United States v. Goddard, Melvin

v. Goddard, No. 04-214, slip op. Before: GINSBURG, Chief Judge, (D.D.C. 18, 2006) (hereinafter Dec. “Sup- TATEL and BROWN, Circuit Judges. plemental Findings”); Tr. of June his waistband. gun in finding a pat-down, 5'8" close were Only two at 83. Hr’g Goddard placed the officers that point, At 5'6" between the other (one 5'6" his arrest but After arrest. Vaughn under feet), Goddard while six warning, Goddard Miranda over witness, both he received Walker, defense gun the carrying offi- he was of the that to one According explained tall. feet six and jail of out part” gotten just most the had he “for men because cers, the four the clothes recently. far as “as shot lookout had been the matched of June Tr. weight.” and height thing, pos- for Goddard indicted jury grand A later officer same The 17. Hr’g at felon. a convicted firearm aof session uncertainty about despite his that clarified the that Arguing 922(g)(1). § 18 U.S.C. heights the men’s consistency of the the for suspicion reasonable lacked officers ap- to he decided description, the lookout gun the suppress to moved stop, Goddard worn clothes “the on based them proach it. Al- owned that he his admission and gen- three other and the defendant by the to case close it “a believing though 21-22. at Id. tlemen.” Terry the stan- facts meet these whether station, gas the into pulled officers The 81, the at Hr’g dard,” of June Tr. group away the from twenty feet to fifteen the that found nonetheless court district plain wore officers All four of men. stop to suspicion reasonable had officers and logo, MPD clothes, jackets with its conclusion based court Goddard. were handcuffs guns Their badges. the that circumstances: primary on two drawn. guns the showing, but and soon two blocks occurred sta- gas the into pulled the officers Once the that UUV; and attempted the after from the away moving began tion, Walker descrip- suspect’s the loosely matched men car, their exited the officers As group. jeans blue four wore all tion, that given waist- of his side right the “held Goddard was close one at least coats Id. gun.” ... holding was band, like he height. suspect’s men, one of group of Approaching at he say Goddard overheard the officers motion his denied the court After shouted whereupon gun, reserv- guilty, pleaded Goddard suppress, testimony was Although Walker’s “gun.” issue suppression raise right to ing the sequence as to clear than less we argument, Following oral appeal. to the court, contrary events, the district court district the record remanded Dissenting characterization, see dissent’s se- as to “the findings supplemental still was Walker 466-67, found Op. at appellant’s surrounding of events quence at the men the group away from moving establishing seizure, factors stop and of June Tr. “gun,” shouted the officer time stop, and became contact (making this 81, 84-85 Hr’g at at officers known facts announcement its shortly after finding Goddard, points.” those find- following make will court “[t]he 2006). In (D.C.Cir. Nov. No. 05-3080 sug- dissent not, as fact,” ings memorandum, the district supplemental its of Walker’s summary separate in a gests, this “In finding: following made 466-67). Dissenting Op. testimony, see became ‘contact’ [officers’] him told officers testified Walker drove as the soon ‘stop’ as back he “turned point return, which investigate ... station to the up by one aside pulled around” men African-American whether Two of 59-60. Id. officers. talking included standing and they saw conducted Goddard handcuffed then [attempted UUV suspect].” Supplemental D., Hodari fornia Findings at 2. S.Ct. (1991) L.Ed.2d 690 (alteration in original) (quoting United II. States v. Mendenhall, 446 The Fourth Amendment pro L.Ed.2d 497 (plu vides that right “[t]he of the people to be rality opinion)). “[T]he test must not be secure in persons their ... against unrea what the defendant himself ... thought, sonable searches and seizures, shall not be but what a man, innocent of violated, and no issue, Warrants shall but any crime, would have thought had he upon probable cause.” U.S. Const, amend. been in the defendant’s shoes.” Gomez v. IV. As an exception to the Fourth Amend Turner, 672 134, F.2d (D.C.Cir.1982) 140 ment’s warrant requirement, may officers (quoting Coates v. States, United 413 F.2d conduct a investigative brief “Terry stop” 371, 373 (D.C.Cir.1969)). Under test, this so long they as “reasonable, have articula- neither subjective impressions of the ble suspicion” of criminal conduct. Illi defendant nor the subjective intentions of Wardlow, nois v. 119, 528 123, U.S. 120 the officer determine whether a seizure 678, S.Ct. 145 L.Ed.2d 570 (citing has (“[T]he occurred. See id. at 143 intent Terry Ohio, v. 1, 392 30, U.S. 88 S.Ct. of the officer or the reason behind his 1868, 20 (1968)). L.Ed.2d 889 Terry stops decision to approach pedestrian a cannot require only that officers a have “minimal be the basis upon which we determine of objective level justification,” INS v. Del whether a occurred.”). seizure has In de gado, 210, 466 217, U.S. 104 1758, S.Ct. 80 ciding whether a stop has occurred, this (1984) L.Ed.2d 247 signifi standard — a circuit has cited the factors listed by Jus cantly lower than probable cause re tice Stewart in United States v. Menden quired for a warrant. hall: “the threatening presence of several In this we face two distinct issues: officers, the display of a weapon by an when the stop occurred and whether the officer, physical some touching of the per officers had reasonable suspicion at that son of citizen, or the use of language or time. Both are questions of law that we tone of voice indicating compliance consider de novo. United States v. Mar with the officer’s request might be com- agh, 894 415, F.2d 417 (D.C.Cir.1990) pelled.” 446 554, U.S. 100 1870; S.Ct. (“[T]he [Supreme] Court has never de Gomez, 672 F.2d at 144. In addition, we ferred to the trier of fact regarding the consider “the demeanor of the approaching question of seizure.”); United States v. officer,” Gomez, 672 144, F.2d at “whether Christian, 187 663, F.3d (D.C.Cir.1999) 666 the officer ... wore a uniform,” and “the (applying de novo review to district court’s time and place of the encounter,” United determination of suspicion). reasonable Wood, States v. 981 536, (D.C.Cir. F.2d 539 As to the issue, 1992). first stop a course, Of takes not all interactions be place “[o]nly when officer, by means tween police of and citizens are stops, as “law physical force or show of authority, has in enforcement officers do not violate the some way restrained the liberty of a citi Fourth Amendment merely approach zen,” Terry, 392 U.S. 19 n. ing 88 S.Ct. an individual on the street or in anoth 1868, or, put differently, “only if, in view public er place.” Florida v. Royer, 460 all the circumstances surrounding the inci U.S. 103 75 L.Ed.2d dent, a reasonable person would have be 229 (1983); see also United States v. lieved that he was not free leave,” Nurse, Cali- 916 F.2d (D.C.Cir.1990). 23

461 pres But Hr’g at 21, 2004 June district with disagree We not automati does officers multiple ence soon “as happened stop See has occurred. stop mean that cally station.” to the up drove officers police 108 S.Ct. Chesternut, itself, U.S. at By at 2. Findings Supplemental car with police where seizure (finding an insufficient no car aof presence defendant); also see reasonable, followed officers make four authority show Tavolacci, For to leave. feel unfree innocent seizure Chesternut, (finding no (D.C.Cir.1990) Michigan 1424-25 example, in in defen L.Ed.2d officers two at most where moreover, cases, allow view). cruis ain Our (1988), dant’s where running ap contact—to with up make catch er accelerated to him interact parallel drove individuals proach pedestrian See, explained suspicion. Court while, Supreme short them —without car of a (finding no presence although Nurse, F.2d at e.g., such intimidating,” aas himself “somewhat identified might who officer where a sei not constitute does questioned presence approached use their not did officers the States stand); United where zure taxi at a defendant the command flashers, not did 117 or siren Winston, F.2d 892 v. display then- not stop, did to where defendant no seizure (finding (D.C.Cir.1989) to aggressively drive not did and police a weapons, as himself identified who officer movement. the defendant’s control or block to speak asked and approached officer Similarly, 1975. 108 station). S.Ct. Id. at As of bus outside defendant with Johnson, F.3d 1313 212 in United explained: we have seizure no that we found (D.C.Cir.2000), figure aas officer of the presence [T]he drove officers where occurred had not, by authority does governmental of lot parking into car unmarked their authority” of the “show itself, constitute the defendant’s from away twenty-five feet person a reasonable make to necessary officers Here, when 1317. the. Id. at car. must There leave. to unfree feel the into car unmarked their drove officer by the conduct additional some twenty fifteen station, car gas rea- that presumption overcome men, and of group away feet cooperate willing person sonable that indicates the record nothing officer. law enforcement a with impeded aggressively drove officers question of a direction approach Moreover, fact movement. Goddard’s of matter be, as a cannot station’s in the halted car that so person of law, a seizure or of fact rea that a suggest way does entrance approached. have pedestrian sonable, innocent omitted). (footnote at 142 Gomez, F.2d 672 leave. unfree felt MPD wore fact that Thus, the occur did Nor handcuffs, does guns including gear, approach began car their exited See Unit- stop occurred. not mean Admit- men. three other and the Goddard 210, 213-14 Samuels, ed States sug- are the circumstances of tedly, some of visibility (“Although (D.C.Cir.1991) offi- including stop, a gestive uniform, a aof display handcuffs, like guns with present cers —all to whether relevant gun, aor badge, wearing identifiable showing and handcuffs seizure, constitutes encounter badges jackets MPD —and itself, handcuffs, by display of passive Tr. car. out” “jumped is not a sufficient show of authority to cer ordered defendant’s coworker cause a reasonable, law-abiding person to “freeze” when individuals “were five believe his liberty is being restrained.” apart feet ... obviously working to- (citations omitted)). Contrary to the dis- gether”). sent’s suggestion, we think Walker’s char- Nor do we any have doubt that acterization of the officers as “jumping] by this point this is the second issue —and out” car, even coupled with the car’s we must address —the officers had reason presence in the way, entrance an insuffi- able suspicion to stop Goddard. Reason cient show of authority to constitute a able suspicion requires that, based on the stop. See Dissenting Op. 465-66, 468- totality of circumstances, an officer have particularized “a and objective basis course, Of can we imagine additional suspecting particular person circumstances that might have made a rea stopped of criminal activity.” United sonable position Goddard’s feel Cortez, States v. to leave, unfree such if had L.Ed,2d (1981). Here, run aggressively towards him. See Go the officers plenty had of reason to suspect mez, 672 F.2d (listing officer’s de Goddard had a weapon, which Goddard meanor as a factor determining whether himself concedes would justify a stop. a stop occurred). But because God Oral 7:58; Arg. see D.C. § 22- Code dard made no such showing, we need not (prohibiting carrying weapons decide whether such circumstances would in D.C. license). without a After “[hold produce a See, different result. e.g., Win ing] right side of his waistband, like he ston, 892 F.2d at 117 (holding that where was holding ... a gun,” Tr. of June “no ... showing was made” that officer’s 2004 Hr’g 8; see United States v. action would make “reasonable, law-abid Brown, 334 F.3d (D.C.Cir.2003) ing person in position” [defendant’s] feel (holding that furtive movements in re unfree to away, walk district court erred in sponse to presence may create rea finding Fourth Amendment violation); sonable suspicion), Goddard declared he Shell v. States, 448 F.3d had a gun, giving the officers ample (7th Cir.2006) (finding no seizure where grounds for the Terry stop. defendant failed to show that officers re Thus, strained because the liberty). his officers had reason- able suspicion at the time of the stop, we Based on the us, record before affirm Goddard’s conviction. stop occurred when one of the officers So ordered. yelled “gun” and told Walker to return to the group. We have no doubt that a rea BROWN, Circuit Judge, dissenting:

sonable would feel unfree to leave upon hearing officers seven or eight feet America, In people who are peaceably away yell “gun” statement sure to —a and lawfully minding their own business arouse the concern of all (or officers and civil be) who seem to have the right to be ians in the immediate area —and order one free from arbitrary police interference. of his companions to return. Wood, See That is explicit premise of Terry v. 981 F.2d at 540 (finding stop Ohio, where officer ordered defendant to stop); United States L.Ed.2d 889 (recognizing the right v. Alarcon-Gonzalez, 73 292 of every person to be free from unreason- (10th Cir.1996) (finding seizure where offi- able governmental restraint, interference, jumped “automatically all four later, Terry’s, intrusion). Forty years or Hr’g out,” of June In Tr. troubling questions. raises evolution logo, the “MPD” jackets bearing drug- wearing violence-prone, crime-plagued, ofOne handcuffs. centers, and weapons, rea- holstered urban reality of our ridden stop; threshold; to Walker Mr. told high a the officers too suspicion sonable Walker, but at Mr. was directed ask? statement to much it too others, including appel- message

I attempted one No lant, enough. clear was approached Police brief, Figgeroa follows. As Officer are as flee. facts, The said, gun,” “I have driv- The appellant vehicle. appellant, a motor pursuing were Figgeroa foot fled on Officer immediately effect. to that or words over pulled er alerting the fleeting “gun,” yelled out caught immediately Police the dark. man, appellant aver- officers, restrained a black who suspect: other glimpse shirt, jeans his build, wearing blue lifted difficulty and then height without age go pants. much into his handgun coat. Not tucked or jacket revealing a dark but earlier who had neighborhood, However, largely black in a identify de- giving could not a “lookout” “lookout” broadcast broadcast height man’s fleeing suspect. They reported scription. appellant as 180 weight 5'10", his as 5'8" arrested, charged Appellant away, Offi- five blocks About pounds. firearm, in aof possession with unlawful other officers three James cer Israel He § 922(g)(1). U.S.C. of 18 violation Crown unmarked in an patrolling evidence physical suppress moved as a area well-known in Victoria, a car illegal statements, claiming an and his report they heard When car. Amendment Fourth his in violation closer they drove fleeing, man a black suppres- held The district rights. site. the motion. denied hearing and sion suspect where the blocks Two that, in the clear makes analysis court’s men— fled, spotted the officers as soon occurred view, Terry stop court’s to 6'4" —con- from 5'6" height in ranging But the scene. on arrived officers as the station, gas a front of in peaceably versing had suffi- concluded the court coat.1 wearing a black them one of least at on based and frisk a grounds cient residents, who neighborhood were These fleeing description the broadcast car, one recognized quickly pre- pled guilty, then Appellant suspect. Walker, noth- wanted men, Vaughan Fourth appeal right his serving he was though police, with the to do ing issue. Amendment activity. criminal any in involved ap- appellant’s argument heard We Walker stopped, before Even 2006, on Novem- 16, on October peal far. get didn’t he away walking began —but to the the record remanded we ber way into part their car pulled clarify court court, asking the entrance, district station, blocking the gas judge trial point, the id. at 49. At one jeans,” regarding the clothes testimony 1. The a "jeans wearing men unhelpful. Officer describes wearing quite were men 83; "blue point, shirt,” id. at another ''[flor their clothes dark testified James id. In neither at 86. description jacket,” a dark jeans and part” matched most broadcast, Hr’g supported statement Tr. of June court's is the case (who feet over six appellant adding testimony. specific blue coat and tall) wearing a ''[b]lack “sequence exact of events surrounding more, provide without police adequate jus- appellant’s stop seizure, the factors tification for a Terry stop. It is not establishing when contact be- enough to share the same racial character- came stop, and the facts known to the istics as a suspect and be in the vicinity. police officers at those points.” United The “lookout” broadcast at issue here Goddard, States v. (D.C.Cir. No. 05-3080 described only a male, black 5'8" to 5'10" 9, 2006). Nov. The district respond- in height, about 180 to pounds, wear- express ed with an finding that the Terry ing a jacket or coat jeans. and blue stop occurred “as soon as the offi- The broadcast went out after nightfall, and cers drove up to station at 2830 the officer broadcasting the description Sherman Avenue investigate.” United made clear suspect had fled before Goddard, States v. No. slip. op. got good look at Therefore, him. (D.D.C. 2006). Dec. the arresting officers were on notice that the description might unreliable, point

II which they readily acknowledged. At Before Terry, warrantless seizures best, were one can speak only in the ap- most deemed if based proba- proximate terms about the height and ble cause. Terry out carved a narrow weight of a man running seen away in the exception to probable cause require- dark, and in those circumstances, any ment, allowing police officers to make lim- jacket dark-colored coat or might appear ited intrusions if the officer reasonably to be black. In any case, the officers were suspects criminal activity is afoot public definitely not looking for four men, young safety is at Thus, risk. ranging in height from 6'4", 5'6" to con- officer initiates an investigative stop, the versing peaceably in front of gas station. must, based on an assessment of The police can articulate no basis for tar- picture, whole “have a particularized geting these men except they black, objective basis for suspecting the par- they were casually clothed, and they were ticular person stopped of criminal activity.” general vicinity of the fleeing sus- Cortez, States v. 417- pect. The officers conceded that none of 18, 101 (1981). 66 L.Ed.2d 621 these men agitated, seemed nor did any The Court adopted a two-part inquiry for show signs of physical recent exertion, evaluating the reasonableness of an inves- such as labored breathing or sweating. tigative stop involving something less than Apparently, a “lookout” broadcast encom- probable cause: Was the officer’s ac- passing virtually any casually dressed justified tion at its inception? and Was black man in the vicinity made all black it reasonably related in scope to the cir- males fair game. Such a generic descrip- cumstances justified that it in the first tion should never be a sufficient for basis place. Terry, 392 U.S. at 88 S.Ct. Terry stop. 1868; United v. States Sharpe, 470 U.S. Though the in cases this circuit very are 1568, 105 S.Ct. 84 L.Ed.2d 605 deferential to the police, as is appropriate, (1985). none stands on as thin a record as this one. true,

It is course, that as a standard Our cases establish, as they should, the “reasonable suspicion” is necessarily im- general rule that when a police officer precise. But no matter how low the bar is to decides initiate a Terry stop based sole- set, generic racial descriptions ly devoid of on a third-party description, that de- distinctive individualized cannot, details scription needs specific enough to

465 particular the only with not vary, people other suspect from the differentiate setting the issue, also but conduct Hence, in a case vicinity. in the who are v. Michigan occurs.” the conduct which in predomi- in a fugitive a black involving 573, Chesternut, 486 U.S. the neighborhood, nantly black (1988). 565 1975, 100L.Ed.2d than go on more something have must street-clothes. and standard race, gender, amade noted, district court Here, as the 584 Davis, F.3d 235 v. States See United stop oc- Terry that determination Smart, 98 States (D.C.Cir.2000); United officers drove as soon “as curred (D.C.Cir.1996); United words, F.3d 1379 in In other gas station.” to the up (D.C.Cir.1993). 1224 992 Simpson, view, circumstances court’s the district case, our satisfied not rule is That a reason- that such moment at that enough extreme are facts where have felt free not would person able extend considerably rule and debase the district accept Generally, we leave. Davis. holding our clear- as true unless of fact findings court’s of when question erroneous, but ly Ill Amendment for Fourth is seized person of fact question a mixed purposes A subject to are facts The historical law. did Terry stop argues the majority review, standard clearly erroneous admit- appellant after until here not occur States, U.S. v. United Ornelas course, a Usually, of gun. he ted L.Ed.2d 699, 116 S.Ct. police actual- only when Terry occurs as to conclusion ultimate (1996), but make person restrain ly physically Fourth constitute facts whether per- indicating statement verbal some id. legal question, is a seizure Amendment state- A verbal to leave. not free son is court’s however, the district cases, In some way to only however, not ment, general only a findings present factual “show message; a communicate implicit findings remain sketch, and other a detention. effect also authority” can For conclusion. ultimate court’s in the S.Ct. 19 n. Terry, 392 U.S. weight due “give must reason, we this standard applicable latter In the findings] [the drawn inferences citi- whether one: objective “is an Therefore, does it Id. judges.” resident ordered being he was perceived zen consider us to case in this not suffice movement, but whether his restrict must we findings; express only the court’s con- have actions words officer’s record, reading the entire also consider Cali- person.” a reasonable that to veyed court’s favors way ain evidence D., v. Hodari fornia occurred. the seizure to when conclusion (1991). “[A] L.Ed.2d the mean- within ‘seized’ has been B if, in Amendment of the Fourth ing us, four record to the According surround- circumstances all of view of car known in a up pulled person incident, a ing the They car. police to be neighborhood free not he was have believed into the way only part car Mendenhall, brought to leave.” en- as to block so station, parking 1870, 64 554, out, jumped trance, all four (1980). constitutes “[W]hat L.Ed.2d and bear- “MPD” clothing marked wearing person liberty prompting restraint he testified Walker weapons. ing visible will ‘leave’ free to he is conclude police seen officers “jump out” of the Walker’s testimony. The court introduced same car on prior numerous occasions. this passage by stating that Officer Tr. of June 2004 Hr’g at 57. His use of James’s testimony “was corroborated expression slang “jump conveys out” the testimony of Mr. Walker.” Id. at 84 his impression that these four officers (emphasis did added). The court then ex- not calmly exit the vehicle in order to pressly ask referred to “notes” the court had a few questions. Rather, phras- Walker’s taken of testimony and, Walker’s in that ing indicates a police coordinated context, action— made the comment the majority or, put point terms, street a bust calls a finding. Id. Significantly, was going down. This was not a casual court’s notes of testimony Walker’s contact, and these men were not free to apparently inaccurate, for Walker never walk away. actually stated that gun was found while he was walking away. See id. at 68-

The fact that Walker tried to leave and short, In the court’s asserted police “find- instructed him to only return ing” is ambiguous best, at and in any confirms this conclusion. See United the record contains no evidence to support States v. Alarcon-Gonzalez, 73 F.3d it. (10th Cir.1996) (ordering “freeze” effects a seizure of a nearby asso- addition, In the fact that appellant blurt ciate). Walker testified that he began to ed out that he had gun evidences his walk away while the were still in the subjective impression that the police were car, Tr. of June Hr’g at going to him, search and the officers con and he did not very get far before being firmed they did not stop merely to ask told to stop, id. at Also, 69-70. the se- these what, individuals if anything, they quence of Walker’s narrative indicates po- might have Rather, seen. Officer Israel lice told him to stop they confronted James testified that the purpose in stop appellant. Id. at 58-64. The most natural ping was “to attempt to determine whether conclusion, then, is that the police told or not ... one of the individuals was the Walker to stop as they were emerging who actually one fled the scene.” Id. at 7. from the car or immediately thereafter. subjective intent of officer is perhaps not context, determinative this Contrary to majority’s assertion, see Mendenhall, 446 6, 100 554 n. maj. op. the record contains no 1870, but it does tend to support the explicit dis finding by the district court that trict court’s conclusion that the Officer con Figgeroa had already yelled “gun” veyed the message, through their when actions instructed Walker to stop and demeanor, that no one was return. free to The court does that, state at the Thus, leave. I find the evidence time easily Officer Figgeroa yelled “gun,” Walk- supports the court’s ultimate er conclusion was “walking away” with “his back to- to when the seizure occurred. others, wards” the Tr. of June Hr’g but the court may have True, been the district court concluded the referring to that, the fact police told seizure occurred “as after soon as return, Walker to they then instructed him officers up,” drove whereas it more accu- “[tjowards go over rail, rately between occurred drove up, pay phone and the air pump,” id. at jumped out, and told Walker leave, not to 60-61. Moreover, in the passage the ma- but the court’s statement can reasonably jority references, the district court was not be taken in a general sense. The court’s making a finding but only summarizing meaning that the seizure did not that the my view already stated have I admitted later, appellant when occur police the occurred when in this stop case interpretation This gun. a having told Walk- vehicle and their out of jumped with the is consistent statement court’s however, case, illumi- This er not leave. the which Terry, in -application court’s majority’s The ana- issue. a broader nates they ex- as solely on events focused the entirely on turns almost approach lytic admission. appellant’s prior isted Hav- stop the occurred. of when question (“when the one of the ing identified ” IV 462), maj. op. yelled ‘gun,’ out of passes it preceding everything implicate police with all encounters Not the familiar under comprehended analysis, rather, Amendment; different Fourth a free “to make officers are that axiom different trigger interactions police-citizen and inter- individuals approach contact—to are en- encounters Consensual standards. suspi- reasonable them—without act with the Amendment. scope of tirely outside “emphatically Terry 461. But Id. at cion.” commonly Investigative detentions — “isolate from logic a reject[s]” supported be Terry stops as known —must stages the initial scrutiny constitutional activi- criminal suspicion by reasonable and the policeman between the contact probable require arrests ty. Custodial 16-17, 1868. 88 S.Ct. U.S. citizen.” cause. initiation,” as “the Rather, Terry limits recog It decision. was sensible Terry a deten- investigative scope,” of as “the well offenders dangerous my that armed In nized 17, 88 S.Ct. 1868. Id. at tions. safety of (“Have threat a serious present conversation view, truly consensual it al public, man?”) and the on police police are both in which you seen this savvy and very street role for greater ordinary a citizens lowed with terms equal Terry holding in which judgment. confrontation police different to take because person police particular permits target a and ex experience de- their the criminal to be steps, based him suspect they it It a crime makes prevent training, to broadcast. pert scribed safety, justifying not to maintain Amendment Fourth and to occurs for sense “reasonable, po- artic- between conversation actions with casual regulate their Wardlow, could But how Illinois suspicion.” and citizens. lice ulable stay dormant 120 S.Ct. Amendment Fourth they sus- Terry's (characterizing because someone confront L.Ed.2d Targeted intended never a criminal? Terry was him to pect be holding). But Amendment. prob activates warrant investigation upend completely be- if confrontation it does so the instant requirements, In cause able stop; investigative hand a free an give police gan courts the lower about suspicion coincidence particularized is the there claimed whenever search could claim men—a flight specific from the recent man’s of a black objective by the conceivably supported presence man’s and another ma- Not even available. perverts information This standard vicinity. lax investigation the initial jority claims police have requirement the core employs Rather, majority justified. sus objective basis “particularized justifying that makes analytic approach crimi ... of particular pecting constitutionally unneces- confrontation Cortez, activity.” nal certainly consistent This is sary. trend of recent cases applying Terry, but I even-handed application of the Terry think it error. When focus standard too much to ask? their investigative attention on someone The facts of this case lead me to wonder and choose confront person, they if Terry’s prudent on police constraints must have a constitutionally adequate rea- conduct have forgotten been in our frus- son for doing so. Nothing in Terry sug- tration over city plagued life with drug gests that the police employ can arbitrary trafficking and violent crime. result, As a criteria to select their targets and then what we are tempted now to enforce is not artificially create the circumstances that but that, the rule in a high-crime Tern/

justify application of the Terry exception. neighborhood, being male, young, reasonable, creates

Terry itself acknowledged articulable suspi- the unaccept- cion. See Harris, David A. able social cost of Fourth Factors Amendment vi- Reasonable olations, Suspicion: When Black discussing “police-community Poor Stopped Means Frisked, tensions in the crowded centers of our Ind. (1994). L.J. 659 Here, four men Nation’s cities” and the “wholesale stopped. There was no constitutionally by harassment certain elements of the po- adequate justification for the initial con- lice community” minorities, “particular- frontation. Three of them were innocent ly Negroes.” Id. 88 S.Ct. 1868. of criminal activity, but nevertheless faced There are specific two aspects to this so- the indignity of being placed against rail problem. First, cial inappropriate use of and searched. Vaughan Walker testified Terry in America’s minority neighbor- he started walking away as soon as he saw hoods offends the principle equal jus- the police car because he “didn’t feel like tice For, under law. know, we all being harassed.” The lesson of today’s courts would not approve the search of decision is clear: he has no choice. four men in attire, business conversing peaceably in front of a Starbucks, if the When the ostensibly principles neutral only basis for the search awas “lookout” set forth in Terry are thus applied, what broadcast specifying man, a white medium was created to be a carefully outlined ex- height build, wearing a business suit. ception to the Fourth Amendment’s war- Second, excessive Terry searches poor set rant probable requirements cause black communities and on op- transformed a general into warrant —a po- posing sides of pitched battle. At mini- lice license to search out crime playing mum, these perpetual intrusions leave odds, relying hunch, intuition, street young black men feeling bruised in- smarts, and stereotypes. The odds are sulted. Often enough, the anger leads good, although the crimes charged are too confrontations with the police, sometimes often unrelated to the “suspicion” that led n withviolent or lethal consequences. As to the stop. all, After in the instant Terry put it, officers use a search of four almost randomly selected stop-and-frisk against tactics minorities to black men in high-crime neighborhood “maintain power image” of the offi- turned up one with gun 25% success —a cers, the aim is “sometimes accomplished rate. The instances where a search dis- by humiliating anyone who attempts to closes no criminal activity are brushed undermine control of the streets.” aside and forgotten except in the neigh- — Id. at (citation 15 n. 88 S.Ct. 1868 and borhoods where the sense of unfairness quotation omitted). internal marks Is the and frustration festers and swells and then he or that scene at the person or mind- of defiance acts in little seeps out leave, best and the to not free was she rage. of eruptions less the record evidence of the interpretation “can opinion no that Acknowledging legal conclusion. that reasonably supports variety of the protean the comprehend left in- court’s court encounter,” Terry the district adopt the should street We responsibility when stop occurred Terry “traditional the finding courts’ that the tact is which the entrance conduct into pulled police officers against guard to four simultaneously which or harassing, station, sprang overbearing gas of the security without not Walker car, instructed personal upon from their trenches justification reject evidentiary then should objective We leave. to requires.” generic that conclusion legal the Constitution which court’s court man If this black a medium-sized S.Ct. of description at U.S. line, is the this oc- Terry stop such to draw fleeing justifies going ever logic, court’s it. the district By to draw which case in curred here. stop virtual- to able have been would V man within casually dressed every ly Be- crime. of the radius a sixteen-block new a broad advocating here not I am available facts meager cause will inhibit law that constitutional rule of justifying close not did come officers members are free contact Police police. subsequently they contact, fruit initial being contact every without public of the tree should poisonous out shook See, e.g., United as a seizure. construed It is ask? much that too Is excluded. (D.C.Cir. 20, 23 Nurse, F.2d v. States just it requires; the constitution what two or of 1990). Moreover, presence enough. itself, not, transform by does more officers See, e.g., United a seizure. into a contact respectfully dissent. Accordingly, I 1423, 1425 Tavolacci, v. States pres us before (D.C.Cir.1990). case The concurring. TATEL, Judge, Circuit po The circumstances: very specific ents concerns dissent’s many I share to a response men in these targeted lice Terry applied have courts how about fleeing suspect. about specific broadcast communities, Dis- see minority high-crime station, into way They part pulled welcome and would at senting Op. entrance; blocking concerns those explore opportunity once, wearing the car from jumped however, pro- cannot This depth. imme “MPD”; they clothing marked prob- because opportunity vide attempting who diately told someone flow dissent articulated so well lems how one is not That to return. to leave Court of Supreme a series directly from they when proceed expect would this bind decisions Circuit D.C. very it is making inquiries, merely are acknowledges, and, dissent as the panel in which cases the facts different issues the outcome determine pres their than make no more did (charac- Dissenting Op. 467-68 See us. Chesternut, See, e.g., felt. ence “consistent approach majority’s terizing 1975; applying cases of recent trend (D.C.Cir. 1313, 1317 Johnson, 212 F.3d ”). Specifically: Terry here have 2000). important, we Most occur stop did that the by the district finding See Michi- car. their exited to a communicated have conduct gan Chesternut, reasonable suspicion exists where an 100 L.Ed.2d 565 officer has “a particularized and ob- (1988) (finding no seizure po where jective basis suspecting par- lice car with four pursued ticular stopped of criminal defendant); Royer, Florida v. activity”); Brown, United States v. 1319, 1161, (D.C.Cir.2003) (1983) L.Ed.2d 229 (holding that offi (“It is well settled that an individu- cers may approach an individual in al’s furtive movements may be public without effecting seizure); grounds reasonable suspicion United Samuels, States 938 F.2d fear, justifying a Terry 210, (D.C.Cir.1991) 213-14 (noting search.”); Maj Op. at 462. that mere visibility of officer’s hand- cuffs, uniform, badge, gun is an

insufficient show of authority for a

seizure); Turner, Gomez v. 672 F.2d (D.C.Cir.1982) (“There must be some additional conduct Hiwot al., NEMARIAM et Appellants [beyond the fact of pres- his ence] to overcome the presumption that a reasonable person is willing to The FEDERAL DEMOCRATIC RE cooperate with a law enforcement PUBLIC OF ETHIOPIA and the officer.”); Maj. Op. at If 460-62. Commercial Ethiopia, Bank of Appel the stop had occurred po- when the lees. lice car, exited their I agree with the dissent No. 05-7178. lacked suspicion. See United Court Appeals, Dissenting Op. at 464-65. District of Columbia Circuit.

(2) The stop instead occurred when one yelled “gun” and told Argued Nov. 2006. Walker to return group. to the See Decided June 2007. United Wood, States v. 981 F.2d Rehearing En Banc Denied (D.C.Cir.1992) (finding sufficient Aug. show of authority for a stop where officer ordered defendant stop);

United Alarcon-Gonzalez, States v. (10th

73 F.3d Cir.1996)

(finding seizure of defendant where

officer told defendant’s companion to

freeze); Maj. Op. at 462.

(3) At that point the officer —when yelled “gun” police had reason- —the

able suspicion to stop Goddard. See (2001) §

D.C. Code 22-4504 (requir-

ing a license carry a handgun); Cortez, States v.

411, 417-18, 101

L.Ed.2d 621 (holding that

Case Details

Case Name: United States v. Goddard, Melvin

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 22, 2007

Citation: 491 F.3d 457

Docket Number: 05-3080

Court Abbreviation: D.C. Cir.