United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2006 Decided June 22, 2007

No. 05-3080

UNITED STATES OF AMERICA,

APPELLEE

v.

MELVIN M. GODDARD,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00214-01)

Jon S. Pascale, appointed by the court, argued the cause and

filed the briefs for appellant.

Youli Lee, Assistant U.S. Attorney, argued the cause for

appellee. With her on the brief were Jeffrey A. Taylor, U.S.

Attorney, and Roy W. McLeese, III, Thomas J. Tourish, Jr., and

Lisa H. Schertler, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and TATEL and BROWN,

Circuit Judges.

Opinion for the Court filed PER CURIAM.
2

Dissenting opinion filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge TATEL.

PER CURIAM: Charged with unlawful possession of a

firearm by a convicted felon, appellant moved to suppress the

gun and his statement that he owned the gun, claiming that the

arresting officers lacked reasonable suspicion to stop him. The

district court denied his motion, ruling that the officers had

reasonable suspicion at the time of the stop. We conclude that

the stop happened later than the district court found, but because

the record supports reasonable suspicion at that later point, we

affirm.

I.

On the evening of March 30, 2004, four Metropolitan Police

Department officers in an unmarked police car received a radio

lookout about an attempted unauthorized use of a vehicle

(UUV). The radioing officer had tried to stop the suspect’s car,

but the suspect fled the scene. The lookout described the

suspect as a black male, 5’8” in height, weighing 180 pounds,

and dressed in a black coat and blue jeans. 

Two blocks from the attempted UUV, at 7:25 p.m.—just

minutes after the lookout—the four officers saw four black men

talking to each other outside a gas station. Tr. of June 21, 2004

Hr’g at 16–17, 21. The district court found that all four men,

one of whom was Appellant Melvin Goddard, were wearing

black coats and blue jeans and that there was a substantial

difference in their heights. United States v. Goddard,

No. 04-214, slip op. at 2 (D.D.C. Dec. 18, 2006) (hereinafter

“Supplemental Findings”); Tr. of June 21, 2004 Hr’g at 83.

Only two were close to 5’8” (one was 5’6” and the other

between 5’6” and six feet), while Goddard and Vaughn Walker,
3

a defense witness, were both over six feet tall. According to one

of the officers, the four men “for the most part” matched the

lookout “as far as the clothes thing, height and weight.” Tr. of

June 21, 2004 Hr’g at 17. The same officer later clarified that

despite his uncertainty about the consistency of the men’s

heights with the lookout description, he decided to approach

them based on “the clothes worn by the defendant and the other

three gentlemen.” Id. at 21–22. 

The officers pulled into the gas station, fifteen to twenty

feet away from the group of men. All four officers wore plain

clothes, jackets with an MPD logo, and badges. Their guns and

handcuffs were showing, but the guns were not drawn. Once the

officers pulled into the gas station, Walker began moving away

from the group. As the officers exited their car, Goddard “held

the right side of his waistband, like he was holding . . . a gun.”

Id. at 8. Approaching the group of men, one of the officers

overheard Goddard say he had a gun, whereupon the officer

shouted “gun.” Although Walker’s testimony was less than

clear as to the sequence of events, the district court, contrary to

the dissent’s characterization, see Dissenting Op. at 7–8, found

that Walker was still moving away from the group of men at the

time the officer shouted “gun,” Tr. of June 21, 2004 Hr’g at 81,

84–85 (making this finding shortly after its announcement that

“[t]he court will make the following findings of fact,” and not,

as the dissent suggests, in a separate summary of Walker’s

testimony, see Dissenting Op. at 7–8). Walker testified that the

officers told him to return, at which point he “turned back

around” and was pulled aside by one of the officers. Id. at

59–60. Two of the officers then handcuffed Goddard and

conducted a pat-down, finding a gun in his waistband. At that

point, the officers placed Goddard under arrest. After his arrest

but before he received a Miranda warning, Goddard explained

that he was carrying the gun because he had just gotten out of

jail and had been shot recently.
4

A grand jury indicted Goddard for possession of a firearm

by a convicted felon. 18 U.S.C. § 922(g)(1). Arguing that the

officers lacked reasonable suspicion for the stop, Goddard

moved to suppress the gun and his admission that he owned it.

Although believing it “a close case as to whether these facts

meet the Terry standard,” Tr. of June 21, 2004 Hr’g at 81, the

district court nonetheless found that the officers had reasonable

suspicion to stop Goddard. The court based its conclusion on

two primary circumstances: that the stop occurred two blocks

from and soon after the attempted UUV; and that the men

loosely matched the suspect’s description, given that all four

wore blue jeans and black coats and at least one was close to the

suspect’s height.

After the court denied his motion to suppress, Goddard

pleaded guilty, reserving the right to raise the suppression issue

on appeal. Following oral argument, we remanded the record to

the district court for supplemental findings as to “the sequence

of events surrounding appellant’s stop and seizure, the factors

establishing when the police contact became a stop, and the facts

known to the police officers at those points.” United States v.

Goddard, No. 05-3080 (D.C. Cir. Nov. 9, 2006). In its

supplemental memorandum, the district court made the

following finding: “In this case, the [officers’] ‘contact’ became

a ‘stop’ as soon as the police officers drove up to the gas station

. . . to investigate whether the four African-American men they

saw standing and talking included the [attempted UUV

suspect].” Supplemental Findings at 2.

II.

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons . . . against unreasonable

searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause.” U.S. CONST. amend. IV.
5

As an exception to the Fourth Amendment’s warrant

requirement, officers may conduct a brief investigative “Terry

stop” so long as they have “reasonable, articulable suspicion” of

criminal conduct. Illinois v. Wardlow, 528 U.S. 119, 123 (2000)

(citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Terry stops

require only that officers have a “minimal level of objective

justification,” INS v. Delgado, 466 U.S. 210, 217 (1984)—a

standard significantly lower than the probable cause required for

a warrant.

In this case, we face two distinct issues: when the stop

occurred and whether the officers had reasonable suspicion at

that time. Both are questions of law that we consider de novo.

United States v. Maragh, 894 F.2d 415, 417 (D.C. Cir. 1990)

(“[T]he [Supreme] Court has never deferred to the trier of fact

regarding the question of seizure.”); United States v. Christian,

187 F.3d 663, 666 (D.C. Cir. 1999) (applying de novo review to

district court’s determination of reasonable suspicion). 

As to the first issue, a stop takes place “[o]nly when the

officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen,” Terry, 392 U.S. at

19 n.16, or, put differently, “only if, in view of all the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave,” California

v. Hodari D., 499 U.S. 621, 627–28 (1991) (alteration in

original) (quoting United States v. Mendenhall, 446 U.S. 544,

554 (1980) (plurality opinion)). “[T]he test must not be what the

defendant himself . . . thought, but what a reasonable man,

innocent of any crime, would have thought had he been in the

defendant’s shoes.” Gomez v. Turner, 672 F.2d 134, 140 (D.C.

Cir. 1982) (quoting Coates v. United States, 413 F.2d 371, 373

(D.C. Cir. 1969)). Under this test, neither the subjective

impressions of the defendant nor the subjective intentions of the

officer determine whether a seizure has occurred. See id. at 143
6

(“[T]he intent of the officer or the reason behind his decision to

approach a pedestrian cannot be the basis upon which we

determine whether a seizure has occurred.”). In deciding

whether a stop has occurred, this circuit has cited the factors

listed by Justice Stewart in United States v. Mendenhall: “the

threatening presence of several officers, the display of a weapon

by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” 446

U.S. at 554; Gomez, 672 F.2d at 144. In addition, we consider

“the demeanor of the approaching officer,” Gomez, 672 F.2d at

144, “whether the officer . . . wore a uniform,” and “the time and

place of the encounter,” United States v. Wood, 981 F.2d 536,

539 (D.C. Cir. 1992). Of course, not all interactions between

police and citizens are stops, as “law enforcement officers do

not violate the Fourth Amendment by merely approaching an

individual on the street or in another public place.” Florida v.

Royer, 460 U.S. 491, 497 (1983); see also United States v.

Nurse, 916 F.2d 20, 23 (D.C. Cir. 1990). 

We disagree with the district court that the stop happened

“as soon as the police officers drove up to the gas station.”

Supplemental Findings at 2. By itself, the presence of a police

car is an insufficient show of authority to make a reasonable,

innocent person feel unfree to leave. For example, in Michigan

v. Chesternut, 486 U.S. 567 (1988), where four officers in a

police cruiser accelerated to catch up with a running pedestrian

and drove parallel to him for a short while, the Supreme Court

explained that although the presence of a police car might be

“somewhat intimidating,” such police presence does not

constitute a seizure where the officers did not use their siren or

flashers, did not command the defendant to stop, did not display

their weapons, and did not drive aggressively to block or control

the defendant’s movement. Id. at 569, 575. Similarly, in United

States v. Johnson, 212 F.3d 1313 (D.C. Cir. 2000), we found
7

that no seizure had occurred where police officers drove their

unmarked car into a parking lot twenty-five feet away from the

defendant’s car. Id. at 1317. Here, when the officers drove their

unmarked police car into the gas station, the car was fifteen to

twenty feet away from the group of men, and nothing in the

record indicates that the officers drove aggressively or impeded

Goddard’s movement. Moreover, the fact that the car halted in

the gas station’s entrance way does not suggest that a

reasonable, innocent pedestrian would have felt unfree to leave.

Nor did the stop occur when the police exited their car and

began to approach Goddard and the other three men.

Admittedly, some of the circumstances are suggestive of a stop,

including that four officers were present—all with guns and

handcuffs showing and wearing identifiable MPD jackets and

badges—and that the officers “jumped out” of the car. Tr. of

June 21, 2004 Hr’g at 58. But the presence of multiple officers

does not automatically mean that a stop has occurred. See

Chesternut, 486 U.S. at 575 (finding no seizure where police car

with four officers followed defendant); see also United States v.

Tavolacci, 895 F.2d 1423, 1424–25 (D.C. Cir. 1990) (finding no

seizure where at most two officers were in defendant’s view).

Our cases, moreover, allow police officers to make a

contact—to approach individuals and interact with

them—without reasonable suspicion. See, e.g., Nurse, 916 F.2d

at 23 (finding no stop where officer who identified himself as a

police officer approached and questioned defendant at a taxi

stand); United States v. Winston, 892 F.2d 112, 114, 117 (D.C.

Cir. 1989) (finding no seizure where officer who identified

himself as a police officer approached and asked to speak with

defendant outside of bus station). As we have explained:

[T]he presence of the officer as a figure of

governmental authority does not, by itself,

constitute the “show of authority” necessary to
8

make a reasonable person feel unfree to leave.

There must be some additional conduct by the

officer to overcome the presumption that a

reasonable person is willing to cooperate with a

law enforcement officer. The approach and

direction of a question by a police officer cannot

be, as a matter of fact or of law, a seizure of the

person so approached.

Gomez, 672 F.2d at 142 (footnote omitted). Thus, the fact that

the officers wore MPD gear, including guns and handcuffs, does

not mean that a stop occurred. See United States v. Samuels,

938 F.2d 210, 213–14 (D.C. Cir. 1991) (“Although the visibility

of handcuffs, like the display of a uniform, a badge, or a gun, is

relevant to whether an encounter with police constitutes a

seizure, the passive display of handcuffs, by itself, is not a

sufficient show of authority to cause a reasonable, law-abiding

person to believe his liberty is being restrained.” (citations

omitted)). Contrary to the dissent’s suggestion, we think

Walker’s characterization of the officers as “jump[ing] out” of

the car, even coupled with the car’s presence in the entrance

way, an insufficient show of authority to constitute a stop. See

Dissenting Op. at 6–7, 12–13.

Of course, we can imagine additional circumstances that

might have made a reasonable person in Goddard’s position feel

unfree to leave, such as if the police had run aggressively

towards him. See Gomez, 672 F.2d at 144 (listing officer’s

demeanor as a factor in determining whether a stop had

occurred). But because Goddard made no such showing, we

need not decide whether such circumstances would produce a

different result. See, e.g., Winston, 892 F.2d at 117 (holding that

where “no . . . showing was made” that officer’s action would

make “reasonable, law-abiding person in [defendant’s] position”

feel unfree to walk away, district court erred in finding Fourth
9

Amendment violation); Shell v. United States, 448 F.3d 951, 955

(7th Cir. 2006) (finding no seizure where defendant failed to

show that officers restrained his liberty).

Based on the record before us, the stop occurred when one

of the officers yelled “gun” and told Walker to return to the

group. We have no doubt that a reasonable person would feel

unfree to leave upon hearing officers seven or eight feet away

yell “gun”—a statement sure to arouse the concern of all officers

and civilians in the immediate area—and order one of his

companions to return. See Wood, 981 F.2d at 540 (finding stop

where officer ordered defendant to stop); United States v.

Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996) (finding

seizure where officer ordered defendant’s coworker to “freeze”

when individuals “were only five feet apart and . . . obviously

working together”). 

Nor do we have any doubt that by this point—and this is the

second issue we must address—the officers had reasonable

suspicion to stop Goddard. Reasonable suspicion requires that,

based on the totality of the circumstances, an officer have “a

particularized and objective basis for suspecting the particular

person stopped of criminal activity.” United States v. Cortez,

449 U.S. 411, 417–18 (1981). Here, the officers had plenty of

reason to suspect Goddard had a weapon, which Goddard

himself concedes would justify a stop. Oral Arg. at 7:58; see

D.C. CODE § 22-4504 (2001) (prohibiting carrying weapons in

D.C. without a license). After “[holding] the right side of his

waistband, like he was holding . . . a gun,” Tr. of June 21, 2004

Hr’g at 8; see United States v. Brown, 334 F.3d 1161, 1167

(D.C. Cir. 2003) (holding that furtive movements in response to

police presence may create reasonable suspicion), Goddard

declared he had a gun, giving the officers ample grounds for the

Terry stop. 
10

Thus, because the officers had reasonable suspicion at the

time of the stop, we affirm Goddard’s conviction.

So ordered.
1

 The testimony regarding the clothes the men were wearing is

quite unhelpful. Officer James testified that their clothes “[f]or the

most part” matched the description in the broadcast, Tr. of June 21,

2004 Hr’g at 17, adding that appellant (who is over six feet tall) was

wearing a “[b]lack coat and blue jeans,” id. at 49. At one point, the

trial judge describes the men as wearing “jeans and a dark shirt,” id.

BROWN, Circuit Judge, dissenting: In America, people who

are peaceably and lawfully minding their own business (or who

seem to be) have the right to be free from arbitrary police

interference. That is the explicit premise of Terry v. Ohio, 392

U.S. 1, 9 (1968) (recognizing the right of every person to be free

from unreasonable governmental restraint, interference, or

intrusion). Forty years later, Terry’s evolution raises troubling

questions. In the crime-plagued, violence-prone, drug-ridden

reality of our urban centers, is reasonable suspicion too high a

threshold; is it too much to ask?

I

The facts, in brief, are as follows. Police were pursuing a

motor vehicle. The driver pulled over and immediately fled on

foot in the dark. Police caught only a fleeting glimpse of the

suspect: a black man, average height and build, wearing blue

jeans and a dark jacket or coat. Not much to go on in a largely

black neighborhood, but police broadcast a “lookout” giving the

description. They reported the man’s height as 5’8” or 5’10”,

and his weight as 180 to 190 pounds. About five blocks away,

Officer Israel James and three other officers were patrolling in

an unmarked Crown Victoria, a car well-known in the area as a

police car. When they heard the report of a black man fleeing,

they drove closer to the site.

Two blocks from where the suspect had fled, the officers

spotted four black men—ranging in height from 5’6” to

6’4”—conversing peaceably in front of a gas station, at least one

of them wearing a black coat.1 These were neighborhood
2

at 83; at another point, “blue jeans and a dark jacket,” id. at 86. In

neither case is the court’s statement supported by specific testimony.

residents, who quickly recognized the police car, and one of the

men, Vaughan Walker, wanted nothing to do with the police,

though he was not involved in any criminal activity. Even

before the police stopped, Walker began walking away—but he

didn’t get far. The police pulled their car part way into the gas

station, blocking the entrance, and all four officers

“automatically jumped out,” Tr. of June 21, 2004 Hr’g at 58,

wearing jackets bearing the “MPD” logo, holstered weapons,

and handcuffs. One of the officers told Mr. Walker to stop; the

statement was directed at Mr. Walker, but the message to the

others, including appellant, was clear enough. No one attempted

to flee. As Officer Figgeroa approached appellant, appellant

said, “I have a gun,” or words to that effect. Officer Figgeroa

immediately yelled out “gun,” alerting the other officers, who

restrained appellant without difficulty and then lifted his shirt,

revealing a handgun tucked into his pants. However, the officer

who had earlier broadcast the “lookout” could not identify

appellant as the fleeing suspect.

Appellant was arrested, and charged with unlawful

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

He moved to suppress the physical evidence and his statements,

claiming an illegal stop in violation of his Fourth Amendment

rights. The district court held a suppression hearing and denied

the motion. The court’s analysis makes clear that, in the court’s

view, a Terry stop occurred as soon as the officers arrived on the

scene. But the court concluded the officers had sufficient

grounds for a stop and frisk based on the broadcast description

of the fleeing suspect. Appellant then pled guilty, preserving his

right to appeal the Fourth Amendment issue.
3

We heard argument in appellant’s appeal on October 16,

2006, and on November 9, 2006, we remanded the record to the

district court, asking the court to clarify the exact “sequence of

events surrounding appellant’s stop and seizure, the factors

establishing when the police contact became a stop, and the facts

known to the police officers at those points.” United States v.

Goddard, No. 05-3080 (D.C. Cir. Nov. 9, 2006). The district

court responded with an express finding that the Terry stop

occurred “as soon as the police officers drove up to the gas

station at 2830 Sherman Avenue to investigate.” United States

v. Goddard, No. 04-214, slip. op. at 2 (D.D.C. Dec. 18, 2006).

II

Before Terry, warrantless seizures were deemed reasonable

only if based on probable cause. Terry carved out a narrow

exception to the probable cause requirement, allowing police

officers to make limited intrusions if the officer reasonably

suspects criminal activity is afoot or public safety is at risk.

Thus, before a police officer initiates an investigative stop, the

officer must, based on an assessment of the whole picture, “have

a particularized and objective basis for suspecting the particular

person stopped of criminal activity.” United States v. Cortez,

449 U.S. 411, 417-18 (1981). The Court adopted a two-part

inquiry for evaluating the reasonableness of an investigative stop

involving something less than probable cause: (1) Was the

officer’s action justified at its inception? and (2) Was it

reasonably related in scope to the circumstances that justified it

in the first place. Terry, 392 U.S. at 20-21; United States v.

Sharpe, 470 U.S. 675, 682 (1985).

It is true, of course, that as a standard “reasonable

suspicion” is necessarily imprecise. But no matter how low the

bar is set, generic racial descriptions devoid of distinctive

individualized details cannot, without more, provide police
4

adequate justification for a Terry stop. It is not enough to share

the same racial characteristics as a suspect and be in the vicinity.

The “lookout” broadcast at issue here described only a

black male, 5’8” to 5’10” in height, about 180 to 190 pounds,

wearing a black jacket or coat and blue jeans. The broadcast

went out after nightfall, and the officer broadcasting the

description made clear the suspect had fled before officers got

a good look at him. Therefore, the arresting officers were on

notice that the description might be unreliable, a point which

they readily acknowledged. At best, one can speak only in the

most approximate terms about the height and weight of a man

seen running away in the dark, and in those circumstances, any

dark-colored coat or jacket might appear to be black. In any

case, the officers were definitely not looking for four young

men, ranging in height from 5’6” to 6’4”, conversing peaceably

in front of a gas station. The police can articulate no basis for

targeting these men except they were black, they were casually

clothed, and they were in the general vicinity of the fleeing

suspect. The officers conceded that none of these men seemed

agitated, nor did any show signs of recent physical exertion,

such as labored breathing or sweating. Apparently, a “lookout”

broadcast encompassing virtually any casually dressed black

man in the vicinity made all black males fair game. Such a

generic description should never be a sufficient basis for a Terry

stop.

Though the cases in this circuit are very deferential to the

police, as is appropriate, none stands on as thin a record as this

one. Our cases establish, as they should, the general rule that

when a police officer decides to initiate a Terry stop based

solely on a third-party description, that description needs to be

specific enough to differentiate the suspect from other people

who are in the vicinity. Hence, in a case involving a black

fugitive in a predominantly black neighborhood, the officer must
5

have something more to go on than race, gender, and standard

street-clothes. See United States v. Davis, 235 F.3d 584 (D.C.

Cir. 2000); United States v. Smart, 98 F.3d 1379 (D.C. Cir.

1996); United States v. Simpson, 992 F.2d 1224 (D.C. Cir.

1993). That rule is not satisfied in our case, where the facts are

extreme enough to debase the rule and considerably extend our

holding in Davis.

III

A

The majority argues the Terry stop did not occur here until

after appellant admitted he had a gun. Usually, of course, a

Terry stop occurs only when police actually physically restrain

a person or make some verbal statement indicating the person is

not free to leave. A verbal statement, however, is not the only

way to communicate that message; a “show of authority” can

also effect a detention. Terry, 392 U.S. at 19 n.16. In the latter

case, the applicable standard “is an objective one: not whether

the citizen perceived that he was being ordered to restrict his

movement, but whether the officer’s words and actions would

have conveyed that to a reasonable person.” California v.

Hodari D., 499 U.S. 621, 628 (1991). “[A] person has been

‘seized’ within the meaning of the Fourth Amendment only if,

in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to

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

“[W]hat constitutes a restraint on liberty prompting a person to

conclude that he is not free to ‘leave’ will vary, not only with the

particular police conduct at issue, but also with the setting in

which the conduct occurs.” Michigan v. Chesternut, 486 U.S.

567, 573 (1988).
6

Here, as noted, the district court made a determination that

the Terry stop occurred “as soon as the police officers drove up

to the gas station.” In other words, in the district court’s view,

the circumstances at that moment were such that a reasonable

person would not have felt free to leave. Generally, we accept

the district court’s findings of fact as true unless clearly

erroneous, but the question of when a person is seized for Fourth

Amendment purposes is a mixed question of fact and law. The

historical facts are subject to the clearly erroneous standard of

review, Ornelas v. United States, 517 U.S. 690, 699 (1996), but

the ultimate conclusion as to whether the facts constitute a

Fourth Amendment seizure is a legal question, id. In some

cases, however, the district court’s factual findings present only

a general sketch, and other findings remain implicit in the

court’s ultimate conclusion. For this reason, we must “give due

weight to inferences drawn from [the findings] by resident

judges.” Id. Therefore, it does not suffice in this case for us to

consider only the court’s express findings; we must also

consider the entire record, reading the evidence in a way that

favors the court’s conclusion as to when the seizure occurred.

B

According to the record before us, four officers pulled up in

a car known in the neighborhood to be a police car. They

brought the car only part way into the gas station, parking so as

to block the entrance, and all four officers jumped out, wearing

clothing marked “MPD” and bearing visible weapons. Walker

testified he had seen police officers “jump out” of the same car

on numerous prior occasions. Tr. of June 21, 2004 Hr’g at 57.

His use of the slang expression “jump out” conveys his

impression that these four officers did not calmly exit the

vehicle in order to ask a few questions. Rather, Walker’s

phrasing indicates a coordinated police action—or, to put the
7

point in street terms, a bust was going down. This was not a

casual contact, and these men were not free to walk away.

The fact that Walker tried to leave and the police instructed

him to return only confirms this conclusion. See United States

v. Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996)

(ordering a person to “freeze” effects a seizure of a nearby

associate). Walker testified that he began to walk away while

the police were still in the car, Tr. of June 21, 2004 Hr’g at 67-

68, and he did not get very far before being told to stop, id. at

69-70. Also, the sequence of Walker’s narrative indicates police

told him to stop before they confronted appellant. Id. at 58-64.

The most natural conclusion, then, is that the police told Walker

to stop as they were emerging from the car or immediately

thereafter.

Contrary to the majority’s assertion, see maj. op. at 3, the

record contains no explicit finding by the district court that

Officer Figgeroa had already yelled “gun” when police

instructed Walker to stop and return. The court does state that,

at the time Officer Figgeroa yelled “gun,” Walker was “walking

away” with “his back towards” the others, Tr. of June 21, 2004

Hr’g at 84, but the court may have been referring to the fact that,

after police told Walker to return, they then instructed him to go

over “[t]owards the rail, in between the pay phone and the air

pump,” id. at 60-61. Moreover, in the passage the majority

references, the district court was not making a finding but only

summarizing Walker’s testimony. The court introduced this

passage by stating that Officer James’s testimony “was

corroborated by the testimony of Mr. Walker.” Id. at 84

(emphasis added). The court then expressly referred to “notes”

the court had taken of Walker’s testimony and, in that context,

made the comment the majority calls a finding. Id.

Significantly, the court’s notes of Walker’s testimony were

apparently inaccurate, for Walker never actually stated that the
8

gun was found while he was walking away. See id. at 68-69. In

short, the court’s asserted “finding” is ambiguous at best, and in

any case, the record contains no evidence to support it.

In addition, the fact that appellant blurted out that he had a

gun evidences his subjective impression that the police were

going to search him, and the officers confirmed that they did not

stop merely to ask these individuals what, if anything, they

might have seen. Rather, Officer Israel James testified that the

purpose in stopping was “to attempt to determine whether or

not . . . one of the individuals was the one who actually fled the

scene.” Id. at 7. The subjective intent of the police officer is

perhaps not determinative in this context, Mendenhall, 446 U.S.

at 554 n.6, but it does tend to support the district court’s

conclusion that the police conveyed the message, through their

actions and demeanor, that no one was free to leave. Thus, I

find the evidence easily supports the court’s ultimate conclusion

as to when the seizure occurred.

True, the district court concluded the seizure occurred “as

soon as the police officers drove up,” whereas it more accurately

occurred when the police drove up, jumped out, and told Walker

not to leave, but the court’s statement can reasonably be taken

in a general sense. The court’s meaning was only that the

seizure did not occur later, when appellant admitted to having a

gun. This interpretation of the court’s statement is consistent

with the court’s application of Terry, in which the court focused

solely on events as they existed prior to appellant’s admission.

IV

Not all encounters with police implicate the Fourth

Amendment; rather, different police-citizen interactions trigger

different standards. Consensual encounters are entirely outside

the scope of the Amendment. Investigative
9

detentions—commonly known as Terry stops—must be

supported by reasonable suspicion of criminal activity.

Custodial arrests require probable cause.

Terry was a sensible decision. It recognized that armed and

dangerous offenders present a serious threat to the safety of both

the police and the public, and it allowed a greater role for street

savvy and police judgment. The holding in Terry permits police

officers to take reasonable steps, based on their experience and

expert training, to prevent a crime before it occurs and to

maintain safety, justifying their actions with only a “reasonable,

articulable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 123

(2000) (characterizing Terry’s holding). But Terry was never

intended to upend completely the warrant and probable cause

requirements, and it does so if the lower courts give police a free

hand to search whenever there is the coincidence of a black

man’s recent flight from the police and another black man’s

presence in the vicinity. This lax standard perverts the core

requirement that police have a “particularized and objective

basis for suspecting the particular person . . . of criminal

activity.” Cortez, 449 U.S. at 417-18.

I have already stated my view that the stop in this case

occurred when the police jumped out of their vehicle and told

Walker not to leave. This case, however, illuminates a broader

issue. The majority’s analytic approach turns almost entirely on

the question of when the stop occurred. Having identified the

stop (“when one of the officers yelled ‘gun,’” maj. op. at 9),

everything preceding it passes out of the analysis,

comprehended under the familiar axiom that officers are free “to

make a contact—to approach individuals and interact with

them—without reasonable suspicion.” Id. at 7. But Terry

“emphatically reject[s]” a logic that would “isolate from

constitutional scrutiny the initial stages of the contact between

the policeman and the citizen.” 392 U.S. at 16-17. Rather,
10

Terry limits “the initiation,” as well as “the scope,” of

investigative detentions. Id. at 17. In my view, truly consensual

conversation (“Have you seen this man?”) in which police are

on equal terms with ordinary citizens is very different from a

confrontation in which police target a particular person because

they suspect him to be the criminal described in a police

broadcast. It makes sense for the Fourth Amendment not to

regulate casual conversation between police and citizens. But

how could the Fourth Amendment stay dormant when police

confront someone because they suspect him to be a criminal?

Targeted police investigation activates the Amendment. In the

instant case, the confrontation began as an investigative stop; the

police claimed a particularized suspicion about four specific

men—a claim that could not conceivably be supported by the

objective information available. Not even the majority claims

the initial investigation was justified. Rather, the majority

employs an analytic approach that makes justifying the

confrontation constitutionally unnecessary. This is certainly

consistent with the trend of recent cases applying Terry, but I

think it is an error. When police focus their investigative

attention on someone and choose to confront that person, they

must have a constitutionally adequate reason for doing so.

Nothing in Terry suggests that the police can employ arbitrary

criteria to select their targets and then artificially create the

circumstances that justify application of the Terry exception.

Terry itself acknowledged the unacceptable social cost of

Fourth Amendment violations, discussing “police-community

tensions in the crowded centers of our Nation’s cities” and the

“wholesale harassment by certain elements of the police

community” of minorities, “particularly Negroes.” Id. at 12, 14.

There are two specific aspects to this social problem. First,

inappropriate use of Terry in America’s minority neighborhoods

offends the principle of equal justice under law. For, as we all

know, courts would not approve the search of four men in
11

business attire, conversing peaceably in front of a Starbucks, if

the only basis for the search was a “lookout” broadcast

specifying a white man, medium height and build, wearing a

business suit. Second, excessive Terry searches set poor black

communities and the police on opposing sides of pitched battle.

At a minimum, these perpetual intrusions leave young black

men feeling bruised and insulted. Often enough, the anger leads

to confrontations with the police, sometimes with violent or

lethal consequences. As Terry put it, when police officers use

stop-and-frisk tactics against minorities to “maintain the power

image” of the officers, the aim is “sometimes accomplished by

humiliating anyone who attempts to undermine police control of

the streets.” Id. at 15 n.11 (citation and internal quotation marks

omitted). Is the even-handed application of the Terry standard

too much to ask?

The facts of this case lead me to wonder if Terry’s prudent

constraints on police conduct have been forgotten in our

frustration over city life plagued with drug trafficking and

violent crime. As a result, what we are now tempted to enforce

is not Terry but the rule that, in a high-crime neighborhood,

being young, male, and black creates reasonable, articulable

suspicion. See David A. Harris, Factors for Reasonable

Suspicion: When Black and Poor Means Stopped and Frisked,

69 IND. L.J. 659 (1994). Here, four men were stopped. There

was no constitutionally adequate justification for the initial

confrontation. Three of them were innocent of criminal activity,

but nevertheless faced the indignity of being placed against a rail

and searched. Vaughan Walker testified he started walking

away as soon as he saw the police car because he “didn’t feel

like being harassed.” The lesson of today’s decision is clear: he

has no choice.

When the ostensibly neutral principles set forth in Terry are

thus applied, what was created to be a carefully outlined
12

exception to the Fourth Amendment’s warrant and probable

cause requirements is transformed into a general warrant—a

police license to search out crime by playing the odds, relying

on hunch, intuition, street smarts, and stereotypes. The odds are

good, although the crimes charged are too often unrelated to the

“suspicion” that led to the stop. After all, in the instant case, a

search of four almost randomly selected black men in a highcrime neighborhood turned up one with a gun—a 25% success

rate. The instances where a search discloses no criminal activity

are brushed aside and forgotten—except in the neighborhoods

where the sense of unfairness and frustration festers and swells

and then seeps out in little acts of defiance or mindless eruptions

of rage.

Acknowledging that no opinion “can comprehend the

protean variety of the street encounter,” the Terry court left

intact the courts’ “traditional responsibility to guard against

police conduct which is overbearing or harassing, or which

trenches upon personal security without the objective

evidentiary justification which the Constitution requires.” 392

U.S. at 15. If this court is ever going to draw such a line, this is

the case in which to draw it.

V

I am not advocating here a broad new rule of constitutional

law that will inhibit police. Police are free to contact members

of the public without every contact being construed as a seizure.

See, e.g., United States v. Nurse, 916 F.2d 20, 23 (D.C. Cir.

1990). Moreover, the presence of two or more officers does not,

by itself, transform a contact into a seizure. See, e.g., United

States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir. 1990). The

case before us presents very specific circumstances: The police

targeted these men in response to a specific broadcast about a

fleeing suspect. They pulled part way into the gas station,
13

blocking the entrance; four officers jumped from the car at once,

wearing clothing marked “MPD”; and they immediately told

someone who was attempting to leave to return. That is not how

one would expect police to proceed when they are merely

making inquiries, and it is very different from the facts of cases

in which police did no more than make their presence felt. See,

e.g., Chesternut, 486 U.S. at 569, 575; United States v. Johnson,

212 F.3d 1313, 1317 (D.C. Cir. 2000). Most important, we have

here a finding by the district court that the police conduct would

have communicated to a reasonable person at the scene that he

or she was not free to leave, and the best interpretation of the

evidence in the record reasonably supports that legal conclusion.

We should adopt the district court’s finding that the Terry

stop occurred when four police officers pulled into the entrance

of the gas station, sprang simultaneously from their car, and

instructed Walker not to leave. We should then reject the

court’s legal conclusion that the generic description of a

medium-sized black man fleeing justifies the Terry stop that

occurred here. By the district court’s logic, police would have

been able to stop virtually every casually dressed black man

within a sixteen-block radius of the crime. Because the meager

facts available to the officers did not come close to justifying the

initial contact, the fruit they subsequently shook out of the

poisonous tree should be excluded. Is that too much to ask? It

is what the constitution requires; it is just enough.

Accordingly, I respectfully dissent.
TATEL, Circuit Judge, concurring: I share many of the

dissent’s concerns about how courts have applied Terry in highcrime minority communities, see Dissenting Op. at 10–12, and

would welcome an opportunity to explore those concerns in

depth. This case, however, cannot provide that opportunity

because the problems so well articulated by the dissent flow

directly from a series of Supreme Court and D.C. Circuit

decisions that bind this panel and, as the dissent acknowledges,

determine the outcome of the issues before us. See Dissenting

Op. at 10 (characterizing majority’s approach as “consistent

with the trend of recent cases applying Terry”). Specifically:

(1) The stop did not occur when the police exited their car. See

Michigan v. Chesternut, 486 U.S. 567, 569, 575 (1988)

(finding no seizure where police car with four officers

pursued defendant); Florida v. Royer, 460 U.S. 491, 497

(1983) (holding that officers may approach an individual in

public without effecting a seizure); United States v.

Samuels, 938 F.2d 210, 213–14 (D.C. Cir. 1991) (noting

that mere visibility of officer’s handcuffs, uniform, badge,

or gun is an insufficient show of authority for a seizure);

United States v. Gomez, 672 F.2d 134, 142 (D.C. Cir. 1982)

(“There must be some additional conduct by the officer

[beyond the fact of his presence] to overcome the

presumption that a reasonable person is willing to cooperate

with a law enforcement officer.”); Maj. Op. at 6–8. If the

stop had occurred when the police exited their car, I would

agree with the dissent that the police lacked reasonable

suspicion. See Dissenting Op. at 4–5.

(2) The stop instead occurred when one of the officers yelled

“gun” and told Walker to return to the group. See United

States v. Wood, 981 F.2d 536, 540 (D.C. Cir.1992) (finding

sufficient show of authority for a stop where officer ordered

defendant to stop); United States v. Alarcon-Gonzalez, 73

F.3d 289, 292 (10th Cir. 1996) (finding seizure of defendant
2

where officer told defendant’s companion to freeze); Maj.

Op. at 9.

(3) At that point—when the officer yelled “gun”—the police

had reasonable suspicion to stop Goddard. See D.C. CODE

§ 22-4504 (2001) (requiring a license to carry a handgun);

United States v. Cortez, 449 U.S. 411, 417–18 (1981)

(holding that reasonable suspicion exists where an officer

has “a particularized and objective basis for suspecting the

particular person stopped of criminal activity”); United

States v. Brown, 334 F.3d 1161, 1167 (D.C. Cir. 2003) (“It

is well settled that an individual’s furtive movements may

be grounds for reasonable suspicion and fear, justifying a

Terry stop and search.”); Maj Op. at 9.