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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CF-1098

SAMUEL D. DOZIER, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court 

of the District of Columbia

(CF2-6040-14)

(Hon. Robert E. Morin, Trial Judge) 

(Argued October 6, 2016 Decided December 5, 2019)

Richard P. Goldberg for appellant.

Danielle M. Kudla, Assistant United States Attorney, with whom Channing D. 

Phillips, United States Attorney at the time the brief was filed, Elizabeth Trosman, 

Elizabeth H. Danello, and Richard Barker, Assistant United States Attorneys, were 

on the brief, for appellee.

Before THOMPSON and MCLEESE, Associate Judges, and RUIZ, Senior Judge.

Opinion for the court by Senior Judge RUIZ.

Concurring opinion by Associate Judge MCLEESE at page 29.

RUIZ, Senior Judge: Appellant seeks reversal of his conviction for one count 

of possession of cocaine with intent to distribute. He argues that the trial court erred 
2

in denying his motion to suppress the plastic bags of cocaine and other evidence 

obtained as the result of what he claims was an unlawful seizure. Specifically, 

appellant contends that the trial court incorrectly determined that the entirety of

appellant’s encounter with the police was consensual and that he voluntarily agreed to

a pat-down that led to the eventual discovery of the incriminating evidence. We 

conclude that appellant had been seized within the meaning of the Fourth 

Amendment by the time he complied with the officers’ request to put his hands 

against a wall so that the officers could pat him down. As the officers did not have 

reasonable, articulable suspicion to seize appellant, the pat-down was conducted in 

violation of the Fourth Amendment. Because the drugs and other evidence used to 

convict appellant were fruits of that violation, the motion to suppress should have 

been granted. Thus we reverse appellant’s conviction and remand for further 

proceedings consistent with this opinion. 

I.

Metropolitan Police Department (MPD) Officer Kristopher Smith presented the 

government’s evidence at the hearing on appellant’s motion to suppress and also 
3

testified at trial.

1

 Officer Smith testified that on the night of April 5, 2014, he and 

Officer Shannon Strange were assigned to a foot patrol near the 6200 block of Dix 

Street, N.E, an area “known for . . . soliciting prostitution and drug activity.” Officer 

Smith explained that his “foot beat” was “concentrate[d] on a certain area in the Sixth 

District for high visibility.” Two other MPD officers, Brittany Gerald and Richard 

Willis, gave Officers Smith and Strange a ride in a marked police vehicle to their

assigned location. All four officers were in uniform and armed. Around 8:45 p.m., 

from inside the police vehicle, the officers observed appellant at the mouth of an alley 

on the 6200 block of Dix Street, walking out of the alley with another person.

2

 

Officer Smith found it “odd [that appellant] was dressed in all black clothing,” and 

“wanted to see what was going on during that time period.” There was no one else in 

the vicinity. 

 1

 In reviewing the trial court’s denial of a motion to suppress, we “can 

consider all testimony from the suppression hearing and undisputed testimony from 

the trial.” Patton v. United States, 633 A.2d 800, 818 n.11 (D.C. 1993); see Miles v. 

United States, 181 A.3d 633, 643 n.17 (D.C. 2018). MPD Officers Brittany Gerald 

and Richard Willis testified at trial about the relevant events. 

2

 Officer Smith did not testify as to the identity of the other individual. 

However, appellant’s brother, Antonio Dozier, testified at trial that he was walking 

with appellant from their father’s house, which was within a mile of the alley. He 

testified that, as they were walking, he could see the police driving toward them from 

about half a mile away, and that, as he and appellant were headed in different 

directions, they split up shortly before the officers arrived. 
4

Upon seeing appellant, the officers drove their police vehicle to the alley. 

When the officers parked the vehicle,3 its blue position lights were on, illuminating it 

as a police cruiser. Officer Smith testified that it was dark out, but that the alley was 

well lit. Appellant, now alone, was ten to fifteen feet inside the alley. Officers Smith 

and Strange got out of the police vehicle, and from about twenty feet away, Officer 

Strange asked appellant, “[h]ey, man, can I talk to you?” Appellant did not respond 

and “kept on walking.” Both officers got closer, and when they were five to ten feet 

away from appellant,4 Officer Strange again asked him, “hey, man, can I talk to 

you?” Officer Smith testified that Officer Strange used a “calm voice” when he 

asked to speak to appellant. The second time he was asked, appellant replied, “yeah, 

you can talk to me.” 

Officer Smith asked appellant whether he had “any illegal weapons on him.” 

Appellant replied “no,” and also “lifted his jacket” to show “a clean waistband.” 

According to Officer Smith, “it was at that point that [the officers] decided to conduct 

 3

 The record is unclear as to the exact location where the police vehicle was 

parked. At the suppression hearing, Officer Smith testified that the car was not in the 

alley and stopped at the entrance of the alley, whereas at trial, he testified that the car 

was “all of the way into the alley.” Officer Willis testified that the car “was sort of 

half in the alley, half out the alley.” The trial court did not resolve the discrepancy. 

The precise location of the police car, however, is not determinative in our analysis. 

4

 At trial, however, Officer Smith altered his testimony, and said that he was 

ten to twelve feet away from appellant. 
5

a pat-down.”5 Officer Strange then asked appellant whether he could be patted down

“for any weapons.” Appellant responded, “yes, you can check me.” Officer Strange 

asked appellant “voluntarily for his safety to place his hands on the [alley] wall,” and 

appellant complied. Officer Strange began the pat-down, and upon reaching 

appellant’s left ankle, felt a “bulge” inside appellant’s sock that was approximately 

the size of a crumpled up “ball of money.” Officer Strange asked appellant what the 

bulge was. Officer Smith, who had “grabbed” appellant’s right arm, felt him “tense 

up,”6 and signaled to Officers Gerald and Willis, who were still in the police cruiser, 

to come over to provide assistance. Appellant then “pushed off” of the wall and ran 

away. 

 5

 At the suppression hearing, Officer Smith explained: “I didn’t see nothing 

that perceived to me that he had any weapon on him, so he did not have any weapons 

on his person at that time.” At trial, however, he said that “[e]ven though he revealed 

his waistband, there still could be an incidence where a gun or anything else where a 

weapon could be hidden within his arms or what is inside his jacket pockets.” 

6

 The record is unclear as to exactly when Officer Smith grabbed appellant’s 

arm. At the suppression hearing, Officer Smith testified on direct examination, “I 

[had appellant’s] — I was holding his arm” when Officer Strange asked about the 

bulge in appellant’s sock. However, on cross-examination, Officer Smith testified 

that he grabbed appellant’s arm “the second” that Officer Strange asked what the 

bulge was. Later at trial, Officer Smith testified that “Officer Strange was in a 

kneeling position and Officer Strange [upon detecting the bulge] looked up and asked 

[appellant], what is this? And when [Officer Strange] did that, that is when I grabbed 

. . . [appellant’s] arm.” This discrepancy as to the exact moment when Officer Smith 

grabbed appellant’s arm during the pat-down is immaterial to our analysis.
6

The four officers gave chase for about a minute, over one to one-and-a-half 

blocks. Appellant ran through the alley to a nearby Valero gas station, where the 

officers apprehended him. Officer Smith testified that when appellant reached the 

gas station, he ran toward a nearby area that was enclosed by a locked fence, and 

appellant had “nowhere to go.” He turned to face the officers who were upon him, 

removed an item from his sock, and threw it over the fence. The officers recovered a 

plastic bag from the opposite side of the fence. It contained smaller plastic bags with 

a white rock-like substance that was tested and proved to be cocaine. 

Appellant was charged with one count of unlawful possession with intent to 

distribute (PWID) cocaine, in violation of D.C. Code § 48-904.01(a)(1) (2001).7

 He

moved to suppress “all tangible evidence allegedly recovered from his person,” 

namely the drugs, as well as “[a]ll evidence of what was observed” during the 

encounter, including his running away from the officers and tossing an object over 

the fence. After a hearing, the trial court denied appellant’s motion. 

The trial court concluded that Officer Smith was credible, and that no other 

evidence contradicted his testimony. The court found that, while the government 

 7

 The statute has since been amended; the relevant provision is now at D.C. 

§ 48-904.01(d)(1) (2019 Supp.).
7

offered “no evidence” that appellant had “engaged in any kind of criminal activity” 

when the officers initially approached him in the alley, the officers did not need 

justification to stop appellant because appellant’s initial encounter with the police 

was consensual. The court determined that the government “established by a 

preponderance of the evidence that the officers had not engaged in any coercive or

threatening behavior” — there were no weapons drawn, no commands, but only a 

calm request — and that appellant consented to be patted down.8

 Stating that Officer 

Smith had “attempted to grab [appellant’s] right arm” before appellant “broke free 

from both officers and began to flee,”9 the court found that appellant’s encounter with 

the police was similar to the one considered by the Supreme Court in California v.

Hodari D., 499 U.S. 621 (1991), and in our subsequent cases holding that an 

unsuccessful attempt to detain a suspect is not a seizure. The court denied the motion 

to suppress, reasoning that at most there was an “attempted” seizure when the officers 

discovered the bulge in appellant’s sock and that appellant subsequently fled and 

abandoned the drugs. 

 8

 The court also found that it could reasonably be inferred that appellant had 

not heard Officer Strange the first time he asked to speak with appellant. 

9

 This was inaccurate. Officer Smith consistently testified that he had actually 

grabbed appellant’s arm and felt it “tense up.” What is not entirely clear from the 

record is whether the officer grabbed appellant’s arm before or after appellant was 

asked what was in his sock. See supra note 6. 
8

A three-day jury trial followed, after which appellant was found guilty on the 

sole count of PWID and sentenced to twenty months in prison to be followed by five 

years of supervised probation. This timely appeal followed.

II.

The Fourth Amendment protects “the right of the people to be secure in their 

persons, houses, papers and effects, against unreasonable searches and seizures.” 

U.S. Const. amend. IV. A constitutionally permissible encounter between a police 

officer and an individual can either be a “consensual encounter[], which do[es] not 

require any level of suspicion prior to initiation”; an “investigative detention[], which 

if nonconsensual, must be supported by a reasonable, articulable suspicion of 

criminal activity prior to initiation”; or an “arrest[], which must be supported by 

probable cause prior to initiation.” Gordon v. United States, 120 A.3d 73, 78 (D.C. 

2015) (footnotes omitted). “Both investigative detentions and arrests are seizures 

under the Fourth Amendment; mere consensual encounters are not.” Id. (footnotes 

omitted). An encounter may begin consensually and, through either “the officer’s

show of authority or some other indication that the individual is not free to leave, 

become a nonconsensual seizure” that requires reasonable, articulable suspicion. 

Towles v. United States, 115 A.3d 1222, 1228 (D.C. 2015). 
9

In determining whether a seizure occurred, this court analyzes the totality of 

the circumstances to determine whether “the police conduct would have 

communicated to a reasonable person that the person was not free to decline the 

officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 

429, 439 (1991); see Hooks v. United States, 208 A.3d 741, 746 n.11 (D.C. 2019) 

(“Another formulation of the test asks whether a reasonable person would have felt 

‘free to leave,’ . . . but the protections of the Fourth Amendment extend to situations 

where a citizen has no desire to go elsewhere and instead simply wishes to decline an 

encounter with the police.”). The hypothetical reasonable person is an innocent 

person. See Bostick, 501 U.S. at 438. “Whether a seizure has occurred for Fourth 

Amendment purposes is a question of law which this court reviews de novo, deferring 

to the trial court’s factual findings, unless clearly erroneous.” Jackson v. United 

States, 805 A.2d 979, 985 (D.C. 2002). The trial court’s determination that an

encounter was consensual is a legal conclusion that a seizure did not occur, subject to 

de novo review. See id. at 985-86; Sharp v. United States, 132 A.3d 161, 166 (D.C. 

2016).

Where the government contends the person agreed to a pat-down, it bears the 

burden to prove that “consent was, in fact, freely and voluntarily given.” Bumper v. 
10

North Carolina, 391 U.S. 543, 548 (1968); see (Valerie M.) Brown v. United States, 

983 A.2d 1023, 1027 (D.C. 2009). Whether an individual gave consent is a factual 

finding that we review for clear error. See In re J.M., 619 A.2d 497, 501 (D.C. 1992) 

(en banc). However, when “statements and conduct evidencing consent to a search 

are given contemporaneously with the illegal seizure, with no break in the causal 

chain, the actions of the person seized are not free from the taint of unlawful 

detention and are thus insufficient to show consent.” (Albert) Jones v. United States, 

154 A.3d 591, 598 n.20 (D.C. 2017) (quoting McGann v. Ne. Ill. Reg’l Commuter 

R.R. Corp., 8 F.3d 1174, 1184 (7th Cir. 1993)); see Hicks v. United States, 705 A.2d 

636, 641 (D.C. 1997).

“Generally, when physical or testimonial evidence is uncovered by an illegal 

search or seizure, it must be suppressed as the ‘fruit of the poisonous tree.’” Wilson 

v. United States, 102 A.3d 751, 753 (D.C. 2014) (citation omitted).10 “The test is 

whether the evidence in question ‘has been come at by exploitation of [the primary] 

illegality or instead by means sufficiently distinguishable to be purged of the primary 

 10 Admission of “fruits” has been permitted in some cases involving warrants 

that are later ruled invalid or recalled, where the purposes of the exclusionary rule 

would not be undermined because the conduct that violated the defendant’s rights 

was not “sufficiently deliberate that exclusion can meaningfully deter it, and 

sufficiently culpable that such deterrence is worth the price paid by the justice 

system.” Blair v. United States, 114 A.3d 960, 972 (D.C. 2015) (quoting Herring v. 

United States, 555 U.S. 135, 144 (2004)). 
11

taint.’” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)). The 

government has the burden of proving that “an intervening event or other attenuating 

circumstance purged the taint of the initial illegality so as to obviate suppression.” 

Robinson v. United States, 76 A.3d 329, 342 n.27 (D.C. 2013) (brackets, citation, and 

internal quotation marks omitted). 

III.

The government concedes that there was no reasonable, articulable suspicion 

that appellant was engaging in criminal activity when the officers saw him at the 

mouth of the alley and decided to question him.

11 Instead, the government contends

that the officers initially engaged appellant in a consensual encounter that did “not 

require any level of suspicion prior to initiation,” Gordon, 120 A.3d at 78, and that 

the interaction continued in the same vein, with appellant voluntarily agreeing to the 

pat-down. In support, the government argues that the officers did not say or do 

anything to convey to appellant that he was not free to leave or refuse the encounter; 

rather, they simply walked up, asked a few questions in a “normal” tone of voice, and 

 11 Indeed, Officer Smith’s stated reason for his suspicions of appellant, that he 

was dressed all in black, without more, was clearly inadequate under the Fourth 

Amendment.
12

did not take any action that amounted to a show of force or that was otherwise 

intimidating. 

We disagree with the government’s portrayal of appellant’s encounter with the 

police as entirely consensual. Applying the well-established legal principles outlined 

above in a totality-of-the-circumstances analysis, we conclude that even assuming 

that the officers’ interaction with appellant began in a consensual manner, there was a 

Fourth Amendment seizure by the time appellant submitted to the officers’ request to 

a pat-down. An innocent person in appellant’s situation, we believe, would not have 

felt free to decline that request after he had been approached by two uniformed and 

armed police officers who engaged in repeated questioning and escalating requests, 

culminating with a request to put his hands on the wall for a pat-down, at a time when 

he was alone, at night, in a secluded alley partially blocked by a police cruiser with 

two additional officers standing by. “The message that a suspect is not free to leave 

or terminate [an encounter] can be conveyed, not necessarily intentionally, in ways 

less obvious than actual physical force or [an] explicit command.” (Albert) Jones, 

154 A.3d at 595. 

In coming to this conclusion, we have reviewed our recent analysis in (Albert)

Jones. 154 A.3d at 594-98. In that case, two officers were on patrol in a marked 
13

police car during the day in an area known for “a high volume of drug sales.” Id. at 

593. While driving through an alley they spotted Jones, who was walking out of the 

alley, holding a Newport cigarette box in his hand. Id. at 592-93, 595-96. As the 

officers passed Jones, the officer driving the car rolled down his window and casually 

greeted Jones. Id. at 593. The officer, who was visibly armed and in uniform, then 

got out of the car, and, noticing that Jones tried to hide the cigarette box behind his 

back, asked Jones for his name, date of birth, and address, which Jones provided. Id.

The officer then asked to see the cigarette box, which turned out to contain 

contraband. Id. The officer used a cordial tone of voice throughout and the

encounter was short, lasting only a minute or two. Id. at 595. 

We started our analysis by recognizing that when a “visibly armed police 

officer in full uniform and tactical vest emerges without warning from a police 

cruiser to interrupt a person going about his private business,” the encounter is not 

“between equals.” Id. at 595. In addition, we noted that where “questioning is at

least implicitly accusatory (if not explicitly so), a reasonable person’s reaction is not 

only to show respect for the officer’s authority, but also to feel vulnerable and 

apprehensive.” Id. at 596. “In such an atmosphere,” we remarked, “a reasonable 

person who can tell from the inquiries that the officer suspects him of something, and 

who cannot know whether the officer thinks there is sufficient reason to detain him, 
14

may well doubt that the officer would allow him to avoid or terminate the encounter 

and just walk away.” Id. Although these circumstances in Jones were not by 

themselves sufficient to constitute a seizure, we went on to consider two additional 

factors that, when combined with the contextual circumstances, rendered the 

encounter with the police a seizure within the meaning of the Fourth Amendment. 

See id.

First, Jones’s freedom of movement was limited because the police vehicle was 

occupying the middle of a very narrow alley and, when the officer stepped outside the 

car, he partially obstructed Jones’s way between the vehicle and the alley wall. Id. 

Although it would have been possible for Jones to squeeze past the officer or turn 

around and leave the alley in the opposite direction, the circumstances “substantially 

reduced the ease with which [Jones] could have walked on or otherwise avoided the 

encounter.” Id. at 597. This helped “to convey the message to a reasonable person in 

[Jones’s] position that he was not free to disregard the police and go about his 

business.” Id. Second, the officers ran a check for outstanding arrest warrants, which 

would send a strong signal to a reasonable innocent person that his liberty would be 

restrained while the check was in progress. Id. We concluded that, viewing the 

circumstances as a whole, Jones’s encounter with the police was a seizure within the 

meaning of the Fourth Amendment. Id. at 598. 
15

As in (Albert) Jones, we begin our analysis in this case by recognizing the 

apprehensiveness that would naturally be felt by a person unexpectedly accosted by 

police officers insistently asking questions in appellant’s situation. The setting in this 

case had several indicia that made it particularly intimidating. As we commented in 

(Albert) Jones, an encounter is “more intimidating if the person is by himself, if more 

than one officer is present, or if the encounter occurs in a location that is secluded or 

out of public sight.” Id. at 597. Appellant’s encounter occurred at night, in a 

secluded alley where he was alone, and four officers were involved. The alley was 

enclosed on both sides by brick walls, and no passersby could see into the alley 

unless they were right at the entrance of one end or the other. 

Moreover, there were other signs that would have conveyed that appellant 

would not be able to avoid the officers’ interest in questioning him. The police went 

to where appellant was walking out of the alley and parked the patrol car at the 

entrance to the alley. Two armed and uniformed officers got out of the car, walking

closer to appellant as they called out to him, while two other officers remained 

standing by in the police car. They persisted even after appellant initially did not 

respond and continued on his way. The officers came closer, within five to twelve 

feet of appellant, and again asked to speak with him. Thus, by a certain point, the 
16

officers signaled that this was not a chance encounter but one directed specifically at 

appellant. See United States v. (Frederick) Jones, 678 F.3d 293, 300 (4th Cir. 2012) 

(“a traditional hallmark of a police-citizen consensual encounter: the seemingly 

routine approach of the police officer”) (citing Bostick, 501 U.S. at 434)); cf. (Albert) 

Jones, 154 A.3d at 593 (two officers happened upon Jones as they were driving 

through an alley during the day; one officer asked Jones questions, first while still 

seated inside the car, and then got out of the car).

We note other factors, not discussed in (Albert) Jones, that we think are

relevant in evaluating the coercive character of the overall setting of the encounter:

that it took place in a “high crime area”12 and involved an African-American man. 

Officer Smith testified that the 6200 block of Dix Street was “known for” prostitution 

 12 The Supreme Court first used the term “high-crime area” in 1972, but has 

never defined exactly what constitutes such an area. See Andrew G. Ferguson & 

Damien Bernache, The “High-Crime Area” Question: Requiring Verifiable & 

Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 

Am. U.L. Rev. 1587, 1590 & nn.1-2 (2008) (citing Adams v. Williams, 407 U.S. 143, 

147-48 (1972), and Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). The Supreme 

Court, as well as this court, has recognized that the occurrence of an investigative 

stop in a high-crime area can be a relevant contextual consideration in evaluating 

whether the police had reasonable, articulable suspicion to effect a stop under the 

Fourth Amendment. See Miles, 181 A.3d at 640. We have cautioned against overreliance on this amorphous term to support reasonable, articulable suspicion to effect 

a seizure, given that residents of certain neighborhoods in the District of Columbia 

may be more likely to be suspected of engaging in criminal activity simply because of 

where they live or frequent. See Henson v. United States, 55 A.3d 859, 871-72 (D.C. 

2012) (Blackburne-Rigsby, J., concurring).
17

and drug activity and was “fairly plagued with numerous complaints” of such 

incidents. He testified that the police paid “special attention” to that area, with 

“numerous assignments” to officers to patrol that area, and that he and Officer 

Strange were assigned to a foot patrol “for high visibility.” Considering that the 

police frequently and visibly patrolled the area for criminal activity, it is to be 

expected that a person in the area would be aware that police officers in the area 

expected to find criminal activity there. Against that awareness, the officers’ 

repeated questioning and escalating requests would have felt even more pointed and 

coercive. See (Frederick) Jones, 678 F.3d at 304 (“[T]he totality of the 

circumstances would suggest to a reasonable person in Jones’s position that the 

officers suspected him of some sort of illegal activity in a ‘high crime area,’ which, in 

turn, would convey that he was a target of a criminal investigation and thus not free 

to leave or terminate the encounter.”).

By making this common-sense observation we do not retreat from the wellestablished proposition that the Fourth Amendment is not implicated simply because 

“a police officer approaches an individual and asks a few questions.” Bostick, 501 

U.S. at 434. As the Supreme Court has explained, just as police are at liberty (as is 

any other person) to ask questions, so the person approached by police has “an equal 

right to ignore his interrogator and walk away.” United States v. Mendenhall, 446 
18

U.S. 544, 553 (1980). This does not mean, however, that a Fourth Amendment 

seizure takes place any time a person would feel some pressure to respond to an 

officer’s questions and requests. See Lawrence v. United States, 566 A.2d 57, 60 

(D.C. 1989). As we recognized in (Albert) Jones, although there is an inherent 

inequality and vulnerability in most encounters with police, the Fourth Amendment

calculus tolerates a measure of official pressure in exchange for needed cooperation 

from the public with police activities in safeguarding safety and assisting with law 

enforcement. See 154 A.3d at 596 n.15 (“The purpose of the Fourth Amendment is 

not to eliminate all contact between the police and the citizenry, but to prevent 

arbitrary and oppressive interference by enforcement officials with the privacy and 

personal security of individuals.”) (quoting Mendenhall, 446 U.S. at 553-54)). The 

question is how much and what kind of pressure will tip that calibrated balance from 

the type of encounter an ordered society encourages to one that infringes too much 

into the private space the Fourth Amendment protects from unjustified government 

intrusion. 

We think it is evident that the pressure a person might feel to cooperate as part 

of his civic responsibility is by its nature different from the pressure felt by a person 

who thinks he might be suspected of criminal activity. Being innocent is not the 

same as being perceived to be innocent. Even the innocent person we posit in our 
19

Fourth Amendment analysis might well fear that he is perceived with particular 

suspicion by hyper-vigilant police officers expecting to find criminal activity in a 

particular area.

This fear is particularly justified for persons of color, who are more likely to be 

subjected to this type of police surveillance.

13 As is known from well-publicized and 

documented examples, an African-American man facing armed policemen would 

reasonably be especially apprehensive.

14 The fear of harm and resulting protective 

conditioning to submit to avoid harm at the hands of police is relevant to whether 

there was a seizure because feeling “free” to leave or terminate an encounter with 

police officers is rooted in an assessment of the consequences of doing so.

15 A

 13 The Metropolitan Police Department recently released a report with a onemonth snapshot of statistics on stops throughout the District of Columbia. According 

to the Stop Data Report, 70% of stops in the District of Columbia involved African 

Americans; the number increases to 86% if vehicle stops are excluded; 46% of 

District residents are African American. See Metropolitan Police Department, 

Washington, D.C., Stop Data Report at 9, 19 (Sept. 9, 2019), available at 

https://mpdc.dc.gov/stopdata https://perma.cc/RJ59-RD2M (last visited Dec. 4, 

2019).

14 See Devon Carbado, “Blue-on-Black Violence: A Provisional Model of 

Some of the Causes,” 104 Geo. L.J. 1479, 1480 (2016). 

15 It is worth noting that

[t]his case involves a suspicionless stop, one in which the 

officer initiated this chain of events without justification. As 

 (continued . . . )
20

person who reasonably is apprehensive that walking away, ignoring police presence,

or refusing to answer police questions or requests might lead to detention and, 

possibly, more aggressive police action, is not truly free to exercise a constitutional 

prerogative — “to be secure in their persons,” even if they do not submit — in the 

same manner as a person who is not viewed with similar suspicion by police and, as a 

result, largely unafraid of triggering an aggressive reaction.

16 We cannot turn a blind 

________________________

( . . . continued)

the Justice Department notes, . . . many innocent people are 

subjected to the humiliations of these unconstitutional 

searches. . . . But it is no secret that people of color are 

disproportionate victims of this type of scrutiny. . . . For 

generations, black and brown parents have given their 

children “the talk” — instructing them never to run down 

the street; always keep your hands where they can be seen; 

do not even think of talking back to a stranger — all out of

fear of how an officer with a gun will react to them.

Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (internal 

citations omitted).

16 The Council of the District of Columbia and the Metropolitan Police 

Department, aware of the tensions surrounding police use of force in conducting 

stops and searches, have taken steps to enhance police accountability and build the 

community’s trust in policing activities. The NEAR Act, enacted in 2016, adopted a 

number of reforms to address these tensions, including making misdemeanor assault 

on a police officer a jury-demandable offense. D.C. Code § 22-405 (b) (2018 Supp.); 

D.C. Code § 16-705 (b)(1) (2012 Repl.).

The “troubling findings” that led the Council to adopt these changes were that:

• Ninety percent of those charged with APO were black, 

although black residents comprise only half of the 

District’s population.

 (continued . . . )
21

________________________

( . . . continued)

• Nearly two-thirds of those arrested for APO were not 

charged with any other crime, raising questions about 

whether police had legal justification to stop the 

individual.

• Approximately 1 in 4 individuals charged with a 

misdemeanor for APO required medical attention after 

their arrest, a higher rate than the 1 in 5 officers reporting 

injury from the interactions.

• The District uses the charge of APO almost three times 

as much as cities of comparable size, according to a 2013 

FBI report and MPD numbers.

• Prosecutors declined to press charges in more than 40 

percent of the arrests for assaulting a police officer.

“Neighborhood Engagement Achieves Results Amendment Act of 2016”, D.C. 

Council, Report on Bill 21-0360 at 11 (Jan. 27, 2016). 

Earlier that year, the Council endorsed the MPD’s Body-Worn Camera 

Program. D.C. Code §§ 5-116.31-.33, 5-116.51. The Committee Report set out an 

overview of the serious problem it sought to address: “Public perception of policing 

is at a low point. Grand gestures are not going to change that perception; police are 

going to need to restore trust one interaction at a time.” (quoting oral testimony of 

then-MPD Chief Cathy Lanier). “Body-Worn Camera Amendment Act of 2015”,

D.C. Council, Report on Bill 21-0351 at 6 (Nov. 19, 2015).

In her testimony, Chief Lanier explained the MPD’s reasons for adopting bodyworn cameras:

We began exploring body-worn cameras before many of 

the recent high-profile incidents around the country 

heightened national attention on police accountability. 

These events have intensified the frustration and lack of 

trust that some in the community have with police. There 

is no easy solution to resolve these difficult issues, but 

body cameras could improve the climate by providing a 

better record of police interactions with individuals from 

start to finish. Other agencies have reported that police 

 (continued . . . )
22

eye to the reality that not all encounters with the police proceed from the same 

footing, but are based on experiences and expectations, including stereotypical 

impressions, on both sides. Our job in this case is not to judge their truth or validity 

but to recognize they exist and take them into account in light of “[o]ur precedents 

[which] direct [us to] take an ‘earthy’ and realistic approach to such street

encounters.” (Albert) Jones, 154 A.3d at 596 (quoting Jackson v. United States, 805 

A.2d 979, 988 (D.C. 2002)). In view of the intimidating factors and the 

corresponding sense of vulnerability, a reasonable person in appellant’s situation

“may well doubt that the officer would allow him to avoid or terminate the encounter 

and just walk away.” (Albert) Jones, 154 A.3d at 596. In the isolated setting where 

the encounter took place, appellant, who is African-American, reasonably could have 

feared that unless he complied with the police requests, he would be vulnerable to 

police violence, without hope that anyone would come to his aid or witness what 

happened.

________________________

( . . . continued)

use of force and citizen complaints have significantly 

decreased with the deployment of the cameras. Given 

the expected benefits, more and more departments are 

launching BWC programs. Body-worn cameras may be 

an important step in restoring public trust in law 

enforcement. 

Id. at 11.
23

We also note additional circumstances present in appellant’s encounter with the 

police that “materially increased its coerciveness.” Id. Appellant’s freedom of 

movement was “restrained” by the officers’ “show of authority.” Mendenhall, 446 

U.S. at 552. As two officers, in uniform and armed, were closing on appellant in a 

secluded alley and calling to him, two other officers were waiting in a police cruiser 

parked at the egress point of the alley toward which appellant had been walking. Cf. 

id. at 555 (no seizure where events took place in a “public concourse” in an airport, 

and federal agents, who identified themselves, wore no uniform and displayed no 

weapons). Even though appellant could, in theory, have walked past both sets of

officers (and compared to (Albert) Jones, appellant had more room to do so), the 

greater number of officers and their positioning created an intimidating environment 

that psychologically, if not physically, “substantially reduced” the ease with which 

appellant could have avoided the police. (Albert) Jones, 154 A.3d at 597. We think 

it highly unlikely that a person in appellant’s situation would reasonably have 

entertained the prospect of continuing to walk away in that scenario — between two 

sets of officers who had made clear their intentions to engage with him — and felt 

free to disregard the police presence and go about his business.

And although here the officers did not run a warrant check as in (Albert) Jones, 

the officers comparably signaled that appellant would not be allowed to leave until 
24

they finished the investigation they had set in motion. When Officer Smith first 

asked if appellant had illegal weapons on him, appellant responded “no.” He then 

lifted his jacket to show that he was not armed. Despite appellant’s two responses to 

the officers’ questions, Officer Strange continued to investigate, asking appellant 

whether he could be patted down “for any weapons,” and then requesting that 

appellant “place his hands on the [alley] wall.” By insisting on increasingly intrusive 

measures, notwithstanding appellant’s verbal response and additional action (showing 

a clean waistband) that answered the officers’ stated concern about illegal weapons, 

the officers made clear that they were dissatisfied with appellant’s compliant 

responses, and that they would continue to investigate until they could confirm or 

dispel their suspicions about appellant by conducting a pat-down. See (Albert) Jones, 

154 A.3d at 597 (noting that the significance of a warrant check is not necessarily its 

duration but that it “sends a strong signal to a reasonable person that the officer will 

not allow him to leave while the inquiry is in progress precisely because the outcome 

of the inquiry may necessitate that person’s detention”); (Valerie M.) Brown, 983 

A.2d at 1026 (explaining that “repeated questioning of a defendant can cause an 

encounter to lose ‘its consensual nature’ if the police officers' questions or actions 

‘convey a message that compliance with their requests is required[]’”) (quoting 

Hawkins v. United States, 663 A.2d 1221, 1226 n.20 (D.C. 1995)).

17

 17 We are unpersuaded by the government’s argument that the officers’ 

 (continued . . . )
25

The government and the trial court relied on the fact that the officers made

“requests” and did so in conversational tones, without orders, shouting, or threats. 

These are factors to be considered but they do not necessarily counter a reasonable 

person’s perception of the coercive nature of the interaction with the police. See 

Guadalupe v. United States, 585 A.2d 1348, 1361 (D.C. 1991) (noting that an 

“officer’s questioning d[oes] not have to assume an intensity marking a shift from 

polite conversation to harsh words to create an intimidating atmosphere”; rather, the 

same shift would happen when the officers’ conduct shows that they would “continue 

to follow and ask additional questions”). The age-old adage that “actions speak 

louder than words” rings true here: a police officer making a “request” of a civilian 

may in some circumstances present a choice, but in this case the message came

________________________

( . . . continued)

questioning of appellant was similar to that in Brown, where we concluded that 

Brown’s encounter with the police did not amount to a Fourth Amendment seizure. 

983 A.2d at 1026. In Brown, two armed and uniformed police officers approached a 

group of five or six men standing on the sidewalk. Id. at 1025. One officer spoke 

with two of the men, while the other officer asked Brown a question (“Do you have 

any guns, drugs, or narcotics on you?”) in a “normal tone” of voice “without making 

any threatening gesture,” and repeated the question after receiving a non-responsive 

answer. Id. In this case, appellant was alone in an alley, more officers were 

involved, the officers’ questions were more numerous, and their requests more 

intrusive, than in Brown. The officers here asked a second time to speak to appellant, 

after he did not respond the first time. This would be equivalent to the repeated 

question in Brown. But in addition, here the officers continued to ask appellant to pat 

him down for illegal weapons even though appellant had already given a responsive 

verbal reply (“no”) and lifted his jacket to show that he was not armed.
26

through that appellant was not free to decline the request for a pat-down or terminate 

the encounter. Words and actions can reasonably be perceived differently depending 

on the surroundings, which provide important context. As we have already 

discussed, the physical location and time of the encounter (a secluded alley at night) 

can have a bearing on its coerciveness, a person’s freedom to avoid the encounter can 

be affected by the number of officers involved and their positioning, and a person’s 

freedom to refuse to engage or answer can be diminished by the perceived level of 

police suspicion, as shown by persistent questioning, or by reasonable apprehension 

about triggering aggressive police actions if the person is in a neighborhood or 

belongs to a group routinely targeted by police.

We emphasize that we consider the factors we have identified “as a whole, 

under the totality of the circumstances, rather than in isolation.” Jackson, 805 A.2d at

987. No single circumstance in this case was by itself sufficient, nor were all 

necessary to amount to a seizure. Although we compare to other cases for guidance, 

we decide each case on its own, considering all relevant facts. In this case, we 

conclude that appellant was seized within the meaning of the Fourth Amendment by 

the time he complied with the officers’ request to put his hands on the alley wall so 
27

that they could pat him down.18 Because there was no reasonable, articulable 

suspicion that he was engaged in criminal activity prior to that time, the seizure was 

unlawful.19 Applying the exclusionary rule, we conclude that the drug evidence, as 

well as the officers’ testimony about appellant’s flight and throwing motion, should 

have been suppressed as the fruits of an illegal seizure.20 See (Albert) Jones, 154 

 18 Assuming that, as the trial court found, appellant agreed to the pat-down, it 

would have been contemporaneous with and tainted by the illegal seizure, and “thus 

insufficient to show consent.” (Albert) Jones, 154 A.3d at 598 n.20.

19 The government’s brief argues, in a footnote, that in a high-crime area, the 

officers had justification to stop appellant at the moment they felt his arm “tense up” 

when asked about the bulge in his sock. As we explain in the text, appellant had 

already been seized by then, so even assuming that the argument has merit (an issue 

which we do not decide), the justification would have come after appellant was 

seized.

At oral argument the government argued, for the first time, that even if 

appellant had been seized, appellant’s running away ended the “attempted seizure,” 

and therefore facts observed by the officers during and after the pat-down could be 

taken into account in determining whether they had reasonable articulable suspicion, 

citing Henson, 55 A.3d at 867-68. We need not consider this argument because 

issues raised for the first time at oral argument are normally deemed waived. See 

Ramos v. United States, 569 A.2d 158, 162 n.5 (D.C. 1990). In any event, our 

conclusion that appellant was seized is not based on a physical seizure of his person, 

the question at issue in Henson, but on his submission to a police pat-down in a 

situation that, viewed in its totality, conveyed to a reasonable person that he was not 

free to leave.

20 The government argued that because appellant abandoned the drugs by 

tossing them as he tried to run away, he no longer had a reasonable expectation of 

privacy and therefore lacked standing to raise a Fourth Amendment challenge. We 

reject that argument because when he submitted to the pat-down appellant had the 

drugs secreted on his person, and therefore had an expectation of privacy at the time 

 (continued . . . )
28

A.3d at 598. Accordingly, we reverse appellant’s conviction and remand the case for 

further proceedings consistent with this opinion.

 

Reversed and remanded. 

________________________

( . . . continued)

of the illegal seizure. The evidence must be excluded as the government has not 

shown that there was an independent, intervening event that purged the taint of the 

unlawful seizure. See Robinson, 76 A.3d at 342 n.27. Here, the undisputed evidence 

is that appellant discarded the drugs he had been safeguarding in his sock within a 

minute or two after he broke free from the unlawful seizure just as he was about to be 

caught by the officers who were chasing him. See (Donald) Brown v. United States, 

97 A.3d 92, 97 n.5 (D.C. 2014) (“In order to be effective, abandonment must be 

voluntary. It is considered involuntary if it results from a violation of the Fourth 

Amendment . . . . [P]roperty is considered to have been involuntarily abandoned if 

the defendant discards it as a consequence of illegal police conduct.”) The 

government has not argued that the exclusionary rule should not be applied in this 

case because the officers’ conduct was not sufficiently deliberate or culpable to 

warrant the sanction; nor would we see any basis, in the case of a suspicionless, 

warrantless seizure, for an argument to depart from the general rule of exclusion of 

the fruits of conduct that violates the Fourth Amendment. See Herring, 555 U.S. at 

146 (noting that “the marginal or nonexistent benefits produced by suppressing 

evidence obtained in objectively reasonable reliance on” warrants that are 

subsequently invalidated or recalled “cannot justify the substantial costs of exclusion”

(quoting United States v. Leon, 468 U.S. 897, 922 (1984)).
29

MCLEESE, Associate Judge, concurring in the judgment: I agree with the court that 

(1) Mr. Dozier was seized by the time he complied with the officers’ request that he 

put his hands against a wall so that he could be patted down, (2) that seizure was not 

justified by articulable suspicion, (3) the evidence at issue should have been 

suppressed, and (4) Mr. Dozier’s conviction should be reversed. I therefore concur in 

the judgment. I do not join the opinion of the court, however, because that opinion 

decides an important issue of Fourth Amendment law that is not properly before the 

court.

In determining when Mr. Dozier was seized, the court holds that it is relevant 

that Mr. Dozier is African-American man who would have known that the location of 

the encounter was patrolled by “hyper-vigilant police officers expecting to find 

criminal activity.” Supra at 16, 18. For numerous reasons, however, the court errs in 

its treatment of this issue.

1. Most fundamentally, the record does not support the court’s factual 

premises. As the court notes, supra at 2 n.1, we may consider in our review “all 

testimony from the suppression hearing and undisputed testimony from the trial.” 

Patton v. United States, 633 A.2d 800, 818 n.11 (D.C. 1993); see Miles v. United 
30

States, 181 A.3d 633, 643 n.17 (D.C. 2018). As the court also notes, supra at 3, 16, 

there was evidence that the 6200 block of Dix Street NE was a high-crime area given 

special attention by the police. There was no evidence, however, that the manner of 

that special attention was “hyper-vigilant” or would have led a reasonable person 

familiar with that block to be unusually fearful of a police encounter in that block. 

Moreover, the evidence does not support the conclusion that Mr. Dozier would 

have been familiar with the police’s special attention to that block. The court asserts 

that “it is to be expected that a person in the area would be aware that police officers 

in the area expect to find criminal activity there.” Supra at 16-17. To the contrary, it 

does not seem to me reasonable to infer that Mr. Dozier would be familiar with police 

enforcement activities in an area simply because he was walking in the area. 

Even if a factfinder could reasonably have drawn such an inference, however, 

and thus could possibly have found as a matter of fact that Mr. Dozier was aware of 

the police activities in the 6200 block of Dix Street, appellate judges are not 

factfinders. See, e.g., Evans v. United States, 122 A.3d 876, 884 (D.C. 2015) (“[I]t is 

not our function to decide issues of fact.”); V.C.B. v. United States, 37 A.3d 286, 291 

(D.C. 2012) (“It is incumbent upon us, in this case as in any other, to eschew 

appellate fact-finding and to avoid usurping the function of the trial court.”) (citation 
31

and internal quotation marks omitted). The court therefore acts outside its authority 

in inferring such awareness on Mr. Dozier’s part. 

Finally, as far as I can tell, there was no evidence, either at the suppression 

hearing or at trial, as to Mr. Dozier’s race. There do appear to be court-created forms 

in the trial-court electronic case file referring to Mr. Dozier as “Black,” but I am 

doubtful that this court can appropriately rely on those forms in the current context.

2. Even if there were an adequate factual basis for the court’s analysis, many 

other fundamental principles of appellate adjudication counsel against deciding in this 

case whether a suspect’s race and past experiences with, or beliefs about, law 

enforcement are relevant to whether a police encounter with the suspect was a 

seizure. First, that issue was not raised in the trial court. See, e.g., In re D.A.J., 694 

A.2d 860, 863-64 (D.C. 1997) (court ordinarily does not consider arguments, 

including Fourth Amendment arguments, not raised in trial court). Second, the trial 

court did not decide the issue. See, e.g., id. at 864 (“We have consistently declined to 

rule on issues never addressed by the trial court.”). Third, the parties did not brief the 

issue in this court. See, e.g., Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 

134, 147 n.10 (2011) (“It is undesirable for us to decide a matter of this importance in 

a case in which we do not have the benefit of briefing by the parties . . . .”). Fourth, 
32

deciding that issue is not necessary to resolve this case, because the police conduct at 

issue was a seizure without regard to Mr. Dozier’s race and past experiences with, or 

beliefs about, law enforcement. Local 144 Nursing Home Pension Fund v. Demisay, 

508 U.S. 581, 592 n.5 (1993) (dicta that are “uninvited, unargued, and unnecessary to 

the Court’s holdings” are inconsistent with doctrine of judicial restraint). Fifth, the 

issue is constitutional in character, which triggers a heightened interest in avoiding an 

unnecessary ruling. See, e.g., Gamble v. United States, 30 A.3d 161, 167 n.11 (D.C. 

2011) (“The practice of avoiding constitutional issues if it is reasonably possible to 

do so is predicated on a fundamental rule of judicial restraint, which is perhaps more 

deeply rooted than any other doctrine of constitutional adjudication.”) (internal 

quotation marks omitted). Sixth, as I will explain, the issue is important and the 

court’s resolution of the issue is certainly not free from doubt. See, e.g., United 

States v. Adams, 740 F.3d 40, 43 (1st Cir. 2014) (“This prudential approach makes 

eminently good sense: . . . discretion is often the better part of valor, and courts 

should not rush to decide unsettled legal issues that can easily be avoided.”) (brackets 

and internal quotation marks omitted).

3. For the foregoing reasons, the court should not be deciding in this case 

whether a suspect’s race and past experiences with, or beliefs about, law enforcement 

are relevant to whether a police encounter with the suspect was a seizure. If the court 
33

is going to decide the question, however, the court should explain its reasoning and 

address relevant legal authority on the topic. The court does not do that, however, 

instead simply assuming that it is appropriate to consider a suspect’s race and past 

experiences with, or beliefs about, law enforcement in the seizure analysis. Supra at 

16-22. I do not view that as at all clear.

As the court notes, supra at 9, whether there was a sufficient display of 

authority to constitute a seizure turns on whether “the police conduct would have 

communicated to a reasonable person that the person was not free to decline the 

officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 

429, 439 (1991). Both the Supreme Court and this court have indicated that this is a 

totality-of-the circumstances test. E.g., id. at 437; Hooks v. United States, 208 A.3d 

741, 746 (D.C. 2019). Both courts have also indicated, however, that the test is an 

objective one. E.g., United States v. Drayton, 536 U.S. 194, 202 (2002); Jackson v. 

United States, 805 A.2d 979, 987 (D.C. 2002). 

In explaining the advantages of the objective reasonable-person test, the 

Supreme Court has explained that that test

calls for consistent application from one police encounter to 

the next, regardless of the particular individual’s response 
34

to the actions of the police. The test’s objective standard—

looking to the reasonable [person’s] interpretation of the 

conduct in question—allows the police to determine in 

advance whether the conduct contemplated will implicate 

the Fourth Amendment. 3 W. LaFave, Search and Seizure 

§ 9.2(h), pp. 407–408 (2d ed. 1987 and Supp. 1988). This 

“reasonable person” standard also ensures that the scope of 

Fourth Amendment protection does not vary with the state 

of mind of the particular individual being approached. 

Michigan v. Chesternut, 486 U.S. 567, 574 (1988).

Relying on this passage from Chesternut, this court has at a minimum cast 

doubt on the idea that a suspect’s presence in a high-crime area should be taken into 

account in determining whether the suspect was seized. Lawrence v. United States, 

566 A.2d 57, 61-63 (D.C. 1989) (noting empirical research that, in high-crime areas, 

people stop and answer police questions for reasons including fear of the police, but 

indicating that, under Supreme Court case law, such observations “cannot affect the 

result”). Relatedly, this court has held that a fourteen-year-old suspect’s age was not 

relevant in determining whether police conduct amounted to a seizure. In re J.M., 

619 A.2d 497, 501 (D.C. 1992) (en banc).

Other courts have reached similar conclusions. See, e.g., United States v. 

Lozano, 916 F.3d 726, 730 (8th Cir. 2019) (seventeen-year-old suspect’s age not 

properly treated as relevant to whether police conduct amounted to seizure); Monroe 
35

v. City of Charlottesville, Va., 579 F.3d 380, 386-87 (4th Cir. 2009) (trial court 

correctly concluded that plaintiff’s past experiences with police and “the state of 

relations between law enforcement and members of minority communities” were 

irrelevant to whether plaintiff was seized) (brackets and internal quotation marks 

omitted); United States v. Hill, 199 F.3d 1143, 1149 (10th Cir. 1999) (at least where 

officer is unaware of past experiences at issue, suspect’s past negative experiences 

with police are not relevant to whether suspect was seized); Commonwealth v. Hart, 

695 N.E.2d 226, 228-29 (Mass. App. Ct. 1998) (trial court erred by finding seizure 

based on data in publications that led trial court to conclude that “reasonable black 

American[s] would not feel free to leave when stopped and questioned by police”) 

(internal quotation marks omitted).

I do not mean by the foregoing to express a definite view on the question 

whether, and if so in what circumstances, a suspect’s race and past experiences with, 

or beliefs about, law enforcement are relevant in deciding whether a police encounter 

with the suspect was a seizure. There are countervailing arguments and authority. A 

suspect’s past experiences with, and beliefs about, law enforcement doubtless would 

have a substantial effect on the suspect’s reasonable beliefs about whether the suspect 

is free to terminate an encounter with the police. Moreover, the past experiences and 

beliefs of suspects doubtless vary significantly based on factors such as race, 
36

socioeconomic status, and the neighborhoods in which the suspects live and work. 

Finally, the relevant legal authority on the question is not one-sided. See, e.g., United 

States v. Washington, 490 F.3d 765, 773 (9th Cir. 2007) (in deciding whether police 

conduct was seizure, court takes into account “publicized shootings by white Portland 

police officers of African–Americans”); Hunt ex rel. DeSombre v. State, 69 A.3d 360, 

366 (Del. 2013) (taking age of eight-year-old suspect into account in determining 

whether suspect was seized); 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 572 

(5th ed. 2012) (after extensive discussion of issue, predicting that Supreme Court 

would hold that “th[e] ‘reasonable person’ test requires consideration of some known 

unique characteristics of the suspect (e.g., . . . youth)”). 

4. It may be that there are reasonable responses to the concerns raised in this 

concurrence. The opinion for the court does not address those concerns, however, so 

we do not know what those reasonable responses might be. We therefore do not 

know why the court believes that it is permissible to base its Fourth Amendment 

holding on the unsupported inference that Mr. Dozier would have been expecting 

“hyper-vigilant” police enforcement in the block where he was walking; why the 

court believes that it is free to draw factual inferences on appeal, as though it were a 

factfinder; and why the court believes that it is appropriate to resolve an important 

and unsettled question of Fourth Amendment law that is unnecessary to the 
37

disposition of the case and was not raised in the trial court, decided by the trial court, 

or briefed by the parties on appeal. 

On the merits, we do not know why the court believes that it is permissible to 

consider Mr. Dozier’s purported beliefs about the nature of law-enforcement activity 

in the area of the incident. Does the court believe that Mr. Dozier’s particular state of 

mind may be considered in the seizure analysis, even if that state of mind was not 

known by the officers? If so, how does the court square that approach with the 

Supreme Court’s statement in Chesternut that “the scope of Fourth Amendment 

protection does not vary with the state of mind of the particular individual being 

approached”? 486 U.S. at 574. We do not know the answers to these questions, 

because the court has not explained its thinking. 

5. For the foregoing reasons, I cannot join the court’s opinion. I respectfully 

concur in the judgment.