noting a magistrate must “not serve merely as a rubber stamp for the police” when reviewing a warrant application for probable cause
How later courts described this case
- noting a magistrate must “not serve merely as a rubber stamp for the police” when reviewing a warrant application for probable cause
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2022 Decided July 7, 2023
No. 21-3032
UNITED STATES OF AMERICA,
APPELLEE
v.
THEODORE B. DOUGLAS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cr-00121-2)
Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Eric Hansford, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb
and Suzanne Grealy Curt, Assistant U.S. Attorneys.
Before: WILKINS, Circuit Judge, and RANDOLPH and
ROGERS, Senior Circuit Judges.
Opinion for the Court filed PER CURIAM.
2
Opinion concurring in the judgment filed by Senior Circuit
Judge RANDOLPH.
Opinion concurring in the judgment filed by Senior Circuit
Judge ROGERS.
Dissenting opinion filed by Circuit Judge WILKINS.
PER CURIAM: The Fourth Amendment protects against
“unreasonable searches and seizures.” U.S. CONST. amend.
IV. Two members of the Court hold that the District Court
properly found that the officers had reasonable suspicion to
stop Theodore Douglas and that they did not act unreasonably
during the protective search. One member of the Court
dissents.
Accordingly, the District Court’s order denying Mr.
Douglas’s motion to suppress evidence is affirmed.
So Ordered.
RANDOLPH, Senior Circuit Judge, concurring in the
judgment:
“Crime is not evenly distributed across cities; rather, it
is concentrated in very small places, known as crime
hot spots, that persistently generate a disproportionate
share of serious crime.”1
Many large cities contain “crime hot spots.” The city of
Washington, D.C., is no exception. The events in this case
occurred in one of Washington’s seven Police Districts. In 2020
in the Fifth Police District, in the city’s northeast section, there
were 22 homicides, 317 armed robberies, and 321 assaults with
a deadly weapon. Metropolitan Police Department, Annual
Report 20–21 (2021). (The Metropolitan Police Department’s
annual reports do not provide statistics about drug offenses by
Police District.)
It was in the Fifth District that the police stopped Theodore
B. Douglas, handcuffed him, patted him down, discovered a
loaded .40 caliber Sig Sauer pistol and ammunition, and arrested
him.2
Douglas pled guilty to possessing a firearm and ammunition
as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In
his plea deal, which the district court accepted, Douglas reserved
1
Anthony A. Braga & Philip J. Cook, Policing Gun Violence:
Strategic Reforms for Controlling Our Most Pressing Crime Problem
57 (2023). Anthony Braga is a Professor of Criminology at the
University of Pennsylvania. Philip Cook is a Professor of Economics
Emeritus at Duke University and the winner of the 2020 Stockholm
Prize in Criminology.
2
At the time, Douglas was on supervised release from his latest
criminal conviction and was a fugitive from justice, having failed to
appear in D.C. Superior Court in his trial for drug trafficking.
2
the right to bring this appeal of the district court’s denial of his
suppression motion. He raises issues about whether the police
violated the Fourth Amendment to the Constitution.
I.
In analyzing this case it is helpful to contrast two scenes.
The first is hypothetical. The second depicts the actual events.
Both the first scene and the actual second scene occur in the
same location at about the same time, which I now describe.
A paved walkway lies between two large apartment
buildings in the 2300 block of 15th Street Northeast, a mostly
residential neighborhood. On both sides of this walkway is a
waist-high, black chain link fence. On one end of the walkway
is 15th Street. On any given day, cars are parallel parked,
bumper to bumper, on both sides of the two-way street. Across
15th Street from the walkway is a recreation center and a
children’s playground. On the other end of the walkway is a
parking lot, entered from a street behind the buildings.
It is 3 p.m. on April 22, 2020, a Wednesday. Officer Isaac
Jackson of the Metropolitan Police Department is working
undercover, watching as much as he can of the walkway, a spot
noted for criminal activity. Officer Jackson has been in this
neighborhood many times and has observed illegal drug
transactions there. He is in plain clothes, sitting in an unmarked
car parked among the other cars on the street, 15 yards from the
street end of the walkway.
First scene (hypothetical). While sipping his afternoon cup
of coffee Officer Jackson notices a little girl in the walkway
entrance. School has let out. A playground is across the street
and an elementary school is nearby.
3
Another young girl arrives carrying a small black, opaque
book bag, with a shoulder strap. The arriving girl hands the
book bag to the first girl. The girl receiving the book bag opens
it, looks inside and smiles, closes the bag, puts her arm through
the strap and swings the bag onto her back. The girls exchange
greetings, smile, embrace and calmly go their separate ways.
After watching this exchange, Officer Jackson turns his
attention elsewhere.
Second scene (this case). Now the scene changes. An adult
male who seems to be about 30 years old appears in the
walkway between the two buildings. He is pacing. His location
and his movements attract Officer Jackson’s interest.
The adult male is the defendant Douglas. A few minutes
later, another adult male (Tavonte Williams3) approaches from
outside the walkway fence. Both men appear to be of the age of
those who commit the most street crimes, especially drug and
firearms crimes.4
Williams holds a small, black, opaque book bag. He hands
3
Williams was originally Douglas’s co-defendant in the district
court but the government dismissed the charges against him and he is
not a party to this appeal. Appellant’s Br. at ii.
4
The classic study is James Q. Wilson & Richard J. Herrnstein,
Crime & Human Nature 126 (1985) (“Criminal behavior depends as
much or more on age than any other demographic characteristic . . ..”);
see also id. at 129; Jeffery T. Ulmer & Darrell Steffensmeier, The Age
and Crime Relationship: Social Variation, Social Explanations, in The
Nurture Versus Biosocial Debate in Criminology: On the Origins of
Criminal Behavior and Criminality 377, 378 (Kevin M. Beaver, J.C.
Barnes, & Brian B. Boutwell eds., 2014) (“It is now a truisim that age
is one of the strongest factors associated with criminal behavior.”).
4
the bag over the fence to Douglas. Simultaneously, paper
money changes hands – or, from that distance, Officer Jackson
thinks he sees U.S. currency changing hands, although he is not
100% sure. Douglas now rapidly drops his coat, slings the book
bag over his back without looking inside and puts his coat back
on, thereby hiding the bag.
Officer Jackson broadcasts an alert, in police parlance “a
lookout.” Within a few seconds two uniformed officers arrive
at the walkway. By then, Douglas has walked from the 15th
Street opening of the walkway almost to the parking lot at the
other end. In the next few minutes, more than a dozen
uniformed officers and police cars arrive in the parking lot.
These officers also have been alerted by Officer Jackson’s
broadcast as part of an operation of the Narcotics Special
Investigation Division.
Moments before other officers arrive, one of the first two
officers on the scene calmly approaches Douglas who is then
standing near the parking lot not far from two other men of the
same apparent age. The officer says to the three of them, “How
you doing gentlemen?” Holding Douglas’s arm, the officer
directs him “over here for just a minute.” He tells Douglas that
he is “being stopped for an investigation.” The officer, Maxwell
Poupart, handcuffs Douglas and begins a pat down. Douglas
does not resist. Pressing the back of Douglas’s coat, Officer
Poupart touches a hard, heavy object that feels to him like a
pistol. Douglas says it is his glasses case. Then, Poupart pulls
down Douglas’s coat and pats the outside of the book bag. The
officer now confirms that he may well be feeling a firearm. He
opens the book bag and radios “1-800,” the police code for
firearm. Douglas is then arrested.
5
II.
Analysis of these events begins with Terry v. Ohio, 392 U.S.
1 (1968), a decision that, by last count, has been cited in nearly
48,000 federal and state court opinions.
Terry holds that in stopping a person on the street to
investigate, law enforcement officers “must be able to point to
specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.”
Id. at 21. “Reasonable suspicion,”5 the Supreme Court has
reminded us, is a standard that is “‘not readily, or even usefully,
reduced to a neat set of legal rules.’” Ornelas v. United States,
517 U.S. 690, 695 (1996) (quoting Illinois v. Gates, 462 U.S.
213, 232 (1983)). Justice Scalia made the same point in Ornelas
when he wrote of “the futility of attempting to craft useful
precedent from the fact-intensive review demanded by
determinations of . . . reasonable suspicion.” Id. at 703 (Scalia,
J., dissenting).
Under Terry, a “fact” in this case, a significant fact, is that
the location of the stop was not only in a general high crime
area, but in a specific location – the walkway in the 2300 block
of 15th Street – known for criminal transactions. See Wardlow,
528 U.S. at 124. That is why Officer Jackson was watching it.
Officer Jackson knew the spot well and so did the defendant.
5
The many decisions of the Supreme Court reiterating Terry’s
holding use various formulations, all of which amount to the same
basic meaning. See, e.g., Kansas v. Glover, 140 S. Ct. 1183, 1187–88
(2020); District of Columbia v. Wesby, 138 S.Ct. 577, 588 (2018);
Navarette v. California, 572 U.S. 393, 397 (2014); Illinois v. Wardlow
528 U.S. 119, 123–24 (2000); Ornelas v. United States, 517 U.S. 690,
695 (1996); United States v. Cortez, 449 U.S. 411, 417–18 (1981).
6
Before the events in this case, Douglas was arrested for
possession of a gun near that same walkway (and eventually
pleaded guilty to illegally possessing a firearm).6 For his part,
Officer Jackson had been involved in nearly 200 investigations
in the vicinity of the 2300 block of 15th Street Northeast. And
in staking out this particular walkway in the past he observed
many illegal drug transactions.
Among the nearly 48,000 judicial decisions dealing with
Terry, there are occasional opinions stating that “just because”
an individual was in a high crime area does not mean, or “does
not in itself show,” that the individual should be suspected of
engaging in criminal activity. Statements like these are best
understood as throwaway lines. No rational police officer,
indeed no rational person, would suppose that just because a
person is in a high crime zone that person should be treated as
a suspect. Consider the little girls in my hypothetical. They
were in a high crime zone.7
It does not follow that the criminal nature of this place,
noted for drug dealing and other crimes – the very reason
Officer Jackson was there undercover on that April afternoon –
6
The dissent objects to my including this detail. See Dissent at
1 n.1, 8. But I do not rely on Douglas’s prior conviction in my
reasonable suspicion analysis. See infra at 8.
7
My concurring colleague commits two obvious mistakes when
she claims that my citation of Crime & Human Nature (supra note 4)
“impl[ies] that the mere presence of a young minority male in a
higher-crime area. . . could establish reasonable suspicion.” Rogers
Op. at 1. My citation was to the book’s chapter on crime and age, not
race or minority status, about which my opinion says nothing. The
second mistake is just as apparent. As the text above shows, I
expressly disagreed with the absurd idea that “mere presence” in a
high crime area “could establish reasonable suspicion.”
7
that this fact should be tossed aside because it is not in itself
conclusive. The Supreme Court in District of Columbia v.
Wesby reversed a panel opinion of our court that engaged in
such mistaken reasoning.8 See 138 S.Ct. at 588. The factors
giving rise to reasonable suspicion are not like coin flips in
which the probability of heads on one flip is independent of the
probability of heads on the next flip. Instead, the facts here are
interdependent: the existence of one makes the existence of
another more (or less) probable. See United States v. Prandy-
Binett, 995 F.2d 1069, 1070–71 (D.C. Cir. 1993); see also
Prandy-Binett, 5 F.3d at 558–60; Al-Adahi v. Obama, 613 F.3d
1102, 1105–07 (D.C. Cir. 2010). If an individual hands a book
bag to another person in the Library of Congress, that is one
thing. If the hand-off takes place in a high crime area in an
outdoor walkway noted for criminal activity, that is quite
another.
Another point about high crime spots is that innocent
persons in the vicinity will exercise caution – the common
expression is that they will be “looking over their shoulder” – to
avoid being mugged or murdered. Those engaged in criminal
activity will also be on the alert, but for a different reason. High
crime areas attract, or should attract, high police presence, as
was certainly true in this case. Individuals meeting on the street
8
I hesitate to put Wesby in terms of the “totality of the
circumstances,” although the Court used the phrase and it appears in
opinions dealing with the sort of issues confronting us in this case.
Sometimes these opinions treat the “totality” phrase as if it were a
“test,” which it surely is not. The phrase itself is “non-descriptive.”
United States v. Prandy–Binett, 5 F.3d 558, 559 (D.C. Cir. 1993)
(denying rehearing). It tells us nothing about which circumstances are
even relevant (surely, not all circumstances matter – whether the sky
was overcast or not, for instance), and it reveals nothing about the
probative value of any particular circumstance in the totality.
8
in such a location to conduct a criminal transaction will naturally
take extra measures to avoid detection.
Another consideration, critical in my evaluation, relates to
Officer Jackson’s skill and experience. By the time of these
events, Officer Jackson had been a police officer for more than
20 years and had conducted 500 undercover observation posts.
When asked on cross-examination in the suppression hearing
how many arrests resulted from his 500 operations he answered
“I would say close to 500.”
It is proper, indeed it is unavoidable, for “a police officer
[to] draw inferences based on his own experience in deciding
whether” reasonable suspicion warrants an investigatory stop.
Ornelas, 517 U.S. at 700. At the suppression hearing, in
compliance with Terry, Officer Jackson “articulated” the factors
underlying his judgment, based on his experience. Hand-to-
hand transactions, efforts at concealment, exchanges of closed
containers like bags, money changing hands, on the streets in
high crime areas – these factors together were, in Officer
Jackson’s experience, indications of illegal transactions of guns
or drugs or both. And, as Officer Jackson testified, each of these
factors converged in the transaction he witnessed between
Douglas and Williams on the walkway.
Unlike my hypothetical exchange of the book bag between
the young girls on the same walkway, what actually occurred on
the walkway was very different.9 First of all, as Officer Jackson
testified, when Douglas took the bag from Williams Douglas did
not look in and inspect its contents. If nothing else, this strongly
suggested that Douglas already knew what was in the bag he so
rapidly hid after Williams handed it to him.
9
Not only because Douglas was of a different age and sex. See
supra note 4.
9
What else might explain Douglas’s actions? The dissent
suggests that Douglas might have hidden the book bag under his
coat to prevent local thieves from stealing it. After all, this was
a high crime spot. There are four answers to this.
One, in neither Douglas’s opening brief nor his reply brief
did he raise this argument.
Two, even if Douglas had intended to protect the book bag
from local thieves, this is entirely consistent with – indeed it
reinforces – Officer Jackson’s judgment that the book bag
contained a pistol or narcotics, rather than some innocuous item
like a book from the local library, which would hardly be of
interest to a potential thief.
Three, in any event, a determination of reasonable suspicion
“does not require officers to rule out a suspect’s innocent
explanation for suspicious facts.” Wesby, 138 S. Ct. at 588.
Four, it would be absurd – under the Fourth Amendment or
otherwise – to require undercover officers observing suspicious
activity, before moving in, to read the mind of the suspect and
somehow determine whether he had an innocent reason for
quickly concealing the object (here the book bag) being
transferred in the exchange.
I therefore agree with the district court that the police, in
stopping Douglas, did not commit an “unreasonable” “seizure”
in violation of the Fourth Amendment to the Constitution.
III.
What I have written thus far decides only one of the issues
on appeal. Douglas also claims that even if the police were
10
justified in stopping him, they committed an “unreasonable”
“search” in violation of the Fourth Amendment when they
handcuffed him, patted him down, and found the gun and bullets
in his book bag.
Here again Terry v. Ohio must be the starting point. Here
is the guiding principle. When legally stopping a person on the
street for suspected criminal activity the police are entitled to
protect themselves. They may do this by restraining the suspect
and patting him down to make sure he does not possess a
dangerous weapon. Given the rationale, the pat down must be
for the officer’s protection, not a search for evidence of criminal
activity. See Terry, 392 U.S. at 23–26.
Officer Poupart’s pat down of Douglas’s clothing lasted less
than a minute. The police had good reason to check Douglas for
weapons. He was stopped at a spot known for drug trafficking.
“We have recognized many times that ‘drugs and guns go
together.’” United States v. Johnson, 592 F. 3d 164, 169 (D.C.
Cir. 2010) (quoting United States v. Jenkins, 928 F.2d 1175,
1179 (D.C. Cir. 1991)). Officer Jackson, in his testimony at the
hearing, confirmed that it is “very common” for individuals
engaged in drug trafficking to possess firearms. Officer Poupart
agreed.
That the stop and pat down of Douglas entailed the use of
handcuffs did not transform this legal Terry stop into an illegal
search and seizure lacking probable cause. The “amount of
force used to carry out the stop and search must be reasonable,
but may include using handcuffs.”10 United States v. Dykes, 406
10
Other circuits have long agreed. See, e.g., United States v.
Fiseku, 915 F.3d 863, 870–872 (2d Cir. 2018); United States v.
Navarrete-Baron, 192 F.3d 786, 791 (8th Cir. 1999); United States v.
Crittendon, 883 F.2d 326, 329 (4th Cir. 1989); United States v.
11
F.3d 717, 721 (D.C. Cir. 2005) (quoting United States v. Laing,
889 F.2d 281, 285 (D.C. Cir. 1989)); see also Muehler v. Mena,
544 U.S. 93, 98–100 (2005). Here, the police had good reason
to suspect that a drug or firearm transaction had just occurred,
and Williams – the other party in the transaction – remained at
large, so the police used handcuffs to restrain Douglas while he
was being frisked.11
There is nothing to Douglas’s argument that the district
court erred in crediting Officer Poupart’s testimony that he felt
a gun-like object through Douglas’s coat at the beginning of the
pat down. The body camera footage belies Douglas’s claim and
the district court, having heard the testimony and examined the
exhibits, properly – indeed correctly – concluded that Officer
Poupart was telling the truth. In any event,“[t]he scope of a
Terry frisk is not limited to weapons, but rather to concealed
objects which might be used as instruments of assault.” United
States v. Holmes, 385 F.3d 786, 791 (D.C. Cir. 2004). The body
camera footage establishes that Officer Poupart felt a hard object
underneath Douglas’s coat – just the type of “concealed object”
to which Holmes refers.
One further point deserves mention. After Officer Poupart
patted down the book bag he asked Douglas for permission to
Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989); United States v.
Glenna, 878 F.2d 967, 971–73 (7th Cir. 1989); United States v.
Taylor, 716 F.2d 701, 709 (9th Cir. 1983).
11
In Terry stops, restraining the suspect during the pat down is
often justified as protecting the officer doing the pat down and others
nearby. There is another consideration. It is the danger – to the police
and others – when, “if the suspect is not placed under arrest” but is
instead released, “he will then have access to any weapons” on his
person or nearby. Michigan v. Long, 463 U.S. 1032, 1051–52 (1983).
12
“check out” the bag’s contents. Douglas refused. Douglas now
argues that the officer’s request shows that he did not believe he
had possibly detected a pistol. Here too Douglas’s argument
goes nowhere. Requests for consent are common even when the
police have ample suspicion to justify an involuntary search.
See 4 Wayne R. LaFave, Search & Seizure § 8.1 (6th ed. Dec.
2021). In all sorts of personal interactions in America, it is also
common practice for one person to ask another for permission
to intrude even when the intruder can do so without permission.
“May I ask you a personal question?”, for instance. Erving
Goffman, Relations in Public: Microstudies of the Public Order
114–15 (1971).
ROGERS, Senior Circuit Judge, concurring in the
judgment: I agree that the district court’s ruling denying
Theodore Douglas’s motion to suppress should be affirmed
based on the totality of the circumstances observed by Officer
Isaac Jackson and their contribution to reasonable suspicion of
criminal wrongdoing under the Supreme Court’s Terry stop
precedents, as followed by this court. Terry v. Ohio, 392 U.S.
1, 27 (1968); see United States v. Arvizu, 534 U.S. 266, 277
(2002); United States v. Moore, 394 F.3d 925, 930 (D.C. Cir.
2005); United States v. Garrett, 959 F.2d 1005, 1007 (D.C. Cir.
1992); cf. United States v. Green, 670 F.2d 1148, 1151, 1153
(D.C. Cir. 1981); United States v. Taylor, 997 F.2d 1551,
1553–54 (D.C. Cir. 1993); United States v. Prandy-Binett, 995
F.2d 1069, 1070–71 (D.C. Cir. 1993). But in affirming I adopt
a narrower approach than my colleague.
It is well established that the Fourth Amendment does not
tolerate an officer’s unreasonable seizures “based on nothing
more than [the] demographic profile” of an individual, Kansas
v. Glover, 140 S. Ct. 1183, 1191 n.1 (2020) (internal quotation
marks omitted); United States v. Brignoni-Ponce, 422 U.S.
873, 876 (1975), or his “presence in an area of expected
criminal activity,” Illinois v. Wardlow, 528 U.S. 119, 124
(2000); Brown v. Texas, 443 U.S. 47, 52 (1979). Concurring
only in the court’s judgment, I part ways with my colleague’s
emphases on “crime hot spots,” Op. at 1, 5–7, and the
“demographic characteristics” of Douglas and his associate, id.
at 3 & n.4, along with reliance on the biological-determinants-
of-crime postulate, id. at 3 n.4 (citing JAMES Q. WILSON &
RICHARD J. HERRNSTEIN, CRIME AND HUMAN NATURE 126
(1985)), implying that the mere presence of a young minority
male in a higher-crime area in the District of Columbia could
establish reasonable suspicion to effect a lawful Terry stop.
Concern over these undue and unnecessary emphases may
underlie the dissenting opinion. See Dis. Op. at 4–6.
Here there was a lot more. From an observation post
facing a walkway long known to law enforcement as a site of
2
illegal drug transactions, Tr. Mot. Hr’g at 23 (Oct. 20, 2020),
Officer Jackson observed a seemingly prearranged “hand-to-
hand exchange” typical of “bulk” transfers of drugs, id. at 17.
Douglas hurriedly concealed the object he had received from
his associate, see id. at 30, and in return handed over what
appeared to be “U.S. currency” based on its “light” color and
“small” size, Douglas’s hand movement, and the manner in
which the associate cuffed it in his hands upon receipt, id. at
30–31, 67–68, 90, 124. Considering “the whole picture,”
District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)
(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)),
and Officer Jackson’s drug interdiction training and experience
at that particular location, Cortez, 449 U.S. at 418, a fact
slighted by the dissent, Dis. Op. at 2–3, 7, the district court
could permissibly conclude that these specific observations
supported the individualized suspicion required to effect a
brief, investigatory stop of Douglas under the Fourth
Amendment. The authorities cited by the dissent cannot bear
the weight it seeks to place on them. Dis. Op. at 3–4. For
example, in United States v. Johnson, 212 F.3d 1313 (D.C. Cir.
2000), this court stated in dictum that “[i]f the seizure had taken
place at that point” — that is, earlier in the investigation than
when the Terry stop in fact had occurred — it “doubt[ed] very
much whether it would have been valid,” id. at 1316. But “at
that point” the suspected seller of drugs had not given the
would-be buyer “anything in exchange,” id., making it
unreasonable for the officer to infer that a drug transaction had
occurred. Here there is no dispute that Officer Jackson
witnessed a hand-to-hand exchange. See Green, 670 F.2d at
1151.
Further, because courts have “frequently recognized that
guns and drugs go together in drug trafficking” and the
attendant risks to officer safety, United States v. McLendon,
378 F.3d 1109, 1113 (D.C. Cir. 2004); see, e.g., United States
v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007); United States
3
v. Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006), the police did
not act unreasonably in handcuffing Douglas and patting him
down for weapons upon observing a “bulk” drug transaction
while his associate and the area were unsecured. See, e.g.,
United States v. Laing, 889 F.2d 281, 285 (D.C. Cir. 1989).
WILKINS, Circuit Judge, dissenting: I concede that this is
a close case, but on these facts, I would find that the police
stopped and seized Theodore Douglas without the reasonable,
articulable suspicion required by Terry v. Ohio and its progeny.
392 U.S. 1 (1968). For that reason, I respectfully dissent.
I.
On April 22, 2020, at approximately 3:00 PM, Officer
Isaac Jackson was conducting surveillance as part of an
undercover narcotics unit of the District of Columbia
Metropolitan Police Department. See United States v.
Williams, 507 F. Supp. 3d 181, 188 (D.D.C. 2020). Officer
Jackson was sitting inside an unmarked car parked in the 2300
block of 15th Street Northeast, see id., when he observed a man
standing in a public walkway between two sets of rowhouses
with “one to two other individuals,” J.A. 228, 237.
Officer Jackson, who was about fifteen yards away and
observing without the assistance of binoculars or any other
visual aids, saw a second man approach the first. Williams, 507
F. Supp. 3d at 188; see also J.A. 232. There was no testimony
that Officer Jackson knew either of these men or that he had
any prior information or reports about them. 1 Officer Jackson
did testify that he had conducted “close to 200” investigations
in this area in the preceding five years, J.A. 228, and that the
area was known as a high crime area, with a prevalence of drug
activity and violent crimes, including robberies, Williams, 507
F. Supp. 3d at 197; see also J.A. 226.
Officer Jackson observed the second man hand the first
man a “little” backpack; after which the first man quickly
1
Curiously, Judge Randolph discusses prior criminal activity of Mr.
Douglas even though it has no relevance to this case since it was
unknown to the officers when they seized Mr. Douglas. See United
States. v. Castle, 825 F.3d 625, 635 (D.C. Cir. 2016).
2
removed his jacket, donned the backpack, and put back on his
jacket. J.A. 267; see also Williams, 507 F. Supp. 3d at 188.
Officer Jackson then saw the two men shake hands. J.A. 238.
During the handshake, Officer Jackson “believed” the first man
handed the second a “light-colored object.” Williams, 507 F.
Supp. 3d at 188, 196. He could not identify for sure what it
was, but Officer Jackson thought it could have been currency.
Id. at 188.
Believing that he may have just witnessed a transaction of
money for a bulk quantity of drugs or a firearm, Officer
Jackson called a lookout with a description of the two men,
asking that they be stopped and frisked. Williams, 507 F. Supp.
3d at 188, 197. Within about 90 seconds, uniformed police
officers seized the first man, later identified as Mr. Douglas.
J.A. 346–47, 349. After physically separating Mr. Douglas
from the group of individuals he was standing with, one of the
officers immediately handcuffed Mr. Douglas’s hands behind
his back before beginning to pat him down. Williams, 507 F.
Supp. 3d at 188. The officer felt a handgun when “frisk[ing]”
the backpack that Mr. Douglas was wearing. Id. at 188.
Shortly thereafter, the officers seized the second man,
identified as Tavonte Williams, id., but when the officers
searched Mr. Williams, they found neither contraband nor
currency, id. at 202.
II.
The central question in this appeal is whether Officer
Jackson had reasonable, articulable suspicion that these two
men had committed a crime when he issued his lookout, based
on his brief observations, as well as his knowledge and
experience. My colleagues rely upon three facts to uphold the
seizure: (1) the exchange of an object for the backpack; (2) the
prevalence of drug activity in the neighborhood; and (3) the
3
perceived attempt to secrete the backpack under the jacket. I
believe that these facts, in their totality, were insufficient. See
United States v. Castle, 825 F.3d 625, 635 (D.C. Cir. 2016).
With respect to the first fact, it is quite significant that the
District Court did not credit that Officer Jackson witnessed an
exchange of currency; instead, the District Court found only
that a “hand-to-hand transaction” occurred, and that Jackson
“believed” he may have seen currency. Williams, 507 F. Supp.
3d at 196, 197. Also significant is that the District Court did
not make a finding that Jackson’s belief that currency was
involved was a reasonable inference. As stated above,
Williams was seized in the vicinity of the walkway very shortly
after the exchange, and a search of him revealed no currency
whatsoever. Indeed, Officer Jackson conceded that he made an
“assumption” that a sale had taken place and that he could not
even tell if the object exchanged was paper, let alone
currency. J.A. 313–14. Thus, the fairest reading of the record
is that Officer Jackson saw a “light-colored object”—that he
could not identify—given in exchange for the backpack.
Williams, 507 F. Supp. 3d at 188.
Skipping to the third fact, our precedent forecloses
assigning significant weight of suspicion on Mr. Douglas’s
placing of the backpack under his jacket. In United States v.
Johnson, an officer observed a man inside a car in a “high
narcotics area” when a woman leaned into the car and handed
the man an object. 212 F.3d 1313, 1316 (D.C. Cir. 2000).
When a police officer “approached in his unmarked car, the
woman walked away, and [the man] made a ‘shoving down’
motion.” Id. Based on these facts, we observed that “[i]f the
seizure had taken place at that point, we doubt very much
whether it would have been valid.” Id. Critically, we explained
that while the “shoving down” gestures “may be . . . suspicious,
they are significant only if they were undertaken in response to
4
police presence.” Id. This is so because citizens have a right
to keep their private affairs private and thus to conceal their
activities and their possessions from others. See generally
United States v. Green, 670 F.2d 1148, 1152 (D.C. Cir. 1981).
If such concealment is not performed in response to knowledge
of a police presence, it is not indicative of consciousness of
guilt, and thus illegal activity.
Indeed, we have an unbroken line of authority holding that
“furtive gestures ‘are significant 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.” United States v. Brown, 334 F.3d 1161, 1168
(D.C. Cir. 2003) (alterations in original) (quoting United States
v. Edmonds, 240 F.3d 55, 61 (D.C. Cir. 2001)). We have made
it quite clear that “[w]hen 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.” Castle, 825 F.3d at 638 (original emphasis). 2
Notwithstanding our precedent, my colleagues in the majority
place considerable weight on the wearing of the backpack
under the jacket in their calculus of reasonable suspicion.
It is true that we have found concealment relevant to our
analysis where the suspect cupped his hand to prevent
2
Our precedent is consistent with United States v. Sharpe, 470 U.S.
675, 682–683 (1985); Illinois v. Wardlow, 528 U.S. 119, 124 (2000);
and District of Columbia v. Wesby, 138 S. Ct. 577, 587 (2018), all
cases where the Supreme Court found that furtive gestures were
probative of reasonable suspicion or probable cause because the
actions were taken in response to a known police presence.
5
onlookers from seeing the small object he handed over in
exchange for currency. See Green, 670 F.2d at 1151, 1153.
But here, there was no attempt to hide that a backpack was
being exchanged. Indeed, it was handed over openly while
standing in the middle of a public walkway in broad daylight.
If anything, this was an attempt by Mr. Douglas to conceal the
backpack from anyone who might later see the bag and attempt
to take it off his person, and it is nothing like the “deliberately
furtive” creeping around on tiptoes credited in Sibron v. New
York, 392 U.S. 40, 66–67 (1968). The government argues that
the fact that the backpack was used for the exchange is itself
evidence of concealment, because someone selling drugs or
guns would use an opaque bag to obscure the contraband
contained inside. See Gov’t Br. 26–27 (“The ‘bag’ conceals
the contents, and thus hides the nature of the transaction.”).
Crediting that argument means that citizens in high-crime
neighborhoods can be deemed suspicious for “concealment” by
handing something over to anyone in a bag at all, unless of
course the bag is transparent, quite a remarkable position.
Assigning such weight of suspicion to the “concealment”
of the backpack not only violates our precedent, it also ignores
the fact that this neighborhood was known by Officer Jackson
for its prevalence of robberies. See J.A. 226. As Mr. Douglas’s
counsel explained, it is “understandable that in a high-crime
area, that Mr. Douglas would wear something that he does[]
[not] want others to see under his clothes—something that
appears valuable to, [or] may appear valuable to, others—out
of sight.” Oral Arg. Tr. 4. Hiding one’s valuables from
potential robbers is Crime Prevention 101; indeed, young men
in crime-ridden areas of Washington often consider “a wallet
nothing more than tidy packaging for robbers.” Marcia Slacum
Greene, Going Legit; Thomas Derrick Ross Grew Up Hiding
From the Law, Surrounded by Violence. Now He’s Trying to
Get a Job, a Credit Card, a Life. It’s the Hardest Thing He’s
6
Ever Done, WASH. POST, July 11, 1999, 1999 WLNR 8872622.
Thus—coming back to the second fact—it is of course fair to
consider the prevalence of drugs in the neighborhood as adding
to the calculus of Officer Jackson’s suspicion, because it makes
it perhaps more likely that the exchange involved drugs. But
then it must also be fair to consider the prevalence of robberies
as subtracting from that calculus, because it makes it perhaps
more likely that the concealment of the backpack was to avert
a robbery. In such a circumstance, the concealment of the
backpack is a wash. Cf. Reid v. Georgia, 448 U.S. 438, 441
(1980) (holding that an “agent’s belief” that by looking around
“the [defendant] and his companion were attempting to conceal
the fact that they were traveling together, . . . was more an
inchoate and unparticularized suspicion or hunch, . . . than a
fair inference in the light of [the agent’s] experience”) (internal
quotation marks omitted) (quoting Terry, 392 U.S. at 27).
I grant that an officer is not “require[d] . . . to rule out a
suspect’s innocent explanation for suspicious facts.” District
of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (emphasis
added). However, that does not mean that we are required to
rubber stamp an officer’s characterization of an action as
“suspicious” in the first place, particularly when that action is
consistent with how common sense, and the police, counsel
citizens in high crime neighborhoods to act to prevent being
victimized. See, e.g., Dallas Police Department, Crime
Prevention Tips – Purse and Wallet Theft Prevention,
https://perma.cc/C6BQ-7RP2 (“During cooler months, carry
your purse under your coat[.]”); Columbus Ohio Police
Department, Personal Safety, https://perma.cc/AZT3-JKFY
(“[C]arry your purse under your coat or close to your body.”).
Cf. United States v. Leon, 468 U.S. 897, 914 (1984) (noting a
magistrate must “not serve merely as a rubber stamp for the
police” when reviewing a warrant application for probable
cause).
7
My colleagues rightly reference Officer Jackson’s
significant drug interdiction experience and knowledge that
this was a “high crime area,” see Randolph Op. 6, 8; Rogers
Op. 2, but we cannot permit the Government to use an officer’s
experience and recognition of an area as “high crime” as a one-
way ratchet—only ever adding to suspicion, never detracting
from it. Here, Officer Jackson testified that he knew this area
to suffer from significant drug trafficking activity, but he also
explained that numerous “people . . . have been victims of . . .
robberies” in the area. J.A. 226. Rather than looking to the
totality of the circumstances, my colleagues’ analysis ignores
the latter fact, defaulting to “heads I win, tails you lose” in
favor of finding that Officer Jackson had reasonable suspicion.
Courts already face confirmation bias when we evaluate
reasonable, articulable suspicion in suppression motions. After
all, these are searches where the police actually found
something inculpatory. Courts almost never decide what
constitutes reasonable, articulable suspicion in civil lawsuits
where nothing illegal was found. In civil cases, officers are
entitled to qualified immunity unless already existing
precedent clearly demonstrates that there was no reasonable,
articulable suspicion. See White v. Pauly, 580 U.S. 73, 79
(2017). Even if courts doubt that the officer in fact had
reasonable suspicion, we must find qualified immunity if the
officer’s actions were objectively reasonable. See Hedgpeth v.
Rahim, 893 F.3d 802, 807 (D.C. Cir. 2018). Thus, if the
officers had found nothing in the backpack and Mr. Douglas
asserted a Fourth Amendment claim pursuant to 42 U.S.C. §
1983, we would almost certainly grant summary judgment for
the officers on one of the aforementioned qualified immunity
grounds, without deciding whether the officers had reasonable,
articulable suspicion. We almost always decide whether a
quantum of acts constitutes reasonable suspicion in contexts
8
raising the specter of whether we are giving the guilty too many
rights, rather than situations in which we actually confront
whether we are shearing away the rights of the innocent. In
sum, courts are already at risk of using confirmation bias to
validate inchoate hunches as reasonable suspicion in
suppression motions given “the familiar shortcomings of
hindsight judgment[,]” Beck v. Ohio, 379 U.S. 89, 96 (1964),
and it makes matters worse when we consider those living in
high crime areas as more suspicious than others, regardless of
the circumstances of their actions.
Judge Randolph places the icing on the cake with his
invocation of Mr. Douglas’s criminal record, even though it
was not known to Officer Jackson, and his one-sided reliance
on generalized social science analysis and crime demographic
data. See Randolph Op. 1 nn.1–2, 3 & n.4, 6 & n.7, 8 & n.9.
The end result is that—despite lip service otherwise—people
living in high crime areas have fewer Fourth Amendment rights
than those who do not, because we rubber stamp
characterizations of their actions as “suspicious” and justifying
search and seizure, even when those persons are taking
innocent actions merely to protect themselves.
***
After he broadcast the lookout, and before the officers
announced that they had found a gun in the backpack, Officer
Jackson told the officers, “I want you all to check that book bag
for me, copy?” Gov’t Ex. 3 at 00:09:12. In doing so, he gave
up the game. He had a hunch that something illegal was in that
bag, and he ordered the stop so that the officers could “check”
that bag to find out. The directive to “check that book bag”
was potentially quite problematic, since probable cause would
have been required to search the bag, see Torres v. Puerto Rico,
442 U.S. 465, 470–71 (1979); United States v. Most, 876 F.2d
9
191, 193–94 (D.C. Cir. 1989), and the government does not
seriously contend that Officer Jackson had probable cause
when he issued the directive. In hindsight, Officer Jackson’s
hunch was correct and—fortuitously for the government—a
pat down of the bag, rather than a full-blown search, allowed
the officer to confirm the hunch. But even so, the Fourth
Amendment does not allow the police to seize a citizen,
handcuff his hands behind his back, and frisk him based upon
a hunch—even when the seizure takes place in a “high crime”
area.
I respectfully dissent.