D.D.C.: Being “wide eyed” and evading police when seeing them isn’t RS

Defendant getting wide eyed on seeing police and then hiding from them understandably would get their attention, but it’s not reasonable suspicion. United States v. Winecoff, 2021 U.S. Dist. LEXIS 248279 (D.D.C. Dec. 30, 2021):

[T]he government has … failed to sufficiently establish additional circumstances that would permit the Court to conclude that the officers possessed reasonable articulable suspicion that the defendant was engaged in criminal activity at the point of the Terry stop. Specifically, the government’s evidence of the defendant’s nervous behavior—which comprised of his “nervous reaction, including [becoming] wide eye[d]” upon seeing the officers; taking an “abrupt about face away from the officers” after stepping into the street after seeing the officers; “quickly” moving behind the white van and then immediately entering the burgundy SUV when he reached the other side of the white van; the defendant’s “focus[ed] [] attention on the” unmarked cruiser as it pulled parallel to the burgundy SUV; and engaging in “frantic” conversation with the burgundy SUV’s driver, Gov’t’s Suppl. at 10—fail to satisfy the government’s burden. While this evidence demonstrates that it was understandable for the defendant’s activity to attract the officers’ attention, it does not amount to the kind of “specific and articulable facts” necessary to “support a reasonable and articulable suspicion that [the defendant wa]s engaged in criminal activity.” See Castle, 825 F.3d at 634. “‘[N]ervous, evasive behavior is,’ of course, ‘a pertinent factor in determining reasonable suspicion.'” Delaney, 955 F.3d at 1087 (alteration in original) (quoting Wardlow, 528 U.S. at 124). However, “not all reactions to seeing the police are suggestive of criminal behavior.” Id. (citing United States v. Jones, 584 F.3d 1083, 1087 (D.C. Cir. 2009) (“Merely walking away, even quickly …, upon the arrival of the uniformed police officer would not provide articulable suspicion of criminal wrongdoing.”)). Here, the situation is not just that “there are innocent reasons” to explain the defendant’s behavior. See Wardlow, 528 U.S. at 125. Beyond mere “susceptib[ility to] an innocent explanation[,]” the government’s evidence does not establish that the officers witnessed “conduct [that] was by itself lawful, but [that] also suggested that the [defendant]” was engaged in some kind of unlawful activity. See id.