On December 23, 2019, the Fifth Circuit Court of Appeals decided the United States v. Darrell[i], in which the court discussed whether walking away from officers, who are at a residence known for drug activity for the purpose of serving an arrest warrant, constitutes “flight” when determining whether there was sufficient reasonable suspicion to detain a person.  The facts of Darrell, taken directly from the case, are as follows:

On September 3, 2017, Alcorn County Sheriff’s Deputy Shane Latch and Farmington Police Department Officer Mike Billingsley drove to a home in Corinth, Mississippi. They intended to serve an arrest warrant on one of the home’s occupants, Brandy Smith, for failing to appear in court. Deputy Latch later described the residence as “a known drug house” where multiple arrests and disturbances—including a shooting—had taken place in the past. Indeed, Latch himself had made several arrests there.

As the uniformed officers pulled up to the house in two marked squad cars, they saw a black Chevrolet Camaro parked in the driveway. “Almost instantaneously,” Appellant Justin Darrell exited the Camaro and began walking toward the back of the house. Officer Billingsley called out to Darrell and instructed him to stop, but Darrell ignored the command and continued walking away from the officers, now at an increased pace. Deputy Latch later testified that if Darrell had walked an additional fifteen to twenty feet, he would have been behind the house and outside the officers’ field of vision. Once out of their sight, the officers feared, Darrell might have withdrawn a concealed weapon or warned Ms. Smith of her impending apprehension—a crime under Mississippi law. Officer Billingsley again ordered Darrell to stop. This time, Darrell complied and began walking back toward the officers. Officer Billingsley took a brown paper bag from Darrell and handed it to Deputy Latch. Inside was a bottle of whiskey—contraband in dry Alcorn County.

Officer Billingsley then asked Deputy Latch to watch Darrell while Billingsley approached the door and attempted to apprehend Ms. Smith. Deputy Latch asked Darrell what his name was, but Darrell declined to answer. Deputy Latch then noticed two knives hooked onto Darrell’s belt.

Latch confiscated the knives and asked Darrell if he had any other weapons. Although Darrell said no, Deputy Latch patted him down to be sure. As he did so, he felt an item in Darrell’s front pocket. He asked what it was, but Darrell did not answer. Latch later testified that “when [he] edged the pocket open,” he “could see the butt end of [a] pistol.” Latch then “pushed [Darrell] against the car and removed the weapon,” which turned out to be a loaded semiautomatic pistol with its serial number obliterated. Darrell’s pocket also contained a substance believed to be methamphetamine. Deputy Latch handcuffed Darrell and placed him in a squad car.

Latch estimated that the officers’ entire encounter with Darrell lasted less than a minute. Only after Darrell had been handcuffed did the officers notice a man sitting in the passenger seat of the Camaro. He had not attempted to exit the vehicle or participated in any way in the confrontation. The officers asked the passenger to step outside, identified him as Donald Dunn, and arrested him on an outstanding warrant from the City of Farmington. Both men were transported to the Alcorn County Jail and held for investigation. A few days later, the Mississippi Bureau of Narcotics confirmed that Darrell was a convicted felon.[ii]

Darrell was subsequently indicted under federal law for being a felon in possession of a firearm.  He filed a motion to suppress the firearm and the district court denied the motion. Darrell pleaded guilty with a right to appeal the denial of the motion to suppress.  He then filed a timely appeal with the Fifth Circuit Court of Appeals.

On appeal, Darrell argued that he was seized without reasonable suspicion after walking away from his vehicle when the officer ordered him to stop and he complied and therefore the motion to suppress the firearm should have been granted.

The court first outlined the legal standards that apply in this case and stated

The Supreme Court carved out one such exception in Terry v. Ohio.9 Under Terry, if a law enforcement officer can point to specific, articulable facts that lead him to reasonably suspect “that criminal activity may be afoot,” he may briefly detain an individual to investigate. In addition, if the officer reasonably believes that the individual is “armed and presently dangerous to the officer[] or to others, [he] may conduct a limited protective search for concealed weapons”—often called a “frisk.”

 Generally, the legality of such stops “is tested in two parts”: “Courts first examine whether the officer’s action was justified at its inception, and then inquire whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop.”[iii]

The court noted that, on appeal, Darrell only challenged the legality of the stop, particularly, whether it was justified at it’s inception with reasonable suspicion; he did not challenge the scope of the stop (such as the frisk).  As such, the only issue on appeal was whether, based on the totality of the circumstances, the officer’s had reasonable suspicion to stop Darrell as he approached Smith’s residence.[iv]  The government conceded that Darrell was seized by the officers under the Fourth Amendment, when they told him to stop the second time, and Darrell complied and walked back toward the officers.

The government argued that the officers had sufficient reasonable suspicion to justify the stop because the officers knew the house at which they were located to serve an arrest warrant was a known drug house where a shooting had previously occurred, Darrell “fled” from the officers, and the officers reasonably believed that allowing Darrell to make it around the back of the house could allow him to draw a weapon or warn the target of the arrest warrant.

The government based its argument on the Supreme Court’s decision in Illinois v. Wardlow.[v]  In Wardlow, officers were in a four-car caravan driving through a high-crime neighborhood.  The officers in the last car of the caravan observed Wardlow standing next to a building and holding an opaque bag.  Wardlow looked at the officers and fled down an alley.  The officers cornered him and conducted a frisk.  The officers located a loaded handgun.  Wardlow was subsequently charged under federal law for being a felon in possession of a firearm.  Ultimately, the Supreme Court held that the officers had sufficient reasonable suspicion to justify the stop because (1) the stop occurred in a high-crime area, and (2) Wardlow engaged in “unprovoked flight” at the sight of the approaching police vehicles.  The Supreme Court acknowledged that being present in a high-crime area, standing alone, does not amount to reasonable suspicion to detain a person.  The Court also noted that during a consensual encounter, a person is free to ignore the police and continue about their business.  However, the Court stated that “flight by its very nature, is not going about one’s business; in fact, it is just the opposite.”[vi]

The court discussed the fact that Darrell did not run from the officers but rather walked away at “an increased pace.”  As such, the court examined precedent on whether walking can constitute “flight.”  The court stated

The case law on flight is not clear-cut. In United States v. Tuggle, we stated that a “defendant does not have to run away for his behavior to be considered unprovoked flight.” However, we focused not on the subject’s “brisk walk” away from police but on other contextual factors supporting an inference of flight. We particularly concentrated on the fact that a driver who had just been conversing with the subject in an apparent drug transaction “sped off” when the police approached.[vii]

Thus, a walking away from officers may be considered flight, when considered in the context of the situation that the “flight” is occurring.

The Fifth Circuit also examined precedent that spoke to the officers concerns that Darrell could draw a weapon if he managed to reach the rear of the residence.  The court stated

We have also recognized that retreat may be a tactical strategy for an armed suspect who wishes to harm the police. In United States v. Sanders, an officer responded to a convenience store owner’s report of “a suspicious person with a gun on the premises.” Upon arrival, the officer saw a man who matched the suspect’s description and wore a long jacket that concealed his waistband. As the man “saw the squad car pulling up, he turned and started to walk away.” This, together with several other contextual factors, justified the officer’s decision to immediately draw his weapon and confront the man. The Court noted that walking away “can be used by a criminal to prepare for a violent confrontation by surreptitiously retrieving a concealed weapon then spinning back around to face the officer and use the weapon against him.”[viii]

The court then concluded that officers had sufficient reasonable suspicion to justify Darrell’s stop.  Particularly, the court stated

[T]he officers reasonably feared that Darrell might draw a weapon or warn the target of their arrest warrant if he were permitted to withdraw from view. Finally, the fact that Darrell “was not seen committing any criminal activity” does not detract from the reasonableness of the officers’ suspicion. Terry requires “reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot'”; it does not require certainty that a crime is in fact being committed. Viewing this case under the totality of the circumstances, we hold that reasonable suspicion supported the brief investigatory stop of Darrell.[ix]

Thus, the court of appeals affirmed the denial of the motion to suppress.



[i] No. 19-60087 (5th Cir. Decided December 23, 2019)

[ii] Id. at 1-3

[iii] Id. at 4-5 (emphasis added)

[iv] Id. at 5

[v] 528 U.S. 119 (2000)



[vi] Darrell at 8

[vii] Id. at 10 (284 F. App’x at 225 (citing United States v. Gordon, 231 F.3d 750, 757 (11th Cir. 2000))(emphasis added)

[viii] Id. at 11 (citing U.S. v. Sanders, 994 F.2d 200, 201 (5th Cir. 1993)(emphasis added)

[ix] Id. at 15

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