United States v. Wright

United States Court of Appeals
For the First Circuit

No. 08-1063

UNITED STATES OF AMERICA,

Appellee,

v.

GREGORY WRIGHT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Charles W. Rankin, with whom Michelle Menken and Rankin &
Sultan, were on brief for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, former United States Attorney, was on brief
for appellee.

September 23, 2009
 TORRUELLA, Circuit Judge. This is the second appeal

concerning a Terry stop which resulted in the entry of a

conditional guilty plea by appellant Gregory Wright for being a

felon in possession of a firearm, 18 U.S.C. § 922(g)(1). In the

Terry stop at issue, Boston police officers recovered a gun from

Wright's sweatshirt pocket after Wright was observed leaning

forward from the backseat of a car to identify the officers,

quickly exiting and running from the car, clutching at the right

side of his sweatshirt while running, and ignoring the officers'

order to stop. Below, Wright moved to suppress the gun, but the

district court denied the motion, concluding that the officers had

reasonable suspicion to stop him. In Wright's first appeal, we

ruled that the district court's denial of the suppression motion

was tainted with legal error, and remanded for further proceedings.

United States v. Wright, 485 F.3d 45, 54 (1st Cir. 2007). On

remand, the district court again denied the motion, and Wright

renewed his appeal. This time, after a careful review of the

record, we affirm.

I. Background

A. The Prior Proceedings

The district court first denied Wright's motion to

suppress after an evidentiary hearing at which three officers

testified about the circumstances leading to his arrest. On

appeal, we held that the district court's conclusion that the

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officers had reasonable suspicion to stop Wright was based on a

legal error. The court interpreted Wright's running as "flight,"

and accepted the police officers' testimony that they saw Wright

clutch his sweatshirt, by linking those findings to the subsequent

discovery of the gun. Id. at 48.

We further held that the court's self-described

"backwards" reasoning fatally tainted its factual findings. See

id. at 48, 52 (quoting the district court as stating "Can I reason

backwards from the fact that what happened next was that the police

officers discovered the weapon on Mr. Wright? I think it is

undisputed he was carrying a weapon and I do so reason"). We

observed that it was "impossible to discern whether the court would

have concluded that Wright knowingly fled from the police if it had

not considered the eventual recovery of the gun." Id. at 52.

Similarly, we could not evaluate the court's finding on Wright's

hand movement because the court had used its "commonsense

assumption that the gun was heavy . . . [to] ma[k]e a factual

finding that Wright grabbed his sweatshirt because he was carrying

a heavy gun." Id. at 53. We concluded that the flaw in the

underlying factual findings invalidated the court's legal

conclusion that the officers had reasonable suspicion to stop

Wright, requiring us to vacate the denial of the suppression

motion. Id.

In remanding the case for reconsideration, we also

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addressed the district court's discussion of the area where Wright

was stopped. The court had stated that it did not conclude that

the area was a "high crime area," a characterization that would

have been relevant to the inquiry into whether "the circumstances

[were] sufficiently suspicious to warrant further investigation,"

Illinois v. Wardlow, 528 U.S. 119, 124 (2000); see also id. ("[W]e

have previously noted the fact that the stop occurred in a 'high

crime area' among the relevant contextual considerations in a

[reasonable suspicion] analysis."). Because the district court

expressed uncertainty about whether the high crime area finding was

a legal question or a mixed question of fact and law, we clarified

that the character of a stop's location is a factual issue.

Wright, 485 F.3d at 53. We observed that the court might choose to

revisit the question upon remand. To assist its possible

reevaluation of the issue, we identified a number of relevant

factors to be considered. See id. at 53-54.

B. The Remand Proceedings

On remand, the district court solicited supplemental

briefing and heard oral argument from the parties, but took no

additional evidence. In its ruling from the bench, the court

expressly adopted the description of the stop set out in our prior

decision, with some modifications:

On the evening of November 8, 2004, a caravan
of four unmarked police cars was patrolling in
Dorchester, Massachusetts. The cars were
Crown Victorias, a model widely associated

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 with police departments. The plainclothes
officers in the caravan were members of the
Boston Police Department Youth Violence Task
Force.

At about 7:45 p.m., the caravan was driving
north on Blue Hill Avenue and slowed down as
the lead car passed a vehicle that had just
pulled over in front of a mini-mart at 1216
Blue Hill Avenue. The parked car was
partially blocking one of two driveway
entrances to the mini-mart parking lot.
Officer Brown, who was seated in the lead
car's front passenger seat, looked to his
right as they passed the parked vehicle and
observed three people, one of whom he
recognized as Omar Edwards, a neighborhood
resident. He did not recognize the driver or
the passenger seated in the back seat of the
parked car.

Immediately after passing this parked vehicle,
Officer Brown's car pulled over to the right
parking lane, in front of the parked car. The
rest of the caravan came to a stop in the
right travel lane to the rear of the parked
car. The front passenger of the second police
car, Officer Bordley, then observed the back
seat passenger of the parked car, later
identified as appellant, lean forward as
though he was looking at the Crown Victoria
that had just pulled over in front of his car.
Wright then exited his car, on the passenger
side, and began to run southward down Blue
Hill Avenue. As he ran, Wright "grabbed
toward the front of his sweatshirt in the
vicinity of his waist."1

Officer Brown quickly exited his car, as did a
number of the other officers in the caravan.
The police ordered Wright to stop running, but
he did not obey this directive. Within a

1
The court added the phrase in quotation marks to the recitation
of the facts in our prior decision, which stated that Wright "put
one hand on the right side of his sweatshirt, grabbing or holding
onto the sweatshirt pocket." Id. at 47.

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 matter of seconds, the officers caught up to
Wright, who resisted the officers' attempts to
frisk him.2 The police patted Wright down and
recovered a silver pistol from his sweatshirt
pocket. He was charged with being a felon in
possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).

See id.

Based on these facts, Wright argued that the officers

lacked reasonable suspicion to stop him. He noted that the

officers' testimony suggested no suspicious motive either for

Wright's leaning forward in the car or for grabbing at his

sweatshirt. Instead, Wright argued that the officers' testimony

indicated that they had stopped Wright only because he had run from

the car. Wright asserted that running in those circumstances,

without more, was insufficient to justify the stop.

The government countered that the totality of the

circumstances demonstrated that the officers had reasonable

suspicion to stop Wright. The government argued that Wright's

running from the car, which it considered "flight," along with his

"clutching at either the waist or the side of the sweatshirt" were

sufficient to justify the stop. The government further contended

that a finding that the area in which the stop occurred was a "high

crime area" under Wardlow was not necessary. However, the

2
The district court concluded its reading of our factual summary
at this point, noting that it did not need to make further findings
because the officers "had already seized him prior to this finding
about resisting. So, there must be an adequate constitutional
basis to chase after him and seize him under the Fourth Amendment."

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government argued that the district court could take into account

"the officers' testimony regarding what . . . their particular

knowledge of that area was at that time."

After hearing argument from both sides, and after setting

forth its findings of fact, the district court ruled as follows:

So, there must be an adequate constitutional
basis to chase after [Wright] and seize him
under the Fourth Amendment, and it is to that
issue the Court now turns.

These are mixed issues of law and fact. I
conclude that the officers had no right to
seize Mr. Wright at the point when their, the
vehicles, both the one in front, the police
cars in front, and the two police cars behind,
came to park in front and back. They had no
right to seize him under the Fourth Amendment
simply because Officer Bordley saw him lean
forward. I do think that it is a reasonable
inference from Officer Bordley's testimony
that Officer Bordley thought, though he did
not expressly so testify, that Mr. Wright had
made [i.e., recognized] the unmarked police
car that had parked in front.

I infer from the testimony that, though things
happened in split second intervals, Mr. Wright
had started to run, I do not at this point say
flee, he had started to run before the
officers had started to run after him. The
Court infers, and again the testimony is what
it is, it's not explicit, I infer that the
officers ascribed some significance as they
are competent and experienced police officers
in that area of Boston to the fact that Mr.
Wright grabbed his side, clutched at something
in his sweatshirt. The Court infers that the
officers did in that split second draw the
inference that he might well possess a weapon.

Having drawn that inference, that is
sufficient under all the circumstances to
order Mr. Wright to stop, and when he did not

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 stop, t[o] chase after him and seize him, the
actual seizure is when the officers came in
contact with Mr. Wright.

The court also revisited whether the Terry stop occurred in a high

crime area:

It's necessary I think to go a little further
in honor, out of respect to the reasoning of
the Court of Appeals, because I think this is
a very close case. I do not find that this
was a high crime area as the language is used
in Wardlow. The first time round I expressed
some unease with that definition. And my
unease continues. I don't make that finding.
I honor what I infer is the police officers'
experience and knowledge of the communities
which they patrol. . . . [T]he problem I
have with that Wardlow type of analysis,
candidly, is that the rights of the citizens
in the Dorchester area of Boston have to be
identical to the rights of citizens in Milton
and Wellesley. They have to be scrupulously
identical.

So, while I treat all the circumstances taken
as a whole and I draw inculpatory inferences
. . . from what I infer was the observations
of the officers and their response, their
immediate order to Mr. Wright to stop, I rule
that that would have been enough if the
officers had acted in the same fashion in
Wellesley or Milton, not because of this
particular area along Blue Hill Avenue is a
high crime area. I think I've said all that
needs to be said.

Wright renewed his appeal.

II. Discussion

On appeal, Wright again contends that the district court

erred in concluding, based on the totality of the circumstances,

that the officers in this case had reasonable suspicion to stop

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him.

A. The Legal Framework

Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny,

a police officer may briefly detain an individual for questioning

if the officer has "reasonable suspicion to believe that criminal

activity 'may be afoot.'" United States v. Arvizu, 534 U.S. 266,

273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7

(1989)); see also Terry, 392 U.S. at 30 (permitting such a stop

when "a police officer observes unusual conduct which leads him

reasonably to conclude in light of his experience that criminal

activity may be afoot"). "While no perfectly precise definition of

reasonable suspicion exists, it is well established that, in terms

of the continuum of knowledge, reasonable suspicion requires more

than a mere hunch but less than probable cause." United States v.

Ruidíaz, 529 F.3d 25, 29 (1st Cir. 2008).

Reasonable suspicion requires "'a particularized and

objective basis' for suspecting the person stopped of criminal

activity." Ornelas v. United States, 517 U.S. 690, 696 (1996)

(quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

"Th[e] particularity requirement means, in effect, that such a

finding must be 'grounded in specific and articulable facts.'"

United States v. Espinoza, 490 F.3d 41, 47 (1st Cir. 2007) (quoting

United States v. Hensley, 469 U.S. 221, 229 (1985)). The

"objective" component requires courts to "focus not on what the

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officer himself believed but, rather, on what a reasonable officer

in his position would have thought." Id.

We review the district court's findings of historical

fact, as well as inferences draw from those facts, for clear error,

which exists when we are left with a "'definite and firm conviction

that a mistake has been committed.'" See id. 46 & n.2 (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). We

review the district court's ultimate reasonable suspicion

determination de novo, Ornelas, 517 U.S. at 699, although the

factual component of this "mixed question of law and fact" remains

subject to clear error review. Id. at 696. In reviewing this

determination, we are instructed by the Supreme Court to view the

"totality of the circumstances," and not engage in a "divide-and-

conquer analysis" whereby we determine whether each of the facts

supporting reasonable suspicion are "susceptible to an innocent

explanation." Arvizu, 534 U.S. at 274. Thus, "[a] determination

that reasonable suspicion exists . . . need not rule out the

possibility of innocent conduct." Id. at 277.

Finally, when a district court has denied a motion to

suppress, "'we will uphold a denial of a motion to suppress if any

reasonable view of the evidence supports it.'" United States v.

Coccia, 446 F.3d 233, 237 (1st Cir. 2006) (quoting United States v.

Garner, 338 F.3d 78, 80 (1st Cir. 2003)).

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B. Application of the Framework

1. The Historical Facts

The district court adopted the recitation of the facts

contained in our prior opinion, and thus found the following

sequence of events that resulted in the instant Terry stop,

immediately after the car in which Wright was sitting "had just

pulled over in front of a mini-mart at 1216 Blue Hill Avenue. . . .

partially blocking one of two driveway entrances to the mini-mart

parking lot:"

(a) Wright "lean[ed] forward" from the
backseat of his car and then "exited his
car on the passenger side";

(b) Wright then "began to run southward down
Blue Hill Avenue";

(c) "As he ran, Wright put one hand on the
right side of his sweatshirt grabbing or
holding onto the sweatshirt pocket"; and

(d) "The police ordered Wright to stop running
but he did not obey this directive."

The parties largely do not dispute these facts on appeal.3 As to

the last finding above, Wright does not dispute that the stop did

not occur until Wright was physically restrained after the

3
Wright challenges the district court's finding, after reciting
the statement of facts from the prior opinion, that "Now, going
beyond what I'm reciting from the Appeals Court decision, I do find
that he grabbed toward the front of his sweatshirt in the vicinity
of his waist." (emphasis added). Because the location of the
clutching is not material, we will give Wright the benefit of the
doubt and rely upon the fact recited in our earlier opinion that
Wright clutched the side of his sweatshirt.

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officers' order to stop. See California v. Hodari D., 499 U.S.

621, 626 (1991) (holding that a directive to stop is not itself a

seizure). Accordingly, we consider Wright's refusal to stop as a

historical fact in determining whether the officers had reasonable

suspicion to stop Wright.

Of significance to this appeal, the district court did

not find that the area where the events took place was a high-crime

area as defined under Wardlow. Although the officers testified at

length that the area was a high-crime area,4 the government does

not press this position on appeal, nor does it claim that the

district court committed clear error with respect to this finding.

On appeal, Wright challenges two inferences made by the

district court based upon these historical facts. First, the

district court inferred that Officer Bordley, who observed Wright

leaning forward, "thought, though he did not expressly so testify,

4
Officer Brown testified that "[t]hat area of Blue Hill Avenue,
as well as that corridor, is a very high crime area consisting of
firearm violence, drug activity, street robberies, breaking and
enterings, all type of street crimes actually." Officer Celester
testified that the area is "a trouble spot. There's been shootings
there, there's been a lot of crime there. It's a high crime area."
Officer Bordley testified that "[t]he level of criminal activity
would be considered high for that area. Numerous arrests for drug
offenses, violent crimes, violent assaults, assaults and batteries,
firearms arrests, things of that nature." To counter this
testimony, Wright offered into evidence incident reports for August
2004 (the most recent prior to the stop) that showed that the area
where the stop occurred was not designated a "hot spot" by the
Boston Police Department. We discussed this testimony and the
incident reports in some detail in our prior opinion. See Wright,
485 F.3d at 49.

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that Mr. Wright had made [i.e., recognized] the unmarked police car

that had parked in front." Second, the district court inferred

that the officers inferred from Wright's clutching of the side of

his sweatshirt that the officers "ascribed some significance" to

that clutching and that "in that split second dr[e]w the inference

that he might well possess a weapon."

Wright argues that the district court's inferences

concerning the officer's subjective inferences are irrelevant.

Specifically, he argues that the proper focus is "not on what the

officer himself believes but, rather, on what a reasonable officer

in his position would have thought." Espinoza, 490 F.3d at 47; cf.

Whren v. United States, 517 U.S. 806, 814 (1996) ("[T]he Fourth

Amendment's concern with 'reasonableness' allows certain actions to

be taken in certain circumstances, whatever the subjective

intent.") (emphasis in original).

We agree that the proper focus is an objective one, but

we disagree that the inferences made by police officers are

irrelevant in all instances. The Supreme Court has instructed

courts to afford "due weight" to the inferences made by police

officers based on their "experience and expertise." See Ornelas,

517 U.S. at 699. In Ornelas, for example, an officer testified

that "over the past nine years [he] had searched approximately

2,000 cars for narcotics," and, upon searching the car in that

case, noticed a loose panel that he inferred "might have been

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removed and contraband hidden inside." Id. at 693. The Court

stated:

To a layman the sort of loose panel below the
back seat armrest in the automobile involved
in this case may suggest only wear and tear,
but to [the officer], who had searched roughly
2,000 cars for narcotics, it suggested that
drugs may be secreted inside the panel. An
appeals court should give due weight to a
trial court's finding that the officer was
credible and the inference was reasonable.

Id. at 700.

Here, however, and as the district court admitted, the

officers did not testify to the inferences they purportedly made.

In the district court's words, the officers "did not expressly so

testify" as to their inferences and "the testimony is what it is."

Thus, unlike in Ornelas, the district court did not make

credibility determinations as to the officers' stated inferences.

Nor did the officers testify as to how their "experience and

expertise" provided support for the inferences they made. Instead,

the district court speculated as to what those inferences were,

and, with respect to the second challenged inference, even further

speculated that the inferences were reasonable because the officers

were "competent and experienced police officers in that area of

Boston." We cannot condone such speculation and agree with Wright

that, to the extent that the district court sought to supplement

the historical facts with such inferences, this was improper. Cf.

United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995) (noting,

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in the context of a sufficiency of an evidence challenge, that

"[t]he appellate function, properly understood, requires the

reviewing court to take a hard look at the record and to reject

those evidentiary interpretations and illations that are

unreasonable, insupportable, or overly speculative").

However, we agree with the government that the district

court's inferences with respect to the officers' inferences are

better understood as implicit conclusions as to what a "reasonable

officer . . . would have thought." Espinoza, 490 F.3d at 47. The

record strongly suggests that this was the district court's

intention. After recounting its findings concerning the events

leading up the stop, the district court switched gears and stated

"there must be an adequate constitutional basis to chase after

[Wright] and seize him under the Fourth Amendment, and it is to

that issue that the Court now turns." (Emphasis added). Thus, the

district court indicated that it was switching from its factual

findings to its ultimate reasonable suspicion analysis. This is

confirmed by the district court's following statement that "[t]hese

are mixed issues of fact and law," which is not true of the

district court's findings of historical fact, but is true of its

ultimate determination whether reasonable suspicion exists in this

case. See Ornelas, 517 U.S. at 696 (noting that "[t]he first part

of the analysis involves only a determination of historical facts,

but the second is a mixed question of law and fact").

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 Construing the district court's inferences as inferences

that a reasonable officer would have made does not end the matter.

To the extent that the district court's inferences are factual

inferences drawn from the historical facts, they are subject to

clear error review, "mindful throughout that when two or more

legitimate interpretations of the evidence exist, the factfinder's

choice between them cannot be deemed clearly erroneous." Espinoza,

490 F.3d at 46. To the extent that the district court's inferences

are ultimate conclusions as to what a reasonable officer would have

concluded based on the historical facts, and thus conclusions as to

whether reasonable suspicion exists, those conclusions are subject

to our de novo review.

Having reviewed the historical facts, we turn to whether

those facts support reasonable suspicion in this case.

2. The Reasonable Suspicion Analysis

In its analysis, the district court reviewed the

historical facts in sequence, building upon each prior event in

determining whether a reasonable officer would have reasonable

suspicion to stop Wright. For example, the district court noted

that, upon observing Wright leaning forward, that, at that point in

time, the officers "had no right to seize [Wright] under the Fourth

Amendment." Only later, after subsequent events, did the district

court rule that it "was constitutionally appropriate" to stop

Wright.

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 We take the same approach. We review the sequence of

events, and any reasonable inferences drawn from those events, to

determine whether the officers had reasonable suspicion to stop

Wright. After examining this sequence and the totality of the

circumstances, we conclude that they had such reasonable suspicion.

a. Leaning Forward

We begin with the officers' testimony that they observed

Wright "lean forward" from the backseat.5 Although Wright does not

5
On appeal, the government also points out that the recognition
of Omar Edwards by Officer Brown should be considered in
determining reasonable suspicion. The government contends that
Edwards was a recent shooting victim and, thus, contributes to a
reasonable suspicion that Wright was engaged in unlawful activity.
See United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005)
(upholding inference that "victims in gang-area shootings often
were gang members themselves and tended to congregate with other
gang members"). However, there was no evidence that Wright was
connected to the Edwards shooting to permit an inference that
Wright (and not Edwards) may be involved in similar activity.
Moreover, Officer Brown, the officer who recognized Edwards,
testified that he did not attribute anything unusual to Omar
Edwards' presence, stating "it didn't strike me as odd" that he was
there, as "he lived in the area," "[h]e had a girlfriend or
something that I thought that lived there," and "I know he had
friends that lived in one of those gray houses." Because of the
lack of any connection of Edwards's shooting to Wright and the fact
that there were no other particularized facts suggesting that
Edwards's presence was suspicious, we conclude that a reasonable
officer would not infer from the presence of Edwards that Wright
was acting suspiciously.

This is not to say that Edwards's presence at the scene is
entirely irrelevant. A reasonable officer might not find a
shooting victim's presence unusual, but nevertheless could still
have a heightened interest in the vehicle in part because of the
victim's presence. Although Brown's presence does not by itself
suggest suspicious conduct by Wright, it is part of the melange of
background facts explaining why an officer would reasonably focus
on the activities of the vehicle's occupants.

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dispute that he leaned forward when the lead car passed and parked

in front of the car in which he was sitting, the district court

made a further finding as to what a reasonable officer would have

inferred from that action:

I do think that it is a reasonable inference
from Officer Bordley's testimony that Officer
Bordley thought . . . that Mr. Wright had made
the unmarked police car that had parked in
front.

Again, we note that although the district court attributed this

inference to Officer Bordley, this inference is better understood

as one a reasonable officer would have made.

Implicit in the district court's conclusion is that a

reasonable officer would have inferred from Wright's leaning

forward that Wright attempted to identify the lead car. Officer

Bordley, in fact, expressly testified that Wright leaned forward

"to observe the unmarked motor vehicle that had pulled over."

Since this inference is "plausible . . . based on the raw facts as

supportably found," Espinoza, 490 F.3d at 48, we consider it in our

analysis.

But the district court went even further and concluded

that a reasonable officer would have inferred that Wright "made,"

that is recognized, "the unmarked police car that had parked in

front." We only credit such a factual inference to the extent that

it has some basis in the record or upon the "background facts"

known by the district court. See Ornelas, 517 U.S. at 699.

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 We conclude that the evidence supports a reasonable

inference that Wright "made" the lead car as a police car. In

United States v. Aitoro, for example, we concluded that it was

reasonable for the officers to stop two suspects who, upon seeing

them in plainclothes, exclaimed "Oh, shit" prior to fleeing. 446

F.3d 246, 252-53 (1st Cir. 2006). Granted, Wright did not state

"Oh, shit" or any other exclamation that was indicative that he

recognized the officers. However, Wright was observed leaning

forward in an attempt to identify the unmarked cars, and, shortly

thereafter, quickly exiting from the car. While less colorful than

the expression "Oh, shit," the timing of Wright's conduct in

quickly exiting the car after leaning forward would permit a

reasonable officer to infer that Wright "made" the lead car as a

police car.

On appeal, Wright contends that an inference that Wright

"made" the lead car as a police car is unreasonable because the

police cars in this case were unmarked. We disagree. In Aitoro,

the officers were in plain clothes, and we did not require evidence

of the recognizability of the officers by the suspect to support an

inference that the suspect recognized the officers in fleeing.6 In

6
In Aitoro, we noted in a footnote that the officers "stood out
like a sore thumb in the area" and that "[o]ne wore a BPD baseball
shirt, while the other two were visibly equipped with handcuffs,
flashlights, and police identification." Id. at 249 n.2. We
similarly note here that, although in plain clothes and in unmarked
police cars, the officers' presence was not opaque. Officer
Celester testified that "[s]ometimes we wear shirts that say Boston

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fact, in response to the suspect's argument that it was "dubious"

to conclude that he recognized the officers given that they "were

not in uniform and were standing perhaps 80 feet from the corner

when Aitoro and Williams came around the bend," we stated:

The reasonableness of a [stop] entails an
objective inquiry into the [stop] from the
perspective of the . . . officers, however, so
what is relevant is not whether Aitoro
actually perceived the officers as police
officers, but whether the officers reacted
reasonably on seeing him flee.

Id. at 253 (emphasis added). Thus, like in Aitoro, where the

suspect's exclamation of "Oh, shit" permitted the officers to infer

that they were recognized, here Wright's actions in leaning forward

and shortly thereafter exiting the car are also sufficient to

permit a reasonable officer to "react[] reasonably" and infer that

Wright "made" the unmarked car as a police car.

b. Running Southward

The parties do not dispute that Wright, shortly after

leaning forward, exited the car in which he was sitting and started

running southward, away from the lead car. The district court, in

describing the running, stated that:

Police Youth Violence Strike Force on them," and further testified
that the officers "always have our badges on us displayed like a
chain like I have now. We always have it out." We further note
that Officer Brown recognized Omar Edwards in the car, and it would
have been reasonable for the officers to conclude that Edwards
similarly recognized Officer Brown as a police officer and
communicated that information to the rest of the occupants in the
car, including Wright.

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 I infer from the testimony that, though things
happened in split second intervals, Mr. Wright
had started to run, I do not at this point say
flee, he had started to run before the
officers had started to run after him.

On appeal, Wright seizes on the district court's use of the term

"flee," and argues that the district court made an express finding

that Wright's running southward does not constitute "flight." We

disagree, because the district court found all of the factual

components necessary to support a finding of flight. We thus

conclude that the district court's statements cannot be reasonably

read as a finding that Wright's running did not constitute flight.7

Although not strictly defined, the Supreme Court in

Wardlow described "flight" as the "unprovoked" running "upon

noticing the police." 528 U.S. at 124 (noting that "unprovoked

flight upon noticing the police" contributed to the officers'

reasonable suspicion in that case, and that "[h]eadlong flight --

wherever it occurs -- is the consummate act of evasion"). As we

have previously concluded, the district court reasonably inferred

that Wright "made" the lead car. Moreover, and as clumsily noted

by the district court above, Wright "had started to run before the

officers had started to run after him," which is supported by the

officers' testimony. Accordingly, Wright's running was "unprovoked

7
In the alternative, we conclude that, to the extent that the
district court found that there was not flight, such a finding was
clearly erroneous, since we have a "'definite and firm conviction
that a mistake has been committed.'" See Espinoza, 490 F.3d at 46
& n.1 (quoting Gypsum, 333 U.S. at 395).

-21-
. . . upon noting the police."

Wright argues on appeal that his running could not be

interpreted as flight because, in exiting the car, he ran in the

direction of the other unmarked police cars, which were behind the

car in which Wright was sitting. While true, this fact does not

defeat a finding of flight. As an initial matter, and as pointed

out by the government, the unmarked police cars were not directly

behind the car in which Wright was sitting. Although the testimony

showed that Wright's car was in the parking lane, the other police

cars were, as testified to by Officer Bordley, "stopped in the flow

of traffic," just to the right of the parking lane. Moreover,

Wright's recognition of the police cars after leaning forward was

only as to the lead car. Thus, in identifying the lead car as a

police car, Wright, like the suspects in Aitoro, "did an abrupt

about-face and sprinted in the reverse direction." 446 F.3d at 249

(internal quotation marks omitted). As events occurred "in split

second intervals," Wright did not have a great deal of time to

identify the unmarked cars that were roughly ahead of him and

change course accordingly.

c. Clutching

The parties do not dispute that, while running, Wright

made a clutching or grabbing motion to his sweater. However, the

district court included a further inference as to what a reasonable

officer would have inferred from that clutching:

-22-
 I infer that the officers ascribed some
significance as they are competent and
experienced police officers in that area of
Boston to the fact that Mr. Wright grabbed his
side, clutched at something in his sweatshirt.
The Court infers that the officers did in that
split second draw the inference that he might
well possess a weapon.

As with the district court's earlier inference concerning whether

Wright "made" the car, we construe the Court's "infer[ence]" as one

that a reasonable officer would have made.8

The evidence certainly supports a reasonable inference

that Wright clutched at contraband. Wright made his clutching

motion while in flight, which supports a reasonable inference that,

whatever he was trying to secure, he wanted to keep it from the

officers. In fact, all of the officers testified to the closeness

of the clutching motion to his running away from the lead car.

Officer Bordley testified that Wright "grabbed his sweater, took

off running" and that, shortly thereafter, "[h]e grabbed his

sweater on the right side where the right pocket was." Officer

Celester also testified that, shortly after Wright "jumped out and

ran," he "appeared to pull something out of his waist area" and

that "[h]e was tugging with his right hand" around his "waist

8
In stating that it relies upon the officers' expertise in "that
area of Boston," the district court, at first glance, seems to
factor in the character of the area in support of its inference
that Wright was clutching at a weapon. Any such indication is
negated by the district court's later finding that the area was not
a high-crime area. Moreover, in context, the reference is better
read as an appeal to the expertise of the officers, rather than any
characteristics of the area.

-23-
area." Finally, Officer Brown testified that he observed "the rear

passenger exit the vehicle, stand up, and . . . he immediately

turned to his right and he grabbed onto like his sweatshirt

pocket," and further demonstrated where he grabbed the pocket,

stating to the district court that he "grabbed onto his hood

sweatshirt pocket right around here and began to run up Blue Hill

Avenue."

On appeal, the government "does not believe the inference

that Wright might possess a gun is essential to reasonable

suspicion," but nonetheless argues that the evidence supports such

an inference. We agree that the inference that Wright "might well

possess a gun" is not essential, as the evidence is sufficient to

support an inference that Wright was clutching at contraband, but

disagree that the evidence supports such an inference. The

government first argues that the district court found on remand

that the object in Wright's pocket was "heavy," but the weight of

the contents of Wright's pocket does not support an inference that

the pocket contains a weapon, as opposed to some other object.

Moreover, the government argues that "the court could also have

considered that guns are with some frequency carried in the pockets

or waist area and police know this." See, e.g., Aitoro, 446 F.3d

at 249 (noting that the officer there "saw Aitoro grab at the waist

of his pants, where [the officer] saw a bulge that he thought was

a gun); United States v. Woodrum, 202 F.3d 1, 5 (1st Cir. 2000)

-24-
("When he freed his right hand and exited the taxi, a gun fell out

of his jacket."); United States v. Alston, 112 F.3d 32, 33 (1st

Cir. 1997) ("Realizing that there was a gun in the pocket, the

officer removed it and arrested Alston."). But, again, the fact

that guns are frequently found in pockets (where else would they

be?) does not provide support for an inference that Wright was

carrying a weapon as opposed to something else that is frequently

kept in pockets, such as keys. Finally, the government points to

the presence of Omar Edwards to support an inference that Wright

was armed; however, we have already concluded that his presence

does not support a suspicion that Wright was engaged in similar

criminal activity. Thus, the fact that Wright clutched at his

pocket, even while in flight, cannot support an inference that the

object he clutched was specifically a weapon, and it was clear

error for the district court to so infer. See United States v.

McCoy, 428 F.3d 38, 41 (1st Cir. 2005) ("It is simply not

reasonable to infer that a driver is armed and dangerous because

the officers believe that he appears nervous and reaches toward the

car's console when approached by police, even in a high-crime

neighborhood").

d. Refusal to Stop

Unlike the other facts so far discussed, Wright's refusal

to obey the officers' order to stop, without a doubt, contributes

to a reasonable suspicion. Thus, as we have previously held, the

-25-
failure to heed an officer's order, while not conclusive of

reasonable suspicion itself, is supportive of it. See, e.g.,

United States v. Soares, 521 F.3d 117, 121 (1st Cir. 2008) (holding

that a defendant's refusal to follow police orders to keep still

and keep hands visible contributed to reasonable suspicion that

suspect was armed and dangerous). Other courts have so held. See

United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003) ("A

suspect's failure to halt upon police command to do so," along with

other factors, "support a finding of reasonable suspicion.");

United States v. Johnson, 212 F.3d 1313, 1316-17 (D.C. Cir. 2000)

(fact that suspect did not comply with order to put hands up but

continued to make motions consistent with hiding or retrieving

something contributed to finding of reasonable suspicion); United

States v. Valentine, 232 F.3d 350, 358-59 (3d Cir. 2000) (citing

cases finding failure to comply with police orders supported

reasonable suspicion).

e. The Totality of the Circumstances

We have noted that, in conducting a reasonable suspicion

analysis, "a fact that is innocuous in itself may in combination

with other innocuous facts take on added significance." Ruidíaz,

529 F.3d at 30. Accordingly, in our prior decisions we have upheld

Terry stops where the combination of "innocuous" facts culminates

in reasonable suspicion. See, e.g., id. at 30-32 (combination of

reliable tip from a 911 caller plus belligerence of suspect

-26-
resulted in reasonable suspicion); Soares, 521 F.3d at 120-21

(combination of time of night, high-crime area, and unusual

behavior resulted in reasonable suspicion); United States v.

Romain, 393 F.3d 63, 72 (1st Cir. 2004) (combination of 911 call,

suspect's visible agitation, and suspect's belligerence resulted in

reasonable suspicion).

Here, reasonable suspicion arises not just from the

combination of facts, but from their progression. We have

previously held that reasonable suspicion can be based on

"unfolding events," with suspicion accumulating as more innocent

interpretations of the historical facts fall by the wayside.

United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998) ("Based on

unfolding events, the trooper's attention (and, thus, his

reasonable suspicions) shifted away from the equipment violations

that prompted the initial stop toward a belief that the detainees

were engaged in more serious skulduggery. Such a shift in focus is

neither unusual nor impermissible."); see also Soares, 521 F.3d at

120 ("Several additional facts became known as the stop progressed,

which, taken together, created reasonable suspicion that Soares

might be armed and dangerous.").

So it is here. In this case, the lead police car was

first drawn to the car in which Wright was sitting when it parked

and partially blocked an entrance to a mini-mart. In short order,

Wright leaned forward, quickly exited from the car as if

-27-
recognizing the lead car as a police car, ran in the opposite

direction of the lead car, clutched at his side, and, crucially,

refused to stop when ordered to do so. As is clear from the

discussion above, each event recast each previous event in a

different light, such that, by the time that Wright refused to

stop, there was sufficient suspicion to question why he had leaned

forward, exited the car, clutched, and started running.

We conclude by emphasizing that the issue here is not

whether Wright's conduct could lead a reasonable officer to

conclude that it was certain that he was engaged in criminal

activity, or even that it was more probable than not that he was

engaged in such activity. Rather, the Supreme Court has stressed

that a Terry stop is permitted even if "the conduct justifying the

stop was ambiguous and susceptible of an innocent explanation."

Wardlow, 528 U.S. at 125. In fact, "the very purpose of [Terry]

stops is to clarify ambiguous situations." 2 LaFave et al.,

Criminal Procedure § 3.8(d), at 327 (3d ed. 2007). We conclude,

based upon our review of the record, that Wright's actions were

sufficiently ambiguous as to whether there was criminal activity

afoot to justify the stop in this case.

Accordingly, we conclude that the totality of the

circumstances supports the district court's conclusion that the

officers had reasonable suspicion to stop Wright.

-28-
 III. Conclusion

For the foregoing reasons, the denial of Wright's motion

to suppress is affirmed.

Affirmed.

"Dissenting opinion follows"

-29-
 LIPEZ, Circuit Judge, dissenting. The majority concedes

that the district court's most critical factual finding – that the

officers believed Wright might be carrying a gun – lacks record

support. It nevertheless manages to uphold the court's ultimate

finding of reasonable suspicion. It does so by creatively

interpreting or recasting other findings of the court, filling in

the gaps with its own speculation, and avoiding the district

court's explicit reliance on the location of the stop – "that area

of Boston" – in its reasonable suspicion analysis. As I shall

explain, the facts and inferences actually supported by the record

do not provide a sufficient foundation for the finding of

reasonable suspicion. Moreover, the district court's reliance on

the character of the neighborhood after declining to find it was a

"high crime area" is a far-reaching error that should not be

ignored. I therefore respectfully dissent.

I.

The majority reviews the events leading up to Wright's

stop in sequence, addressing Wright's challenges to the inferences

the court drew from the historical facts as part of its scrutiny of

each of Wright's four significant behaviors: (1) leaning forward

from the backseat of the car in which he was a passenger; (2)

quickly exiting the vehicle and running down the street; (3)

tugging at the right side of his sweatshirt; and (4) ignoring the

officers' orders to stop. I take a similar approach, but begin by

-30-
focusing on Wright's challenge to the two specific inferences

challenged by Wright: first, that Officer Bordley believed Wright

had identified the police car and, second, that several officers

who saw Wright running suspected he was carrying a weapon. Once

the landscape of permissible facts and inferences is established,

I explain why the totality of those circumstances fails to

establish a reasonable suspicion that Wright was engaged in

criminal activity.

A. The Court's Inferences about the Officers' Beliefs

1. The Role of Deference

Trial courts unquestionably have the "superior vantage

point" in examining the circumstances alleged to support reasonable

suspicion, United States v. Espinoza, 490 F.3d 41, 46 (1st Cir.

2007), and "a reviewing court should take care both to review

findings of historical fact only for clear error and to give due

weight to inferences drawn from those facts by resident judges and

law enforcement officers." Ornelas v. United States, 517 U.S.

690, 699 (1996). Deference is owed to the trial judge's ability to

"view[] the facts of a particular case in light of the distinctive

features and events of the community," and the police officers'

similar ability to see the facts in light of their "experience and

expertise." Id. The background facts known by the court and

officers "provide a context for the historical facts, and when seen

together yield inferences that deserve deference." Id.

-31-
 Notwithstanding a trial judge's general familiarity with

a community, the judge's findings on the facts underlying a

particular seizure must draw support from the evidence in the

record. Such evidence frequently will include the officers' own

stated inferences about what they saw and heard. In Ornelas, for

example, where the Supreme Court examined the applicable standard

of appellate review for trial court rulings on reasonable

suspicion, the seizure at issue occurred after a deputy who was

searching the interior of a car noticed that a door panel felt

loose. Deputy Luedke "suspected that the panel might have been

removed and contraband hidden inside," and he discovered two

kilograms of cocaine when he dismantled the panel. Id. at 693.

Luedke testified that a rusty screw near the loose panel indicated

to him that the screw had been removed at some time. Although the

Supreme Court in Ornelas rejected deferential review for "ultimate

determinations of reasonable suspicion," id. at 697, it emphasized

that reviewing courts must defer to district court findings on

underlying facts and inferences such as those reported by Luedke.

To a layman the sort of loose panel below the
back seat armrest in the automobile involved
in this case may suggest only wear and tear,
but to Officer Luedke, who had searched
roughly 2,000 cars for narcotics, it suggested
that drugs may be secreted inside the panel.
An appeals court should give due weight to a
trial court's finding that the officer was
credible and the inference was reasonable.

Id. at 700.

-32-
 2. Deference in this Case

The hierarchy of review described by the Court in Ornelas

– an appellate court giving due weight to the trial judge's finding

that the officer's stated inference was reasonable – cannot be

applied to the inferences that are challenged here. The findings

at issue – Officer Bordley's belief that Wright had "made" the

police car and that the officers believed Wright had a gun in his

pocket – were drawn solely by the court, without any testimony from

the officers, to whom the inferences were attributed. Bordley did

not testify that he believed Wright had identified the police car,

but only that he had seen Wright lean forward to look at the

unmarked cruiser. None of the three officers who testified that

Wright grabbed or tugged at the right side of his sweatshirt as he

ran reported a belief that he was carrying a weapon. Officer Brown

stated that, once Wright got out of the car, "he turned to his

right, grabbed onto his hooded sweatshirt pocket right about here

and began to run up Blue Hill Avenue." Officer Celester testified

that Wright was "tugging" at his clothes with his right hand, in

his "waist area," and that he "appeared to be trying to pull

something out of his waist area." Officer Bordley said that Wright

"stepped out of the motor vehicle, grabbed the right side of his

sweater and took off running up Blue Hill Avenue."

Importantly, although Officer Celester's testimony in

particular supports an inference that the officers believed Wright

-33-
was carrying something in his pocket, nothing in any of the

testimony provided a basis for the court to conclude that the

officers believed the item to be a weapon. They did not say that

he seemed to be carrying something heavy. They did not report

seeing a gun-like bulge in his pocket. This case would be very

different if there had been such testimony. If the officers had

reported some characteristic particularly suggestive of a weapon,

the court could have based its conclusion that they inferred Wright

was carrying a gun on that observation – even without the explicit

statements usually provided by officers as to their belief. See

United States v. Aitoro, 446 F.3d 246, 249 (1st Cir. 2006) (noting

that police officer "saw a bulge that he thought was a gun"); cf.

United States v. Moore, 235 F.3d 700, 702 & n.1 (1st Cir. 2000)

(noting that officer, who reported seeing defendant holding his

hand "clenched at his side as if he was attempting to conceal

something in it," testified that he thought it might be a weapon or

contraband). The district court thus drew an inference on behalf

of the officers that they did not articulate themselves, and the

inference relies on no fact suggesting that Wright had a gun,

rather than some other, lawful item, in his pocket. When someone

runs with something – anything (a cell phone, a wallet, a pack of

cigarettes) – in the front pocket of a sweatshirt, it is natural to

try to secure it.

Given the importance of the officers' "experience and

-34-
expertise" in identifying possible criminal activity, and the

natural inclination of officers to draw upon that experience in

explaining the significance of conduct that they have observed, I

am troubled by the district court's reliance on speculation to

assign the officers a state of mind that they could have – but did

not – disclose through their testimony. I understand that the

reasonable suspicion determination does not turn on "what the

officer himself believed but, rather, on what a reasonable officer

in his position would have thought." Espinoza, 490 F.3d at 47; see

also United States v. Ruidíaz, 529 F.3d 25, 29 (1st Cir. 2008)

("Reasonableness in this context is a construct that must be judged

according to objective criteria . . . ."). In its effort to

rewrite the district court's decision, the majority concludes that

the court's statements about the officers' beliefs could be

interpreted as an imperfect way of expressing the court's view that

reasonable officers would have concluded that Wright had recognized

the police cruiser and would have believed that he might be

carrying a weapon. Even if that rephrasing accurately reflected

the court's findings, however, my concern would remain.

Where the officers themselves had the opportunity to

attribute a suspicious connotation to conduct they observed, but

did not do so, the court's speculative inferences are seriously

weakened. The officers on the scene are in the best position to

assess the significance of the developing facts, and the officers

-35-
here had every incentive to fully explain why they believed they

were justified in detaining Wright. Their failure to articulate

the beliefs the court attributes to them may indicate that they

lacked such perceptions of Wright's conduct, but whatever the

reason for their silence, the court's inferences about what a

reasonable officer could have believed lacked an important factual

indicator of such reasonableness – the expressed beliefs of the

officers on the scene. Cf., e.g., United States v. Dubose, No. 08-

2382, 2009 WL 2712322, at *3 (Aug. 31, 2009) (reporting officer's

testimony that he became suspicious because of defendant's actions,

including that defendant's "conduct was similar to the conduct

involved in other drug transactions in the area"); (United States

v. Soares, 521 F.3d 117, 118, 120 (1st Cir. 2008) (reporting

officer's testimony that movements in a car in which the defendant

was a passenger "concerned him" and that officers saw "'furtive

movements'" that were "'not ordinary'"); United States v. Taylor,

511 F.3d 87, 89 (1st Cir. 2007) (describing officer's testimony

that his "suspicions [were] aroused by [the defendant's]

uncharacteristically nervous demeanor and furtive movements");

United States v. Baskin, 401 F.3d 788, 792 (7th Cir. 2005)

(describing officer's testimony that her "suspicions were aroused"

by the defendant's driving); United States v. Chhien, 266 F.3d 1,

4 (1st Cir. 2001) (describing officer's increasing suspicions

during questioning of defendant); United States v. Montero-Camargo,

-36-
208 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (describing officer's

testimony about conduct by the defendants that had "aroused [the

officer's] suspicions").

Having stated my more general concern about inferences

founded only on speculation, I turn to closer scrutiny of the two

specific findings at issue.

3. "Making" the Police Car

The district court's first step in drawing the inference

that Bordley believed Wright had identified the unmarked car as a

police cruiser was unremarkable. Bordley testified that he saw

Wright lean forward from the backseat of the car "to observe the

unmarked motor vehicle that had pulled over," and the court

apparently inferred from that testimony that the officer believed

Wright was making an attempt to identify the vehicle or its

occupants. That inference from Bordley's testimony was certainly

reasonable.

In building on that initial inference, however, the court

evidently relied on its own familiarity with Dorchester and the

area's law enforcement practices to conclude that Wright would have

recognized the car as a police cruiser. During the original

evidentiary hearing, the trial judge stated that this inference was

"drawn from both this case and my presiding over time." He

explained:

[M]y natural inference is that though the
police are in those areas in unmarked cars and

-37-
 in plain clothes, the cars are readily
identifiable to those people who interest
themselves in what the police are driving.
And that includes people who are absolutely
lawfully about, shopkeepers, people about
their business who once have been the victim
of a crime or the members of their family
[have been] victim[s] of a crime. The police,
because they buy in bulk to save money,
they're driving Crown Victorias.9

The court's own knowledge of the common use of Crown

Victorias as police cars not only led it to infer that Wright must

have recognized the car as a police cruiser, but also led it to

infer that Bordley thought that Wright had recognized it as such.

The court's inference about Bordley's thought process thus depended

on its treatment of public recognition of unmarked police cars as

a matter appropriate for judicial notice – an approach that I

cannot sanction. See Fed. R. Evid. 201(b) (stating that a

judicially noticed fact must be either "(1) generally known within

the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned"). There is no ready

means to evaluate the accuracy of the court's inference, and there

9
In the original hearing, the court had stated that, when Wright
leaned forward, "he saw that it was an unmarked police
officer[sic], he knowledgeably recognized it as such." During the
remand hearing, the court did not explicitly attribute this
knowledge to Wright, instead referring only to the inference drawn
by Bordley. The court also did not repeat the common-knowledge
explanation to support its finding on Bordley's inference. I think
it is a fair assumption that it relied on the same rationale,
however, because the record contained no new evidence.

-38-
is likewise no basis for deeming public recognition of Crown

Victorias to be "generally known" in Boston.

Moreover, allowing the district court to rely on its own

knowledge, rather than evidence in the record, has the undesirable

consequence of preventing the defendant from testing the inference

through the adversary process. Indeed, the court's statement that

"the cars are readily identifiable to those people who interest

themselves in what the police are driving" does not tell us why the

court concluded that Wright in particular – at the time he exited

his vehicle – would have been likely to have such knowledge. Cf.

United States v. Southard, 700 F.2d 1, 26 (1st Cir. 1983) ("It is

one thing to take judicial notice of the driving time between New

Haven and the Rhode Island line. It is quite another to use this

fact as a basis for a finding that the defendant actually knew

it.").

Furthermore, the need for record support for such an

inference is implicit in our decision in United States v. Taylor,

511 F.3d 87 (1st Cir. 2007), which also involved a motion to

suppress a firearm seized during an investigatory stop. There, we

rejected the defendant's claim that the police had seized him at

the moment an unmarked Crown Victoria parked behind his vehicle

because, among other reasons, there was no evidence that the

defendant knew the Crown Victoria was a police car until he

recognized one of the officers when the officer approached the

-39-
defendant's car. Id. at 92. The District of Columbia Circuit also

has flagged the issue, questioning the propriety of crediting a

police officer's testimony that his unmarked car was "one of those

ones that everybody knows it's a police cruiser" in the absence of

a factual foundation on "public identification of police vehicles."

United States v. Johnson, 212 F.3d 1313, 1316 (D.C. Cir. 2000).

District court judges unquestionably have license to make

common-sense judgments about the circumstances surrounding police

stops. Such extra-record fact-finding, however, must be limited to

background matters that cannot reasonably be disputed. Wright's

knowledge of unmarked police cruisers is not such a matter. I

therefore reject as unsupported the court's inference that Bordley

– or any reasonable officer – would have concluded, based on

Wright's leaning forward from the backseat, that Wright had

recognized the unmarked cruiser as a police car.10

10
The majority ignores the lack of factual support for the court's
conclusion that Wright identified the Crown Victoria as a police
cruiser. Instead, it offers its own flawed speculation, concluding
that a reasonable officer could have inferred that Wright "made"
the car based on his quickly exiting the vehicle in which he was
riding. But the critical factual question that makes Wright's
identification of the police car relevant is whether Wright quickly
exited and ran because he saw the police officers – making his
quick exit from the car and his run down the street suspicious.
His running, then, cannot be the basis for the conclusion that he
recognized the car as a police vehicle. Such reasoning is circular
and unsupportable. In addition, I do not understand how the
majority can equate the quick exit from the car – conduct that
itself reflects no state of mind – with the revealing exclamation
"oh shit" in supporting an inference that Wright was running from
the police.

-40-
 4. The Belief that Wright was Armed

The omission of testimony from the officers is even more

troubling with respect to the court's finding that the officers

believed that Wright was armed.11 This finding involves conduct

that is not ordinarily lawful (carrying a concealed weapon), and it

goes to the heart of the reasonable suspicion analysis. The

officers' failure to testify to their beliefs about the

significance of the conduct that they observed is not a mere

technical gap in the evidence. As noted above, the adversary

The majority's strained suggestion that Wright could have
recognized the officers because they always wore badges or police
department shirts is also unpersuasive. Wright was sitting in the
back seat of a car that was behind the car he leaned forward to
see. It was 7:45 p.m. in November – undoubtedly after dark. Even
if the officers were wearing badges any inference that Wright saw
them is unsupported and unreasonable on this record.

Finally, the majority creatively speculates not only that the
officers reasonably could have believed that Omar Edwards
recognized Officer Brown as a police officer, but also that he
communicated that information to Wright. Many scenarios are
possible, of course, but there is no factual support for such
speculation. An appeals court cannot simply make up inferences to
fill in the gaps in the record. Moreover, none of these arguments
was made by the government.
11
The district court explained its inference that the officers who
saw Wright run down Blue Hill Avenue believed he might have a gun
as follows:

The Court infers, and again the testimony is what it is,
it's not explicit, I infer that the officers ascribed
some significance as they are competent and experienced
police officers in that area of Boston to the fact that
Mr. Wright grabbed his side, clutched at something in his
sweatshirt. The Court infers that the officers did in
that split second draw the inference that he might well
possess a weapon.

-41-
process depends upon the ability of defense counsel to cross-

examine witnesses about their observations and the inferences that

they drew from them. If, for example, any of the officers here had

testified that he suspected Wright of carrying a weapon, defense

counsel could have asked why he drew that inference. The officer

may have been able to explain why, based on past experience or more

detailed observations, he drew the inference. On the other hand,

the officer's response may have revealed that he had no basis for

believing that Wright might be carrying a weapon. Cf. Espinoza,

490 F.3d at 47 (noting that the district court, after hearing the

arresting officer's testimony, found that his rationale for

following the defendant's van and commencing an investigation "was

bottomed on a pale patina of facts" and that the officer's actions

were "'based on nothing more than a hunch'"). Indeed, the

evidentiary gap may have occurred because Wright's hand motion did

not in fact cause the officers to suspect that Wright might be

carrying a weapon.

Two additional problems also are of critical significance

in my assessment of the weapon inference: (1) the court's reprise

of backwards reasoning, and (2) its reliance on the character of

the location, despite its finding that the events did not occur in

a "high crime area" within the meaning of Illinois v. Wardlow, 528

U.S. 119 (2000).

-42-
 a. Backwards Reasoning

In announcing its ruling, the district court acknowledged

that the inferences it drew were based in part on the officers'

reaction to Wright: "I draw inculpatory inferences . . . from what

I infer was the observations of the officers and their response,

their immediate order to Mr. Wright to stop . . . ." The court's

approach was thus doubly flawed with respect to its inference that

the officers believed Wright might possess a weapon. First, the

inference was speculative because it lacked support from any

testimony from the officers or other evidence (such as evidence of

a bulge in Wright's pocket). Second, the court drew the inference,

in part, based on the officers' reaction. Given that the question

in a reasonable suspicion analysis is whether the officers could

lawfully take the action they took, their conduct will always

support a suspicious inference. The question is whether the

defendant's actions or appearance permitted the inference of

suspicious conduct that would justify the officers' conduct –

namely, that Wright might possess a weapon. The court's

inferential process was again impermissibly circular: because the

officers ran after Wright and ordered him to stop, they must have

thought he could be carrying a weapon. But the officers did not

profess such a belief, and neither the officers nor the court cited

facts that would support such an inference, apart from references

to "that area of Boston."

-43-
 b. The Character of the Area

The district court's analysis suggests that the

neighborhood where the events occurred heavily influenced the

inference concerning Wright's possession of a gun. The court twice

invoked the location of the arrest in explaining its ruling.

First, in drawing the inference that the officers suspected that

Wright "might well possess a weapon," the court stated:

I infer that the officers ascribed some
significance as they are competent and
experienced police officers in that area of
Boston to the fact that Mr. Wright grabbed at
his side, clutched at something in his
sweatshirt.

Second, in addressing the question of high crime area, the court

stated that it was honoring "what I infer is the police officers'

experience and knowledge of the communities which they patrol." In

the latter context, however, the court went on to say that it would

have reached the same conclusion on reasonable suspicion "if the

officers had acted in the same fashion in Wellesley or Milton" –

locations that the court appeared to contrast with Dorchester

because of lower levels of violent crime.

There are troubling inconsistencies in the court's

remarks.12 The court declined to find that the location was a "high

12
Rather than confronting these inconsistencies and the district
court's clear reliance on the nature of the area – as well as the
government's argument that the court properly did so – the majority
chooses to ignore the problem and read the court's reference to
"that area of Boston" as "an appeal to the expertise of the
officers." In my view, this convenient recasting of the record is

-44-
crime area" within the meaning of Wardlow – a finding that would

have given the character of the area significance in the reasonable

suspicion inquiry. In explaining that conclusion, the court

emphasized that an individual's behavior, and the overall

circumstances surrounding a police stop, must be given the same

particularized scrutiny, no matter where they occur, to ensure

"that the rights of the citizens in the Dorchester area of Boston

[are] identical to the rights of the citizens in Milton and

Wellesley." These remarks reflect the unexceptional principle that

residents of poorer urban neighborhoods, where crime typically is

more prevalent than in nearby suburban communities, cannot be seen

as more likely to be involved in criminal activity simply because

of where they live. See Andrew Guthrie Ferguson & Damien Bernache,

The "High-Crime Area" Question: Requiring Verifiable and

Quantifiable Evidence for Fourth Amendment Reasonable Suspicion

Analysis, 57 Am. U. L. Rev. 1587, 1589 (2008) [hereinafter The

"High-Crime Area" Question] (noting that the Supreme Court "has

never yet allow[ed] the character of the neighborhood to be the

sole justification for a stop based on reasonable suspicion").

Yet, the court's actual analysis belied this articulation

of the law. Despite rejecting the specific high crime area

finding, the court factored the officers' awareness of criminal

an unsupportable reading of the court's words and a regrettable
avoidance of one of the most troubling aspects of the district
court's decision.

-45-
activity in "that area of Boston" into its assessment of how a

reasonable officer would perceive Wright's "clutching at something

in his sweatshirt." The court apparently concluded that a

reasonable officer, knowing the criminal history of the area, would

be entitled to think that Wright's hand movement indicated that he

might be carrying a weapon in his pocket.

The government endorses this two-tiered approach to the

character of the area, arguing that the prevalence of crime is

properly considered even if the location is not found to be "a

'high crime area' in the Wardlow sense." The government, which

does not argue on appeal that the court's Wardlow determination was

incorrect, stresses that the stop occurred in a location that the

officers on the scene nevertheless associated with assorted crimes.

It contends that their perception – supported by their testimony at

the suppression hearing13 – should be given weight in evaluating

their response to Wright's behavior.

The government's argument has large implications. In our

earlier decision in this case, we observed that the evidence

13
Officer Bordley stated that the neighborhood around the 1200
block of Blue Hill Avenue has a "level of criminal activity [that]
would be considered high for that area," with "[n]umerous arrests
for drug offenses, violent crimes, violent assaults, assaults and
batteries, firearms arrests, things of that nature." Officer
Celester testified that "we were experiencing a lot of crime . . .
during that period, so we were doing a lot of proactive policing"
and said the officers would "aggressively patrol areas, targeting
gangs and things like that." Officer Brown testified that he had
responded to "several shootings [and] drug investigations in that
area."

-46-
relevant to a high crime area finding ordinarily should include

some combination of factors showing a link between the incidence of

specific criminal activity in the area and the police officers'

suspicions about the defendant. After all, the reasonable

suspicion justifying a Terry stop must be more than an "inchoate

and unparticularized suspicion or 'hunch,'" Terry v. Ohio, 392 U.S.

1, 27 (1968), and it must be specifically focused on the individual

under scrutiny. When the officers have specific background

knowledge about that individual, they are able to view his conduct

in light of their prior information. In United States v. Am, for

example, we deemed the location of a Terry stop a permissible

consideration in a firearms case where the officers knew enough

about the history of the defendant to conclude reasonably that he

would be unlikely to walk unaccompanied in that area – known for

gang violence – unless he were armed. See 564 F.3d 25, 28 (1st

Cir. 2009).

Where the officers have no personal knowledge of the

defendant, however, the relevance of any background knowledge –

including the character of the neighborhood – logically depends on

whether it contributes to particularized suspicion concerning the

individual under observation. A high incidence of crime in an area

may provide such a link when the evidence establishes a similarity

between the crimes that most commonly occur there and the crime

suspected in the instant case. See United States v. Wright, 485

-47-
F.3d 45, 54 (1st Cir. 2007) ("Wright I") (requiring a "nexus"

between the crime prevalent in the area and the crime suspected).

The strength of that link will turn, inter alia, on both temporal

proximity – how recently did such prior, similar crimes occur? –

and whether the geographic boundaries of the "area" or

"neighborhood" under scrutiny are limited. Id.

Such factors bring discipline to the high crime area

designation by establishing limiting principles that will assure,

in the district court's words, "scrupulously identical"

constitutional protection for residents of crime-ridden

neighborhoods as for other individuals, guarding against detentions

rooted only in generalized perceptions. The factors link a

neighborhood's experience with crime to the defendant's observed

conduct and thus give substance to the requirement of

particularized suspicion. A police officer who knows that crimes

of a certain type have recently been occurring in a sensibly

circumscribed area could expect more such crimes there, reasonably

increasing the officer's suspicions about conduct suggestive of

such a crime. Without a link to recent similar crimes, however,

there would be less reason to treat equivocal conduct as suspicious

– and more risk of an unjustified stop. See Johnson v. Campbell,

332 F.3d 199, 210 (3d Cir. 2003) ("[W]hen a stop is not based on

specific, objective criteria, 'the risk of arbitrary and abusive

police practices exceeds tolerable limits.'" (quoting Brown v.

-48-
Texas, 443 U.S. 47, 52 (1979))).

Establishing a link between the defendant's observed

conduct and the high crime area designation is essential in

protecting individual rights because of the decisive impact of that

designation in the reasonable suspicion calculus. When it applies,

every observed act is viewed through a more suspicious lens, and

commentators have observed that "a high-crime area designation

almost always shifts the analytical balance toward a finding of

reasonable suspicion." The "High-Crime Area" Question, 57 Am. U.

L. Rev. at 1590. This weighting is appropriate only if the

designation in fact "makes an officer's 'suspicion' about otherwise

innocent conduct in that area more reasonable." Id. at 1635.

Such a particularized focus in the high crime area

designation was implicit in Wardlow, where the defendant was

arrested for drug activity. The Supreme Court noted that the

officers were "converging on an area known for heavy narcotics

trafficking in order to investigate drug transactions," and they

were traveling in a four-car caravan "because they expected to find

a crowd of people in the area, including lookouts and customers."

528 U.S. at 121. The law enforcement focus was thus directed

toward current and ongoing drug trafficking. Wardlow was observed

standing next to a building holding an opaque bag, and he fled

after looking in the direction of the officers. Id. at 121-22.

The officers suspected Wardlow of narcotics activity – the very

-49-
crime the officers expected to find in the area. See id. at 122

(noting that officer conducted a protective weapons search "because

in his experience it was common for there to be weapons in the near

vicinity of narcotics transactions").

In rejecting the high-crime area characterization for the

area of Blue Hill Avenue where Wright was stopped, the district

court necessarily concluded that the requisite links between the

area's criminal history and Wright's observed conduct were missing.

I discern no clear error in that conclusion. Unlike in Wardlow,

the officers here were not responding to specific reports of recent

crimes. Officer Bordley testified that they were not heading

toward a specific location, but "just happened to be in the

Mattapan area [of Dorchester] at the time." Officer Celester said

he and his colleagues had no special instructions that evening and

were in the area to do "proactive policing" and to "aggressively

patrol areas, targeting gangs and things like that."14

As noted, the officers did testify to their recurring

experiences with crime in the area. Bordley stated that he went to

the vicinity of the 1200 block of Blue Hill Avenue at least once

during each shift he worked and that he had made fifty or sixty

arrests in that area for various crimes, including drug offenses

14
Bordley testified that there was a high volume of drug
trafficking in that area at the time, but he had no memory of
whether he or other officers had made any arrests for such crimes
during October and early November 2004.

-50-
and assault and batteries. He also had encountered "a couple of

shootings" there. He did not say when those arrests and shootings

occurred, however, and he had no specific recollection of the type

of arrests he or any members of his task force had made in October

and early November 2004.15

The empirical evidence in the record also fails to

connect the officers' general perceptions about high levels of

crime in the area to the specific time and location of Wright's

arrest, or show that firearms crimes were of particular concern

during that period. Defense counsel requested incident reports

from the Boston Police Department for all violent crimes involving

a firearm that occurred in October and early November 2004 within

1,000 feet of the location of Wright's arrest. Thirteen incidents

were listed, but the ten available reports showed only two episodes

(on October 12 and October 19) in which armed individuals had

threatened random individuals on the street.16 In addition,

15
The prosecutor asked Bordley if he had made arrests in that area
"before" – presumably meaning "before" Wright's arrest. Bordley
replied that he had made fifty or sixty arrests in the area for a
variety of crimes and had "[b]een in that area where there were a
couple of shootings." Bordley had been with the Boston Police
Department for eleven years by the time of the suppression hearing,
and he had been assigned to the Youth Violence Task Force for
approximately five years. It is a fair inference that he was
summarizing events that occurred throughout his time on the force.
16
Of the ten listed incidents for which reports were available,
the only additional incident clearly involving a firearm stemmed
from a personal dispute among co-workers at a Home Depot store.
Two other reports described firearms incidents outside the 1,000-
foot range, and the remaining reports described incidents in which

-51-
although the Department typically prepared biweekly reports and

maps showing "hot spots" throughout the city,17 no statistics and

maps were generated between August 31 and November 8 – the date of

Wright's arrest – because the format of the Department's data

collection was being revamped during that period. Defense counsel

reported in an affidavit that the two most recent such reports,

from August 2004, showed that the nearest hot spots were 1.5 and

more than 2 miles from the Blue Hill Avenue location of Wright's

arrest.

In its post-remand memorandum to the district court, the

government asserted that the reasonableness of the officers'

perception of the location as a high crime area was "not

significantly undercut" by the crime reports offered by the

defendant as evidence that "the actual incidence of crime in this

area was not particularly high." The government noted that the

officers "relied on their extensive experience and a longer history

of information collected from the area in drawing the conclusion

that the neighborhood had experienced a high incidence of crime."

A generalized notion of the area's criminal history does

the original firearm information was not confirmed when the
officers went to the scene. One of the incidents for which a
report was unavailable was described as an assault with a dangerous
weapon.
17
Bordley explained that "by the map you could tell what crimes
occurred in what area, and you could tell which area had the more
crimes . . . by the number of hits that were happening . . . in
that place."

-52-
not, however, establish any of the factors that we cited as

pertinent in considering whether a neighborhood is a "high crime

area" such that it should be given weight in the reasonable

suspicion calculus. When recent crimes of a particular type have

occurred in a reasonably circumscribed area in proximity to where

an individual is seen exhibiting conduct suggestive of that type of

crime, the location is relevant in interpreting that individual's

conduct. The individual's conduct is reasonably viewed more

suspiciously because it mirrors particular criminal conduct that

the observing police officers have reason to expect will recur in

that specific location.

By contrast, the catalog of crimes reported by the

officers in this case, drawn from their experiences over the years

patrolling in Dorchester, provides no link between any particular

crime the officers had reason to anticipate and Wright's observable

conduct. Many innocent acts can be construed as suggestive of some

kind of crime. If it were enough for purposes of the Fourth

Amendment reasonable suspicion analysis that crimes of various

types had regularly occurred along that stretch of Blue Hill

Avenue, virtually every act by every individual in the neighborhood

would be subject to heightened scrutiny and suspicion – a state of

affairs inconsistent with the principle of particularized

suspicion. See generally The "High-Crime Area" Question, 57 Am. U.

L. Rev. at 1628-31 (observing that, "[t]o alter fundamental Fourth

-53-
Amendment protections, it would seem necessary that the area really

be qualitatively different," and proposing "an objective,

quantifiable approach" that would include "a geographic and

temporal limitation"). On this record, therefore, the district

court supportably concluded that the government's evidence fell

short of showing the links necessary to characterize the location

of Wright's arrest as a high crime area under Wardlow.

If, as the government urges, we were to consider the

general character of an area in the reasonable suspicion inquiry

notwithstanding a failure of proof on the high crime area

designation, we would be allowing anecdotal characterizations of an

area's criminal history to overwhelm the particularized analysis

that provides protection against arbitrary police conduct. If the

government is unable to persuade the district court that a location

warrants the high crime area designation in the relevant sense, the

officers' generalized perceptions of "high crime" cannot supplant

the deficiencies in evidence underlying the rejection of the high

crime area designation – here, the absence of a proven nexus, at

the relevant time, "between the type of crime most prevalent or

common in the area and the type of crime suspected in the instant

case," Wright I, 485 F.3d at 53-54.

I realize that it is tempting, in evaluating the

reasonableness of police officers' actions, to acknowledge and give

weight to their general knowledge that an area is dangerous, even

-54-
without the more formal high crime area finding. Certainly, it is

unrealistic to think that police officers, or any reasonable

person, would be unaffected by the fact that crimes of various

types have regularly occurred in an area where they are walking or

driving. Nonetheless, if "a generic fear of what might happen in

a high-crime area" were enough to trigger the high crime area

factor in a reasonable suspicion inquiry, United States v. Martins,

413 F.3d 139, 150 (1st Cir. 2005), without any specific expectation

of criminal activity to focus law enforcement attention, the

protections afforded by the Constitution would too often be

compromised for the poor and minorities, who historically have

comprised "'almost all of the population in most of the

neighborhoods the police regard as high crime areas.'" Montero-

Camargo, 208 F.3d at 1138 n.31 (quoting David A. Harris, Factors

for Reasonable Suspicion: When Black and Poor Means Stopped and

Frisked, 69 Ind. L.J. 659, 677 (1994)); see also United States v.

Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) ("[L]abeling an area

'high-crime' raises special concerns of racial, ethnic, and

socioeconomic profiling.").

The Fourth Amendment thus requires law enforcement

officers to resist the stereotypes associated with bad

neighborhoods and to ground their suspicion in "'specific and

articulable facts.'" Espinoza, 490 F.3d at 47. Indeed, the danger

in giving weight to police officers' general perceptions of an

-55-
area, in the absence of a high crime area finding, is starkly

illustrated by the court's conclusion that the officers here

inferred that Wright might be carrying a gun. The district court

invoked the officers' experience and knowledge "in that area of

Boston" to draw an inference on behalf of the officers that is

otherwise without any factual foundation. But the general

awareness that crimes of various types regularly occur in

Dorchester cannot transform an ordinary movement – securing an item

in one's pocket while running – into a suspicious act. See United

States v. McKoy, 428 F.3d 38, 41 (1st Cir. 2005) ("It is simply not

reasonable to infer that a driver is armed and dangerous because

the officers believe that he appears nervous and reaches toward the

car's console when approached by police, even in a high-crime

neighborhood."). In this case, therefore, the officers' general

knowledge of crime in Dorchester is not an appropriate element of

the reasonable suspicion inquiry.

c. Conclusion on the Belief that Wright was Armed

Excluding the court's improper consideration of the

location, and absent testimony indicating that Wright's conduct or

appearance would suggest to a reasonable officer that he had a gun

in his pocket, the court's finding that the officers inferred that

Wright might be armed is unsupportable. The record tells us only

that the officers saw Wright clutching at his sweatshirt, near his

waist, as he ran. The district court thus lacked a sufficient

-56-
evidentiary basis to infer that a reasonable officer would believe

that Wright might be carrying a weapon.18

B. Summary of Unsupported Facts and Inferences

My examination of the historical facts and inferences

underlying the district court's analysis has thus revealed multiple

flaws: (1) the impermissible reliance on the court's own professed

knowledge that the police drive Crown Victorias to infer that

Officer Bordley thought Wright, upon leaning forward, had

identified the unmarked cruiser as a police car, (2) the lack of

testimonial support for the court's pivotal inference that the

officers believed Wright might be carrying a weapon, (3) reliance

on the officers' general perceptions of "that area of Boston," and

(4) factoring the officers' response to Wright's conduct into the

calculus. These problems do not, however, necessarily prevent a

reviewing court from reaching the same conclusion as the district

court about reasonable suspicion based on an independent review of

the supportable historical facts and inferences. Hence, I now turn

18
The majority agrees that the district court improperly drew the
inference that the officers would have believed that Wright was
carrying a gun. In yet another revision of the district court's
opinion, the majority nonetheless holds that the court could have
reasonably concluded that a reasonable officer would have believed
that Wright was carrying contraband based on the same innocent
motion of clutching at his pocket while running. It relies solely
on its own finding of flight to reach that conclusion. The record,
however, can no more be read to support an inference that Wright
was carrying contraband than that he was carrying a gun, rather
than, in the majority's words, "something else that is frequently
kept in pockets, such as keys."

-57-
to that inquiry.19

II.

This case is so difficult because it is hard to resist

looking at the events through the lens of their eventual outcome,

despite the principle that a seizure cannot be justified by its

results. From our present vantage point, it appears that Wright

almost certainly was fleeing from the police to avoid being found

with a gun that he possessed unlawfully. See McKoy, 402 F. Supp.

19
As I describe, the majority has bolstered its reasonable
suspicion analysis by taking a number of liberties with the record
and the district court's explanation of its decision:

(1) where the district court improperly framed its inferences in
subjective terms, the majority recasts them as imperfectly
expressed objective findings, see supra § 1.A.2;
(2) in addressing the court's finding that Wright recognized the
car in front of him as a police vehicle, the majority ignores the
district judge's reliance on his own background knowledge of Crown
Victorias and instead supplies multiple other rationales not argued
by the government and not supported by the record, see supra n.2;
(3) where the district court specifically said that Wright was not
fleeing when he first exited the vehicle in which he was riding,
the majority concludes that the court either did not mean what it
said or committed clear error, see infra n.14;
(4) the majority entirely ignores the district court's unmistakable
reliance on the nature of the area as support for its conclusion of
reasonable suspicion, see supra n.4;
(5) the majority concludes that the presence of Omar Edwards in the
vehicle with Wright was both irrelevant and relevant, see infra
n.12; and
(6) the majority concludes that the district court clearly erred in
finding that the officers reasonably could have believed Wright was
carrying a gun, but goes on – without any support – to find a basis
for believing that Wright had contraband in his pocket, see supra
n.10.

Given its unusual approach to the record and the district court's
decision, the majority's different outcome is unsurprising.

-58-
2d at 316 ("[I]t is difficult [for courts] to conclude it was

objectively unreasonable for the officers to believe a suspect was

armed when in fact he was.)." That reality expressly crept into

the district court's original ruling on the suppression motion,

causing the court to reason backwards from the discovery of the gun

in assessing the officers' conduct. Indeed, remnants of that

improper reasoning contributed to the court's willingness on remand

to infer that the officers believed Wright had a weapon, even

without testimony from the officers that they possessed such a

belief or any evidence that the item in Wright's pocket was a gun

rather than something else.

In the Fourth Amendment context, however, it is

critically important that we not allow the ends to justify the

means. I have therefore been exacting in my review of the evidence

underlying the district court's ruling to prevent the knowledge of

the weapon he was carrying from influencing my view of the behavior

that preceded its discovery.

I thus turn to the totality of the circumstances

supported by the record to consider de novo whether the officers

had a reasonable suspicion justifying their decision to detain

Wright. Given the gaps in the record and the resulting defects in

the district court's findings, the facts that are properly

considered are limited. Like the majority, I do not treat the

location of the stop as a high crime area for purposes of my

-59-
inquiry. Unlike the majority, I cannot rely on a reasonable

officer's having inferred, at the time Wright exited his vehicle,

that he recognized the police cruiser as such. Nor may I infer

that a reasonable police officer would have suspected, based on

Wright's clutching motion, that he was carrying a gun. The

circumstances that may be considered thus consist of four

historical facts: (1) Wright leaned forward from the backseat of

the car in which he was a passenger to try to identify the

occupants of the vehicle parked in front of him; (2) he then

quickly exited his car and ran down the street; (3) he clutched at

the pocket of his sweatshirt as he ran, and (4) when the officers

shouted at him to stop, identifying themselves as police officers,

he continued on his way up Blue Hill Avenue.20

I therefore proceed to look at each of these acts

chronologically, reviewing Wright's actions in sequence as the

police officers would have encountered them, before considering

their significance in combination.

20
As the majority points out, the government also cites as a
relevant fact Officer Brown's recognition of Omar Edwards, a recent
shooting victim, as the front-seat passenger in the car in which
Wright had been sitting. Like the majority, I fail to see how
Edwards' injury at some unspecified time in the past, with no
connection to Wright, could contribute to a finding of reasonable
suspicion that Wright was involved in unlawful activity on the
night he was seized. The majority goes on to make the cryptic
statement that, despite this irrelevance, Edwards' presence was not
entirely irrelevant. I have no idea what that means, and I see no
way in which the officers' focus on Brown or the vehicle plays a
part in the reasonable suspicion inquiry.

-60-
A. Leaning Forward from the Back Seat

Wright's leaning forward in the car is not suspicious

conduct. Checking out the occupants of a car that has stopped near

one's own is an everyday act that by itself is not suggestive of

criminal conduct.

B. Running Down the Street

The district court explicitly resisted using the word

"flee" to describe Wright's initial running from the car,

accentuating that when Wright started to run, the running was not

yet flight.21 The court thus implicitly found that Wright's

departure lacked any characteristic that would permit a reasonable

officer to conclude that he was running from the officers rather

than to a pre-planned destination. The government has not

challenged this "no flight" finding, and it is a supportable view

of the ambiguous circumstances described by the officers.22

21
The court stated:

I infer from the testimony that, though things happened
in split second intervals, Mr. Wright had started to run,
I do not at this point say flee, he had started to run
before the officers had started to run after him.
22
Despite the government's failure to challenge the finding, the
majority concludes that the district court either did not find "no
flight" or that any such finding was clearly erroneous. The
majority relies, in part, on the unsupported inference that Wright
"made" the lead car in the caravan. The district court, however,
rejected characterizing Wright's running as flight despite its
finding that Wright would have identified the Crown Victoria as a
police vehicle. As I explain, the court reasonably found that the
officers could not at this juncture infer that Wright was fleeing,
and the majority may not reject that finding simply because it

-61-
 Wright's car had come to a stop in front of the mini-mart

before the police car pulled over, and Wright emerged from his

vehicle and started to run before the officers made any attempt to

approach him. I have already shown that the record lacks support

for a finding that Wright knew that Boston police officers use

Crown Victorias as unmarked cruisers, and none of the officers

testified to conduct by Wright suggesting that he ran from the car

because he recognized them as police officers. They did not

describe his exit from the vehicle as unusual, unexpected, or

otherwise seemingly designed to elude them.23 Wright then proceeded

straight up the street, and the officers were able to catch up to

him within seconds.

Running away, rather than walking, makes Wright's

departure potentially more suspicious. See Caruthers, 458 F.3d at

466 ("'[T]he speed of the suspect's movements may be relevant in

the totality of the circumstances'" (quoting United States v.

disagrees with it.
23
Officer Brown testified that as soon as Wright exited the
vehicle, he "turned to his right, grabbed onto his hooded
sweatshirt pocket right about here and began to run up Blue Hill
Avenue." He later elaborated: "It was real quick. It was just he
gets out, he looks to his left, grabbed his jacket pocket and he
proceeds to run up Blue Hill Avenue." Officer Celester testified
that, as the first car in the four-car caravan either "stopped or
drove by" Wright's vehicle, "the rear passenger jumped out and
ran." Officer Bordley's testimony was similar: "That occupant that
was in the rear seat ended up getting out of the rear seat, stepped
out of the motor vehicle, grabbed the right side of his sweater and
took off running up Blue Hill Avenue in the direction of Clarkwood
Street."

-62-
Gordon, 231 F.3d 750, 757 (11th Cir. 2000)). Running is reasonably

seen as "flight," however, only when other factors permit the

conclusion that the runner is acting in an unexpected or

unconventional way, or in response to police presence. See

Wardlow, 528 U.S. at 125 ("Flight, by its very nature, is not

'going about one's business'; in fact, it is just the opposite.").

Here, Wright's behavior – exiting a newly parked car and

following a straight path up the main street – was fully consistent

with "'going about [his] business.'" Indeed, Wright points out

that he ran toward the three other unmarked cruisers in the

caravan.24 Moreover, his running was unaccompanied by other

circumstances that have been associated with flight, such as an

abrupt change in behavior, a suspicious utterance, or an odd or

indirect path. Cf. Wardlow, 528 U.S. at 122 (describing

defendant's path "through the gangway and an alley"); United States

v. Lawshea, 461 F.3d 857, 859-60 (7th Cir. 2006) (stating that

defendant "not only ran away from the officer, but he sprinted

around the same building three times"); Aitoro, 446 F.3d at 249

(recounting that defendant or his companion exclaimed "'Oh shit'"

after recognizing officers and then "'did an abrupt about-face and

sprinted in the reverse direction'"); United States v. Franklin,

323 F.3d 1298, 1302 (11th Cir. 2003) (noting that defendant's

24
I agree with the majority that Wright's running toward the other
cars "does not defeat a finding of flight." It diminishes,
however, the significance of his running away from the lead car.

-63-
flight was "particularly suspicious because of its nature and

duration," where defendant "ran away at full speed as soon as he

saw the officers" and "ran behind [a] building, climbed a fence,

sprinted across a parking lot and began to scale a second fence");

United States v. Harris, 218 Fed. Appx. 525, 528 (7th Cir. 2007)

(unpublished) (reporting that, when defendant spotted a marked

police cruiser, he "did an immediate and abrupt about-face and

walked across a muddy yard despite an available and cleaner

alternative route").

I thus accept the district court's implicit finding that

a reasonable officer would not have concluded that Wright was

fleeing from the officers when they saw him run from the car.

C. Clutching at the Sweatshirt

As I have recounted, there is no basis in the record for

inferring that Wright's clutching at his sweatshirt was anything

more than the natural motion of a runner seeking to protect an item

in his pocket from slipping out.

D. Refusing to Stop

Unquestionably, Wright's disregard of the officers' order

to stop is suspicious. Although an individual approached by an

officer who lacks reasonable suspicion of criminal activity may

ignore the police and go about his business, Florida v. Royer, 460

U.S. 491, 498 (1983), we would ordinarily expect individuals with

nothing to hide to comply with direct police requests to stop, if

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for no other reason than to dispel suspicion. Wright's refusal to

stop makes it virtually inevitable that the pursuing officers would

believe – reasonably – that he had been deliberately running from

them when he exited his car, and was not merely departing quickly

for a previously scheduled rendezvous somewhere on Blue Hill

Avenue.

Nonetheless, I am not prepared to conclude that

reasonable suspicion is automatically established whenever an

individual fails to heed a police officer's command to stop

running. In this instance, only seconds had passed from the time

Wright started running until he was caught.25 If the order to stop

was Wright's first notice that the officers were focused on him –

and the record does not show otherwise – he had almost no time to

process their demand and consider his response before the officers

tackled him. In my view, reasonable suspicion does not arise from

the mere fact that a young man running down the street fails to

come to a sudden halt when police officers unexpectedly order him

to do so.

However, neither Wright's refusal to stop nor his other

behaviors may be considered in isolation. I therefore turn to an

assessment of the circumstances as a whole. See United States

Arvizu, 534 U.S. 266, 274 (2002) (noting that the factors must not

25
Officer Bordley testified that Wright ran a total of about fifty
or sixty feet from the car in which he had been riding to where he
was stopped.

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be considered "in isolation from each other"); Ruidíaz, 529 F.3d at

30 (noting that "a fact that is innocuous in itself may in

combination with other innocuous facts take on added

significance").

E. Totality of the Circumstances

My discussion makes it apparent that, up to the point the

officers directly engaged Wright by ordering him to stop, a

reasonable police officer would not have suspected that criminal

activity was afoot. Although the government asserts that Wright's

running and clutching – after he had leaned forward to look at the

Crown Victoria – was enough to justify the stop, those two actions,

on this record, were ordinary for the circumstances. Wright exited

a parked car immediately after looking at the vehicle that pulled

over in front of him and ran up the street, grabbing at his pocket

as would any runner seeking to secure an item as he ran. Even in

combination, these behaviors do not provide a "particularized"

basis for suspecting Wright of criminal activity.

I thus must consider whether Wright's failure to stop in

response to the police order, considered together with his earlier

actions, gave rise to reasonable suspicion. The question is close.

Certainly, the refusal to stop cast Wright's earlier running in a

new light, permitting a reasonable police officer to infer at that

point that Wright had run off initially because he realized the

occupants of the Crown Victoria were law enforcement officers.

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Critically, however, nothing in the record would permit a

reasonable officer, even in retrospect, to conclude that Wright's

otherwise innocent motion in clutching his sweatshirt suggested he

might have a gun or other contraband in his pocket. One can accept

such a conclusion only by giving in to stereotypes and adopting a

sinister explanation for Wright's behavior – i.e., that a twenty-

five-year-old man refusing to stop for the police in "that area" is

likely to be involved in violent conduct or drug activity, leading

to the inference that he might have a gun or narcotics in his

pocket. That logic, for reasons I have explored at length, is

impermissible. The only suggestive behaviors remaining, therefore,

are Wright's initial running and his later refusal to stop.

In these particular circumstances, that is simply not

enough. Wright was in an area where "aggressive patrolling" by the

police was routine; indeed, in its original ruling, the district

court found that the officers intended "to get out of their

cruiser, make inquiry of the Wright vehicle, if not of other

people, lawfully but aggressively to find out where they were going

and what they were doing." In that context, Wright's possible

decision to run off to avoid an encounter with the police tells us

little; innocent individuals would also be highly motivated to

avoid such an intrusion. See generally Wardlow, 528 U.S. at 132

(Stevens, J., concurring in part and dissenting in part) ("Among

some citizens, particularly minorities and those residing in high

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crime areas, there is also the possibility that the fleeing person

is entirely innocent, but, with or without justification, believes

that contact with the police can itself be dangerous, apart from

any criminal activity associated with the officer's sudden

presence."); id. at 133 (noting that "these concerns and fears are

known to the police officers themselves, and are validated by law

enforcement investigations into their own practices"); Amy D.

Ronner, Fleeing While Black: The Fourth Amendment Apartheid, 32

Colum. Hum. Rts. L. Rev. 383, 396 (2001) ("Because minorities and

residents of high crime areas are popular targets of police abuse,

they are also the ones most prone to run at the mere sight of the

police.").

As I have described, Wright's running throughout the

incident lacked suspicious characteristics – it began at a natural

point for departure, when he exited a vehicle; he ran directly down

a main street, and the officers reported no furtive gestures or

exclamations when he began to run; his continued running in the

face of an order to stop lasted for only moments before he was

apprehended. It is possible, of course, that Wright's behavior

would have become more suspicious if the pursuit had continued,26

26
Although not part of the district court's findings of fact,
Bordley testified that one officer (he thought it was Officer
Foley) had exited his car and "tried to grab" Wright as he passed,
and that "it slowed [Wright] up just enough so I was able to catch
up to him and grab him." This testimony does not tell us whether
Foley's action caused Wright to alter his course or how it "slowed
him up." Given the short span of the entire episode, it appears

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and he had used more evasive tactics to get away from the officers.

But those are not the facts we have here.

I recognize that reasonable suspicion is not defeated by

the possibility that the conduct observed was innocent. See

Wardlow, 528 U.S. at 125-26. Mere possibility, however, is also

not enough to establish reasonable suspicion. See United States v.

Urrieta, 520 F.3d 569, 578 (6th Cir. 2008) ("The Fourth Amendment

simply does not allow a detention based on an officer's 'gut

feeling' that a suspect is up to no good."). The facts before us

do not depict accumulating circumstances that, in totality, support

a reasonable suspicion that Wright possessed a gun or other

contraband, but show instead a consistent course of conduct that,

even taken as a whole, strengthens only the inference that Wright

did not want to interact with the police. See United States v.

Cortez, 449 U.S. 411, 418 (1981) ("[A]n assessment of the whole

picture must yield a particularized suspicion . . . ."); cf.

Wardlow, 528 U.S. at 130 n.4 (noting that, in Terry, "reasonable

suspicion was supported by a concatenation of acts, each innocent

when viewed in isolation, that when considered collectively

amounted to extremely suspicious behavior") (Stevens, J.,

concurring in part and dissenting in part).

Our reasonable suspicion analysis in Aitoro provides a

that Foley's action may have occurred almost simultaneously with
the stop.

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helpful contrast, showing the deficiencies in the evidence here.

In that case, a number of officers – more than five – had

positioned themselves in an area "'with frequent street-level drug

selling activity.'" 446 F.3d at 249. Defendant Aitoro was

arrested after he and another man abruptly reversed direction and

sprinted off when they saw three police officers get out of their

car. Aitoro sought to distinguish his case from Wardlow by

pointing out that the police in Wardlow "were specifically on the

lookout for drug-purchasing customers and scouts for drug

traffickers looking for approaching police," and that Wardlow was

seen carrying a bag that made him "a particular target for

suspicion. Id. at 253. We concluded, however, that two

significant facts "gave the police at least as much additional

basis for suspicion" that Aitoro was involved in drug trafficking

as the defendant's bag gave to the police in Wardlow: the

exclamation of "Oh shit" by Aitoro and an officer's sighting of a

bulge at Aitoro's waist that he thought was a gun. Id.

Here, we have no facts that are inferentially revealing

of criminal activity – such as the exclamation or the bulge – and

Wright's running is ambiguous in context. The gap between Wright's

refusal to obey the police order to stop and a supportable finding

of reasonable suspicion would perhaps be bridged if the officers

had testified to their rationale, arising from their expertise, for

responding as they did to the behaviors they saw. Little more is

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necessary in this case to cross the threshold from hunch to

reasonable suspicion. As I have noted, the analysis would be

different if the officers had described some characteristic of

Wright's pocket or other evidence that would support the belief of

a reasonable officer that he was carrying a gun or other

contraband. Without such evidence, however, Wright's running failed

to blossom into anything more sinister than an attempt to avoid the

officers – a perfectly lawful and, in context, predictable course

of action.

That so little substantiation might redeem the

government's case does not render the redemption unnecessary or

pointless. If the government is forced to make explicit the basis

for the officers' reactions, including why they might be suspicious

of conduct that otherwise appears innocent, the defense can

challenge that testimony and the truth-seeking purpose of the

adversary process can work. But if the constitutional

determination of reasonable suspicion rests on unsupported

inferences, judicially noticed facts, vague references to

experience or a general pattern of crime in the area, the

constitutional analysis becomes little more than a means of

justifying a search or seizure on the basis of its result.

"[W]e are cognizant of the important role that the police

play in keeping our citizens safe, and we do not lightly second

guess the decisions made by police officers in the field . . . ."

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Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir. 2003). At the

same time, however, we have an obligation to take seriously the

constitutional principles that protect individuals from unwarranted

law enforcement intervention. The real test of our commitment to

those fundamental principles occurs when we are asked to apply them

in close cases. Here, I are compelled to conclude that the

deficiencies in the district court's finding of reasonable

suspicion are not offset by the totality of the remaining

circumstances. In sum, I cannot identify "'specific and

articulable'" facts and inferences that are sufficiently grounded

in Wright's conduct to anchor a finding of reasonable suspicion.

Accordingly, unlike the majority, I would reverse the district

court's denial of Wright's motion to suppress and remand for entry

of an order granting the motion.

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