D.W. v. United States

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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)

(Hon. Robert A. Salerno, Trial Judge)

(Argued January 20, 2022; reargued January 14, 2025 Decided July 17, 2025)

Victoria J. Hall-Palerm and KC Bridges, Public Defender Service, with whom

Samia Fam, Jaclyn S. Frankfurt, Mikel-Meredith Weidman, and Dennis Martin,

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, Chrisellen R. Kolb, Suzanne Grealy Curt, John P. Mannarino,

and Amy Joy Thomas, Assistant United States Attorneys, were on the briefs, for

appellee.

Before MCLEESE and SHANKER, Associate Judges, and GLICKMAN, Senior

Judge. *

*

Senior Judge Ferren was originally assigned to this case. Following his

retirement on April 21, 2023, Associate Judge Shanker was assigned to take his

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Opinion for the court by Associate Judge MCLEESE.

Concurring opinion by Associate Judge MCLEESE at page 17.

Opinion by Senior Judge GLICKMAN, concurring dubitante, at page 24.

MCLEESE, Associate Judge: Appellant D.W. appeals his convictions for

several firearm offenses, arguing that the trial court erroneously denied his motion

to suppress evidence. We agree with D.W., and we therefore vacate the judgment

and remand for further proceedings.

I. Factual and Procedural Background

The evidence at the suppression hearing included the following. On the day

at issue, officers of the Metropolitan Police Department Crime Suppression Team

(CST) went to the Geraldine Apartment Complex as part of their “normal, everyday

operations.” The officers were not responding to a specific report of criminal

activity. The Geraldine is a “pretty high-crime area . . . known for drug trafficking,

drug sales and gun violence.” Specifically, one of the members of the CST, Officer

John Bewley, who worked on the CST for three years, had personally responded to

reports at the Geraldine of “[h]omicides, assault with dangerous weapon, guns, [and]

knives.” Officer Bewley had not reviewed any crime statistics for the Geraldine

place on the division. Judge Glickman was an Associate Judge at the time of the

first argument. His status changed to Senior Judge on December 21, 2022.

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before the date at issue. He did not know how many violent crimes had occurred at

the Geraldine in the previous year or two years. Officer Bewley indicated that he

would use the term “high-crime area” to describe a complex in which there were five

to ten crimes in a year. Officer Bewley testified that it was fairly common

knowledge in the Metropolitan Police Department that the Geraldine is a high-crime

area.

Another member of the CST who was involved in D.W.’s arrest, Officer

Krishaon Ewing, also described the Geraldine as a high-crime area. He had

personally recovered narcotics and numerous firearms in the area, and he had also

been to the area in response to multiple shootings and stabbings. Officer Ewing

indicated that he would call an area a high-crime area if the police consistently

recovered drugs and firearms in the area. Officer Ewing testified that the Geraldine

had a reputation among officers in his district as a high-crime area.

The CST officers were in uniform and were driving in unmarked cars. There

were several officers in three cars. One of the cars was “down the street” from the

car Officer Bewley was in, and Officer Bewley was not sure where the third car was.

The car that Officer Bewley was in stopped, and Officer Bewley and another officer

got out at the same time. Officer Bewley started walking toward a breezeway that

led to a parking lot. He saw D.W., who was standing near the breezeway with

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several other people. Within a few seconds, D.W. saw Officer Bewley and then ran

at a “full sprint.” Officer Bewley did not say anything to D.W. before D.W. ran.

There was no testimony about the exact distance between Officer Bewley and D.W.

when D.W. started running, but Officer Bewley testified that he was “pretty far

away” from the breezeway and body-worn camera footage that was admitted into

evidence appears to indicate that Officer Bewley and D.W. were over fifty feet apart.

Officer Bewley chased D.W. Officer Bewley testified that D.W. was grabbing

at and holding his waistband area while running, but no such motions are visible on

the body-worn camera footage. D.W. ran into the parking lot, out of the parking lot,

and through an alley before cutting between two houses and jumping a chain-link

fence. Other officers, including Officer Ewing, also got involved in the chase. After

running behind another building, D.W. attempted to jump another chain-link fence

that was six to ten feet high. D.W.’s leg got caught on the fence, however, and

officers apprehended him.

As officers apprehended D.W., D.W. pulled a gun from his pant leg and

dropped the gun to the ground.

One other individual on the scene ran from the police as well, and he was

stopped and searched but was not arrested. The search of that person included an

officer placing his hand on the individual’s “crotch area” looking for a gun. Officer

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Bewley had previously performed searches of this kind at the Geraldine when

searching for guns and drugs. It also was typical that when someone was stopped

and searched, that person would be kept sitting handcuffed in public for a period of

time that could be as long as an hour.

Another individual responded to one of the officers walking toward the

individual by raising his arms up “in . . . a T.” It was “typical for some men” to do

that when police approached them at the Geraldine. Yet another individual lifted his

shirt to show that he did not have a gun when Officer Bewley ran by. It was typical

for individuals at the Geraldine to respond in that way.

A defense investigator testified that she had looked in a public database called

D.C. Crime Maps and located information about only one homicide within 1,000

feet of the Geraldine, which was a stabbing that occurred in 2015. The investigator

did not know who maintained the database and knew nothing about its accuracy.

The investigator did not check the database for crimes involving firearms or drugs.

The trial court denied D.W.’s motion to suppress evidence. The trial court

credited the testimony of Officers Bewley and Ewing that the Geraldine was a

high-crime area. The trial court concluded that statistics were not necessary on that

point, instead relying on the officers’ testimony about their own experiences at the

Geraldine and the general reputation of the Geraldine within the Metropolitan Police

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Department. The trial court declined to give weight to the testimony of the defense

investigator because that testimony was limited to homicides and it was unclear what

information was recorded on the database the investigator reviewed.

The trial court declined to credit Officer Bewley’s testimony that D.W. was

reaching for his waistband during the chase.

The trial court found that D.W.’s flight was immediate and headlong, occurred

upon the mere sight of the police, was sustained, and involved jumping fences “in []

apparent desperation.” The trial court further found that “the police did nothing to

provoke the flight; they simply appeared at the complex.” Given those

circumstances, it was reasonable to infer that D.W.’s flight reflected consciousness

of guilt.

The trial court acknowledged that one person other than D.W. fled, was caught

and searched, and was released after no weapon was found. A second person lifted

his arms to prepare for a frisk, and another person lifted his shirt as if to indicate that

he was not armed. Most people, however, simply went about their business.

On the basis of these findings, the trial court denied the motion to suppress,

concluding that D.W.’s unprovoked flight in a high-crime area gave the police

reasonable, articulable suspicion to stop D.W.

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D.W. was subsequently found guilty at a stipulated trial.

After this appeal was briefed and argued, the court granted rehearing en banc

in Mayo v. United States, 284 A.3d 403 (D.C. 2022). This appeal was held in

abeyance until the en banc decision in Mayo was issued. Mayo v. United States, 315

A.3d 606 (D.C. 2024) (en banc). The division in this case then directed the parties

to file supplemental briefs and held reargument.

II. Analysis

We review the trial court’s legal rulings de novo, and we defer to the trial

court’s findings of fact unless they are clearly erroneous. Mayo, 315 A.3d at 616.

We are not limited to the trial court’s express findings. Id. at 616-17. We view the

evidence in the light most favorable to the trial court’s ruling, and we also may rely

on facts that were undisputed at the suppression hearing. Id. at 617.

The primary issue in this case is whether the police acted lawfully when they

initially seized D.W. It is undisputed that the initial seizure of D.W. was an

investigative detention (also called a Terry stop) and therefore was lawful if the

police had “a reasonable suspicion supported by articulable facts that criminal

activity may be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal

quotation marks omitted).

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The general framework for determining whether the police had reasonable,

articulable suspicion is well settled. Reasonable, articulable suspicion (1) is “not

reducible to precise definition or quantification,” Florida v. Harris, 568 U.S. 237,

243 (2013) (internal quotation marks omitted); (2) is a “commonsense, nontechnical

conception[],” Ornelas v. United States, 517 U.S. 690, 695 (1996); (3) turns on the

“totality of circumstances,” United States v. Arvizu, 534 U.S. 266, 273 (2002)

(internal quotation marks omitted); (4) requires considerably less than proof by a

preponderance of the evidence and obviously less than probable cause, Kansas v.

Glover, 589 U.S. 376, 380 (2020), although probable cause is also “incapable of

precise definition or quantification into percentages,” District of Columbia v. Wesby,

583 U.S. 48, 64 (2018) (internal quotation marks omitted); (5) requires “more than

an inchoate and unparticularized suspicion or hunch of criminal activity,” Illinois v.

Wardlow, 528 U.S. 119, 124 (2000) (internal quotation marks omitted); see also

Alabama v. White, 496 U.S. 325, 329-30 (1990) (“The Fourth Amendment requires

some minimal level of objective justification for making the stop.”) (internal

quotation marks omitted); and (6) can be based on police observations of actions that

might have an innocent explanation, as long as those actions, considered as a whole,

are sufficiently suspicious, see Wardlow, 528 U.S. at 125 (“[I]n Terry [v. Ohio, 392

U.S. 1 (1968)], the conduct justifying the stop was ambiguous and susceptible of an

innocent explanation.”).

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The trial court identified two factors that supported a determination of

reasonable, articulable suspicion: D.W.’s presence in a high-crime area and D.W.’s

unprovoked flight. After the trial court’s ruling in this case, this court issued its en

banc decision in Mayo, 315 A.3d 606, which also addressed whether a suspect’s

flight and presence in a so-called “high-crime area” sufficed to support a

determination of reasonable, articulable suspicion. See id. at 622-23. Because the

decision in Mayo is of central importance in resolving the present case, we discuss

that decision in some detail.

A. Mayo

We focus on Mayo’s discussion of (1) “high-crime area” evidence, which

Mayo renamed “general locational crime evidence,” 315 A.3d at 632; (2) flight; and

(3) the totality of the circumstances.

1. General locational crime evidence

The court in Mayo stated several legal principles concerning general

locational crime evidence. First, the court acknowledged that such evidence can be

relevant in determining whether reasonable, articulable suspicion exists. Mayo, 315

A.3d at 632-33. Second, the court reiterated prior warnings “against reliance on the

‘high crime area’ phrase as a talismanic litany to justify Terry stops.” Id. at 633

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(internal quotation marks omitted). Third, the court held that “courts should no

longer give weight to a bare ‘high-crime area’ label in assessing the validity of a

Terry stop.” Id. at 634. Fourth, the court held that “conclusory assertions will not

suffice; an officer instead must be able to point to specific evidence that led the

officer to suspect criminal activity in a particular circumstance.” Id. (ellipsis and

internal quotation marks omitted). Fifth, the court held that “assessing the value of

general locational crime information in interpreting potentially suspicious conduct

will be a fact-intensive inquiry . . . [that] should turn 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 court in Mayo applied those principles to the general locational crime

evidence before it. 315 A.3d at 612-13, 636. That evidence came from an officer

who testified that (1) the Gun Recovery Unit (GRU) was often sent to patrol the

neighborhood in which the stop had occurred; (2) the GRU had recovered multiple

weapons, handguns, and narcotics in the neighborhood; and (3) in the preceding

three years, the GRU had recovered over ten guns from the neighborhood, which

was “one of the higher amounts . . . compared to other parts of the city.” Id. at

612-13 (ellipsis omitted).

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The court held that this evidence “add[ed] little” and 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.” Mayo, 315 A.3d at

636. Specifically, the court held that the testimony about narcotics “had no

demonstrated connection to a suspicion that Mr. Mayo was armed”; the officer’s

testimony about guns “lacked meaningful specificity” because the officer had not

identified the boundaries of the neighborhood at issue; and the testimony about

having recovered over ten guns in a three-year period was “weak tea at best.” Id.

The court thus concluded that the evidence of prior criminal activity in the

neighborhood at issue did not “provide[] objectively useful context” in determining

whether the police had reasonable, articulable suspicion. Id. at 635.

2. Flight

The court in Mayo also stated a series of legal principles relating to evidence

of a suspect’s flight: (1) “[a] defendant’s flight from the police can be a relevant

factor in the reasonable suspicion analysis,” 315 A.3d at 624-25 (brackets and

internal quotation marks omitted); (2) “headlong flight is the consummate act of

evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive

of such,” id. at 625 (brackets, ellipsis, and internal quotation marks omitted);

(3) flight must be viewed in context, id.; (4) “[t]here are myriad reasons an innocent

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person might run away from the police,” including “natural fear or dislike of

authority, a distaste for police officers based upon past experience, a fear of police

brutality or harassment, a fear of being apprehended as the guilty party, or other

legitimate personal reasons,” id. (brackets, ellipsis, and internal quotation marks

omitted); (5) “any evaluation of a reasonable police officer’s interpretation of [a

suspect’s] flight must take into account that some individuals in highly policed

communities might fear over-aggressive police conduct and may flee as a result even

if they are innocent of any wrongdoing,” id. at 630; (6) “both . . . Black and Brown

men in particular have reason to be apprehensive of police, and . . . this apprehension

may be considered in assessing whether the actions the police observe provide

reasonable articulable suspicion,” id. at 631 n.16; and (7) “when the aggressive

nature of a police presence in a community makes flight simply to avoid police

interactions a plausible response, such flight cannot automatically be understood as

a manifestation of consciousness of guilt and its value in a reasonable articulable

suspicion analysis is significantly reduced,” id. at 632.

The court in Mayo applied those principles to the circumstances of the flight

in Mayo. 315 A.3d at 627-32. Those circumstances were that (1) before Mr. Mayo

fled, three GRU officers singled Mr. Mayo out and followed him, saying they wanted

to talk to him and asking him if he had guns, id. at 628; (2) the GRU officers should

have understood that those actions communicated to Mr. Mayo “that they did not

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intend to allow him to leave without engaging with them,” id.; (3) the GRU officers

lacked a lawful basis to stop Mr. Mayo at that point, id.; (4) the GRU officers’

conduct and accusatory questioning could have “prompt[ed] a reasonable, innocent

person who fears unjustified arrest to flee,” id. at 629; (5) the GRU officers

reasonably should have been aware that the stop was taking place in a “highly

policed communit[y]” in which individuals might “fear aggressive tactics,” id. at

631; (6) the GRU officers should reasonably have been aware that the GRU had a

reputation for being “aggressive in [the] hunt,” id. (internal quotation marks

omitted); and (7) the GRU officers “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,” id. at 632

(internal quotation marks omitted).

3. Totality of the circumstances

The court in Mayo concluded that the stop there was not supported by

reasonable, articulable suspicion. 315 A.3d at 636-38. With respect to Mr. Mayo’s

flight, the court explained that the GRU officers should have understood that

individuals might fear their aggressive tactics. Id. at 637. With respect to the general

locational crime evidence, the court held that it “lacked meaningful specificity” and

did not establish that the rate of crime in the area was “high.” Id. In sum, the court

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concluded that “[a]t most, the facts establish that GRU officers had an inchoate and

unparticularized hunch that Mr. Mayo was carrying a weapon.” Id.

The court in Mayo also distinguished the facts in Mayo from the facts of the

Supreme Court’s decision in Wardlow. First, the court described the facts of

Wardlow as being that the police were “converging on an area known for heavy

narcotics trafficking” and saw Mr. Wardlow “at a particular location where active

drug activity was anticipated.” Mayo, 315 A.3d at 626, 633 (internal quotation

marks omitted). Second, the court concluded that the Supreme Court’s holding in

Wardlow that the stop at issue was lawful rested not only on Mr. Wardlow’s flight

and the fact that Mr. Wardlow was in a “high-crime area” but also on the fact that

Mr. Wardlow was holding an opaque bag. Id. at 626 n.12. Third, and more

generally, the court stated that Wardlow did not hold that flight invariably justifies a

Terry stop or that “Terry stops could be substantiated based on the mere affixing of

a dangling comparative label of ‘high crime’ to certain city blocks or even entire

neighborhoods.” Id. at 627, 633. Finally, the court stated that the record in Wardlow

“did not contain . . . credited evidence” about aggressive police conduct. Id. at 631

n.17.

Based on its interpretation of Wardlow, the court in Mayo stated that Mayo

was “nothing like Wardlow.” Mayo, 315 A.3d at 627.

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B. The Present Case

Whether the stop in this case was lawful depends on the weight that can

properly be given to the general locational crime evidence and to D.W.’s flight. The

general locational crime evidence in this case is stronger in one respect than such

evidence in Mayo because the evidence in this case is more geographically specific

and compact, relating to a single complex rather than an imprecisely defined

neighborhood. On the other hand, the general locational crime evidence in this case

otherwise reflects the shortcomings identified in Mayo. Some of the evidence was

simply general testimony about the Geraldine’s reputation; some of the evidence

was about crime in general and thus lacked a “demonstrated connection to a

suspicion that” D.W. was committing an offense, Mayo, 315 A.3d at 636; and neither

of the officers was able to be concrete about numbers of offenses that had taken place

at the Geraldine in any specific time frame. In our view, fair application of the

approach taken by the court in Mayo supports a conclusion that the general locational

crime evidence in this case was “weak tea at best” and did not “provide[] objectively

useful context” in determining whether the police had reasonable, articulable

suspicion. Id. at 635-36.

That leaves D.W.’s flight. That flight was in one important respect more

suspicious than Mr. Mayo’s flight, because D.W. fled before officers had singled

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him out in any way. On the other hand, there was evidence in this case relating to

the concerns expressed in Mayo about flight as an innocent response to reasonable

fear of aggressive police conduct. We need not delve further into these complexities,

however, given our holding in Posey v. United States, 201 A.3d 1198 (D.C. 2019),

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.” Id. at 1204.

We conclude that our decisions in Mayo and Posey, taken together, require

reversal of the trial court’s order denying the motion to suppress evidence in this

case. Mayo leads to the conclusion that the general locational crime evidence in this

case added little if anything to reasonable, articulable suspicion. Posey holds that

even unprovoked headlong flight is not by itself sufficient to justify a stop. We

acknowledge the trial court’s point that D.W.’s flight could be viewed as more

suspicious because of the desperation reflected in his jumping fences. We view that

point as having at least some relevance, but we do not view the point as warranting

a result different from our holdings in Mayo and Posey. An innocent individual who

feared “police brutality or harassment” or “over-aggressive police conduct” might

well reflect that fear by taking measures such as jumping fences. Mayo, 315 A.3d

at 625, 630 (internal quotation marks omitted).

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The United States argues that affirmance in this case is required by the

Supreme Court’s decision in Wardlow. We disagree. As the court in Mayo

interpreted Wardlow, Wardlow’s holding rested in part on two factors not present in

this case: Mr. Wardlow’s holding of an opaque bag that could have contained illegal

drugs and information that drug activity was anticipated in the “particular location”

where Mr. Wardlow was observed. Mayo, 315 A.3d at 626 & n.12, 633.

Finally, for the first time on appeal, the United States contends that

suppression of evidence was not justified under the exclusionary rule even if the stop

was unlawful. We decline to consider that argument. See, e.g., In re R.W., 334 A.3d

593, 605-06 (D.C. 2025) (declining to consider exclusionary-rule argument raised

for first time on appeal; citing cases).

For the foregoing reasons, we vacate the judgment of the Superior Court and

remand the case for further proceedings.

So ordered.

MCLEESE, Associate Judge, concurring: I join the opinion of the court in its

entirety. I write separately to address a complication arising from the fact that the

court’s opinion in this case relies heavily on Mayo v. United States, a case in which

I dissented. 315 A.3d 606, 639-58 (D.C. 2024) (en banc) (McLeese, J., dissenting).

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That ordinarily would not present an issue, because I fully acknowledge my

obligation in subsequent cases to follow the holdings of decisions of the court in

cases in which I dissented. The complication arises more narrowly as to one of the

areas of my disagreement with the decision of the court in Mayo: my view that the

opinion of the court in Mayo incorrectly interpreted the Supreme Court’s decision in

Illinois v. Wardlow, 528 U.S. 119 (2000). Mayo, 315 A.3d at 649, 652-53, 655-56.

Specifically, I concluded in my dissent in Mayo that (1) the Mayo court’s view that

the possibility that innocent persons might flee out of fear substantially reduced the

weight to be given to flight was inconsistent with the reasoning of Wardlow, id. at

650; (2) the opinion of the court in Mayo inaccurately described the facts of

Wardlow, id. at 653; (3) the approach to general locational crime evidence taken by

the opinion of the court in Mayo was inconsistent with the weight given to such

evidence in Wardlow, id. at 652-53; and (4) the opinion for the court in Mayo

incorrectly interpreted the holding in Wardlow to rest in part on Mr. Wardlow’s

possession of an opaque bag, id. at 655-56.

My view that the opinion of the court in Mayo incorrectly interpreted the

Supreme Court’s decision in Wardlow raises a challenging question for me. In

general terms, the question is: How should a lower-court judge proceed if (1) the

judge personally interprets a decision of the Supreme Court of the United States in

one way; but (2) a lower-court decision normally binding on the judge, either by the

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judge’s own court or by a higher court other than the Supreme Court of the United

States, has adopted a different and inconsistent interpretation of the Supreme Court’s

opinion? Should the judge follow his or her own personal view as to the proper

interpretation of the Supreme Court opinion or the differing view adopted by the

normally binding decision of the lower court?

As far as I have been able to determine, neither the Supreme Court of the

United States nor this court has expressly answered this question. I have located

several decisions in which federal circuit courts of appeals have squarely addressed

the question, and all of those decisions hold that judges on a subsequent panel are

bound by prior circuit decisions interpreting Supreme Court cases, even if those

judges believe that the prior circuit decisions misinterpreted the Supreme Court

cases at issue. See Smith v. GTE Corp., 236 F.3d 1292, 1301-04 (11th Cir. 2001)

(even if prior decision of circuit misinterpreted Supreme Court case that prior

decision discussed, subsequent panel of circuit was bound by prior circuit decision);

Barber v. Johnson, 145 F.3d 234, 237 (5th Cir. 1998) (same); Clow v. U.S. Dep’t of

Hous. & Urb. Dev., 948 F.2d 614, 616 n.2 (9th Cir. 1991) (per curiam) (“The dissent

does not argue that an intervening Supreme Court decision has cast doubt on our

prior circuit law, rather it asserts that the very Supreme Court decision upon which

these cases rely does not support their holdings. If we were all free to disregard our

prior circuit law based on our own predilections as to whether these decisions

20

properly construe the Supreme Court cases upon which they rely, the doctrine of

stare decisis would have little meaning in our circuit. Accordingly, contrary to the

dissent’s suggestion, we have no authority to revisit our circuit’s embrace of the

doctrine of hypothetical jurisdiction.”), abrogated on other grounds by Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83 (1998). The sole state case I have found

addressing an analogous situation reached the equivalent conclusion. State v.

Cousins, 473 P.3d 961 (table), No. 121,676, 2020 WL 6243299, at *9 (Kan. Ct. App.

Oct. 23, 2020) (“Cousins argues that Perkins was wrongly decided because it

misinterpreted United States Supreme Court caselaw. But this court is bound by

Kansas Supreme Court precedent unless there is some indication that the court is

departing from its earlier position, and here there is not.”).

As an aside, I note that there appear to be conflicts in the circuits about how

to handle two related but distinct situations: (1) where a prior circuit decision has

overlooked Supreme Court authority, compare, e.g., Sabal Trail Transmission, LLC

v. 18.27 Acres of Land, 59 F.4th 1158, 1160, 1173 (11th Cir. 2023) (under

“prior-precedent rule” prior decisions of circuit are binding even if prior circuit

decisions overlooked contrary Supreme Court decisions), with, e.g., United States v.

Tann, 577 F.3d 533, 542 (3d Cir. 2009) (subsequent circuit panel not bound by prior

decision of circuit that did not address contrary Supreme Court authority), and

(2) where a circuit-court panel “believes that there is conflict between an initial

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binding precedent [of the circuit] and a subsequent decision [of the circuit] that

interpreted the initial precedent,” Parker v. K & L Gates, LLP, 76 A.3d 859, 880 n.2

(D.C. 2013) (McLeese, J., concurring) (citing cases).

Turning back to the precise issue before me, I do not view that issue as an

easy one. On one hand, the obligation of lower courts to follow the holdings of the

Supreme Court has been described as “absolute, as it must be in a hierarchical

system.” Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, 117 F.4th

389, 395 (6th Cir. 2024) (quoting Ramos v. Louisiana, 590 U.S. 83, 124 n.5 (2020)

(Kavanaugh, J., concurring in part)). It seems counterintuitive that a decision of a

lower court that incorrectly interprets a Supreme Court decision should be treated as

requiring later judges of that lower court to follow incorrect decisions of that lower

court rather than the actual holding of the Supreme Court.

On the other hand, the view that a lower-court decision interpreting a Supreme

Court case is not binding on judges of that lower court would have surprising and

undesirable consequences. As the Ninth Circuit put it, “If we were all free to

disregard our prior circuit law based on our own predilections as to whether these

decisions properly construe the Supreme Court cases upon which they rely, the

doctrine of stare decisis would have little meaning . . . .” Clow, 948 F.2d at 616 n.2.

To further illustrate the potential implications of such an approach, it would seem to

22

follow that federal district court judges could decline to follow decisions of their

circuit interpreting Supreme Court cases, instead taking the view that their obligation

was to follow their own understanding of what the Supreme Court had held.

On balance, I generally lean toward the view taken by the circuit courts that

have addressed the issue. Thus, I conclude that, at least barring unusual

circumstances, I am bound by the holdings of decisions of this court interpreting a

Supreme Court case, even if in my view those decisions incorrectly interpreted the

Supreme Court case at issue.

I view it as a close question whether there are unusual circumstances that

might warrant following my own understanding of Wardlow rather than the

interpretation of Wardlow reflected in Mayo. I expressed the view in my dissenting

opinion that Wardlow “unambiguously foreclose[d] the approach to general

locational crime evidence taken by the opinion for the en banc court in this case.”

Mayo, 315 A.3d at 653 (McLeese, J., dissenting). I also explained that in my view

the interpretation of Wardlow adopted by the court in Mayo led the court’s opinion

in Mayo to “depart[] from the path of ‘commonsense, nontechnical’ reasoning that

the Supreme Court has directed us to follow.” Id. at 654 (quoting Ornelas v. United

States, 517 U.S. 690, 695 (1996)). Finally, I noted that the court’s interpretation of

Wardlow in Mayo led the court in Mayo to invalidate the search in that case even

23

though other courts around the country had consistently upheld searches in

comparable circumstances. Id. at 656-67 (citing cases).

My views about the decision of the court in Mayo have not changed.

Moreover, because the decision in Mayo was of the en banc court, one of the

safeguards against erroneous lower-court interpretations of Supreme Court

opinions—review by a court sitting en banc—is not practically available.

Nevertheless, I conclude that the circumstances in this case are not sufficiently

unusual to warrant a departure from what I take to be the general rule that I should

adhere to the decisions of this court interpreting decisions of the Supreme Court. I

say that for three principal reasons: (1) I agreed with many of the points made by the

opinion for the court in Mayo, and some of the points on which I disagreed with the

decision in Mayo were ones as to which reasonable jurists in my view could disagree;

(2) I viewed the ultimate question whether the search in Mayo was lawful as “close,”

Mayo, 315 A.3d at 639 (McLeese, J., dissenting); and (3) I was the sole dissenter in

Mayo, which means that all six of my colleagues who sat on the case viewed

Wardlow differently than I do.

For the foregoing reasons, I adhere in this case to the interpretation of

Wardlow adopted by the court in Mayo. If, as I believe, that interpretation was

incorrect and has set this court on a path that is contrary to the directions we have

24

been given by the Supreme Court, then the Supreme Court in an appropriate case

could remedy that problem.

GLICKMAN, Senior Judge, concurring dubitante: I, too, join the opinion of the

court; I feel obliged to do so because, like my colleagues, I believe this appeal is

governed by the decisions in Mayo v. United States, 315 A.3d 606 (D.C. 2024) (en

banc), and Posey v. United States, 201 A.3d 1198 (D.C. 2019). Nonetheless, I write

separately because I find the outcome to be legally and logically dubious. But for

our controlling precedents, I would affirm appellant’s conviction on the ground that

his unprovoked, headlong flight in response to seeing police officers come to his

neighborhood justified an objectively reasonable and articulable suspicion that he

fled because he was engaged in criminal activity.

By saying that appellant’s flight was unprovoked, I mean that he fled at the

mere sight of the police officers, even though they were some fifty feet away and

had not singled him out or threatened him in any way. Nor can it be said that

appellant was alone or in an isolated spot or otherwise in an especially vulnerable or

dangerous situation when he noticed the police. Rather, he was standing outside a

residential apartment complex in broad daylight, among numerous potential

witnesses to how the officers would conduct themselves if they approached him.

25

Under those circumstances, the reason appellant’s alarmed reaction to the

arrival of police in his vicinity justified their stopping him for investigation is that

“deliberately furtive actions and flight at the approach of . . . law officers are strong

indicia of mens rea.” 1 As the Supreme Court has explained, “[h]eadlong flight—

wherever it occurs—is the consummate act of evasion: It is not necessarily indicative

of wrongdoing, but it is certainly suggestive of such.” 2 The Court has deemed these

propositions to be “based on commonsense judgments and inferences about human

behavior.” 3 I highlight the words “wherever it occurs”—they signify, I submit, that

unprovoked, headlong flight at the mere sight of police ordinarily justifies a

reasonable suspicion of criminal wrongdoing whether or not such flight takes place

in a so-called (though ill-defined) “high-crime area.” 4

District of Columbia v. Wesby, 583 U.S. 48, 59 (2018) (quoting Sibron v.

1

New York, 392 U.S. 40, 66 (1968)).

2

Illinois v. Wardlow, 528 U.S. 119, 124 (2000). As the Court further

explained, “unprovoked flight is simply not a mere refusal to cooperate. Flight, by

its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.

Allowing officers confronted with such flight to stop the fugitive and investigate

further is quite consistent with the individual’s right to go about his business or to

stay put and remain silent in the face of police questioning.” Id. at 125.

3

Id.

4

Thus, I think it unnecessary to resolve the disputed issue in this case of

whether the prosecution established that the Geraldine Apartment Complex was a

“high-crime area.” In general, though, like the dissenters in Wardlow, I doubt that a

neighborhood’s relatively high crime rate has much bearing on whether a particular

individual’s flight at the sight of police is meaningfully suggestive of criminal

26

In Mayo, this court discounted the suspiciousness of unprovoked, headlong

flight from police because there may be “myriad,” “plausible” reasons why an

innocent person might run; including, for example, a legitimate fear of police

harassment or wrongful arrest. 5 But in Wardlow the Supreme Court rejected the

“argu[ment] that there are innocent reasons for flight from police and that, therefore,

flight is not necessarily indicative of ongoing criminal activity.” 6 While “[t]his fact

is undoubtedly true,” the Court said, the Fourth Amendment permits limited

investigative stops based on reasonable suspicion even if the observed conduct was

“by itself lawful,” “ambiguous,” and “susceptible of an innocent explanation.” 7 The

very purpose of such a stop is “to resolve the ambiguity.” 8

For the foregoing reasons, I concur in the court’s opinion dubitante, i.e., with

doubt as to its correctness. If the precedential slate were clean, I would dissent.

wrongdoing, at least in the absence of any evidence of ongoing or very recent

criminal activity at or near the scene. See generally 4 Wayne R. LaFave, Search and

Seizure § 9.5(g) at 744-45, 768-69 (6th ed. 2020).

5

Mayo, 315 A.3d at 630,632.

6

Wardlow, 528 U.S. at 125.

7

Id. at 125.

8

Id. I do not rule out the (hypothetical) possibility that, in a particular case, a

defendant might show a site-specific pattern of aggressive law enforcement activity

so pervasive and abusive that it would invalidate the otherwise reasonable inference

of criminal activity from the defendant’s flight at the mere sight of police. But no

such showing was made in this case.