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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-0143
D.W., APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2017-CF2-014804)
(Robert A. Salerno, Judge)
(Argued en banc December 10, 2025 Decided July 2, 2026)
Jaclyn S. Frankfurt, Public Defender Service, with whom Samia Fam, Dennis Martin, KC Bridges, Mikel-Meredith Weidman, and Victoria Hall-Palerm, Public Defender Service, were on the briefs, for appellant.
Mark Hobel, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney at the time the brief was filed, Matthew M. Graves, United States Attorney at the time the supplemental brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Amy Joy Thomas, Chrisellen R. Kolb, and John P. Mannarino, Assistant United States Attorneys, were on the briefs, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, BECKWITH, EASTERLY, MCLEESE, DEAHL, HOWARD, and SHANKER, Associate Judges, and GLICKMAN, Senior Judge.
2
Opinion for the court by Associate Judge DEAHL, with whom BLACKBURNERIGSBY, Chief Judge, EASTERLY, HOWARD, and SHANKER, Associate Judges, and GLICKMAN, Senior Judge, join.
Opinion concurring in the judgment by Associate Judge MCLEESE at page 28.
Dissenting opinion by Associate Judge BECKWITH at page 44.
DEAHL, Associate Judge: Appellant D.W. was standing with a group of six
other people outside the Geraldine apartment complex one afternoon. The group was
hanging out near one of the complex’s breezeways, near the end of a long walkway
that ran about 100 feet to the public sidewalk in front of the complex. A police cruiser
with four officers stopped near the entrance to that walkway, and two uniformed
officers exited the car and started toward it.
Within two or three seconds, right as the officers stepped onto the walkway,
D.W. and one of the other men in the group saw the approaching officers and took
off running. The officers chased D.W. for about a minute, following him through a
parking lot, down an alley, and through a nearby home’s rear and side yard to a tall
chain-link fence that D.W. scaled. The initially pursuing officers gave up the chase
at that point, but a different officer jumped the fence after D.W. and managed to grab
his leg as he was trying to hop over a second tall fence. D.W. dropped a gun as he
was being apprehended. D.W. was charged with several firearm-related offenses
and, after the trial court denied his motion to suppress the gun, he was convicted of
all counts at a stipulated trial. D.W. appealed his convictions, and a panel of this
3
court vacated them on the grounds that officers lacked reasonable suspicion to seize
D.W. See D.W. v. United States, 339 A.3d 175, 182-83 (D.C. 2025). This court sua
sponte granted en banc rehearing and vacated that opinion. D.W. v. United States,
341 A.3d 27, 27 (D.C. 2025).
We now hold that the officers had the requisite reasonable articulable
suspicion to justify their seizure of D.W. when they grabbed his leg. We reach that
conclusion largely because D.W. ran upon the mere sight of police officers
approaching from a substantial distance, with little indication that they were intent
on stopping, searching, or even questioning him in particular. D.W. had not been
singled out in any way and, to that point, had little reason to think he could not
simply go about his business. The desperation of D.W.’s flight, in which he scaled
two tall fences, and the testimony that at least “five to ten” “violent crimes” occur
per year at this particular apartment complex further supports our conclusion.
Considering those circumstances in their totality, we conclude that D.W.’s seizure
was supported by reasonable articulable suspicion, so that the trial court correctly
denied his suppression motion. We thus affirm D.W.’s convictions.
I. Background
One August afternoon, several uniformed officers in the Metropolitan Police
Department’s Crime Suppression Team drove to the Geraldine apartment complex
4
in Southeast D.C. on “routine patrol” as part of their “normal, everyday operations.”
The officers were not responding to a specific call or report of criminal activity.
They were there “just to check the area” for “any type of illegal activity,” as they
had done before on numerous occasions, believing the Geraldine to be a “high-crime
area.” A police cruiser with four officers in it stopped at the entrance of a long
walkway that ran from the sidewalk to the entrances of three apartment buildings in
the complex. The walkway also led to a breezeway—a passageway through two of
those buildings—that was a bit past those building entrances. D.W. was hanging out
with six other individuals near that breezeway. There did not appear to be any other
people outside in that part of the complex. Officers Dmitry Gendelman and John
Bewley exited the car and approached the walkway.
Below is a screenshot from Officer Gendelman’s body worn camera footage
just before D.W. and another man broke off from the group and sprinted away from
the officers. To highlight a few details, two of which come into clearer focus as the
video progresses: (1) Bewley is in the forefront of the footage a few feet from the
walkway; (2) one entrance to the apartment buildings is to the left of the walkway
about halfway up, a second is straight ahead, and a third is to the right, though it is
obscured by some bushes here; and (3) several individuals are gathered near the
breezeway, which is to the left of the entrance that is straight ahead, though they are
barely visible in this screenshot. Gendelman is about 100 feet from the breezeway at
5
this point in our estimation, see infra note 3, though there was no finding about the
precise distance in the record aside from testimony that the officers were “pretty far
away.” D.W., 339 A.3d at 178.
Within about a second of the above—as the officers stepped onto the
walkway—D.W. and an otherwise unidentified man in a blue shirt took off running
through the breezeway, with D.W. running at a “full sprint.” The two officers ran
after the men. As the officers approached the breezeway, four of the five people who
remained did not react in any noticeable way, but one man lifted his shirt as if to
show that he had nothing in his waistband. The officers ran by that group and through
the breezeway, then chased the fleeing men through a small parking lot, down an
6
alley, and through the rear and side yard of a nearby home. D.W. effectively eluded
Gendelman and Bewley after about forty-five seconds when he jumped a tall chainlink fence that was about six feet high.
At that point, Officers Gendelman and Bewley both turned their attention to
the man in the blue shirt, who had stopped running near the front door of a nearby
house and put his hands up as the officers apprehended him. Gendelman handcuffed
the man, lifted his shirt, patted down his “crotch area” for weapons, and left him
handcuffed in public view as officers canvassed the area for any discarded
contraband. That man was ultimately released after officers apparently found
nothing incriminating on him or in his flight path.
Turning back to D.W.: While he escaped Gendelman and Bewley by scaling
a tall chain-link fence, a third officer on the scene, Krishaon Ewing, was not so easily
evaded. Ewing had arrived at the complex in a second cruiser parked outside the
view of those in the breezeway. After hearing calls about the ongoing chase, Ewing
ran through the complex and got close to D.W. just after he climbed over the first
tall fence. Ewing then likewise scaled the fence and chased D.W. for another fifteen
seconds or so until D.W. tried to scale a second tall fence. Ewing grabbed D.W.’s
right leg as he reached the top of that fence and repeatedly shouted “Stop” and “I’m
not letting go,” at which point D.W.’s pants got snagged on the fence. Ewing then
7
saw D.W. pull out a firearm from his pants and drop it on the ground. Several other
officers caught up to the pair within seconds, helped dislodge and apprehend D.W.,
and recovered the firearm that D.W. dropped.
At the suppression hearing, Officers Bewley and Ewing testified to the above
facts and to their views that the Geraldine complex was a “high-crime area.” Bewley
did not know exactly how many violent crimes had occurred at the complex in the
previous year or two but agreed it was “common knowledge” among MPD officers
that it was a high-crime area, which he described as an area where “five to ten” or
more “violent crimes” occur per year. According to Bewley, the complex was
“known for drug trafficking, drug sales and gun violence,” and he had personally
responded to reports of homicides and assault with a dangerous weapon there. When
asked if he would consider the Geraldine a high-crime area if “hypothetically” there
were only “four violent crimes” there in the past year, Bewley said “[n]o.”
Bewley also testified that he had performed searches of men at the complex
before and that those searches typically involved checking their “crotch area” in the
same manner that Gendelman had searched the man in the blue shirt before releasing
him. Bewley further agreed that suspects who are stopped might be handcuffed and
detained in plain view of the public, as the man in the blue shirt was, and forced to
wait there for “possibly” thirty minutes, and “quite possibly” an hour or more if
8
that’s how long it took to complete a sweep of the surrounding area. Bewley also
agreed it was “typical for some men” to put their arms out in a T-shape or lift their
shirts when officers approach them at the Geraldine.
As for Ewing, he had made “a lot of arrests” and recovered “numerous”
firearms and narcotics at the complex in the past, and he said it had a “reputation”
as a high-crime area, which he described as an area where officers “consistently do
drug busts . . . [and] recover firearms” and where “multiple shootings and stabbings
have occurred.” Like Bewley, Ewing had seen people at the Geraldine lift their shirts
to expose their waistbands in response to approaching officers before, though he
would not venture a guess about how many times he had seen that behavior. While
he testified that there were some generic “complaints” about “drug activity” in front
of the complex, he did not know if there were any complaints on the day D.W. was
arrested.
According to Ewing, when he first arrived at the complex, he began speaking
to people mingling outside about those generic complaints. As depicted in Ewing’s
body worn camera footage, which initially captured no audio, three people in the
area where he arrived simply went about their business with no apparent reaction to
him. Ewing then approached another group of four people a bit further down the
block. One man in that second group, after some verbal exchange with Ewing, put
9
his arms straight out to his sides (forming a T-shape) just as Ewing’s camera began
capturing audio. The audio picks up as Ewing says “I’m gonna check and make sure
alright,” suggesting that Ewing had just asked if the man had any weapons on him,
and the man had answered in the negative while holding his arms out to submit to a
patdown search. Within a second, before Ewing could conduct that search, Ewing
heard another officer’s calls indicating there was a chase in the back of the complex.
Ewing took off running toward it and eventually caught D.W., as described above. 1
After hearing the testimony and reviewing the body worn camera footage, the
trial court denied D.W.’s motion to suppress, calling it a “very close case.” The court
found that D.W. was seized when Officer Ewing grabbed his leg, so that the relevant
question was whether officers had reasonable articulable suspicion to seize him at
that point. The court found that the officers had that requisite suspicion, stressing
three factors: (1) D.W.’s “immediate and headlong” flight upon the “mere sight of
police”; (2) the fact that his flight was “sustained over a distance” with D.W.
1
D.W. presented one witness of his own at the suppression hearing—a defense investigator. She testified that, based on public crime data, there had been no homicides within 1,000 feet of the Geraldine in the year before D.W.’s arrest, and there had been only one homicide—a stabbing—in the previous three years. The investigator focused her search exclusively on homicides near the Geraldine, however, and she did not look up any information about the prevalence of other violent crimes, gun arrests, or drug offenses at or near the complex, so the trial court found her testimony was of little import.
10
“jumping fences along the way in an apparent desperation to escape”; and (3) the
officers’ testimony about the Geraldine being a “high-crime area.”
The trial court denied D.W.’s suppression motion and convicted him of all
counts at a stipulated trial. He now appeals those convictions, challenging the denial
of his suppression motion.
II. Analysis
The only issue in this case is whether the officers had reasonable articulable
suspicion to seize D.W. when Officer Ewing grabbed his leg. We review that
question de novo and defer to the trial court’s factual findings unless they are clearly
erroneous, though our review of the record is not limited to the trial court’s express
findings. See Mayo v. United States, 315 A.3d 606, 616-17 (D.C. 2024) (en banc).
That is, in addition to those findings, we may “examine[] other record evidence
presented at a suppression hearing to determine whether the government proved that
a defendant’s constitutional rights were not violated.” Id. at 617.
Police officers may lawfully stop a person under the Fourth Amendment if
they have “reasonable suspicion supported by specific and articulable facts that the
individual is involved in criminal activity.” Id. at 620 (quoting Golden v. United
States, 248 A.3d 925, 933 (D.C. 2021)). Although reasonable articulable suspicion
11
requires “considerably less than proof of wrongdoing by a preponderance of the
evidence,” id. (quoting Kansas v. Glover, 589 U.S. 376, 380 (2020)), officers must
articulate more than an “inchoate and unparticularized suspicion or hunch of
criminal activity,” Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (quoting Terry
v. Ohio, 392 U.S. 1, 27 (1968)). Reasonable suspicion is based on the totality of the
facts available to the officers at the moment of the seizure. Mayo, 315 A.3d at 620
(citing Terry, 392 U.S. at 21-22). When assessing the totality of the circumstances,
we are required “to consider ‘the whole picture,’” cognizant that “the whole is often
greater than the sum of its parts—especially when the parts are viewed in isolation.”
District of Columbia v. R.W., 146 S. Ct. 1069, 1072-73 (2026) (per curiam) (quoting
District of Columbia v. Wesby, 583 U.S. 48, 60-61 (2018)).
We agree with the trial court that three factors, when taken together, provided
officers with the reasonable articulable suspicion necessary to justify their seizure of
D.W. They are: (1) D.W.’s headlong flight upon the mere sight of officers headed in
his general direction from a substantial distance, with no indication that they were
focused on him in particular or that he would not be allowed to go about his business;
(2) the officers’ testimony about criminal activity at the Geraldine complex; and
(3) the desperation evinced by D.W.’s protracted and somewhat treacherous flight,
including his successful jumping of one tall fence and thwarted scaling of another.
12
The first factor does the heavy lifting in our analysis, while we accord substantially
less weight to the other two factors.
Before fleshing out the importance of those factors, and the counterpoints that
D.W. offers, we first provide a primer on this court’s recent en banc opinion in Mayo.
The parties agree that Mayo is central to this appeal.
A. Mayo v. United States
D.W.’s principal argument is that “Mayo requires reversal” of his convictions
because it established that headlong flight in an area that officers generically
describe as “high crime” cannot, without more, provide reasonable articulable
suspicion for a seizure. That is too sweeping a reading of Mayo, which repeatedly
stressed that the “context” of the flight weighs heavily in assessing how
incriminating it is, Mayo, 315 A.3d at 612, 623, 625-27, 634, as we will further
explain below.
In Mayo, three officers in MPD’s Gun Recovery Unit, or GRU, pulled their
unmarked vehicle into an alley in the Kenilworth neighborhood, where a group of at
least five people were hanging out. Id. at 612-13. As with the present case, the
officers were not responding to any report of criminal activity and did not see any
criminal activity afoot. Id. at 613. At least one of the officers, while still sitting in
13
his vehicle, immediately focused his attention on Mayo, who had “disengaged” from
the core group and begun talking “with a man in a wheelchair” nearby as the officers
pulled their vehicle up. Id. While Mayo had his back to the officers so that they
“could not actually observe Mr. Mayo’s hands,” Mayo’s arm movements suggested
his “hands were moving somewhere in front of him near the waistband level.” Id. at
623-24. That raised the officers’ suspicions. The three officers then exited their car
as the entire group casually dispersed in reaction to their presence. Id. at 614, 622.
Upon exiting their car, the three officers immediately “singled Mr. Mayo out
from the already-dispersed group,” with two officers walking directly toward Mayo,
and the third officer walking parallel to him in a flanking maneuver. Id. at 628
(describing “two officers directly behind Mr. Mayo and another taking a parallel
path”). Mayo walked away from the officers at first, just as the other individuals in
the alley had done. Id. at 613, 628. Undeterred, the officers “closed in on him” and
said: “Hey, we just want to talk. We just want to talk to you. Do you have any guns?”
Id. at 628. At that point, Mayo ran away from the converging officers and one of the
officers leapt at him and “managed to trip up one of Mr. Mayo’s feet,” which
constituted the relevant seizure in need of justification in Mayo. Id. at 613.
In analyzing the extent to which those facts contributed to reasonable
articulable suspicion, we stressed that flight’s incriminating weight “depends on
14
context.” Id. at 626; see also id. at 627 (“[W]e consider to what degree Mr. Mayo’s
flight, considered in context, could have been reasonably interpreted by the officers
as consciousness of guilt.”). The relevant context in Mayo was that, just prior to
Mayo’s flight, the “officers took a series of actions that they should have reasonably
understood to communicate to a person in Mr. Mayo’s position that they planned to
stop him” with no legal justification for doing so, despite his initial attempt to simply
walk away. Id. at 628. That context severely mitigated any consciousness of guilt
that could have been inferred from Mayo’s flight. See id. at 627-28. And the fact that
Mayo had initially walked away from officers likewise did not “significantly bolster
the government’s showing of articulable suspicion” because that was merely an
attempt by Mayo “to exercise his right not to participate in an encounter with police
officers.” Id. at 622 (quoting Bennett v. United States, 26 A.3d 745, 753 (D.C.
2011)); see also Brown v. United States, 590 A.2d 1008, 1019 (D.C. 1991) (“Citizens
have no legal obligation to talk to the police.”).
We further explained that those facts were “nothing like” the facts in
Wardlow, where the Supreme Court held there was reasonable articulable suspicion
to seize a fleeing suspect after he “took one look at police officers” driving by him
in a police caravan “and ran.” Mayo, 315 A.3d at 627-28 (discussing Wardlow, 528
U.S. at 121-22). Mayo stressed that “[f]light is not merely a box that, once checked,
automatically justifies a stop.” Id. at 625 (quoting Posey v. United States, 201 A.3d
15
1198, 1204 (D.C. 2019)); see also id. (“[F]light cannot imply consciousness of guilt
in all cases.” (quoting Miles v. United States, 181 A.3d 633, 641 (D.C. 2018))).
Unlike in Wardlow, where the officers did not seem to be focused or converging on
Wardlow before he fled, the officers in Mayo “had communicated [to Mayo] that
they specifically suspected him,” without sufficient basis, “of criminal activity and
were targeting him for investigation” prior to his flight, thereby substantially
reducing the incriminating value of his flight in the reasonable suspicion calculus.
Id. at 632.
In Mayo, we also reaffirmed “that locational evidence about criminal activity
presented by the government can be a relevant consideration” in the reasonable
suspicion calculus. Id. At the same time, we hastened to “disavow the unhelpful
‘high-crime area’ label” that had permeated our cases, id., explaining that such
“bare” and “conclusory” labels were too generic to be afforded any real weight. Id.
at 634. We instead explained that “the value of general locational crime information
in interpreting potentially suspicious conduct will be a fact-intensive inquiry” that
turns on “the quality and specificity of the information, with particular focus on the
recency, frequency, and geographic proximity of the relevant criminal activity.” Id.
at 635. The only specific locational evidence offered in Mayo was an officer’s
testimony that his unit had recovered “over 10 guns” in the previous three years in
the “Kenilworth area,” a neighborhood “of unknown boundaries.” Id. at 636. That
16
“weak tea,” as we described it, was not “sufficiently specific or well-grounded to
place Mr. Mayo’s innocuous conduct in a different light or make his flight more
indicative of consciousness of guilt.” Id.
Based on that totality of circumstances considered “collectively,” id. at 622,
637, we concluded that officers did not have reasonable articulable suspicion to seize
Mayo given (1) the circumstances of his flight, which was prompted by the officers’
seeming disregard of his attempt to simply walk away from them; and (2) the weak
general locational crime testimony. Id. at 637.
B. The Present Case
We reaffirm the principles articulated by this court in Mayo, 2 and now turn to
the application of those principles to the present case. We first assess the relevant
2
Our concurring colleague, who was the lone dissenter in Mayo, incorrectly asserts that this court in Mayo utilized a “divide-and-conquer” approach “rather than considering factors collectively.” Post at 29-30 (McLeese, J., concurring in the judgment). And because the Supreme Court recently reaffirmed the longstanding principle that pertinent factors must be viewed collectively when conducting Fourth Amendment analyses, see R.W., 146 S. Ct. at 1072-73, our colleague argues that we “should be reconsidering Mayo rather than reaffirming it,” post at 30. This critique is unfounded, as our dissenting colleague persuasively explains. See post at 44-49 (Beckwith, J., dissenting). The court in Mayo expressly and substantively considered the totality of circumstances “collectively,” including the flight and the particular details of the “general location[al] crime evidence presented by the government” “taken together” with the other pertinent factors. Mayo, 315 A.3d at 622, 637. We did not impose any “threshold requirement” for weighing any factor in the reasonable articulable suspicion calculus, as the concurrence posits, post at 31-32,
17
context of D.W.’s flight, which is quite different from that in Mayo, and far more
analogous to the context that justified a seizure in Wardlow. We then consider the
locational crime evidence and the desperate nature of Mayo’s flight, though we
accord substantially less weight to those factors.
Unlike in Mayo, officers had not singled D.W. out before he ran away, nor
was it obvious upon their arrival that they were even particularly interested in the
group that D.W. was a part of. When D.W. took off sprinting through the breezeway,
Officers Gendelman and Bewley had just arrived on the scene and were about 100
feet away from him as they started up the walkway that led both to the breezeway
aside from requiring that the evidence be “relevant” and “nonconclusory.” Id. at 632-34 (rejecting the bare “high-crime area” label because it invites a non-fact-specific analysis). Those are requirements that R.W. itself reiterated. 146 S. Ct. at 1071 (requiring a “‘particularized and objective basis’” for suspecting criminal wrongdoing (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002) (emphasis added))). We instead explained why, under the particular circumstances in Mayo, we attached little weight to the incriminating force of the flight and general locational crime evidence both as standalone factors and when viewed in combination with the totality of other circumstances. Our concurring colleague “do[es] not object to courts initially considering the general significance of individual factors before considering the totality of the circumstances,” post at 34, and while those individual factors will “often [be] greater than the sum of [their] parts,” R.W., 146 S. Ct. at 1072, that is not invariably so. An insignificant standalone factor, like the paltry evidence of Kenilworth being a “high-crime area” in Mayo, might be just as insignificant when considered alongside other factors. This court simply did not engage in the sort of “divide-and-conquer” approach that our concurring colleague now alleges in perceiving a conflict between the Mayo and R.W. opinions. Mayo already steadfastly adhered to the principles since reaffirmed in R.W., so that R.W. provides no occasion to reexamine Mayo’s analysis.
18
and to the entrances of three buildings in the complex. 3 They did not yell toward,
point at, or otherwise signal to the group that they were coming for them. For all
D.W. knew, those officers were going to one of the three apartment building
entrances that were closer to the officers than he was, perhaps in response to a
domestic dispute or other call.
In other words, while the facts in Mayo looked “nothing like” Wardlow, id. at
627, 4 the facts here look an awful lot like Wardlow, in which the court opined that
“[h]eadlong flight—wherever it occurs—is the consummate act of evasion.” 528
U.S. at 124. The Supreme Court recently reiterated the point, noting that
“‘unprovoked flight upon noticing the police . . . . is certainly suggestive’ of
3
The division more modestly estimated that D.W. was “over fifty feet” away from the officers. D.W., 339 A.3d at 178. While that is certainly true, it is also safe to say the officers were closer to 100 feet away even on a conservative estimate. A Google Maps overlay of the Geraldine complex and its accompanying scale are available here: https://perma.cc/DZ99-FRDY?type=image. They show that the walkway from the sidewalk to the building straight ahead, even before the left turn to the breezeway, is about 100 feet long. See Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013) (taking “judicial notice of a Google map” and its estimated distance between two points as a “source[ ] whose accuracy cannot reasonably be questioned” (alteration in original) (quoting Fed. R. Evid. 201(b)); Reed v. State, 595 S.W.3d 391, 395 (Ark. Ct. App. 2020) (collecting cases and noting that “there seems to be an emerging consensus that courts can use Google Maps to establish the distance between two geographic points”).
4
One member of this majority did not participate in Mayo, and he doubts the court reached the right result after applying the relevant legal principles to the facts of that case. See D.W., 339 A.3d at 186 (Glickman, J., concurring dubitante).
19
wrongdoing.” R.W., 146 S. Ct. at 1072 (quoting Wardlow, 528 U.S. at 124). Here,
D.W. “took one look at police officers” who were at a considerable distance from
his group “and ran” before they had indicated any particular focus on him. See Mayo,
315 A.3d at 627-28 (discussing Wardlow, 528 U.S. at 121-22). So in contrast to
Mayo’s flight, D.W.’s headlong flight could far more “reasonably [have been]
interpreted by the officers as consciousness of guilt.” Id. at 627.
We note two other factors that add some further support for the stop, though
we attach significantly less weight to them: (1) the general locational crime evidence
here was more particularized than it was in Mayo, both in its detail and in its
geographical focus on this particular apartment complex (though it was still
somewhat vague); and (2) D.W.’s protracted and treacherous flight evinced far more
desperation than Mayo’s brief dash away from converging officers before he was
seized.
On the first point, we agree with D.W. that the officers’ testimony that the
Geraldine had a “reputation” as a high-crime area and was “known” for drug- and
gun-related crimes should be given little to no weight. Those observations are on par
with the bare and conclusory “high-crime” descriptors that we gave no weight to in
Mayo. But there was quite a bit more here, and it was far more particularized to the
Geraldine complex itself rather than to a boundary-less neighborhood, as in Mayo:
20
(1) Bewley testified that he had personally responded to reports at the Geraldine of
“homicides, assault with dangerous weapon, guns, [and] knives”; (2) Bewley
explained, when opining that the Geraldine is a high-crime area, that what he meant
by that is it was an area where at least “five to ten” “violent crimes” occur per year;
(3) Ewing had personally responded to complaints from residents about drug activity
in front of the Geraldine; and (4) Ewing had recovered “numerous firearms [and]
narcotics” and made “a lot of arrests” for firearms and narcotics at the complex. The
officers did not offer any hard statistics to back up these assertions, which certainly
could have added to their weight. But this testimony is still markedly stronger than
the cryptic testimony in Mayo that “over 10 guns” were recovered in the boundaryless “Kenilworth area” across a three-year period. Id. at 636. It has at least some
slight weight in the reasonable suspicion calculus, in our view.
On the second point, the desperation evinced by D.W.’s flight also adds some
slight support in favor of the officers having reasonable suspicion for a seizure.
Recall that D.W. led officers on an extended chase for approximately a minute in
and around the Geraldine complex—through a parking lot, down an alley, through a
yard, over a tall fence, and halfway over a second fence. That D.W. “went to such
lengths” to escape the police made it even more reasonable for officers to infer that
he was running not because of “mere fear” or an “ordinary desire to avoid police
contact,” but rather because of consciousness of guilt. See Miles, 181 A.3d at 644
21
(citing Dalton v. United States, 58 A.3d 1005, 1013 (D.C. 2013)); see also Duhart
v. United States, 589 A.2d 895, 900 (D.C. 1991) (“[T]he circumstances of the
suspect’s efforts to avoid the police must be such as [to] permit a rational conclusion
that flight indicated a consciousness of guilt.” (quoting In re D.J., 532 A.2d 138, 141
(D.C. 1987))).
We do not mean to overstate the point. If you are going to run away from the
police in the first place—which an innocent person might do for “myriad reasons,”
Miles, 181 A.3d at 641—you are in some sense in for a penny, in for a pound, and
will likely go to some lengths to get away. But the stakes of failing to escape surely
inform how far you are willing to go. To illustrate the point, if a suspect flees across
a heavily trafficked highway with speeding cars brushing just past him, there is far
more reason to think he is seeking to evade arrest for a serious crime, rather than to
avoid the considerable indignities of a brief stop and search. While scaling tall fences
over the course of a protracted chase is not nearly so perilous as that, it does evince
some desperation that, in our view, lends context and weight to the incriminating
nature of D.W.’s flight. See Dalton, 58 A.3d at 1012-13 (concluding that the police
had reasonable articulable suspicion to stop Dalton where, in addition to his
unprovoked flight upon “noticing” the officers, he “abandoned his bicycle in a traffic
lane and fled on foot onto the nearby sidewalk”).
22
Considering (1) that D.W. fled immediately upon the mere sight of
approaching officers, (2) the somewhat detailed and geographically particularized
testimony about persistent crime at the Geraldine complex, and (3) the desperation
evinced by the nature of D.W.’s flight, we conclude that officers had reasonable
articulable suspicion to seize D.W. at the time Ewing grabbed his leg.
C. D.W.’s and the Dissent’s Counterpoints
D.W. and our dissenting colleague nonetheless implore us to consider the
officers’ frequent patrols at the Geraldine and the fact that some individuals there
seemed conditioned to submit to the mere approach of officers. D.W. stresses that
(1) both Bewley and Ewing agreed it was “typical” for some people at the complex
to open their arms out in a T-shape or lift their shirts in response to officers;
(2) Ewing said he had searched and chased people at the Geraldine before;
(3) Bewley said he had searched the “crotch area” of some people before; and
(4) Bewley agreed it was typical to handcuff suspects in public view for extended
periods as officers canvassed the surrounding area. Those serious indignities visited
upon at least some seemingly innocent people, D.W. argues, severely mitigate the
incriminating weight one can reasonably attribute to his flight.
We take the point for what it is worth, but we are not convinced on this record
that officers had engaged in such systemic provocation at the Geraldine that they
23
should have understood D.W.’s flight as more consistent with the “apprehensiveness
that would naturally be felt” by someone in his shoes than with consciousness of
guilt. Mayo, 315 A.3d at 632 (quoting Dozier v. United States, 220 A.3d 933, 942
(D.C. 2019)). Unlike the GRU in Mayo, there was no testimony that the Crime
Suppression Team had a broadly known reputation for using aggressive tactics or
was specifically known among Geraldine residents for using those tactics, see id. at
631 (noting the GRU’s “reputation” and the trial court’s findings that Mayo’s group
“knew” about the GRU), and we cannot infer such widespread abuse on the record
before us. While our dissenting colleague asserts there was “undisputed evidence”
that the Crime Suppression Team employed what she views as “aggressive” police
tactics at the Geraldine, post at 50, in fact no witness—only our colleague—
described their tactics that way. That is unsurprising given that the defense did not
present any witnesses of its own to testify about the policing methods used at the
Geraldine, or the residents’ reactions to them. That record comes strictly from
Officers Ewing and Bewley, who described heavy policing in an area that seemed to
call for it—that is, a heavy police presence at a distinct complex that was rife with
crime, with the frequent patrols regularly yielding arrests for serious crimes. 5
5
The defense did present an investigator who testified about the prevalence of homicides near the Geraldine in the three years before D.W.’s arrest. But that investigator rather curiously—one might say conspicuously—searched only for data
24
D.W. and our dissenting colleague counter that three of the other thirteen
people outside the Geraldine that day—twelve Black males and one Black female—
responded to the officers’ approach in a manner suggesting that people at the
Geraldine regularly experienced aggressive policing: (1) one man by the breezeway
lifted his shirt as Bewley and Gendelman ran past him after D.W. (four men in that
area had no obvious reaction to the officers’ approach); (2) the “man in the blue
shirt” also fled through the breezeway just as D.W. had, despite officers recovering
no guns or drugs on him or in his flight path; and (3) one man placed his arms in a
T-shape after some unknown verbal exchange as Ewing approached him (five men
and one woman in Ewing’s vicinity had no obvious reaction to his approach).
That is surely some evidence that police had used heavy-handed tactics at the
Geraldine, or in policing the District’s Black residents more generally. See Dozier,
220 A.3d at 944 (noting that Black individuals might have a “particularly justified”
fear of police that can mitigate the incriminating weight of their flight). We agree in
principle with our dissenting colleague that this at least slightly mitigates the
incriminating nature of D.W.’s flight, but it does not drag the totality of
circumstances below the reasonable suspicion bar. Notably, the significant majority
of people at the Geraldine just went about their business when the officers
on homicides in that area, and offered no testimony about other violent crimes or the frequency of arrests for illegal guns and drugs in the area.
25
approached, in contrast to Mayo, where everybody in the area dispersed upon the
GRU’s arrival. See 315 A.3d at 622. As for the one other person who fled—the man
in the blue shirt—while it appears that no incriminating evidence was found on him
or in his flight path, that does not mean he was “innocent,” as our dissenting
colleague declares. Post at 50. He did not testify as to his innocence, nor did anybody
else, and we cannot entirely discount the possibility that he successfully ditched
some contraband as he fled, or that he was worried the police were looking for him
in relation to some past offense for which there was no evidence on his person.
Putting those possibilities aside, we have already factored in that perfectly innocent
people may run from the police, with the man in the blue shirt likely among them.
That fact does not make flight wholly innocuous, and on these facts, the flight was
sufficiently incriminating to do the heavy lifting in the reasonable suspicion calculus.
See Mayo, 315 A.3d at 625 (“[H]eadlong flight . . . is the consummate act of evasion:
It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”
(quoting Wardlow, 528 U.S. at 124)).
We acknowledge that there are many affluent neighborhoods in the District
where it is rather unlikely that any innocent individual would flee, display their
waistband, or put their arms out to their sides upon the mere approach of police
officers. Officers and courts alike should be mindful of that dynamic and cognizant
that in heavily policed areas like the Geraldine, innocent people might be especially
26
prone to run from the police, both to avoid the severe indignities of an unjustified
search and seizure and out of fear of being victims of police violence. See Dozier,
220 A.3d at 944; Miles, 181 A.3d at 641. But on balance, factoring that into our
assessment of reasonable suspicion, D.W.’s flight upon the mere sight of officers
potentially approaching his group at a distance with no indication that he would be
targeted, coupled with the testimony about the prevalence of crime in the Geraldine
in particular and the desperate nature of his flight, sufficed to provide officers with
reasonable suspicion to seize D.W. See Mayo, 315 A.3d at 620.
Finally, D.W. relies heavily upon Posey as compelling the opposite result, as
the division in this case did. 6 D.W., 339 A.3d at 182-83. Both the division and D.W.
focus on a sentence from Posey in which this court explained that “a nondescript
individual distinguishing himself from an equally nondescript crowd by running
away from officers unprovoked does not, without more, provide a reasonable basis
for suspecting that individual of being involved in criminal activity and subjecting
him or her to an intrusive stop and police search.” 201 A.3d at 1204. We agree that
6
Two members of the division wrote separately to explain that, while they believed Mayo and Posey compelled a reversal, they would have affirmed were they not bound by their understanding of those precedents. D.W., 339 A.3d at 183 (McLeese, J., concurring); id. at 186 (Glickman, J., concurring dubitante).
27
this statement is true in many contexts. 7 But to the extent Posey announced it as a
hardline rule—as the division read it—that is at odds with Mayo so it no longer has
any force. See Mayo, 315 A.3d at 625 (“A defendant’s flight, just like any other
factor in our comprehensive analysis . . . is viewed in the context of the specific facts
and corroborating circumstances of each individual case.”). Flight never occurs in a
vacuum, and the surrounding context of the flight here rendered D.W.’s flight
sufficiently incriminating to furnish the reasonable suspicion necessary to justify his
seizure.
III. Conclusion
For the foregoing reasons, we affirm D.W.’s convictions.
7
We add one caveat to Posey’s language, which is that it is generally unilluminating to refer to flight in the binary terms of “provoked” and “unprovoked,” because provocation is always a matter of degree. In some sense, officers could be said to “provoke” people to flee just by arriving in an area, though the degree of provocation increases as officers approach particular individuals and ask accusatory questions, and increases even more where the officers’ actions indicate that some individual(s) are in fact not free to go about their business, as was the case in Mayo. Notably, the context in Posey was that officers had pulled their marked cruiser up to “within fifteen feet” of a group they suspected of participating in an armed robbery in the area some unknown period of time earlier. 201 A.3d at 1200. While Posey did not go into detail about the nature of the flight, the record is clear that Posey’s was a quick dash to the door of a nearby apartment building—which, for all the officers knew, was Posey’s residence—where officers then seized him. The nature of that “flight” is not as incriminating as D.W.’s protracted flight upon the mere sight of officers at a considerable distance from him.
28
So ordered.
MCLEESE, Associate Judge, concurring in the judgment: The court holds that
the police had reasonable, articulable suspicion to stop D.W. based on the
combination of three circumstances, the latter two of which provide only “slight”
support, ante at 20: (1) D.W. fled “upon the mere sight of officers headed in his
general direction from a substantial distance,” ante at 11; (2) there was particularized
evidence about prior criminal activity in the specific apartment complex where D.W.
was standing, ante at 19-20; and (3) D.W.’s efforts to climb fences reflected a level
of desperation that added to the suspiciousness of his flight, ante at 20-21. I agree
with the court’s ultimate holding that the stop in this case was lawful, but my
reasoning differs from that of the court on several significant points. I therefore
respectfully concur only in the judgment.
1. The opinion for the division in this case held that the police did not have
an adequate basis for the stop. D.W. v. United States, 339 A.3d 175 (D.C.), vacated
and reh’g granted en banc, 341 A.3d 27 (D.C. 2025). In sum, the division reasoned
that (1) although the evidence of prior criminal activity in the area was slightly
stronger in this case than in our recent en banc decision in Mayo v. United States,
315 A.3d 606 (D.C. 2024) (en banc), that evidence nevertheless was “weak tea at
best” under the reasoning of Mayo, D.W., 339 A.3d at 182 (citation modified); (2) the
29
evidence of flight in this case was not by itself sufficient to support a conclusion of
reasonable, articulable suspicion under the holding of Posey v. United States, 201
A.3d 1198 (D.C. 2019), that unprovoked flight does not by itself justify a stop, D.W.,
339 A.3d at 182-83; and (3) although relevant, D.W.’s fence-climbing did not
warrant a result different from our holdings in Mayo and Posey because “[a]n
innocent individual who feared police brutality or harassment or over-aggressive
police conduct might well reflect that fear by taking measures such as [climbing]
fences,” id. at 183 (citation modified).
I wrote a concurring opinion in D.W., explaining that I was bound by Mayo
even though in my view the decision in Mayo “was incorrect and has set this court
on a path that is contrary to the directions we have been given by the Supreme
Court.” D.W., 339 A.3d at 186 (McLeese, J., concurring).
2. The opinion for the en banc court “reaffirm[s] the principles articulated
by” Mayo. Ante at 16. I dissented in Mayo, 315 A.3d at 639-58 (McLeese, J.,
dissenting), and now that we are en banc again we are not bound by Mayo. I see no
need to repeat in detail all of the points I raised in dissent in Mayo. I do, however,
emphasize one concern that I raised in that dissent: that the opinion for the court in
Mayo erroneously “utilize[d] a divide-and-conquer analysis by evaluating and
30
rejecting factors in isolation rather than considering factors collectively.” Id. at 645
(citation modified).
Recently, the Supreme Court summarily reversed this court’s decision in In
re R.W., 334 A.3d 593 (D.C. 2025), which had held that the police lacked reasonable,
articulable suspicion to support an investigative stop. District of Columbia v. R.W.,
146 S. Ct. 1069 (2026) (per curiam). The Supreme Court held that this court erred
by undertaking a “divide-and-conquer analysis” rather than considering “the whole
picture.” Id. at 1072 (citation modified). In my view, the Supreme Court’s decision
in R.W. demonstrates that this court should be reconsidering Mayo rather than
reaffirming it.
The opinion for the en banc court denies that Mayo took an impermissible
divide-and-conquer approach. Ante at 16-17 n.2. In my view, that denial is
inaccurate. Mayo first considered flight as a factor by itself and concluded that the
value of the evidence of flight in the case was “significantly reduced” because the
police “could not reasonably perceive Mr. Mayo’s flight as clearly reflecting
consciousness of guilt; rather it is more consistent with the apprehensiveness that
would naturally be felt by a person in his situation.” Mayo, 315 A.3d at 632
(emphasis added and citation modified). As I explained in dissent in Mayo, however,
“I do not see how a potentially suspicious factor (here flight) can appropriately be
31
given little weight in the totality-of-the-circumstances analysis simply because that
factor itself is not ‘clearly’ incriminating.” Id. at 645 (McLeese, J., dissenting).
“[R]easonable, articulable suspicion is based on the totality of the circumstances. It
necessarily follows that individual factors cannot properly be given little weight
because in isolation they are not clearly incriminating.” Id.
The consideration of general locational crime evidence in Mayo was similarly
flawed. In discussing that factor, Mayo stated that “to be of value in a reasonable
articulable suspicion analysis, information about crime in the area must be
particularized as to the location or geographic area at issue, the criminal activity
known to occur in the area, and the temporal proximity of the criminal activity
known to occur in the area to the time of the stop.” 315 A.3d at 635 (citation
modified). As I explained in dissent in Mayo, however, “binding Supreme Court
authority precludes this court from imposing such particularity as a rigid prerequisite
before such information may be given any weight at all in a
totality-of-the-circumstances analysis.” Id. at 651 (McLeese, J., dissenting).
Thus, Mayo considered flight and general locational crime evidence in
isolation and imposed as to each factor a threshold requirement before the factor
could be given significant weight in a totality-of-the-circumstances analysis. The
opinion for the en banc court in this case does not dispute that Mayo imposed
32
threshold requirements for the consideration of those factors, but defends those
threshold requirements as merely demanding that evidence be “relevant and nonconclusory.” Ante at 16-17 n.2 (citation modified). I do not find that defense at all
persuasive. Mayo’s requirement that flight must clearly reflect consciousness of guilt
before it can be given significant weight was not based on considerations of
relevance. Mayo, 315 A.3d at 624-32. To the contrary, Mayo acknowledged flight’s
general relevance, id. at 624-25, and never suggested that flight evidence is
inadmissible on grounds of relevance unless the threshold requirement is met, id. at
624-32. Nor could Mayo’s threshold requirement reasonably have been based on
relevance grounds, given that “[t]he test for relevance is not a particularly stringent
one,” requiring only that the evidence at issue “tends to make the existence or
nonexistence of a fact more or less probable than would be the case without that
evidence.” Toyer v. United States, 325 A.3d 417, 422 (D.C. 2024) (citation
modified).
Similar points can be made about Mayo’s requirement that, “to be of value,”
“information about crime in the area must be particularized” in each of three specific
ways. Mayo, 315 A.3d at 635 (citation modified). The court in Mayo explicitly stated
that the general locational crime evidence introduced in the case was “relevant,” id.
at 636, but then went on to give that evidence no weight because the evidence
flunked the Mayo court’s three-part particularity requirement, id.
33
The threshold requirements established in Mayo were imposed as a matter of
substantive Fourth Amendment law. Reconceptualizing them as reflecting principles
of evidentiary admissibility, as the opinion for court in this case suggests, would be
a sweeping and unwarranted expansion of Mayo.
The opinion for the court also implies that the threshold requirements imposed
in Mayo are supported by the principle that investigative detentions must have a
“particularized and objective basis.” Ante at 16-17 n.2 (quoting R.W., 146 S. Ct. at
1071 (citation modified)). As the Supreme Court has repeatedly made clear,
however, the question whether officers had an adequate basis for an investigative
detention must be determined based on the totality of the circumstances, i.e., “the
whole picture.” R.W., 146 S. Ct. at 1073 (citation modified). Requiring that each
separate factor relied on by the police must itself be “particularized” in some sense,
or must meet some other categorical threshold, is contrary to that basic principle of
Fourth Amendment law.
It is true that Mayo did not simply establish threshold requirements. Mayo also
discussed other factors and then included a paragraph briefly discussing the various
factors in Mayo “collectively.” 315 A.3d at 637. That brief discussion, in my view,
did not cure the problems I have noted. The Mayo court’s discussion of the factors
collectively was skewed by the court’s prior imposition of requirements that flight
34
and general locational crime evidence must meet certain thresholds in isolation
before they can be given significant weight in the totality-of-the-circumstances
analysis. Incorrectly reducing factors to categorical insignificance in isolation is a
way of “dividing and conquering” factors the significance of which must in the end
be properly considered collectively. Relatedly, the brief discussion of the totality of
the circumstances in Mayo, like the opinion in Mayo as a whole, does not
acknowledge, much less give effect to, the principle that “the whole is often greater
than the sum of its parts.” R.W., 146 S. Ct. at 1072 (citation modified).
To be clear, I do not object to courts initially considering the general
significance of individual factors before considering the totality of the
circumstances. Post at 44-49 (Beckwith, J., dissenting). For the reasons I have stated,
however, I conclude that the Mayo court erred by incorrectly reducing certain factors
to categorical insignificance in isolation and then giving those factors little or no
weight in assessing the totality of the circumstances.
In my view, the errors I have just noted led the court in Mayo to reach a
conclusion that is contrary to the Supreme Court’s holding in Illinois v. Wardlow,
528 U.S. 119 (2000), and inconsistent with the overwhelming weight of authority
from other courts around the country. Mayo, 315 A.3d at 654-57 (McLeese, J.
dissenting).
35
For the foregoing reasons, the court in Mayo should have upheld the legality
of the stop at issue, which like the stop in this case was of a suspect who fled from
the police in an area as to which the police had substantial information about prior
criminal activity. Id. at 639-40. I agree with the court in this case that, on balance,
the police had a stronger basis for the stop in this case than in Mayo. Ante at 16-20.
It follows that in my view the stop in the present case was lawful.
3. The division in this case was also bound by Posey, but now that we are en
banc we are free to reconsider Posey. I believe that Posey also was incorrectly
decided. In Posey, police officers received a lookout for an armed robbery in the unit
block of M Street, N.W. 201 A.3d at 1200. One suspect was described as “a black
male dressed in all black.” Id. A second lookout reported that the robbery involved
a group of black males who were last seen heading toward North Capitol Street. Id.
Officers arrived at the unit block of M Street about five or ten minutes after the
second lookout was received. Id. at 1201. The officers saw a group of five or more
black males, mostly dressed in black, walking in the block and towards North
Capitol Street. Id. at 1200. The officers drove their car to within fifteen feet of the
group, and Mr. Posey took off running. Id.
The court in Posey held that the officers lacked reasonable, articulable
suspicion to stop Mr. Posey. 201 A.3d at 1202-05. The court reasoned as follows:
36
(1) the lookout description of the suspects’ appearance and clothing was generic;
(2) there was no evidence of how much time passed between the commission of the
robbery and the lookouts; (3) the police officers themselves did not observe any
illegal conduct by the group; (4) evidence that the stop occurred in a “high crime
neighborhood” had “no real significance”; and (5) although Mr. Posey’s flight was
“unprovoked,” there was “no indication” that the flight “added anything” because
officers did not see Mr. Posey do anything illegal before or during the flight. Id. at
1202-04. The court summed up its holding as follows: “a nondescript individual
distinguishing himself [or herself] from an equally nondescript crowd by running
away from officers unprovoked does not, without more, provide a reasonable basis
for suspecting that individual of being involved in criminal activity and subjecting
him or her to an intrusive stop and police search.” Id. at 1204.
I believe that the decision in Posey is incorrect in a number of respects. First,
the court erred in giving “no real significance” to evidence that the stop occurred in
a specific area that was notorious for crime and had a lot of shootings, as well as
homicides and an open-air drug market. See Posey, 201 A.3d at 1203. Second, the
court erred in concluding that the “unprovoked” flight in that case added nothing.
Id. at 1204. Third, the court erred in concluding that, taken together, the information
the police had was insufficient to give rise to reasonable, articulable suspicion
justifying a stop. Id. On each of those three points, Posey in my view conflicts
37
directly with the Supreme Court’s decision in Illinois v. Wardlow, 528 U.S. 119
(2000), in which the Court upheld the legality of a stop based solely on a suspect’s
“unprovoked” headlong flight from the police in a “high crime area.” 528 U.S. at
124.
Posey also conflicts with the Supreme Court’s decision in R.W. because Posey
reflects the same divide-and-conquer approach that the Supreme Court once again
rejected in R.W. See, e.g., Posey, 201 A.3d at 1203-04 (considering in isolation
evidence that stop occurred in “high crime neighborhood,” dismissing that evidence
as having “no real significance,” and then failing to take that evidence into account
when discussing totality of circumstances).
Finally, the court in Posey cited no comparable case in which any court has
held a stop unlawful, and I am aware of no such case. To the contrary, I cited in
dissent in Mayo numerous decisions from courts around the country upholding stops
based on substantially less information than was present in Mayo and Posey. Mayo,
315 A.3d at 656-57 (McLeese, J., dissenting) (citing cases). In my view, the Supreme
Court’s decision in R.W. is another such case. In that case, the police received a radio
dispatch call concerning a “suspicious vehicle” at a particular address. R.W., 146 S.
Ct. at 1070. When an officer arrived at that address at around 2 a.m., he saw two
people flee, “unprovoked,” from a parked car. Id. Although at least one of the car’s
38
rear doors was open, the driver began to back out of the parking space. Id. The
Supreme Court held that that information “clearly” established reasonable,
articulable suspicion supporting the stop of the driver. Id. The information available
to the police in Posey was quite a bit stronger than the information available to the
police in R.W. It follows that this court erred in Posey by holding that the police
lacked reasonable, articulable suspicion.
4. In my view, the court in this case should acknowledge that Mayo and Posey
were incorrectly decided and should bring our law in this area into conformity with
the direction we have been given by the Supreme Court and into better consistency
with the decisions of other courts around the country. I am concerned that our failure
to do so will lead the Supreme Court in the future to reverse this court yet again.
5. As previously noted, the court in this case instead “reaffirm[s]” Mayo. Ante
at 16. I do not agree with that step, but at least it is not inconsistent with the court’s
affirmance in this case. As I have noted, the information available to the police in
this case is on balance somewhat stronger than was available to the police in Mayo,
so the court can reasonably affirm here despite the reversal in Mayo. In my view,
however, the same is not true of Posey. Taken together, the information available to
the police in Posey was substantially stronger than the information available to the
39
police in this case. If Posey is correctly decided, then the court should hold that the
police in this case lacked reasonable, articulable suspicion.
6. Although the opinion for the en banc court in this case does not explicitly
acknowledge that Posey was incorrectly decided, the opinion for the en banc court
does not defend the outcome of Posey. Ante at 26-27. The opinion for the en banc
court also does not dispute that Posey is inconsistent with the Supreme Court’s
decision in R.W. and is another case in which this court has taken an impermissible
divide-and-conquer approach. Id. Rather, the court limits Posey in one respect,
criticizes the terminology the court used in Posey, and attempts to distinguish Posey.
Ante at 26-27 & n.7. I am not persuaded by any of those lines of reasoning.
a. The division in this case understood Posey to have held that “unprovoked”
flight by itself does not suffice to provide reasonable, articulable suspicion justifying
a stop. D.W., 339 A.3d at 182-83. The en banc court in this case does not take a
position as to whether that is a correct reading of Posey. Ante at 26-27. Rather, the
court holds that if Posey announced such a rule, that rule was overturned by the
statement in Mayo that the significance of flight “depends on context.” Ante at 13-14
(quoting Mayo, 315 A.3d at 626), 26-27. I do not understand the reasoning of the
court on this point. Requiring a factor to be understood in context does not seem to
me to be necessarily inconsistent with concluding that the factor by itself cannot
40
suffice to establish reasonable, articulable suspicion. For example, evidence that a
stop took place in a neighborhood in which there had been substantial criminal
activity in the past must be considered in context, but I assume that the court would
agree that such evidence cannot, without more, establish reasonable, articulable
suspicion.
I thus see no inconsistency between anything in Mayo and what I take to be
the holding of Posey that “unprovoked” flight, without more, does not suffice to
establish reasonable, articulable suspicion. Posey, 201 A.3d at 1204. The en banc
court in Mayo also does not seem to have perceived any such inconsistency because
it repeatedly relied upon Posey in its analysis. Mayo, 315 A.3d at 621-22, 625, 637.
b. The court criticizes Posey for using “unilluminating” “binary” terminology
in referring to flight as “unprovoked” or “provoked” because provocation is a matter
of degree. Ante at 27 n.7. I agree that it is a matter of degree to what extent police
presence or conduct that occurs before a suspect’s flight should be viewed as
weakening the reasonableness of the police’s inference that the flight may reflect
consciousness of guilt rather than some other innocent reason. See Mayo, 315 A.3d
at 646-47 (McLeese, J., dissenting). It can be a little unwieldy, however, to express
that thought with perfect accuracy. The problem is not only that the issue is one of
degree. In addition, the precise issue is not whether a particular suspect’s flight in
41
fact was to some degree provoked by police presence or conduct. Rather, the precise
issue is to what extent the police at the relevant time should have understood that
their presence and conduct might have affected the degree to which a suspect’s flight
can reasonably be viewed as suspicious. In other words, it is potentially misleading
to focus on whether flight actually was or was not “provoked” to some degree.
Rather, the focus should be on the extent to which the police should have understood
that their presence and conduct might have affected the likelihood that flight was
innocent rather than reflective of consciousness of guilt.
c. The court in this case appears to attempt to distinguish Posey in three
factual respects. First, the court accurately notes that the police car in Posey was
within fifteen feet of the group including Mr. Posey, whereas the police in the present
case were more than fifty feet away from the group including D.W. Ante at 18 n.3,
27 n.7. I do not believe that this relatively minor difference in distance is of material
significance, but in any event the difference in my view is outweighed by the fact
that in the present case the police had gotten out of their car and were walking toward
the group including D.W., ante at 2, whereas in Posey the officers had not opened
their car doors or made any other demonstration that it was their intent to approach
the group including Mr. Posey. In my view, D.W. had at least as strong a reason as
Mr. Posey had to fear that the police might have been focused on him.
42
Second, the opinion for the court indicates that the flight in Posey was shorter
in distance and duration than the flight in this case. Ante at 27 n.7. Here too the
differences are minor, given that the flight in the present case lasted only about a
minute. The opinion for the court does not explain, and I do not see, why such minor
differences in distance and duration would make a material difference to the degree
to which officers could have viewed flight in both cases as suspicious.
Third, the opinion for the court relies on the fact that D.W. climbed over one
fence while fleeing and attempted to climb over another. Ante at 20-21. The opinion
for the court does not rely heavily on this point, stating that it provides only “some
slight support” for a conclusion that the stop in this case was lawful. Id. at 20. I agree
that D.W.’s fence-climbing has some minor relevance, but I think that the opinion
for the court overstates the relevance of that consideration in this case. For one thing,
the opinion for the court substantially underestimates the nature and magnitude of
the fears that this court has indicated young men of color might reasonably have
about encounters with the police. The opinion for the court briefly acknowledges
“the severe indignities of an unjustified search and seizure.” Id. at 26; see, e.g.,
United States v. Street, 917 F.3d 586, 592 (7th Cir. 2019) (“An investigative stop
under Terry imposes a substantial intrusion on a person’s liberty and dignity.”); cf.
Berkemer v. McCarty, 468 U.S. 420, 436 (1984) (traffic stop “significantly curtails
the freedom of action of the driver and the passengers”) (citation modified). More
43
concretely, during a Terry stop of an individual, the police by definition restrain the
individual’s freedom of movement. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). If the
circumstances make it reasonable to do so, officers during a Terry stop may also
(1) use physical force to seize the individual, id. at 28; (2) conduct a limited search,
i.e., a frisk, of the individual’s person for weapons, id. at 25-26; and (3) place the
individual in handcuffs, Womack v. United States, 673 A.2d 603, 608-10 (D.C.
1996). A Terry stop must be reasonable in duration, but such stops can permissibly
last for a significant time. Compare McIlwain v. United States, 568 A.2d 470, 473
(D.C. 1989) (upholding Terry stop lasting thirty minutes), with United States v.
Place, 462 U.S. 696, 709-10 (1983) (holding that, under circumstances, Terry stop
lasting ninety minutes was unreasonably long).
More importantly, our recent opinion in Carter v. United States, 341 A.3d
1067 (D.C. 2025), cert. denied, No. 25-885, 2026 WL 1780409 (U.S. June 22, 2026),
emphasizes that the reasonable fears at issue are not limited to being unjustifiably
subjected to a stop. Rather, those fears include fear of being treated in a racially
discriminatory manner during such stops and being victims of unjustified police
violence including the use of fatal force. Id. at 1076-80. When this court’s
assessment of the gravity of suspects’ reasonable fear is taken into account, it seems
quite unsurprising that a suspect fleeing out of fear would be willing to climb a fence
to try to avoid the police.
44
I have one further concern about the opinion for the court’s reliance on D.W.’s
fence-climbing. D.W. was clearly aware that the police were chasing him before he
climbed the first fence. Moreover, unless the officers had reasonable, articulable
suspicion before D.W. climbed the first fence (which the court in this case does not
hold), the officers at that point should have been aware that they were chasing D.W.
without a lawful basis for doing so. Seemingly, under the court’s own analysis, that
police conduct “substantially reduc[ed] the incriminating value of [D.W.’s
fence-climbing] in the reasonable suspicion calculus.” Ante at 15. The opinion for
the court neither acknowledges nor addresses this concern.
For the foregoing reasons, I respectfully concur only in the judgment.
BECKWITH, Associate Judge, dissenting: For the reasons below, I disagree
with the court’s holding that the police in this case had reasonable suspicion to stop
D.W. But at the outset—and in part to help frame my own take on the reasonable
suspicion question—I turn to my concurring colleague’s objection to this court’s en
banc decision in Mayo v. United States, 315 A.3d 606 (D.C. 2024) (en banc), and
thus to the majority’s decision today to reaffirm Mayo, for employing what the
Supreme Court has deemed an illicit “divide-and-conquer” approach to Fourth
Amendment analyses. Ante at 29-30 (McLeese, J., concurring in the judgment)
(citing District of Columbia v. R.W., 146 S. Ct. 1069, 1072 (2026) (per curiam)).
45
The part of Mayo’s analysis that Judge McLeese describes as “divide and
conquer” takes a factor-by-factor approach and then considers all of the factors
together at the end. Judge McLeese says that he does not object to courts initially
discussing factors one by one, ante at 34, and indeed, courts routinely engage in an
“evaluation” of each factor’s probative value in isolation before finally looking at
the factors as a whole at the end. See, e.g., District of Columbia v. Wesby, 583 U.S.
48, 57-60 (2018) (separately discussing multiple factors bearing on probable cause
before concluding that, “[v]iewing these circumstances as a whole, a reasonable
officer could conclude that there was probable cause”). He instead appears opposed
to a court reaching a preliminary estimate about the probative value of each
individually discussed factor—not about whether there was reasonable articulable
suspicion—prior to discussing the factors as a whole. See ante at 34 (taking issue
with “reducing certain factors to categorical insignificance in isolation”). But even
the recent Supreme Court decision Judge McLeese relies upon, District of Columbia
v. R.W., “evaluat[es]” the probative value of flight in isolation—describing how
probative of suspicion flight is in general—when it notes that “unprovoked flight
upon noticing the police . . . . is certainly suggestive” of wrongdoing. 1 146 S. Ct. at
1
Indeed, “[a]ny readable [reasonable-suspicion] analysis will, of necessity, tick through factors, finding some weighty, others less so, and still others not at all, before piling them on a scale and assessing the result.” R.W., 146 S. Ct. at 1073
46
1072 (omission in original) (internal quotation marks and citations omitted); see also
id. (noting that R.W.’s car passengers’ flight, assessed in isolation, “cast [R.W.’s]
presence in a suspicious light”). Viewed in the light of additional facts, a suspect’s
flight might be much more or less suspicious. If the suspect had a large bulge in his
waistband, then his flight looks more suspicious. If the police had just beat up the
suspect’s friend for no reason, then his same flight looks more innocent.
Not only is this factor-by-factor approach routinely used by courts, including
the Supreme Court, but there is nothing wrong with it, as long as the analysis
ultimately views all relevant facts collectively. It may well be true that headlong
flight in a high-crime area—when no other facts are known—is generally indicative
of criminal activity. It may also be true that headlong flight in a high-crime area
where the fleeing person has specific reasons to fear that police will subject him to
violence or an unlawful search—when no other facts are known—is generally not
indicative of criminal activity. Both of these statements can be simultaneously true
because they are estimates based on different sets of facts. Put differently, they might
be called different “base rate” estimates based on broader or narrower “reference
(Jackson, J., dissenting) (noting that “[t]o its credit,” the majority in R.W. “applie[d] a similar, factor-by-factor approach”).
47
classes.” 2 See, e.g., Koehler & Shaviro, supra note 2, at 247 n.2, 252-53, 258-59
(1990). A court’s estimate of the probability someone is engaged in wrongdoing
should ultimately reflect all relevant facts fairly raised by the parties, rather than
only some of those facts. See id. at 259 (explaining that a reference class is unspecific
where “it reflects fewer seemingly important features of the case at hand”). As long
as the court ultimately considers all such relevant factors, it is appropriate—indeed,
the most natural way to go about the analysis—for a court to first note the base rate
for a broad reference class (for example, the chance that someone “engaged in
headlong flight” is likely engaged in criminal activity) and narrow its analysis from
there once additional facts are added.
2
A “base rate” is the estimation of the probability of a condition or event occurring. See Jonathan J. Koehler & Daniel N. Shaviro, Veridical Verdicts: Increasing Verdict Accuracy Through the Use of Overtly Probabilistic Evidence and Methods, 75 Cornell L. Rev. 247, 247 n.2 (1990) (“Base rates describe the frequency with which a relevant attribute occurs among members of a reference population. A base rate may also be thought of as the probability that a randomly selected member of a reference population will have the relevant attribute.”); id. at 252-53. To illustrate, outside the Fourth Amendment context a “base rate” might refer to the percentage of women who have breast cancer or the percentage of teenage boy drivers involved in car crashes. Each “base rate” has what is called a “reference class”—in the preceding examples, the reference classes are “women” and “teenage boy drivers.” See id. at 259-60. But if you pick a different reference class, the base rate changes. If you instead pick the reference class “women over fifty who have inherited the BRCA gene mutation,” for example, the base rate of breast cancer is higher. If you pick the reference class “teenage boy drivers who are nineteen and former Boy Scouts,” the car crash rate might be lower. And so on.
48
Of course, the parties might disagree on which, and how many, facts are
relevant—that is, what reference class should be used in determining the likelihood
of criminal activity. In any given case, a party might argue that we should not merely
be looking broadly at what percentage of “people who run from officers in headlong
flight” are engaged in wrongdoing, but more narrowly at what percentage of “people
who are young Black men and who have seen their peers be stopped or searched or
otherwise harassed by these particular officers for no reason in this same apartment
complex who run in headlong flight” are engaged in wrongdoing. Or perhaps
“people who have a bulge in their pocket who run from officers in headlong flight
at 2 a.m. in an area where there were recently five shootings.” One could
theoretically narrow the reference class further and further by adding more and more
facts until it is a class of one—a young man named D.W. who is of a certain age,
who lives at a certain address, and who was wearing certain clothes and has a certain
life history. Some of those facts might be irrelevant. Some might never be known.
See R.W., 146 S. Ct. at 1074 (Jackson, J., dissenting) (“[T]oday’s per curiam
necessarily omits a number of facts the Court finds insignificant—e.g., the make and
model of the car, the precise location of the stop, the color of R.W.’s friends’
clothing.”). The point is, all base rates, however narrow the reference class (unless
49
it is a class of one), are simply estimates based on a limited number of facts. But that
does not make them inaccurate or unhelpful. 3
Turning to the circumstances of this case, I largely agree with the
comparatively little weight the majority gives to the character of D.W.’s flight and
the locational crime evidence, but my disagreement with the significant weight the
court assigns to the fact that D.W. fled at all leads me ultimately to assess the totality
3
Judge McLeese criticizes the Mayo opinion for engaging in illicit dividing and conquering by imposing a “threshold requirement” for high-crime evidence when it stated that “to be of value in a reasonable articulable suspicion analysis, information about crime in the area must be particularized as to the location or geographic area at issue, the criminal activity known to occur in the area, and the temporal proximity of the criminal activity known to occur in the area to the time of the stop.” Ante at 31-32 (quoting Mayo, 315 A.3d at 635). But as the court in Mayo explained, the general locational crime data supplied in that case was not “sufficiently specific or well-grounded to place Mr. Mayo’s innocuous conduct in a different light or make his flight more indicative of consciousness of guilt” given its deficiencies. Mayo, 315 A.3d at 636. That is not dividing and conquering. The court made sure to consider the high-crime testimony in context with Mr. Mayo’s flight and other behaviors, and held that it did not help the facts rise to the level required by the Fourth Amendment. To have concluded otherwise would have been to permit officers to “affix[] . . . a dangling comparative label of ‘high crime’ to certain city blocks or even entire neighborhoods” and therefore deprive defendants of the rigorous Fourth Amendment analysis they are owed. Id. at 633 (“[T]he police must have individualized, particularized suspicion in order to conduct a Terry stop.”). Just as one might reasonably conclude it is not worth recalculating the base rate for breast cancer when one learns that a woman over fifty who had inherited the BRCA gene mutation had also smoked one cigarette in her life, see supra note 2, the court in Mayo appropriately downplayed what it viewed as weak locational crime evidence. Mayo did not excise the factor as if it did not exist. Like the import of the single cigarette, the effect of the additional evidence is not zero, and it does create a new reference class—it just does not add anything appreciable to the analysis.
50
of the circumstances differently. See ante at 16-22. The record in this case contains
an unusually well-developed array of facts tending to decrease the suspiciousness of
D.W.’s flight. This includes concrete and undisputed evidence that the Crime
Suppression Team had previously employed tactics at the Geraldine that I view as
aggressive, that an individual similarly situated to D.W. fled from the officers
despite being innocent, and that two other individuals altered their behavior in a
manner indicating that they did not feel free to avoid interacting with the police.
This court “has made clear that flight cannot imply consciousness of guilt in
all cases.” Miles v. United States, 181 A.3d 633, 641 (D.C. 2018) (internal quotation
marks and citation omitted). And in Mayo—whose principles the majority today
reaffirms, ante at 16—this court, sitting en banc, reinforced that a context-sensitive
inquiry into the existence of reasonable suspicion is not only proper, but essential.
315 A.3d at 627. We recognized in Mayo, for example, that an individual may flee
from police due to “a distaste for police officers based upon past experience” or a
“fear of police brutality or harassment” rather than because he is engaged in illegal
activity. Id. at 625 (quoting Miles, 181 A.3d at 641).
That context matters is not a new idea. The Supreme Court’s decision in
Illinois v. Wardlow, 528 U.S. 119 (2000), “did not articulate a rigid rule that all
flight, regardless of context, supports a reasonable articulable suspicion calculus,”
51
Mayo, 315 A.3d at 627. And indeed, in its amicus brief in Wardlow, the United
States’ characterization of Wardlow’s flight as “aberrational” and therefore “much
more uncharacteristic of innocent persons” was an acknowledgement that if
Wardlow’s conduct were not, in fact, “much more uncharacteristic” of innocence,
that could have compelled a different result. Brief for the United States as Amicus
Curiae Supporting Petitioner at 19, Illinois v. Wardlow, 528 U.S. 119 (2000) (No.
98-1036); see also Transcript of Oral Argument at 29-30, Illinois v. Wardlow, 528
U.S. 119 (2000) (No. 98-1036) (counsel for the United States stating that “the
individual always will have the opportunity to show that other contextual factors
made it unreasonable for the police officer to infer guilt from the fact of . . . flight”).
Here, the record contains the sort of context that transforms flight from
aberrational to unsurprising—thus not meriting the substantial weight the majority
accords it in the reasonable articulable suspicion calculus. As noted above, the
evidence shows three individuals’ reactions to the police arriving on the scene: a
man in a blue shirt who took off running from the police just like D.W. did, a man
who proactively lifted his shirt to show he was not carrying a firearm in his
waistband, and a third man who put his arms in a T-shape as officers approached.
Those reactions were given their own context by background evidence—undisputed
officer testimony, in fact—that described police practices at the Geraldine more
generally. Officers from the Crime Suppression Team testified, for example, that
52
people in the Seventh District had called the team “a jump-out” and that police had
previously pulled up to the apartment complex with their car doors already open,
poised to immediately exit the car upon stopping—as they did here. Cf. Mayo, 315
A.3d at 629 (“[S]uch a flashbang method of approaching and questioning a subject
after jumping out of halting vehicles seem[ed] designed to produce . . . fear, which
could lead either to temporary paralysis or flight.” (internal quotation marks and
citations omitted)). Other testimony established that it was typical for people to
respond to officers’ arrival at the Geraldine by lifting their shirt or lifting their arms
into a T-shape. And when police officers searched men outside the Geraldine
complex (something one officer said he did “many times”), it was also typical for
them to subject those men to what the majority opinion agrees are serious indignities,
ante at 26, including invasive searches of the “crotch area” and forcing handcuffed
individuals to sit on the ground in full view of the public for up to an hour while
officers searched the area.
In this case, the officers did not arrive at the Geraldine on the report of any
crime or an alert from an acoustic gunshot detection system or ShotSpotter. They
had gone to the Geraldine—as they had many times before—on routine patrol, in
multiple cars, looking for illegal activity. But they did not see a bulge in D.W.’s
pants. They did not say he was blading as if to conceal something. They did say he
was holding his waistband while running, but the trial court discredited that
53
testimony. According to the officers’ testimony, they knew their presence on those
visits would often cause people to lift their shirts or hold their arms out, and that is
what happened. And it is inferable—from an officer’s testimony that officers yell to
each other when somebody is running and his agreement that “[o]ne reaction men
might have at the Geraldine” to the Crime Suppression Team pulling up is “[t]o
run”—that they also knew that people would sometimes run in response to their
presence, including people whose flight, like that of the man in the blue shirt, was
not necessarily prompted by a guilty conscience.
The trial court called the reasonable suspicion question in this case “very
close.” I do not disagree. Evidence about the nature of D.W.’s flight and about crime
at the Geraldine adds something to the calculus. The absence of evidence that the
police were specifically targeting D.W. also tends to support the existence of
reasonable suspicion. But considering these factors along with the evidence of the
prior police practices at the Geraldine, the response of individuals on the scene to
the Crime Suppression Team’s arrival, and the absence of any bulge or blading or
the like on D.W.’s part, I would conclude that D.W.’s flight, even in light of its
nature and the crime levels at the complex, is insufficiently probative of guilt to
justify the stop. Because the totality of the facts available to the officers did not rise
to the level of reasonable articulable suspicion, I respectfully dissent from the
majority’s contrary conclusion.