May 12, 2016
from the Superior Court of the District of Columbia
(CF3-4696-13) (Hon. Stuart G. Nash, Trial Judge)
William T. Morrison for appellant.
P. Dolin, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth
Trosman and Uma M. Amuluru, Assistant United States
Attorneys, were on the brief, for appellee.
Glickman, Beckwith, and McLeese, Associate Judges.
Beckwith, Associate Judge.
Everett Miles challenges the trial court's denial of his
motion to suppress tangible evidence, arguing that the police
lacked reasonable articulable suspicion to conduct the
Terry stop that led to his being charged with and
later convicted of several gun-related
offenses. He argues that the anonymous tip that
formed the basis for his stop-a 911 call from a
"concerned citizen" describing a man with
characteristics similar to Mr. Miles's, "shooting a
gun in the air"-was insufficiently corroborated and thus
was not shown to be reliable. He contends, in particular,
that his flight when police officers approached him near the
location of the alleged shooting was not sufficient to
corroborate the tip. We agree and therefore reverse.
suppression hearing, the government presented the testimony
of Metropolitan Police Department (MPD) Officers Juan Sanchez
and Shalonda Davis. Officer Sanchez testified that he was on
patrol in Southeast D.C. at around 8 a.m. on March 24, 2013,
when he heard a series of radio transmissions about a man
with a gun. These transmissions were played at the
suppression hearing. The initial transmission stated that a
"concerned citizen" who did not give a
"callback number" had reported "a black male
with a blue army jacket . . . shooting a gun in the
air." The radio transmission described the subject's
location as the "4500 [block of] Texas Avenue,
Southeast" and stated that he was "headed toward
Ridge Road." An updated transmission from an officer in
the area indicated that the subject was "in the 4800
block of . . . Alabama Avenue." Officer Sanchez, who was
alone in his car, testified that he drove to the intersection
of Alabama and F Streets, where he observed a man, Everett
Miles, who "matched the description" from the
transmission-that is, according to the officer, Mr. Miles
appeared to be wearing an Army-type "camouflage
jacket." Officer Sanchez also saw another MPD
officer, Demond James, "walking behind" Mr. Miles
and "point[ing] at him like that's him."
According to Officer Sanchez, Officer James was between
twenty and twenty-five feet behind Mr. Miles, who was the
"only person on the street at all" that morning.
Miles was walking south in the 4900 block of Alabama Avenue,
Officer Sanchez parked his car "[r]ight on F [Street]
and the corner, " "blocking the sidewalk [Mr.
Miles] was walking on to conduct a stop." Officer Sanchez
testified that when he "slightly got out of the
car" and asked Mr. Miles to stop, Mr. Miles "ran to
his left to the back of [the] cruiser towards F Street."
After briefly pursuing Mr. Miles on foot, Officer Sanchez
detained him in the middle of the intersection,
"grabb[ing] his waistband from his back." Officer
Sanchez testified that he "felt a hard object on the
right front side of his waistband, " an object that
"felt like a gun." Officer Sanchez "called out
gun" to the other officers on the scene-Officer James
and Officer Davis-while attempting to hold Mr. Miles's
hands up to prevent him from reaching for the weapon. Officer
Davis then retrieved the gun from the right front side of Mr.
Davis herself testified that she was on patrol when she heard
a radio transmission for a man who was wearing an Army jacket
and carrying a gun near Texas Avenue. While driving toward
that location, Officer Davis "saw a subject fitting the
description" from the radio transmission-a "black
male with an Army print jacket" that was "dark
colored." Shown a photo of Mr. Miles wearing the jacket
on cross-examination,  Officer Davis testified that it
"look[ed] a little green, a little tan, " but that
the picture seemed "distorted." According to
Officer Davis, Mr. Miles was walking along the 4800 block of
Alabama Avenue when she first saw him, and there were no
other people on the street.
to Officer Davis, she initially drove past Mr. Miles to
inform Officer James, who was parked at the end of the block,
that she thought she had spotted the subject described in the
radio transmission. The two officers drove in Mr. Miles's
direction, and Officer James exited his vehicle after Mr.
Miles "refused to stop and started running."
Officer Davis testified that Officer Sanchez then pulled in
front of her car and eventually stopped the fleeing Mr. Miles
on foot. In Officer Davis's recollection, Officer
Sanchez, in tussling with Mr. Miles, said "[g]un, gun,
gun" while trying to hold Mr. Miles's hands over his
head. Officer Davis testified that she saw the handle of the
gun in Mr. Miles's front waistband and grabbed the
conclusion of the suppression hearing the court made the
following findings. At about 8:08 a.m. on March 24, 2013, the
MPD dispatcher "received a call from an unidentified
citizen who indicated that there was a man with a gun"
on the 4500 block of Texas Avenue, Southeast. According to
the radio transmission, the subject was a "black
male" "wearing a blue Army-type jacket." A few
minutes later, the subject was found "within a couple of
blocks" of the original location "wearing a jacket
that matched in the officer's mind the description
provided by the dispatcher." Examining the photo
introduced into evidence, the court found that the jacket
seemed "mostly gray but [with] a bluish tint of the
gray." After noting Officer Davis's testimony that
the color in the photo was distorted, however, the court
found that on the morning of the stop, "the jacket that
Mr. Miles was wearing" appeared to be "a blue
Army-type jacket." The court also found that Mr. Miles
"took off running" when "Officer Sanchez asked
Mr. Miles to stop so that Sanchez could investigate
further." The court found that Mr. Miles's
flight reflected "consciousness of guilt on his
denying Mr. Miles's suppression motion, the trial court
concluded that the "running by itself would not be
sufficient but running coupled with the fact that he . . .
match[ed] the description of the individual who was seen with
the gun" is "more than sufficient to establish
reasonable articulable suspicion and allow the officers to
detain Mr. Miles in the way that they did."
Miles argues that the police lacked reasonable articulable
suspicion to stop him and that the trial court therefore
erred in denying his motion to suppress. In reviewing the
trial court's denial of a motion to suppress, "we
defer to the trial court's findings of evidentiary fact
unless clearly erroneous, and we view those facts, and the
reasonable inferences that stem from them, in the light most
favorable to the government." Sharp v. United
States, 132 A.3d 161, 166 (D.C. 2016). We review de novo
the trial court's ultimate legal conclusion that the
police had reasonable suspicion to stop Mr.
Miles. See id.
Fourth Amendment prohibits 'unreasonable searches and
seizures' by the Government, and its protections extend
to brief investigatory stops of persons"-so-called
Terry stops-"that fall short of traditional
arrest." United States v. Arvizu, 534 U.S. 266,
273 (2002). Accordingly, such a stop is lawful only if
"the detaining officers . . . have a particularized and
objective basis for suspecting the particular person stopped
of criminal activity." United States v. Cortez,
449 U.S. 411, 417-18 (1981). While the level of suspicion
that is required is "considerably less than proof of
wrongdoing by a preponderance of the evidence, "
United States v. Sokolow, 490 U.S. 1, 7 (1989), the
Fourth Amendment "requires 'some minimal level of
objective justification' for making the stop" and an
officer ―must be able to articulate something more than
an 'inchoate and unparticularized suspicion or
"hunch."'- Id. (first quoting INS
v. Delgado, 466 U.S. 210, 217 (1984), and then
Terry, 392 U.S. at 27). The court considers various
factors in deciding whether a Terry stop is
justified. See, e.g., Bennett v. United States, 26
A.3d 745, 753 (D.C. 2011) (listing factors such as time of
day, flight, and an informant's tip). "Although each
factor is useful in determining whether there were
articulable facts justifying the stop, these factors 'are
not elements of a conjunctive test, ' and no one factor
is 'outcome determinative.'" Umanzor v.
United States, 803 A.2d 983, 993 (D.C. 2002) (quoting
In re D.A.D., 763 A.2d 1152, 1155 (D.C. 2000)). In
other words, "we must consider 'the totality of the
circumstances-the whole picture.'" Sokolow,
490 U.S. at 8 (quoting Cortez, 449 U.S. at 417).
are properly wary of sustaining seizures on the basis of
anonymous tips, and require a substantial measure of
corroboration of information anonymously provided."
Brown v. United States, 590 A.2d 1008, 1015 (D.C.
1991). To furnish reasonable suspicion, it is not enough that
an anonymous tip alleges criminal activity and provides
"[a]n accurate description of [the] subject's
readily observable location and appearance." Florida
v. J.L., 529 U.S. 266, 270 (2000). A tip that does
nothing more than identify a suspect "does not show that
the tipster has knowledge of concealed criminal
activity." Id. at 272. Rather, for a tip to
justify a Terry stop, there must be corroborating
circumstances that show that the "tip [is] reliable in
its assertion of illegality." Id. This means
that when, as in the present case, the police receive an
anonymous tip alleging a subject's possession or use of a
firearm, the police must typically "see something that
confirm[s] the presence of a gun"-which is to say,
something that corroborates the tip that there was a
gun-before stopping the subject. Plummer v. United
States, 983 A.2d 323, 333 (D.C. 2009); cf.
J.L., 529 U.S. at 268, 271 (holding that an anonymous
tip "that a young black male standing at a particular
bus stop and wearing a plaid shirt was carrying a gun"
was not sufficiently corroborated by the police's mere
observation of three black males, one of whom was wearing a
plaid shirt, at the bus stop).
first to the tip's ability to identify a specific person,
the two officers' testimony that Mr. Miles was the only
person on the street where the officers spotted him mere
minutes after the 911 call undoubtedly adds to its
reliability in this regard. The caller's description
of the suspect in this case as a black male wearing a blue
Army jacket had some shortcomings, however, and matched only
weakly Mr. Miles's actual appearance. A photograph of Mr.
Miles at the scene-which Officer Sanchez agreed was a fair
and accurate representation of Mr. Miles at the time he was
apprehended that morning-showed that Mr. Miles shared the
race and gender of the alleged gunman, but the trial judge
observed that Mr. Miles's jacket "could be
criticized as a blue jacket" as it looked "mostly
gray" in the photograph, albeit with a "bluish tint
of the gray." Officer Sanchez likewise testified that
"[f]rom far away" the jacket in the photograph
looked "dark blue" but "right now it's
gray, dark gray, " while Officer Davis said it looked
"a little green, a little tan." Nothwithstanding
these discrepancies, the court found, after crediting Officer
Davis's testimony that the photograph did not
accurately depict the color of the jacket Mr. Miles was
wearing that morning, that Mr. Miles's jacket appeared to
the officers to be a "blue Army-type jacket" and
that Mr. Miles thus matched the description provided in the
call. In the end, any uncertainty on our part that the 911
call from the anonymous "concerned citizen" was
"reliable . . . in its tendency to identify a
determinate person, " J.L., 529 U.S. at 271, is
averted by the trial court's finding-by no means clearly
erroneous-that the image in the photograph was distorted.
See United States v. Turner, 699 A.2d 1125, 1129
(D.C. 1997) ("[W]e have routinely held that an imperfect
description, coupled with close spatial and temporal
proximity between the reported crime and seizure, justifies a
more difficult question, then, is whether there was
sufficient corroborating evidence to allow the police to
conclude that the tip was "reliable in its assertion of
illegality" and thus to reasonably suspect that Mr.
Miles was carrying a gun. J.L., 529 U.S. at 272.
This is not the rare type of case in which the substance of
the anonymous tip obviates such independent corroboration,
see supra note 10, and indeed the government states
explicitly in its brief that it is not arguing "that the
anonymous 911 call was a sufficient basis, by itself, for the
stop." Appellee's Br. 24. Unlike in Jackson v.
United States, 109 A.3d 1105, 1106, 1109 (D.C. 2015),
where the caller said she had personally seen the suspect
take a gun out of his pocket and it "scared the hell out
of [her], " the tip here did not indicate that the
caller necessarily had observed a crime, and the government
accordingly has not portrayed it that way.
only material corroborating circumstance was thus Mr.
Miles's flight from the police. The touchstone case on
the relevance of a suspect's flight in the reasonable
suspicion analysis is Illinois v. Wardlow, 528 U.S.
119 (2000). In that case, the Supreme Court held that the
defendant's "presence in an area of heavy narcotics
trafficking, " combined with the defendant's
"unprovoked flight upon noticing the police, "
provided a sufficient basis for the police to conduct a
Terry stop. Id. at 124. In support of this
holding, the Court cited precedent recognizing that "the
fact that the stop occurred in a 'high crime area'
[is] among the relevant contextual considerations in a
Terry analysis, " id. (citing
Adams v. Williams, 407 U.S. 143, 144, 147-48
(1972)), and the Court further reasoned that "[h]eadlong
flight, " which it called "the consummate act of
evasion, " is "not necessarily indicative of
wrongdoing" but is "certainly suggestive of such,
" id. And although the Supreme Court's
reasoning focused only upon these two factors, Henson v.
United States, 55 A.3d 859, 868 (D.C. 2012); Wilson
v. United States, 802 A.2d 367, 371 (D.C. 2002), the
totality of the circumstances in Wardlow also
included the fact, mentioned in the Supreme Court's
opinion, that when police first saw Mr. Wardlow, he was
"holding an opaque bag"-the same bag in which
police soon thereafter found an illegal handgun. 528 U.S. at
is factually quite distinguishable from the present case-the
most obvious differences being that the defendant in
Wardlow was present in a high-narcotics-trafficking
area and that there was no anonymous tip in that case. And in
keeping with the Supreme Court's reminder that the
"words of [its] opinions are to be read in the light of
the facts of the order under discussion, " Armour
& Co. v. Wantock, 323 U.S. 126, 132-33 (1944), some
courts, including this one, have also relied upon the opaque
bag as a basis for distinguishing Wardlow from
comparable situations. See Gordon v. United States,
120 A.3d 73, 84 (D.C. 2015) (noting that "the accosting
officers [in Wardlow] observed more than flight;
they saw the suspect 'holding an opaque bag' in
'an area known for heavy narcotics
trafficking'") (quoting Wardlow, 528 U.S.
at 121-22); United States v. Navedo, 694 F.3d 463,
471 (3d Cir. 2012) (noting that Wardlow was "holding an
opaque bag" when police saw him and stating that because
police "had every reason to believe that the people
assembled on the sidewalk included drug dealers and their
customers, Wardlow's flight 'in this
context, ' would certainly give rise to a reasonable
suspicion that he was fleeing because of what was in the
bag" (quoting Wardlow, 528 U.S. at 124)).
Wardlow is not directly controlling here, the case
makes clear that a defendant's flight can be a relevant
factor in the reasonable suspicion analysis. At the same
time, as Justice Stevens pointed out in his partial
concurrence and dissent, the Court in Wardlow stopped short
of endorsing "the proposition that 'flight is
necessarily indicative of ongoing criminal activity,
'" and "adher[ed] to the view that '[t]he
concept of reasonable suspicion is not readily, or even
usefully, reduced to a neat set of legal rules, ' but
must be determined by looking to 'the totality of the
circumstances'" Id. at 126 (Stevens, J,
concurring in part and dissenting in part) (quoting
Sokolow, 490 U.S. at 7-8) (ellipses and second set
of brackets in original; internal cross-reference omitted).
The Supreme Court has since emphasized on multiple occasions