Mayo v. U.S.

315 A.3d 606

Landon R. MAYO, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-1132

District of Columbia Court of Appeals.

Argued En Banc June 6, 2023

Decided May 23, 2024

Appeal from the Superior Court of the District of Columbia (2016-CF2-017614), (Hon. José M. López, Trial Judge)

Sean R. Day, College Park, MD, for appellant.

Jaclyn S. Frankfurt, Public Defender Service, with whom Samia Fam and KC Bridges, Public Defender Service, were on the brief as amicus curiae in support of appellant.

Timothy R. Cahill, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, Chrisellen R. Kolb, Monica Dolin, and Meredith E. Mayer-Dempsey, Assistant United States Attorneys, were on the brief for appellee.

Before Blackburne-Rigsby, Chief Judge, and Beckwith, Easterly, McLeese, Deahl, Howard, and Shanker, Associate Judges.

Opinion for the court by Associate Judge Easterly, with whom Blackburne-Rigsby, Chief Judge, and Beckwith, Deahl, Howard, and Shanker, Associate Judges, join.

Dissenting opinion by Associate Judge McLeese at page 639.

Easterly, Associate Judge:

Based on an assessment of the totality of the circumstances, a division of this court held that Landon Mayo was seized in violation of his Fourth Amendment rights by the Metropolitan Police Department’s Gun Recovery Unit ("GRU") and reversed his convictions on that basis. Mayo v. United States, 266 A.3d 244 (D.C. 2022). According to the government’s witness at the suppression hearing, nineteen-year-old Mr. Mayo was "just hanging out" with some people in an alley in the Kenilworth neighborhood when three GRU officers who were part of a two-car team pulled up. The officers exited their vehicle and focused their attention on Mr. Mayo, who, like others in the alley, had moved away from the police. The officers followed Mr. Mayo and told him they just wanted to talk—but then asked if he had a gun. When Mr. Mayo started to run, one officer dove to tackle him. Although the officer got a hand on Mr. Mayo’s foot and tripped him up, Mr. Mayo managed to continue running. He was apprehended a short distance away by GRU officers from the other car. The GRU officers subsequently recovered a gun and drugs they believed Mr. Mayo to have discarded or handed off to others in flight.

The government sought review of the division’s holding that the GRU officers violated Mr. Mayo’s Fourth Amendment rights to be free from unreasonable searches and seizures, arguing that it conflicted with the Supreme Court’s decision in Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The government argued that, under Wardlow, flight from police in a "high-crime area" alone gives police the requisite reasonable articulable suspicion to conduct a brief stop of an individual under Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This en banc court granted the government’s request for review and vacated the division’s decision. Mayo v. United States, 284 A.3d 403 (D.C. 2022). After receiving further briefing and hearing argument, the en banc court again holds that the GRU’s seizure of Mr. Mayo was unjustified and unconstitutional.

With this opinion, we first reaffirm the division’s predicate holding, uncontested by the government, that Mr. Mayo was seized when the GRU officer dove to tackle him and grabbed his foot, even though he got away. This holding is compelled by Torres v. Madrid, 592 U.S. 306, 141 S.Ct. 989, 209 L.Ed.2d 190 (2021), which effectively overruled this court’s decision in Henson v. United States, 55 A.3d 859 (D.C. 2012). Second, we reject the government’s interpretation of Wardlow as authorizing police to make Terry stops whenever they perceive anyone seeking to evade them in an area labeled "high crime." We hold, in keeping with our understanding of Wardlow, that (1) in assessing reasonable articulable suspicion, flight must be examined in the context of the totality of the circumstances and (2) general locational crime evidence, if relevant and nonconclusory, may provide context for police observations of ambiguous conduct, but its appropriate weight will turn on its quality and specificity. Applying this framework, we reaffirm the division’s conclusion that Mr. Mayo’s rights under the Fourth Amendment were violated. Lastly, because the government did not seek en banc review on this question, we reinstate the division's holding that the items of physical evidence subsequently recovered by the police from Mr. Mayo’s person and in the area of the chase were fruits of his unlawful seizure that must be suppressed. See Appellee’s Petition for Rehearing or in the Alternative Rehearing En Banc, dated April 19, 2022. We also reinstate Associate Judge McLeese’s dissent to that holding.

I. Facts and Procedural History

A. Suppression Hearing

At the hearing on Mr. Mayo’s motion to suppress, the government presented testimony from Sergeant José Jaquez, one of the seven GRU officers who participated in Mr. Mayo’s seizure and subsequent arrest. Sergeant Jaquez was the officer who dove to tackle Mr. Mayo and briefly got a hand on him. Other GRU officers re-seized and arrested Mr. Mayo and recovered a gun and drugs from his flight path, and Sergeant Jaquez testified to what these officers told him. As Sergeant Jaquez explained, there was no body-worn camera footage of the GRU officers’ encounter with Mr. Mayo because they did not start wearing body-worn cameras until the following year.

Sergeant Jaquez explained that on the evening of October 26, 2016, he was riding in an unmarked car with two other GRU officers, John Wright and Michael Ashley. All three wore tactical vests and badges identifying them as police. The GRU officers were out looking for illegal weapons, along with four other GRU officers riding in a separate vehicle. They were in "the Kenilworth area" in the Northeast quadrant of the District, which (in the prosecutor’s words) Sergeant Jaquez "kind of gestured to" on a map but did not define by specific boundaries.¹ According to Sergeant Jaquez, his GRU unit was "often sent to patrol that area," and they had recovered "multiple weapons, handguns, and also narcotics." When asked by the prosecutor to "estimate … how many guns [were] recovered," from that area, Sergeant Jaquez responded that, in the preceding three years, his unit had recovered "over 10 guns. It could be more … but I feel comfortable at this time saying about 10." And when asked to compare "the number of guns that [were] recovered in that area compare[d] to other areas," Sergeant Jaquez testified that this was "one of the … higher amounts of guns that we’ve recovered compared to other parts of the city." Sergeant Jaquez did not say that the GRU had received any reports about guns or had recovered other guns in this area on the date of Mr. Mayo’s arrest or in the days or weeks preceding.

The car in which Sergeant Jaquez was riding pulled into an alley off of Quarles Street NE, in between and parallel to Kenilworth Avenue and 45th Street NE. There, the GRU officers saw a group of at least five individuals "just hanging out." Still sitting in the car, Sergeant Jaquez focused on one individual, later identified as Mr. Mayo. According to Sergeant Jaquez, Mr. Mayo "immediately disengage[d] from the group" and moved "to engage with a [ ]man in a wheelchair" near a dumpster in the alley. While facing this other person, Mr. Mayo’s back was to the officers. Sergeant Jaquez could not see Mr. Mayo’s hands and observed "just motions from his back." Sergeant Jaquez demonstrated this movement, which the prosecutor then characterized for the record: "[J]ust as [Sergeant Jaquez] was gesturing, [Mr. Mayo’s] back was turned to [Sergeant Jaquez], and you could see shoulders kind of moving up and down as though the hands were kind of in the center of a waistband." Notwithstanding his vantage point behind Mr. Mayo, Sergeant Jaquez asserted that Mr. Mayo was "making slight adjustments with his front waistband."

After "a few seconds," Mr. Mayo walked away from the man in the wheelchair and toward another person standing further away from the officers in a walkway area off the alley leading toward 45th Street (where Sergeant Jaquez knew the other car of GRU officers was located). Around that time, the three GRU officers exited their car. Officers Wright and Ashley walked directly toward Mr. Mayo, while Sergeant Jaquez split off to one side and also walked in Mr. Mayo’s direction. As the three GRU officers approached Mr. Mayo, Officer Wright called out to him, "[h]ey, we just want to talk. We just want to talk to you. Do you have any guns?" When the GRU officers got closer, Mr. Mayo began to run from them. As he ran past Sergeant Jaquez, Sergeant Jaquez "tried to tackle him." Although Sergeant Jaquez "leaped … with the hope and the intent to just grab [Mr. Mayo] right there," when he "reached out" to Mr. Mayo, he only "managed to trip up one of [Mr. Mayo’s] feet." (Sergeant Jaquez also described his action as a "d[i]ve to try to stop" Mr. Mayo, which explains why, when he "reached out," he touched Mr. Mayo’s foot.) As a result of this dive-tackle-grab, Mr. Mayo "kind of fell," but "put his hand down" to catch his balance and then continued running away from Sergeant Jaquez and his two GRU colleagues who had joined the chase.

Sergeant Jaquez and Officer Ashley eventually discontinued pursuit of Mr. Mayo, but Officer Wright kept running after him. Within a short distance,² the GRU officers in the second car, who had been alerted to Mr. Mayo’s flight on the radio, stopped him. Meanwhile, Officer Wright searched the purse of a woman Mr. Mayo had run past as he fled and recovered a loaded handgun. (At trial the government presented evidence that subsequent fingerprint examination and DNA analysis connected the handgun to Mr. Mayo.) Another GRU officer found ziplock bags containing marijuana in the bushes adjacent to Mr. Mayo’s flight path. The GRU officers also searched...