United States v. Harold Castle

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2016 Decided June 14, 2016

No. 14-3073

UNITED STATES OF AMERICA,

APPELLEE

v.

HAROLD DELONTE CASTLE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cr-00067-1)

Tony Axam Jr., Assistant Federal Public Defender, Office

of the Federal Public Defender, argued the cause for

Appellant. With him on the briefs was A.J. Kramer, Federal

Public Defender.

Ryan M. Malone, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Vincent H.

Cohen Jr., Acting U.S. Attorney at the time the brief was

filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Todd

W. Gee, Assistant U.S. Attorneys.

Before: MILLETT, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

2

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Dissenting opinion filed by Senior Circuit Judge

SILBERMAN.

EDWARDS, Senior Circuit Judge: On March 25, 2014,

Appellant Harold Castle was charged, in a one-count

indictment, with possession with intent to distribute 100

grams or more of a mixture containing a detectable amount of

phencyclidine (“PCP”), in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B)(iv). The charge was based on physical evidence

and a statement obtained as a result of Appellant’s warrantless

seizure on the evening of February 24, 2014. Prior to trial,

Appellant filed a motion to suppress the evidence, arguing

that he was stopped by police officers without reasonable,

articulable suspicion in violation of the Fourth Amendment.

After a hearing, the District Court denied the motion. A jury

found Appellant guilty of the lesser-included offense of

possession with intent to distribute a detectable amount of

PCP, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). On

October 21, 2014, the District Court sentenced Appellant to

65 months imprisonment to be followed by six years of

supervised release. Appellant now appeals the denial of his

suppression motion.

I. INTRODUCTION

The District Court found that, on the evening in question,

the seizing officers were on patrol in an unmarked pickup

truck. The officers turned onto Yuma Street (a residential

block in southeast Washington, D.C.) and saw Appellant

walking quickly from the direction of an apartment complex

outside of which PCP was known to be sold and toward an

alleyway next to a house across the street. The alley led to a

3

vacant yard. The District Court also found that, after they

pulled up in front of the house, the officers saw Appellant

lean over near a U-Haul truck parked in the yard.

The District Court additionally credited the officers’

testimony that they patrolled the area so regularly that “people

in the neighborhood” had come to recognize their unmarked

truck as a police vehicle, to expect such patrols, and to act as

“lookouts.” On the basis of these generalized findings

regarding “the neighborhood,” the District Court concluded

that it was “not unreasonable for the officers to believe

[Appellant] knew or suspected their vehicle was a police

vehicle.” Consequently, the District Court found that it also

was not unreasonable for the officers to believe that Appellant

was walking quickly in order to evade them and that he

leaned over near the U-Haul in response to their presence.

Finally, the District Court found that when the officers

approached Appellant as he walked out of the backyard area,

they recognized him from several prior seizures that had

occurred some six to nine months earlier. Based on the

totality of the foregoing findings of historical fact and

inferences from those facts, the District Court concluded that

the officers had reasonable, articulable suspicion that

Appellant had just committed or was about to commit a

criminal offense when they seized him. We disagree.

“Under the Fourth Amendment our society does not

allow police officers to ‘round up the usual suspects.’” United

States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006). An

officer relying on his or her “knowledge of [an individual’s]

criminal record” is “required to pair” that knowledge with

“‘concrete factors’ to demonstrate that there [is] a reasonable

suspicion of current criminal activity.” United States v.

Foster, 634 F.3d 243, 247 (4th Cir. 2011) (emphasis added)

(citation omitted). In other words, knowledge of an

4

“individual’s criminal history” can “corroborate[],” but not

substitute for “objective indications of ongoing criminality.”

United States v. Monteiro, 447 F.3d 39, 47 (1st Cir. 2006).

The law also makes clear what is eminently logical. In

order to find that a person is evading the police, there must be

evidence that the person has knowledge of a police presence.

See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Similarly,

in the context of a reasonable, articulable suspicion analysis,

“furtive gestures ‘are significant only if they were undertaken

in response to police presence.’” United States v. Brown, 334

F.3d 1161, 1168 (D.C. Cir. 2003) (quoting United States v.

Edmonds, 240 F.3d 55, 61 (D.C. Cir. 2001) (quoting United

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

both instances, the putatively evasive or furtive conduct

cannot provide the necessary evidence of knowledge of a

police presence. There must be independent evidence from

which that knowledge can be inferred. See Wardlow, 528 U.S.

at 124; Brown, 334 F.3d at 1168; Edmonds, 240 F.3d at 57,

61-62; Johnson, 212 F.3d at 1316-17.

As we explain more fully below, there is no such

evidence here. Certainly the officers’ assumption that

Appellant knew of the presence of their truck on the evening

in question gains no support from general knowledge in the

neighborhood that the truck was a police vehicle. The ability

of neighborhood people to recognize the truck as a police

vehicle cannot support an inference that Appellant had

knowledge of the presence of that known police vehicle on

the evening he was stopped. And the record is entirely devoid

of any evidence from which a reasonable officer could infer

that Appellant knew of the truck’s (and therefore the

officers’) presence before he was stopped. There is, for

example, no testimony that Appellant so much as glanced in

the direction of the officers’ truck at any point after the

5

officers turned onto Yuma Street. Nor is there evidence that

Appellant was ever in close proximity to the truck. Neither

did the officers testify that anyone else in the neighborhood

alerted Appellant or that a “lookout” set off a general alarm

that a known police vehicle was on the block. In other words,

the officers’ critical assumption of knowledge was based on

nothing.

It is therefore clear that the Government failed to carry its

burden of demonstrating that the actions of Appellant on the

evening in question amounted to “concrete factors” or

“objective indications” that he had just committed or was

about to commit a criminal offense. Walking quickly on a

very cold evening is commonplace, not suspicious, activity.

So, too, is walking into an alleyway, leaning over, and

walking out. These actions are entirely mundane. The fact that

they took place in a residential neighborhood plagued by drug

use did not allow the police officers to ignore the dictates of

the Fourth Amendment. See United States v. Sprinkle, 106

F.3d 613, 618 (4th Cir. 1997) (prior conviction “for a

narcotics offense” and presence “in a neighborhood with a

high incidence of drug traffic,” without “(other) particularized

evidence that indicates criminal activity is afoot,” is

insufficient to demonstrate reasonable, articulable suspicion).

Under Ornelas v. United States, 517 U.S. 690 (1996), we

give “due weight” to a District Court’s determination of the

reasonableness of inferences drawn by police officers from

historical facts. Id. at 700. In assessing this determination,

however, we are obliged to adhere to the Supreme Court’s

admonition that “due weight must be given, not to [an

officer’s] inchoate and unparticularized suspicion or ‘hunch,’

but to the specific reasonable inferences which he is entitled

to draw from the facts in light of his experience.” Terry v.

Ohio, 392 U.S 1, 27 (1968). As we explain below, because the

6

District Court’s determination that the officers’ inference that

Appellant was aware of their presence had no basis in the

factual record, it is entitled to no weight. We therefore

reverse.

II. BACKGROUND

The events giving rise to Appellant’s seizure took place

on February 24, 2014, in the 100 block of Yuma Street,

Southeast, Washington, D.C. This long block, which begins at

First Street on the west and terminates in a cul-de-sac on the

east, consists of a mix of small apartment buildings and single

family homes.

At approximately 6:30 p.m. on a very cold evening,

Metropolitan Police Department Officers Olszak and Moseley

were patrolling in an undercover police vehicle – an

unmarked Dodge Ram truck. The officers were not in

uniform, but were wearing vests with the word “Police” on

the front and back. Upon turning onto the 100 block of Yuma,

the officers noticed two men at the opposite end of the block,

near the cul-de-sac. What caught the officers’ attention was

the fact that the men were walking quickly as they crossed

from the right sidewalk near 133 Yuma – an apartment

building in front of which PCP was known to be sold – to 144

Yuma, a single family home on the opposite side of the street.

As the officers drove toward the cul-de-sac, Appellant

continued across the street and into an alleyway between 144

Yuma and the house next door, out of the officers’ field of

vision. The officers sped up a bit; however, when they pulled

up in front of 144 Yuma, Appellant had nearly reached a U-

Haul truck parked in the backyard of 144 Yuma, some 125

feet from the street. The other man, later identified as a Mr.

Banks, had stopped at the front corner of 144 Yuma,

7

apparently to urinate. The officers got out of their truck, and

Officer Olszak ran toward the alleyway after Appellant, while

Officer Moseley walked over to Mr. Banks.

Just before Officer Olszak entered the alley, he saw

Appellant, now on the far side of the U-Haul, bend over while

one of his legs “kick[ed] up” parallel to the ground and then

stand back up. Officer Moseley, still near the front of the

house, saw Appellant bend over, but did not see his leg lift up.

Each officer’s view was partially obstructed by the U-Haul.

At this point, neither officer had recognized Appellant as

Harold Castle.

The officers then observed Appellant walking back

toward Yuma Street with his hands in his pockets. Officer

Olszak, who came face to face with Appellant in the alleyway

between the houses, ordered Appellant to remove his hands

from his pockets. It was only after Appellant obeyed Officer

Olszak’s order that Officer Olszak recognized him as Harold

Castle.

Officer Olszak had, on several prior occasions, seen

Appellant in front of the apartment building at 133 Yuma

Street with other men. Officer Olszak also recognized

Appellant from several prior seizures that occurred some six

to nine months earlier. Two of these prior seizures resulted in

Appellant’s arrest for PCP-related crimes. One involved a car

and foot chase in a different neighborhood. Another, which

took place in front of 133 Yuma Street, involved an attempt

by Appellant to avoid arrest by disposing of a vial of liquid

that had the distinct odor of PCP. And one seizure involved a

foot chase that started in the 100 block of Yuma, but turned

up no contraband and so Appellant was not arrested.

8

Having recognized Appellant as Mr. Castle, Officer

Olszak touched him on his arm and told him to “hold on for a

sec.” Officer Olszak then ran to the backyard to investigate

the U-Haul truck. Meanwhile, Appellant walked over to

Officer Moseley, who had detained Mr. Banks following a

consensual frisk that had turned up no contraband.

As Appellant neared Officer Moseley, Moseley

recognized him as Harold Castle. Like Officer Olszak, Officer

Moseley was familiar with Appellant as a result of Appellant

having been seized in the past and his general presence in the

neighborhood. Officer Moseley also smelled the odor of PCP

emanating from Appellant.

At this point, Appellant had put his hands back in his

pockets and appeared agitated and nervous. Officer Moseley

ordered him to sit down on the curb. Appellant sat down, but

immediately jumped back up, complaining that his pants were

clean and he did not want to get them dirty. Officer Moseley

again told Appellant to sit down, and he complied.

While Appellant was sitting on the curb, Officer Moseley

saw him place a small vial on the ground and lean over it.

Based upon the vial’s appearance and its smell, Officer

Moseley suspected that it contained PCP. Officer Moseley

arrested Appellant shortly afterward. In a search incident to

that arrest, officers recovered a pack of cigarettes, a cell

phone, a pair of black rubber gloves, paperwork in

Appellant’s name, and approximately fifteen dollars in cash.

While Officer Moseley was interacting with Appellant on

Yuma Street, a crime scene search officer joined Officer

Olszak at the U-Haul. Sometime after Appellant was arrested,

Officer Olszak and the crime scene search officer found an

9

eight-ounce bottle of liquid near the U-Haul that smelled like

PCP, as well as a plastic bag of black vial caps.

After being charged and prior to trial, Appellant filed a

motion to suppress the evidence obtained as a result of his

seizure, including the one-ounce vial recovered by Officer

Moseley and a statement Appellant allegedly made when

arrested. Appellant did not seek to suppress the eight-ounce

bottle of PCP or the vial caps. During a hearing before the

District Court, Officers Olszak and Moseley provided the

only evidence regarding the events leading to Appellant’s

arrest.

Based on the officers’ testimony, the District Court made

findings of fact and determined that, as a matter of law,

Officer Olszak stopped Appellant when he touched him on

the arm and instructed him to “hold on.” The Court also

determined that at that point, the officers had reasonable,

articulable suspicion to stop Appellant. The District Court

consequently denied Appellant’s motion to suppress.

III. STANDARDS OF REVIEW

When presented with an appeal of the denial of a motion

to suppress evidence on Fourth Amendment grounds, we

review de novo preserved claims regarding whether and when

a seizure occurred. See United States v. Brodie, 742 F.3d

1058, 1061 (D.C. Cir. 2014). We also review de novo a

district court’s “ultimate determination[]” of whether a police

officer had the reasonable, articulable suspicion or probable

cause necessary to legally effectuate any such seizure.

Ornelas v. United States, 517 U.S. 690, 697, 699 (1996); see

also United States v. Bailey, 622 F.3d 1, 5 (D.C. Cir. 2010).

Under Ornelas, we give “due weight” to a District Court’s

determination of the reasonableness of inferences drawn by

10

police officers from historical facts. 517 U.S. at 700. In

assessing this determination, however, we are obliged to

adhere to the Supreme Court’s admonition that “due weight

must be given, not to [an officer’s] inchoate and

unparticularized suspicion or ‘hunch,’ but to the specific

reasonable inferences which he is entitled to draw from the

facts in light of his experience.” Terry, 392 U.S at 27. While

we “may consider both evidence offered at the suppression

hearing and the trial,” Bailey, 622 F.3d at 5, when, as here, the

District Court has made factual findings, we may not search

the record for any reasonable view of the evidence that will

support the trial judge’s conclusions, id. at 5 n.1. Rather, we

must review the factual findings of the District Court and,

assuming they are not clearly erroneous, determine whether

they support the contested seizure. See id. Finally,

suppression arguments that are not presented to the trial court

are deemed waived and cannot be argued on appeal. See

United States v. Hewlett, 395 F.3d 458, 460-61 (D.C. Cir.

2005).

IV. ANALYSIS

A. The Seizure

“[W]henever a police officer accosts an individual and

restrains his freedom to walk away, he has ‘seized’ that

person, and the Fourth Amendment requires that the seizure

be ‘reasonable.‘” Brown v. Texas, 443 U.S. 47, 50 (1979)

(alteration in original) (citations omitted). A seizure occurs

“when physical force is used to restrain movement or when a

person submits to an officer’s ‘show of authority.’” Brodie,

742 F.3d at 1061 (quoting California v. Hodari D., 499 U.S.

621, 626 (1991)).

11

Whether police action amounts to a “show of authority”

requires the court to ask whether a “reasonable person” “in

view of all the circumstances surrounding the incident, . . .

would have believed that he was not free to leave.” United

States v. Wood, 981 F.2d 536, 539 (D.C. Cir. 1992) (quoting

United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

Factors considered in assessing whether an officer’s actions

amounted to a show of authority “include whether the suspect

was physically intimidated or touched, whether the officer

displayed a weapon, wore a uniform, or restricted the

defendant’s movements, the time and place of the encounter,

and whether the officer’s ‘use of language or tone of voice

indicat[ed] that compliance with the officer’s request might be

compelled.’” Id. (alteration in original) (quoting Mendenhall,

446 U.S. at 554).

The Supreme Court has repeatedly held that police do not

manifest a show of authority “merely [by] approaching an

individual on the street or in another public place, by asking

him if he is willing to answer some questions, [or] by putting

some questions to him if the person is willing to listen,”

provided the officers do not imply that answers are obligatory.

Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality

opinion); see also Florida v. Bostick, 501 U.S. 429, 434

(1991); Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984) (per

curiam); INS v. Delgado, 466 U.S. 210, 215-17 (1984);

Mendenhall, 446 U.S. at 555; United States v. Lewis, 921 F.2d

1294, 1297-98 (D.C. Cir. 1990) (no seizure arises when

officers, “displaying no weapons and speaking in a normal

tone of voice, approach individuals in a public place and ask

permission to talk with them” (citation omitted)).

If police behavior amounts to a show of authority, a

seizure will be found if the individual at whom the show of

12

authority is directed submits. Hodari D., 499 U.S. at 628-29;

see also Brodie, 742 F.3d at 1061; Wood, 981 F.2d at 538.

Relying on Hodari D. and Brodie, Appellant, who bears

the burden of demonstrating that he was seized, see United

States v. Goddard, 491 F.3d 457, 462 (D.C. Cir. 2007) (per

curiam), argues that he was stopped when Officer Olszak

ordered him to remove his hands from his pockets and he

complied. A careful review of the record, however, leaves no

doubt that Appellant did not preserve this claim. Quite the

contrary. The record is clear that Appellant’s counsel’s

argument was that the stop was inexorably tied to Officer

Olszak’s touch and directive to “hold on.” Tr. of Motions

Hearing at 120-21, 130 (June 30, 2014). Consequently,

Appellant’s claim regarding the stop is similarly limited

before this court. See Hewlett, 395 F.3d at 460-61.

We agree with the District Court that Appellant was

seized when Officer Olszak touched Appellant and instructed

him to “hold on” and Appellant complied. Applying the

Mendenhall factors, we are satisfied that Appellant was

subject to the requisite show of authority when Officer

Olszak, wearing a vest labeled “Police,” ran up to him in a

dark, narrow alley (effectively blocking Appellant’s path to

Yuma Street), “ordered” Appellant to remove his hands from

his pockets, and, in response to Appellant’s unquestioning

compliance, initiated physical contact and instructed

Appellant to “hold on,” all within sight of Officer Moseley

who was detaining Mr. Banks. At this point, Officer Olszak

had “accost[ed]” Appellant and “restrain[ed] his freedom.”

Brown, 443 U.S. at 50 (citation omitted). As the District Court

found, no reasonable person in Appellant’s position and

subject to Officer Olszak’s directives would have believed

that he was free to go on about his business.

13

This conclusion is consistent with our precedent. Thus,

for example, in Wood, we found that a show of authority

occurred when a uniformed officer, at night, followed an

individual into a dark entrance hallway of an apartment

building and, positioning himself behind the individual,

ordered, “[H]alt right there.” 981 F.2d at 540.

A recent decision by the District of Columbia Court of

Appeals, In re J.F., 19 A.3d 304 (D.C. 2011), is also

instructive, albeit not binding. In that case, two Metropolitan

Police Department plainclothes officers who were wearing

“Police” vests got out of an undercover car and approached an

individual and his companion on a deserted street. Id. at 306,

310. One of the officers ordered the individual to remove his

hands from his pockets and then asked him some questions.

Id. at 306. The other officer searched the individual’s

companion and, when no contraband was found, detained that

person while a warrant check was run. Id. at 309-10. The

court held that the individual who was instructed to remove

his hands from his pockets was subject to a show of authority

resulting in an illegal seizure. Id. at 310; see also Brodie, 742

F.3d at 1060-61 (Government conceded a show of authority

when two officers pulled their car parallel to a person on a

sidewalk in front of townhomes and one officer “got out of

the car and told [the individual] to put his hands on a nearby

car”); United States v. Jones, 584 F.3d 1083, 1085, 1087

(D.C. Cir. 2009) (Government conceded a seizure when an

officer wearing a utility vest with the word “POLICE” on it

got out of his car and, walking toward an individual who was

among 15 or 20 people gathered throughout a block in what

appeared to be “somewhat of a party atmosphere,”

“instructed” the individual from a distance of less than 10 feet

to “[c]ome here”).

14

The Government does not suggest that Officer Olszak’s

actions did not amount to a show of authority. Rather, the

Government argues that Appellant was not seized when

Officer Olszak confronted him because “[A]ppellant

continued walking without pausing when Officer Olszak said

‘hold on for a sec.’” Br. for Appellee at 24 n.17. The

Government’s argument is disingenuous. The District Court

found, based on Officer Olszak’s own testimony, that Officer

Moseley, who “had detained Mr. Banks at the front of the

house,” “‘took over’ the detention of Defendant.” United

States v. Castle, 53 F. Supp. 3d 95, 99 (D.D.C. 2014). The

trial judge thus credited Officer Olszak’s testimony that when

Appellant continued walking after being told to stop, he was

walking toward Officer Moseley and, according to Officer

Olszak, was “‘not trying to go anywhere,’” but rather had

“‘submitted.’” Id. at 100. The Government does not contend

that the District Court’s findings are clearly erroneous.

It is hard to imagine a more submissive response to

Officer Olszak’s directive to “hold on” given that, upon

issuing it, Officer Olszak ran to the backyard, leaving

Appellant unattended. Rather than attempting to evade Officer

Moseley via the now clear path to Yuma Street, Appellant

exhibited complete submission to police authority by walking

directly to Officer Moseley. In sum, we reject the

Government’s argument that the District Court erred in its

conclusion as to when the seizure happened.

B. Reasonable Articulable Suspicion

Pursuant to the Fourth Amendment, a police officer who

seizes a person on less than probable cause “must be able to

point to specific and articulable facts which, taken together

with rational inferences from those facts,” Terry, 392 U.S at

21, support “a reasonable and articulable suspicion that the

15

person seized is engaged in criminal activity,” Reid v.

Georgia, 448 U.S. 438, 440 (1980) (per curiam) (citing

Brown, 443 U.S. at 51). See also Ornelas, 517 U.S. at 696. It

is the Government’s burden to provide evidence sufficient to

support reasonable suspicion justifying any such stop. See

Brown, 443 U.S. at 51-52; see also Royer, 460 U.S. at 500.

When reviewing a District Court’s reasonable, articulable

suspicion assessment, we look, as does the District Court, to

the totality of the circumstances, understanding that factors

individually “susceptible to an innocent explanation” may

“suffice[] to form a particularized and objective basis” when

taken together. United States v. Arvizu, 534 U.S. 266, 277

(2002). In considering the totality of the circumstances, it is

“imperative” that we look only to “the facts available to the

officer at the moment of the seizure.” Terry, 392 U.S. at 21-

22; see also Ornelas, 517 U.S. at 696; Sibron v. New York,

392 U.S. 40, 64 (1968); Rios v. United States, 364 U.S. 253,

261-62 (1960) (facts discovered as a result of or subsequent to

the seizure may not be considered). And we must assess those

facts within an objective framework: “‘[T]he issue is whether

a reasonably prudent man in the circumstances would be

warranted in his belief’ that the suspect is breaking, or is

about to break, the law.” Edmonds, 240 F.3d at 59 (quoting

Terry, 392 U.S. at 27); see also United States v. McKie, 951

F.2d 399, 402 (D.C. Cir. 1991) (per curiam) (“[W]e . . .

determine what facts were known to the officer and then

consider whether a reasonable officer in those circumstances

would have [had a reasonable, articulable suspicion].”).

In undertaking this de novo review of a District Court’s

“ultimate determination[]” that a seizing officer had the

reasonable, articulable suspicion necessary to effectuate a

particular stop, we must “take care both to review findings of

historical fact only for clear error and to give due weight to

16

inferences drawn from those facts by resident judges and local

law enforcement officers.” Ornelas, 517 U.S. at 697, 699.

With respect to findings of historical fact, this means that we

will find error if, looking to the entire record, we are

definitely and firmly convinced that the trial court made a

mistake. See Anderson v. City of Bessemer City, 470 U.S. 564,

573 (1985). With respect to inferences from those historical

facts, the Supreme Court has instructed that when the

inferences at issue are a police officer’s, “[a]n appeals court

should give due weight to a trial court’s finding that the

officer was credible and the inference reasonable.” Ornelas,

517 U.S. at 700. But in assessing a trial court’s

reasonableness determination, it is critical that we also keep in

mind the Supreme Court’s admonition that “due weight must

be given, not to [an officer’s] inchoate and unparticularized

suspicion or ‘hunch,’ but to the specific reasonable inferences

which he is entitled to draw from the facts in light of his

experience.” Terry, 392 U.S. at 27 (emphasis added); see also

Wardlow, 528 U.S. at 123-24; United States v. Sokolow, 490

U.S. 1, 7 (1989) (a “reasonable suspicion” requires “more

than an inchoate and unparticularized suspicion or hunch”

(citation omitted)). Moreover, an appellate court has the

“power to correct errors of law, including those that may

infect a so-called mixed finding of law and fact, or a finding

of fact that is predicated on a misunderstanding of the

governing rule of law.” Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485, 501 (1984); see also Inwood Labs.,

Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 n.15 (1982) (“[I]f

the trial court bases its findings upon a mistaken impression

of applicable legal principles, the reviewing court is not

bound by the clearly erroneous standard.”).

Finally, as noted above, and as particularly relevant to

this case, the Fourth Amendment “does not allow police

officers to ‘round up the usual suspects.’” Laughrin, 438 F.3d

17

at 1247. Consequently, an officer relying on his or her “prior

knowledge of [an individual’s] criminal record” is “required

to pair” that knowledge “with some more ‘concrete factors’ to

demonstrate that there [is] a reasonable suspicion of current

criminal activity.” Foster, 634 F.3d at 247 (emphasis added).

This means that knowledge of an “individual’s criminal

history [can] corroborate[],” but not substitute for,

particularized, “objective indications of ongoing criminality.”

Monteiro, 447 F.3d at 47.

In this case, the Government argues that four

circumstances support its contention that Officers Olszak and

Moseley had the reasonable, articulable suspicion necessary

to stop Appellant:

(1) The officers’ knowledge that the neighborhood was

a high-crime area particularly associated with PCP

distribution.

(2) The officers’ observation, while on patrol in their

unmarked Dodge Ram truck, of Appellant walking

quickly away from 133 Yuma Street (a building

known for PCP distribution) and toward an

abandoned house.

(3) Appellant’s furtive movements in an alley next to

the abandoned house.

(4) The officers’ prior experience with Appellant, which

included PCP-related arrests.

See Br. for Appellee at 18-19. An additional fact cited by the

Government – the odor of PCP that Officer Moseley noticed

after he took over the detention of Appellant – is not

cognizable because it was not known to the officers before

18

Officer Olszak seized Appellant. See Terry, 392 U.S. at 21-

22; United States v. Holmes, 360 F.3d 1339, 1345 (D.C. Cir.

2004), vacated on other grounds, 543 U.S. 1098 (2005).

The lynchpin of any reasonable suspicion analysis in this

case must be the second and third factors. The first factor –

the high crime nature of the neighborhood – is not

unimportant. But it is only a “contextual consideration[]” and,

as such, cannot provide the kind of information particular to

Appellant that is necessary to demonstrate reasonable

suspicion. See Wardlow, 528 U.S. at 124. The fourth factor –

the officers’ prior experience with Appellant – is particular to

Appellant, but can only corroborate, not provide, the

necessary, concrete indicia that Appellant was involved in

criminal behavior when he was stopped.

The Government argues that the second factor – walking

quickly from the direction of an apartment building outside of

which drugs could be bought toward an abandoned house –

supports reasonable, articulable suspicion because the District

Court concluded that it was not unreasonable for the officers

to perceive Appellant’s behavior as an “evasion of the

police.” Br. for Appellee at 20 & n.14; see also id. at 24-25,

27-28, 27 n.19. The Government additionally points to

Appellant’s bend and leg lift near the U-Haul, describing it as

a furtive movement that “occurred immediately after” and “in

response to” Appellant having “spied the police.” Id. at 21;

see also id. at 21-22, 22 n.16. The Government thus

acknowledges that the probative value of these two

circumstances rests on the District Court’s conclusion that “it

was not unreasonable for the officers to believe Defendant

knew or suspected their [unmarked Dodge Ram] was a police

vehicle.” Castle, 53 F. Supp. 3d at 100. Because the record is

devoid of the sort of evidence necessary to support this

19

conclusion, the Government’s argument in support of

reasonable suspicion necessarily collapses.

The critical role that a possible suspect’s knowledge of

police presence plays in determining whether arguably

evasive action can be part of the totality of the circumstances

supporting reasonable suspicion was made clear by the

Supreme Court in Wardlow, 528 U.S. at 123-24. In that case,

the Court held that, at least in areas of heavy narcotics

trafficking, “[h]eadlong” flight is probative of wrong doing if

it is both unprovoked and a result of “noticing the police.” Id.

at 124. In a similar vein, we have repeatedly emphasized that

“furtive gestures are significant” in a reasonable, articulable

suspicion analysis “only if they were undertaken in response

to police presence, [a]nd a suspect can respond to the

presence of a police officer only if he has recognized him as

an officer.” Brown, 334 F.3d at 1168 (alteration in original)

(emphasis added) (citation omitted); see also Edmonds, 240

F.3d at 61; Johnson, 212 F.3d at 1316.

In support of its conclusion that Officers Olszak and

Moseley reasonably believed that Appellant was aware of

their presence in an unmarked truck and was acting to evade

them, the District Court explained:

[A]s the officers drove down Yuma Street, they saw

Defendant walking very quickly from the direction of

133 Yuma Street, an address known for PCP

distribution and criminal activity, toward a vacant

backyard area, suggesting to the officers that he was

trying to evade their presence. The officers testified

credibly that they patrolled the area so regularly that

people in the neighborhood had come to recognize

their vehicle and to expect such patrols. Indeed,

Officer Olszak testified that people in the

20

neighborhood would act as “lookouts” and alert

others to the presence of the police when they arrived

in the area. Furthermore, the street ended in a cul de

sac, meaning that non-police traffic was less likely

than on another street. Therefore, it was not

unreasonable for the officers to believe Defendant

knew or suspected their vehicle was a police vehicle

and was walking quickly in order to evade them.

Castle, 53 F. Supp. 3d at 100 (emphases added). There are

multiple problems with this analysis.

First, the District Court’s factual finding that “people in

the neighborhood” could recognize their truck as a police

vehicle is questionable because it is based, at least in part, on

specious testimony and speculation. Can anyone really take

seriously Officer Olszak’s assertion that he and Officer

Moseley drove “the only Dodge Ram in the city”? Tr. of

Motions Hearing at 75. And there was little evidence to

suggest that the truck was otherwise particularly distinctive.

There was nothing to suggest that the silver color of the truck

was unique. And there is little reason to suppose that the

truck’s Florida license plates – the only arguably distinctive

feature testified to by the officers – could be seen from any

sort of distance, especially in the evening. Finally, we cannot

help but note that the Government “did not seek to qualify

[the police officers] as . . . expert[s] on public identification of

police vehicles” or “establish a factual foundation for opinion

testimony as [lay witnesses].” See Johnson, 212 F.3d at 1316.

In other words, there are good reasons to question the District

Court’s factual finding that “people in the neighborhood”

readily recognized the truck as a police vehicle.

But, even accepting this dubious assertion as not clearly

erroneous, we are nonetheless convinced that the District

21

Court erred in equating the awareness of “people in the

neighborhood” that the unmarked truck the officers drove was

a police vehicle with a determination that the officers could

reasonably believe that Appellant was aware of the officers’

truck on the evening in question. The Government simply

failed to put any evidence into the record that would support a

reasonable officer in inferring that the indicia of police

presence (the truck) had come to the attention of Appellant,

let alone that Appellant reacted to the truck as a police

vehicle.

In the face of this gap in the evidentiary record, the

District Court’s assessment of the reasonableness of the

officers’ inference amounts to a classic non sequitur. It does

not follow from the fact that the unmarked truck was known

in neighborhood as a police vehicle that Appellant was aware

of its presence on the evening of his seizure and that the

behavior witnessed by the officers was a reaction to that

presence. Thus, the trial court’s determination that the officers

reasonably inferred that Appellant was evading them is due

no weight. The failure of the Government to provide any

evidence supporting the officers’ inferences that Appellant

knew of their presence and was acting in response to it should

have led the trial court to find that these were not the sort of

“specific reasonable inferences which [the officers were]

entitled to draw from the facts in light of [their] experience,”

but rather amounted to no more than “inchoate and

unparticularized suspicion[s] or ‘hunch[es]’” to which no

deference is owed. Terry, 392 U.S. at 27.

The District Court’s assessment also defies legal

authority. Our precedent makes clear, no matter how widely

and readily recognizable the truck may have been as a police

vehicle, a different type of evidence was necessary to support

the inference that Appellant knew the police truck was present

22

and was responding to it. When putative police evasion or an

alleged furtive gesture is what provokes police suspicion, our

precedent requires that the Government proffer evidence,

apart from that behavior or gesture, from which an officer

could reasonably have inferred that the individual in question

was aware of the recognizable police presence and was

responding to it. See Brown, 334 F.3d at 1168; Johnson, 212

F.3d at 1316-17.

Our decision in Edmonds is instructive with respect to the

sort of evidence that is necessary. There, as here, officers

were driving an undercover car, a Crown Victoria that the

seizing officer, Sergeant Feirson, testified was “regularly used

to patrol the neighborhood and is easily identifiable by

residents as a police cruiser.” 240 F.3d at 57. As the officers

made their way through the neighborhood in question, an area

“notorious as [an] open air drug market[],” Feirson testified

that he saw a man standing on the curb. Id. According to

Feirson, when the man looked at the unmarked cruiser, ‘“his

eyes got pretty big, and he immediately pivoted, turned away

and he began to walk’ – rapidly – towards a van located in the

parking lot of [a] nearby . . . school.” Id. The school was

closed, and the parking lot was a known site for drug

transactions. Id. There was someone sitting in the driver’s seat

of the van when the man entered it. Id. The man “had left the

curb, Feirson believed, because he had recognized him and

his companions as police officers.” Id.

At this point, Sergeant Feirson decided to investigate. He

got out of the unmarked car and, with his police badge

prominently hanging from his neck, approached the van from

the front looking through the windshield. See id. The Sergeant

could see both the driver and the man who he believed had

recognized him as a police officer through the van’s

windshield, and as he drew nearer, he saw the driver lean

23

forward making gestures that led Feirson to believe the driver

was hiding something. See id. A seizure of the driver

eventually led to the discovery of a gun under his seat. Id.

In undertaking a reasonable suspicion analysis, we

considered both the furtive gestures of the driver and his

passenger’s “apparent attempt to evade the officers” when he

left the curb. Id. at 60. And with respect to both, we had

evidence from which Feirson could not only reasonably infer

that he had been recognized as a police officer, but also

evidence allowing Feirson to reasonably conclude that his

being a police officer had come to the attention of both men

and that their respective actions were in response to that

recognition. Thus, with respect to the man on the curb, there

was testimony that the undercover car was well known in an

area notorious for drug sales. But in addition, Feirson testified

that the man looked at the Crown Victoria and that

“immediately upon observing” it, his eyes got big and he

“hastened to the van to join its driver.” Id. at 62; see also id.

at 57. We found that “it was reasonable for Feirson’s

suspicions to be aroused in the first instance by [the man’s]

apparent flight and retreat” “immediately upon observing that

[known police] vehicle.” Id. at 62. And we were satisfied that

because the Sergeant could see the driver “through the van’s

windshield, it [was] a fair inference that [the driver] in turn

saw Feirson, perceived his badge, recognized him as a police

officer, and reacted by making furtive gestures.” Id.

The Wardlow opinion, addressing flight from the police,

references similar evidence. There, it appears that the fact that

the suspect had seen the police before he fled was never

challenged. Nonetheless, the Supreme Court described the

evidence from which it could reasonably be inferred that the

officers from whom Wardlow fled were recognizable as

police, that Wardlow was aware of their presence, and that his

24

flight was in response to that presence. The Court explained

that the seizing officers, who were in uniform, were driving

the last car of a four-car police caravan that was converging

on an area known for heavy drug trafficking. 528 U.S. at 121.

As the caravan passed Wardlow, one of those officers

observed him “look[] in the direction of the officers” and then

flee. Id. at 121-22.

In this case, the Government presented not an iota of

similar evidence at either the motions hearing or during the

trial. The officers simply failed to provide the trial judge with

any testimony from which she could conclude that an

objective officer in possession of the information Officers

Olszak and Moseley had could reasonably or fairly infer that

Appellant was aware of the police truck and was acting in

response to it. As noted above, there was no testimony that

either Appellant or the man with him ever so much as glanced

in the direction of the truck – let alone reacted to it. The

officers never testified, nor was there any factual finding, that

either man turned his head toward the truck or pointed or

gestured at it. Neither was there evidence that either man’s

pace or gait changed as the officers turned onto and drove

down the street. In fact, Officer Moseley expressly testified

that the men were already walking quickly when he saw them

and pointed them out to Officer Olszak. Nor did the officers

testify that either man changed direction or that Appellant

altered the path he was on in order to enter the alleyway

between the two houses. Neither officer even suggested that

the men were ever, at any point, oriented so that they faced

the truck as they walked. Indeed, because 144 Yuma is a

higher numbered address than 133 Yuma, the testimony

suggests that the men were oriented somewhat toward the cul-

de-sac, walking diagonally away from the truck as it came

from the intersection of First and Yuma Streets.

25

Furthermore, there is no evidence to indicate that the

physical circumstances during the evening in question would

have permitted Appellant to recognize the truck even if he had

looked in its direction. Quite the contrary. The officers

testified that: when the truck turned onto Yuma Street,

Appellant and the truck were at opposite ends of a long city

block; the truck’s headlights were on and pointed in

Appellant’s direction – something that would not have

changed as the officers drove down the street and that would

have made it very difficult to identify a Florida license tag

even as the truck moved closer to the cul-de-sac; and the truck

was silver, not a color that would stand out, whether it was

“dark,” as the trial judge found, Castle, 53 F. Supp. 3d at 98,

or “the dusk hour” with some street lights illuminated, as the

officers testified, see Tr. of Trial at 88, 109 (July 16, 2014).

Moreover, Officers Olszak and Moseley provided no

testimony from which they could reasonably infer that

someone else who recognized the truck had alerted Appellant.

Thus, unlike Edmonds, where a man on the street clearly

noticed the undercover Crown Victoria and then pivoted and

hastened over to the defendant, there was no testimony in this

case that anyone on Yuma Street noticed the Dodge Ram and

then approached or otherwise alerted Appellant or the man

with him. And while Officer Olszak testified that the

passenger side window of the truck was rolled down as

Officer Moseley turned onto Yuma Street, neither he nor

Officer Moseley said that they heard anyone yelling out “J.O.

J.O.” or any other calls or signals that experienced officers

would have recognized as ones typically used by those

involved in illegal narcotics sales when they wish to alert

others to the presence of jump outs or undercover officers.

Nor, apparently, did the officers do anything to attract

Appellant’s attention as they drove down Yuma Street. There

26

was no testimony, for example, that they activated the truck’s

internal police lights, about which they testified, or otherwise

announced their arrival in order to confirm or dispel their

unsupported hunch that Appellant was walking quickly in an

effort to evade them.

During oral argument before this court, Government

counsel asserted that there was evidence that the Appellant

and the truck were at some point in such close proximity that

it would have been reasonable for the officers to infer that

Appellant recognized the truck and responded by walking into

the alleyway. See Recording of Oral Arg. 33:55-36:00. In

other words, the Government essentially suggested that we

look to the record for evidence apart from the District Court’s

findings of fact, that might support the conclusion that the

officers could reasonably infer that Appellant was aware of

and reacting to the truck’s presence. As noted earlier, the law

does not permit us to do this. See Bailey, 622 F.3d at 5 n.1.

More fundamentally, Government counsel pointed to no

record evidence to support this assertion, and cited none in its

brief. Moreover, we can locate none in the motions hearing or

trial records. Most importantly, the Government’s argument is

belied by Officer Moseley’s uncontradicted trial testimony

that, “[b]y the time we got to the corner of 144 Yuma Street

when I stopped the truck, Mr. Castle was pretty close to the

U-Haul,” Tr. of Trial at 61 (July 16, 2014); see also Tr. of

Motions Hearing at 26, which was about 125 feet from the

street, Tr. of Motions Hearing at 87.

In its brief to this court, the Government repeatedly,

broadly asserts that Appellant walked quickly toward 144

Yuma, into an alleyway between 144 Yuma and the house

next door, and made furtive gestures, all “upon recognizing”

or “in response to” or “immediately after he spied” the police.

Br. for Appellee at 14, 18, 21, 22 n.16, 27 n.19, 29 & n.21.

27

But the Government cites no record evidence in support of

these assertions. Rather, the Government relies on the District

Court’s conclusion that the officers reasonably inferred that

Appellant was “walking quickly in order to evade them,” see

id. at 20 n.14; see also id. at 22 n.16 (referencing the District

Court’s conclusion that the officers reasonably inferred that

Appellant bent down near the U-Haul and made a kicking

movement with his leg in response to a known police

presence). As explained above, the District Court’s

conclusion about what the officers could reasonably infer is

without support in the record, contrary to governing

precedent, and inconsistent with the dictates of logic.

Consequently, it is due no weight.

During oral argument, in an effort to bolster its claim that

Appellant was aware of the officers’ presence, Government

counsel also pointed us to two statements made by Officer

Olszak. On direct examination, Officer Olszak testified: “We

saw two guys towards the end of the street to the right kind of

speed walk across the street. They were walking faster than at

a normal pace when they made us out.” Tr. of Motions

Hearing at 22. Later on cross examination, Officer Olszak

similarly asserted: “I think they knew we were the police

when we first pulled in the block.” Id. at 60. However, on

further cross examination, Officer Olszak clarified that his

assertion that Appellant “knew we were the police” was based

solely on his conclusion that the unmarked truck was well

known in the community as a police vehicle. Id. at 60-61.

Officer Olszak then admitted that he had no other evidence

supporting his suspicion that Appellant and the man with him

knew that there was a police truck on Yuma Street. See id. at

61. Given this testimony, it is hardly surprising that the

District Court did not cite the officer’s unsupported assertions

that Appellant “made out” or recognized the officers or their

truck. Rather, the District Court relied solely on the officers’

28

testimony that their truck was well known in the

neighborhood as a police vehicle. Then, based solely on the

fact of neighborhood awareness that the truck was a police

vehicle, the trial judge reached the implausible conclusion

that the officers could reasonably infer that Appellant was

aware of the truck’s presence on Yuma Street on the evening

in question and was responding to it. This conclusion is

contrary to the facts in this case and to well-established law.

For the reasons explained above, we are constrained to

reverse because the police officers had no reasonable,

articulable suspicion justifying their stop of Appellant. See,

e.g., Sprinkle, 106 F.3d at 617-19 (an individual’s presence in

a neighborhood known for drug crimes, “huddl[ing]” with

another person in a manner suggestive to the officers of a

drug sale, and the individual’s effort to hide his face and

“dr[i]ve away as soon as the officers walked by” did not

provide indicia of criminal activity adequate to support

reasonable, articulable suspicion even when combined with

the officers’ knowledge of the individual’s prior criminal

record for narcotics offenses).

CONCLUSION

The judgment of the District Court is reversed and the

case is hereby remanded for further proceedings consistent

with this opinion.

So ordered.

SILBERMAN, Senior Circuit Judge, dissenting: In my view,

the majority opinion is quite unfortunate. It not only breaks with

circuit precedent, it is quite confusing regarding the appropriate

scope of review we should apply in reviewing district court

factual determinations – particularly inferences drawn from

historical facts.

To be sure, the overall question whether Officer Olszak had

a reasonable suspicion to stop the Appellant is a question of law,

although we must keep in mind it is deferential to officers

because it asks only whether their actions are reasonable as

police officers in light of their training and experience, not

whether judges, putting themselves in the same position, would

regard the actions of the defendant as suspicious. (Indeed, even

our cases relied on by the majority uniformly affirm district

courts’ approval of investigative stops.) But – and this is a

crucial point – subordinate determinations of historical facts as

well as inferences from those historical facts are fact-findings

for the district judge. See Ornelas v. United States, 517 U.S.

690, 699 (1996) (“We hold as a general matter determinations

of reasonable suspicion . . . should be reviewed de novo on

appeal. Having said this, we hasten to point out that a reviewing

court should take care both to review findings of historical fact

only for clear error and to give due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers.” (emphasis added)).

At the outset, I think even the undisputed facts in this case

support the district court’s determination that Officer Olszak had

a reasonable suspicion justifying the seizure of Appellant Castle.

Those facts are:

1. The officers knew that the 100 block of Yuma Street

was a site of significant PCP distribution and use.

2. The officers patrolled the area three or four times a

week in an unmarked – though distinctive – pickup

2

truck with Florida license plates. They testified

(credibly, according to the district judge) that they

patrolled the area so regularly that neighborhood

people recognized their vehicle and some people would

actually act as lookouts.

3. Appellant and a companion were walking at a fast pace

from 133 Yuma Street, an address known for PCP

distribution and criminal activity.

4. Appellant continued to walk down a narrow alley next

to an abandoned house and bent over with one leg up

in the air, sort of a backward kick, apparently in the

manner as if one were dropping something, behind a

U-Haul vehicle (what the majority refers to as “furtive

movements”).

5. Then Appellant inexplicably walked back out of the

alley, toward the officer, at which point Officer Olszak

recognized him. Officer Olszak had seen Appellant

“hang[ing] out” in front of 133 Yuma with known PCP

dealers on a number of previous occasions, and he

recalled several prior PCP-related arrests and incidents

involving Appellant, including multiple occassions on

which Appellant had attempted to evade arrest by

fleeing from the police and to destroy evidence of PCP

distribution and possession by pouring it on the

ground.

See United States v. Castle, 53 F. Supp. 3d 95, 99-101 (D.D.C.

2014).

To justify a Terry stop, an officer need only “observe[]

unusual conduct which leads him reasonably to conclude in light

3

of his experience that criminal activity may be afoot.” Terry v.

Ohio, 392 U.S. 1, 30 (1968). The undisputed facts alone satisfy

Terry’s standard. Appellant’s conduct was quite unusual; it is

not commonplace to walk into an alley leading to a vacant

backyard, lean over behind an abandoned vehicle with one leg

raised as if to drop something (or pick something up), and then

immediately turn around and come back (notwithstanding the

majority’s assertion that it is “commonplace,” Majority Op. at

5). In any event, even relatively “normal” activity can be

sufficient to arouse an officer’s suspicions. “A determination

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

possibility of innocent conduct.” United States v. Arvizu, 534

U.S. 266, 277 (2002). The suspicious conduct in Terry, for

example, consisted only of men walking up and down a block

several times, looking into a store window. 392 U.S. at 5-6.

The Court carefully distinguished the arrest standard – probable

cause that a crime has been committed – from the lower

standard of reasonable suspicion necessary for an investigative

stop.1 Id. at 26.

The majority, nevertheless, asserts that Appellant’s activity

was “entirely mundane” and “not suspicious,” (presumably as a

matter of law?), Majority Op. at 5, but it reaches that conclusion

by examining each factor alone without considering the effect

1

While the analysis and holding in United States v. Edmonds is

consistent with my view of this case, our opinion includes a stray

comment suggesting Terry requires a belief that “the suspect is

breaking, or is about to break, the law.” 240 F.3d 55, 59 (D.C. Cir.

2001). But that is an overstatement. All Terry requires is that the

officer suspect “criminal activity may be afoot.” 392 U.S. at 30

(emphasis added). It is the probable cause standard that requires belief

that a crime has been, is being, or is about to be committed. Id. at 26;

id. at 35 (Douglas, J., dissenting).

4

when they are all combined. While each individual factor may

be “susceptible of innocent explanation, and some factors are

more probative than others[, t]aken together,” Arvizu, 534 U.S.

at 277, they can suffice to form the particularized and objective

basis required by Terry. See also United States v. Sokolow, 490

U.S. 1, 8 (1989) (“In evaluating the validity of a [Terry]

stop . . . , we must consider ‘the totality of the circumstances –

the whole picture.’” (quoting United States v. Cortez, 449 U.S.

411, 417 (1981)). The additional circumstances here do just

that.

First, the stop occurred in a high-crime area. The majority

discounts this factor by noting that the high-crime nature of a

neighborhood is merely a “contextual consideration[]” that

cannot demonstrate reasonable suspicion. Majority Op. at 18.

But “officers are not required to ignore the relevant

characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further

investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

I do not disagree that location alone cannot be determinative,

but it can be used in conjunction with other factors – such as the

Appellant’s odd behavior – to establish reasonable suspicion, as

is the case here.

What is more, once Officer Olszak recognized Appellant,

Castle’s behavior that night – walking quickly from the PCP

house down the alley, bending over as if he was dropping

something, and then turning around and walking back toward

Officer Olszak – looked particularly suspicious in light of his

history. Officer Olszak knew Appellant hung around the PCP

house with known PCP dealers, and knew Appellant had several

prior PCP-related arrests, including incidents in which Appellant

attempted to evade police and destroy evidence. At that point,

it was not unreasonable for Officer Olszak to infer Appellant’s

5

odd behavior was consistent with how he had behaved in the

past when in possession of PCP. See United States v. Feliciano,

45 F.3d 1070, 1074 (7th Cir. 1995) (holding that “recent

relevant criminal conduct . . . is a permissible component of the

articulable suspicion required for a Terry stop,” and collecting

cases to that effect).

Again, the majority discounts this factor as merely

corroborative, Majority Op. at 18, but that is exactly how

Officer Olszak used this piece of information. His suspicions

were not aroused solely because of Appellant’s criminal history

(he was not “round[ing] up the usual suspects,” id. at 16

(quoting United States v. Laughrin, 438 F.3d 1245, 1247 (10th

Cir. 2006)), but because of that criminal history in the context of

the current situation: Olszak observed a man whom he knew had

previously been arrested for PCP-related crimes, who attempted

to destroy evidence and flee from police, quickly walk away

from a building known for PCP distribution, down a deserted

alley to a vacant lot, and appear to drop something behind an

abandoned U-Haul truck, then immediately turn around and

come back. Compare United States v. Gordon, 722 F.2d 112,

114 (5th Cir. 1983) (per curiam) (reasonable suspicion to stop a

motor home existed where officers identified driver as a member

of a drug smuggling group, knew the motor home was registered

to the same address as a motor home seized in an earlier drug

arrest, and knew the group’s smuggling operations involved the

use of motor homes). In other words, Officer Olszak did in fact

“pair . . . knowledge [of the Appellant’s criminal record] with

some more concrete factors to demonstrate that there [is] a

reasonable suspicion of current criminal activity.” Majority Op.

at 17 (quoting United States v. Foster, 634 F.3d 243, 247 (4th

Cir. 2011)) (internal quotation marks omitted) (third alteration

in original).

6

The majority emphasizes that Appellant’s actions cannot be

construed as furtive unless the government shows that Appellant

and his companion recognized the police vehicle before

Appellant walked down the alley. I think Appellant’s actions,

paired with the circumstances, were unusual enough that

reasonable suspicion existed regardless of whether the actions

were prompted by knowledge of police presence, for the above

reasons.

However, even were evidence of Appellant’s recognition of

police presence necessary to satisfy Terry, that standard is met

here. The majority insists the government did not provide

sufficient evidence, describing a great number of hypothetical

pieces of evidence that would more clearly demonstrate

Appellant or his companion recognized the officers’ presence.

Majority Op. at 4-5, 24-26. I concede the government made no

showing that Appellant (or anyone else) pulled out a megaphone

and announced to the neighborhood “J.O. J.O.,” or anything of

that nature. But the government showed “a sufficient basis for

the officers to believe they had been recognized.” See United

States v. Brown, 334 F.3d 1161, 1168 (D.C. Cir. 2003). While

that may sometimes take the form of very direct, clear evidence

– the police announcing themselves, as in United States v.

Johnson, 212 F.3d 1313, 1315 (D.C. Cir. 2000), or officer

testimony that the individual’s eyes grew large at the sight of

police, as in United States v. Edmonds, 240 F.3d 55, 57 (D.C.

Cir. 2001), for example – as the majority seems to demand here,

that is not always the case.

The majority’s own authority makes that point. In Brown,

for example, the only evidence the government had of

knowledge of police presence was circumstantial – the police

were in uniform, their car was marked, another passenger had

exited the vehicle several minutes prior, and one officer carried

7

a lit flashlight as he approached – and the court acknowledged

that the “furtive movements” the officers observed could have

been “merely a coincidence.” 334 F.3d at 1168. After all, there

was no evidence the vehicle’s occupants actually had observed

these facts (indeed, they allegedly were distracted by “amorous

activity,” id. at 1168 n.5). Nevertheless, we held that “the

possibility of such a coincidence d[id] not negate the officers’

reasonable suspicion and fear, nor d[id] the fact that the

passenger’s behavior did not necessarily indicate criminal

activity or prospective danger.” Id. at 1168.

So too here. There was sufficient circumstantial evidence

to allow Officer Olszak to reasonably conclude his presence had

been noted, and Appellant’s actions constituted suspicious

“furtive movements.” The district court found that the officers’

distinctive truck (with Florida license plates) was well-known in

the neighborhood as a police vehicle, and that it was not unusual

for people to act as lookouts and alert others to police presence.

Additionally, traffic on Yuma Street is sparse given that it ends

in a cul-de-sac, making the presence of any vehicle noticeable.

In light of those circumstances, the district court concluded “it

was not unreasonable for the officers to believe [Appellant]

knew or suspected their vehicle was a police vehicle,” and that

his walking “very quickly from the direction of 133 Yuma Street

toward the vacant back yard area, sugges[ted] to the officers that

he was trying to evade their presence.” Castle, 53 F. Supp. 3d

at 100 (emphasis added). That is fact-finding based on

inferences from the historical facts and bolstered by a credibility

determination. The majority complains that “equating the

awareness of ‘people in the neighborhood’ that the unmarked

truck the officers drove was a police vehicle with a

determination that the officers could reasonably believe that

Appellant was aware of the officers’ truck on the evening in

question,” is a “dubious assertion.” Majority Op. at 20-21. But

8

this is nothing more than the majority quarreling with an

inference which the officers and the district court were entitled

to draw, and we, as an appellate court, must respect.

*****

The important doctrinal point that divides me from the

majority is the proper scope of review of the district court’s

determination. It is black letter law that inferences drawn from

historical fact are part and parcel of a district judge’s

fact-finding – which may be disturbed by an appellate court only

on a determination of clear error. In my view, the majority

improperly cloaks an attack on the district judge’s fact-finding

as a question of law. Compounding the problem, the majority

refuses to say exactly what kind of error it has supposedly

identified, instead declaring the district court’s conclusion

“without support in the record” (suggesting clear factual error),

“contrary to governing precedent” (suggesting legal error), “and

inconsistent with the dictates of logic” (suggesting some other

type of error entirely?). Majority Op. at 27. Thus, the majority

at pages 5-6 and 9-10 conflates the roles of the police officer,

the district judge, and the court of appeals. The overall question

as to whether the officer’s stop of an individual is reasonable is

clearly a question of law – but it is a question of law over which

the district court and we defer to the police officer’s inferences.

Subordinate to that overall legal question are questions of

historical fact and inferences to be drawn from those facts. As

an appellate court we must respect the district court’s resolution

of those questions unless there is clear error. Ornelas, 517 U.S.

at 699-700.

The result of the court’s opinion, I fear, will be immense

confusion on the part of district courts attempting to interpret

9

and apply this Delphic – and seemingly inconsistent with circuit

precedent – opinion. I respectfully dissent.