D.W., APPELLANT, v. UNITED STATES, APPELLEE.
No. 19-CF-0143
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided July 2, 2026
Argued en banc December 10, 2025
Robert A. Salerno, Judge
Appeal from the Superior Court of the District of Columbia (2017-CF2-014804)
Jaclyn S. Frankfurt, Public Defender Service, with whom Samia Fam, Dennis Martin, KC Bridges, Mikel-Meredith Weidman, and Victoria Hall-Palerm, Public Defender Service, were on the briefs, for appellant.
Mark Hobel, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney at the time the brief was filed, Matthew M. Graves, United States Attorney at the time the supplemental brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Amy Joy Thomas, Chrisellen R. Kolb, and John P. Mannarino, Assistant United States Attorneys, were on the briefs, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, BECKWITH, EASTERLY, MCLEESE, DEAHL, HOWARD, and SHANKER, Associate Judges, and GLICKMAN, Senior Judge.
Opinion concurring in the judgment by Associate Judge MCLEESE at page 28.
Dissenting opinion by Associate Judge BECKWITH at page 44.
DEAHL, Associate Judge: Appellant D.W. was standing with a group of six other people outside the Geraldine apartment complex one afternoon. The group was hanging out near one of the complex‘s breezeways, near the end of a long walkway that ran about 100 feet to the public sidewalk in front of the complex. A police cruiser with four officers stopped near the entrance to that walkway, and two uniformed officers exited the car and started toward it.
Within two or three seconds, right as the officers stepped onto the walkway, D.W. and one of the other men in the group saw the approaching officers and took off running. The officers chased D.W. for about a minute, following him through a parking lot, down an alley, and through a nearby home‘s rear and side yard to a tall chain-link fence that D.W. scaled. The initially pursuing officers gave up the chase at that point, but a different officer jumped the fence after D.W. and managed to grab his leg as he was trying to hop over a second tall fence. D.W. dropped a gun as he was being apprehended. D.W. was charged with several firearm-related offenses and, after the trial court denied his motion to suppress the gun, he was convicted of all counts at a stipulated trial. D.W. appealed his convictions, and a panel of this
We now hold that the officers had the requisite reasonable articulable suspicion to justify their seizure of D.W. when they grabbed his leg. We reach that conclusion largely because D.W. ran upon the mere sight of police officers approaching from a substantial distance, with little indication that they were intent on stopping, searching, or even questioning him in particular. D.W. had not been singled out in any way and, to that point, had little reason to think he could not simply go about his business. The desperation of D.W.‘s flight, in which he scaled two tall fences, and the testimony that at least “five to ten” “violent crimes” occur per year at this particular apartment complex further supports our conclusion. Considering those circumstances in their totality, we conclude that D.W.‘s seizure was supported by reasonable articulable suspicion, so that the trial court correctly denied his suppression motion. We thus affirm D.W.‘s convictions.
I. Background
One August afternoon, several uniformed officers in the Metropolitan Police Department‘s Crime Suppression Team drove to the Geraldine apartment complex
Below is a screenshot from Officer Gendelman‘s body worn camera footage just before D.W. and another man broke off from the group and sprinted away from the officers. To highlight a few details, two of which come into clearer focus as the video progresses: (1) Bewley is in the forefront of the footage a few feet from the walkway; (2) one entrance to the apartment buildings is to the left of the walkway about halfway up, a second is straight ahead, and a third is to the right, though it is obscured by some bushes here; and (3) several individuals are gathered near the breezeway, which is to the left of the entrance that is straight ahead, though they are barely visible in this screenshot. Gendelman is about 100 feet from the breezeway at
Within about a second of the above—as the officers stepped onto the walkway—D.W. and an otherwise unidentified man in a blue shirt took off running through the breezeway, with D.W. running at a “full sprint.” The two officers ran after the men. As the officers approached the breezeway, four of the five people who remained did not react in any noticeable way, but one man lifted his shirt as if to show that he had nothing in his waistband. The officers ran by that group and through the breezeway, then chased the fleeing men through a small parking lot, down an
At that point, Officers Gendelman and Bewley both turned their attention to the man in the blue shirt, who had stopped running near the front door of a nearby house and put his hands up as the officers apprehended him. Gendelman handcuffed the man, lifted his shirt, patted down his “crotch area” for weapons, and left him handcuffed in public view as officers canvassed the area for any discarded contraband. That man was ultimately released after officers apparently found nothing incriminating on him or in his flight path.
Turning back to D.W.: While he escaped Gendelman and Bewley by scaling a tall chain-link fence, a third officer on the scene, Krishaon Ewing, was not so easily evaded. Ewing had arrived at the complex in a second cruiser parked outside the view of those in the breezeway. After hearing calls about the ongoing chase, Ewing ran through the complex and got close to D.W. just after he climbed over the first tall fence. Ewing then likewise scaled the fence and chased D.W. for another fifteen seconds or so until D.W. tried to scale a second tall fence. Ewing grabbed D.W.‘s right leg as he reached the top of that fence and repeatedly shouted “Stop” and “I‘m not letting go,” at which point D.W.‘s pants got snagged on the fence. Ewing then
At the suppression hearing, Officers Bewley and Ewing testified to the above facts and to their views that the Geraldine complex was a “high-crime area.” Bewley did not know exactly how many violent crimes had occurred at the complex in the previous year or two but agreed it was “common knowledge” among MPD officers that it was a high-crime area, which he described as an area where “five to ten” or more “violent crimes” occur per year. According to Bewley, the complex was “known for drug trafficking, drug sales and gun violence,” and he had personally responded to reports of homicides and assault with a dangerous weapon there. When asked if he would consider the Geraldine a high-crime area if “hypothetically” there were only “four violent crimes” there in the past year, Bewley said “[n]o.”
Bewley also testified that he had performed searches of men at the complex before and that those searches typically involved checking their “crotch area” in the same manner that Gendelman had searched the man in the blue shirt before releasing him. Bewley further agreed that suspects who are stopped might be handcuffed and detained in plain view of the public, as the man in the blue shirt was, and forced to wait there for “possibly” thirty minutes, and “quite possibly” an hour or more if
As for Ewing, he had made “a lot of arrests” and recovered “numerous” firearms and narcotics at the complex in the past, and he said it had a “reputation” as a high-crime area, which he described as an area where officers “consistently do drug busts . . . [and] recover firearms” and where “multiple shootings and stabbings have occurred.” Like Bewley, Ewing had seen people at the Geraldine lift their shirts to expose their waistbands in response to approaching officers before, though he would not venture a guess about how many times he had seen that behavior. While he testified that there were some generic “complaints” about “drug activity” in front of the complex, he did not know if there were any complaints on the day D.W. was arrested.
According to Ewing, when he first arrived at the complex, he began speaking to people mingling outside about those generic complaints. As depicted in Ewing‘s body worn camera footage, which initially captured no audio, three people in the area where he arrived simply went about their business with no apparent reaction to him. Ewing then approached another group of four people a bit further down the block. One man in that second group, after some verbal exchange with Ewing, put
After hearing the testimony and reviewing the body worn camera footage, the trial court denied D.W.‘s motion to suppress, calling it a “very close case.” The court found that D.W. was seized when Officer Ewing grabbed his leg, so that the relevant question was whether officers had reasonable articulable suspicion to seize him at that point. The court found that the officers had that requisite suspicion, stressing three factors: (1) D.W.‘s “immediate and headlong” flight upon the “mere sight of police“; (2) the fact that his flight was “sustained over a distance” with D.W.
The trial court denied D.W.‘s suppression motion and convicted him of all counts at a stipulated trial. He now appeals those convictions, challenging the denial of his suppression motion.
II. Analysis
The only issue in this case is whether the officers had reasonable articulable suspicion to seize D.W. when Officer Ewing grabbed his leg. We review that question de novo and defer to the trial court‘s factual findings unless they are clearly erroneous, though our review of the record is not limited to the trial court‘s express findings. See Mayo v. United States, 315 A.3d 606, 616-17 (D.C. 2024) (en banc). That is, in addition to those findings, we may “examine[] other record evidence presented at a suppression hearing to determine whether the government proved that a defendant‘s constitutional rights were not violated.” Id. at 617.
Police officers may lawfully stop a person under the Fourth Amendment if they have “reasonable suspicion supported by specific and articulable facts that the individual is involved in criminal activity.” Id. at 620 (quoting Golden v. United States, 248 A.3d 925, 933 (D.C. 2021)). Although reasonable articulable suspicion
We agree with the trial court that three factors, when taken together, provided officers with the reasonable articulable suspicion necessary to justify their seizure of D.W. They are: (1) D.W.‘s headlong flight upon the mere sight of officers headed in his general direction from a substantial distance, with no indication that they were focused on him in particular or that he would not be allowed to go about his business; (2) the officers’ testimony about criminal activity at the Geraldine complex; and (3) the desperation evinced by D.W.‘s protracted and somewhat treacherous flight, including his successful jumping of one tall fence and thwarted scaling of another.
Before fleshing out the importance of those factors, and the counterpoints that D.W. offers, we first provide a primer on this court‘s recent en banc opinion in Mayo. The parties agree that Mayo is central to this appeal.
A. Mayo v. United States
D.W.‘s principal argument is that ”Mayo requires reversal” of his convictions because it established that headlong flight in an area that officers generically describe as “high crime” cannot, without more, provide reasonable articulable suspicion for a seizure. That is too sweeping a reading of Mayo, which repeatedly stressed that the “context” of the flight weighs heavily in assessing how incriminating it is, Mayo, 315 A.3d at 612, 623, 625-27, 634, as we will further explain below.
In Mayo, three officers in MPD‘s Gun Recovery Unit, or GRU, pulled their unmarked vehicle into an alley in the Kenilworth neighborhood, where a group of at least five people were hanging out. Id. at 612-13. As with the present case, the officers were not responding to any report of criminal activity and did not see any criminal activity afoot. Id. at 613. At least one of the officers, while still sitting in
Upon exiting their car, the three officers immediately “singled Mr. Mayo out from the already-dispersed group,” with two officers walking directly toward Mayo, and the third officer walking parallel to him in a flanking maneuver. Id. at 628 (describing “two officers directly behind Mr. Mayo and another taking a parallel path“). Mayo walked away from the officers at first, just as the other individuals in the alley had done. Id. at 613, 628. Undeterred, the officers “closed in on him” and said: “Hey, we just want to talk. We just want to talk to you. Do you have any guns?” Id. at 628. At that point, Mayo ran away from the converging officers and one of the officers leapt at him and “managed to trip up one of Mr. Mayo‘s feet,” which constituted the relevant seizure in need of justification in Mayo. Id. at 613.
In analyzing the extent to which those facts contributed to reasonable articulable suspicion, we stressed that flight‘s incriminating weight “depends on
We further explained that those facts were “nothing like” the facts in Wardlow, where the Supreme Court held there was reasonable articulable suspicion to seize a fleeing suspect after he “took one look at police officers” driving by him in a police caravan “and ran.” Mayo, 315 A.3d at 627-28 (discussing Wardlow, 528 U.S. at 121-22). Mayo stressed that “[f]light is not merely a box that, once checked, automatically justifies a stop.” Id. at 625 (quoting Posey v. United States, 201 A.3d 1198, 1204 (D.C. 2019)); see also id. (“[F]light cannot imply consciousness of guilt in all cases.” (quoting Miles v. United States, 181 A.3d 633, 641 (D.C. 2018))). Unlike in Wardlow, where the officers did not seem to be focused or converging on Wardlow before he fled, the officers in Mayo “had communicated [to Mayo] that they specifically suspected him,” without sufficient basis, “of criminal activity and were targeting him for investigation” prior to his flight, thereby substantially reducing the incriminating value of his flight in the reasonable suspicion calculus. Id. at 632.
In Mayo, we also reaffirmed “that locational evidence about criminal activity presented by the government can be a relevant consideration” in the reasonable suspicion calculus. Id. At the same time, we hastened to “disavow the unhelpful ‘high-crime area’ label” that had permeated our cases, id., explaining that such “bare” and “conclusory” labels were too generic to be afforded any real weight. Id. at 634. We instead explained that “the value of general locational crime information in interpreting potentially suspicious conduct will be a fact-intensive inquiry” that turns on “the quality and specificity of the information, with particular focus on the recency, frequency, and geographic proximity of the relevant criminal activity.” Id. at 635. The only specific locational evidence offered in Mayo was an officer‘s testimony that his unit had recovered “over 10 guns” in the previous three years in the “Kenilworth area,” a neighborhood “of unknown boundaries.” Id. at 636. That
Based on that totality of circumstances considered “collectively,” id. at 622, 637, we concluded that officers did not have reasonable articulable suspicion to seize Mayo given (1) the circumstances of his flight, which was prompted by the officers’ seeming disregard of his attempt to simply walk away from them; and (2) the weak general locational crime testimony. Id. at 637.
B. The Present Case
We reaffirm the principles articulated by this court in Mayo,2 and now turn to the application of those principles to the present case. We first assess the relevant
Unlike in Mayo, officers had not singled D.W. out before he ran away, nor was it obvious upon their arrival that they were even particularly interested in the group that D.W. was a part of. When D.W. took off sprinting through the breezeway, Officers Gendelman and Bewley had just arrived on the scene and were about 100 feet away from him as they started up the walkway that led both to the breezeway
In other words, while the facts in Mayo looked “nothing like” Wardlow, id. at 627,4 the facts here look an awful lot like Wardlow, in which the court opined that “[h]eadlong flight—wherever it occurs—is the consummate act of evasion.” 528 U.S. at 124. The Supreme Court recently reiterated the point, noting that “‘unprovoked flight upon noticing the police . . . . is certainly suggestive’ of
We note two other factors that add some further support for the stop, though we attach significantly less weight to them: (1) the general locational crime evidence here was more particularized than it was in Mayo, both in its detail and in its geographical focus on this particular apartment complex (though it was still somewhat vague); and (2) D.W.‘s protracted and treacherous flight evinced far more desperation than Mayo‘s brief dash away from converging officers before he was seized.
On the first point, we agree with D.W. that the officers’ testimony that the Geraldine had a “reputation” as a high-crime area and was “known” for drug- and gun-related crimes should be given little to no weight. Those observations are on par with the bare and conclusory “high-crime” descriptors that we gave no weight to in Mayo. But there was quite a bit more here, and it was far more particularized to the Geraldine complex itself rather than to a boundary-less neighborhood, as in Mayo:
On the second point, the desperation evinced by D.W.‘s flight also adds some slight support in favor of the officers having reasonable suspicion for a seizure. Recall that D.W. led officers on an extended chase for approximately a minute in and around the Geraldine complex—through a parking lot, down an alley, through a yard, over a tall fence, and halfway over a second fence. That D.W. “went to such lengths” to escape the police made it even more reasonable for officers to infer that he was running not because of “mere fear” or an “ordinary desire to avoid police contact,” but rather because of consciousness of guilt. See Miles, 181 A.3d at 644
We do not mean to overstate the point. If you are going to run away from the police in the first place—which an innocent person might do for “myriad reasons,” Miles, 181 A.3d at 641—you are in some sense in for a penny, in for a pound, and will likely go to some lengths to get away. But the stakes of failing to escape surely inform how far you are willing to go. To illustrate the point, if a suspect flees across a heavily trafficked highway with speeding cars brushing just past him, there is far more reason to think he is seeking to evade arrest for a serious crime, rather than to avoid the considerable indignities of a brief stop and search. While scaling tall fences over the course of a protracted chase is not nearly so perilous as that, it does evince some desperation that, in our view, lends context and weight to the incriminating nature of D.W.’s flight. See Dalton, 58 A.3d at 1012-13 (concluding that the police had reasonable articulable suspicion to stop Dalton where, in addition to his unprovoked flight upon “noticing” the officers, he “abandoned his bicycle in a traffic lane and fled on foot onto the nearby sidewalk”).
C. D.W.’s and the Dissent’s Counterpoints
D.W. and our dissenting colleague nonetheless implore us to consider the officers’ frequent patrols at the Geraldine and the fact that some individuals there seemed conditioned to submit to the mere approach of officers. D.W. stresses that (1) both Bewley and Ewing agreed it was “typical” for some people at the complex to open their arms out in a T-shape or lift their shirts in response to officers; (2) Ewing said he had searched and chased people at the Geraldine before; (3) Bewley said he had searched the “crotch area” of some people before; and (4) Bewley agreed it was typical to handcuff suspects in public view for extended periods as officers canvassed the surrounding area. Those serious indignities visited upon at least some seemingly innocent people, D.W. argues, severely mitigate the incriminating weight one can reasonably attribute to his flight.
We take the point for what it is worth, but we are not convinced on this record that officers had engaged in such systemic provocation at the Geraldine that they
That is surely some evidence that police had used heavy-handed tactics at the Geraldine, or in policing the District’s Black residents more generally. See Dozier, 220 A.3d at 944 (noting that Black individuals might have a “particularly justified” fear of police that can mitigate the incriminating weight of their flight). We agree in principle with our dissenting colleague that this at least slightly mitigates the incriminating nature of D.W.’s flight, but it does not drag the totality of circumstances below the reasonable suspicion bar. Notably, the significant majority of people at the Geraldine just went about their business when the officers
We acknowledge that there are many affluent neighborhoods in the District where it is rather unlikely that any innocent individual would flee, display their waistband, or put their arms out to their sides upon the mere approach of police officers. Officers and courts alike should be mindful of that dynamic and cognizant that in heavily policed areas like the Geraldine, innocent people might be especially
Finally, D.W. relies heavily upon Posey as compelling the opposite result, as the division in this case did.6 D.W., 339 A.3d at 182-83. Both the division and D.W. focus on a sentence from Posey in which this court explained that “a nondescript individual distinguishing himself from an equally nondescript crowd by running away from officers unprovoked does not, without more, provide a reasonable basis for suspecting that individual of being involved in criminal activity and subjecting him or her to an intrusive stop and police search.” 201 A.3d at 1204. We agree that
III. Conclusion
For the foregoing reasons, we affirm D.W.’s convictions.
McLEESE, Associate Judge, concurring in the judgment: The court holds that the police had reasonable, articulable suspicion to stop D.W. based on the combination of three circumstances, the latter two of which provide only “slight” support, ante at 20: (1) D.W. fled “upon the mere sight of officers headed in his general direction from a substantial distance,” ante at 11; (2) there was particularized evidence about prior criminal activity in the specific apartment complex where D.W. was standing, ante at 19-20; and (3) D.W.’s efforts to climb fences reflected a level of desperation that added to the suspiciousness of his flight, ante at 20-21. I agree with the court’s ultimate holding that the stop in this case was lawful, but my reasoning differs from that of the court on several significant points. I therefore respectfully concur only in the judgment.
1. The opinion for the division in this case held that the police did not have an adequate basis for the stop. D.W. v. United States, 339 A.3d 175 (D.C.), vacated and reh’g granted en banc, 341 A.3d 27 (D.C. 2025). In sum, the division reasoned that (1) although the evidence of prior criminal activity in the area was slightly stronger in this case than in our recent en banc decision in Mayo v. United States, 315 A.3d 606 (D.C. 2024) (en banc), that evidence nevertheless was “weak tea at best” under the reasoning of Mayo, D.W., 339 A.3d at 182 (citation modified); (2) the
I wrote a concurring opinion in D.W., explaining that I was bound by Mayo even though in my view the decision in Mayo “was incorrect and has set this court on a path that is contrary to the directions we have been given by the Supreme Court.” D.W., 339 A.3d at 186 (McLeese, J., concurring).
2. The opinion for the en banc court “reaffirm[s] the principles articulated by” Mayo. Ante at 16. I dissented in Mayo, 315 A.3d at 639-58 (McLeese, J., dissenting), and now that we are en banc again we are not bound by MayoMayo. I do, however, emphasize one concern that I raised in that dissent: that the opinion for the court in Mayo erroneously “utilize[d] a divide-and-conquer analysis by evaluating and
Recently, the Supreme Court summarily reversed this court’s decision in In re R.W., 334 A.3d 593 (D.C. 2025), which had held that the police lacked reasonable, articulable suspicion to support an investigative stop. District of Columbia v. R.W., 146 S. Ct. 1069 (2026) (per curiam). The Supreme Court held that this court erred by undertaking a “divide-and-conquer analysis” rather than considering “the whole picture.” Id. at 1072 (citation modified). In my view, the Supreme Court’s decision in R.W. demonstrates that this court should be reconsidering Mayo rather than reaffirming it.
The opinion for the en banc court denies that Mayo took an impermissible divide-and-conquer approach. Ante at 16-17 n.2. In my view, that denial is inaccurate. Mayo first considered flight as a factor by itself and concluded that the value of the evidence of flight in the case was “significantly reduced” because the police “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.” Mayo, 315 A.3d at 632 (emphasis added and citation modified). As I explained in dissent in Mayo, however, “I do not see how a potentially suspicious factor (here flight) can appropriately be
The consideration of general locational crime evidence in Mayo was similarly flawed. In discussing that factor, Mayo stated 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.” 315 A.3d at 635 (citation modified). As I explained in dissent in Mayo, 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.” Id. at 651 (McLeese, J., dissenting).
Thus, Mayo considered flight and general locational crime evidence in isolation and imposed as to each factor a threshold requirement before the factor could be given significant weight in a totality-of-the-circumstances analysis. The opinion for the en banc court in this case does not dispute that Mayo imposed
Similar points can be made about Mayo’s requirement that, “to be of value,” “information about crime in the area must be particularized” in each of three specific ways. Mayo, 315 A.3d at 635 (citation modified). The court in Mayo explicitly stated that the general locational crime evidence introduced in the case was “relevant,” id. at 636, but then went on to give that evidence no weight because the evidence flunked the Mayo court’s three-part particularity requirement, id.
The opinion for the court also implies that the threshold requirements imposed in Mayo are supported by the principle that investigative detentions must have a “particularized and objective basis.” Ante at 16-17 n.2 (quoting R.W., 146 S. Ct. at 1071 (citation modified)). As the Supreme Court has repeatedly made clear, however, the question whether officers had an adequate basis for an investigative detention must be determined based on the totality of the circumstances, i.e., “the whole picture.” R.W., 146 S. Ct. at 1073 (citation modified). Requiring that each separate factor relied on by the police must itself be “particularized” in some sense, or must meet some other categorical threshold, is contrary to that basic principle of
It is true that Mayo did not simply establish threshold requirements. Mayo also discussed other factors and then included a paragraph briefly discussing the various factors in Mayo “collectively.” 315 A.3d at 637. That brief discussion, in my view, did not cure the problems I have noted. The Mayo court’s discussion of the factors collectively was skewed by the court’s prior imposition of requirements that flight
To be clear, I do not object to courts initially considering the general significance of individual factors before considering the totality of the circumstances. Post at 44-49 (Beckwith, J., dissenting). For the reasons I have stated, however, I conclude that the Mayo court erred by incorrectly reducing certain factors to categorical insignificance in isolation and then giving those factors little or no weight in assessing the totality of the circumstances.
In my view, the errors I have just noted led the court in Mayo to reach a conclusion that is contrary to the Supreme Court’s holding in Illinois v. Wardlow, 528 U.S. 119 (2000), and inconsistent with the overwhelming weight of authority from other courts around the country. Mayo, 315 A.3d at 654-57 (McLeese, J. dissenting).
3. The division in this case was also bound by Posey, but now that we are en banc we are free to reconsider Posey. I believe that Posey also was incorrectly decided. In Posey, police officers received a lookout for an armed robbery in the unit block of M Street, N.W. 201 A.3d at 1200. One suspect was described as “a black male dressed in all black.” Id. A second lookout reported that the robbery involved a group of black males who were last seen heading toward North Capitol Street. Id. Officers arrived at the unit block of M Street about five or ten minutes after the second lookout was received. Id. at 1201. The officers saw a group of five or more black males, mostly dressed in black, walking in the block and towards North Capitol Street. Id. at 1200. The officers drove their car to within fifteen feet of the group, and Mr. Posey took off running. Id.
The court in Posey held that the officers lacked reasonable, articulable suspicion to stop Mr. Posey. 201 A.3d at 1202-05. The court reasoned as follows:
I believe that the decision in Posey is incorrect in a number of respects. First, the court erred in giving “no real significance” to evidence that the stop occurred in a specific area that was notorious for crime and had a lot of shootings, as well as homicides and an open-air drug market. See Posey, 201 A.3d at 1203. Second, the court erred in concluding that the “unprovoked” flight in that case added nothing. Id. at 1204. Third, the court erred in concluding that, taken together, the information the police had was insufficient to give rise to reasonable, articulable suspicion justifying a stop. Id. On each of those three points, Posey in my view conflicts
Posey also conflicts with the Supreme Court’s decision in R.W. because Posey reflects the same divide-and-conquer approach that the Supreme Court once again rejected in R.W. See, e.g., Posey, 201 A.3d at 1203-04 (considering in isolation evidence that stop occurred in “high crime neighborhood,” dismissing that evidence as having “no real significance,” and then failing to take that evidence into account when discussing totality of circumstances).
Finally, the court in Posey cited no comparable case in which any court has held a stop unlawful, and I am aware of no such case. To the contrary, I cited in dissent in Mayo numerous decisions from courts around the country upholding stops based on substantially less information than was present in Mayo and Posey. Mayo, 315 A.3d at 656-57 (McLeese, J., dissenting) (citing cases). In my view, the Supreme Court’s decision in R.W. is another such case. In that case, the police received a radio dispatch call concerning a “suspicious vehicle” at a particular address. R.W., 146 S. Ct. at 1070. When an officer arrived at that address at around 2 a.m., he saw two people flee, “unprovoked,” from a parked car. Id. Although at least one of the car’s
4. In my view, the court in this case should acknowledge that Mayo and Posey were incorrectly decided and should bring our law in this area into conformity with the direction we have been given by the Supreme Court and into better consistency with the decisions of other courts around the country. I am concerned that our failure to do so will lead the Supreme Court in the future to reverse this court yet again.
5. As previously noted, the court in this case instead “reaffirm[s]” Mayo. Ante at 16. I do not agree with that step, but at least it is not inconsistent with the court’s affirmance in this case. As I have noted, the information available to the police in this case is on balance somewhat stronger than was available to the police in Mayo, so the court can reasonably affirm here despite the reversal in Mayo. In my view, however, the same is not true of Posey. Taken together, the information available to the police in Posey was substantially stronger than the information available to the
6. Although the opinion for the en banc court in this case does not explicitly acknowledge that Posey was incorrectly decided, the opinion for the en banc court does not defend the outcome of Posey. Ante at 26-27. The opinion for the en banc court also does not dispute that Posey is inconsistent with the Supreme Court’s decision in R.W. and is another case in which this court has taken an impermissible divide-and-conquer approach. Id. Rather, the court limits Posey in one respect, criticizes the terminology the court used in Posey, and attempts to distinguish Posey. Ante at 26-27 & n.7. I am not persuaded by any of those lines of reasoning.
a. The division in this case understood Posey to have held that “unprovoked” flight by itself does not suffice to provide reasonable, articulable suspicion justifying a stop. D.W., 339 A.3d at 182-83. The en banc court in this case does not take a position as to whether that is a correct reading of Posey. Ante at 26-27. Rather, the court holds that if Posey announced such a rule, that rule was overturned by the statement in Mayo that the significance of flight “depends on context.” Ante at 13-14 (quoting Mayo, 315 A.3d at 626), 26-27. I do not understand the reasoning of the court on this point. Requiring a factor to be understood in context does not seem to me to be necessarily inconsistent with concluding that the factor by itself cannot
I thus see no inconsistency between anything in Mayo and what I take to be the holding of Posey that “unprovoked” flight, without more, does not suffice to establish reasonable, articulable suspicion. Posey, 201 A.3d at 1204. The en banc court in Mayo also does not seem to have perceived any such inconsistency because it repeatedly relied upon Posey in its analysis. Mayo, 315 A.3d at 621-22, 625, 637.
b. The court criticizes Posey for using “unilluminating” “binary” terminology in referring to flight as “unprovoked” or “provoked” because provocation is a matter of degree. Ante at 27 n.7. I agree that it is a matter of degree to what extent police presence or conduct that occurs before a suspect’s flight should be viewed as weakening the reasonableness of the police’s inference that the flight may reflect consciousness of guilt rather than some other innocent reason. See Mayo, 315 A.3d at 646-47 (McLeese, J., dissenting). It can be a little unwieldy, however, to express that thought with perfect accuracy. The problem is not only that the issue is one of degree. In addition, the precise issue is not whether a particular suspect’s flight in
c. The court in this case appears to attempt to distinguish Posey in three factual respects.
First, the court accurately notes that the police car in Posey was within fifteen feet of the group including Mr. Posey, whereas the police in the present case were more than fifty feet away from the group including D.W. Ante at 18 n.3, 27 n.7. I do not believe that this relatively minor difference in distance is of material significance, but in any event the difference in my view is outweighed by the fact that in the present case the police had gotten out of their car and were walking toward the group including D.W., ante at 2, whereas in Posey the officers had not opened their car doors or made any other demonstration that it was their intent to approach the group including Mr. Posey. In my view, D.W. had at least as strong a reason as Mr. Posey had to fear that the police might have been focused on him.
Second, the opinion for the court indicates that the flight in Posey was shorter in distance and duration than the flight in this case. Ante at 27 n.7. Here too the differences are minor, given that the flight in the present case lasted only about a minute. The opinion for the court does not explain, and I do not see, why such minor differences in distance and duration would make a material difference to the degree to which officers could have viewed flight in both cases as suspicious.
Third, the opinion for the court relies on the fact that D.W. climbed over one fence while fleeing and attempted to climb over another. Ante at 20-21. The opinion for the court does not rely heavily on this point, stating that it provides only “some slight support” for a conclusion that the stop in this case was lawful. Id. at 20. I agree that D.W.‘s fence-climbing has some minor relevance, but I think that the opinion for the court overstates the relevance of that consideration in this case. For one thing, the opinion for the court substantially underestimates the nature and magnitude of the fears that this court has indicated young men of color might reasonably have about encounters with the police. The opinion for the court briefly acknowledges “the severe indignities of an unjustified search and seizure.” Id. at 26; see, e.g., United States v. Street, 917 F.3d 586, 592 (7th Cir. 2019) (“An investigative stop under Terry 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“) (citation modified). More
More importantly, our recent opinion in Carter v. United States, 341 A.3d 1067 (D.C. 2025), cert. denied, No. 25-885, 2026 WL 1780409 (U.S. June 22, 2026), emphasizes that the reasonable fears at issue are not limited to being unjustifiably subjected to a stop. Rather, those fears include fear of being treated in a racially discriminatory manner during such stops and being victims of unjustified police violence including the use of fatal force. Id. at 1076-80. When this court‘s assessment of the gravity of suspects’ reasonable fear is taken into account, it seems quite unsurprising that a suspect fleeing out of fear would be willing to climb a fence to try to avoid the police.
I have one further concern about the opinion for the court‘s reliance on D.W.‘s fence-climbing. D.W. was clearly aware that the police were chasing him before he climbed the first fence. Moreover, unless the officers had reasonable, articulable suspicion before D.W. climbed the first fence (which the court in this case does not hold), the officers at that point should have been aware that they were chasing D.W. without a lawful basis for doing so. Seemingly, under the court‘s own analysis, that police conduct “substantially reduc[ed] the incriminating value of [D.W.‘s fence-climbing] in the reasonable suspicion calculus.” Ante at 15. The opinion for the court neither acknowledges nor addresses this concern.
For the foregoing reasons, I respectfully concur only in the judgment.
BECKWITH, Associate Judge, dissenting: For the reasons below, I disagree with the court‘s holding that the police in this case had reasonable suspicion to stop D.W. But at the outset—and in part to help frame my own take on the reasonable suspicion question—I turn to my concurring colleague‘s objection to this court‘s en banc decision in Mayo v. United States, 315 A.3d 606 (D.C. 2024) (en banc), and thus to the majority‘s decision today to reaffirm Mayo, for employing what the Supreme Court has deemed an illicit “divide-and-conquer” approach to Fourth Amendment analyses. Ante at 29-30 (McLeese, J., concurring in the judgment) (citing District of Columbia v. R.W., 146 S. Ct. 1069, 1072 (2026) (per curiam)).
Not only is this factor-by-factor approach routinely used by courts, including the Supreme Court, but there is nothing wrong with it, as long as the analysis ultimately views all relevant facts collectively. It may well be true that headlong flight in a high-crime area—when no other facts are known—is generally indicative of criminal activity. It may also be true that headlong flight in a high-crime area where the fleeing person has specific reasons to fear that police will subject him to violence or an unlawful search—when no other facts are known—is generally not indicative of criminal activity. Both of these statements can be simultaneously true because they are estimates based on different sets of facts. Put differently, they might be called different “base rate” estimates based on broader or narrower “reference
Turning to the circumstances of this case, I largely agree with the comparatively little weight the majority gives to the character of D.W.‘s flight and the locational crime evidence, but my disagreement with the significant weight the court assigns to the fact that D.W. fled at all leads me ultimately to assess the totality
This court “has made clear that flight cannot imply consciousness of guilt in all cases.” Miles v. United States, 181 A.3d 633, 641 (D.C. 2018) (internal quotation marks and citation omitted). And in Mayo—whose principles the majority today reaffirms, ante at 16—this court, sitting en banc, reinforced that a context-sensitive inquiry into the existence of reasonable suspicion is not only proper, but essential. 315 A.3d at 627. We recognized in Mayo, for example, that an individual may flee from police due to “a distaste for police officers based upon past experience” or a “fear of police brutality or harassment” rather than because he is engaged in illegal activity. Id. at 625 (quoting Miles, 181 A.3d at 641).
That context matters is not a new idea. The Supreme Court‘s decision in Illinois v. Wardlow, 528 U.S. 119 (2000), “did not articulate a rigid rule that all flight, regardless of context, supports a reasonable articulable suspicion calculus,”
Here, the record contains the sort of context that transforms flight from aberrational to unsurprising—thus not meriting the substantial weight the majority accords it in the reasonable articulable suspicion calculus. As noted above, the evidence shows three individuals’ reactions to the police arriving on the scene: a man in a blue shirt who took off running from the police just like D.W. did, a man who proactively lifted his shirt to show he was not carrying a firearm in his waistband, and a third man who put his arms in a T-shape as officers approached. Those reactions were given their own context by background evidence—undisputed officer testimony, in fact—that described police practices at the Geraldine more generally. Officers from the Crime Suppression Team testified, for example, that
In this case, the officers did not arrive at the Geraldine on the report of any crime or an alert from an acoustic gunshot detection system or ShotSpotter. They had gone to the Geraldine—as they had many times before—on routine patrol, in multiple cars, looking for illegal activity. But they did not see a bulge in D.W.‘s pants. They did not say he was blading as if to conceal something. They did say he was holding his waistband while running, but the trial court discredited that
The trial court called the reasonable suspicion question in this case “very close.” I do not disagree. Evidence about the nature of D.W.‘s flight and about crime at the Geraldine adds something to the calculus. The absence of evidence that the police were specifically targeting D.W. also tends to support the existence of reasonable suspicion. But considering these factors along with the evidence of the prior police practices at the Geraldine, the response of individuals on the scene to the Crime Suppression Team‘s arrival, and the absence of any bulge or blading or the like on D.W.‘s part, I would conclude that D.W.‘s flight, even in light of its nature and the crime levels at the complex, is insufficiently probative of guilt to justify the stop. Because the totality of the facts available to the officers did not rise to the level of reasonable articulable suspicion, I respectfully dissent from the majority‘s contrary conclusion.