United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2016 Decided June 14, 2016 

No. 14-3073 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

HAROLD DELONTE CASTLE, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

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

Tony Axam Jr., Assistant Federal Public Defender, Office 

of the Federal Public Defender, argued the cause for 

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

Public Defender. 

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

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

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

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

W. Gee, Assistant U.S. Attorneys. 

Before: MILLETT, Circuit Judge, and EDWARDS and 

SILBERMAN, Senior Circuit Judges. 
2 

Opinion for the Court filed by Senior Circuit Judge

EDWARDS. 

Dissenting opinion filed by Senior Circuit Judge 

SILBERMAN. 

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

Appellant Harold Castle was charged, in a one-count 

indictment, with possession with intent to distribute 100 

grams or more of a mixture containing a detectable amount of 

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

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

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

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

Appellant filed a motion to suppress the evidence, arguing 

that he was stopped by police officers without reasonable, 

articulable suspicion in violation of the Fourth Amendment. 

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

found Appellant guilty of the lesser-included offense of 

possession with intent to distribute a detectable amount of 

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

October 21, 2014, the District Court sentenced Appellant to 

65 months imprisonment to be followed by six years of 

supervised release. Appellant now appeals the denial of his 

suppression motion. 

I. INTRODUCTION 

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

the seizing officers were on patrol in an unmarked pickup 

truck. The officers turned onto Yuma Street (a residential 

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

walking quickly from the direction of an apartment complex 

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

alleyway next to a house across the street. The alley led to a 
3 

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

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

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

The District Court additionally credited the officers’ 

testimony that they patrolled the area so regularly that “people 

in the neighborhood” had come to recognize their unmarked 

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

“lookouts.” On the basis of these generalized findings 

regarding “the neighborhood,” the District Court concluded 

that it was “not unreasonable for the officers to believe 

[Appellant] knew or suspected their vehicle was a police 

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

was not unreasonable for the officers to believe that Appellant 

was walking quickly in order to evade them and that he 

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

Finally, the District Court found that when the officers 

approached Appellant as he walked out of the backyard area, 

they recognized him from several prior seizures that had 

occurred some six to nine months earlier. Based on the 

totality of the foregoing findings of historical fact and 

inferences from those facts, the District Court concluded that 

the officers had reasonable, articulable suspicion that 

Appellant had just committed or was about to commit a 

criminal offense when they seized him. We disagree. 

“Under the Fourth Amendment our society does not 

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

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

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

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

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

suspicion of current criminal activity.” United States v. 

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

(citation omitted). In other words, knowledge of an 
4 

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

substitute for “objective indications of ongoing criminality.” 

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

The law also makes clear what is eminently logical. In 

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

evidence that the person has knowledge of a police presence. 

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

in the context of a reasonable, articulable suspicion analysis, 

“furtive gestures ‘are significant only if they were undertaken 

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

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

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

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

both instances, the putatively evasive or furtive conduct 

cannot provide the necessary evidence of knowledge of a 

police presence. There must be independent evidence from 

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

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

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

As we explain more fully below, there is no such 

evidence here. Certainly the officers’ assumption that 

Appellant knew of the presence of their truck on the evening 

in question gains no support from general knowledge in the 

neighborhood that the truck was a police vehicle. The ability 

of neighborhood people to recognize the truck as a police 

vehicle cannot support an inference that Appellant had 

knowledge of the presence of that known police vehicle on 

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

of any evidence from which a reasonable officer could infer 

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

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

example, no testimony that Appellant so much as glanced in 

the direction of the officers’ truck at any point after the 
5 

officers turned onto Yuma Street. Nor is there evidence that 

Appellant was ever in close proximity to the truck. Neither 

did the officers testify that anyone else in the neighborhood 

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

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

the officers’ critical assumption of knowledge was based on 

nothing. 

It is therefore clear that the Government failed to carry its 

burden of demonstrating that the actions of Appellant on the 

evening in question amounted to “concrete factors” or 

“objective indications” that he had just committed or was 

about to commit a criminal offense. Walking quickly on a 

very cold evening is commonplace, not suspicious, activity. 

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

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

they took place in a residential neighborhood plagued by drug 

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

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

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

narcotics offense” and presence “in a neighborhood with a 

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

evidence that indicates criminal activity is afoot,” is 

insufficient to demonstrate reasonable, articulable suspicion).

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

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

reasonableness of inferences drawn by police officers from 

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

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

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

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

but to the specific reasonable inferences which he is entitled 

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

Ohio, 392 U.S 1, 27 (1968). As we explain below, because the 
6 

District Court’s determination that the officers’ inference that 

Appellant was aware of their presence had no basis in the 

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

reverse. 

II. BACKGROUND

The events giving rise to Appellant’s seizure took place 

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

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

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

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

family homes. 

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

Metropolitan Police Department Officers Olszak and Moseley 

were patrolling in an undercover police vehicle – an 

unmarked Dodge Ram truck. The officers were not in 

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

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

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

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

the fact that the men were walking quickly as they crossed 

from the right sidewalk near 133 Yuma – an apartment 

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

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

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

continued across the street and into an alleyway between 144 

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

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

up in front of 144 Yuma, Appellant had nearly reached a UHaul truck parked in the backyard of 144 Yuma, some 125 

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

Banks, had stopped at the front corner of 144 Yuma, 
7 

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

Officer Olszak ran toward the alleyway after Appellant, while 

Officer Moseley walked over to Mr. Banks. 

Just before Officer Olszak entered the alley, he saw 

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

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

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

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

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

At this point, neither officer had recognized Appellant as 

Harold Castle. 

The officers then observed Appellant walking back 

toward Yuma Street with his hands in his pockets. Officer 

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

between the houses, ordered Appellant to remove his hands 

from his pockets. It was only after Appellant obeyed Officer 

Olszak’s order that Officer Olszak recognized him as Harold 

Castle. 

Officer Olszak had, on several prior occasions, seen 

Appellant in front of the apartment building at 133 Yuma 

Street with other men. Officer Olszak also recognized 

Appellant from several prior seizures that occurred some six 

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

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

and foot chase in a different neighborhood. Another, which 

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

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

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

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

up no contraband and so Appellant was not arrested. 
8 

Having recognized Appellant as Mr. Castle, Officer 

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

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

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

Officer Moseley, who had detained Mr. Banks following a 

consensual frisk that had turned up no contraband. 

As Appellant neared Officer Moseley, Moseley 

recognized him as Harold Castle. Like Officer Olszak, Officer 

Moseley was familiar with Appellant as a result of Appellant 

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

neighborhood. Officer Moseley also smelled the odor of PCP 

emanating from Appellant. 

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

pockets and appeared agitated and nervous. Officer Moseley 

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

immediately jumped back up, complaining that his pants were 

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

again told Appellant to sit down, and he complied. 

While Appellant was sitting on the curb, Officer Moseley 

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

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

Moseley suspected that it contained PCP. Officer Moseley 

arrested Appellant shortly afterward. In a search incident to 

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

phone, a pair of black rubber gloves, paperwork in 

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

While Officer Moseley was interacting with Appellant on 

Yuma Street, a crime scene search officer joined Officer 

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

Officer Olszak and the crime scene search officer found an 
9 

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

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

After being charged and prior to trial, Appellant filed a 

motion to suppress the evidence obtained as a result of his 

seizure, including the one-ounce vial recovered by Officer 

Moseley and a statement Appellant allegedly made when 

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

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

District Court, Officers Olszak and Moseley provided the 

only evidence regarding the events leading to Appellant’s 

arrest. 

Based on the officers’ testimony, the District Court made 

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

Officer Olszak stopped Appellant when he touched him on 

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

determined that at that point, the officers had reasonable, 

articulable suspicion to stop Appellant. The District Court 

consequently denied Appellant’s motion to suppress. 

 III. STANDARDS OF REVIEW 

When presented with an appeal of the denial of a motion 

to suppress evidence on Fourth Amendment grounds, we 

review de novo preserved claims regarding whether and when 

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

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

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

officer had the reasonable, articulable suspicion or probable 

cause necessary to legally effectuate any such seizure. 

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

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

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

determination of the reasonableness of inferences drawn by 
10 

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

assessing this determination, however, we are obliged to 

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

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

unparticularized suspicion or ‘hunch,’ but to the specific 

reasonable inferences which he is entitled to draw from the 

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

we “may consider both evidence offered at the suppression 

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

District Court has made factual findings, we may not search 

the record for any reasonable view of the evidence that will 

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

must review the factual findings of the District Court and, 

assuming they are not clearly erroneous, determine whether 

they support the contested seizure. See id. Finally, 

suppression arguments that are not presented to the trial court 

are deemed waived and cannot be argued on appeal. See 

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

2005). 

IV. ANALYSIS

A. The Seizure 

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

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

person, and the Fourth Amendment requires that the seizure 

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

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

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

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

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

621, 626 (1991)). 
11 

Whether police action amounts to a “show of authority” 

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

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

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

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

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

Factors considered in assessing whether an officer’s actions 

amounted to a show of authority “include whether the suspect 

was physically intimidated or touched, whether the officer 

displayed a weapon, wore a uniform, or restricted the 

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

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

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

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

446 U.S. at 554). 

The Supreme Court has repeatedly held that police do not 

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

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

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

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

provided the officers do not imply that answers are obligatory. 

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

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

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

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

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

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

officers, “displaying no weapons and speaking in a normal 

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

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

If police behavior amounts to a show of authority, a 

seizure will be found if the individual at whom the show of 
12 

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

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

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

the burden of demonstrating that he was seized, see United 

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

curiam), argues that he was stopped when Officer Olszak 

ordered him to remove his hands from his pockets and he 

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

doubt that Appellant did not preserve this claim. Quite the 

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

argument was that the stop was inexorably tied to Officer 

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

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

Appellant’s claim regarding the stop is similarly limited 

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

We agree with the District Court that Appellant was 

seized when Officer Olszak touched Appellant and instructed 

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

Mendenhall factors, we are satisfied that Appellant was 

subject to the requisite show of authority when Officer 

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

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

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

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

compliance, initiated physical contact and instructed 

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

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

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

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

found, no reasonable person in Appellant’s position and 

subject to Officer Olszak’s directives would have believed 

that he was free to go on about his business. 
13 

This conclusion is consistent with our precedent. Thus, 

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

occurred when a uniformed officer, at night, followed an 

individual into a dark entrance hallway of an apartment 

building and, positioning himself behind the individual, 

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

A recent decision by the District of Columbia Court of 

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

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

Police Department plainclothes officers who were wearing 

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

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

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

hands from his pockets and then asked him some questions. 

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

companion and, when no contraband was found, detained that 

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

court held that the individual who was instructed to remove 

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

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

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

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

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

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

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

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

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

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

among 15 or 20 people gathered throughout a block in what 

appeared to be “somewhat of a party atmosphere,” 

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

to “[c]ome here”). 
14 

The Government does not suggest that Officer Olszak’s 

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

Government argues that Appellant was not seized when 

Officer Olszak confronted him because “[A]ppellant 

continued walking without pausing when Officer Olszak said 

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

Government’s argument is disingenuous. The District Court 

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

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

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

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

trial judge thus credited Officer Olszak’s testimony that when 

Appellant continued walking after being told to stop, he was 

walking toward Officer Moseley and, according to Officer 

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

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

that the District Court’s findings are clearly erroneous. 

It is hard to imagine a more submissive response to 

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

issuing it, Officer Olszak ran to the backyard, leaving 

Appellant unattended. Rather than attempting to evade Officer 

Moseley via the now clear path to Yuma Street, Appellant 

exhibited complete submission to police authority by walking 

directly to Officer Moseley. In sum, we reject the 

Government’s argument that the District Court erred in its 

conclusion as to when the seizure happened. 

B. Reasonable Articulable Suspicion 

Pursuant to the Fourth Amendment, a police officer who 

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

point to specific and articulable facts which, taken together 

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

21, support “a reasonable and articulable suspicion that the 
15 

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

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

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

is the Government’s burden to provide evidence sufficient to 

support reasonable suspicion justifying any such stop. See 

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

When reviewing a District Court’s reasonable, articulable 

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

the totality of the circumstances, understanding that factors 

individually “susceptible to an innocent explanation” may 

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

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

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

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

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

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

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

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

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

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

a reasonably prudent man in the circumstances would be 

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

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

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

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

determine what facts were known to the officer and then 

consider whether a reasonable officer in those circumstances 

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

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

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

reasonable, articulable suspicion necessary to effectuate a 

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

historical fact only for clear error and to give due weight to 
16 

inferences drawn from those facts by resident judges and local 

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

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

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

definitely and firmly convinced that the trial court made a 

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

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

facts, the Supreme Court has instructed that when the 

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

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

officer was credible and the inference reasonable.” Ornelas, 

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

reasonableness determination, it is critical that we also keep in 

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

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

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

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

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

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

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

than an inchoate and unparticularized suspicion or hunch” 

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

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

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

of fact that is predicated on a misunderstanding of the 

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

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

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

the trial court bases its findings upon a mistaken impression 

of applicable legal principles, the reviewing court is not 

bound by the clearly erroneous standard.”). 

Finally, as noted above, and as particularly relevant to 

this case, the Fourth Amendment “does not allow police 

officers to ‘round up the usual suspects.’” Laughrin, 438 F.3d 
17 

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

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

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

demonstrate that there [is] a reasonable suspicion of current

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

This means that knowledge of an “individual’s criminal 

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

particularized, “objective indications of ongoing criminality.” 

Monteiro, 447 F.3d at 47. 

In this case, the Government argues that four 

circumstances support its contention that Officers Olszak and 

Moseley had the reasonable, articulable suspicion necessary 

to stop Appellant: 

(1) The officers’ knowledge that the neighborhood was 

a high-crime area particularly associated with PCP 

distribution. 

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

unmarked Dodge Ram truck, of Appellant walking 

quickly away from 133 Yuma Street (a building 

known for PCP distribution) and toward an 

abandoned house. 

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

the abandoned house. 

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

included PCP-related arrests. 

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

Government – the odor of PCP that Officer Moseley noticed 

after he took over the detention of Appellant – is not 

cognizable because it was not known to the officers before 
18 

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

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

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

The lynchpin of any reasonable suspicion analysis in this 

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

the high crime nature of the neighborhood – is not 

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

as such, cannot provide the kind of information particular to 

Appellant that is necessary to demonstrate reasonable 

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

the officers’ prior experience with Appellant – is particular to 

Appellant, but can only corroborate, not provide, the 

necessary, concrete indicia that Appellant was involved in 

criminal behavior when he was stopped. 

The Government argues that the second factor – walking 

quickly from the direction of an apartment building outside of 

which drugs could be bought toward an abandoned house – 

supports reasonable, articulable suspicion because the District 

Court concluded that it was not unreasonable for the officers 

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

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

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

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

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

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

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

acknowledges that the probative value of these two 

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

was not unreasonable for the officers to believe Defendant 

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

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

devoid of the sort of evidence necessary to support this 
19 

conclusion, the Government’s argument in support of 

reasonable suspicion necessarily collapses. 

The critical role that a possible suspect’s knowledge of 

police presence plays in determining whether arguably 

evasive action can be part of the totality of the circumstances 

supporting reasonable suspicion was made clear by the 

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

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

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

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

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

“furtive gestures are significant” in a reasonable, articulable 

suspicion analysis “only if they were undertaken in response 

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

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

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

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

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

In support of its conclusion that Officers Olszak and 

Moseley reasonably believed that Appellant was aware of 

their presence in an unmarked truck and was acting to evade 

them, the District Court explained: 

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

Defendant walking very quickly from the direction of 

133 Yuma Street, an address known for PCP 

distribution and criminal activity, toward a vacant 

backyard area, suggesting to the officers that he was 

trying to evade their presence. The officers testified 

credibly that they patrolled the area so regularly that 

people in the neighborhood had come to recognize 

their vehicle and to expect such patrols. Indeed, 

Officer Olszak testified that people in the 
20 

neighborhood would act as “lookouts” and alert 

others to the presence of the police when they arrived 

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

sac, meaning that non-police traffic was less likely 

than on another street. Therefore, it was not 

unreasonable for the officers to believe Defendant 

knew or suspected their vehicle was a police vehicle 

and was walking quickly in order to evade them.

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

multiple problems with this analysis. 

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

the neighborhood” could recognize their truck as a police 

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

specious testimony and speculation. Can anyone really take 

seriously Officer Olszak’s assertion that he and Officer 

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

Motions Hearing at 75. And there was little evidence to 

suggest that the truck was otherwise particularly distinctive. 

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

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

truck’s Florida license plates – the only arguably distinctive 

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

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

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

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

police vehicles” or “establish a factual foundation for opinion 

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

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

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

readily recognized the truck as a police vehicle. 

But, even accepting this dubious assertion as not clearly 

erroneous, we are nonetheless convinced that the District 
21 

Court erred in equating the awareness of “people in the 

neighborhood” that the unmarked truck the officers drove was 

a police vehicle with a determination that the officers could 

reasonably believe that Appellant was aware of the officers’ 

truck on the evening in question. The Government simply 

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

reasonable officer in inferring that the indicia of police 

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

let alone that Appellant reacted to the truck as a police 

vehicle. 

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

District Court’s assessment of the reasonableness of the 

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

not follow from the fact that the unmarked truck was known 

in neighborhood as a police vehicle that Appellant was aware 

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

behavior witnessed by the officers was a reaction to that 

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

reasonably inferred that Appellant was evading them is due 

no weight. The failure of the Government to provide any 

evidence supporting the officers’ inferences that Appellant 

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

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

“specific reasonable inferences which [the officers were] 

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

but rather amounted to no more than “inchoate and 

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

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

The District Court’s assessment also defies legal 

authority. Our precedent makes clear, no matter how widely 

and readily recognizable the truck may have been as a police 

vehicle, a different type of evidence was necessary to support 

the inference that Appellant knew the police truck was present 
22 

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

alleged furtive gesture is what provokes police suspicion, our 

precedent requires that the Government proffer evidence, 

apart from that behavior or gesture, from which an officer 

could reasonably have inferred that the individual in question 

was aware of the recognizable police presence and was 

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

F.3d at 1316-17. 

Our decision in Edmonds is instructive with respect to the 

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

were driving an undercover car, a Crown Victoria that the 

seizing officer, Sergeant Feirson, testified was “regularly used 

to patrol the neighborhood and is easily identifiable by 

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

made their way through the neighborhood in question, an area 

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

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

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

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

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

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

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

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

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

curb, Feirson believed, because he had recognized him and 

his companions as police officers.” Id. 

At this point, Sergeant Feirson decided to investigate. He 

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

prominently hanging from his neck, approached the van from 

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

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

recognized him as a police officer through the van’s 

windshield, and as he drew nearer, he saw the driver lean 
23 

forward making gestures that led Feirson to believe the driver 

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

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

In undertaking a reasonable suspicion analysis, we 

considered both the furtive gestures of the driver and his 

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

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

evidence from which Feirson could not only reasonably infer 

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

evidence allowing Feirson to reasonably conclude that his 

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

and that their respective actions were in response to that 

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

was testimony that the undercover car was well known in an 

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

that the man looked at the Crown Victoria and that 

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

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

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

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

apparent flight and retreat” “immediately upon observing that 

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

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

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

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

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

The Wardlow opinion, addressing flight from the police, 

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

the suspect had seen the police before he fled was never 

challenged. Nonetheless, the Supreme Court described the 

evidence from which it could reasonably be inferred that the 

officers from whom Wardlow fled were recognizable as 

police, that Wardlow was aware of their presence, and that his 
24 

flight was in response to that presence. The Court explained 

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

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

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

As the caravan passed Wardlow, one of those officers 

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

flee. Id. at 121-22. 

In this case, the Government presented not an iota of 

similar evidence at either the motions hearing or during the 

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

any testimony from which she could conclude that an 

objective officer in possession of the information Officers 

Olszak and Moseley had could reasonably or fairly infer that 

Appellant was aware of the police truck and was acting in 

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

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

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

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

either man turned his head toward the truck or pointed or 

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

pace or gait changed as the officers turned onto and drove 

down the street. In fact, Officer Moseley expressly testified 

that the men were already walking quickly when he saw them 

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

testify that either man changed direction or that Appellant 

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

between the two houses. Neither officer even suggested that 

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

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

higher numbered address than 133 Yuma, the testimony 

suggests that the men were oriented somewhat toward the culde-sac, walking diagonally away from the truck as it came 

from the intersection of First and Yuma Streets. 
25 

Furthermore, there is no evidence to indicate that the 

physical circumstances during the evening in question would 

have permitted Appellant to recognize the truck even if he had 

looked in its direction. Quite the contrary. The officers 

testified that: when the truck turned onto Yuma Street, 

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

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

Appellant’s direction – something that would not have 

changed as the officers drove down the street and that would 

have made it very difficult to identify a Florida license tag 

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

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

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

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

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

Moreover, Officers Olszak and Moseley provided no 

testimony from which they could reasonably infer that 

someone else who recognized the truck had alerted Appellant. 

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

noticed the undercover Crown Victoria and then pivoted and 

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

case that anyone on Yuma Street noticed the Dodge Ram and 

then approached or otherwise alerted Appellant or the man 

with him. And while Officer Olszak testified that the 

passenger side window of the truck was rolled down as 

Officer Moseley turned onto Yuma Street, neither he nor 

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

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

would have recognized as ones typically used by those 

involved in illegal narcotics sales when they wish to alert 

others to the presence of jump outs or undercover officers. 

Nor, apparently, did the officers do anything to attract 

Appellant’s attention as they drove down Yuma Street. There 
26 

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

internal police lights, about which they testified, or otherwise 

announced their arrival in order to confirm or dispel their 

unsupported hunch that Appellant was walking quickly in an 

effort to evade them. 

During oral argument before this court, Government 

counsel asserted that there was evidence that the Appellant 

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

it would have been reasonable for the officers to infer that 

Appellant recognized the truck and responded by walking into 

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

other words, the Government essentially suggested that we 

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

findings of fact, that might support the conclusion that the 

officers could reasonably infer that Appellant was aware of 

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

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

More fundamentally, Government counsel pointed to no 

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

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

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

belied by Officer Moseley’s uncontradicted trial testimony 

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

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

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

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

street, Tr. of Motions Hearing at 87. 

In its brief to this court, the Government repeatedly, 

broadly asserts that Appellant walked quickly toward 144 

Yuma, into an alleyway between 144 Yuma and the house 

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

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

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

But the Government cites no record evidence in support of 

these assertions. Rather, the Government relies on the District 

Court’s conclusion that the officers reasonably inferred that 

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

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

Court’s conclusion that the officers reasonably inferred that 

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

movement with his leg in response to a known police 

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

conclusion about what the officers could reasonably infer is 

without support in the record, contrary to governing 

precedent, and inconsistent with the dictates of logic. 

Consequently, it is due no weight. 

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

Appellant was aware of the officers’ presence, Government 

counsel also pointed us to two statements made by Officer 

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

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

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

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

Hearing at 22. Later on cross examination, Officer Olszak 

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

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

further cross examination, Officer Olszak clarified that his 

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

solely on his conclusion that the unmarked truck was well 

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

Officer Olszak then admitted that he had no other evidence 

supporting his suspicion that Appellant and the man with him 

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

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

District Court did not cite the officer’s unsupported assertions 

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

truck. Rather, the District Court relied solely on the officers’ 
28 

testimony that their truck was well known in the 

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

fact of neighborhood awareness that the truck was a police 

vehicle, the trial judge reached the implausible conclusion 

that the officers could reasonably infer that Appellant was 

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

in question and was responding to it. This conclusion is 

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

For the reasons explained above, we are constrained to 

reverse because the police officers had no reasonable, 

articulable suspicion justifying their stop of Appellant. See, 

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

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

another person in a manner suggestive to the officers of a 

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

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

provide indicia of criminal activity adequate to support 

reasonable, articulable suspicion even when combined with 

the officers’ knowledge of the individual’s prior criminal 

record for narcotics offenses). 

CONCLUSION

The judgment of the District Court is reversed and the 

case is hereby remanded for further proceedings consistent 

with this opinion. 

 So ordered. 
SILBERMAN, Senior Circuit Judge, dissenting: In my view,

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

circuit precedent, it is quite confusing regarding the appropriate

scope of review we should apply in reviewing district court

factual determinations – particularly inferences drawn from

historical facts.

To be sure, the overall question whether Officer Olszak had

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

although we must keep in mind it is deferential to officers

because it asks only whether their actions are reasonable as

police officers in light of their training and experience, not

whether judges, putting themselves in the same position, would

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

our cases relied on by the majority uniformly affirm district

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

crucial point – subordinate determinations of historical facts as

well as inferences from those historical facts are fact-findings

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

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

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

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

court should take care both to review findings of historical fact

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

from those facts by resident judges and local law enforcement

officers.” (emphasis added)). 

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

support the district court’s determination that Officer Olszak had

a reasonable suspicion justifying the seizure of Appellant Castle. 

Those facts are:

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

was a site of significant PCP distribution and use.

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

week in an unmarked – though distinctive – pickup
2

truck with Florida license plates. They testified

(credibly, according to the district judge) that they

patrolled the area so regularly that neighborhood

people recognized their vehicle and some people would

actually act as lookouts.

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

from 133 Yuma Street, an address known for PCP

distribution and criminal activity.

4. Appellant continued to walk down a narrow alley next

to an abandoned house and bent over with one leg up

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

manner as if one were dropping something, behind a

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

movements”).

5. Then Appellant inexplicably walked back out of the

alley, toward the officer, at which point Officer Olszak

recognized him. Officer Olszak had seen Appellant

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

dealers on a number of previous occasions, and he

recalled several prior PCP-related arrests and incidents

involving Appellant, including multiple occassions on

which Appellant had attempted to evade arrest by

fleeing from the police and to destroy evidence of PCP

distribution and possession by pouring it on the

ground.

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

2014).

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

unusual conduct which leads him reasonably to conclude in light
3

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

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

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

not commonplace to walk into an alley leading to a vacant

backyard, lean over behind an abandoned vehicle with one leg

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

immediately turn around and come back (notwithstanding the

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

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

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

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

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

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

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

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

The Court carefully distinguished the arrest standard – probable

cause that a crime has been committed – from the lower

standard of reasonable suspicion necessary for an investigative

stop.1

 Id. at 26. 

The majority, nevertheless, asserts that Appellant’s activity

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

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

by examining each factor alone without considering the effect

1

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

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

comment suggesting Terry requires a belief that “the suspect is

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

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

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

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

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

id. at 35 (Douglas, J., dissenting).
4

when they are all combined. While each individual factor may

be “susceptible of innocent explanation, and some factors are

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

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

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

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

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

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

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

that. 

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

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

neighborhood is merely a “contextual consideration[]” that

cannot demonstrate reasonable suspicion. Majority Op. at 18. 

But “officers are not required to ignore the relevant

characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further

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

I do not disagree that location alone cannot be determinative,

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

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

is the case here.

What is more, once Officer Olszak recognized Appellant,

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

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

something, and then turning around and walking back toward

Officer Olszak – looked particularly suspicious in light of his

history. Officer Olszak knew Appellant hung around the PCP

house with known PCP dealers, and knew Appellant had several

prior PCP-related arrests, including incidents in which Appellant

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

it was not unreasonable for Officer Olszak to infer Appellant’s
5

odd behavior was consistent with how he had behaved in the

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

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

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

articulable suspicion required for a Terry stop,” and collecting

cases to that effect). 

Again, the majority discounts this factor as merely

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

Officer Olszak used this piece of information. His suspicions

were not aroused solely because of Appellant’s criminal history

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

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

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

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

previously been arrested for PCP-related crimes, who attempted

to destroy evidence and flee from police, quickly walk away

from a building known for PCP distribution, down a deserted

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

abandoned U-Haul truck, then immediately turn around and

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

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

motor home existed where officers identified driver as a member

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

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

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

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

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

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

reasonable suspicion of current criminal activity.” Majority Op.

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

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

in original).
6

The majority emphasizes that Appellant’s actions cannot be

construed as furtive unless the government shows that Appellant

and his companion recognized the police vehicle before

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

paired with the circumstances, were unusual enough that

reasonable suspicion existed regardless of whether the actions

were prompted by knowledge of police presence, for the above

reasons. 

However, even were evidence of Appellant’s recognition of

police presence necessary to satisfy Terry, that standard is met

here. The majority insists the government did not provide

sufficient evidence, describing a great number of hypothetical

pieces of evidence that would more clearly demonstrate

Appellant or his companion recognized the officers’ presence.

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

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

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

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

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

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

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

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

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

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

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

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

that is not always the case. 

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

for example, the only evidence the government had of

knowledge of police presence was circumstantial – the police

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

exited the vehicle several minutes prior, and one officer carried
7

a lit flashlight as he approached – and the court acknowledged

that the “furtive movements” the officers observed could have

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

was no evidence the vehicle’s occupants actually had observed

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

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

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

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

passenger’s behavior did not necessarily indicate criminal

activity or prospective danger.” Id. at 1168. 

So too here. There was sufficient circumstantial evidence

to allow Officer Olszak to reasonably conclude his presence had

been noted, and Appellant’s actions constituted suspicious

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

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

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

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

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

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

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

was not unreasonable for the officers to believe [Appellant]

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

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

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

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

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

inferences from the historical facts and bolstered by a credibility

determination. The majority complains that “equating the

awareness of ‘people in the neighborhood’ that the unmarked

truck the officers drove was a police vehicle with a

determination that the officers could reasonably believe that

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

question,” is a “dubious assertion.” Majority Op. at 20-21. But
8

this is nothing more than the majority quarreling with an

inference which the officers and the district court were entitled

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

*****

The important doctrinal point that divides me from the

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

determination. It is black letter law that inferences drawn from

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

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

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

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

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

refuses to say exactly what kind of error it has supposedly

identified, instead declaring the district court’s conclusion

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

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

inconsistent with the dictates of logic” (suggesting some other

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

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

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

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

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

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

Subordinate to that overall legal question are questions of

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

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

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

at 699-700.

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

confusion on the part of district courts attempting to interpret
9

and apply this Delphic – and seemingly inconsistent with circuit

precedent – opinion. I respectfully dissent.