United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2006 Decided June 22, 2007
No. 05-3080
UNITED STATES OF AMERICA,
APPELLEE
v.
MELVIN M. GODDARD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00214-01)
Jon S. Pascale, appointed by the court, argued the cause and
filed the briefs for appellant.
Youli Lee, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese, III, Thomas J. Tourish, Jr., and
Lisa H. Schertler, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and TATEL and BROWN,
Circuit Judges.
Opinion for the Court filed PER CURIAM.
2
Dissenting opinion filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge TATEL.
PER CURIAM: Charged with unlawful possession of a
firearm by a convicted felon, appellant moved to suppress the
gun and his statement that he owned the gun, claiming that the
arresting officers lacked reasonable suspicion to stop him. The
district court denied his motion, ruling that the officers had
reasonable suspicion at the time of the stop. We conclude that
the stop happened later than the district court found, but because
the record supports reasonable suspicion at that later point, we
affirm.
I.
On the evening of March 30, 2004, four Metropolitan Police
Department officers in an unmarked police car received a radio
lookout about an attempted unauthorized use of a vehicle
(UUV). The radioing officer had tried to stop the suspect’s car,
but the suspect fled the scene. The lookout described the
suspect as a black male, 5’8” in height, weighing 180 pounds,
and dressed in a black coat and blue jeans.
Two blocks from the attempted UUV, at 7:25 p.m.—just
minutes after the lookout—the four officers saw four black men
talking to each other outside a gas station. Tr. of June 21, 2004
Hr’g at 16–17, 21. The district court found that all four men,
one of whom was Appellant Melvin Goddard, were wearing
black coats and blue jeans and that there was a substantial
difference in their heights. United States v. Goddard,
No. 04-214, slip op. at 2 (D.D.C. Dec. 18, 2006) (hereinafter
“Supplemental Findings”); Tr. of June 21, 2004 Hr’g at 83.
Only two were close to 5’8” (one was 5’6” and the other
between 5’6” and six feet), while Goddard and Vaughn Walker,
3
a defense witness, were both over six feet tall. According to one
of the officers, the four men “for the most part” matched the
lookout “as far as the clothes thing, height and weight.” Tr. of
June 21, 2004 Hr’g at 17. The same officer later clarified that
despite his uncertainty about the consistency of the men’s
heights with the lookout description, he decided to approach
them based on “the clothes worn by the defendant and the other
three gentlemen.” Id. at 21–22.
The officers pulled into the gas station, fifteen to twenty
feet away from the group of men. All four officers wore plain
clothes, jackets with an MPD logo, and badges. Their guns and
handcuffs were showing, but the guns were not drawn. Once the
officers pulled into the gas station, Walker began moving away
from the group. As the officers exited their car, Goddard “held
the right side of his waistband, like he was holding . . . a gun.”
Id. at 8. Approaching the group of men, one of the officers
overheard Goddard say he had a gun, whereupon the officer
shouted “gun.” Although Walker’s testimony was less than
clear as to the sequence of events, the district court, contrary to
the dissent’s characterization, see Dissenting Op. at 7–8, found
that Walker was still moving away from the group of men at the
time the officer shouted “gun,” Tr. of June 21, 2004 Hr’g at 81,
84–85 (making this finding shortly after its announcement that
“[t]he court will make the following findings of fact,” and not,
as the dissent suggests, in a separate summary of Walker’s
testimony, see Dissenting Op. at 7–8). Walker testified that the
officers told him to return, at which point he “turned back
around” and was pulled aside by one of the officers. Id. at
59–60. Two of the officers then handcuffed Goddard and
conducted a pat-down, finding a gun in his waistband. At that
point, the officers placed Goddard under arrest. After his arrest
but before he received a Miranda warning, Goddard explained
that he was carrying the gun because he had just gotten out of
jail and had been shot recently.
4
A grand jury indicted Goddard for possession of a firearm
by a convicted felon. 18 U.S.C. § 922(g)(1). Arguing that the
officers lacked reasonable suspicion for the stop, Goddard
moved to suppress the gun and his admission that he owned it.
Although believing it “a close case as to whether these facts
meet the Terry standard,” Tr. of June 21, 2004 Hr’g at 81, the
district court nonetheless found that the officers had reasonable
suspicion to stop Goddard. The court based its conclusion on
two primary circumstances: that the stop occurred two blocks
from and soon after the attempted UUV; and that the men
loosely matched the suspect’s description, given that all four
wore blue jeans and black coats and at least one was close to the
suspect’s height.
After the court denied his motion to suppress, Goddard
pleaded guilty, reserving the right to raise the suppression issue
on appeal. Following oral argument, we remanded the record to
the district court for supplemental findings as to “the sequence
of events surrounding appellant’s stop and seizure, the factors
establishing when the police contact became a stop, and the facts
known to the police officers at those points.” United States v.
Goddard, No. 05-3080 (D.C. Cir. Nov. 9, 2006). In its
supplemental memorandum, the district court made the
following finding: “In this case, the [officers’] ‘contact’ became
a ‘stop’ as soon as the police officers drove up to the gas station
. . . to investigate whether the four African-American men they
saw standing and talking included the [attempted UUV
suspect].” Supplemental Findings at 2.
II.
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons . . . against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause.” U.S. CONST. amend. IV.
5
As an exception to the Fourth Amendment’s warrant
requirement, officers may conduct a brief investigative “Terry
stop” so long as they have “reasonable, articulable suspicion” of
criminal conduct. Illinois v. Wardlow, 528 U.S. 119, 123 (2000)
(citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Terry stops
require only that officers have a “minimal level of objective
justification,” INS v. Delgado, 466 U.S. 210, 217 (1984)—a
standard significantly lower than the probable cause required for
a warrant.
In this case, we face two distinct issues: when the stop
occurred and whether the officers had reasonable suspicion at
that time. Both are questions of law that we consider de novo.
United States v. Maragh, 894 F.2d 415, 417 (D.C. Cir. 1990)
(“[T]he [Supreme] Court has never deferred to the trier of fact
regarding the question of seizure.”); United States v. Christian,
187 F.3d 663, 666 (D.C. Cir. 1999) (applying de novo review to
district court’s determination of reasonable suspicion).
As to the first issue, a stop takes place “[o]nly when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen,” Terry, 392 U.S. at
19 n.16, or, put differently, “only if, in view of all the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave,” California
v. Hodari D., 499 U.S. 621, 627–28 (1991) (alteration in
original) (quoting United States v. Mendenhall, 446 U.S. 544,
554 (1980) (plurality opinion)). “[T]he test must not be what the
defendant himself . . . thought, but what a reasonable man,
innocent of any crime, would have thought had he been in the
defendant’s shoes.” Gomez v. Turner, 672 F.2d 134, 140 (D.C.
Cir. 1982) (quoting Coates v. United States, 413 F.2d 371, 373
(D.C. Cir. 1969)). Under this test, neither the subjective
impressions of the defendant nor the subjective intentions of the
officer determine whether a seizure has occurred. See id. at 143
6
(“[T]he intent of the officer or the reason behind his decision to
approach a pedestrian cannot be the basis upon which we
determine whether a seizure has occurred.”). In deciding
whether a stop has occurred, this circuit has cited the factors
listed by Justice Stewart in United States v. Mendenhall: “the
threatening presence of several officers, the display of a weapon
by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” 446
U.S. at 554; Gomez, 672 F.2d at 144. In addition, we consider
“the demeanor of the approaching officer,” Gomez, 672 F.2d at
144, “whether the officer . . . wore a uniform,” and “the time and
place of the encounter,” United States v. Wood, 981 F.2d 536,
539 (D.C. Cir. 1992). Of course, not all interactions between
police and citizens are stops, as “law enforcement officers do
not violate the Fourth Amendment by merely approaching an
individual on the street or in another public place.” Florida v.
Royer, 460 U.S. 491, 497 (1983); see also United States v.
Nurse, 916 F.2d 20, 23 (D.C. Cir. 1990).
We disagree with the district court that the stop happened
“as soon as the police officers drove up to the gas station.”
Supplemental Findings at 2. By itself, the presence of a police
car is an insufficient show of authority to make a reasonable,
innocent person feel unfree to leave. For example, in Michigan
v. Chesternut, 486 U.S. 567 (1988), where four officers in a
police cruiser accelerated to catch up with a running pedestrian
and drove parallel to him for a short while, the Supreme Court
explained that although the presence of a police car might be
“somewhat intimidating,” such police presence does not
constitute a seizure where the officers did not use their siren or
flashers, did not command the defendant to stop, did not display
their weapons, and did not drive aggressively to block or control
the defendant’s movement. Id. at 569, 575. Similarly, in United
States v. Johnson, 212 F.3d 1313 (D.C. Cir. 2000), we found
7
that no seizure had occurred where police officers drove their
unmarked car into a parking lot twenty-five feet away from the
defendant’s car. Id. at 1317. Here, when the officers drove their
unmarked police car into the gas station, the car was fifteen to
twenty feet away from the group of men, and nothing in the
record indicates that the officers drove aggressively or impeded
Goddard’s movement. Moreover, the fact that the car halted in
the gas station’s entrance way does not suggest that a
reasonable, innocent pedestrian would have felt unfree to leave.
Nor did the stop occur when the police exited their car and
began to approach Goddard and the other three men.
Admittedly, some of the circumstances are suggestive of a stop,
including that four officers were present—all with guns and
handcuffs showing and wearing identifiable MPD jackets and
badges—and that the officers “jumped out” of the car. Tr. of
June 21, 2004 Hr’g at 58. But the presence of multiple officers
does not automatically mean that a stop has occurred. See
Chesternut, 486 U.S. at 575 (finding no seizure where police car
with four officers followed defendant); see also United States v.
Tavolacci, 895 F.2d 1423, 1424–25 (D.C. Cir. 1990) (finding no
seizure where at most two officers were in defendant’s view).
Our cases, moreover, allow police officers to make a
contact—to approach individuals and interact with
them—without reasonable suspicion. See, e.g., Nurse, 916 F.2d
at 23 (finding no stop where officer who identified himself as a
police officer approached and questioned defendant at a taxi
stand); United States v. Winston, 892 F.2d 112, 114, 117 (D.C.
Cir. 1989) (finding no seizure where officer who identified
himself as a police officer approached and asked to speak with
defendant outside of bus station). As we have explained:
[T]he presence of the officer as a figure of
governmental authority does not, by itself,
constitute the “show of authority” necessary to
8
make a reasonable person feel unfree to leave.
There must be some additional conduct by the
officer to overcome the presumption that a
reasonable person is willing to cooperate with a
law enforcement officer. The approach and
direction of a question by a police officer cannot
be, as a matter of fact or of law, a seizure of the
person so approached.
Gomez, 672 F.2d at 142 (footnote omitted). Thus, the fact that
the officers wore MPD gear, including guns and handcuffs, does
not mean that a stop occurred. See United States v. Samuels,
938 F.2d 210, 213–14 (D.C. Cir. 1991) (“Although the visibility
of handcuffs, like the display of a uniform, a badge, or a gun, is
relevant to whether an encounter with police constitutes a
seizure, the passive display of handcuffs, by itself, is not a
sufficient show of authority to cause a reasonable, law-abiding
person to believe his liberty is being restrained.” (citations
omitted)). Contrary to the dissent’s suggestion, we think
Walker’s characterization of the officers as “jump[ing] out” of
the car, even coupled with the car’s presence in the entrance
way, an insufficient show of authority to constitute a stop. See
Dissenting Op. at 6–7, 12–13.
Of course, we can imagine additional circumstances that
might have made a reasonable person in Goddard’s position feel
unfree to leave, such as if the police had run aggressively
towards him. See Gomez, 672 F.2d at 144 (listing officer’s
demeanor as a factor in determining whether a stop had
occurred). But because Goddard made no such showing, we
need not decide whether such circumstances would produce a
different result. See, e.g., Winston, 892 F.2d at 117 (holding that
where “no . . . showing was made” that officer’s action would
make “reasonable, law-abiding person in [defendant’s] position”
feel unfree to walk away, district court erred in finding Fourth
9
Amendment violation); Shell v. United States, 448 F.3d 951, 955
(7th Cir. 2006) (finding no seizure where defendant failed to
show that officers restrained his liberty).
Based on the record before us, the stop occurred when one
of the officers yelled “gun” and told Walker to return to the
group. We have no doubt that a reasonable person would feel
unfree to leave upon hearing officers seven or eight feet away
yell “gun”—a statement sure to arouse the concern of all officers
and civilians in the immediate area—and order one of his
companions to return. See Wood, 981 F.2d at 540 (finding stop
where officer ordered defendant to stop); United States v.
Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996) (finding
seizure where officer ordered defendant’s coworker to “freeze”
when individuals “were only five feet apart and . . . obviously
working together”).
Nor do we have any doubt that by this point—and this is the
second issue we must address—the officers had reasonable
suspicion to stop Goddard. Reasonable suspicion requires that,
based on the totality of the circumstances, an officer have “a
particularized and objective basis for suspecting the particular
person stopped of criminal activity.” United States v. Cortez,
449 U.S. 411, 417–18 (1981). Here, the officers had plenty of
reason to suspect Goddard had a weapon, which Goddard
himself concedes would justify a stop. Oral Arg. at 7:58; see
D.C. CODE § 22-4504 (2001) (prohibiting carrying weapons in
D.C. without a license). After “[holding] the right side of his
waistband, like he was holding . . . a gun,” Tr. of June 21, 2004
Hr’g at 8; see United States v. Brown, 334 F.3d 1161, 1167
(D.C. Cir. 2003) (holding that furtive movements in response to
police presence may create reasonable suspicion), Goddard
declared he had a gun, giving the officers ample grounds for the
Terry stop.
10
Thus, because the officers had reasonable suspicion at the
time of the stop, we affirm Goddard’s conviction.
So ordered.
BROWN, Circuit Judge, dissenting: In America, people who
are peaceably and lawfully minding their own business (or who
seem to be) have the right to be free from arbitrary police
interference. That is the explicit premise of Terry v. Ohio, 392
U.S. 1, 9 (1968) (recognizing the right of every person to be free
from unreasonable governmental restraint, interference, or
intrusion). Forty years later, Terry’s evolution raises troubling
questions. In the crime-plagued, violence-prone, drug-ridden
reality of our urban centers, is reasonable suspicion too high a
threshold; is it too much to ask?
I
The facts, in brief, are as follows. Police were pursuing a
motor vehicle. The driver pulled over and immediately fled on
foot in the dark. Police caught only a fleeting glimpse of the
suspect: a black man, average height and build, wearing blue
jeans and a dark jacket or coat. Not much to go on in a largely
black neighborhood, but police broadcast a “lookout” giving the
description. They reported the man’s height as 5’8” or 5’10”,
and his weight as 180 to 190 pounds. About five blocks away,
Officer Israel James and three other officers were patrolling in
an unmarked Crown Victoria, a car well-known in the area as a
police car. When they heard the report of a black man fleeing,
they drove closer to the site.
Two blocks from where the suspect had fled, the officers
spotted four black men—ranging in height from 5’6” to
6’4”—conversing peaceably in front of a gas station, at least one
of them wearing a black coat.1 These were neighborhood
1
The testimony regarding the clothes the men were wearing is
quite unhelpful. Officer James testified that their clothes “[f]or the
most part” matched the description in the broadcast, Tr. of June 21,
2004 Hr’g at 17, adding that appellant (who is over six feet tall) was
wearing a “[b]lack coat and blue jeans,” id. at 49. At one point, the
trial judge describes the men as wearing “jeans and a dark shirt,” id.
2
residents, who quickly recognized the police car, and one of the
men, Vaughan Walker, wanted nothing to do with the police,
though he was not involved in any criminal activity. Even
before the police stopped, Walker began walking away—but he
didn’t get far. The police pulled their car part way into the gas
station, blocking the entrance, and all four officers
“automatically jumped out,” Tr. of June 21, 2004 Hr’g at 58,
wearing jackets bearing the “MPD” logo, holstered weapons,
and handcuffs. One of the officers told Mr. Walker to stop; the
statement was directed at Mr. Walker, but the message to the
others, including appellant, was clear enough. No one attempted
to flee. As Officer Figgeroa approached appellant, appellant
said, “I have a gun,” or words to that effect. Officer Figgeroa
immediately yelled out “gun,” alerting the other officers, who
restrained appellant without difficulty and then lifted his shirt,
revealing a handgun tucked into his pants. However, the officer
who had earlier broadcast the “lookout” could not identify
appellant as the fleeing suspect.
Appellant was arrested, and charged with unlawful
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
He moved to suppress the physical evidence and his statements,
claiming an illegal stop in violation of his Fourth Amendment
rights. The district court held a suppression hearing and denied
the motion. The court’s analysis makes clear that, in the court’s
view, a Terry stop occurred as soon as the officers arrived on the
scene. But the court concluded the officers had sufficient
grounds for a stop and frisk based on the broadcast description
of the fleeing suspect. Appellant then pled guilty, preserving his
right to appeal the Fourth Amendment issue.
at 83; at another point, “blue jeans and a dark jacket,” id. at 86. In
neither case is the court’s statement supported by specific testimony.
3
We heard argument in appellant’s appeal on October 16,
2006, and on November 9, 2006, we remanded the record to the
district court, asking the court to clarify the exact “sequence of
events surrounding appellant’s stop and seizure, the factors
establishing when the police contact became a stop, and the facts
known to the police officers at those points.” United States v.
Goddard, No. 05-3080 (D.C. Cir. Nov. 9, 2006). The district
court responded with an express finding that the Terry stop
occurred “as soon as the police officers drove up to the gas
station at 2830 Sherman Avenue to investigate.” United States
v. Goddard, No. 04-214, slip. op. at 2 (D.D.C. Dec. 18, 2006).
II
Before Terry, warrantless seizures were deemed reasonable
only if based on probable cause. Terry carved out a narrow
exception to the probable cause requirement, allowing police
officers to make limited intrusions if the officer reasonably
suspects criminal activity is afoot or public safety is at risk.
Thus, before a police officer initiates an investigative stop, the
officer must, based on an assessment of the whole picture, “have
a particularized and objective basis for suspecting the particular
person stopped of criminal activity.” United States v. Cortez,
449 U.S. 411, 417-18 (1981). The Court adopted a two-part
inquiry for evaluating the reasonableness of an investigative stop
involving something less than probable cause: (1) Was the
officer’s action justified at its inception? and (2) Was it
reasonably related in scope to the circumstances that justified it
in the first place. Terry, 392 U.S. at 20-21; United States v.
Sharpe, 470 U.S. 675, 682 (1985).
It is true, of course, that as a standard “reasonable
suspicion” is necessarily imprecise. But no matter how low the
bar is set, generic racial descriptions devoid of distinctive
individualized details cannot, without more, provide police
4
adequate justification for a Terry stop. It is not enough to share
the same racial characteristics as a suspect and be in the vicinity.
The “lookout” broadcast at issue here described only a
black male, 5’8” to 5’10” in height, about 180 to 190 pounds,
wearing a black jacket or coat and blue jeans. The broadcast
went out after nightfall, and the officer broadcasting the
description made clear the suspect had fled before officers got
a good look at him. Therefore, the arresting officers were on
notice that the description might be unreliable, a point which
they readily acknowledged. At best, one can speak only in the
most approximate terms about the height and weight of a man
seen running away in the dark, and in those circumstances, any
dark-colored coat or jacket might appear to be black. In any
case, the officers were definitely not looking for four young
men, ranging in height from 5’6” to 6’4”, conversing peaceably
in front of a gas station. The police can articulate no basis for
targeting these men except they were black, they were casually
clothed, and they were in the general vicinity of the fleeing
suspect. The officers conceded that none of these men seemed
agitated, nor did any show signs of recent physical exertion,
such as labored breathing or sweating. Apparently, a “lookout”
broadcast encompassing virtually any casually dressed black
man in the vicinity made all black males fair game. Such a
generic description should never be a sufficient basis for a Terry
stop.
Though the cases in this circuit are very deferential to the
police, as is appropriate, none stands on as thin a record as this
one. Our cases establish, as they should, the general rule that
when a police officer decides to initiate a Terry stop based
solely on a third-party description, that description needs to be
specific enough to differentiate the suspect from other people
who are in the vicinity. Hence, in a case involving a black
fugitive in a predominantly black neighborhood, the officer must
5
have something more to go on than race, gender, and standard
street-clothes. See United States v. Davis, 235 F.3d 584 (D.C.
Cir. 2000); United States v. Smart, 98 F.3d 1379 (D.C. Cir.
1996); United States v. Simpson, 992 F.2d 1224 (D.C. Cir.
1993). That rule is not satisfied in our case, where the facts are
extreme enough to debase the rule and considerably extend our
holding in Davis.
III
A
The majority argues the Terry stop did not occur here until
after appellant admitted he had a gun. Usually, of course, a
Terry stop occurs only when police actually physically restrain
a person or make some verbal statement indicating the person is
not free to leave. A verbal statement, however, is not the only
way to communicate that message; a “show of authority” can
also effect a detention. Terry, 392 U.S. at 19 n.16. In the latter
case, the applicable standard “is an objective one: not whether
the citizen perceived that he was being ordered to restrict his
movement, but whether the officer’s words and actions would
have conveyed that to a reasonable person.” California v.
Hodari D., 499 U.S. 621, 628 (1991). “[A] person has been
‘seized’ within the meaning of the Fourth Amendment only if,
in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
“[W]hat constitutes a restraint on liberty prompting a person to
conclude that he is not free to ‘leave’ will vary, not only with the
particular police conduct at issue, but also with the setting in
which the conduct occurs.” Michigan v. Chesternut, 486 U.S.
567, 573 (1988).
6
Here, as noted, the district court made a determination that
the Terry stop occurred “as soon as the police officers drove up
to the gas station.” In other words, in the district court’s view,
the circumstances at that moment were such that a reasonable
person would not have felt free to leave. Generally, we accept
the district court’s findings of fact as true unless clearly
erroneous, but the question of when a person is seized for Fourth
Amendment purposes is a mixed question of fact and law. The
historical facts are subject to the clearly erroneous standard of
review, Ornelas v. United States, 517 U.S. 690, 699 (1996), but
the ultimate conclusion as to whether the facts constitute a
Fourth Amendment seizure is a legal question, id. In some
cases, however, the district court’s factual findings present only
a general sketch, and other findings remain implicit in the
court’s ultimate conclusion. For this reason, we must “give due
weight to inferences drawn from [the findings] by resident
judges.” Id. Therefore, it does not suffice in this case for us to
consider only the court’s express findings; we must also
consider the entire record, reading the evidence in a way that
favors the court’s conclusion as to when the seizure occurred.
B
According to the record before us, four officers pulled up in
a car known in the neighborhood to be a police car. They
brought the car only part way into the gas station, parking so as
to block the entrance, and all four officers jumped out, wearing
clothing marked “MPD” and bearing visible weapons. Walker
testified he had seen police officers “jump out” of the same car
on numerous prior occasions. Tr. of June 21, 2004 Hr’g at 57.
His use of the slang expression “jump out” conveys his
impression that these four officers did not calmly exit the
vehicle in order to ask a few questions. Rather, Walker’s
phrasing indicates a coordinated police action—or, to put the
7
point in street terms, a bust was going down. This was not a
casual contact, and these men were not free to walk away.
The fact that Walker tried to leave and the police instructed
him to return only confirms this conclusion. See United States
v. Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996)
(ordering a person to “freeze” effects a seizure of a nearby
associate). Walker testified that he began to walk away while
the police were still in the car, Tr. of June 21, 2004 Hr’g at 67-
68, and he did not get very far before being told to stop, id. at
69-70. Also, the sequence of Walker’s narrative indicates police
told him to stop before they confronted appellant. Id. at 58-64.
The most natural conclusion, then, is that the police told Walker
to stop as they were emerging from the car or immediately
thereafter.
Contrary to the majority’s assertion, see maj. op. at 3, the
record contains no explicit finding by the district court that
Officer Figgeroa had already yelled “gun” when police
instructed Walker to stop and return. The court does state that,
at the time Officer Figgeroa yelled “gun,” Walker was “walking
away” with “his back towards” the others, Tr. of June 21, 2004
Hr’g at 84, but the court may have been referring to the fact that,
after police told Walker to return, they then instructed him to go
over “[t]owards the rail, in between the pay phone and the air
pump,” id. at 60-61. Moreover, in the passage the majority
references, the district court was not making a finding but only
summarizing Walker’s testimony. The court introduced this
passage by stating that Officer James’s testimony “was
corroborated by the testimony of Mr. Walker.” Id. at 84
(emphasis added). The court then expressly referred to “notes”
the court had taken of Walker’s testimony and, in that context,
made the comment the majority calls a finding. Id.
Significantly, the court’s notes of Walker’s testimony were
apparently inaccurate, for Walker never actually stated that the
8
gun was found while he was walking away. See id. at 68-69. In
short, the court’s asserted “finding” is ambiguous at best, and in
any case, the record contains no evidence to support it.
In addition, the fact that appellant blurted out that he had a
gun evidences his subjective impression that the police were
going to search him, and the officers confirmed that they did not
stop merely to ask these individuals what, if anything, they
might have seen. Rather, Officer Israel James testified that the
purpose in stopping was “to attempt to determine whether or
not . . . one of the individuals was the one who actually fled the
scene.” Id. at 7. The subjective intent of the police officer is
perhaps not determinative in this context, Mendenhall, 446 U.S.
at 554 n.6, but it does tend to support the district court’s
conclusion that the police conveyed the message, through their
actions and demeanor, that no one was free to leave. Thus, I
find the evidence easily supports the court’s ultimate conclusion
as to when the seizure occurred.
True, the district court concluded the seizure occurred “as
soon as the police officers drove up,” whereas it more accurately
occurred when the police drove up, jumped out, and told Walker
not to leave, but the court’s statement can reasonably be taken
in a general sense. The court’s meaning was only that the
seizure did not occur later, when appellant admitted to having a
gun. This interpretation of the court’s statement is consistent
with the court’s application of Terry, in which the court focused
solely on events as they existed prior to appellant’s admission.
IV
Not all encounters with police implicate the Fourth
Amendment; rather, different police-citizen interactions trigger
different standards. Consensual encounters are entirely outside
the scope of the Amendment. Investigative
9
detentions—commonly known as Terry stops—must be
supported by reasonable suspicion of criminal activity.
Custodial arrests require probable cause.
Terry was a sensible decision. It recognized that armed and
dangerous offenders present a serious threat to the safety of both
the police and the public, and it allowed a greater role for street
savvy and police judgment. The holding in Terry permits police
officers to take reasonable steps, based on their experience and
expert training, to prevent a crime before it occurs and to
maintain safety, justifying their actions with only a “reasonable,
articulable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000) (characterizing Terry’s holding). But Terry was never
intended to upend completely the warrant and probable cause
requirements, and it does so if the lower courts give police a free
hand to search whenever there is the coincidence of a black
man’s recent flight from the police and another black man’s
presence in the vicinity. This lax standard perverts the core
requirement that police have a “particularized and objective
basis for suspecting the particular person . . . of criminal
activity.” Cortez, 449 U.S. at 417-18.
I have already stated my view that the stop in this case
occurred when the police jumped out of their vehicle and told
Walker not to leave. This case, however, illuminates a broader
issue. The majority’s analytic approach turns almost entirely on
the question of when the stop occurred. Having identified the
stop (“when one of the officers yelled ‘gun,’” maj. op. at 9),
everything preceding it passes out of the analysis,
comprehended under the familiar axiom that officers are free “to
make a contact—to approach individuals and interact with
them—without reasonable suspicion.” Id. at 7. But Terry
“emphatically reject[s]” a logic that would “isolate from
constitutional scrutiny the initial stages of the contact between
the policeman and the citizen.” 392 U.S. at 16-17. Rather,
10
Terry limits “the initiation,” as well as “the scope,” of
investigative detentions. Id. at 17. In my view, truly consensual
conversation (“Have you seen this man?”) in which police are
on equal terms with ordinary citizens is very different from a
confrontation in which police target a particular person because
they suspect him to be the criminal described in a police
broadcast. It makes sense for the Fourth Amendment not to
regulate casual conversation between police and citizens. But
how could the Fourth Amendment stay dormant when police
confront someone because they suspect him to be a criminal?
Targeted police investigation activates the Amendment. In the
instant case, the confrontation began as an investigative stop; the
police claimed a particularized suspicion about four specific
men—a claim that could not conceivably be supported by the
objective information available. Not even the majority claims
the initial investigation was justified. Rather, the majority
employs an analytic approach that makes justifying the
confrontation constitutionally unnecessary. This is certainly
consistent with the trend of recent cases applying Terry, but I
think it is an error. When police focus their investigative
attention on someone and choose to confront that person, they
must have a constitutionally adequate reason for doing so.
Nothing in Terry suggests that the police can employ arbitrary
criteria to select their targets and then artificially create the
circumstances that justify application of the Terry exception.
Terry itself acknowledged the unacceptable social cost of
Fourth Amendment violations, discussing “police-community
tensions in the crowded centers of our Nation’s cities” and the
“wholesale harassment by certain elements of the police
community” of minorities, “particularly Negroes.” Id. at 12, 14.
There are two specific aspects to this social problem. First,
inappropriate use of Terry in America’s minority neighborhoods
offends the principle of equal justice under law. For, as we all
know, courts would not approve the search of four men in
11
business attire, conversing peaceably in front of a Starbucks, if
the only basis for the search was a “lookout” broadcast
specifying a white man, medium height and build, wearing a
business suit. Second, excessive Terry searches set poor black
communities and the police on opposing sides of pitched battle.
At a minimum, these perpetual intrusions leave young black
men feeling bruised and insulted. Often enough, the anger leads
to confrontations with the police, sometimes with violent or
lethal consequences. As Terry put it, when police officers use
stop-and-frisk tactics against minorities to “maintain the power
image” of the officers, the aim is “sometimes accomplished by
humiliating anyone who attempts to undermine police control of
the streets.” Id. at 15 n.11 (citation and internal quotation marks
omitted). Is the even-handed application of the Terry standard
too much to ask?
The facts of this case lead me to wonder if Terry’s prudent
constraints on police conduct have been forgotten in our
frustration over city life plagued with drug trafficking and
violent crime. As a result, what we are now tempted to enforce
is not Terry but the rule that, in a high-crime neighborhood,
being young, male, and black creates reasonable, articulable
suspicion. See David A. Harris, Factors for Reasonable
Suspicion: When Black and Poor Means Stopped and Frisked,
69 IND. L.J. 659 (1994). Here, four men were stopped. There
was no constitutionally adequate justification for the initial
confrontation. Three of them were innocent of criminal activity,
but nevertheless faced the indignity of being placed against a rail
and searched. Vaughan Walker testified he started walking
away as soon as he saw the police car because he “didn’t feel
like being harassed.” The lesson of today’s decision is clear: he
has no choice.
When the ostensibly neutral principles set forth in Terry are
thus applied, what was created to be a carefully outlined
12
exception to the Fourth Amendment’s warrant and probable
cause requirements is transformed into a general warrant—a
police license to search out crime by playing the odds, relying
on hunch, intuition, street smarts, and stereotypes. The odds are
good, although the crimes charged are too often unrelated to the
“suspicion” that led to the stop. After all, in the instant case, a
search of four almost randomly selected black men in a high-
crime neighborhood turned up one with a gun—a 25% success
rate. The instances where a search discloses no criminal activity
are brushed aside and forgotten—except in the neighborhoods
where the sense of unfairness and frustration festers and swells
and then seeps out in little acts of defiance or mindless eruptions
of rage.
Acknowledging that no opinion “can comprehend the
protean variety of the street encounter,” the Terry court left
intact the courts’ “traditional responsibility to guard against
police conduct which is overbearing or harassing, or which
trenches upon personal security without the objective
evidentiary justification which the Constitution requires.” 392
U.S. at 15. If this court is ever going to draw such a line, this is
the case in which to draw it.
V
I am not advocating here a broad new rule of constitutional
law that will inhibit police. Police are free to contact members
of the public without every contact being construed as a seizure.
See, e.g., United States v. Nurse, 916 F.2d 20, 23 (D.C. Cir.
1990). Moreover, the presence of two or more officers does not,
by itself, transform a contact into a seizure. See, e.g., United
States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir. 1990). The
case before us presents very specific circumstances: The police
targeted these men in response to a specific broadcast about a
fleeing suspect. They pulled part way into the gas station,
13
blocking the entrance; four officers jumped from the car at once,
wearing clothing marked “MPD”; and they immediately told
someone who was attempting to leave to return. That is not how
one would expect police to proceed when they are merely
making inquiries, and it is very different from the facts of cases
in which police did no more than make their presence felt. See,
e.g., Chesternut, 486 U.S. at 569, 575; United States v. Johnson,
212 F.3d 1313, 1317 (D.C. Cir. 2000). Most important, we have
here a finding by the district court that the police conduct would
have communicated to a reasonable person at the scene that he
or she was not free to leave, and the best interpretation of the
evidence in the record reasonably supports that legal conclusion.
We should adopt the district court’s finding that the Terry
stop occurred when four police officers pulled into the entrance
of the gas station, sprang simultaneously from their car, and
instructed Walker not to leave. We should then reject the
court’s legal conclusion that the generic description of a
medium-sized black man fleeing justifies the Terry stop that
occurred here. By the district court’s logic, police would have
been able to stop virtually every casually dressed black man
within a sixteen-block radius of the crime. Because the meager
facts available to the officers did not come close to justifying the
initial contact, the fruit they subsequently shook out of the
poisonous tree should be excluded. Is that too much to ask? It
is what the constitution requires; it is just enough.
Accordingly, I respectfully dissent.
TATEL, Circuit Judge, concurring: I share many of the
dissent’s concerns about how courts have applied Terry in high-
crime minority communities, see Dissenting Op. at 10–12, and
would welcome an opportunity to explore those concerns in
depth. This case, however, cannot provide that opportunity
because the problems so well articulated by the dissent flow
directly from a series of Supreme Court and D.C. Circuit
decisions that bind this panel and, as the dissent acknowledges,
determine the outcome of the issues before us. See Dissenting
Op. at 10 (characterizing majority’s approach as “consistent
with the trend of recent cases applying Terry”). Specifically:
(1) The stop did not occur when the police exited their car. See
Michigan v. Chesternut, 486 U.S. 567, 569, 575 (1988)
(finding no seizure where police car with four officers
pursued defendant); Florida v. Royer, 460 U.S. 491, 497
(1983) (holding that officers may approach an individual in
public without effecting a seizure); United States v.
Samuels, 938 F.2d 210, 213–14 (D.C. Cir. 1991) (noting
that mere visibility of officer’s handcuffs, uniform, badge,
or gun is an insufficient show of authority for a seizure);
United States v. Gomez, 672 F.2d 134, 142 (D.C. Cir. 1982)
(“There must be some additional conduct by the officer
[beyond the fact of his presence] to overcome the
presumption that a reasonable person is willing to cooperate
with a law enforcement officer.”); Maj. Op. at 6–8. If the
stop had occurred when the police exited their car, I would
agree with the dissent that the police lacked reasonable
suspicion. See Dissenting Op. at 4–5.
(2) The stop instead occurred when one of the officers yelled
“gun” and told Walker to return to the group. See United
States v. Wood, 981 F.2d 536, 540 (D.C. Cir.1992) (finding
sufficient show of authority for a stop where officer ordered
defendant to stop); United States v. Alarcon-Gonzalez, 73
F.3d 289, 292 (10th Cir. 1996) (finding seizure of defendant
2
where officer told defendant’s companion to freeze); Maj.
Op. at 9.
(3) At that point—when the officer yelled “gun”—the police
had reasonable suspicion to stop Goddard. See D.C. CODE
§ 22-4504 (2001) (requiring a license to carry a handgun);
United States v. Cortez, 449 U.S. 411, 417–18 (1981)
(holding that reasonable suspicion exists where an officer
has “a particularized and objective basis for suspecting the
particular person stopped of criminal activity”); United
States v. Brown, 334 F.3d 1161, 1167 (D.C. Cir. 2003) (“It
is well settled that an individual’s furtive movements may
be grounds for reasonable suspicion and fear, justifying a
Terry stop and search.”); Maj Op. at 9.