United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2016 Decided June 14, 2016
No. 14-3073
UNITED STATES OF AMERICA,
APPELLEE
v.
HAROLD DELONTE CASTLE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cr-00067-1)
Tony Axam Jr., Assistant Federal Public Defender, Office
of the Federal Public Defender, argued the cause for
Appellant. With him on the briefs was A.J. Kramer, Federal
Public Defender.
Ryan M. Malone, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Vincent H.
Cohen Jr., Acting U.S. Attorney at the time the brief was
filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Todd
W. Gee, Assistant U.S. Attorneys.
Before: MILLETT, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Dissenting opinion filed by Senior Circuit Judge
SILBERMAN.
EDWARDS, Senior Circuit Judge: On March 25, 2014,
Appellant Harold Castle was charged, in a one-count
indictment, with possession with intent to distribute 100
grams or more of a mixture containing a detectable amount of
phencyclidine (“PCP”), in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B)(iv). The charge was based on physical evidence
and a statement obtained as a result of Appellant’s warrantless
seizure on the evening of February 24, 2014. Prior to trial,
Appellant filed a motion to suppress the evidence, arguing
that he was stopped by police officers without reasonable,
articulable suspicion in violation of the Fourth Amendment.
After a hearing, the District Court denied the motion. A jury
found Appellant guilty of the lesser-included offense of
possession with intent to distribute a detectable amount of
PCP, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). On
October 21, 2014, the District Court sentenced Appellant to
65 months imprisonment to be followed by six years of
supervised release. Appellant now appeals the denial of his
suppression motion.
I. INTRODUCTION
The District Court found that, on the evening in question,
the seizing officers were on patrol in an unmarked pickup
truck. The officers turned onto Yuma Street (a residential
block in southeast Washington, D.C.) and saw Appellant
walking quickly from the direction of an apartment complex
outside of which PCP was known to be sold and toward an
alleyway next to a house across the street. The alley led to a
3
vacant yard. The District Court also found that, after they
pulled up in front of the house, the officers saw Appellant
lean over near a U-Haul truck parked in the yard.
The District Court additionally credited the officers’
testimony that they patrolled the area so regularly that “people
in the neighborhood” had come to recognize their unmarked
truck as a police vehicle, to expect such patrols, and to act as
“lookouts.” On the basis of these generalized findings
regarding “the neighborhood,” the District Court concluded
that it was “not unreasonable for the officers to believe
[Appellant] knew or suspected their vehicle was a police
vehicle.” Consequently, the District Court found that it also
was not unreasonable for the officers to believe that Appellant
was walking quickly in order to evade them and that he
leaned over near the U-Haul in response to their presence.
Finally, the District Court found that when the officers
approached Appellant as he walked out of the backyard area,
they recognized him from several prior seizures that had
occurred some six to nine months earlier. Based on the
totality of the foregoing findings of historical fact and
inferences from those facts, the District Court concluded that
the officers had reasonable, articulable suspicion that
Appellant had just committed or was about to commit a
criminal offense when they seized him. We disagree.
“Under the Fourth Amendment our society does not
allow police officers to ‘round up the usual suspects.’” United
States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006). An
officer relying on his or her “knowledge of [an individual’s]
criminal record” is “required to pair” that knowledge with
“‘concrete factors’ to demonstrate that there [is] a reasonable
suspicion of current criminal activity.” United States v.
Foster, 634 F.3d 243, 247 (4th Cir. 2011) (emphasis added)
(citation omitted). In other words, knowledge of an
4
“individual’s criminal history” can “corroborate[],” but not
substitute for “objective indications of ongoing criminality.”
United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006).
The law also makes clear what is eminently logical. In
order to find that a person is evading the police, there must be
evidence that the person has knowledge of a police presence.
See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Similarly,
in the context of a reasonable, articulable suspicion analysis,
“furtive gestures ‘are significant only if they were undertaken
in response to police presence.’” United States v. Brown, 334
F.3d 1161, 1168 (D.C. Cir. 2003) (quoting United States v.
Edmonds, 240 F.3d 55, 61 (D.C. Cir. 2001) (quoting United
States v. Johnson, 212 F.3d 1313, 1316 (D.C. Cir. 2000))). In
both instances, the putatively evasive or furtive conduct
cannot provide the necessary evidence of knowledge of a
police presence. There must be independent evidence from
which that knowledge can be inferred. See Wardlow, 528 U.S.
at 124; Brown, 334 F.3d at 1168; Edmonds, 240 F.3d at 57,
61-62; Johnson, 212 F.3d at 1316-17.
As we explain more fully below, there is no such
evidence here. Certainly the officers’ assumption that
Appellant knew of the presence of their truck on the evening
in question gains no support from general knowledge in the
neighborhood that the truck was a police vehicle. The ability
of neighborhood people to recognize the truck as a police
vehicle cannot support an inference that Appellant had
knowledge of the presence of that known police vehicle on
the evening he was stopped. And the record is entirely devoid
of any evidence from which a reasonable officer could infer
that Appellant knew of the truck’s (and therefore the
officers’) presence before he was stopped. There is, for
example, no testimony that Appellant so much as glanced in
the direction of the officers’ truck at any point after the
5
officers turned onto Yuma Street. Nor is there evidence that
Appellant was ever in close proximity to the truck. Neither
did the officers testify that anyone else in the neighborhood
alerted Appellant or that a “lookout” set off a general alarm
that a known police vehicle was on the block. In other words,
the officers’ critical assumption of knowledge was based on
nothing.
It is therefore clear that the Government failed to carry its
burden of demonstrating that the actions of Appellant on the
evening in question amounted to “concrete factors” or
“objective indications” that he had just committed or was
about to commit a criminal offense. Walking quickly on a
very cold evening is commonplace, not suspicious, activity.
So, too, is walking into an alleyway, leaning over, and
walking out. These actions are entirely mundane. The fact that
they took place in a residential neighborhood plagued by drug
use did not allow the police officers to ignore the dictates of
the Fourth Amendment. See United States v. Sprinkle, 106
F.3d 613, 618 (4th Cir. 1997) (prior conviction “for a
narcotics offense” and presence “in a neighborhood with a
high incidence of drug traffic,” without “(other) particularized
evidence that indicates criminal activity is afoot,” is
insufficient to demonstrate reasonable, articulable suspicion).
Under Ornelas v. United States, 517 U.S. 690 (1996), we
give “due weight” to a District Court’s determination of the
reasonableness of inferences drawn by police officers from
historical facts. Id. at 700. In assessing this determination,
however, we are obliged to adhere to the Supreme Court’s
admonition that “due weight must be given, not to [an
officer’s] inchoate and unparticularized suspicion or ‘hunch,’
but to the specific reasonable inferences which he is entitled
to draw from the facts in light of his experience.” Terry v.
Ohio, 392 U.S 1, 27 (1968). As we explain below, because the
6
District Court’s determination that the officers’ inference that
Appellant was aware of their presence had no basis in the
factual record, it is entitled to no weight. We therefore
reverse.
II. BACKGROUND
The events giving rise to Appellant’s seizure took place
on February 24, 2014, in the 100 block of Yuma Street,
Southeast, Washington, D.C. This long block, which begins at
First Street on the west and terminates in a cul-de-sac on the
east, consists of a mix of small apartment buildings and single
family homes.
At approximately 6:30 p.m. on a very cold evening,
Metropolitan Police Department Officers Olszak and Moseley
were patrolling in an undercover police vehicle – an
unmarked Dodge Ram truck. The officers were not in
uniform, but were wearing vests with the word “Police” on
the front and back. Upon turning onto the 100 block of Yuma,
the officers noticed two men at the opposite end of the block,
near the cul-de-sac. What caught the officers’ attention was
the fact that the men were walking quickly as they crossed
from the right sidewalk near 133 Yuma – an apartment
building in front of which PCP was known to be sold – to 144
Yuma, a single family home on the opposite side of the street.
As the officers drove toward the cul-de-sac, Appellant
continued across the street and into an alleyway between 144
Yuma and the house next door, out of the officers’ field of
vision. The officers sped up a bit; however, when they pulled
up in front of 144 Yuma, Appellant had nearly reached a U-
Haul truck parked in the backyard of 144 Yuma, some 125
feet from the street. The other man, later identified as a Mr.
Banks, had stopped at the front corner of 144 Yuma,
7
apparently to urinate. The officers got out of their truck, and
Officer Olszak ran toward the alleyway after Appellant, while
Officer Moseley walked over to Mr. Banks.
Just before Officer Olszak entered the alley, he saw
Appellant, now on the far side of the U-Haul, bend over while
one of his legs “kick[ed] up” parallel to the ground and then
stand back up. Officer Moseley, still near the front of the
house, saw Appellant bend over, but did not see his leg lift up.
Each officer’s view was partially obstructed by the U-Haul.
At this point, neither officer had recognized Appellant as
Harold Castle.
The officers then observed Appellant walking back
toward Yuma Street with his hands in his pockets. Officer
Olszak, who came face to face with Appellant in the alleyway
between the houses, ordered Appellant to remove his hands
from his pockets. It was only after Appellant obeyed Officer
Olszak’s order that Officer Olszak recognized him as Harold
Castle.
Officer Olszak had, on several prior occasions, seen
Appellant in front of the apartment building at 133 Yuma
Street with other men. Officer Olszak also recognized
Appellant from several prior seizures that occurred some six
to nine months earlier. Two of these prior seizures resulted in
Appellant’s arrest for PCP-related crimes. One involved a car
and foot chase in a different neighborhood. Another, which
took place in front of 133 Yuma Street, involved an attempt
by Appellant to avoid arrest by disposing of a vial of liquid
that had the distinct odor of PCP. And one seizure involved a
foot chase that started in the 100 block of Yuma, but turned
up no contraband and so Appellant was not arrested.
8
Having recognized Appellant as Mr. Castle, Officer
Olszak touched him on his arm and told him to “hold on for a
sec.” Officer Olszak then ran to the backyard to investigate
the U-Haul truck. Meanwhile, Appellant walked over to
Officer Moseley, who had detained Mr. Banks following a
consensual frisk that had turned up no contraband.
As Appellant neared Officer Moseley, Moseley
recognized him as Harold Castle. Like Officer Olszak, Officer
Moseley was familiar with Appellant as a result of Appellant
having been seized in the past and his general presence in the
neighborhood. Officer Moseley also smelled the odor of PCP
emanating from Appellant.
At this point, Appellant had put his hands back in his
pockets and appeared agitated and nervous. Officer Moseley
ordered him to sit down on the curb. Appellant sat down, but
immediately jumped back up, complaining that his pants were
clean and he did not want to get them dirty. Officer Moseley
again told Appellant to sit down, and he complied.
While Appellant was sitting on the curb, Officer Moseley
saw him place a small vial on the ground and lean over it.
Based upon the vial’s appearance and its smell, Officer
Moseley suspected that it contained PCP. Officer Moseley
arrested Appellant shortly afterward. In a search incident to
that arrest, officers recovered a pack of cigarettes, a cell
phone, a pair of black rubber gloves, paperwork in
Appellant’s name, and approximately fifteen dollars in cash.
While Officer Moseley was interacting with Appellant on
Yuma Street, a crime scene search officer joined Officer
Olszak at the U-Haul. Sometime after Appellant was arrested,
Officer Olszak and the crime scene search officer found an
9
eight-ounce bottle of liquid near the U-Haul that smelled like
PCP, as well as a plastic bag of black vial caps.
After being charged and prior to trial, Appellant filed a
motion to suppress the evidence obtained as a result of his
seizure, including the one-ounce vial recovered by Officer
Moseley and a statement Appellant allegedly made when
arrested. Appellant did not seek to suppress the eight-ounce
bottle of PCP or the vial caps. During a hearing before the
District Court, Officers Olszak and Moseley provided the
only evidence regarding the events leading to Appellant’s
arrest.
Based on the officers’ testimony, the District Court made
findings of fact and determined that, as a matter of law,
Officer Olszak stopped Appellant when he touched him on
the arm and instructed him to “hold on.” The Court also
determined that at that point, the officers had reasonable,
articulable suspicion to stop Appellant. The District Court
consequently denied Appellant’s motion to suppress.
III. STANDARDS OF REVIEW
When presented with an appeal of the denial of a motion
to suppress evidence on Fourth Amendment grounds, we
review de novo preserved claims regarding whether and when
a seizure occurred. See United States v. Brodie, 742 F.3d
1058, 1061 (D.C. Cir. 2014). We also review de novo a
district court’s “ultimate determination[]” of whether a police
officer had the reasonable, articulable suspicion or probable
cause necessary to legally effectuate any such seizure.
Ornelas v. United States, 517 U.S. 690, 697, 699 (1996); see
also United States v. Bailey, 622 F.3d 1, 5 (D.C. Cir. 2010).
Under Ornelas, we give “due weight” to a District Court’s
determination of the reasonableness of inferences drawn by
10
police officers from historical facts. 517 U.S. at 700. In
assessing this determination, however, we are obliged to
adhere to the Supreme Court’s admonition that “due weight
must be given, not to [an officer’s] inchoate and
unparticularized suspicion or ‘hunch,’ but to the specific
reasonable inferences which he is entitled to draw from the
facts in light of his experience.” Terry, 392 U.S at 27. While
we “may consider both evidence offered at the suppression
hearing and the trial,” Bailey, 622 F.3d at 5, when, as here, the
District Court has made factual findings, we may not search
the record for any reasonable view of the evidence that will
support the trial judge’s conclusions, id. at 5 n.1. Rather, we
must review the factual findings of the District Court and,
assuming they are not clearly erroneous, determine whether
they support the contested seizure. See id. Finally,
suppression arguments that are not presented to the trial court
are deemed waived and cannot be argued on appeal. See
United States v. Hewlett, 395 F.3d 458, 460-61 (D.C. Cir.
2005).
IV. ANALYSIS
A. The Seizure
“[W]henever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that
person, and the Fourth Amendment requires that the seizure
be ‘reasonable.‘” Brown v. Texas, 443 U.S. 47, 50 (1979)
(alteration in original) (citations omitted). A seizure occurs
“when physical force is used to restrain movement or when a
person submits to an officer’s ‘show of authority.’” Brodie,
742 F.3d at 1061 (quoting California v. Hodari D., 499 U.S.
621, 626 (1991)).
11
Whether police action amounts to a “show of authority”
requires the court to ask whether a “reasonable person” “in
view of all the circumstances surrounding the incident, . . .
would have believed that he was not free to leave.” United
States v. Wood, 981 F.2d 536, 539 (D.C. Cir. 1992) (quoting
United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
Factors considered in assessing whether an officer’s actions
amounted to a show of authority “include whether the suspect
was physically intimidated or touched, whether the officer
displayed a weapon, wore a uniform, or restricted the
defendant’s movements, the time and place of the encounter,
and whether the officer’s ‘use of language or tone of voice
indicat[ed] that compliance with the officer’s request might be
compelled.’” Id. (alteration in original) (quoting Mendenhall,
446 U.S. at 554).
The Supreme Court has repeatedly held that police do not
manifest a show of authority “merely [by] approaching an
individual on the street or in another public place, by asking
him if he is willing to answer some questions, [or] by putting
some questions to him if the person is willing to listen,”
provided the officers do not imply that answers are obligatory.
Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality
opinion); see also Florida v. Bostick, 501 U.S. 429, 434
(1991); Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984) (per
curiam); INS v. Delgado, 466 U.S. 210, 215-17 (1984);
Mendenhall, 446 U.S. at 555; United States v. Lewis, 921 F.2d
1294, 1297-98 (D.C. Cir. 1990) (no seizure arises when
officers, “displaying no weapons and speaking in a normal
tone of voice, approach individuals in a public place and ask
permission to talk with them” (citation omitted)).
If police behavior amounts to a show of authority, a
seizure will be found if the individual at whom the show of
12
authority is directed submits. Hodari D., 499 U.S. at 628-29;
see also Brodie, 742 F.3d at 1061; Wood, 981 F.2d at 538.
Relying on Hodari D. and Brodie, Appellant, who bears
the burden of demonstrating that he was seized, see United
States v. Goddard, 491 F.3d 457, 462 (D.C. Cir. 2007) (per
curiam), argues that he was stopped when Officer Olszak
ordered him to remove his hands from his pockets and he
complied. A careful review of the record, however, leaves no
doubt that Appellant did not preserve this claim. Quite the
contrary. The record is clear that Appellant’s counsel’s
argument was that the stop was inexorably tied to Officer
Olszak’s touch and directive to “hold on.” Tr. of Motions
Hearing at 120-21, 130 (June 30, 2014). Consequently,
Appellant’s claim regarding the stop is similarly limited
before this court. See Hewlett, 395 F.3d at 460-61.
We agree with the District Court that Appellant was
seized when Officer Olszak touched Appellant and instructed
him to “hold on” and Appellant complied. Applying the
Mendenhall factors, we are satisfied that Appellant was
subject to the requisite show of authority when Officer
Olszak, wearing a vest labeled “Police,” ran up to him in a
dark, narrow alley (effectively blocking Appellant’s path to
Yuma Street), “ordered” Appellant to remove his hands from
his pockets, and, in response to Appellant’s unquestioning
compliance, initiated physical contact and instructed
Appellant to “hold on,” all within sight of Officer Moseley
who was detaining Mr. Banks. At this point, Officer Olszak
had “accost[ed]” Appellant and “restrain[ed] his freedom.”
Brown, 443 U.S. at 50 (citation omitted). As the District Court
found, no reasonable person in Appellant’s position and
subject to Officer Olszak’s directives would have believed
that he was free to go on about his business.
13
This conclusion is consistent with our precedent. Thus,
for example, in Wood, we found that a show of authority
occurred when a uniformed officer, at night, followed an
individual into a dark entrance hallway of an apartment
building and, positioning himself behind the individual,
ordered, “[H]alt right there.” 981 F.2d at 540.
A recent decision by the District of Columbia Court of
Appeals, In re J.F., 19 A.3d 304 (D.C. 2011), is also
instructive, albeit not binding. In that case, two Metropolitan
Police Department plainclothes officers who were wearing
“Police” vests got out of an undercover car and approached an
individual and his companion on a deserted street. Id. at 306,
310. One of the officers ordered the individual to remove his
hands from his pockets and then asked him some questions.
Id. at 306. The other officer searched the individual’s
companion and, when no contraband was found, detained that
person while a warrant check was run. Id. at 309-10. The
court held that the individual who was instructed to remove
his hands from his pockets was subject to a show of authority
resulting in an illegal seizure. Id. at 310; see also Brodie, 742
F.3d at 1060-61 (Government conceded a show of authority
when two officers pulled their car parallel to a person on a
sidewalk in front of townhomes and one officer “got out of
the car and told [the individual] to put his hands on a nearby
car”); United States v. Jones, 584 F.3d 1083, 1085, 1087
(D.C. Cir. 2009) (Government conceded a seizure when an
officer wearing a utility vest with the word “POLICE” on it
got out of his car and, walking toward an individual who was
among 15 or 20 people gathered throughout a block in what
appeared to be “somewhat of a party atmosphere,”
“instructed” the individual from a distance of less than 10 feet
to “[c]ome here”).
14
The Government does not suggest that Officer Olszak’s
actions did not amount to a show of authority. Rather, the
Government argues that Appellant was not seized when
Officer Olszak confronted him because “[A]ppellant
continued walking without pausing when Officer Olszak said
‘hold on for a sec.’” Br. for Appellee at 24 n.17. The
Government’s argument is disingenuous. The District Court
found, based on Officer Olszak’s own testimony, that Officer
Moseley, who “had detained Mr. Banks at the front of the
house,” “‘took over’ the detention of Defendant.” United
States v. Castle, 53 F. Supp. 3d 95, 99 (D.D.C. 2014). The
trial judge thus credited Officer Olszak’s testimony that when
Appellant continued walking after being told to stop, he was
walking toward Officer Moseley and, according to Officer
Olszak, was “‘not trying to go anywhere,’” but rather had
“‘submitted.’” Id. at 100. The Government does not contend
that the District Court’s findings are clearly erroneous.
It is hard to imagine a more submissive response to
Officer Olszak’s directive to “hold on” given that, upon
issuing it, Officer Olszak ran to the backyard, leaving
Appellant unattended. Rather than attempting to evade Officer
Moseley via the now clear path to Yuma Street, Appellant
exhibited complete submission to police authority by walking
directly to Officer Moseley. In sum, we reject the
Government’s argument that the District Court erred in its
conclusion as to when the seizure happened.
B. Reasonable Articulable Suspicion
Pursuant to the Fourth Amendment, a police officer who
seizes a person on less than probable cause “must be able to
point to specific and articulable facts which, taken together
with rational inferences from those facts,” Terry, 392 U.S at
21, support “a reasonable and articulable suspicion that the
15
person seized is engaged in criminal activity,” Reid v.
Georgia, 448 U.S. 438, 440 (1980) (per curiam) (citing
Brown, 443 U.S. at 51). See also Ornelas, 517 U.S. at 696. It
is the Government’s burden to provide evidence sufficient to
support reasonable suspicion justifying any such stop. See
Brown, 443 U.S. at 51-52; see also Royer, 460 U.S. at 500.
When reviewing a District Court’s reasonable, articulable
suspicion assessment, we look, as does the District Court, to
the totality of the circumstances, understanding that factors
individually “susceptible to an innocent explanation” may
“suffice[] to form a particularized and objective basis” when
taken together. United States v. Arvizu, 534 U.S. 266, 277
(2002). In considering the totality of the circumstances, it is
“imperative” that we look only to “the facts available to the
officer at the moment of the seizure.” Terry, 392 U.S. at 21-
22; see also Ornelas, 517 U.S. at 696; Sibron v. New York,
392 U.S. 40, 64 (1968); Rios v. United States, 364 U.S. 253,
261-62 (1960) (facts discovered as a result of or subsequent to
the seizure may not be considered). And we must assess those
facts within an objective framework: “‘[T]he issue is whether
a reasonably prudent man in the circumstances would be
warranted in his belief’ that the suspect is breaking, or is
about to break, the law.” Edmonds, 240 F.3d at 59 (quoting
Terry, 392 U.S. at 27); see also United States v. McKie, 951
F.2d 399, 402 (D.C. Cir. 1991) (per curiam) (“[W]e . . .
determine what facts were known to the officer and then
consider whether a reasonable officer in those circumstances
would have [had a reasonable, articulable suspicion].”).
In undertaking this de novo review of a District Court’s
“ultimate determination[]” that a seizing officer had the
reasonable, articulable suspicion necessary to effectuate a
particular stop, we must “take care both to review findings of
historical fact only for clear error and to give due weight to
16
inferences drawn from those facts by resident judges and local
law enforcement officers.” Ornelas, 517 U.S. at 697, 699.
With respect to findings of historical fact, this means that we
will find error if, looking to the entire record, we are
definitely and firmly convinced that the trial court made a
mistake. See Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985). With respect to inferences from those historical
facts, the Supreme Court has instructed that when the
inferences at issue are a police officer’s, “[a]n appeals court
should give due weight to a trial court’s finding that the
officer was credible and the inference reasonable.” Ornelas,
517 U.S. at 700. But in assessing a trial court’s
reasonableness determination, it is critical that we also keep in
mind the Supreme Court’s admonition that “due weight must
be given, not to [an officer’s] inchoate and unparticularized
suspicion or ‘hunch,’ but to the specific reasonable inferences
which he is entitled to draw from the facts in light of his
experience.” Terry, 392 U.S. at 27 (emphasis added); see also
Wardlow, 528 U.S. at 123-24; United States v. Sokolow, 490
U.S. 1, 7 (1989) (a “reasonable suspicion” requires “more
than an inchoate and unparticularized suspicion or hunch”
(citation omitted)). Moreover, an appellate court has the
“power to correct errors of law, including those that may
infect a so-called mixed finding of law and fact, or a finding
of fact that is predicated on a misunderstanding of the
governing rule of law.” Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 501 (1984); see also Inwood Labs.,
Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 n.15 (1982) (“[I]f
the trial court bases its findings upon a mistaken impression
of applicable legal principles, the reviewing court is not
bound by the clearly erroneous standard.”).
Finally, as noted above, and as particularly relevant to
this case, the Fourth Amendment “does not allow police
officers to ‘round up the usual suspects.’” Laughrin, 438 F.3d
17
at 1247. Consequently, an officer relying on his or her “prior
knowledge of [an individual’s] criminal record” is “required
to pair” that knowledge “with some more ‘concrete factors’ to
demonstrate that there [is] a reasonable suspicion of current
criminal activity.” Foster, 634 F.3d at 247 (emphasis added).
This means that knowledge of an “individual’s criminal
history [can] corroborate[],” but not substitute for,
particularized, “objective indications of ongoing criminality.”
Monteiro, 447 F.3d at 47.
In this case, the Government argues that four
circumstances support its contention that Officers Olszak and
Moseley had the reasonable, articulable suspicion necessary
to stop Appellant:
(1) The officers’ knowledge that the neighborhood was
a high-crime area particularly associated with PCP
distribution.
(2) The officers’ observation, while on patrol in their
unmarked Dodge Ram truck, of Appellant walking
quickly away from 133 Yuma Street (a building
known for PCP distribution) and toward an
abandoned house.
(3) Appellant’s furtive movements in an alley next to
the abandoned house.
(4) The officers’ prior experience with Appellant, which
included PCP-related arrests.
See Br. for Appellee at 18-19. An additional fact cited by the
Government – the odor of PCP that Officer Moseley noticed
after he took over the detention of Appellant – is not
cognizable because it was not known to the officers before
18
Officer Olszak seized Appellant. See Terry, 392 U.S. at 21-
22; United States v. Holmes, 360 F.3d 1339, 1345 (D.C. Cir.
2004), vacated on other grounds, 543 U.S. 1098 (2005).
The lynchpin of any reasonable suspicion analysis in this
case must be the second and third factors. The first factor –
the high crime nature of the neighborhood – is not
unimportant. But it is only a “contextual consideration[]” and,
as such, cannot provide the kind of information particular to
Appellant that is necessary to demonstrate reasonable
suspicion. See Wardlow, 528 U.S. at 124. The fourth factor –
the officers’ prior experience with Appellant – is particular to
Appellant, but can only corroborate, not provide, the
necessary, concrete indicia that Appellant was involved in
criminal behavior when he was stopped.
The Government argues that the second factor – walking
quickly from the direction of an apartment building outside of
which drugs could be bought toward an abandoned house –
supports reasonable, articulable suspicion because the District
Court concluded that it was not unreasonable for the officers
to perceive Appellant’s behavior as an “evasion of the
police.” Br. for Appellee at 20 & n.14; see also id. at 24-25,
27-28, 27 n.19. The Government additionally points to
Appellant’s bend and leg lift near the U-Haul, describing it as
a furtive movement that “occurred immediately after” and “in
response to” Appellant having “spied the police.” Id. at 21;
see also id. at 21-22, 22 n.16. The Government thus
acknowledges that the probative value of these two
circumstances rests on the District Court’s conclusion that “it
was not unreasonable for the officers to believe Defendant
knew or suspected their [unmarked Dodge Ram] was a police
vehicle.” Castle, 53 F. Supp. 3d at 100. Because the record is
devoid of the sort of evidence necessary to support this
19
conclusion, the Government’s argument in support of
reasonable suspicion necessarily collapses.
The critical role that a possible suspect’s knowledge of
police presence plays in determining whether arguably
evasive action can be part of the totality of the circumstances
supporting reasonable suspicion was made clear by the
Supreme Court in Wardlow, 528 U.S. at 123-24. In that case,
the Court held that, at least in areas of heavy narcotics
trafficking, “[h]eadlong” flight is probative of wrong doing if
it is both unprovoked and a result of “noticing the police.” Id.
at 124. In a similar vein, we have repeatedly emphasized that
“furtive gestures are significant” in a reasonable, articulable
suspicion analysis “only if they were undertaken in response
to police presence, [a]nd a suspect can respond to the
presence of a police officer only if he has recognized him as
an officer.” Brown, 334 F.3d at 1168 (alteration in original)
(emphasis added) (citation omitted); see also Edmonds, 240
F.3d at 61; Johnson, 212 F.3d at 1316.
In support of its conclusion that Officers Olszak and
Moseley reasonably believed that Appellant was aware of
their presence in an unmarked truck and was acting to evade
them, the District Court explained:
[A]s the officers drove down Yuma Street, they saw
Defendant walking very quickly from the direction of
133 Yuma Street, an address known for PCP
distribution and criminal activity, toward a vacant
backyard area, suggesting to the officers that he was
trying to evade their presence. The officers testified
credibly that they patrolled the area so regularly that
people in the neighborhood had come to recognize
their vehicle and to expect such patrols. Indeed,
Officer Olszak testified that people in the
20
neighborhood would act as “lookouts” and alert
others to the presence of the police when they arrived
in the area. Furthermore, the street ended in a cul de
sac, meaning that non-police traffic was less likely
than on another street. Therefore, it was not
unreasonable for the officers to believe Defendant
knew or suspected their vehicle was a police vehicle
and was walking quickly in order to evade them.
Castle, 53 F. Supp. 3d at 100 (emphases added). There are
multiple problems with this analysis.
First, the District Court’s factual finding that “people in
the neighborhood” could recognize their truck as a police
vehicle is questionable because it is based, at least in part, on
specious testimony and speculation. Can anyone really take
seriously Officer Olszak’s assertion that he and Officer
Moseley drove “the only Dodge Ram in the city”? Tr. of
Motions Hearing at 75. And there was little evidence to
suggest that the truck was otherwise particularly distinctive.
There was nothing to suggest that the silver color of the truck
was unique. And there is little reason to suppose that the
truck’s Florida license plates – the only arguably distinctive
feature testified to by the officers – could be seen from any
sort of distance, especially in the evening. Finally, we cannot
help but note that the Government “did not seek to qualify
[the police officers] as . . . expert[s] on public identification of
police vehicles” or “establish a factual foundation for opinion
testimony as [lay witnesses].” See Johnson, 212 F.3d at 1316.
In other words, there are good reasons to question the District
Court’s factual finding that “people in the neighborhood”
readily recognized the truck as a police vehicle.
But, even accepting this dubious assertion as not clearly
erroneous, we are nonetheless convinced that the District
21
Court erred in equating the awareness of “people in the
neighborhood” that the unmarked truck the officers drove was
a police vehicle with a determination that the officers could
reasonably believe that Appellant was aware of the officers’
truck on the evening in question. The Government simply
failed to put any evidence into the record that would support a
reasonable officer in inferring that the indicia of police
presence (the truck) had come to the attention of Appellant,
let alone that Appellant reacted to the truck as a police
vehicle.
In the face of this gap in the evidentiary record, the
District Court’s assessment of the reasonableness of the
officers’ inference amounts to a classic non sequitur. It does
not follow from the fact that the unmarked truck was known
in neighborhood as a police vehicle that Appellant was aware
of its presence on the evening of his seizure and that the
behavior witnessed by the officers was a reaction to that
presence. Thus, the trial court’s determination that the officers
reasonably inferred that Appellant was evading them is due
no weight. The failure of the Government to provide any
evidence supporting the officers’ inferences that Appellant
knew of their presence and was acting in response to it should
have led the trial court to find that these were not the sort of
“specific reasonable inferences which [the officers were]
entitled to draw from the facts in light of [their] experience,”
but rather amounted to no more than “inchoate and
unparticularized suspicion[s] or ‘hunch[es]’” to which no
deference is owed. Terry, 392 U.S. at 27.
The District Court’s assessment also defies legal
authority. Our precedent makes clear, no matter how widely
and readily recognizable the truck may have been as a police
vehicle, a different type of evidence was necessary to support
the inference that Appellant knew the police truck was present
22
and was responding to it. When putative police evasion or an
alleged furtive gesture is what provokes police suspicion, our
precedent requires that the Government proffer evidence,
apart from that behavior or gesture, from which an officer
could reasonably have inferred that the individual in question
was aware of the recognizable police presence and was
responding to it. See Brown, 334 F.3d at 1168; Johnson, 212
F.3d at 1316-17.
Our decision in Edmonds is instructive with respect to the
sort of evidence that is necessary. There, as here, officers
were driving an undercover car, a Crown Victoria that the
seizing officer, Sergeant Feirson, testified was “regularly used
to patrol the neighborhood and is easily identifiable by
residents as a police cruiser.” 240 F.3d at 57. As the officers
made their way through the neighborhood in question, an area
“notorious as [an] open air drug market[],” Feirson testified
that he saw a man standing on the curb. Id. According to
Feirson, when the man looked at the unmarked cruiser, ‘“his
eyes got pretty big, and he immediately pivoted, turned away
and he began to walk’ – rapidly – towards a van located in the
parking lot of [a] nearby . . . school.” Id. The school was
closed, and the parking lot was a known site for drug
transactions. Id. There was someone sitting in the driver’s seat
of the van when the man entered it. Id. The man “had left the
curb, Feirson believed, because he had recognized him and
his companions as police officers.” Id.
At this point, Sergeant Feirson decided to investigate. He
got out of the unmarked car and, with his police badge
prominently hanging from his neck, approached the van from
the front looking through the windshield. See id. The Sergeant
could see both the driver and the man who he believed had
recognized him as a police officer through the van’s
windshield, and as he drew nearer, he saw the driver lean
23
forward making gestures that led Feirson to believe the driver
was hiding something. See id. A seizure of the driver
eventually led to the discovery of a gun under his seat. Id.
In undertaking a reasonable suspicion analysis, we
considered both the furtive gestures of the driver and his
passenger’s “apparent attempt to evade the officers” when he
left the curb. Id. at 60. And with respect to both, we had
evidence from which Feirson could not only reasonably infer
that he had been recognized as a police officer, but also
evidence allowing Feirson to reasonably conclude that his
being a police officer had come to the attention of both men
and that their respective actions were in response to that
recognition. Thus, with respect to the man on the curb, there
was testimony that the undercover car was well known in an
area notorious for drug sales. But in addition, Feirson testified
that the man looked at the Crown Victoria and that
“immediately upon observing” it, his eyes got big and he
“hastened to the van to join its driver.” Id. at 62; see also id.
at 57. We found that “it was reasonable for Feirson’s
suspicions to be aroused in the first instance by [the man’s]
apparent flight and retreat” “immediately upon observing that
[known police] vehicle.” Id. at 62. And we were satisfied that
because the Sergeant could see the driver “through the van’s
windshield, it [was] a fair inference that [the driver] in turn
saw Feirson, perceived his badge, recognized him as a police
officer, and reacted by making furtive gestures.” Id.
The Wardlow opinion, addressing flight from the police,
references similar evidence. There, it appears that the fact that
the suspect had seen the police before he fled was never
challenged. Nonetheless, the Supreme Court described the
evidence from which it could reasonably be inferred that the
officers from whom Wardlow fled were recognizable as
police, that Wardlow was aware of their presence, and that his
24
flight was in response to that presence. The Court explained
that the seizing officers, who were in uniform, were driving
the last car of a four-car police caravan that was converging
on an area known for heavy drug trafficking. 528 U.S. at 121.
As the caravan passed Wardlow, one of those officers
observed him “look[] in the direction of the officers” and then
flee. Id. at 121-22.
In this case, the Government presented not an iota of
similar evidence at either the motions hearing or during the
trial. The officers simply failed to provide the trial judge with
any testimony from which she could conclude that an
objective officer in possession of the information Officers
Olszak and Moseley had could reasonably or fairly infer that
Appellant was aware of the police truck and was acting in
response to it. As noted above, there was no testimony that
either Appellant or the man with him ever so much as glanced
in the direction of the truck – let alone reacted to it. The
officers never testified, nor was there any factual finding, that
either man turned his head toward the truck or pointed or
gestured at it. Neither was there evidence that either man’s
pace or gait changed as the officers turned onto and drove
down the street. In fact, Officer Moseley expressly testified
that the men were already walking quickly when he saw them
and pointed them out to Officer Olszak. Nor did the officers
testify that either man changed direction or that Appellant
altered the path he was on in order to enter the alleyway
between the two houses. Neither officer even suggested that
the men were ever, at any point, oriented so that they faced
the truck as they walked. Indeed, because 144 Yuma is a
higher numbered address than 133 Yuma, the testimony
suggests that the men were oriented somewhat toward the cul-
de-sac, walking diagonally away from the truck as it came
from the intersection of First and Yuma Streets.
25
Furthermore, there is no evidence to indicate that the
physical circumstances during the evening in question would
have permitted Appellant to recognize the truck even if he had
looked in its direction. Quite the contrary. The officers
testified that: when the truck turned onto Yuma Street,
Appellant and the truck were at opposite ends of a long city
block; the truck’s headlights were on and pointed in
Appellant’s direction – something that would not have
changed as the officers drove down the street and that would
have made it very difficult to identify a Florida license tag
even as the truck moved closer to the cul-de-sac; and the truck
was silver, not a color that would stand out, whether it was
“dark,” as the trial judge found, Castle, 53 F. Supp. 3d at 98,
or “the dusk hour” with some street lights illuminated, as the
officers testified, see Tr. of Trial at 88, 109 (July 16, 2014).
Moreover, Officers Olszak and Moseley provided no
testimony from which they could reasonably infer that
someone else who recognized the truck had alerted Appellant.
Thus, unlike Edmonds, where a man on the street clearly
noticed the undercover Crown Victoria and then pivoted and
hastened over to the defendant, there was no testimony in this
case that anyone on Yuma Street noticed the Dodge Ram and
then approached or otherwise alerted Appellant or the man
with him. And while Officer Olszak testified that the
passenger side window of the truck was rolled down as
Officer Moseley turned onto Yuma Street, neither he nor
Officer Moseley said that they heard anyone yelling out “J.O.
J.O.” or any other calls or signals that experienced officers
would have recognized as ones typically used by those
involved in illegal narcotics sales when they wish to alert
others to the presence of jump outs or undercover officers.
Nor, apparently, did the officers do anything to attract
Appellant’s attention as they drove down Yuma Street. There
26
was no testimony, for example, that they activated the truck’s
internal police lights, about which they testified, or otherwise
announced their arrival in order to confirm or dispel their
unsupported hunch that Appellant was walking quickly in an
effort to evade them.
During oral argument before this court, Government
counsel asserted that there was evidence that the Appellant
and the truck were at some point in such close proximity that
it would have been reasonable for the officers to infer that
Appellant recognized the truck and responded by walking into
the alleyway. See Recording of Oral Arg. 33:55-36:00. In
other words, the Government essentially suggested that we
look to the record for evidence apart from the District Court’s
findings of fact, that might support the conclusion that the
officers could reasonably infer that Appellant was aware of
and reacting to the truck’s presence. As noted earlier, the law
does not permit us to do this. See Bailey, 622 F.3d at 5 n.1.
More fundamentally, Government counsel pointed to no
record evidence to support this assertion, and cited none in its
brief. Moreover, we can locate none in the motions hearing or
trial records. Most importantly, the Government’s argument is
belied by Officer Moseley’s uncontradicted trial testimony
that, “[b]y the time we got to the corner of 144 Yuma Street
when I stopped the truck, Mr. Castle was pretty close to the
U-Haul,” Tr. of Trial at 61 (July 16, 2014); see also Tr. of
Motions Hearing at 26, which was about 125 feet from the
street, Tr. of Motions Hearing at 87.
In its brief to this court, the Government repeatedly,
broadly asserts that Appellant walked quickly toward 144
Yuma, into an alleyway between 144 Yuma and the house
next door, and made furtive gestures, all “upon recognizing”
or “in response to” or “immediately after he spied” the police.
Br. for Appellee at 14, 18, 21, 22 n.16, 27 n.19, 29 & n.21.
27
But the Government cites no record evidence in support of
these assertions. Rather, the Government relies on the District
Court’s conclusion that the officers reasonably inferred that
Appellant was “walking quickly in order to evade them,” see
id. at 20 n.14; see also id. at 22 n.16 (referencing the District
Court’s conclusion that the officers reasonably inferred that
Appellant bent down near the U-Haul and made a kicking
movement with his leg in response to a known police
presence). As explained above, the District Court’s
conclusion about what the officers could reasonably infer is
without support in the record, contrary to governing
precedent, and inconsistent with the dictates of logic.
Consequently, it is due no weight.
During oral argument, in an effort to bolster its claim that
Appellant was aware of the officers’ presence, Government
counsel also pointed us to two statements made by Officer
Olszak. On direct examination, Officer Olszak testified: “We
saw two guys towards the end of the street to the right kind of
speed walk across the street. They were walking faster than at
a normal pace when they made us out.” Tr. of Motions
Hearing at 22. Later on cross examination, Officer Olszak
similarly asserted: “I think they knew we were the police
when we first pulled in the block.” Id. at 60. However, on
further cross examination, Officer Olszak clarified that his
assertion that Appellant “knew we were the police” was based
solely on his conclusion that the unmarked truck was well
known in the community as a police vehicle. Id. at 60-61.
Officer Olszak then admitted that he had no other evidence
supporting his suspicion that Appellant and the man with him
knew that there was a police truck on Yuma Street. See id. at
61. Given this testimony, it is hardly surprising that the
District Court did not cite the officer’s unsupported assertions
that Appellant “made out” or recognized the officers or their
truck. Rather, the District Court relied solely on the officers’
28
testimony that their truck was well known in the
neighborhood as a police vehicle. Then, based solely on the
fact of neighborhood awareness that the truck was a police
vehicle, the trial judge reached the implausible conclusion
that the officers could reasonably infer that Appellant was
aware of the truck’s presence on Yuma Street on the evening
in question and was responding to it. This conclusion is
contrary to the facts in this case and to well-established law.
For the reasons explained above, we are constrained to
reverse because the police officers had no reasonable,
articulable suspicion justifying their stop of Appellant. See,
e.g., Sprinkle, 106 F.3d at 617-19 (an individual’s presence in
a neighborhood known for drug crimes, “huddl[ing]” with
another person in a manner suggestive to the officers of a
drug sale, and the individual’s effort to hide his face and
“dr[i]ve away as soon as the officers walked by” did not
provide indicia of criminal activity adequate to support
reasonable, articulable suspicion even when combined with
the officers’ knowledge of the individual’s prior criminal
record for narcotics offenses).
CONCLUSION
The judgment of the District Court is reversed and the
case is hereby remanded for further proceedings consistent
with this opinion.
So ordered.
SILBERMAN, Senior Circuit Judge, dissenting: In my view,
the majority opinion is quite unfortunate. It not only breaks with
circuit precedent, it is quite confusing regarding the appropriate
scope of review we should apply in reviewing district court
factual determinations – particularly inferences drawn from
historical facts.
To be sure, the overall question whether Officer Olszak had
a reasonable suspicion to stop the Appellant is a question of law,
although we must keep in mind it is deferential to officers
because it asks only whether their actions are reasonable as
police officers in light of their training and experience, not
whether judges, putting themselves in the same position, would
regard the actions of the defendant as suspicious. (Indeed, even
our cases relied on by the majority uniformly affirm district
courts’ approval of investigative stops.) But – and this is a
crucial point – subordinate determinations of historical facts as
well as inferences from those historical facts are fact-findings
for the district judge. See Ornelas v. United States, 517 U.S.
690, 699 (1996) (“We hold as a general matter determinations
of reasonable suspicion . . . should be reviewed de novo on
appeal. Having said this, we hasten to point out that 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 local law enforcement
officers.” (emphasis added)).
At the outset, I think even the undisputed facts in this case
support the district court’s determination that Officer Olszak had
a reasonable suspicion justifying the seizure of Appellant Castle.
Those facts are:
1. The officers knew that the 100 block of Yuma Street
was a site of significant PCP distribution and use.
2. The officers patrolled the area three or four times a
week in an unmarked – though distinctive – pickup
2
truck with Florida license plates. They testified
(credibly, according to the district judge) that they
patrolled the area so regularly that neighborhood
people recognized their vehicle and some people would
actually act as lookouts.
3. Appellant and a companion were walking at a fast pace
from 133 Yuma Street, an address known for PCP
distribution and criminal activity.
4. Appellant continued to walk down a narrow alley next
to an abandoned house and bent over with one leg up
in the air, sort of a backward kick, apparently in the
manner as if one were dropping something, behind a
U-Haul vehicle (what the majority refers to as “furtive
movements”).
5. Then Appellant inexplicably walked back out of the
alley, toward the officer, at which point Officer Olszak
recognized him. Officer Olszak had seen Appellant
“hang[ing] out” in front of 133 Yuma with known PCP
dealers on a number of previous occasions, and he
recalled several prior PCP-related arrests and incidents
involving Appellant, including multiple occassions on
which Appellant had attempted to evade arrest by
fleeing from the police and to destroy evidence of PCP
distribution and possession by pouring it on the
ground.
See United States v. Castle, 53 F. Supp. 3d 95, 99-101 (D.D.C.
2014).
To justify a Terry stop, an officer need only “observe[]
unusual conduct which leads him reasonably to conclude in light
3
of his experience that criminal activity may be afoot.” Terry v.
Ohio, 392 U.S. 1, 30 (1968). The undisputed facts alone satisfy
Terry’s standard. Appellant’s conduct was quite unusual; it is
not commonplace to walk into an alley leading to a vacant
backyard, lean over behind an abandoned vehicle with one leg
raised as if to drop something (or pick something up), and then
immediately turn around and come back (notwithstanding the
majority’s assertion that it is “commonplace,” Majority Op. at
5). In any event, even relatively “normal” activity can be
sufficient to arouse an officer’s suspicions. “A determination
that reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct.” United States v. Arvizu, 534
U.S. 266, 277 (2002). The suspicious conduct in Terry, for
example, consisted only of men walking up and down a block
several times, looking into a store window. 392 U.S. at 5-6.
The Court carefully distinguished the arrest standard – probable
cause that a crime has been committed – from the lower
standard of reasonable suspicion necessary for an investigative
stop.1 Id. at 26.
The majority, nevertheless, asserts that Appellant’s activity
was “entirely mundane” and “not suspicious,” (presumably as a
matter of law?), Majority Op. at 5, but it reaches that conclusion
by examining each factor alone without considering the effect
1
While the analysis and holding in United States v. Edmonds is
consistent with my view of this case, our opinion includes a stray
comment suggesting Terry requires a belief that “the suspect is
breaking, or is about to break, the law.” 240 F.3d 55, 59 (D.C. Cir.
2001). But that is an overstatement. All Terry requires is that the
officer suspect “criminal activity may be afoot.” 392 U.S. at 30
(emphasis added). It is the probable cause standard that requires belief
that a crime has been, is being, or is about to be committed. Id. at 26;
id. at 35 (Douglas, J., dissenting).
4
when they are all combined. While each individual factor may
be “susceptible of innocent explanation, and some factors are
more probative than others[, t]aken together,” Arvizu, 534 U.S.
at 277, they can suffice to form the particularized and objective
basis required by Terry. See also United States v. Sokolow, 490
U.S. 1, 8 (1989) (“In evaluating the validity of a [Terry]
stop . . . , we must consider ‘the totality of the circumstances –
the whole picture.’” (quoting United States v. Cortez, 449 U.S.
411, 417 (1981)). The additional circumstances here do just
that.
First, the stop occurred in a high-crime area. The majority
discounts this factor by noting that the high-crime nature of a
neighborhood is merely a “contextual consideration[]” that
cannot demonstrate reasonable suspicion. Majority Op. at 18.
But “officers are not required to ignore the relevant
characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further
investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
I do not disagree that location alone cannot be determinative,
but it can be used in conjunction with other factors – such as the
Appellant’s odd behavior – to establish reasonable suspicion, as
is the case here.
What is more, once Officer Olszak recognized Appellant,
Castle’s behavior that night – walking quickly from the PCP
house down the alley, bending over as if he was dropping
something, and then turning around and walking back toward
Officer Olszak – looked particularly suspicious in light of his
history. Officer Olszak knew Appellant hung around the PCP
house with known PCP dealers, and knew Appellant had several
prior PCP-related arrests, including incidents in which Appellant
attempted to evade police and destroy evidence. At that point,
it was not unreasonable for Officer Olszak to infer Appellant’s
5
odd behavior was consistent with how he had behaved in the
past when in possession of PCP. See United States v. Feliciano,
45 F.3d 1070, 1074 (7th Cir. 1995) (holding that “recent
relevant criminal conduct . . . is a permissible component of the
articulable suspicion required for a Terry stop,” and collecting
cases to that effect).
Again, the majority discounts this factor as merely
corroborative, Majority Op. at 18, but that is exactly how
Officer Olszak used this piece of information. His suspicions
were not aroused solely because of Appellant’s criminal history
(he was not “round[ing] up the usual suspects,” id. at 16
(quoting United States v. Laughrin, 438 F.3d 1245, 1247 (10th
Cir. 2006)), but because of that criminal history in the context of
the current situation: Olszak observed a man whom he knew had
previously been arrested for PCP-related crimes, who attempted
to destroy evidence and flee from police, quickly walk away
from a building known for PCP distribution, down a deserted
alley to a vacant lot, and appear to drop something behind an
abandoned U-Haul truck, then immediately turn around and
come back. Compare United States v. Gordon, 722 F.2d 112,
114 (5th Cir. 1983) (per curiam) (reasonable suspicion to stop a
motor home existed where officers identified driver as a member
of a drug smuggling group, knew the motor home was registered
to the same address as a motor home seized in an earlier drug
arrest, and knew the group’s smuggling operations involved the
use of motor homes). In other words, Officer Olszak did in fact
“pair . . . knowledge [of the Appellant’s criminal record] with
some more concrete factors to demonstrate that there [is] a
reasonable suspicion of current criminal activity.” Majority Op.
at 17 (quoting United States v. Foster, 634 F.3d 243, 247 (4th
Cir. 2011)) (internal quotation marks omitted) (third alteration
in original).
6
The majority emphasizes that Appellant’s actions cannot be
construed as furtive unless the government shows that Appellant
and his companion recognized the police vehicle before
Appellant walked down the alley. I think Appellant’s actions,
paired with the circumstances, were unusual enough that
reasonable suspicion existed regardless of whether the actions
were prompted by knowledge of police presence, for the above
reasons.
However, even were evidence of Appellant’s recognition of
police presence necessary to satisfy Terry, that standard is met
here. The majority insists the government did not provide
sufficient evidence, describing a great number of hypothetical
pieces of evidence that would more clearly demonstrate
Appellant or his companion recognized the officers’ presence.
Majority Op. at 4-5, 24-26. I concede the government made no
showing that Appellant (or anyone else) pulled out a megaphone
and announced to the neighborhood “J.O. J.O.,” or anything of
that nature. But the government showed “a sufficient basis for
the officers to believe they had been recognized.” See United
States v. Brown, 334 F.3d 1161, 1168 (D.C. Cir. 2003). While
that may sometimes take the form of very direct, clear evidence
– the police announcing themselves, as in United States v.
Johnson, 212 F.3d 1313, 1315 (D.C. Cir. 2000), or officer
testimony that the individual’s eyes grew large at the sight of
police, as in United States v. Edmonds, 240 F.3d 55, 57 (D.C.
Cir. 2001), for example – as the majority seems to demand here,
that is not always the case.
The majority’s own authority makes that point. In Brown,
for example, the only evidence the government had of
knowledge of police presence was circumstantial – the police
were in uniform, their car was marked, another passenger had
exited the vehicle several minutes prior, and one officer carried
7
a lit flashlight as he approached – and the court acknowledged
that the “furtive movements” the officers observed could have
been “merely a coincidence.” 334 F.3d at 1168. After all, there
was no evidence the vehicle’s occupants actually had observed
these facts (indeed, they allegedly were distracted by “amorous
activity,” id. at 1168 n.5). Nevertheless, we held that “the
possibility of such a coincidence d[id] not negate the officers’
reasonable suspicion and fear, nor d[id] the fact that the
passenger’s behavior did not necessarily indicate criminal
activity or prospective danger.” Id. at 1168.
So too here. There was sufficient circumstantial evidence
to allow Officer Olszak to reasonably conclude his presence had
been noted, and Appellant’s actions constituted suspicious
“furtive movements.” The district court found that the officers’
distinctive truck (with Florida license plates) was well-known in
the neighborhood as a police vehicle, and that it was not unusual
for people to act as lookouts and alert others to police presence.
Additionally, traffic on Yuma Street is sparse given that it ends
in a cul-de-sac, making the presence of any vehicle noticeable.
In light of those circumstances, the district court concluded “it
was not unreasonable for the officers to believe [Appellant]
knew or suspected their vehicle was a police vehicle,” and that
his walking “very quickly from the direction of 133 Yuma Street
toward the vacant back yard area, sugges[ted] to the officers that
he was trying to evade their presence.” Castle, 53 F. Supp. 3d
at 100 (emphasis added). That is fact-finding based on
inferences from the historical facts and bolstered by a credibility
determination. The majority complains that “equating the
awareness of ‘people in the neighborhood’ that the unmarked
truck the officers drove was a police vehicle with a
determination that the officers could reasonably believe that
Appellant was aware of the officers’ truck on the evening in
question,” is a “dubious assertion.” Majority Op. at 20-21. But
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this is nothing more than the majority quarreling with an
inference which the officers and the district court were entitled
to draw, and we, as an appellate court, must respect.
*****
The important doctrinal point that divides me from the
majority is the proper scope of review of the district court’s
determination. It is black letter law that inferences drawn from
historical fact are part and parcel of a district judge’s
fact-finding – which may be disturbed by an appellate court only
on a determination of clear error. In my view, the majority
improperly cloaks an attack on the district judge’s fact-finding
as a question of law. Compounding the problem, the majority
refuses to say exactly what kind of error it has supposedly
identified, instead declaring the district court’s conclusion
“without support in the record” (suggesting clear factual error),
“contrary to governing precedent” (suggesting legal error), “and
inconsistent with the dictates of logic” (suggesting some other
type of error entirely?). Majority Op. at 27. Thus, the majority
at pages 5-6 and 9-10 conflates the roles of the police officer,
the district judge, and the court of appeals. The overall question
as to whether the officer’s stop of an individual is reasonable is
clearly a question of law – but it is a question of law over which
the district court and we defer to the police officer’s inferences.
Subordinate to that overall legal question are questions of
historical fact and inferences to be drawn from those facts. As
an appellate court we must respect the district court’s resolution
of those questions unless there is clear error. Ornelas, 517 U.S.
at 699-700.
The result of the court’s opinion, I fear, will be immense
confusion on the part of district courts attempting to interpret
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and apply this Delphic – and seemingly inconsistent with circuit
precedent – opinion. I respectfully dissent.