Mayo v. United States

• Court: District of Columbia Court of Appeals
• Decided: May 23, 2024
• Docket: 18-CF-1132
• Status: Published

Opinion

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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. 10

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. 11

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.” 12

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. 15

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

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

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 82

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). 85

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. 87

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; 88

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). 89

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, 90

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. 91

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, 92

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, 93

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. 95

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. 97

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,” 98

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. 101

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 102

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. 103

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 104

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 105

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 106

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 107

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 108

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 109

“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. 110

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 111

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; 112

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.