D.C. Court of Appeals Applies Torres to Find a Seizure Even When the Suspect Got Away

Last year, I wrote cert stage and merits stage amici curiae briefs in Torres v. Madrid, which dealt with the question of what constitutes a “seizure” under the Fourth Amendment. The Supreme Court ultimately held that there is a Fourth Amendment when a police officer touches an individual with intent to restrain him, regardless of whether the individual gets away. This new definition of a seizure ended up being dispositive in yesterday’s opinion by the D.C. Court of Appeals in Mayo v. United States, 2022 WL 54516 (D.C. 2022).

In Mayo,

Nineteen-year-old Landon Mayo was “just hanging out” with some other people in an alley in the Kenilworth neighborhood when a group of officers from the Metropolitan Police Department’s Gun Recovery Unit, part of a two-car convoy, pulled up. Three GRU officers exited the vehicle and focused their attention on Mr. Mayo, who had walked away from them to talk to other people in the alley. Following and flanking him, the GRU officers told Mr. Mayo 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. The officer got a hand on Mr. Mayo’s foot and tripped him up, but Mr. Mayo managed to continue running. He was apprehended by the second car of GRU officers a short distance away and the officers subsequently recovered a gun and drugs they believed him to have discarded or handed off to others in flight.

According to the court,

We now hold, pursuant to Torres, that Sergeant Jaquez seized Mr. Mayo when he dove to tackle him. Sergeant Jaquez’s contact with Mr. Mayo, causing Mr. Mayo to trip and “kind of” fall, plainly amounted to an application of force to Mr. Mayo’s body. And this application of physical force objectively manifested an intent to restrain. Indeed, the record evidence provides no support for an argument that Sergeant Jaquez’s contact with Mr. Mayo was accidental; rather the only reasonable understanding of Sergeant Jaquez’s purpose in “tackling,” “leaping” toward, or “diving” at Mr. Mayo is that Sergeant Jaquez was attempting to prevent Mr. Mayo from running away by restraining him.

Finally, because the court held that “this seizure was unsupported by reasonable, articulable suspicion and therefore unlawful,” it concluded “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 this unlawful seizure that must be suppressed.”

-CM