The Court of Appeals in Posey v. US, decided on February 21, 2019, reversed the trial’s court denial of the suppression motion and thus vacated the conviction.

Posey was arrested after the Officer responded to a look out for Robbery suspects.  The look out was vague and nondescript and essentially depicting “a black male wearing black clothes.”

Because Posey had fled upon observing the approaching police officer and subsequently searched and a weapon found – the trial court determined that the fleeing from the scene by itself added to the reasonable suspicion criteria for Terry stop and thus search and seizure of the weapon was warranted.  The Court of Appeals disagreed.

Generally pursuant to the Terry rule — the Officers may conduct an investigatory stop with a reasonable suspicion based on specific and articulable facts that criminal activity occurring or about to occur.  However, the Officers may not rely on unparticularized suspicion and inarticulate hunches to conduct an investigatory stop.

Reasonable articulable suspicion is determined by analyzing the totality of the circumstances, as viewed by a trained and experienced officer on the scene and guided by his experience and training.

Totality of the circumstances to be considered by the police officers include: 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 viewing of an object or bulge indicating a weapon.

Terry stop has to be based on more than a good faith hunch by Officers as to whether a crime has occurred by an individual.  Further investigative steps are needed to turn and to justify a search.   Thus, legitimate circumstantial hunches must turn into articulable suspicion with additional investigative steps and corroborating evidence that the individuals they choose to stop are engaged in criminal activity.

In this case, the defendant’ flight alone was not enough to establish reasonable suspicion for stop and search.

That is, unprovoked flight is not necessarily indicative of [any particular] wrongdoing.

Natural fear or dislike of authority, or distaste for police officers based upon past experience, or an exaggerated fear of police all can legitimate personal reasons for fleeing from police officers and thus not in vacuum a requisite legal element to justify stop, search and seizure.

The Court in conclusion held that the totality of these circumstances failed to reach the level of individualized and particularized knowledge or articulable suspicion needed to stop Mr. Posey on suspicion of robbery.

Specifically: nondescript individual distinguishing himself from an equally nondescript crowd by running away from officers unprovoked does not, without more, provide a reasonable basis for suspecting that individual of being involved in criminal activity and subjecting him or her to an intrusive stop and police search.

Refer to our DC Criminal Lawyer page for more information on this topic.