United States v. Zachary Foster

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4319
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZACHARY M. FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
District Judge. (5:14−cr−00046−JPB−JES−1)
Argued: January 28, 2016 Decided: May 24, 2016
Before WILKINSON, DIAZ, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wilkinson and Judge Thacker joined. Judge Wilkinson
wrote a separate concurring opinion.
ARGUED: Brendan S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Wheeling, West Virginia, for Appellant. Tara Noel Tighe, OFFICE
OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee. ON BRIEF: William J. Ihlenfeld, II, United States
Attorney, Stephen L. Vogrin, Assistant United States Attorney,
Donald M. Kersey, Law Student, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.
DIAZ, Circuit Judge:
Zachary Foster entered a conditional guilty plea to being a
prohibited person in possession of a firearm, reserving the
right to challenge the district court’s denial of his motion to
suppress evidence recovered after a stop-and-frisk. Foster
argues that the district court erred because the police lacked
reasonable suspicion. We disagree and therefore affirm.
I.
A.
Around 12:39 a.m. on August 11, 2014, police in Wheeling,
West Virginia, received a “911 hangup-only call” reporting a
gunshot near a jogging trail by Coleman’s Fish Market. 1 J.A. 68.
Officers Eric Burke and Rachel Boyer were dispatched to the
scene.
Driving separately, the two officers arrived within minutes
to the area in question, which was associated with theft,
vandalism, and the production of methamphetamine. With Boyer
trailing him, Burke rounded a corner and saw Foster “just
standing there, looking around” in an alley between two
businesses that, like all others in the area, were closed. J.A.
1 The facts recounted here are consistent with the
magistrate judge’s findings of fact as well as those of the
district court. As noted below in Section II.A, however, Foster
presents a different version of events.
2
40. When Burke spotted Foster, the officers were about three or
four blocks away from Coleman’s Fish Market. Foster was the
only person Burke and Boyer had encountered since arriving in
the area.
Both officers left their cars and approached Foster, with
Burke holding a rifle “in the low ready position.” J.A. 20.
Burke informed Foster that he and Boyer were investigating a
report of a shot fired in the area. Foster did not respond and
avoided eye contact. Boyer believed that Foster was under the
influence of drugs because his eyes “appeared glassy,” he did
not respond to her or Burke, and “[h]e didn’t have the alertness
that most people have when police officers approach them.” J.A.
71. Burke thought Foster might “possibly” be under the
influence of drugs “because of how unresponsive he was.” J.A.
41.
Next, Burke asked Foster if he had any weapons. Foster
then “began to put his right hand in his right front pocket.”
J.A. 41–42. Burke and Boyer interpreted this as a “security
check”—an instinctual movement in which, upon being asked if
they are carrying any weapons, suspects reach to ensure that a
concealed weapon is secure. J.A. 42–43, 73. 2 Burke then told
2 Burke learned during his training that a suspect
performing a security check presents a potential danger to
police officers. Specifically, Burke testified about having
(Continued)
3
Foster to keep his hands out of his pockets, and Foster
complied. Subsequently, Burke told Boyer to frisk Foster.
Boyer first patted the outside of Foster’s right pocket,
touching an object that felt like a firearm. Ultimately, Boyer
discovered three guns.
B.
Foster was indicted for one count of being a prohibited
person in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Arguing that he was stopped and
frisked without reasonable suspicion, Foster moved to suppress
the evidence that Boyer and Burke recovered.
After a hearing, a magistrate judge recommended that the
district court grant Foster’s motion. The judge reasoned that
the following factors together did not create reasonable
suspicion sufficient to justify the stop-and-frisk:
(1) Defendant was spotted in the area where a 911
caller reported that one shot was recently fired;
(2) the gunshot was reported late at night and the
area was considered a “high-crime” area by the
officers; (3) Defendant did not respond to any
questions by the officers; (4) the officers believed
Defendant was under the influence of illegal drugs;
and (5) during questioning, Defendant moved his right
hand toward his front right pocket.
J.A. 103.
watched video footage showing a suspect who, upon being asked if
he had any weapons, performed a security check, retrieved a
firearm, and shot and killed an officer. See J.A. 42–43.
4
Upon the government’s objection, the district court
declined to adopt the magistrate judge’s report and
recommendation and denied Foster’s motion to suppress. The
court placed particular emphasis on the security check, noting
that “[b]ecause the underlying principle for a Terry 3 frisk is
officer safety, this Court finds the defendant’s hand movements
to be especially significant.” J.A. 145.
The court, however, gave no weight to the officers’
observation that Foster may have been under the influence of
drugs because Burke—the officer who ordered the stop-and-frisk—
testified merely that Foster “possibly” appeared to be
intoxicated. J.A. 138–40. Additionally, the court “g[ave]
little weight to [Foster’s] lack of eye contact with the
officers” because he “did not show signs of nervousness, but
[rather] stood there silently.” J.A. 141.
Subsequently, Foster entered a conditional guilty plea,
reserving the right to appeal the district court’s denial of his
motion to suppress. Foster was sentenced to thirty months’
imprisonment to be followed by three years of supervised
release.
This appeal followed.
3 Terry v. Ohio, 392 U.S. 1 (1968).
5
II.
On appeal of “the denial of a motion to suppress, we review
the district court’s factual findings for clear error and its
legal conclusions de novo,” United States v. Green, 740 F.3d
275, 277 (4th Cir. 2014), as long as the relevant issues were
properly raised in the district court, see Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731–32 (1993).
Because the government prevailed below, “[w]e construe the
evidence in the light most favorable to [it].” Green, 740 F.3d
at 277.
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons . . . against unreasonable searches
and seizures.” U.S. Const. amend. IV. “Although brief
encounters between police and citizens require no objective
justification,” United States v. Black, 707 F.3d 531, 537 (4th
Cir. 2013), “a brief investigatory stop is impermissible unless
the officer’s action is supported by a reasonable and
articulable suspicion . . . that criminal activity ‘may be
afoot,’” United States v. Bumpers, 705 F.3d 168, 171 (4th Cir.
2013) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
An antecedent question to whether an investigatory stop
comports with the Fourth Amendment is whether there was such a
stop at all—that is, whether the police “seized” a suspect.
Black, 707 F.3d at 537; see also United States v. Slocumb, 804
6
F.3d 677, 681 (4th Cir. 2015). To determine this, we consider
whether, “in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was
not free to leave.” Slocumb, 804 F.3d at 681 (quoting United
States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989)).
If a person was seized, courts move on to consider whether
the seizure was justified by reasonable suspicion. “Th[is]
level of suspicion must be a ‘particularized and objective basis
for suspecting the particular person stopped of criminal
activity.’” Black, 707 F.3d at 539 (quoting United States v.
Griffin, 589 F.3d 148, 152 (4th Cir. 2009)).
To determine if the officer had reasonable suspicion,
courts look to “the totality of the circumstances.” Slocumb,
804 F.3d at 682. While “a mere ‘hunch’ is insufficient,”
reasonable suspicion is less demanding than probable cause “and
may well ‘fall[] considerably short of satisfying a
preponderance of the evidence standard.’” United States v.
Massenburg, 654 F.3d 480, 485 (4th Cir. 2011) (alteration in
original) (quoting United States v. Arvizu, 534 U.S. 266, 274
(2002)). Seemingly innocent factors, when viewed together, can
amount to reasonable suspicion. See Slocumb, 804 F.3d at 682.
That said, we are skeptical of “Government attempts to
spin . . . largely mundane acts into a web of deception.” See
United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011).
7
Accordingly, “the Government cannot rely upon post hoc
rationalizations to validate those seizures that happen to turn
up contraband.” Id. at 249.
Even if an investigatory stop is justified by reasonable
suspicion, a subsequent frisk of a suspect for weapons is not
necessarily permissible. United States v. Sakyi, 160 F.3d 164,
169 (4th Cir. 1998) (explaining “that an officer must have
justification for a frisk or a ‘pat-down’ beyond the mere
justification for the traffic stop”). Instead, a frisk must be
supported by “reasonable suspicion that the [suspect] is armed
and dangerous.” United States v. George, 732 F.3d 296, 299 (4th
Cir. 2013) (quoting Arizona v. Johnson, 555 U.S. 323, 327
(2009)); see also Terry, 392 U.S. at 24.
On appeal, Foster presents two principal arguments. The
first is that he was seized before he reached for his right
pocket and that this seizure was not supported by reasonable
suspicion. Foster’s second argument is that even if he were
seized after he reached for his pocket, the police still lacked
reasonable suspicion to stop him. We address these arguments in
turn.
A.
Before us, Foster argues that he was seized before he
reached for his pocket and that this supposed seizure was not
justified by reasonable suspicion. We reject this contention.
8
Foster’s legal theory relies on a version of the facts that
differs from the findings of the magistrate judge and district
court. Foster says that after Burke informed him that there was
a gunshot reported in the area, the officers told him that he
would be detained and frisked. According to Foster, only after
this did he reach for his right pocket upon being asked if he
was carrying any weapons.
In pressing this version of the facts, Foster relies on a
portion of Boyer’s testimony from the motion-to-suppress
hearing. Appellant’s Br. at 2–3 (quoting J.A. 71). After
testifying that Burke told Foster that the police were
responding to a report of a shot fired in the area, Boyer
stated, “At that point we told Foster that we were going to
detain –– we were just going to pat him down to see if he had
weapons on him, because he was the only person in the area at
the time and all the businesses were closed.” J.A. 71. Then,
Boyer testified that the police asked Foster if he was carrying
weapons “at a later time.” J.A. 71. Because the parties agree
that Foster reached for his right pocket after being asked if he
was carrying any weapons, this portion of Boyer’s testimony
suggests that the police ordered Foster to submit to a stop-and-
frisk before he reached for his pocket.
Based on this excerpt of Boyer’s testimony, Foster argues
that when the officers told him that they were going to detain
9
him and pat him down, he was subject to an investigatory stop.
Because this took place before Foster reached for his right
pocket, his security check would not be considered in a
reasonable-suspicion analysis.
Foster, however, failed to make this argument in the
district court. Instead, Foster accepted the version of the
facts ultimately found by the magistrate judge and the district
court and effectively conceded that the security check was a
relevant consideration by including it in his reasonable-
suspicion analysis. Indeed, Foster stated in his response to
the government’s objections to the magistrate judge’s report and
recommendation that “[t]he basic facts of this case are not in
dispute,” and he described the relevant facts in the following
sequence: the officers asked Foster if he had weapons, Foster
reached toward his pocket, and then the officers ordered him to
put his hands in front of him and conducted the pat down. J.A.
125.
A theory presented for the first time on appeal is
generally considered waived or forfeited. See United States v.
Robinson, 744 F.3d 293, 298–300 (4th Cir. 2014) (discussing
waiver and forfeiture); United States v. Rendelman, 641 F.3d 36,
43 (4th Cir. 2011) (“An appellate contention that was not
preserved in the trial court is reviewed for plain error
only.”). Curiously, however, the government has not pressed
10
waiver or forfeiture on appeal. See United States v. Palomino-
Coronado, 805 F.3d 127, 130 n.3 (4th Cir. 2015) (holding that
“the government waived its waiver argument”). Accordingly, we
think it fair to proceed by determining if the district court
clearly erred in failing to find facts consistent with the
version of events that Foster presents on appeal.
“Clear error is demonstrated . . . when the reviewing
court, considering all of the evidence, ‘is left with the
definite and firm conviction that a mistake has been
committed.’” United States v. Jackson, 728 F.3d 367, 372 (4th
Cir. 2013) (quoting United States v. Breza, 308 F.3d 430, 433
(4th Cir. 2002)). But, “‘[i]f the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety,’ we will not reverse the district court’s finding
simply because we have become convinced that we would have
decided the fact[s] differently.” United States v. Stevenson,
396 F.3d 538, 542 (4th Cir. 2005) (first alteration in original)
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).
We also, as previously noted, review the facts in the light most
favorable to the government because it prevailed below. Green,
740 F.3d at 277.
A district court commits clear error “when it makes
findings ‘without properly taking into account substantial
evidence to the contrary.’” United States v. Francis, 686 F.3d
11
265, 273 (4th Cir. 2012) (quoting Miller v. Mercy Hosp., Inc.,
720 F.2d 356, 361 (4th Cir. 1983)). Here, however, the portion
of Boyer’s testimony to which Foster refers is not the sort of
“substantial evidence to the contrary” that must be explicitly
accounted for by the district court. Indeed, neither party
thought it significant enough to bring to the court’s attention.
Moreover, as the government points out, the officers’ incident
reports, Burke’s testimony, and Boyer’s testimony viewed as a
whole all support the district court’s findings. 4 Accordingly,
we reject Foster’s version of the facts as well as his
accompanying legal argument that he was seized before he reached
for his pocket. 5
4 See United States v. Caporale, 701 F.3d 128, 140-42 (4th
Cir. 2012)(explaining that the district court’s failure to
address a particular piece of insubstantial contrary evidence
did not amount to clear error in light of the whole record);
Holton v. City of Thomasville Sch. Dist., 490 F.3d 1257, 1263
(11th Cir. 2007) (per curiam) (“[T]he district court may examine
the record as a whole and need not respond to every piece of
conflicting evidence.”).
5 Foster also argues that the police were going to detain
him from the moment they approached him because he was the only
person they saw in the area. Even if true (and the record
suggests otherwise), an officer’s subjective intent in
conducting a Terry stop is irrelevant. Whren v. United States,
517 U.S. 806, 812–13 (1996); United States v. Branch, 537 F.3d
328, 337 (4th Cir. 2008).
12
B.
We next consider Foster’s argument that even if Burke and
Boyer stopped him after he reached for his pocket, they lacked
reasonable suspicion.
There are five relevant factors supporting the presence of
reasonable suspicion that Foster was or had been engaged in
criminal activity:
(1) The 911 call that reported a gunshot;
(2) Shortly after the officers were dispatched, Foster was
the only person they encountered in the area in which the
gunshot was reported;
(3) The stop occurred late at night in a part of the city
described as a “high crime” area;
(4) Foster did not respond to the officers’ questions and
avoided eye contact; and
(5) Foster reached for his right pocket after being asked
if he was carrying a weapon.
The government also points to the fact that “Officers Burke
and Boyer suspected that [Foster] was under the influence of
illegal drugs.” Appellee’s Br. at 8. Like the district court,
we give this no weight.
In evaluating the officers’ suspicion that Foster was on
drugs, the district court explained that courts must not simply
aggregate the knowledge of all officers involved in a stop;
instead, they should “substitute the knowledge of the
instructing officer or officers for the knowledge of the acting
13
officer.” J.A. 139 (quoting Massenburg, 654 F.3d at 493). The
court found that “no testimony indicates that Officer Boyer
communicated her concern to Officer Burke that [Foster] may have
been under the influence of drugs.” J.A. 139. Thus, only
Burke’s knowledge was relevant.
With regard to his knowledge, the court explained that
Burke merely “thought [Foster] could ‘possibly’ be under the
influence of drugs . . . ‘because of how unresponsive he was.’”
J.A. 139–40 (quoting J.A. 41). Based on this, the court found
that “Officer Burke’s report and testimony do not support a
finding that he suspected the defendant was under the influence
of drugs or alcohol.” J.A. 139–40. The district court
therefore concluded that it should not consider Foster’s
suspected drug use in its reasonable-suspicion inquiry. J.A.
140. We find no error in the district court’s analysis.
Nonetheless, based on the remaining factors, we conclude
that the stop was justified.
1.
The first relevant factor is the 911 call. Foster argues
that we should discount it in our reasonable-suspicion analysis
because it was anonymous and unreliable.
A “‘bare-boned,’ anonymous tip, standing alone, [is]
insufficient to justify a Terry stop.” United States v. Elston,
479 F.3d 314, 317 (4th Cir. 2007) (quoting Florida v. J.L., 529
14
U.S. 266, 273–74 (2000)). But, the police may rely on an
anonymous tip to establish reasonable suspicion if it is
“suitably corroborated” so as to “exhibit[] ‘sufficient indicia
of reliability.’” J.L., 529 U.S. at 270 (quoting Alabama v.
White, 496 U.S. 325, 327 (1990)); Massenburg, 654 F.3d at 486.
By itself, the tip here falls far short of supplying the
officers with reasonable suspicion, as our decision in
Massenburg makes clear. There, the police received a “vague,”
anonymous tip that shots were “possibly” fired in a particular
area. Massenburg, 654 F.3d at 486. While we noted that the
fact that the tipster “disclosed her basis of knowledge”
increased the call’s reliability, the anonymous report was still
insufficiently reliable to support reasonable suspicion absent
further corroboration. Id. at 487–88. The tip here is similar,
and thus we must determine whether any other circumstances
increase its reliability to justify stopping Foster. 6
6
We cannot be sure that the call in this case was indeed
“anonymous.” On one hand, it was a “911 hangup-only call,” and
the police dispatcher “was unable to call the caller back.”
J.A. 80. On the other hand, dispatch at some point later
informed the officers that the caller was one Sarah Wilson.
Ultimately, we need not resolve the issue conclusively.
Instead, we assume that the call was anonymous and nevertheless
conclude that the officers had reasonable suspicion.
15
2.
We next consider the fact that, minutes after the officers
were dispatched, Foster was the only person they encountered in
the area in which the gunshot was reported.
In Massenburg, we explained that “when a tip lacks
sufficient indicia of reliability, presence in the area
identified by the tip does not generate reasonable suspicion.”
Id. at 487. Similar to Foster, “Massenburg and his companions
were the only people encountered” when the police responded to a
report of gunshots about fifteen minutes after receiving an
anonymous tip. Id. at 482–83, 487. Additionally, like Foster,
Massenburg was found four blocks away from the site of the
alleged gunfire. Id. at 487. We concluded that the government
would need to point to further circumstances to meet the
reasonable-suspicion threshold. See id. at 486–88. Here, given
the similarity of the facts at hand to Massenburg, we must
conclude the same.
3.
Adding to the mix that the officers encountered Foster at
night in what they perceived to be a high-crime area also fails
to push the needle across the reasonable-suspicion threshold.
Both the high-crime reputation of an area and the late hour
of a police encounter can contribute to a finding of reasonable
suspicion. See, e.g., Slocumb, 804 F.3d at 682; George, 732
16
F.3d at 300. But here, even when combined with the factors
described above, they are insufficient to justify an
investigatory stop.
Massenburg, once again, makes this clear. There, in
addition to the previously discussed similarities to Foster’s
case, Massenburg was encountered at night in a high-crime area
known for “drug activity as well as random gunfire.”
Massenburg, 654 F.3d at 482–83. We reasoned that the high-crime
reputation of the area “add[ed] little to the anonymous tip” and
“d[id] little to support the claimed particularized suspicion as
to Massenburg.” Id. at 488. Ultimately, we concluded that the
officers lacked reasonable suspicion. Id. at 482, 495–96.
Here, the high-crime reputation of the area is of even less
value to the government than it was in Massenburg. The area in
which the police stopped Foster was not known specifically for
gun-related incidents, unlike the area in question in
Massenburg. Consequently, we cannot find reasonable suspicion
based on the factors discussed thus far.
4.
Next, we address the extent to which Foster’s failure to
respond to or make eye contact with the officers supports
reasonable suspicion.
With respect to Foster’s silence, the Supreme Court has
said that “when an officer, without reasonable suspicion or
17
probable cause, approaches an individual, the individual has a
right to ignore the police and go about his business.” Illinois
v. Wardlow, 528 U.S. 119, 125 (2000). Thus, a “refusal to
cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure.” Id.
(quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). Here,
because Foster did not have to respond to Burke and Boyer, we do
not find his silence significant.
As for Foster’s lack of eye contact, we have explained that
“while the failure of a suspect to make eye contact, standing
alone, is an ambiguous indicator, the evidence may still
contribute to a finding of reasonable suspicion.” George, 732
F.3d at 301 (citation omitted). We are hesitant, however, to
afford lack of eye contact much weight because it is no more
likely to be an indicator of suspiciousness than “a show of
respect and an attempt to avoid confrontation.” See Massenburg,
654 F.3d at 489.
Massenburg is once again instructive. There, the police
pointed to the defendant’s allegedly suspicious and nervous
behavior, namely that he avoided eye contact, stood back from
the group of people he was with, and “took a step back away from
[a police officer], and . . . then began pantomiming a self pat-
18
down search.” 7 Id. at 484–85. We concluded that this behavior
was not “[g]enuinely suspicious,” but rather a “mild reaction”
to requests to consent to a voluntary search. See id. at 491.
Such unremarkable evidence of nervousness could not “suffice[]
to create reasonable suspicion” without “Terry’s reasonable
suspicion requirement [becoming] meaningless.” See id.
Accordingly, “it [was] clear that reasonable, particularized
suspicion of criminal activity d[id] not exist.” Id.
Here, while Foster’s failure to make eye contact with the
police is not irrelevant, George, 732 F.3d at 301, it is too
“mild” a reaction to deserve much weight in our analysis,
especially in light of the district court’s finding that Foster
did not appear to be nervous, J.A. 141.
Based on the factors discussed thus far, this case is not
meaningfully distinguishable from Massenburg. Accordingly, we
turn to consider whether the security check is sufficient to tip
the scales in the government’s favor.
7 The self-pat-down in Massenburg is unlike the security
check in this case. Massenburg’s movements “w[ere]
interpreted . . . by [the investigating officer] . . . as an
obvious attempt to satisfy [the officer] without consenting to a
frisk[;] [the movements] provided little basis, if any, as a
matter of constitutional analysis, for a reasonable suspicion of
wrongdoing.” 654 F.3d at 491; see also id. at 483 (quoting an
officer’s testimony for his observation that Massenburg “air-
patted himself down, . . . trying to show he didn’t have
anything”).
19
5.
A security check by a suspect can contribute to a finding
of reasonable suspicion that the suspect was engaged in criminal
activity. See United States v. Humphries, 372 F.3d 653, 660
(4th Cir. 2004) (pointing to a security check as a factor
supporting a finding of probable cause); see also, e.g., United
States v. Briggs, 720 F.3d 1281, 1287–89 (10th Cir. 2013)
(explaining that a suspect grabbing at his waistline was
relevant to a reasonable-suspicion analysis because it suggested
that he might be carrying a weapon); United States v. Oglesby,
597 F.3d 891, 895 (7th Cir. 2010) (finding reasonable suspicion
for a frisk where, among other factors, the suspect “repeatedly
lowered his right hand toward the right pocket of his pants”
because “such action . . . reasonably indicated to the officers
that [he] might be carrying a weapon”).
Foster argues, however, that his hand motion should carry
little or no weight because it merely indicated “that he may or
may not [have been] carrying something in his pocket.”
Appellant’s Br. at 22. He points to “other innocent
explanations for the movement”; for instance, Foster says he
could have been reaching for a cell phone. Id.
While we have no doubt that there are possible innocent
explanations for Foster’s movement, “it must be rare indeed that
an officer observes behavior consistent only with guilt and
20
incapable of any innocent interpretation.” United States v.
Moore, 817 F.2d 1105, 1107 (4th Cir. 1987) (quoting United
States v. Price, 599 F.2d 494, 502 (2d Cir. 1979)); see also
Black, 525 F.3d at 365 (“[A] reasonable suspicion need not rule
out all innocent explanations . . . .”). Burke and Boyer were
investigating a report of a gunshot and the one person they
encountered at the scene reached for his pocket when asked if he
was carrying a weapon. It was not unreasonable under these
circumstances for the officers to have concluded that Foster
might have a weapon.
Foster also contends that “West Virginia law allows the
open and concealed carry of firearms,” so the fact that Foster
might have been carrying a firearm did not suggest any evidence
of criminal conduct. Appellant’s Br. at 22. This argument
fails because Burke and Boyer stopped Foster not merely because
he might be armed, but because he might have been the source of
the reported gunshot. 8
8 A gunshot at night in a business district of a city can
accompany any number of crimes, for instance armed robbery and
murder, as well as more minor infractions such as discharging a
weapon across a public road, see W. Va. Code § 20-2-58(a)(1)
(2014), or “discharg[ing] . . . [a] firearm within the corporate
limits of the Municipality [of Wheeling],” see Wheeling, W. Va.,
Ordinance § 545.11(a). Indeed, after Foster was arrested, the
Wheeling Police Department “checked the surrounding area for a
possible [gunshot] victim.” J.A. 19.
21
Having established that we can properly include the
security check as a factor in our reasonable-suspicion analysis,
we now combine all of the factors supporting reasonable
suspicion to “consider ‘the totality of the circumstances—the
whole picture.’” United States v. Smith, 396 F.3d 579, 583 (4th
Cir. 2005) (quoting United States v. Cortez, 449 U.S. 411, 417
(1981)).
Although the circumstances observed or known by the police
before Foster reached for his pocket were not enough to support
reasonable suspicion, the security check tied all of the factors
into a coherent whole that justified an investigatory stop.
Burke and Boyer were investigating a reported gunshot, in a
high-crime area, at night. Because Foster was the only person
in the area where the gunshot was reported, the police
justifiably had some suspicion that he might have been the
individual who fired the shot. Indeed, we found reasonable
suspicion under similar circumstances in United States v. Moore,
though in that case a police officer was responding to a burglar
alarm rather than an anonymous 911 call. See 817 F.2d at 1106–
07 (concluding that there was reasonable suspicion for a Terry
stop where (1) a police officer responded quickly to a silent
burglar alarm in a high-crime area at night, (2) the officer saw
only the defendant in the area, (3) the defendant was “about 30
to 40 yards” from the building in question, and (4) “[the
22
defendant] was moving away from the scene of the crime, though
the silent nature of the alarm may have given him no cause to
hurry”).
By performing a security check, which suggested that he
could be armed, Foster gave the officers further cause to
suspect that he was the source of the gunshot. The check also
gave the officers an additional reason to trust the 911 caller’s
report: not only was there a person near the scene of the
reported gunshot at an otherwise quiet hour, but there was
reason to believe that person was armed. Under the
circumstances in which Burke and Boyer found themselves, “the
Fourth Amendment d[id] not require [them] . . . to simply shrug
[their] shoulders and allow a crime to occur or a [possible]
criminal to escape.” Id. at 1106 (quoting Adams v. Williams,
407 U.S. 143, 145 (1972)). Instead, they could justifiably
perform a Terry stop because they had reasonable suspicion that
Foster committed a crime associated with discharging a firearm.
Our decision in United States v. Sims further supports
finding reasonable suspicion in this case. 296 F.3d 284 (4th
Cir. 2002). There, the police received “an anonymous report
that a black male wearing a T-shirt and blue jeans had just
fired a pistol” in a particular area. Id. at 285. An officer
arrived minutes later and saw a person matching the description
in the report standing behind a house “‘in a crouched position,’
23
‘peeking around the corner,’” who then “‘jerk[ed] right back’
behind the house” when the officer made eye contact with him.
Id. at 285–86 (alteration in original). The officer then
stopped the suspect and frisked him. Id. at 286.
The suspect argued that the officer lacked reasonable
suspicion under Florida v. J.L., 529 U.S. 266 (2000). Id. In
that case, an anonymous tipster reported that “a young black
male standing at a particular bus stop and wearing a plaid shirt
was carrying a gun.” J.L., 529 U.S. at 268. Police then
arrived at the scene and found J.L., who matched the description
in the anonymous tip, along with two other people. Id. Other
than the tip, “the officers had no reason to suspect any of the
three of illegal conduct.” Id. The police “did not see a
firearm, and J.L. made no threatening or otherwise unusual
movements.” Id. Nevertheless, the police stopped J.L. and
frisked him. Id. The Court concluded that the police lacked
reasonable suspicion because outside of the anonymous tip, there
was no evidence that J.L. had done anything illegal. Id. at
268, 270–74; see Sims, 296 F.3d at 286 (explaining that in J.L.,
the Supreme Court held “that the uncorroborated anonymous tip,
by itself, did not create the reasonable suspicion of criminal
activity necessary to support a search”).
We found the facts of Sims distinguishable from J.L.
because the Sims defendant engaged in “furtive behavior.” Sims,
24
296 F.3d at 286. Accordingly, we concluded that the police had
reasonable suspicion based on the defendant’s evasive conduct
combined with the fact that he “matched the tipster’s
description, was the only person about, and was a very short
distance from the spot where a shot was reportedly fired just a
few minutes before.” Id. at 287 (“[I]t was [not] unreasonable
for an officer to suspect that Sims was the man of whom he had
been warned.”). 9
The instant case is similar. In Sims, the defendant’s
suspicious behavior bolstered the anonymous tip and, once
combined with the tip, supported reasonable suspicion. Here,
Foster’s performance of a security check gave credence to the
anonymous tip and gave Burke and Boyer reason “to suspect that
9 Other cases similarly show that an anonymous tip in
conjunction with a suspect’s suspicious actions can support a
finding of reasonable suspicion. See, e.g., United States v.
Mosley, 743 F.3d 1317, 1321, 1328 (10th Cir. 2014) (finding
reasonable suspicion where the police responded to an anonymous
tip that two individuals had a gun inside their car where
(1) there had been previous shootings in the parking lot in
which the individuals were found, and (2) one of the passengers
made “furtive motions” that the “officers testified were
consistent with trying to either hide or retrieve a weapon”);
Robinson v. Howes, 663 F.3d 819, 828–31 (6th Cir. 2011)
(explaining that a suspect’s “evasive behavior” bolstered a
reasonable-suspicion finding where the other circumstances
included a nearly anonymous 911 call); United States v.
Muhammad, 463 F.3d 115, 122–23 (2d Cir. 2006) (finding
reasonable suspicion and distinguishing J.L. where an anonymous
tip was corroborated by evidence of flight).
25
[Foster] was the man of whom [they] had been warned.” Id. This
was enough to justify the investigatory stop of Foster. 10
III.
For the reasons given, we affirm the district court’s
judgment.
AFFIRMED
10 While it is not the focus of his brief, Foster also
argues that Burke and Boyer violated the Fourth Amendment by
frisking him because they lacked reasonable suspicion that he
was armed. This argument fails for the same reasons we find the
Terry stop justified.
26
WILKINSON, Circuit Judge, concurring:
Poor Terry v. Ohio, 392 U.S. 1 (1968). It has fallen on
hard times. A string of recent tragic street encounters
involving the police has brought the stop-and-frisk procedure
authorized in Terry under fire. But that is nothing new. The
Court’s authorization of an investigative procedure on a
standard less than probable cause came under fire at the time,
with Justice Douglas noting in dissent that “[t]he term
‘probable cause’ rings a bell of certainty that is not sounded
by phrases such as ‘reasonable suspicion.’” Id. at 37. In fact,
the decision was seen by some contemporaries as a capitulation
to cries for law and order during the 1968 political season.
Again, as Justice Douglas noted, the “hydraulic pressure” on the
Court to dilute constitutional guarantees “has probably never
been greater than it is today.” Id. at 39.
There is truth in this indictment, though the truth is only
partial, as truth is often found to be. It is worth recalling
the three great purposes animating the Terry decision, because
those purposes are present in this case. The first purpose was
simple crime prevention -- the need being simply to allow police
to conduct an investigatory stop before criminals visit harm
upon the innocent. The Terry Court cautioned that “a rigid and
unthinking application of the exclusionary rule . . . may exact
a high toll in human injury and frustrat[e] efforts to prevent
27
crime.” 392 U.S. at 15. Here, as Judge Diaz ably recounts, a
gunshot was reported during the early morning hours in the
vicinity of an area known for theft, vandalism, and drug
activity. J.A. 34-39. When the police arrived on the scene, they
found only Foster standing in an alley between two closed
businesses. Id. at 40. And after being asked if he had any
weapons, Foster “began to put his right hand in his right front
pocket.” Id. at 41-42. Thus, the crime-preventive stop in this
case was justified, for under the totality of the circumstances
the officers had reasonable suspicion that criminal acts had
been committed or were in the offing.
If Terry’s first purpose of crime prevention or detection
is more salient at the stop phase of an interaction, the frisk
brings into relief the second and third purposes of that
decision -- to protect the safety of officers and suspects
alike. The Court gave due consideration to the “interest of the
police officer in taking steps to assure himself that the person
with whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him.” 392 U.S. at 23.
In the present case, the district court found that the officers
only frisked Foster after he reached for his pocket in response
to being asked whether he was armed. J.A. 145. Of course, before
the officers searched Foster they could not have known with
certainty what was in his pocket. As Foster claims, he might
28
have been “reaching for his cell phone.” Appellant’s Br. at 22.
But one of the principal aims of Terry was to ensure that in
circumstances such as these officers do not have to stand idly
by, waiting for a bullet. As Terry put it, “it would appear to
be clearly unreasonable to deny the officer the power to take
necessary measures to determine whether the [suspect] is in fact
carrying a weapon and to neutralize the threat of physical
harm.” 392 U.S. at 24
It may seem ironic that a decision broadening police
investigatory powers could actually promote the interests of
suspects in some circumstances, but that is in fact the case.
The third and related purpose of Terry was to protect suspect
safety by deescalating police-suspect interactions. True, the
point only goes so far. As the Court acknowledged, “[i]n many
communities, field interrogations are a major source of friction
between the police and minority groups.” 392 U.S. at 14 n. 11
(internal quotation marks omitted). The Court feared that
suspicionless searches in particular could only aggravate
hostilities and fuel resentment. In that way, frisks conducted
without reasonable suspicion run the risk of turning what would
otherwise be “wholly friendly exchanges of pleasantries or
mutually useful information [in]to hostile confrontations of
armed men involving arrests, or injuries, or loss of life.” Id.
at 13.
29
Among Terry’s insights, however, was that a frisk performed
under the proper authority might actually help to ease tensions
by dispelling suspicion and by removing an incentive for
officers to use lethal or disabling force. An officer, like any
human being, may be less on edge if the person in his presence
is not a threat to shoot. Removing the threat affords greater
room for more humane police responses. In that respect, Terry
may help to protect suspects as well as the police.
To be sure, even a lawful frisk can be “an annoying,
frightening, and perhaps humiliating experience.” Id. at 25. But
Terry makes clear that as great as the indignity inflicted by
that procedure might be, it pales in comparison to the tragic
results and inflamed reactions that follow from the use of
lethal force. See id. at 13-15. In other words, Terry may
actually serve to defuse interactions such as this one if
parties are able to communicate with a diminished fear that
grievous consequences may result. Whether the confrontation here
would have taken a more explosive turn without the frisk is of
course impossible to know. All one can say for certain is that
no one was wounded or otherwise physically abused, and no loss
of life ensued.
Terry was decided in the high days of the Warren Court.
Chief Justice Warren himself wrote the opinion for a nearly
unanimous tribunal. After Brown v. Board of Education, 347 U.S.
30
483 (1954), Terry and Miranda v. Arizona, 384 U.S. 436 (1966),
may well be among the Chief Justice’s greatest legacies. Those
two decisions have come to define the parameters of modern
police practice as much as any other case. Although Terry has
come under fire both then and now, the case remains good law. It
has stood the test of time. As the present case reminds,
deservedly so.
31