Case Information
*1 Before E ASTERLY , M C L EESE , and D EAHL , Associate Judges .
Opinion of the court by Associate Judge E ASTERLY .
Dissenting opinion by Associate Judge M C L EESE at page 56.
E ASTERLY , Associate Judge : Ninеteen-year-old Landon Mayo was “just hanging out” with some other people in an alley in the Kenilworth neighborhood when a group of officers from the Metropolitan Police Department’s Gun Recovery Unit, part of a two-car convoy, pulled up. Three GRU officers exited the vehicle and focused their attention on Mr. Mayo, who had walked away from them to talk to other people in the alley. Following and flanking him, the GRU officers told Mr. Mayo 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. The officer got a hand on Mr. Mayo’s foot and tripped him up, but Mr. Mayo managed to continue running. He was apprehended by the second car of GRU officers a short distance away and the officers subsequently recovered a gun and drugs they believed him to have discarded or handed off to others in flight.
In this appeal, Mr. Mayo argues that the GRU officers seized him in violation
of the Fourth Amendment and that the gun and drugs should have been suppressed.
We agree. First, we hold that Mr. Mayo was seized when the GRU officer dove to
tackle him and tripped him, even though he got away. We rely on the Supreme
Court’s recent decision in
Torres v. Madrid
,
I. Facts and Procedural History A. Suppression Hearing
The government presented one witness at the hearing on Mr. Mayo’s motion to suppress, Sergeant Jose Jaquez of the GRU. Sergeant Jaquez was one of the seven GRU officers at the scene of Mr. Mayo’s arrest. He dove to tackle Mr. Mayo, and got a hand on him, but he was not the officer who ultimately arrested Mr. Mayo. [2]
Sergeant Jaquez testified 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 wearing 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. Sergeant Jaquez testified that they were in “the Kеnilworth area” in the Northeast quadrant of the District, which (in the prosecutor’s words) he “kind of gestured to” on a map but did not define by specific boundaries. [3] He further testified that the GRU was “often sent to patrol that area,” and that, in the preceding three years, his unit had recovered “multiple weapons, handguns, and also narcotics.” When asked by the prosecutor to “estimate . . . how many guns you’ve recovered,” Sergeant Jacquez responded “over 10 guns. It could be more[,] . . . but I feel comfortable at this time saying about 10.” And when asked to compare “the number of guns that you’ve recovered in that area compare[d] to other areas,” Sergeant Jacquez testified that this was “one of the . . . higher amounts of guns that we’ve recovered compared to other parts of the city.”
The car in which Sergeant Jaquez was riding pulled into an alley off of Quarles Street N.E., in between and parallel to Kenilworth Avenue and 45th Street N.E. 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 gentleman in a wheelchair” near a dumpster in the alley. [4] 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 the movement he observed, which the prosecutor characterized for the record: “[J]ust as [Sergeant Jaquez] was gesturing, his back was turned to me, 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 that his vantage point from the police vehicle behind Mr. Mayo made it impossible for him to see what Mr. Mayo was doing with his hands, Sergeant Jaquez asserted that Mr. Mayo was “making slight adjustments with his front waistband.”
After “a few seconds,” Mr. Mayo walked away from the gentleman 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 Jacquez knew the other car of GRU officers were). [5] 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 the side and walked toward Mr. Mayo but in a path parallel to his. Sergeant Jaquez later explained at trial that he used this flanking maneuver “to prevent any escape route from going past” him if Mr. Mayo tried to run. [6]
As the officers approached Mr. Mayo, Officer Wright called out, “Hey, we just want to talk. We just want to talk to you. Do you have any guns?” When the 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 Jacquez 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.) Mr. Mayo “kind of fell” as a result, 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.
Sergeant Jaquez and Officer Ashley discontinued the pursuit and stopped to investigate when they heard an object (Officer Ashley’s flashlight) hit the ground. But Officer Wright kept running after Mr. Mayo. Within a short distance, [7] the GRU officers in the second car, who had been alerted to Mr. Mayo’s flight on the radio, stopped him. Meanwhile, Officer Wright recovered a loaded handgun from the purse of a woman in the area of the chase, which subsequent fingerprint examination and DNA analysis connected to Mr. Mayo. Another officer found zip lock bags containing marijuana in the bushes adjacent to Mr. Mayo’s flight path. Officers searched Mr. Mayo’s person and found smaller, unused bags that matched those in the bushes, as well as several hundred dollars and a large zip lock 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 “police pulled up and harassed” them, asking, “do [you] have any guns?” Mr. Lane testified that they all answered “no,” and “lift[ed] [their] jackets up [to] show[] them that [they] didn’t have any guns.” Mr. Lane explained that “[w]hen [the GRU] come[s] in the neighborhood, we already know what they [are] coming for, 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; “they still got out [of] the car” and walked toward him and his companions, at which point everyone in the group, who had already “spread out,” “just scattered,” with “everybody” running away from the officers. He 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.’” The police did not follow Mr. Lane, however; instead they focused on and ultimately apprehended Mr. Mayo.
B. Trial Court’s Rulings
The day after the witnesses testified, the trial court announced its ruling from the bench, granting Mr. Mayo’s suppression motion. The trial court found that “there [wa]s no evidence at all” that the GRU 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 in 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 explained that the police “singled out [Mr. Mayo] as the one that detached from the group.” But the court stated that it “tend[ed] to believe more” Mr. Lane’s testimony that he and the rest of the group including Mr. Mayo “knew [the GRU]”; “understood . . . what they were coming to do”; and “started to disperse” in response to the GRU’s arrival in the alley.
The court found that after Mr. Mayo walked over to the gentleman in the wheelchair, the police saw him making movements “around his groin area.” [8] The court acknowledged that these movements made Sergeant Jaquez suspect that Mr. Mayo had a gun. But the court indicated that that suspicion lacked adequate foundation because (1) 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,” and (2) “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 provided without meaningful context.
The court further found that Mr. Mayo did not “just run as soon as he saw the police.” Instead, he only began to run after the police approached him, called out to him, and asked if he had a gun. The court noted that the police did not have reasonable, articulable suspicion to stop Mr. Mayo at that point, and Mr. Mayo did not have to talk to the police if he did not want to. Skipping over Sergeant Jaquez’s dive-tackle, the court further found the government had failed to prove that the GRU officers in the second 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 findings, 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, the government argued that under the
Supreme Court’s decision in
Illinois v. Wardlow
,
The government subsequently filed a written motion for reconsideration. 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. But the trial court, at the government’s urging, rejected that argument, concluded that the government was correct that the GRU officers in the second car lawfully seized and searched Mr. Mayo, and ruled that suppression was not warranted. As a basis for its reconsidered ruling, the trial court relied on Sergeant Jaquez’s initial observation of Mr. Mayo’s “body” “movement[s]” before the GRU officers approached him, [9] Mr. Mayo’s flight from the GRU officers, and the GRU officers’ discovery of drugs and a gun in the area of the chase. The court also reconsidered its assessment of the “high crime area” evidence.
The court continued to experience “difficulty from one perspective, in terms of the evidence that came in whether to call this a high-crime area.” But it explained that in “thinking or rethinking, it’s not so much that it was the evidence does not show a high-crime area”; rather the salient point, the court concluded, 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.” [10]
After a trial, a jury found Mr. Mayo guilty of an array of drug and gun offenses. Mr. Mayo timely appealed.
II. Analysis
Mr. Mayo argues that (1) he was seized when a police officer dove to tackle
him and managed to trip him; (2) this seizure was unsupported by reasonable,
articulable suspicion and therefore did not constitute a valid
Terry
[11]
stop; and (3) the
items of physical evidence recovered by the police subsequent to this seizure must
be suppressed. While we generally defer to the trial court’s fact-finding and review
the evidence and reasonable inferences therefrom in the light most favorable to the
suppression ruling, our review of these legal issues is de novo.
See Hooks v. United
States
,
A. Whether Sergeant Jaquez seized Mr. Mayo
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, 866 (D.C. 2012). We
acknowledged statements in the Supreme Court’s decision in
California v. Hodari
D
.,
The government relied on
Henson
in its initial brief to this court to argue that
Mr. Mayo was not seized by Sergeant Jacquez. But after the parties submitted their
briefs, the Supreme Court granted certiorari in
Torres v. Madrid
, 141 S. Ct. 989
(2021). 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.’” Pet. for a Writ of Cert. at i,
Torres v. Madrid
,
No. 19-292,
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
,
After the Supreme Court issued its decision in Torres we asked the parties to file supplemental briefs addressing “whether and how . . . Torres affects our consideration of Mr. Mayo’s case.” See Order dated March 26, 2021. We now hold, pursuant to Torres , that Sergeant Jaquez seized Mr. Mayo when he dove to tackle him. 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. Mayо’s body. And this application of physical force objectively manifested an intent to restrain. Indeed, 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 “tackling,” “leaping” toward, or “diving” at Mr. Mayo is that Sergeant Jaquez was attempting to prevent Mr. Mayo from running away by restraining him.
The trial court did not assess the constitutionality of this seizure because it did not recognize it as such. Nonetheless the government argues in its supplemental brief that we may affirm the denial of Mr. Mayo’s suppression motion on other grounds, namely because Sergeant Jaquez’s seizure was supported by reasonable, articulable suspicion. Discerning no procedural unfairness, particularly in light of the parties’ supplemental briefing at this court’s direction, we address this argument.
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
,
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 [police officer] of reasonable
caution in the belief’ that [the stop] was appropriate.”
Robinson
,
Examining the totality of the circumstances that the government argues was known to the police before Sergeant Jacquez dove at Mr. Mayo [12] —specifically, (1) their initial observations of Mr. Mayo’s presence in a group in an alley, his separation from the group, and his interactions with two other individuals; (2) their observation of his flight after they exited their vehicle, approached him, and asked him if he had a gun; and (3) their previous seizures of guns in that area—we conclude their seizure of Mr. Mayo was not supported by reasonable, articulable suspicion and was 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
individuals who, according to Sergeant Jaquez, were “just hanging out.” The
officers were not responding to any tip or report of a crime in the area; they were
simply “on patrol” looking for illegal weapons, the recovery of which is the “main
goal” of the unit,
Pridgen
,
Thereafter, the GRU Officers focused on 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 this conduct was not distinguishing. Mr. Lane
testified that when the GRU officers pulled into the alley, he and his companions
“automatically” lifted their jackets to show the officers they were not carrying a
weapon and “spread out.” They “knew” 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
32 (noting GRU officer’s testimony that they “ask[] people if they have a gun” and
then “look[] for a reaction,” including people’s “movements” in response to the
question (brackets and internal quotation marks omitted));
see also, e.g.
,
Hawkins v.
United States
, 248 A.3d 125, 127 (D.C. 2021);
Golden
, 248 A.3d at 931–33;
Pridgen
,
testified, rather than that Mr. Mayo alone had separated from the group, as Sergeant
Jaquez testified. Given our previously stated 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
,
The GRU officers also focused on what they perceived to be Mr. Mayo’s hand movements while interacting with the gentleman in the wheelchair, the first man he approached after he allegedly split off 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,” which might have provided some basis for suspecting Mr. Mayo had a weapon in that location. But the evidence did not establish that Sergeant Jaquez actually saw Mr. Mayo’s hands touch his waistband—at the time Sergeant Jaquez made this observation, 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 the officers 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 the GRU officers “didn’t see the front” of Mr. Mayo’s body and only saw movement in Mr. Mayo’s “groin area” [15] “from the back.” [16] 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 meaningfully contribute to reasonable, articulable suspicion. For example, in Duhart , this court rejected the government’s argument that an officer’s observation, in a high narcotics trafficking area, of the appellant and another individual “examining ‘something’” and the appellant’s subsequent act of “shov[ing] an item into his pocket” after seeing the police officer furnished reasonable, articulable suspicion for a seizure. Id. at 898–900; 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.”). And in In re A.S. , 827 A.2d 46 (D.C. 2003), this court concluded that the appellant’s “stuffing motion with his Mr. Mayo separated from the group, “immediately” walked over to the man in the wheelchair, and only then made hand movements at his waistband level while his back was to the GRU officers, making it impossible to see either his hands or the front side of his body. We note Officer Wright’s credibility was also generally impeached with the fact that a trial court had “refused to credit” at least part of his testimony in a prior Superior Court case. Accordingly, we decline to consider Officer Wright’s trial testimony.
right hand into [his] waistband area” was susceptible to too many perfectly innocent
explanations (including “tucking in his shirt, scratching his side, pulling up his pants,
arranging his underwear, pager, cell phone, or walkman, etc.”) to provide
reasonable, articulable suspicion to justify a seizure, even in a high-crime area
around midnight.
Id.
at 47–48;
see also In re D.J.
,
2. Provoked Flight
As a basis to seize Mr. Mayo, the government also directs us to Mr. Mayo’s
flight from the GRU officers after they exited their vehicle, approached him, and
called out to him, asking if he had a gun. Of course, “[o]fficers with minimal
information are permitted to approach people to investigate their hunches,”
Posey
,
Any assessment of the import of flight cannot ignore the foundational Fourth Amendment principle that “approached individuals are free to refuse to speak with rather must evaluate the facts underlying those assertions.” (internal quotation marks omitted)).
officers or avoid them altogether.”
Posey
, 201 A.3d at 1202;
see also Dozier v.
United States
,
To be sure, flight is a pronounced form of avoidance.
Wardlow
, 528 U.S. at
124 (“headlong flight is the consummate act of evasion. It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such.”). But even so, flight
is not an automatic tally mark in the reasonable, articulable suspicion column.
Although some of our cases may appear to categorize a defendant’s flight as
categorical evidence of consciousness of guilt, our court has long recognized that
“leaving a scene hastily may be inspired by innocent fear or by a legitimate desire
to avoid contact with the police.”
Smith
, 558 A.2d at 316. That real world
recognition has only been reinforced in recent years. The current national
conversation about policing and public safety at the very least lays bare “the reality
that not all encounters with the police proceed from the same footing but are based
on exрeriences and expectations.”
Dozier
,
In short, “[f]light is not merely a box that, once checked, automatically
justifies a stop.”
Posey
,
The Supreme Court indicated in
Wardlow
that an important consideration in
assessing the import of a defendant’s flight is whether it was “unprovoked.” 528
U.S. at 124–25;
accord District of Columbia v. Wesby
,
suspicion depends on context,”
post
at 70, our dissenting colleague argues that
Wilson
compels a similar assessment of Mr. Mayo’s flight
. Post
at 63. But he both
disregards the obvious factual differences between that case and this one. And he
oversells
Wilson
as definitively interpreting
Wardlow
as imposing a formalistic,
flight-plus-high-crime-area test for reasonable, articulable suspicion—check both
boxes and the
Terry
stop is legit. Our decision in this case is consistent with
precedent, both from this court and the Supreme Court, reaffirming post-
Wardlow
“the fact intensive and context-dependent nature of the reasonable suspicion
analysis.”
Miles
, 181 A.3d at 641 (citing
Navarette v. California
, 572 U.S. 393
(2014);
Missouri v. McNeely
,
[20] While
Henson
concluded that the act of grabbing a person without
reasonable, articulable suspicion did not amount to provocation by the police, its
reasoning stemmed from the mistaken premise that grabbing a person is not a seizure
if they manage to get away.
Torres
has now negated that premise, so that
Henson
’s
subsequent pronouncement as to what counts as provocation has no residual force.
Taken on its terms,
Henson
suggested that only excessive force by the police may
be considered in an analysis of whether flight is provoked.
Unlike the defendant in Wardlow who took one look at police officers driving by and ran, Mr. Mayo took flight only after Sergeant Jaquez and his two GRU colleagues took a series of actions that indicated they had Mr. Mayo in their sights: they drove their vehicle into the alley where Mr. Mayo was hanging out with his companions, stopped, and exited the vehicle wearing tactical gear; they singled Mr. Mayo out from the rest of the group and began to follow him as he walked down a pathway off the alley toward the location where the officers knew another car of GRU officers to be, with two officers directly behind Mr. Mayo and another taking a parallel path in a flanking maneuver; and they called out as they closed in on him, “Hey, we just want to talk. We just want to talk to you. Do you have any guns?”
The GRU officers’ actions—cutting off Mr. Mayo’s movement in the pathway off the alley, approaching him from multiple angles thereby preventing Mr. Mayo from avoiding them—makes this case much like Miles , where we concluded that the that view is irreconcilable with a central concern of the reasonable, articulable suspicion inquiry: to discern whether a defendant’s behavior reasonably indicates a guilty mind—not whether a defendant reasonably believes he had a right to act in self-defense. We have previously rejected Henson ’s approach to provocation as 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 provocation, “given that the key question is whether the defendant’s flight is probative of his or her participation in criminal activity”), and we reaffirm that rejection here.
police provoked appellant’s flight by following him on foot from behind, then
cutting off his path with a police car from the front, and asking (effectively ordering)
him to stop.
Miles
,
Moreover, we cannot ignore what the officers did say. Singling Mr. Mayo out from the rest of the group, they asked if he had a gun. We examined similar behavior by the GRU, in Golden v. United States : the officers targeted a young man on the street and asked, in a “conversational” tone, if “he had any weapons on him.” [21] 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. Recognizing that it is illegal to carry a gun in the District without proper licensure and registration, [22] 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 else the police suspected about him, or how dangerous the police officers deemed him to be.
Id.
;
accord Dozier
,
As the totality of these facts demonstrates, the GRU officers communicated to Mr. Mayo that they suspected him (albeit without sufficient basis, see supra Section II.B.1) of criminal activity, and were targeting him for investigation or worse. Under these circumstances, the officers could not reasonably perceive Mr. Mayo’s flight as unprovoked or think it objectively reflected consciousness of guilt; rather it is equally if not more consistent with the “apprehensiveness that would naturally be felt” by a person, particularly a young Black person, in his situation. Dozier , 220 A.3d at 942; [23] see also Pridgen , 134 A.3d at 299, 303 & n.17 (recognizing that the actions of GRU officers who pulled up behind appellant late at night, shined a flashlight on him, and called out, “[H]ey, do you got a gun[,]” “may provide a basis for fear of harm that has nothing to do with whether the suspect is engaged in criminal activity” and according no significance to the fact of defendant’s flight as a consequence). [24]
For these reasons, we conclude that Mr. Mayo’s flight contributes little to any reasonable, articulable suspicion that he was engaged in criminal activity. 3. High Crime Area
The government also argues we should give significant weight to the fact that Mr. Mayo fled from the GRU officers in “a high-crime area, particularly as it pertains to firearms.” The government relies on Sergeant Jaquez’s testimony about recovering guns in the “Kenilworth area,” even though the trial court indicated that this testimony did not permit an objective assessment of this designation.
There is no question that locational evidence about criminal activity can be a
relevant consideration in a
Terry
analysis. In
Wardlow
, the Supreme Court affirmed
the use of locational evidence to put conduct observed by the police—in that case,
the unprovoked headlong flight the Court declined to hold was per se sufficient basis
to conduct a
Terry
stop, in context.
Our court, however, has repeatedly signaled that vague or conclusory
testimony is unhelpful and will not provide material support for the lawfulness of a
Terry
stop. The general concept of a “high crime area” had been floating around the
Supreme Court’s and our jurisprudence for decades prior to
Wardlow
.
See
,
e.g.
,
Dozier
, 220 A.3d at 943 n.12 (discussing the term’s origin in Supreme Court
jurisprudence);
Curtis v. United States
, 349 A.2d 469, 472 (D.C. 1975). And
although our court acknowledged that the character of the area where a stop occurred
could be a relevant consideration “in determining the reasonableness of the officer’s
suspicion,”
Smith
,
Since
Wardlow
our court has favorably referenced “high crime area” evidеnce
in a number of cases in which the basis for a
Terry
stop has been challenged. But to
the extent we appear to have endorsed vague or conclusory testimony to support this
designation in the context of a broader assessment of reasonable, articulable
suspicion, we have done so only in the apparent absence of any debate that the
designation was ill-founded or overweighted.
[26]
By contrast, in cases in which we
have actually focused on the import of and foundation for this designation, we have
continued to “caution[] against over-reliance on this amorphous term to support
reasonable, articulable suspicion to effect a seizure.”
Dozier
,
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.”
Dozier
,
We signaled that a more robust examination of high crime evidence was required in our recent decision in Maye v. United States , (D.C. 2021). Noting that “the officers’ testimony about this being a high-crime area was short on specifics,” we explained in Maye that “[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. Id . at 647 (internal quotation omitted). We now elaborate.
Where reliance on locational information to support reasonable, articulable
suspicion is contested, conclusory testimony from law enforcement officers that an
area is “high crime” should be accorded little value.
Singleton
,
Here, we conclude that the trial court rightly declined to find that Sergeant
Jaquez’s testimony had much if any value as a high-crime area evidence.
[29]
The court
determined that this testimony was lacking in specificity and too conclusory, and
with good reason. Sergeant Jaquez provided no geographic boundaries of alleged
high crime related to “narcotics” and guns other than to say it occurred “in the
Kenilworth area.” Although he apparently gestured to a map, that map was not
introduced into evidence,
see supra
note 3, and the trial court’s finding that he had
identified “a particular neighborhood” of unknown boundaries, not “the entire
District of Columbia,”
see supra
note 10, is hardly support for particularized
suspicion. Sergeant Jaquez provided no detail whatsoever regarding the nature or
quantity of the referenced drug activity.
[30]
Similarly, he gave no detail about how
guns had been detected and recovered in the neighborhood—he did not even confirm
that these guns had been recovered during street (or alley) encounters, as opposed to
objective standard and an individual officer’s subjective assessment of the situation
does not control.
Robinson
,
We cannot agree with the court’s rationale that, based on Sergeant Jaquez’s
subjective assessment of the neighborhood, a “certain alertness on his part has to be
understood” because it would invite police to view otherwise innocent actions
through an unjustified lens of criminality.
See Robinson
,
[30] 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. As we have explained, such unparticularized and overly broad testimony is simply unhelpful in assessing reasonable, articulable suspicion.
one or more home raids conducted with a warrant. All he did was “estimate” that
“over 10 guns” had been recovered in “the Kenilworth area” in a three-year time
period; and he provided no hard data to back up this assertion. Such testimony is
less specific locationally and only marginally more specific quantitatively than the
testimony we found lacking in
Maye
.
See
In sum, although more particularized, detailed, and data-based locational information about criminal activity might have put Mr. Mayo’s innocuous conduct in a different light or made his provoked flight more indicative of consciousness of guilt, the testimony the government presented did not provide meaningful context for the GRU officer’s observations of Mr. Mayo before they seized him.
* * *
We conclude that (1) Mr. Mayo’s ambiguous movements, observed by GRU officers positioned some distance behind him, (2) his initial provoked flight from three GRU officers, and (3) his presence in an area of undefined size where, over a period of three years, ten or so guns had been recovered by the GRU, did not, either singly or in combination, give the GRU officers reasonable, articulable suspicion to seize Mr. Mayo. At most the GRU officers had an inchoate and unparticularized hunch that he was carrying a weapon. Because that is an insufficient basis for a Terry stop, Sergeant Jaquez’s seizure of Mr. Mayo was unlawful and violated his rights under the Fourth Amendment.
C. Whether the Evidence Should Be Suppressed
Having determined that the seizure of Mr. Mayo was unlawful, we must
determine whether suppression of evidence recovered subsequent to that seizure—
the drugs found on Mr. Mayo’s 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.
[31]
“It has long
been the law that evidence collected in violation of the Fourth Amendment is
considered ‘fruit of the poisonous tree’ and generally may not be used by the
government to prove a defendant’s guilt.”
United States v. Bumphus
,
In its supplemental brief to this court, the government argues both that: (1) Mr. Mayo failed to carry his burden to establish a causal connection between Sergeant Jaquez’s illegal seizure and the recovery of the evidence discarded in his subsequent flight and found on his person after he was re-seized, and (2) the recovery of this evidence was sufficiently attenuated from Sergeant Jaquez’ illegal conduct. Neither argument is persuasive. [33]
1. Whether the Seizure Was a But-For Cause of the Discovery of the Evidence
The government’s argument that Mr. Mayo failed to carry his burden to prove
but-for causation appears to misunderstand what is required of Mr. Mayo
qualitatively and quantitatively. As noted above, he need only make a “prima facie
showing of illegality and a causal connection to the alleged fruit” in order to shift
the burden to the government to prove that the exclusionary rule should not apply.
Crews
,
The government asserts Brodie is distinguishable because the method of illegal seizure (there, by submission to a show of authority, id. at 1061) was different, and because Mr. Mayo was seeking to avoid the GRU officers before Sergeant Jaquez illegally seized him. But for the purposes of this prima facie showing, the precise variety of illegality is irrelevant; the only question is whether the illegal conduct and the recovery of evidence sought to be suppressed can be linked by a causal chain, see id. at 1062–63. Likewise, Mr. Mayo’s pre-seizure flight from the police does not thwart but-for causation. The government appears to argue that, because Mr. Mayo had decided to flee before the police seized him, must also have decided to discard the contraband before the seizure. But not only is there no evidence of such a decision on this record, it is illogical to infer that someone who the police had confronted but not yеt attempted to seize would form a plan to discard contraband in close proximity to the police where it could be easily recovered and used to implicate him in criminal activity. The far more logical inference is that Mr. Mayo only decided after Sergeant Jacquez attempted his dive-tackle that he had better quickly rid himself of the contraband subsequently recovered by the police, based on the recognition that the GRU officers would do their best not to let him get away and would attempt to re-seize him.
The cases relied on by the government do not support its challenge to Mr. Mayo’s showing of but-for causation because the court in those cases either (1) determined there was no illegal search or seizure prior to the defendant’s discarding of contraband which would serve as the but-for cause of the discovery of evidence, [34] or (2) implicitly recognized that the defendant had made a prima facie showing of causation, explained that a showing of but-for cause alone is insufficient to compel suppression, [35] and then analyzed attenuation. [36]
We conclude that Mr. Mayo carried his burden to show but-for cause. 2. Whether the Discovery of Evidence Was Sufficiently Attenuated From the Illegal Seizure
This leaves the government’s attenuation argument. Evidence obtained as the
product of an unlawful search or seizure must be suppressed “unless the government
proves that the unlawful conduct has become so attenuated or has been interrupted
by some intervening circumstances so as to remove the taint imposed upon that
evidence by the original illegality.”
Johnson
,
232, 239 (d2016) (internal quotation marks omitted); accord Johnson , 253 A.3d at 1057.
The close temporal proximity of the unlawful seizure to Mr. Mayo’s discarding of evidence, his arrest, and the recovery of the evidence by the police from his person and his flight path “strongly favors” suppression. Johnson , 253 A.3d at 1057 (holding that where police recovered evidence within “mere moments” of an unlawful patdown “the temporal proximity factor strongly favor[ed] appellant”). The government does not contend otherwise. Although Sergeant Jaquez never testified exactly how much time elapsed between his effort to tackle Mr. Mayo and the recovery of the evidence from Mr. Mayo’s person and the surrounding area, given the short distance Mr. Mayo fled before being re-seized, it is clear that all these events occurred in a short timeframe.
The absence of intervening circumstances between Sergeant Jaquez’s illegal
seizure of Mr. Mayo and the recovery of the evidence also weighs in favor of
suppression. Mr. Mayo’s post-illegal-seizure flight on foot in a manner that “posed
no incremental threat to anyone,”
Johnson
,
Third and finally, the purpose of the GRU officer’s unlawful seizure of Mr.
Mayo supports application of the exclusionary rule. We examine whether the
seizure was “investigatory in design . . . and executed in the hope that something
might turn up.”
Johnson
,
Considering the trio of attenuation factors altogether, we conclude that the government failed to carry its burden to demonstrate that the recovery of the physical evidence from Mr. Mayo’s person and his flight path was purged of the taint of the initial unlawful seizure. Accordingly, suppression of this evidence was warranted.
III. Conclusion
For the reasons set forth above, we hold that Mr. Mayo was illegally seized and the physical evidence obtainеd 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. M C L EESE , Associate Judge , dissenting: I agree with the court that Mr. Mayo was seized for purposes of the Fourth Amendment when Sergeant Jaquez tripped Mr. Mayo. Supra at 14-17. I disagree, however, with the court’s holding that the police lacked reasonable suspicion to stop Mr. Mayo. Supra at 18-47. I therefore respectfully dissent.
I.
“When reviewing a trial court’s denial of a motion to suppress, we view the
evidence in the light most favorable to the prevailing party. We draw all reasonable
inferences in favor of upholding the trial court’s ruling. We review the trial court’s
legal conclusions de novo.”
United States v. Lewis
,
“The police may briefly detain a person for an investigatory or
Terry
stop if
the officers have a reasonable suspicion based on specific and articulable facts that
criminal activity may be occurring.”
Morgan v. United States
,
“In determining whether this reasonable suspicion standard has been met, a
court must consider the totality of the circumstances, as viewed through the lens of
a reasonable police officer, guided by [the officer’s] training and experience.”
United States v. Taylor
, 49 A.3d 818, 824-25 (D.C. 2012) (citations and internal
quotation marks omitted). “[W]e do not examine each factor in isolation from the
others . . . .”
Hampleton v. United States
,
II.
Viewed in the light most favorable to the trial court’s ruling, the pertinent evidence at the suppression hearing was as follows. Police officers in an unmarked cruiser pulled 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, walking away from the police and toward another person who was in a walkway near the alley. Three GRU officers got out of the cruiser and began walking towards Mr. Mayo. One of them 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 he was later apprehended by other officers.
After initially granting Mr. Mayo’s motion to suppress, the trial court granted reconsideration and denied the motion. The trial court concluded that Mr. Mayo was not seized until he was apprehended by other officers. The trial court also ruled that the other officers had reasonable suspicion to stop Mr. Mayo. On the latter point, the trial court relied on, among other things, (1) Mr. Mayo’s movements while standing near the man in the wheelchair; (2) the evidence that the GRU had recovered ten guns from the area; and (3) Mr. Mayo’s flight after being asked if he had a gun.
III.
The grounds for reasonable suspicion in this case seem at least as strong as
the grounds for such suspicion in
Wilson v. United States
,
On appeal, Mr. Wilson argued that the police lacked reasonable suspicion to
stop him.
Wilson
,
This case is not identical to
Wilson
. The high-crime-area evidence in
Wilson
was more geographically precise (one block as opposed to a neighborhood) and less
quantitatively precise (“high” as opposed to a number of recovered guns and a
comparison to other areas). This case involves headlong flight, which the Supreme
Court has described as “the consummate act of evasion: It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such.”
Wardlow
, 528 U.S.
at 124;
see also, e.g. District of Columbia v. Wesby
,
On the question whether the evasive behavior at issue was unprovoked, this case adds the circumstance that the police indicated that they wanted to speak with Mr. Mayo and asked him whether he had a gun. Finаlly, in this case, Sergeant Jaquez had seen Mr. Mayo’s hand motions near his waistband. I agree with the court that those hand motions were sufficiently ambiguous that, by themselves, they would not have added substantially to reasonable suspicion. Supra at 23-27. We do not view each circumstance in isolation, though, and in my view the trial court properly gave some weight to those movements in assessing whether the totality of the circumstances gave rise to reasonable suspicion. Cf. generally, e.g. , Plummer v. United States , 983 A.2d 323, 333-34 (D.C. 2009) (noting that hand movements toward waist “instilled safety concerns in the officers” because, among other things, waist is “common place” to keep handgun).
Although there are differences between this case and Wilson , those differences cut in varying directions, and in my view the grounds for the stop in the present case were at least as strong as the grounds for the stop in Wilson . I therefore would affirm the trial court’s denial of Mr. Mayo’s motion to suppress.
IV.
I respectfully disagree with the court’s reasoning in a number of factual and legal respects.
A. Factual Issues.
1. Consideration of trial evidence. The court repeatedly relies on evidence that was introduced at trial to undermine the trial court’s pretrial suppression ruling. Supra at 6 & n.5, 33-34. Although the parties have not presented this issue for decision, I note that, in my view, this court ordinarily should not consider evidence introduced at trial to undermine a trial court’s pretrial ruling on a motion to suppress. Generally, “[o]n appeal, we must evaluate the trial court’s decision from its perspective when it had to rule and not indulge in review by hindsight.” Comford v. United States , 947 A.2d 1181, 1189 (D.C. 2008) (internal quotation marks omitted).
Where the judge has denied a defendant’s prayer for relief during an earlier stage of a trial, and where the circumstances have changed as the case has progressed, a defendant must renew [the] request on the basis of the changed circumstances in order to preserve for appeal any contention based on the record as modified.
Id. (brackets and internal quotation marks omitted).
We have long applied that principle in the context of pretrial motions to
suppress evidence.
See, e.g.
,
Hampleton
, 10 A.3d at 139 n.4 (“Because Mr.
Hampleton did not move for reconsideration of the suppression motion at trial, he
may not rely on later trial testimony to challenge the trial court’s ruling.”);
Otts v.
United States
,
In some circumstances, we permit appellees to rely on trial evidence “in
support of the trial court’s ruling” on a pretrial suppression motion.
Patton v. United
States
,
Mr. Mayo did not seek reconsideration of the trial court’s pretrial suppression
ruling based on the trial evidence. Under the foregoing principles, this court
ordinarily should not rely on trial evidence to undermine the trial court’s ruling. In
several recent cases, however, this court has relied on trial evidence to undermine
the trial court’s suppression ruling, even though the defendant had not moved for
reconsideration based on the trial evidence.
E.g.
,
Miles v. United States
, 181 A.3d
633, 643 n.17 (D.C. 2018). Those cases rely on general (and in my view overbroad)
language in some of our cases, and they do not address the prior binding authority
to the contrary. This сourt therefore is bound by the holdings of our earlier decisions
rather than our more recent decisions.
See, e.g.
,
Gan v. Van Buren St. Methodist
Church
,
The court relies on trial testimony about where a second police car was located and that one of the officers who approached Mr. Mayo moved to the side of the other two officers, hoping to prevent Mr. Mayo from fleeing past the officers. Id. at 6 & n.5, 33-34. In my view, such evidence ordinarily should not be considered as a basis to overturn the trial court’s ruling. The United States has not raised this issue, however, even though Mr. Mayo relied on trial evidence in his briefing in this court. It thus would be reasonable for this court to treat the issue as conceded for purposes of this case. I flag the issue, however, because in an appropriate case the court will need to resolve the inconsistency in its opinions.
2. Viewing the record in the light most favorable to the trial court’s
ruling.
As previously noted, we must view the evidence in the light most favorable to
the trial court’s ruling.
Lewis
,
As the court notes, supra at 6 n.5, there was evidence at the suppression hearing that another unmarked cruiser was driving on a nearby street. There was not evidence at the suppression hearing, however, that Mr. Mayo perceived that cruiser or even was in a position to do so. The court therefore also relies on trial evidence indicating that (1) the officer who had moved to the side of the other two officers did so in an effort to prevent Mr. Mayo from escaping past that officer; and (2) at the time Mr. Mayo fled, the other unmarked cruiser was parked on a nearby street and could see what was happening in the alley. Even assuming that it is permissible to rely on trial evidence to undermine the trial court’s pretrial suppression ruling, the additional trial evidence does not support a conclusion that Mr. Mayo fled because he knew he was surrounded and trapped. To the contrary, for example, the evidence at trial indicated that the officers in the other unmarked cruiser were still inside the cruiser at the other end of the alley when Mr. Mayo started to flee. There appears to be no direct evidence that Mr. Mayo noticed the unmarked cruiser, much less that he somehow inferred that it was occupied by police officers who were surrounding and trapping him.
B. Provoked or Unprovoked Flight.
The court holds that Mr. Mayo’s flight was provoked, rather than unprovoked, and thus “contribute[d] little” to a showing of reasonable suspicion. Supra at 27-37. I disagree.
I agree with the court on several points: (1) people sometimes flee from the police for reasons other than consciousness of guilt; (2) the degree to which flight contributes to reasonable suspicion depends on context; (3) the nature of the police actions before the suspect’s flight are part of that context; (4) the relevant context includes circumstances such as whether the police have singled the suspect out or asked explicitly or implicitly accusatory questions; and (5) “provocation” or lack thereof is a matter of degree. Supra at 27-37. Together, those points persuade me that the flight in this case contributed somewhat less to reasonable suspicion than the flight in Wardlow , where the suspect fled at the mere sight of the police. 528 U.S. at 121.
My reasoning differs from that of the court, however, in several significant ways. First, as I have already explained, I do not believe that the evidence in this case supports the court’s description of Mr. Mayo as having fled because he understood himself to be surrounded and trapped by the police. Strictly speaking, the precise question is whether the officers in this case should reasonably have understood, in assessing the degree to which Mr. Mayo’s flight was suspicious, that Mr. Mayo would have thought he was surrounded and trapped by the police. Essentially for the reasons already given, I believe that, viewing the evidence in the light most favorable to the trial court’s ruling, the answer to that question is negative.
Second, 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 pulled into the alley, gotten out of their car, approached him,
and asked him a question. But the Supreme Court described the flight in
Wardlow
as “unprovoked,”
Third, to the extent that the court in this case views Mr. Mayo’s flight as
“provoked” in a sense that caused the flight to contribute “little” to reasonable
suspicion, I do not agree. A number of courts have reached a contrary conclusion in
circumstances comparable to those of the present case.
See, e.g.
,
United States v.
Wilson
,
Fourth, the court relies on our decisions in
Miles
,
Golden
and
Dozier
did not involve the issue of the degree of suspicion
attributable to flight, and in each of those cases the police conduct at issue was
substantially more coercive than the officers’ actions in the present case.
See
Golden
,
Finally, I take the court’s point that there are innocent reasons for fleeing from the police, including concerns about the possibility of improper police conduct, particularly “in a highly policed community of color.” Supra at 29. The Supreme Court, however, has given substantial weight to flight from the police notwithstanding flight’s acknowledged ambiguity. Wardlow , 528 U.S. at 125. I believe that we are obliged to do the same in the circumstances of this case.
C. High-Crime-Area Evidence .
The court holds that the officers’ testimony that the Kenilworth neighborhood was a high-crime area did not meaningfully contribute to reasonable suspicion. Supra at 38-46. I respectfully disagree.
I agree with the court on a number of points: (1) evidence that a stop occurred in a high-crime area is not by itself close to sufficient to support reasonable suspicion; (2) more specific and concrete evidence about prior criminal activity in the area of a stop will contribute more substantially to reasonable suspicion, and more general and abstract high-crime-area evidence will contribute less substantially; (3) high-crime-area evidence is often presented in generalized and/or conclusory fashion; (4) placing undue weight on high-crime-area evidence can raise important concerns of fairness; and (5) in at least some of our cases, the parties do not seem to have disputed the degree of contribution to reasonable suspicion made by high-crime-area evidence. Supra at 38-42. I disagree with the court’s reasoning, however, in several significant respects.
First, I have a different view of the trial court’s ultimate ruling on this issue. The trial court initially indicated that it was unpersuaded that the stop in this case occurred in a high-crime area. On reconsideration, the trial court was equivocal about referring to the area of the stop as a “high-crime area.” The trial court, however, (1) backed away from its prior statement that the evidence did not show a high-crime area; (2) accepted Sergeant Jaquez’s testimony that the GRU had recovered ten guns from the Kenilworth neighborhood, which was a relatively high number; (3) concluded that Sergeant Jaquez’s testimony related to the “particular neighborhood” of the stop; and (4) concluded that Sergeant Jaquez’s testimony on that point sufficed to give Sergeant Jaquez heightened concern.
The court’s opinion suggests that the trial court misunderstood applicable law
and was erroneously relying on Sergeant Jaquez’s “subjective assessment of the
situation.”
Supra
at 44 n.29. In my view, however, the trial court was correctly
assessing the objective reasonableness of the stop based on the information Sergeant
Jaquez had about the neighborhood.
See generally, e.g.
,
United States v. Watson
,
Second, the court announces a rigid new rule: to make a “meaningful” contribution to reasonable suspicion, high-crime-area evidence must be “sufficiently particularized and objectively substantiated.” Supra at 38. I do not believe that the court is free to adopt that rigid rule. As the court essentially acknowledges, supra at 40-41 & n.26 (citing cases), this court has in many cases given meaningful weight to high-crime-area evidence that would flunk the court’s new rule. The court implies, without expressly stating, that our prior cases on this issue are not binding precedent, because the parties in those cases do not appear to have disputed the weight to be given to the high-crime-area evidence at issue. Supra at 40-41. The court’s implication raises an interesting question of stare decisis: to what extent are subsequent divisions of this court free to disregard legal conclusions relied upon in prior decisions of the court, on the ground that the prior decisions do not make clear whether the parties were disputing those legal conclusions? I see no need to delve into that question, howevеr, because in my view the rule adopted by the court in this case is foreclosed by the Supreme Court’s decision in Wardlow .
The Supreme Court in Wardlow gave substantial weight to the evidence that stop in that case occurred in a “high crime area.” 528 U.S. at 124. In fact, the Supreme Court’s holding that the officers had reasonable suspicion rested entirely on the high-crime-area evidence and Mr. Wardlow’s unprovoked flight from police officers. Id. at 123-26.
The parties in Wardlow disputed whether the stop in fact was located within a high-crime-area, or whether instead the officers stopped Mr. Wardlow while they were on the way to a high-crime area. The Supreme Court apparently agreed with the government on that issue, describing the stop as having occurred in “an area known for heavy narcotics trafficking.” 528 U.S. at 121. The Court did not, however, suggest that the high-crime-area evidence was “particularized” in any way beyond the word “area.” Id. The concurring/dissenting opinion criticized the Court on that point, stating that “it would be a different case 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 (Stevens, J., concurring in part and dissenting in part).
It is not entirely clear what the court in this case means by its requirement that
high-crime-area be objectively substantiated. Whatever the court means, however,
the requirement appears to be inconsistent with
Wardlow
. The high-crime-area-
evidence in
Wardlow
apparently consisted of one officer’s unelaborated testimony
that the area was “high narcotics traffic” and that in such areas there usually are a lot
of people, including “sometimes” lookouts and customers. Joint Appendix,
Illinois
v. Wardlow
,
In sum, the high-crime-area evidence in
Wardlow
would flunk the rule the
court adopts in this case. I therefore concludе that the court lacks authority to adopt
that rule. The court cites no case adopting such a rule. To the contrary, a number of
courts have declined to impose the requirements the court adopts in this case.
See,
e.g.
,
United States v. Weaver
,
In addition to conflicting with
Wardlow
, the heightened proof requirement
adopted by the court in this case is contrary to the Supreme Court’s more general
holding that “the controlling burden of proof at suppression hearings should impose
no greater burden than proof by a preponderance of the evidence.”
Nix v. Williams
,
For the foregoing reasons, I believe that the court is required by controlling precedent to give substantial weight in the reasonable-suspicion analysis to Sergeant Jaquez’s credited testimony that the GRU had recovered a relatively high number of guns from the particular neighborhood in which the stop occurred.
D. Totality of the Circumstances.
I have already explained why in my view the totality of the circumstances gave rise to reasonable suspicion. I briefly address a recurring issue in this area of the law: whether the Supreme Court held in Wardlow that unprovoked flight from police offiсers in a high-crime area sufficed to establish reasonable suspicion.
This court addressed that issue in
Wilson
,
In a series of later cases, however, we have interpreted
Wardlow
differently.
The first of those cases is
Gordon v. United States
,
As a final note, I am puzzled by the court’s suggestions in this case that Mr. Wardlow’s mere possession of an opaque bag contributed materially to the grounds for reasonable suspicion in Wardlow . Supra at 31, 39 n.25. If Mr. Mayo’s hand motions near his waistband are too ambiguous to meaningfully contribute to reasonable suspicion in this case, see supra at 23-27, then it would seem that the same must be true of Mr. Wardlow’s possession of an opaque bag in Wardlow .
V.
Because I would uphold the trial court’s suppression ruling on the ground that
the officers had reasonable suspicion to stop Mr. Mayo, I would not need to reach
the exclusionary-rule issues addressed by the court.
See supra
at 47-56. I do make
one observation, however. The United States argues, among other things, that Mr.
Mayo’s actions in divesting himself of the contraband after he fled were not caused
by the seizure of Mr. Mayo, because (1) Mr. Mayo started running before the police
seized him; and (2) it can be inferred that, even before he was seized, Mr. Mayo had
intended to divest himself of the contraband. The court rules against that argument,
describing the suggested inference as “illogical.”
Supra
at 51. It is not clear to me
why the court views that inference as illogical. In any event, it is not the job of an
appellate court to decide in the first instance whether or not to accept that inference.
“But for” causation, also called causation in fact, is -- as its labels imply -- a question
of fact.
See, e.g.
,
Grand Canyon Tr. v. Bernhardt
,
Because I would affirm the trial court’s holding that the police had reasonable suspicion to stop Mr. Mayo, I would not need to address Mr. Mayo’s other arguments. I see no reason to address at any length in this dissent arguments that the court does not reach and that are not relevant to further disposition of this case. Suffice it to say that I do not view those arguments as providing a basis for reversal. I therefore would have affirmed Mr. Mayo’s convictions. I respectfully dissent from the court’s contrary ruling.
Notes
[1] Because we reverse on this basis, we need not address Mr. Mayo’s argument that the subsequent seizure where Mr. Mayo was detained and formally arrested was unlawful, nor his argument that the trial court’s instruction to the jury after a jury poll breakdown coerced his guilty verdict.
[2] Officer Jaquez explained there was no body-worn camera footage of the officers’ encounter with Mr. Mayo because the GRU did not start wearing body- worn cameras until the following year.
[3] The government displayed the map but did not move it into evidence as an exhibit at the suppression hearing. Later at trial, the government moved several maps into evidence: “an overview image” with a “red thing [showing] an approximate area of what we are talking about,” a “zoomed-in image,” and an “even more zoomed-in image”—but it is unclear if any оf these maps were the map used by the government at the hearing and, by the time this case was argued on appeal, the government was unable to locate the maps admitted into evidence at trial.
[4] Sergeant Jaquez provided no information about the positioning or actions of the other individuals in the alley after the police pulled into the alley.
[5] Sergeant Jacquez explained at the suppression hearing that “at the time when we entered the alley . . . and we encountered Mr. Mayo and the people back there, [the other car of GRU officers] were traveling on 45th Street.” At trial, he again acknowledged that at the time he engaged with Mr. Mayo, he was “aware that Officer Joseph’s vehicle was on 45th Street.” And Officer Joseph, the driver of the other car of GRU officers driving on 45th Street, testified both that he could see Sergeant Jacquez, Officer Wright, and Officer Ashley in the alley and that “once we saw them [] stop [in the alley], that’s when we stopped” on 45th Street.
[6] Pointing to this statement and other quoted statements in note 5 supra , our dissenting colleague devotes pages of discussion to the propriety of citing trial testimony in analyzing whether the police had reasonable, articulable suspicion to stop Mr. Mayo. Post at 64–68. First, the trial testimony in question is wholly consistent with Sergeant Jacquez’s testimony at the suppression hearing, thus the cases to which the dissent cites, where an appellant sought to rely on trial testimony contradicting suppression testimony or revealing new grounds for suppression are inapposite. And second, as the dissent itself ultimately acknowledges, it is “reasonable for this court to treat . . . as conceded” reliance on this testimony, given that Mr. Mayo relied on trial evidence in his briefing to this court without any objection from the government. Id. at 67.
[7] 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.
[8] We presume the court meant to say “waistband” instead of “groin”; there was no testimony that Mr. Mayo’s hand movements were in his “groin area.”
[9] The cоurt did not revise its factual findings about what Sergeant Jaquez actually saw and 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.”
[10] Although counsel continued to argue that the evidence that this was a high crime area was inadequate and 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 the 10 guns had been recovered, the court reiterated its reasoning that there was enough for Sergeant Jacquez to “have that wariness” because “he has recovered 10 guns in that area” and “[w]e know what area that 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.”
[11]
Terry v. Ohio
,
[12] It is well-settled that “the end result can never justify the constitutionality of the circumstances leading to a seizure of evidence.” Powell v. United States , 649 A.2d 1082, 1083 (D.C. 1994); see also Brown , 590 A.2d at 1013 (“A search [or seizure] is not to be made legal by what it turns up; it is good or bad when it starts and does not change character from its success, or from evidence discovered subsequent to the arrest.” (citation omitted)).
[13] One of the “simple technique[s]” the GRU employs is to confront people
on the street and ask them point blank if they have a gun.
Robinson
,
[14] The trial court did not make a specific finding that it credited Mr. Lane’s jacket-lifting testimony and our analysis does not turn on this particular fact. But if the GRU officers actually had had reason to believe that the men were not armed, that would weigh against the government in a reasonable, articulable suspicion analysis.
[15] But see supra note 8.
[16] In a footnote in its brief, the government highlights Officer Wright’s testimony at trial that, after the police drove into the alley, Mr. Mayo “immediately disengage[d] from the group” and appeared to adjust something at his waistband before he approached the man in the wheelchair and then “appeared to move his jacket up” as though he were “going to hand something to the gentleman in the wheelchair.” We have previously recognized our ability to consider undisputed trial testimony in assessing whether the trial court erred in ruling on a motion to suppress. See Miles v. United States , 181 A.3d 633, 643 n.17 (D.C. 2018); see e.g ., note 6 supra ; accord post at 66. But Officer Wright’s testimony was disputed, by Sergeant Jaquez. Both at the suppression hearing and at trial, Sergeant Jaquez testified that
[17] Given his limited observation, Sergeant Jaquez’ trial testimony that he
“believed” Mr. Mayo might have been trying to “pass [a gun] off” to someone else
is speculative and irrelevant.
See Parsons v. United States
,
[18] The record reflects that Mr. Mayo is Black.
See Dozier
,
[19] In Wilson , this court , relying on Wardlow , concluded that two police officers on foot in plain clothes who “merely looked” at the appellant and his friend and “started toward them” did not act in such a way as to provoke his “hurried” effort to get away from the police, which included his “frantic[] pound[ing] on an apartment door, in a manner the police reasonably did not perceive as being ‘about the business’ of requesting admittance by a relative or friend,” so as to overcome the consciousness of guilt implications of these actions. In tension with his acknowledgement that “the degree to which flight contributes to reasonable
[21] We acknowledge
Golden
is not factually on all fours with this case. In
Golden
two GRU vehicles pulled to the curb near appellant, although only one
officer exited the police cars and engaged directly with the appellant,
id
. at 932; here,
the second GRU vehicle was on 45th Street but all three officers exited the first
vehicle and followed Mr. Mayo, with Sergeant Jaquez using a flanking maneuver
described above. Recognizing the limits of case matching,
see Miles
,
[22] See D.C. Code § 22-4504(a) (2021 Supp.); § 7-2502.01(a) (2018 Repl.).
[23] In
Dozier
, we observed that a reasonable person (in particular a Black or
brown 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.”
[24] In Pridgen , instead of considering the fact of flight as evidentiary support for reasonable, articulable suspicion, this court “focus[ed] entirely on what appellant did as he ran,” including “pressing his palm against his outer left jacket pocket.” 134 A.3d at 303 (internal quotation marks omitted)); accord Miles , 181 A.3d at 644 (noting that “there was nothing about the character of [appellant’s] flight that seemed particularly incriminating”). But here, Mr. Mayo did not do anything after he began to run and before he was seized by Sergeant Jaquez to indicate that he was engaged in criminal activity.
[25] The Court explained that the officers who conducted the
Terry
stop in
Wardlow
were “converging on an area known for heavy narcotics trafficking in order
to investigate drug transactions,” “anticipated encountering a large number of people
in the area including drug customers and individuals serving as lookouts” saw Mr.
Wardlow, who was “holding an opaque bag,” look at them and run, and “
in this
context
, . . . decided to investigate.”
Id
. at 122, 124 (emphasis added);
see also Miles
,
[26] See , e.g ., Newman v United States , 258 A.3d 162, 165 (D.C. 2021) (explaining that defendant’s argument that reasonable, articulable suspicion was
[27] The dissent mischaracterizes our reaffirmation of this approach as the
“announce[ment] [of] a rigid new rule,”
post
at 77, and asserts “the high-crime-area
evidence in
Wardlow
would flunk the rule” we purportedly adopt,
post
at 79. First,
our opinion speaks for itself. Second, as previously explained,
Wardlow
contains no
discussion of what is required of high crime area
evidence
. And third, it is beyond
question that reasonable, articulable suspicion must be based on more than
conclusory statements.
See Terry
,
[28] We explain only how “high crime” evidence should be weighed within an assessment of reasonable, artiсulable suspicion; contrary to the assertion of the dissent, post at 81, nothing we say has any bearing on the quantum of the government’s burden of proof at a suppression hearing.
[29] In granting the government’s motion for reconsideration, the court overcame the “difficulty” it had with Sergeant Jacquez’s testimony by concluding that it did not matter whether it was objectively true that Mr. Mayo was seized in a high crime area; what mattered was that it was a high crime area “in the mind of the officer.” But the law is the exact opposite. Reasonable, articulable suspicion is an
[31] Mr. Mayo only moved to suppress the evidence obtained from the search of his person before the trial court. But the trial court appeared to rule not only on the admissibility of that evidence but also the evidence he allegedly discarded before his arrest. On appeal he argues all of this evidence should have been suppressed. Because the government has not raised a preservation challenge and has fully briefed this issue with respect to all of the evidence, see Carrell v. United States , 165 A.3d 314, 325 n.30 (D.C. 2017) (en banc), we conclude any preservation issue has been waived.
[32] In its initial brief, the government argued that Mr. Mayo abandoned the
items he discarded when he fled from the GRU officers after Sergeant Jaquez dove
at him, and therefore lacked standing to challenge the recovery of those items on
Fourth Amendment grounds.
See Spriggs v. United States
,
[33] The dissent appears to argue that we should remand for the trial court to make a factual finding about but-for causation. Post at 83. But the government invites us to examine the facts on the record, asserting they are legally insufficient to support a determination of but-for cause. For the reasons discussed, we conclude that thе evidence amply supports a showing of but-for cause and it would be incorrect as a matter of law for a trial court, on this record, to rule otherwise.
[34]
See United States v. McClendon
, 713 F.3d 1211, 1217 (9th Cir. 2013)
(concluding appellant “was not seized until after he tossed his gun” “and thus lost
his ability to challenge the admissibility of the [abandoned] handgun as a fruit of an
illegal seizure”);
United States v. Morgan
,
[35] See Wong Sun , 371 U.S. at 488 (rejecting the argument that but-for causation is a sufficient basis for suppression and explaining that courts must also assess whether “the evidence to which [the] instant objection is made has been come at by exploitation of [illegal police conduct] or instead by means sufficiently distinguishable to be purged of the primary taint” (internal quotation marks omitted)).
[36] See United States v. Boone , 62 F.3d 323, 325–26 (10th Cir. 1995) (concluding officers’ recovery of the evidence that appellants threw out the window of their car was “sufficiently attenuated” from the officers’ initial illegal car search by “the presence of intervening circumstances”); United States v. Garcia , 516 F.2d
[37] In
Johnson
, we acknowledged that in some cases, a number of which the
government cites here,
see supra
notes 34 & 36, other courts “have found attenuation
in a defendant’s response to illegal police conduct,”
[38]
See, e.g.
,
Jones v. United States
, 168 A.3d 703, 723 (D.C. 2017)
(suppression of cell phones warranted where “undoubtedly one of the officers’
purposes in [unlawfully] deploying [a] cell-site simulator . . . to locate and track
phones” was the recovery of cell phones (emphasis omitted));
Gordon v. United
States
,
[39] To the extent the GRU uses this intimidating tactic to gin up responses that they can then use to justify investigative seizures of the people they accost, see id. , their investigative methods are troubling, but even without considering whether such conduct is the sort of flagrant misconduct that needs to be deterred, we conclude that the government cannot carry its burden to prove attenuation.