basis for reversing a trial court’s suppression ruling. More broadly,
in an appropriate case I would be tentatively inclined to reconsider our prior holdings
that “undisputed” trial testimony can be considered in support of the trial court’s
suppression ruling. Although that principle is a longstanding one, I have come to
doubt its wisdom and fairness. Among other things, the principle seems to me to
place an unreasonable burden on defense counsel to monitor the trial for evidence
that might be relevant to a previously decided suppression ruling and to dispute that
evidence in some way even if there is no reason to do so for purposes of the jury’s
determination of guilt or innocence.
73
II. Analysis
The opinion of the en banc court holds that Mr. Mayo was seized when
Sergeant Jaquez tripped him. Supra at 19-22. I agree with that holding. I
respectfully disagree, however, with the en banc court’s holding that the police
lacked reasonable, articulable suspicion to seize Mr. Mayo.
A. General Fourth Amendment Principles
The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S.
Const. amend. IV. It is undisputed in this case that the initial seizure of Mr. Mayo
was an investigative detention (also called a Terry stop) and therefore was lawful if
Sergeant Jaquez had “a reasonable suspicion supported by articulable facts that
criminal activity may be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(internal quotation marks omitted). From a layperson’s perspective, one might think
that Sergeant Jaquez obviously had reasonable grounds to suspect Mr. Mayo.
Sergeant Jaquez was in a neighborhood in which his unit had recovered ten guns in
the prior three years, which was one of the higher amounts compared to other parts
of the city; when the police arrived, Mr. Mayo walked over to another person and
made movements that, viewed from behind, led Sergeant Jaquez to infer that
Mr. Mayo was adjusting his waistband; and Mr. Mayo started running right after
Sergeant Jaquez asked Mr. Mayo if he had a gun. In my view, it would be quite
74
natural to say that Sergeant Jaquez stated facts that led him to reasonably suspect
that Mr. Mayo may have been committing a criminal offense.
The concept of reasonable, articulable suspicion has been described as
governed by “common sense and ordinary human experience.” United States v.
Sharpe, 470 U.S. 675, 685 (1985). The concept has not, however, actually been
interpreted entirely in layperson’s terms. As the Supreme Court explained when it
recognized Terry stops, determining the permissible scope of Terry stops requires
balancing “the need to . . . seize against the invasion which the . . . seizure entails.”
Terry v. Ohio, 392 U.S. 1, 21 (1968) (parentheses and internal quotation marks
omitted).
On one hand, Terry stops can advance the “weighty social objective,” Schall
v. Martin, 467 U.S. 253, 264 (1984) (internal quotation marks omitted), of “effective
crime prevention and detection,” Terry, 392 U.S. at 22. On the other hand, Terry
stops implicate the vital interest in the “sanctity of the individual.” Terry, 392 U.S.
at 26.
Terry stops are “substantially less intrusive” than full custodial arrests.
Dunaway v. New York, 442 U.S. 200, 210 (1979). Nevertheless, Terry stops are
serious intrusions upon personal liberty and privacy. See, e.g., United States v.
Street, 917 F.3d 586, 592 (7th Cir. 2019) (“An investigative stop under Terry
75
imposes a substantial intrusion on a person’s liberty and dignity.”); cf. Berkemer v.
McCarty, 468 U.S. 420, 436 (1984) (traffic stop “significantly curtails the freedom
of action of the driver and the passengers”) (internal quotation marks omitted).
During a Terry stop of an individual, the police by definition restrain the individual’s
freedom of movement. Terry, 392 U.S. at 19 n.16. If the circumstances make it
reasonable to do so, officers during a Terry stop may also (1) use physical force to
seize the individual (as Sergeant Jaquez did in this case), id. at 28; (2) conduct a
limited search, i.e., a frisk, of the individual’s person for weapons, id. at 25-26, 29;
and (3) place the individual in handcuffs, Womack v. United States, 673 A.2d 603,
608-10 (D.C. 1996). A Terry stop must be reasonable in duration, but such stops
can permissibly last for a significant time. Compare Sharpe, 470 U.S. at 682-88(upholding Terry stop lasting twenty minutes), and McIlwain v. United States, 568
A.2d 470, 473 (D.C. 1989) (upholding Terry stop lasting thirty minutes), with United
States v. Place, 462 U.S. 696, 709-10 (1983) (holding that, under circumstances,
Terry stop lasting ninety minutes was unreasonably long).
Given the serious consequences of Terry stops, the degree of suspicion
adequate to permit such stops must be set sufficiently high to strike an appropriate
balance between the important interests at stake. The opinion of the en banc court
accurately summarizes the general guidance that the Supreme Court has provided
about the degree of suspicion that is required. Supra at 22-27. In sum, reasonable,
76
articulable suspicion (1) is “not reducible to precise definition or quantification,”
Florida v. Harris, 568 U.S. 237, 243 (2013) (internal quotation marks omitted); (2)
is a “commonsense, nontechnical conception[],” Ornelas v. United States, 517 U.S.
690, 695 (1996); (3) turns on the “totality of circumstances,” United States v. Arvizu,
534 U.S. 266, 273 (2002) (internal quotation marks omitted); (4) requires
considerably less than proof by a preponderance and obviously less than probable
cause, Kansas v. Glover, 589 U.S. 376, 380 (2020), although probable cause is also
“incapable of precise definition or quantification into percentages,” District of
Columbia v. Wesby, 583 U.S. 48, 64 (2018) (internal quotation marks omitted); and
(5) requires more than an “inchoate and unparticularized suspicion or hunch of
criminal activity,” Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (internal quotation
marks omitted); see also Alabama v. White, 496 U.S. 325, 329-30 (1990) (“The
Fourth Amendment requires some minimal level of objective justification for
making the stop.”) (internal quotation marks omitted).
I pause to acknowledge the difficulties confronted by both law-enforcement
officers and judges in applying the “reasonable, articulable suspicion” standard.
Officers deciding whether a Terry stop is appropriate must make “difficult split-
second judgments” based on a standard that has not been and cannot be clearly
defined and that turns on a “fact-intensive, totality of the circumstances” analysis.
Missouri v. McNeely, 569 U.S. 141, 158 (2013) (plurality opinion of Sotomayor, J.);
77
cf., e.g., Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“The calculus of
reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving—about the amount of force that is necessary in a particular
situation.”).
Judges obviously have much more time to decide, and we make our decisions
free from the risks that law-enforcement officers face. Nevertheless, applying the
“reasonable, articulable suspicion” standard can be quite challenging for judges as
well. We too must apply a standard that has not been and cannot be clearly defined
and that turns on a fact-intensive analysis of the totality of the circumstances.
The idea that law-enforcement officers and judges should take a
commonsense approach to the issue seems to me to provide somewhat limited
assistance. Reasonable people often disagree both about how suspicious given
circumstances are and about how much suspicion should suffice to make it
reasonable for law-enforcement officers to seize an individual. For example, the
members of both the Supreme Court and this court not infrequently divide in cases
presenting the question whether law-enforcement officers had reasonable,
articulable suspicion in given circumstances. See, e.g., Glover, 589 U.S. 376 (6-3
decision); Navarette v. California, 572 U.S. 393 (2014) (5-4 decision); Wardlow,
78
528 U.S. 119 (5-4 decision); Miles v. United States, 181 A.3d 633 (D.C. 2018) (2-1
decision); Armstrong v. United States, 164 A.3d 102 (D.C. 2017) (2-1 decision).
A law-review article from a fair while ago further illustrates the challenges
that judges face when applying the “reasonable, articulable suspicion” standard. See
C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or
Constitutional Guarantees?, 35 Vand. L. Rev. 193 (1982). The author of that article
sent a questionnaire about burdens of proof and related topics to all federal district
judges, all federal circuit judges, and the Justices of the Supreme Court. Id. at 1325
n.184. One of the questions asked the judges to assign a numerical probability to
“reasonable suspicion.” Id. The judges who responded with a number gave a wide
range of answers: for example, approximately 15% of the judges gave a probability
of 10%; approximately 20% of the judges gave a probability of 20%; approximately
30% of the judges gave a probability of 30%; approximately 13% of the judges gave
a probability of 40%; and approximately 14% of the judges gave a probability of
50%. Id. at 1327-28.
To be clear, the foregoing is not intended as a criticism of current doctrine.
Rather, I am simply trying to identify some of the structural features that in my view
make cases like this one difficult to resolve.
79
B. The Initial Observations of Mr. Mayo
I largely agree with the en banc court’s discussion of the officers’ initial
observations of Mr. Mayo. Supra at 27-33. Specifically, I agree that, considered in
isolation, the mere fact that the members of the group dispersed when the police
arrived provided little support for a seizure. Id. at 27-29. I also agree that,
considered in isolation, Mr. Mayo’s shoulder movements, as described by
Sergeant Jaquez during the suppression hearing, also provided quite limited support
for a seizure. Id. at 29-33.
I note, however, that hand movements that “are consistent with mundane
behavior,” supra at 31, can contribute to reasonable, articulable suspicion, when
considered in the context of the totality of the other circumstances of a given case.
For example, imagine a case in which the police have received an anonymous tip
that an individual has a weapon in the individual’s right jacket pocket. If the police
go to the scene and see the individual repeatedly reaching into the individual’s right
jacket pocket, that conduct—though “consistent with mundane behavior”—would
contribute to articulable suspicion. Of course, more would be needed to establish
reasonable, articulable suspicion, but that is a different question.
80
C. Flight in General
The opinion of the en banc court discusses the significance of Mr. Mayo’s
flight supra at 33-51. I first discuss flight evidence in general, see infra at 80-82,
and I then turn to an analysis of the flight evidence in this case, see id. at 82-95.
On the general topic of flight evidence, I agree with the opinion of the en banc
court on a number of points: (1) people sometimes flee from the police for reasons
other than consciousness of guilt; (2) flight by itself does not automatically justify a
Terry stop; (3) the degree to which flight contributes to reasonable, articulable
suspicion depends on context; (4) the nature of the police actions before an
individual’s flight is part of that context; (5) the relevant context also includes
circumstances such as whether the police have singled out the suspect or asked
explicitly or implicitly accusatory questions; (6) some of our prior decisions have
taken an unduly categorical, rather than an appropriately contextual, approach to
assessing the significance of flight; and (7) the en banc court appropriately disavows
a categorical, box-checking approach to flight.
My view of the proper general approach to flight evidence differs in two
important respects, however, from the views reflected in the opinion of the en banc
court. First, the en banc court does not acknowledge the well-settled principle that
Terry stops can permissibly be based on police observations of actions that might
81
have an innocent explanation, as long as those actions, considered as a whole, are
sufficiently suspicious. See Wardlow, 528 U.S. at 125 (Although “there are innocent
reasons for flight from police and . . . flight is not necessarily indicative of ongoing
criminal activity[,] . . . [that] does not establish a violation of the Fourth
Amendment. Even in Terry, the conduct justifying the stop was ambiguous and
susceptible of an innocent explanation.”). So the mere fact that flight from the police
might in some circumstances be lawful and innocent does not preclude flight’s
consideration as part of the totality of circumstances bearing on whether a Terry stop
was permissible.
Second, after discussing at length reasons why Mr. Mayo’s flight might have
been innocent rather than reflecting consciousness of guilt, supra at 34-37, 40-51,
the opinion of the en banc court reaches the following overall conclusion: “[T]he
officers could not reasonably perceive Mr. Mayo’s flight as clearly reflecting
consciousness of guilt; rather it is more consistent with the apprehensiveness that
would naturally be felt by a person in his situation.” Id. at 51 (emphasis added and
internal quotation marks omitted). Even assuming that a reasonable officer should
have concluded that Mr. Mayo’s flight more likely than not reflected only innocent
fear of the police rather than any consciousness of guilt, but see infra at 82-95, it
does not follow that Mr. Mayo’s flight should be given little weight in determining
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whether the totality of the circumstances supported a conclusion of reasonable
suspicion in this case.
I do not see how a potentially suspicious factor (here flight) can appropriately
be given little weight in the totality-of-the-circumstances analysis simply because
that factor itself is not “clearly” incriminating. As the opinion of the en banc court
acknowledges, supra at 23-25, reasonable, articulable suspicion requires
considerably less than a preponderance of the evidence. In other words, reasonable,
articulable suspicion can exist even if all of the relevant factors, taken together, are
not clearly—or even not more likely than not—incriminating. Moreover,
reasonable, articulable suspicion is based on the totality of the circumstances. It
necessarily follows that individual factors cannot properly be given little weight
because in isolation they are not clearly incriminating. See, e.g., Arvizu, 534 U.S. at
274 (courts should not utilize a “divide-and-conquer analysis” by evaluating and
rejecting factors in isolation rather than considering factors collectively).
D. Flight in this Case
In determining how much weight to give Mr. Mayo’s flight in the
circumstances of this case, we are required to take a “commonsense, nontechnical
[approach] that deal[s] with the factual and practical considerations of everyday life
on which reasonable and prudent [people], not legal technicians, act.” Ornelas, 517
83
U.S. at 695 (internal quotation marks omitted). As I have already confessed,
however, common sense provides me with little guidance in assessing in concrete
terms how suspicious Mr. Mayo’s flight was in the circumstances of this case. I take
as a given—both as a matter of common sense and as a matter of legal doctrine—
that flight is generally ambiguous: some people flee from the police because they
are committing or have committed crimes and fear detection or apprehension; some
people flee from the police for innocent reasons, including fear of how they will be
treated by the police; and some people have both reasons for fleeing. See, e.g.,
Wardlow, 528 U.S. at 124 (flight “is not necessarily indicative of wrongdoing”). If
I try to be more concrete about the weight to give flight in a given context, however,
common sense starts to fail me, and I start wondering about many factual and legal
questions. What percentage of people who flee from the police are in fact fleeing
because they have been committing crimes and fear detection, and what percentage
flee solely for other reasons? To what extent do those percentages vary depending
on where one is in the United States, the personal characteristics of the individual
who flees, the nature of the interaction between the police and the individual before
the individual flees, or many other circumstances that might be present in a given
case? To what extent do those percentages vary over time, for example, in response
to changing law-enforcement practices and social attitudes about law enforcement?
How could data be generated or evidence introduced to try to answer some of those
84
questions? To what extent are officers charged with knowledge (commonsense or
otherwise) about the answers to such questions? To what extent does the Fourth
Amendment analysis properly depend on the answers to such questions, so that, for
example, flight might be treated as significantly more suspicious in place A than in
place B, depending on local differences, or as substantially more suspicious in case
A than in case B, based on statistical or other evidence that was introduced in one
case but not the other? Perhaps these questions suggest that I am struggling with the
idea that a judge is supposed to decide the significance of flight as a “reasonable and
prudent [person]” rather than a “legal technician.” Ornelas, 517 U.S. at 695 (internal
quotation marks omitted). In part, though, I believe these questions suggest that the
issue to be resolved here is not entirely a matter of common sense.
Fortunately, we are not left to rely solely on our own common sense. The
Supreme Court has told us two specific things about flight, apparently based on the
common-sense beliefs of a majority of the Justices of the Supreme Court, and those
statements are binding on us as far as they go. The Supreme Court said in Wardlow
that “[h]eadlong flight . . . is the consummate act of evasion: It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such.” 528 U.S. at 124.
And in Wesby, the Supreme Court said that “deliberately furtive actions and flight at
the approach of law officers are strong indicia of mens rea.” 583 U.S. at 59 (ellipsis
and internal quotation marks omitted).
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Those statements provide somewhat more concrete guidance about how to
view the flight in this case. First, Wardlow appears to treat “headlong flight,” which
is present in this case, as particularly suspicious. 528 U.S. at 124. Second, Wesby
stated that flight “at the approach of law officers” is a strong indicator of a guilty
mind. 583 U.S. at 59 (ellipsis and internal quotation marks omitted). In my view,
the latter statement points strongly against a broad theory that flight is rendered
substantially less suspicious simply because police officers approached the
individual before the individual fled. Third, Wardlow emphasized that the flight in
that case was “unprovoked,” 528 U.S. at 125, which suggests that the weight to be
given to flight may well depend on whether prior police conduct was of a nature to
increase the likelihood that even innocent persons might flee to avoid the police.
The opinion of the en banc court does not explicitly rely on the idea that the
GRU officers “provoked” Mr. Mayo’s flight. Supra at 41-51. The opinion’s
description of the GRU officers’ conduct, however, seems to clearly indicate that the
en banc court views the flight in this case as provoked. Id. As I explained in my
dissent as a member of the division, I view that as a more complicated question.
Mayo, 266 A.3d at 277-78 (McLeese, J., dissenting). Mr. Mayo’s flight probably
was “provoked” by the police in the broadest sense of that term. Mr. Mayo
presumably would not have started running if the police had not driven up, gotten
out of their cruiser, approached Mr. Mayo, and asked him if he had a gun. But the
86
Supreme Court described the flight in Wardlow as “unprovoked,” 528 U.S. at 124,
even though Mr. Wardlow presumably would not have fled if the police cars had not
driven into the area. In fact, in cases such as Wardlow and this case, the individual’s
flight is viewed as potentially suspicious precisely because that flight appears to have
been prompted by the individual’s awareness that the police were present. Wardlow,
528 U.S. at 124. In other words, the Supreme Court necessarily understands
“provoked” to mean something more than simply “caused by.”
I agree with the en banc court that Mr. Mayo’s flight occurred in response to
police actions that had a greater risk of provoking innocent flight than was present
in Wardlow, where the officers simply drove into the area. I further agree that that
distinction between the two cases means that the flight in this case should properly
be viewed as more ambiguous, and therefore less suspicious, than the flight in
Wardlow. But to the extent that the en banc court in this case views the GRU’s
conduct during the incident as so provocative that Mr. Mayo’s flight contributed
little to reasonable, articulable suspicion, supra at 50-51, I disagree.
My disagreement with the en banc court on this point has both factual and
legal components. On the factual side, the evidence at the suppression hearing was
that officers drove into the area, three officers got out of their cruiser and walked
toward Mr. Mayo, one officer asked Mr. Mayo if he had a gun, and Mr. Mayo fled.
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Supra at 67-68. Particularly if the evidence is viewed in the light most favorable to
the trial court’s ultimate suppression ruling, I do not believe that the record supports
the statements in the opinion of the en banc court that the officers’ conduct would
have signaled to Mr. Mayo that the officers “did not intend to allow [Mr. Mayo] to
leave” and instead “planned to stop him” rather than merely speaking with him.
Supra at 42-43, 41.
On the legal side, the en banc court’s analysis rests heavily on a comparison
of this case to Miles v. United States, 181 A.3d 633 (D.C. 2018), Golden v. United
States, 248 A.3d 925 (D.C. 2021), and Dozier v. United States, 220 A.3d 933 (D.C.
2019). Supra at 42-45. I do not view those comparisons as apt, and I therefore do
not view those decisions as supporting a conclusion that Mr. Mayo’s flight in this
case added little to reasonable, articulable suspicion. In Miles, the court did conclude
that Mr. Miles’s flight was “not unprovoked to the same extent as the defendant’s
flight in Wardlow.” 181 A.3d at 645 (internal quotation marks omitted). As I have
acknowledged, I think the same is true of Mr. Mayo’s flight in this case. The court
did not say in Miles, however, that Mr. Miles’s flight contributed little to reasonable,
articulable suspicion. Id. at 640-45. Moreover, the police conduct in Miles was far
more provocative than the police conduct in the present case. According to the
court’s opinion in Miles, Mr. Miles fled after one officer followed him on foot;
another officer drove up onto the sidewalk in front of Mr. Miles, blocking his path;
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and then the latter officer got out of his vehicle and told Mr. Miles to stop. Id. at
643-44.
Golden and Dozier did not involve the issue of the degree of suspicion
reasonably attributable to flight, and in both cases the police conduct at issue was
far more coercive than the officers’ actions in the present case. See Golden, 248
A.3d at 931-32, 938 (officer pulled up to curb directly in front of Mr. Golden, who
was walking alone at night; another officer pulled up to curb in perpendicular
manner; officer asked Mr. Golden if he had weapons; after Mr. Golden said no,
officer persisted, asking Mr. Golden to show his waistband; after Mr. Golden pulled
up his shirt, officer continued to persist, walking towards Mr. Golden and twice
saying that he could not see Mr. Golden’s waistband; and officer then frisked
Mr. Golden); Dozier, 220 A.3d at 937-38, 941-47 (four officers in marked cruiser
drove into secluded alley at night and asked to talk to Mr. Dozier, who was alone at
that point; Mr. Dozier did not respond and kept walking; two officers got closer and
asked again to speak with Mr. Dozier; officers were stationed so as to “substantially
reduce” Mr. Dozier’s freedom of movement in alley; after Mr. Dozier agreed to talk,
officer asked if Mr. Dozier had any illegal weapons; Mr. Dozier said no; officer
persisted, asking if he could pat Mr. Dozier down; and although Mr. Dozier said yes,
court held that Mr. Dozier had been unlawfully seized before alleged consent to pat-
down).
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In assessing, based on common sense, whether the officers’ conduct in this
case was so provocative that Mr. Mayo’s flight contributed little to reasonable,
articulable suspicion, we also should carefully consider the conclusions reached by
courts in other jurisdictions. Those courts appear to have consistently given
significant weight to flight notwithstanding police conduct similar to, or even clearly
more provocative than, the officers’ conduct in this case. See, e.g., United States v.
Wilson, 963 F.3d 701, 702, 704 (7th Cir. 2020) (describing flight as unprovoked,
where officers approached group including Mr. Wilson; one officer stood behind
Mr. Wilson and another officer stood in front of Mr. Wilson; officer in front asked
Mr. Wilson to stand up; and Mr. Wilson fled); United States v. Jeter, 721 F.3d 746,
749-50, 753-55 (6th Cir. 2013) (Mr. Jeter’s flight was not provoked so as to
undermine basis for investigative detention, where helicopter and several police
cruisers converged on group in parking lot; one cruiser approached Mr. Jeter and
officer inside asked to speak with him; Mr. Jeter did not respond and started moving
away; cruiser blocked Mr. Jeter’s path; officer got out of cruiser; and Mr. Jeter fled);
United States v. Ward, 482 F. App’x 771, 772-73 (4th Cir. 2012) (per curiam)
(Mr. Ward fled after officers pulled up beside him and asked him if he had gun; court
describes flight as “unprovoked”); In re D.M., 781 A.2d 1161, 1162, 1164-65 (Pa.
2001) (D.M. fled after officer got out of car and told D.M. to come over; court rejects
argument that flight was “precipitated by unjustified police conduct”); State v. Law,
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112 So. 3d 611, 612-14 (Fla. Dist. Ct. App. 2013) (per curiam) (Mr. Law’s flight
was not provoked where officer said, “Hey, police, come here, man what are you
doing?”; Mr. Law said everything was fine; officer approached; and Mr. Law fled)
(brackets omitted); see also United States v. Lawson, 233 F. App’x 367, 370 (5th
Cir. 2007) (“An attempt to initiate a consensual encounter on the street does not
constitute provocation . . . .”).
The opinion of the en banc court dismisses these contrary cases in a footnote,
supra at 45-46 n.15, but it seems telling that the opinion for the en banc court does
not cite (and I have not found) any case from any court that has held that flight
contributed little to reasonable, articulable suspicion because the flight was preceded
by police conduct comparable to the conduct of the officers in this case. The opinion
for the en banc court does cite State v. Nicholson, 188 S.W.3d 649 (Tenn. 2006), but
that case (1) explicitly rested its holding on the Tennessee Constitution, id. at
661-62; (2) did not say that the flight evidence in that case contributed little to
reasonable, articulable suspicion, id.; and (3) is factually distinguishable, because
the sole bases for the stop supported by the record were (a) testimony that the stop
occurred in the area around a housing project that the police were investigating for
gang activity; and (b) the defendant fled after an officer said “hold up,” id. at 660.
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The absence of any authority from other courts supporting the conclusion that
Mr. Mayo’s flight contributed little to reasonable, articulable suspicion leaves me
skeptical that the en banc court’s analysis of this issue reflects a “commonsense,
nontechnical [approach] that deal[s] with the factual and practical considerations of
everyday life on which reasonable and prudent [people], not legal technicians, act.”
Ornelas, 517 U.S. at 695 (internal quotation marks omitted).
In treating Mr. Mayo’s flight as contributing little to reasonable, articulable
suspicion, the opinion of the en banc court takes into account not only the conduct
of the officers during the incident, but also broader contextual considerations, such
as general concerns about over-aggressive police conduct, particularly in highly
policed communities and among particular groups. Supra at 46-51. I agree that, as
a matter of common sense, reasonable police officers and judges should be aware of
such considerations, and should take them into account when determining the weight
to be given to flight. Where I part company with the en banc court, however, is that
the Supreme Court in Wardlow gave substantial weight to flight notwithstanding
Justice Stevens’s separate opinion, which highlighted those precise considerations.
Compare Wardlow, 528 U.S. at 124-26 (giving substantial weight to evidence of
flight), with id. at 132-34 (Stevens, J., concurring in part and dissenting in part)
(“Among some citizens, particularly minorities and those residing in high crime
areas, there is also the possibility that the fleeing person is entirely innocent, but,
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with or without justification, believes that contact with the police can itself be
dangerous, apart from any criminal activity associated with the officer’s sudden
presence.”). In my view, we as a lower court therefore are not free to treat such
general considerations as rendering flight evidence of little significance. I also note
that although the opinion of the en banc court cites several decisions that support
taking such considerations into account in assessing the weight to be given to flight
evidence, supra at 46-47, the opinion of the en banc court cites no case (and I am
aware of no case) adopting the view that such general considerations can
appropriately be viewed as reducing flight evidence to having little significance.
Finally, the opinion of the en banc court also rests on the prior actions and
“reputation” of the GRU. Supra at 47-51. In support of its reasoning, the en banc
court relies in part on evidence introduced at the suppression hearing in this case,
such as that GRU “often” patrolled the “area” in which the stop occurred. Id. at 48.
Such evidence could perhaps be called “general locational criminal-enforcement
evidence.” Cf. id. at 51-61 (discussing “high-crime evidence,” which the opinion of
the en banc court relabels as “general locational crime evidence”). I tend to agree
that information about prior law-enforcement activities in an area, when known to
the officers who conduct a stop, is at least potentially relevant to the weight the
officers (and reviewing courts) should reasonably give to an individual’s flight. I
note, however, how limited such evidence was in this case. For example,
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Sergeant Jaquez did not precisely define the area that was often patrolled and did not
specify what he meant by “often.” As I will try to explain infra, the willingness of
the en banc court to rely heavily on that limited evidence in assessing the weight to
be given to flight seems to me inconsistent with the far more stringent approach the
opinion of the en banc court takes to “general locational crime evidence.”
The en banc court also relies on a few judicial decisions from other cases to
support the idea that the GRU has a “reputation for being aggressive.” Supra at 48.
The en banc court then reasons that a reasonable GRU officer should be aware of
the GRU’s “reputation” and that the GRU’s “reputation” therefore must be taken
into account in assessing the weight to be given to flight evidence in this case. Id.
at 48-51. I do not believe that the cited decisions adequately establish, as a matter
of common sense that did not require evidentiary support at the suppression hearing,
that GRU officers should be aware that the GRU has a general reputation for
aggressiveness that might make it significantly more likely that an innocent
individual would flee to avoid interacting with officers who the individual believed
were in the GRU, as opposed to other law-enforcement officers. Rather, it seems to
me that the en banc court is effectively making an appellate finding of fact about the
GRU’s “reputation,” by taking judicial notice of statements in a few decisions in
other cases. Appellate courts are not in the business of finding facts. See, e.g.,
V.C.B. v. United States, 37 A.3d 286, 291 (D.C. 2012) (“It is incumbent upon us, in
94
this case as in any other, to eschew appellate fact-finding . . . .”) (internal quotation
marks omitted). More broadly, an appellate court surely could not uphold a stop by
relying in part on the idea that the neighborhood where the stop occurred had a
“reputation” for illegal gun activity, as shown not by evidence at the suppression
hearing but rather by a few judicial decisions in other cases. I do not see why the
GRU’s “reputation” should be treated differently. Here too the approach of the en
banc court seems to me inconsistent with the quite stringent approach the en banc
court takes to “general locational crime evidence.”
Even assuming that the GRU’s “reputation” should be taken into account,
however, I do not believe that consideration of that “reputation,” either alone or in
combination with the other considerations present in this case, adequately supports
a conclusion that Mr. Mayo’s flight contributed little to reasonable, articulable
suspicion.
In sum, I agree with the opinion of the en banc court that, in the circumstances
of this case, Mr. Mayo’s flight was significantly less suspicious than Mr. Wardlow’s
flight in Wardlow. I do not agree, however, that in the circumstances of this case
Mr. Mayo’s flight, considered in isolation, contributed little to reasonable,
articulable suspicion. To be clear, I do not suggest that the particular record in this
case “cannot inform an understanding of Mr. Mayo’s flight.” Supra at 49-50 n.17.
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Rather, I conclude that the particular record in this case, properly understood, does
not support a conclusion that Mr. Mayo’s flight, considered in isolation, added little
to reasonable, articulable suspicion.
E. “High-Crime Area” Evidence in General
The opinion of the en banc court addresses the significance of evidence about
prior criminal activity in the Kenilworth neighborhood supra at 51-61. The opinion
begins its discussion by abandoning as unhelpful the label “high-crime area” and
replacing that label with the label “general locational crime evidence.” Id. at 51. I
have no objection to that terminological shift. I also agree with the en banc court on
a number of other general points about such evidence: (1) evidence that a stop
occurred in an area with a “high” general crime rate is not by itself close to sufficient
to support reasonable, articulable suspicion; (2) more specific and concrete evidence
about prior criminal activity in the area of a stop will contribute more substantially
to reasonable, articulable suspicion, and more general and abstract evidence will
contribute less substantially; (3) general locational crime evidence is often presented
in a vague and/or conclusory fashion; and (4) placing undue weight on general
locational crime evidence can raise important concerns of fairness.
The decision of the court at the division stage stated that some of our prior
decisions appear to have given substantial weight to “vague or conclusory”
96
testimony about prior criminal activity in an area. Mayo, 266 A.3d at 265 & n.26. I
agree, and I agree that in future cases the trial court and this court should not give
undue weight to general locational crime evidence that is too vague or conclusory,
just as courts should not give undue weight to any testimony that is too vague or
conclusory.
I do not, however, agree with the statement in the opinion of the en banc court
that, “to be of value in a reasonable, articulable suspicion analysis, information about
crime in the area must be particularized as to the location or geographic area at issue,
the criminal activity known to occur in the area, and the temporal proximity of the
criminal activity known to occur in the area to the time of the stop.” Supra at 57
(internal quotation marks omitted). I agree that the presence or absence of such
particularity can be quite relevant to the proper weight to give to general locational
crime information. In my view, however, binding Supreme Court authority
precludes this court from imposing such particularity as a rigid prerequisite before
such information may be given any weight at all in a totality-of-the-circumstances
analysis. (I will explain in more detail infra why I believe that such a requirement
is specifically inconsistent with the Supreme Court’s decision in Wardlow.)
Moreover, a number of courts have declined to impose rigid prerequisites to
the consideration of general locational crime evidence. See, e.g., United States v.
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Weaver, 9 F.4th 129, 151 n.86 (2d Cir. 2021) (en banc) (on question whether stop
occurred in high-crime area, “First-hand knowledge of police officers who regularly
patrol the relevant area is one logical source of evidence. Statistical data may
likewise be offered—by the prosecution or the defense—but it is certainly not
required.”) (citation omitted); United States v. Guardado, 699 F.3d 1220, 1223 (10th
Cir. 2012) (“[Mr. Guardado] argues that the term ‘high-crime area’ is dangerously
vague because ‘there is not an objective method for determining if the officer’s
assertion is true.’ Whatever merit there is to Mr. Guardado’s argument, the Supreme
Court—and accordingly, this circuit—continues to consider an area’s disposition
toward criminal activity as a factor that contributes to an officer’s reasonable
suspicion.”) (citation omitted); United States v. Baskin, 401 F.3d 788, 793 (7th Cir.
2005) (“[Mr.] Baskin contends that the government must produce ‘specific data’
establishing that a location is a ‘high-crime area’ for this inference of criminality to
be drawn from the defendant’s flight. He, however, identifies no decisions by this
court in support of that proposition.”); cf. State v. Genous, 961 N.W.2d 41, 44 n.4
(Wis. 2021) (rejecting argument that court should “employ [its] supervisory
authority to create evidentiary prerequisites for circuit courts considering” whether
stop occurred in high-crime area).
There are decisions that conclude that the evidence presented in a given case
failed to adequately support a conclusion that a stop occurred in a “high-crime area,”
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but as far as I have been able to determine, those decisions involve testimony quite
a bit weaker than the testimony in the present case. See, e.g., State v. Goldsmith,
277 A.3d 1028, 1040-41 (N.J. 2022) (inadequate evidence that stop occurred in high-
crime area, where officer testified that area was known for weapons and shootings,
and was open-air drug market, but provided no basis for those statements other than
that officer had made unspecified number of fugitive arrests in area and had seen
five to ten drug transactions in area, presumably over officer’s twenty years of
service); People v. Harris, 957 N.E.2d 930, 936-38 (Ill. App. Ct. 2011) (inadequate
evidence that stop occurred in “high-crime area” where officer agreed when asked
if area of stop “was known to be one of high burglaries and high robberies”; no other
evidence was introduced about meaning of or basis for that statement; and trial court
“rejected” officer’s response) (internal quotation marks omitted); D.R. v. State, 941
So. 2d 536, 537-38 (Fla. Dist. Ct. App. 2006) (inadequate evidence that stop
occurred in high-crime area where officer testified that he had not worked in area
“for awhile” but that “there’s multiple narcotics complaints that go out there”)
(internal quotation marks omitted).
F. The General Locational Crime Evidence in Wardlow
When assessing the weight to be given to Sergeant Jaquez’s general locational
crime evidence in this case, the Supreme Court’s decision in Wardlow is an obvious
99
point of comparison. The Supreme Court described the general locational crime
evidence in Wardlow as follows. Officers were “converging on an area” that was
“known for heavy narcotic trafficking.” 528 U.S. at 121. The officers “expected to
find a crowd of people in the area, including lookouts and customers.” Id. While
driving, the officers saw Mr. Wardlow “in” the “area.” Id.That evidence is quite limited in particularity. There is no indication of the
size of the “area” at issue, of what the term “heavy” meant, or of the basis for the
conclusion that the area in fact was an area of heavy narcotics trafficking. Justice
Stevens’s separate opinion emphasized the limitations of the evidence. 528 U.S. at
137-39 (Stevens, J., concurring in part and dissenting in part). After going through
the underlying testimony in detail, Justice Stevens’s opinion pointed out that it was
unclear whether Mr. Wardlow was even in the undefined “area” of “heavy narcotics
trafficking.” Id. at 137-38. On that precise point, the Court in Wardlow apparently
concluded otherwise, repeatedly describing Mr. Wardlow as having been “in” the
unspecified “area” known for heavy trafficking. Id. at 121, 124. Justice Stevens’s
opinion went on to explain, however, that the case would have been quite different
if “the officers had credible information respecting that specific street address which
reasonably led them to believe that criminal activity was afoot in that narrowly
defined area.” Id. at 138 n.16. The opinion for the court in Wardlow expressed no
disagreement with Justice Stevens’s statement that there was no credible information
100
indicating that criminal activity was afoot at the specific street address where
Mr. Wardlow was seen. Id. at 121-26.
The general locational crime evidence in Wardlow would clearly flunk the
particularity requirement imposed by the opinion for the en banc court in this case.
Among other things, the general locational crime evidence in Wardlow entirely
lacked geographical and temporal specificity. According to the reasoning of the en
banc court, that evidence therefore should not have been given substantial weight in
determining whether the stop of Mr. Wardlow was supported by reasonable,
articulable suspicion. The Supreme Court in Wardlow, however, clearly did give
the general locational crime evidence substantial weight. The Court gave only two
reasons for upholding the stop of Mr. Wardlow: Mr. Wardlow’s presence in a “high-
crime area,” 528 U.S. at 124, and Mr. Wardlow’s unprovoked headlong flight, id. at
124-25. The Court did not indicate the precise weight it was giving to each factor,
but it is clear that both factors figured significantly in the Court’s holding. Id. at
121-26.
For the foregoing reasons, I conclude that Wardlow unambiguously forecloses
the approach to general locational crime evidence taken by the opinion for the en
banc court in this case.
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On a more specific point, I disagree with the way in which the opinion of the
en banc court refers to the general locational evidence in Wardlow. According to
the opinion of the en banc court, Mr. Wardlow was present “at a particular location
where . . . drug activity was anticipated.” Supra at 53 (emphasis added). For the
reasons previously noted, I see no basis in Wardlow for the statement that drug
activity was anticipated at the particular location where the police saw Mr. Wardlow.
To the contrary, at best Mr. Wardlow was somewhere in an unspecified “area” in
which drug activity was anticipated. When the general locational crime evidence in
Wardlow is accurately described, it is clear that the approach adopted by the en banc
court in this case would require that such evidence in Wardlow could not properly
have been treated as a substantial factor supporting a determination of reasonable,
articulable suspicion. I therefore conclude that the en banc court lacks authority to
adopt such an approach.
G. The General Locational Crime Evidence in this Case
To recap, Sergeant Jaquez testified that in the preceding three years, the GRU
had recovered narcotics and ten or more guns from the Kenilworth area, which was
“one of the . . . higher amounts,” compared to other areas of the city. Supra at 68,
73. The opinion of the banc court concludes that Sergeant Jaquez’s testimony was
not “objectively useful,” “lacked meaningful specificity,” and was not “sufficiently
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specific or well-grounded to place Mr. Mayo’s innocuous conduct in a different light
or make his flight more indicative of consciousness of guilt.” Supra at 58-59, 61. I
disagree.
Sergeant Jaquez’s testimony about prior criminal activity in the Kenilworth
neighborhood had limitations, as testimony often does, but that testimony seems to
me plainly relevant and by no means so conclusory or lacking in meaningful
specificity as to warrant outright rejection as not being objectively useful.
Sergeant Jaquez’s testimony compares quite favorably to the general locational
crime evidence in Wardlow, which as previously noted lacked any numerical,
temporal, or geographical specificity. The Supreme Court in Wardlow nevertheless
gave significant weight to the evidence of prior crime in the area. 528 U.S. at
121-26. In my view, Wardlow thus squarely contradicts the holding of the en banc
court in this case.
More generally, the opinion of the en banc court cites no decision from any
other court holding that testimony comparable to that of Sergeant Jaquez had no
value in determining whether there was reasonable, articulable suspicion. I am not
aware of any such case, and many cases take a contrary approach. See, e.g., supra
at 96-98 (citing cases). The opinion for the en banc court does cite United States v.
Montero-Camargo, 208 F.3d 1122, 1139 (9th Cir. 2000) (en banc). Supra at 57-58.
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In that case, the Ninth Circuit upheld reliance on general locational crime evidence
about an unpopulated spot in the desert as a factor supporting a determination of
reasonable, articulable suspicion. 208 F.3d at 1138-39. In language that was
arguably dicta, the court did suggest that the “high-crime area factor” must always
be more particularized than a reference to a “neighborhood.” Id. at 1138 (internal
quotation marks omitted). The court cited no case support for that comment, which
in my view cannot be squared either with the decisions cited supra at 96-98 or with
Wardlow’s giving of substantial weight to evidence that the stop occurred in a high-
crime area of unspecified size.
In sum, the absence of support in the decisions of other courts for the approach
adopted by the en banc court in this case leads me to conclude that the opinion for
the en banc court has departed from the path of “commonsense, nontechnical”
reasoning that the Supreme Court has directed us to follow. Ornelas, 517 U.S. at
695.
H. The Totality of the Circumstances in this Case
Although this court has said that “case matching is of limited utility” in
deciding Fourth Amendment issues, Gomez v. United States, 597 A.2d 884, 889
(D.C. 1991), the court has also recognized that prior “cases are helpful illustrations
of the factors that may add up to reasonable suspicion in the totality of the
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circumstances,” Hampleton v. United States, 10 A.3d 137, 144 n.9 (D.C. 2010).
Particularly given that we are tasked with using our common sense in deciding the
issue before us, I believe that it is important to respectfully consider other decisions
that have considered that issue in analogous circumstances.
I dissented as a member of the division because this court had previously held
in Wilson v. United States, 802 A.2d 367 (D.C. 2002), that officers had reasonable,
articulable suspicion for a stop in circumstances that in my view were similar to, but
weaker than, the circumstances of this case. Mayo, 266 A.3d at 273-74 (McLeese,
J., dissenting). Now that we are sitting en banc, however, we are not bound by the
holding in Wilson. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). I agree with the
opinion of the en banc court that Wilson was incorrectly decided.
In Wilson, two detectives in plain clothes went into a block described as
having “a high level of narcotics activity.” 802 A.2d at 368 (internal quotation marks
omitted). They saw two men, one of whom was Mr. Wilson, walking toward an
apartment building. Id. The two men looked at one of the detectives and then
quickened their pace. Id. The detective walked toward the men, who entered the
building at a hurried pace. Id. Other police officers happened to be in the building
for unrelated reasons, and one of them saw Mr. Wilson and his companion being
followed by the two detectives. Id. Mr. Wilson and his companion hurried around
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a corner, after which the officers heard frantic banging on a door. Id. When the
officers turned the corner, they saw Mr. Wilson and his companion. Id.
Mr. Wilson’s companion appeared agitated. Id. Officers detained both of them. Id.
In my view, the circumstances in Wilson, as described in the opinion in
Wilson, were not sufficient to make it reasonable for the police to seize Mr. Wilson.
Mr. Wilson and his companion did not flee. Although the behavior of Mr. Wilson
and his companion could reasonably be viewed as somewhat evasive, that behavior
seems to me substantially less suspicious than headlong flight. The general
locational crime evidence in Wilson, as described in the court’s opinion, was simply
that the stop occurred in a block that had “a high level of narcotics activity.” 802
A.2d at 368 (internal quotation marks omitted). There was no explanation of what
“high” meant or what the basis for the characterization was. Id. I do not discount
that evidence altogether, but its limitations lead me to conclude that, even in
combination with the evasive behavior the officers observed, the officers lacked
reasonable, articulable suspicion.
The Supreme Court’s decision in Wardlow is another natural point of
comparison for purposes of assessing the totality of circumstances in this case. I do
not agree with the en banc court’s statement that “this case is nothing like Wardlow.”
Supra at 41. I have already explained one of my reasons for disagreeing. The
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opinion of the en banc court describes Wardlow as a case in which Mr. Wardlow
was present “at a particular location where . . . drug activity was anticipated.” Supra
at 53. I do not view that description as accurate. Supra at 98-101.
A second point of disagreement arises from the statements of the en banc court
that Mr. Wardlow was holding an opaque bag. Supra at 38 & n.12, 41, 52. That is
true factually. Wardlow, 528 U.S. at 121-22. The difficulty is that the Supreme
Court did not rely on that fact, or even mention that fact, when explaining why the
circumstances in Wardlow sufficed to establish reasonable, articulable suspicion. Id.
at 123-26. We have previously held that Mr. Wardlow’s possession of an opaque
bag “played no part in the Court’s reasoning” in Wardlow. Wilson, 802 A.2d at 371.
In my view, that holding was correct. The Supreme Court gave two reasons for its
decision, and Mr. Wardlow’s possession of an opaque bag was neither of them. I do
not believe that it is permissible for a lower court to take the view that the Supreme
Court’s holding rests also on a third reason that the Supreme Court did not identify
as such and thus necessarily did not justify as a reason.
As I acknowledged at the division stage, several subsequent decisions of this
court have treated the Supreme Court’s holding in Wardlow as resting in part on
Mr. Wardlow’s possession of an opaque bag, without addressing Wilson’s contrary
holding. Mayo, 266 A.3d at 282 (McLeese, J., dissenting). Now that we are sitting
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en banc, the court is in a position to resolve this conflict in our decisions. In my
view, the en banc court resolves that conflict incorrectly.
The en banc court expresses doubt that the Supreme Court would have
mentioned the opaque bag in the fact section of its opinion unless the Supreme Court
considered the opaque bag as part of the totality of the circumstances that supported
the stop in Wardlow. Supra at 38-39 n.12. I do not find that reasoning persuasive.
In background factual sections describing the circumstances of a case, opinions often
include factual details that the opinion does not rely upon as a basis for the opinion’s
legal conclusions. For example, the opinion of the en banc court in this case
mentions in the background factual section of the opinion facts such as that the police
did not start using body-worn cameras until a year after Mr. Mayo’s arrest and that
the man with whom Mr. Mayo interacted briefly was in a wheelchair near a
dumpster. Supra at 5, 6. In my view, it would be absurd to suggest that the mere
inclusion of those facts in the en banc court’s factual description of this case gives
rise to an inference that the en banc court is implicitly relying on those facts as
legally relevant to whether the police had reasonable, articulable suspicion to seize
Mr. Mayo.
As previously noted, the opinion of the Court in Wardlow did not mention the
opaque bag at all when explaining the basis for its holding that the police had
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reasonable, articulable suspicion to seize Mr. Wardlow. 528 U.S. at 123-26. Justice
Stevens’s opinion concurring in part and dissenting in part did mention the opaque
bag in its legal analysis, stating that “there [was] nothing at all suspicious” about the
fact that Mr. Wardlow was holding an opaque bag. Id. at 139. The opinion of the
Court did not take issue with that statement. I think it is clear that the Supreme Court
in Wardlow was not secretly relying on Mr. Wardlow’s possession of an opaque bag
as an unstated third factor supporting the Court’s holding that the police had
reasonable, articulable suspicion to seize Mr. Wardlow.
The en banc court’s effort to distinguish Wardlow on this basis also seems to
me to be inconsistent with the reasoning of the en banc court in this case. The
opinion of the en banc court concludes that Mr. Mayo’s inferred hand motions near
his waistband did not “provide much, if any, support” for reasonable, articulable
suspicion, because those motions were innocuous, “consistent with mundane
behavior,” and “capable of too many innocent explanations.” Supra at 31 (internal
quotation marks omitted). Those descriptions seem at least as applicable to
Mr. Wardlow’s possession of an opaque bag, and the opinion of the en banc court
does not contend otherwise. I do not understand how the en banc court can
reasonably distinguish Wardlow on the basis of a fact that the Supreme Court did
not rely on its analysis and that, under the reasoning of the en banc court, would not
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“provide much, if any, support” for a finding of reasonable, articulable suspicion.
Supra at 31.
In my view, Wardlow is rather similar to the present case. On one hand, as I
have already indicated, see supra at 86-90, I view the flight evidence in this case as
significantly weaker than the flight evidence in Wardlow, where the flight was
apparently caused merely by the presence of police in the area. On the other hand,
as I also have already indicated, see supra at 101-03, I view the general locational
crime evidence in this case as somewhat stronger than the analogous evidence in
Wardlow. The circumstances in this case also include Mr. Mayo’s arm movements,
which in my view add some but not much to the overall picture.
If I believed that the grounds supporting a stop in this case, taken as a whole,
were as strong as or stronger than those in Wardlow, I would be obliged to uphold
the stop, and my analysis could stop there. Although I view this as a close call,
however, I conclude that the grounds supporting a stop in this case were on balance
somewhat weaker than those in Wardlow. The question then becomes how much
weaker can such grounds be while still being sufficient to justify a Terry stop? In
trying to answer that question, I take substantial guidance from other decisions from
around the country involving circumstances that seem to me roughly comparable to
the circumstances of this case.
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As far as I have been able to determine, those decisions have consistently
upheld the legality of the stops at issue. See, e.g., Jeter, 721 F.3d at 749-50, 753-55
(upholding legality of stop where helicopter and several police cruisers converged
on group in parking lot; one cruiser approached Mr. Jeter and officer inside asked to
speak with him; Mr. Jeter did not respond and started moving away; cruiser blocked
Mr. Jeter’s path; officer got out of cruiser; Mr. Jeter fled; Mr. Jeter grabbed pocket
while running; and stop occurred in area from which police had received many
complaints relating to robberies, thefts, drug activity, and loitering); United States v.
Smith, 633 F.3d 889, 891, 893-94 (9th Cir. 2011) (upholding legality of stop where,
assuming truth of Mr. Smith’s testimony, officer activated siren and repeatedly
directed Mr. Smith to “come stand in front of the car”; Mr. Smith asked whether he
was under arrest and was informed that he was not; Mr. Smith turned and ran when
officer reached for what Mr. Smith thought was a gun; and it was undisputed that
flight occurred in “high-crime neighborhood”); United States v. Bridges, 382 F.
Supp. 3d 62, 64-70 (D.D.C. 2019) (upholding legality of stop where GRU officers
drove into area with “large amount of drug dealing”; firearm-related incident had
reportedly occurred earlier that day or night before; as officers arrived, someone
yelled word officers believed was code to indicate presence of police; Mr. Bridges
started walking toward officers; officer asked Mr. Bridges if everything was good;
Mr. Bridges did not respond; and Mr. Bridges fled as officer got out of car) (internal
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quotation marks omitted); United States v. Jones, 609 F. Supp. 2d 113, 124 (D. Mass.
2009) (upholding legality of stop where Mr. Jones was riding his bicycle in “high
crime area”; Mr. Jones sped up after seeing cruiser following him; Mr. Jones refused
to stop when directed to do so; and Mr. Jones instead fled); McGee v. State, 818
So. 2d 558, 558-59 (Fla. Dist. Ct. App. 2002) (upholding legality of stop where
officers saw Mr. McGee standing in alley; Mr. McGee was in alley “known for
heavy narcotics trafficking”; officers approached to ask Mr. McGee his name and
why he was in alley; and Mr. McGee fled).
With one exception that I will discuss below, I am not aware of any case
comparable to this case in which another court has held a stop to be illegal. The
opinion of the en banc court cites five cases as providing support for the court’s
holding. Supra at 64-65. Four of those cases seem to me to involve circumstances
quite a bit weaker than those of the present case. See United States v. Conerly, 75
F. Supp. 3d 1154, 1161-65 (N.D. Cal. 2014) (invalidating stop where Mr. Conerly
fled after police told him to stop; trial court found as matter of fact that area of stop
was not shown to have been high-crime area); Monjaras v. State, 679 S.W.3d 834,
847-49 (Tex. App. 2023) (invalidating stop where Mr. Monjaras was in “high-
crime” area, avoided eye contact, and appeared nervous, but there was no evidence
that Mr. Monjaras fled); Harris, 957 N.E.2d at 933-38 (invalidating stop where
officers drove in direction of Mr. Harris; Mr. Harris attempted to hide behind car;
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officers got out, identified themselves, and walked toward Mr. Harris; Mr. Harris
fled; and there was inadequate evidence that stop occurred in “high-crime area”);
D.R. v. State, 941 So. 2d at 537-38 (invalidating stop where D.R. was walking down
street; officers drove alongside; D.R. fled; and there was inadequate evidence that
stop occurred in “high crime area”).
The fifth case cited by the en banc court is McKinney v. State, 444 S.W.3d
128, 130-34 (Tex. App. 2014). The court there seems to have applied a flat rule that
“[a] person running at the sight of a patrol vehicle in a high crime area, in and of
itself, does not give an officer reasonable suspicion to conduct an investigatory
detention.” Id at 134. In my view, that flat rule is contrary to the Supreme Court’s
decision in Wardlow, a decision that the court in McKinney remarkably did not even
mention. Id. at 130-34.
The near-complete absence of any decision from any other court invalidating
a search in circumstances comparable to those of the present case gives me
substantial pause. In light of the foregoing, and applying, as best I can, a
commonsense, nontechnical approach, I would hold that the seizure of Mr. Mayo
was lawful. I therefore respectfully dissent.