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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CF-520

EVERICK NEWMAN, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court 

of the District of Columbia 

(CF2-19910-16)

(Hon. Kimberly Knowles, Trial Judge)

(Submitted May 30, 2018 Decided September 2, 2021)

Christine Pembroke was on the brief for appellant.

Jessie K. Liu, United States Attorney at the time the brief was filed, and 

Elizabeth Trosman, Suzanne Grealy Curt, Bridget Behling, and L’Shaunteé J. 

Robertson, Assistant United States Attorneys, were on the brief for appellee.

Before THOMPSON and EASTERLY, Associate Judges, and NEBEKER,

* Senior 

Judge. 

Per curiam opinion on page 2.

Separate statement by Associate Judge EASTERLY concurring in the 

judgment on page 8.

 

*

 Judge Nebeker was assigned to this case after Judge Farrell retired.
2

Concurring opinion by Senior Judge NEBEKER on page 8.

PER CURIAM: Everick Newman appeals his convictions for unlawful 

possession of a firearm,1 related gun charges,2 and unlawful possession of a 

controlled substance3 following a stipulated bench trial. He argues that the trial 

court erred in concluding the police had the requisite reasonable, articulable 

suspicion to conduct a Terry4 stop.5

 He also raises a Second Amendment 

 

1 D.C. Code § 22-4503(a)(1) (2021 Supp.).

2 Carrying a pistol without a license, D.C. Code § 22-4504(a)(2) (2021 

Supp.), Possession of an unregistered firearm, D.C. Code § 7-2502.01(a) (2018 

Repl.), and Unlawful possession of ammunition, D.C. Code § 7-2506.01(3) (2018 

Repl.). 

3 Mr. Newman was found guilty of one count of possessing phencyclidine 

(PCP), in violation of D.C. Code § 48-904.01(d)(2) (2014 Repl.), and one count of 

possessing alprazolam (Xanax), in violation of D.C. Code § 48-904.01(d)(1) (2014 

Repl.). 

4 Terry v. Ohio, 392 U.S. 1 (1968).

5 At our direction in supplemental briefing, Mr. Newman also challenges (1) 

whether the police had sufficient basis to conduct a protective pat down for 

weapons, and (2) whether the pat down performed by the police exceeded the 

bounds authorized by Terry, 392 U.S. at 30.

 

As to the first issue, Mr. Newman argues the police did not have a 

reasonable belief that he was armed and dangerous to justify a protective pat down 

because Mr. Newman’s clutching of his waistband was “at most . . . ambiguous.” 

But as detailed below, the police observed Mr. Newman clutching his waistband 

while running away at “full speed,” in an area known for drugs and gun violence. 

(continued...)
3

challenge to his gun convictions based on the D.C. Circuit’s decision in Wrenn v. 

United States, 864 F.3d 650 (D.C. Cir. 2017). The judgment is affirmed.

I.

Turning first to Mr. Newman’s challenge to the trial court’s suppression 

ruling, we reaffirm that we review de novo all legal rulings on Fourth Amendment 

issues, but we review only for clear error the trial court’s factual findings, and we 

examine the full record in the light most favorable to the government as the 

prevailing party. See (Anthony) Hooks v. United States, 208 A.3d 741, 745 (D.C. 

2019). The trial court’s decision to deny Mr. Newman’s motion to suppress was 

based largely on the credited testimony of one of the arresting officers, Officer 

Moshier, that (1) Mr. Newman ran away from him and his partner, Officer Cory, at 

“full speed,” when they responded to an unrelated report of disorderly conduct at 

an apartment building in a southeast Washington neighborhood where the police 

were called out to frequently, (2) Mr. Newman held the waistband of his pants with 

 

(...continued)

The cases cited by Mr. Newman — which involve defendants engaging in 

ambiguous furtive gestures but not fleeing from police — are inapposite. As to the 

second issue, we are persuaded by the government’s argument that Mr. Newman 

waived his challenge to the scope of the officers’ pat down by failing to raise it in 

the trial court. See D.C. Code § 23-104(a)(2); see also Artis v. United States, 802 

A.2d 959, 965 & n. 5 (D.C. 2002).
4

his right hand as he ran, while his left arm swung freely, (3) when the police went 

to look for him after they responded to their call, he again ran away from them at 

“full speed,” securing his waistband with his right hand, and (4) when the police 

caught sight of Mr. Newman again, he ran away a third time and then finally “gave 

up” and stopped, allowing Officer Moshier to seize him. The trial court concluded 

that this evidence gave the police a lawful basis to conduct a Terry stop and frisk. 

 

Mr. Newman argues that “[i]n this case, . . . where the officer was 

responding [only] to flight and furtive gestures,” it was error for the trial court to 

conclude that the police had reasonable articulable suspicion that Mr. Newman was 

engaged in criminal activity. Mr. Newman begins his analysis by highlighting the 

fact that the police had no reason to suspect him of criminal activity when they saw 

him. But as the record established, soon after the police encountered Mr. Newman, 

he ran away from them while clutching his waistband with one hand, in a manner 

that made Officer Moshier think Mr. Newman had “some sort of illegal 

contraband,” in a neighborhood Officer Moshier testified “[wa]s known for a lot of 

gun violence and drugs.” 

Regarding the trial court’s consideration of his flight, Mr. Newman does not 

appear to take issue with the relevance of flight generally in the reasonable 
5

suspicion analysis, although he fails to cite the Supreme Court’s decision in Illinois 

v. Wardlow, 528 U.S. 119, 124–25 (2000) (recognizing that unprovoked flight is 

pertinent to the Terry calculus). Instead, he argues that his initial flight from the 

police would not have been suspicious to a reasonable police officer because 

“[t]here are numerous innocent explanations” for it. While that may be so, here the 

evidence established that Mr. Newman fled from the police while clutching his 

waistband not just once but three times, a fact that Mr. Newman glosses over in his 

analysis.6

 In these circumstances the trial court did not err in concluding that his 

repeated flight while holding the side of his pants substantially contributed to a 

determination of reasonable articulable suspicion. See Wilson v. United States, 802 

A.2d 367, 368, 370–71 (D.C. 2002) (holding police had reasonable articulable 

suspicion to stop appellant and his companion who “quickened their pace” upon 

seeing officers, “hurried down [a] hallway,” and then “frantically pounded on an 

apartment door”); Pridgen v. United States, 134 A. 3d 297, 303 (D.C. 2016) 

(declining to rely on appellant’s initial flight from the police who shouted at him 

from an unmarked car late at night, and focusing instead on “what appellant did as 

 

6 Mr. Newman instead highlights his testimony that he initially fled from the 

police after Officer Cory, Officer Moshier’s partner, ordered him to stop. But the 

government did not concede Officer Cory had given such a directive. Officer 

Moshier testified only that he heard his partner say “something” to Mr. Newman; 

he “wasn’t quite sure what.” And the trial court never made a finding crediting 

Mr. Newman’s testimony on this point.
6

he ran”— including “holding his side” — “and what he did after he entered the 

apartment building” in concluding officers had reasonable articulable suspicion 

that appellant was armed).

Lastly, Mr. Newman challenges the trial court’s reliance on the testimony 

that he was clutching at his waistband with one hand as he ran from the police. 

Citing factually distinguishable cases, he argues that his placement of his hand at 

his waistband could have had an innocent explanation. Again we do not disagree, 

but a reasonable officer nonetheless could have concluded (as Officer Moshier did 

conclude) that Mr. Newman’s act of clutching his waistband while running 

signaled the possession of illegal contraband. See Pridgen, 134 A.3d at 303–04 

(agreeing with the trial court that “a critical fact in evaluating whether the officers 

had a basis for reasonable articulable suspicion was that, during the entire time 

appellant was running, he held his hand against his left side” in a way that led the 

police to believe he was armed (internal quotation marks omitted)); see also id. at 

304 n.20 (“[T]he officers’ reasonable suspicion of a gun did not depend on their 

being able to eliminate every conceivable innocent explanation for appellant’s 

posture while running.”). For these reasons, we reject Mr. Newman’s challenge to 

the trial court’s ruling denying his motion to suppress on Fourth Amendment 

grounds. 
7

II.

Mr. Newman also argues that his convictions for CPWL and unlawful 

possession of ammunition must be vacated “[i]n the wake of [the District of 

Columbia Circuit’s decision in] Wrenn v. District of Columbia,” 864 F.3d 650 

(D.C. Cir. 2017). Mr. Newman appears to understand Wrenn as a decision that 

generally invalidated on Second Amendment grounds all gun control legislation in 

the District of Columbia that precludes an individual from “carry[ing] a pistol in 

public for self-defense.” As we explained, however, in (Reginald) Hooks v. United 

States, 191 A.3d 1141 (D.C. 2018), the holding of Wrenn is much more limited: 

“[Wrenn] did not invalidate the CPWL statute, but merely what it called the 

District’s ‘good reason’ law,” by which it referred to a set of statutes and 

regulations limiting the basis upon which an individual could be issued a license to 

carry a weapon. Id. at 1145. “Any statutory law not encompassed by Wrenn’s

definition of ‘good-reason law’ remains undisturbed”; this includes the statutory 

requirements that “a person must be ‘suitable’ to qualify for a concealed carry 

license,” id. at 1145–46 (quoting D.C. Code § 22-4506), and “must ‘meet all of the 

requirements for registering a firearm,’” id. (quoting 24 D.C.M.R. § 

2335.1(a)(2015)) (brackets and ellipsis omitted). Mr. Newman does not dispute 
8

that he had a prior felony conviction that would have made him ineligible to obtain 

a concealed carry license, see id. at 1146 & n.5, or that the firearm the police 

recovered from his person when they arrested him was not registered. 

Accordingly, his Second Amendment challenge to his CPWL and ammunition 

possession convictions based on Wrenn is rejected, and the judgment of the 

Superior Court is affirmed. It is so ordered.

EASTERLY, Associate Judge: I concur in the judgment. 

NEBEKER, Senior Judge, concurring: “[A] police officer may in appropriate 

circumstances and in an appropriate manner approach a person for purposes of 

investigating possibly criminal behavior even though there is no probable cause to 

make an arrest.” Terry v. Ohio, 392 U.S. 1, 22 (1968). “The Fourth Amendment 

does not require a policeman who lacks the precise level of information necessary 

for probable cause to arrest to simply shrug his shoulders and allow a crime to 

occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145 (1972). 

Instead, “[a] brief stop of a suspicious individual, in order to determine his identity 

or to maintain the status quo momentarily while obtaining more information, may 
9

be most reasonable in light of the facts known to the officer at the time.” Id. at 

146. 

To justify such a stop requires reasonable articulable suspicion; in other 

words, “the police officer must be able to point to specific and articulable facts 

which, taken together with rational inferences from those facts, reasonably warrant 

that intrusion.” Terry, 392 U.S. at 21. We “must look at the totality of the 

circumstances of each case to see whether the detaining officer has a particularized 

and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 

U.S. 266, 273 (2002) (cleaned up). “Finally, the evidence thus collected must be 

seen and weighed not in terms of library analysis by scholars, but as understood by 

those versed in the field of law enforcement.” United States v. Cortez, 449 U.S. 

411, 418 (1981); see also Jones v. United States, 154 A.3d 591, 595 (D.C. 2017) 

(explaining that our analysis is “earthy and realistic” (cleaned up)). 

Deferring to the factual findings and assessing de novo whether those 

findings added up to reasonable articulable suspicion under the totality of the 

circumstances, the court correctly holds that they did. Our court has identified, in 

addition to spatial and temporal proximity,
10

a number of . . . important factors to consider when 

looking at the totality of the circumstances: the number 

of people about in the area, multiple other stops, the time 

of day, flight, the high crime nature of the location, 

furtive hand movements, an informant’s tip, a person’s 

reaction to questioning, a report of criminal activity or 

gunshots, and the viewing of an object or bulge 

indicating a weapon.

Armstrong v. United States, 164 A.3d 102, 110 (D.C. 2017) (cleaned up). 

First, appellant was seen leaving the building from which came the 

disorderly conduct call to which the officers were responding. See Armstrong, 164 

A.3d at 110. Second, appellant’s response to Officer Cory’s questioning was to 

raise his hands and flee. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) 

(“Headlong flight—wherever it occurs—is the consummate act of evasion: It is not 

necessarily indicative of wrongdoing, but it is certainly suggestive of such.”). 

Third, while fleeing, appellant grabbed at his side – a gesture consistent with 

concealment of a weapon. See Green v. United States, 974 A.2d 248, 256 (D.C. 

2009) (holding reasonable suspicion where, among other factors, the appellant 

made a “furtive gesture or a gesture of concealment . . . to his waistband (where 

those engaged in criminal activity are known to hide a gun)”). Fourth, appellant 

took flight and grabbed his side again when Officer Moshier encountered him a 

second and third time. Fifth, before their third encounter, the officer observed 

appellant peeking around a corner. See Merriam-Webster, “peek” (defining peek 
11

as “to look furtively”); Sibron v. New York, 392 U.S. 40, 66 (1968) (explaining that 

“deliberately furtive actions and flight at the approach of strangers or law officers 

are strong indicia of mens rea”). Sixth, all of this took place in a high-crime 

neighborhood, or as the court euphemistically described it, “not a police friendly 

area.” See Wardlow, 528 U.S. at 124 (weighing “that the stop occurred in a ‘high 

crime area’ among the relevant contextual considerations in a Terry analysis”). 

Appellant asks us to view each observation in a vacuum and hold that 

Officer Moshier lacked reasonable suspicion because individual observations 

devoid of context may have innocent explanations. However, our standard of 

review tasks us to contemplate the totality of the circumstances. See Arvizu, 534 

U.S. at 273. Viewing the evidence in the light most favorable to the prevailing 

party, maintaining an “earthy and realistic” analysis, Jones, 154 A.3d at 595, and 

“allow[ing] officers to draw on their own experiences and specialized training to 

make inferences from and deductions about the cumulative information available,” 

Arvizu, 543 U.S. at 266, require the court to hold that Officer Moshier had 

reasonable articulable suspicion to stop appellant. 

Appellant would have the court look at the record through his eyes. Frankly 

put, appellant’s perspective is irrelevant to the constitutional Fourth Amendment 
12

framework handed down to us by the Supreme Court. “[T]he evidence . . . must be 

seen . . . as understood by those versed in the field of law enforcement.” Cortez, 

449 U.S. at 418. In other words, we must view the evidence “through the eyes of a 

reasonable and cautious police officer on the scene, guided by his experience and 

training.” Peay v. United States, 597 A.2d 1318, 1322 (D.C. 1991) (en banc) 

(cleaned up) (citing Cortez, 449 U.S. at 418). 

Whether one may imagine innocent rationales for appellant’s behavior, such 

as a distaste for police officers, is of no moment when considering the totality of 

the circumstances known to the police officers at the time of the stop. Nor is it 

material to the court’s analysis that appellant felt “blitzed.” Limiting our view of 

the evidence to that which is mandated by the Supreme Court’s Fourth 

Amendment jurisprudence, the court must conclude that Officer Moshier’s actions 

were reasonable in light of his observations and in due deference to his experience 

and training. 

Though the officers’ frisk was thorough, it was less than a full search and 

was justified by the observation that at times appellant’s hand grabbed his 

waistline and lower. That a pat down must be limited to that which is necessary to 

discover weapons does not serve to limit what part of the suspect’s person is 
13

frisked; rather, it serves to limit what types of contraband officers may frisk for. 

See Adams, 407 U.S. at 146 (“The purpose of this limited search is not to discover 

evidence of crime, but to allow the officer to pursue his investigation without fear 

of violence, and thus the frisk for weapons might be equally necessary and 

reasonable . . . .”). Indeed, the Terry Court gave the following “apt” description of 

a frisk: “The officer must feel with sensitive fingers every portion of the 

[suspect’s] body. A thorough search must be made of the [suspect’s] arms and 

armpits, waistline and back, the groin and area about the testicles, and entire 

surface of the legs down to the feet.” 392 U.S. at 18 n.13 (cleaned up). 

While the officers patted down appellant’s groin area and, upon detecting a 

hard object, reached into his underwear to retrieve a gun, this was necessary based 

on the observation that appellant was holding his waist area and lower while 

fleeing and was limited to discovering weapons. The Terry Court did not have 

before it the question of a weapon hidden beneath multiple layers of clothing; 

however, Officer Moshier’s safety concerns based on these observations justified a 

pat down of each layer of clothing, even if this required moving top layers. See 

Adams, 407 U.S. at 147-48 (holding that officer was justified when he reached into 

suspect’s waistband based on informant’s tip that suspect was storing a gun in his 

waistband). To hold that the officers exceeded the scope of a permitted Terry frisk 
14

in this case just because they patted down the area where appellant sought to 

conceal a weapon would be to deny them the “necessary measures to determine 

whether the person is in fact carrying a weapon and to neutralize the threat of 

physical harm.” Id. at 24. Furthermore, the fact that the officers, upon finding 

objects that were not a weapon, replaced those items indicates that his search was 

indeed limited to discovering weapons. The officer’s search did not exceed the 

scope of a limited pat down for weapons. 

Conclusion

Because Officer Moshier had reasonable articulable suspicion that appellant 

was armed, the officers were justified in stopping him and conducting the pat down 

as they did. I therefore concur in affirming the hearing court’s decision to deny 

appellant’s motion to suppress.