United States v. Nathaniel Black

FILED: February 26, 2013
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 11-5084
(3:10-cr-00206-MOC-1)
___________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
NATHANIEL BLACK
Defendant - Appellant
___________________
O R D E R
___________________
The court amends its opinion filed February 25, 2013, as
follows:
On the cover sheet, district court information section, the
name of Judge "Max O. Coburn, Jr." is changed to read Judge "Frank
D. Whitney."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-5084
NATHANIEL BLACK,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:10-cr-00206-MOC-1)
Argued: December 7, 2012
Decided: February 25, 2013
Before TRAXLER, Chief Judge, and
GREGORY and DAVIS, Circuit Judges.
Reversed and vacated by published opinion. Judge Gregory
wrote the opinion, in which Judge Davis joined. Chief Judge
Traxler wrote a separate opinion concurring in the result.
COUNSEL
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Richard Lee Edwards, OFFICE OF
2 UNITED STATES v. BLACK
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Henderson Hill, Executive
Director, Elizabeth A. Blackwood, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Charlotte, North Carolina, for Appellee.
OPINION
GREGORY, Circuit Judge:
In Terry v. Ohio, Chief Justice Earl Warren recognized that
police officers need discretion to perform their investigative
duties. 392 U.S. 1 (1968). Since Terry, this discretion has
been judicially broadened, giving police wide latitude to ful-
fill their functions. In some circumstances, however, police
abuse this discretion, and we must remind law enforcement
that the Fourth Amendment protects against unreasonable
searches and seizures. Because in this case, we find the police
disregarded the basic tenets of the Fourth Amendment, we
reverse.
I.
In reviewing the denial of a motion to suppress, we view
the facts in the light most favorable to the Government, as the
party prevailing below. United States v. Jamison, 509 F.3d
623, 628 (4th Cir. 2007). At approximately 10:00 p.m. on
June 15, 2010, uniformed Officers Matthew Zastrow and
Shane Strayer of the Charlotte-Mecklenburg Police Depart-
ment were in a marked police vehicle, patrolling the Eastway
Division of Charlotte, North Carolina. Certain apartment
complexes in the Eastway Division are known for armed rob-
beries and other violent crimes.
As the officers patrolled, they observed a vehicle parked at
the pump of a gas station. Though neither officer saw the
UNITED STATES v. BLACK 3
vehicle pull into the gas station, during the approximately
three-minute observation, the officers observed that the driver
and sole occupant of the vehicle did not leave the car, pump
gas, or go into the convenience store. Officer Zastrow
believed this type of behavior was "unusual" and indicative of
drug transactions. On this basis, the officers ran the license
tag of the vehicle, which retrieved no outstanding traffic vio-
lations, and followed the vehicle as it traveled to a nearby
parking lot located in between two apartment complexes.
At the parking lot, the officers observed the driver of the
vehicle, later identified as Dior Troupe, park his vehicle and
walk toward a group of five men in a semi-circle who were
speaking and laughing with each other. Four of the men were
standing, and an African-American male, later identified as
Appellant Nathaniel Black, was sitting at the left-end of the
semi-circle. The six men saw the police vehicle but did not
react. Neither officer observed the men engaging in any crimi-
nal activity.
Officer Zastrow drove out of view and contacted other
police units for assistance because he and Officer Strayer
wanted to make "voluntary contact" with the men, and the
officers believed it was unwise to do so if they were outnum-
bered. Officers Butler and Lang were in the immediate area
and joined Officers Zastrow and Strayer in an adjacent park-
ing lot. The four officers returned in their marked police vehi-
cles to the same parking lot where they saw the men in the
semi-circle. Three other officers, Fusco, Conner, and Harris,
were also nearby in another apartment complex responding to
a different call and later joined the first four officers.
At about 10:15 p.m., the four uniformed officers exited
their marked patrol vehicles and started walking towards the
men. Officers Zastrow and Strayer recognized one of the men
in the group as Charles Gates. They had spoken with Gates
two weeks prior to this incident about his residence in one of
the nearby apartments. Officer Zastrow was aware of Gates’
4 UNITED STATES v. BLACK
prior felony drug arrests. Officer Strayer had previously
arrested Gates for driving while intoxicated and drug
offenses, and also knew Gates had been tased once by another
officer. Neither officer knew whether Gates’ prior arrests
resulted in convictions.
As the officers approached the men, Troupe, who was
closer to the officers, motioned to the officers with his hands
indicating that he had a firearm in a holster on his hip, in plain
view. Officer Strayer seized Troupe’s firearm, obtained
Troupe’s driver’s license, and secured the firearm in a patrol
vehicle. Officer Strayer stated that although it is legal in
North Carolina for a person to openly carry a firearm, in his
years in the Eastway Division, he had never seen anyone do
it.
Officer Zastrow testified he had been trained to operate on
what he called the "Rule of Two," that is, if the police find
one firearm, there will "most likely" be another firearm in the
immediate area. Officer Strayer testified he had also been
trained on what he referred to as the "one-plus" rule, that
where there is one gun, there usually is another gun. Officer
Strayer acknowledged that this "rule" was not always accurate
as there are instances where a second gun is not always recov-
ered.
After securing Troupe’s gun in the police vehicle, Officer
Strayer frisked Troupe, and proceeded to frisk the other men
in the group. By this time, Officers Fusco and Conner had
arrived at the scene, and a total of six officers were present.1
Officers Fusco and Conner stood at a distance of about 10 to
15 feet from the men to ensure no other individuals walked
up to the locale of the police encounter with the men.
It is unclear when the seventh officer, Officer Harris, arrived at the
1
scene.
UNITED STATES v. BLACK 5
While Officer Strayer was securing Troupe’s gun, Officer
Zastrow introduced himself to the men. He asked if any of the
men lived in the apartments or if they were visiting. At that
point, Appellant Black, who was still sitting, offered Officer
Zastrow his North Carolina identification card. To Officer
Zastrow, it was "unusual for someone to volunteer an ID" and
the "remaining individuals in the group were argumentative
and did not give any information, so it stood out that one vol-
unteered an ID immediately." From his ID, Officer Zastrow
believed that Black lived outside the Eastway Division. Black
confirmed this belief by informing Officer Zastrow that he
was visiting some friends in the area.
Officer Zastrow did not return Black’s ID, instead, he
pinned it to his uniform, and continued to obtain identification
information from the other individuals. Officer Zastrow testi-
fied that the other individuals did not have physical identifica-
tion so he wrote their names, addresses, and birthdates in a
notebook.2 Officer Zastrow described Black’s behavior during
this encounter as "extremely cooperative."
By this time, Officer Strayer had frisked Troupe and pro-
ceeded to frisk Nicolas Moses, who was standing at the right-
end of the semi-circle. While Officer Strayer was frisking
Moses, Officer Zastrow noticed that Black became "fidgety,"
sat forward in his chair, and "began looking left and right." In
Officer Zastrow’s training and experience, looking left and
right is a "cue" that the individual is looking to flee. To Offi-
cer Fusco, who also observed this behavior, it indicates that
the individual seeks a path to escape.
Black stood up, said he was going home, and began walk-
ing towards the apartments. Officer Zastrow, who was
approximately five feet from Black, walked in front of Black
2
We note that Officer Zastrow’s testimony that the other men had no
physical identification is contrary to Officer Strayer’s testimony that he
obtained physical ID from Troupe and Moses.
6 UNITED STATES v. BLACK
and told him that he was not free to leave and he should sit
down. In response, Black said "I can’t go home?" or "I can’t
leave?" and continued walking away.
Officer Zastrow then grabbed Black’s left bicep with his
left hand. According to Officer Zastrow, he could feel Black’s
"extremely fast" pulse through Black’s t-shirt, which he
believed was a sign of nervousness. Black pulled away from
Officer Zastrow and began running towards an apartment
building. Officers Zastrow and Fusco told Black to stop, and
when he refused, they chased him. Officer Fusco grabbed
Black from behind and tackled him to the ground. Officer
Zastrow grabbed Black’s wrist to try to handcuff him. As he
did so, Officer Zastrow felt a metal object underneath Black’s
hand and clothing, which Officer Zastrow immediately recog-
nized as a firearm. Officer Zastrow yelled "gun," and held on
to Black’s hand until the firearm fell to the ground. Officer
Zastrow placed Black in handcuffs and arrested him.
Black was charged in a one-count indictment for possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Black moved to suppress the firearm on the basis
that it was the fruit of the unlawful seizure of his person. At
a hearing on the motion to suppress, Black argued that he was
unlawfully seized when he was told he could not leave, and
the seizure was not supported by reasonable articulable suspi-
cion. The Government relied on California v. Hodari D., 499
U.S. 621 (1991), to argue that until Black’s bicep was
grabbed, he was not seized for Fourth Amendment purposes,
and his seizure was supported by reasonable suspicion. The
district court agreed with the Government and denied the
motion.
Subsequently, Black entered a conditional plea of guilty
and reserved his right to appeal the denial of his suppression
motion. See Fed. R. Crim. P. 11(a)(2). At sentencing, the dis-
trict court found that with a total offense level of 31, and a
criminal history category of IV, Black’s advisory guideline
UNITED STATES v. BLACK 7
range was 151 to 188 months. However, because Black was
subject to a statutory minimum sentence of 180 months, see
18 U.S.C. § 924(e), the court sentenced Black to 180 months’
imprisonment and three years of supervised release.
Black now appeals the denial of his motion to suppress, and
we have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review a district court’s factual findings in a motion to
suppress for clear error, and the legal determinations de novo.
United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008).
III.
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. "The Fourth Amend-
ment does not proscribe all contact between the police and cit-
izens, but is designed ‘to prevent arbitrary and oppressive
interference by enforcement officials with the privacy and
personal security of individuals.’" I.N.S. v. Delgado, 466 U.S.
210, 215 (1984) (quoting United States v. Martinez–Fuerte,
428 U.S. 543, 554 (1976)).
Although brief encounters between police and citizens
require no objective justification, United States v. Weaver,
282 F.3d 302, 309 (4th Cir. 1968), it is clearly established that
an investigatory detention of a citizen by an officer must be
supported by reasonable articulable suspicion that the individ-
ual is engaged in criminal activity. Terry, 392 U.S. at 21. In
the case before us, we first consider when Black was "seized"
for purposes of the Fourth Amendment, and then consider
whether the seizure comports with the reasonable suspicion
standard set forth in Terry.
8 UNITED STATES v. BLACK
A.
A person is "seized" within the meaning of the Fourth
Amendment if, "‘in view of all [of] the circumstances sur-
rounding the incident, a reasonable person would have
believed that he was not free to leave.’" United States v. Gray,
883 F.2d 320, 322 (4th Cir. 1989) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)).3 Specific factors to
consider in determining whether a reasonable person would
feel free to leave include: (i) the number of police officers
present at the scene; (ii) whether the police officers were in
uniform; (iii) whether the police officers displayed their
weapons; (iv) whether they "touched the defendant or made
any attempt to physically block his departure or restrain his
movement"; (v) "the use of language or tone of voice indicat-
ing that compliance with the officer’s request might be com-
pelled"; (vi) whether the officers informed the defendant that
they suspected him of "illegal activity rather than treating the
encounter as ‘routine’ in nature"; and (vii) "whether, if the
officer requested from the defendant . . . some form of official
identification, the officer promptly returned it." Mendenhall,
446 U.S. at 554; Gray, 883 F.2d at 322-23. We have noted
The Government argues that in determining whether a seizure
3
occurred, we should apply the "force or submission" standard set forth in
Hodari D., where the Supreme Court stated, "[a]n arrest requires either
physical force . . . or, where that is absent, submission to the assertion of
authority." 499 U.S. at 626 (emphasis omitted). The Government intends
that in applying Hodari D., we would reach the conclusion that Black was
seized only when Officer Zastrow exerted physical force by grabbing
Black’s bicep. In Brendlin v. California, the Supreme Court clarified
Hodari D., stating that "[w]hen the actions of the police do not show an
unambiguous intent to restrain or when an individual’s submission to a
show of governmental authority takes the form of passive acquiescence,"
Hodari D.’s force or submission test yields to Mendenhall’s free to leave,
totality of the circumstances test. 551 U.S. 249, 255 (2007). Here, we find
that at the time the officers arrived and seized Troupe’s gun, their actions
did not convey an unambiguous intent to restrain Black, and Black’s sub-
mission to the officers’ authority was in essence passive acquiescence, and
thus, Mendenhall, as opposed to Hodari D. applies.
UNITED STATES v. BLACK 9
that though not dispositive, "the retention of a citizen’s identi-
fication or other personal property or effects is highly mate-
rial under the totality of the circumstances analysis." Weaver,
282 F.3d at 310 (emphasis added).
Considering the totality of the following circumstances of
this case, it is clear that when Officer Zastrow expressly told
Black he could not leave, Black was already seized for pur-
poses of the Fourth Amendment. First is the collective show
of authority by the uniformed police officers and their marked
police vehicles. The citizens observed a marked police vehicle
drive to the parking lot, and then drive out of view. The police
vehicle returned along with another marked police vehicle.
Four uniformed officers approached the men, a number that
quickly increased to six uniformed officers, and then seven.
At least two of the officers were performing perimeter duties,
ensuring that no other individuals interrupted the police inter-
action, and preventing the men from leaving the vicinity. Sec-
ond, Officer Strayer had obtained Troupe’s gun and secured
it in his police vehicle, indicating that at the very least,
Troupe was not free to leave. See Weaver, 282 F.3d at 310
(retention of personal property is highly material). Third,
Officer Strayer had frisked Troupe and was frisking Moses;
a reliable indicator that Officer Strayer would proceed to frisk
the other men, and that the men were not free to leave until
such action was completed. Fourth, and highly material, is the
retention of Black’s ID by Officer Zastrow, while Officer
Strayer frisked other men in the group. See id.
These factors persuade us that long before he was told not
to leave, Black was seized for purposes of the Fourth Amend-
ment. Specifically, we hold that in view of all these circum-
stances, Black was seized at the point when Officer Zastrow
pinned Black’s ID to his uniform, while Officer Strayer
frisked the men in the group. The verbal directive from the
officers not to leave was not the initiation of the seizure, but
rather an affirmation that Black was not free to leave. Black’s
subsequent decision to leave does not negate the finding that
10 UNITED STATES v. BLACK
a reasonable person in Black’s circumstances would not feel
free to leave. Instead, Black’s decision to leave was an effort
to terminate an illegal seizure.
We disagree with the Government’s argument that all of
Black’s interactions with the police before his bicep was
grabbed were consensual and do not implicate the Fourth
Amendment. Though we do not reach this issue, we are
doubtful that this encounter was consensual at its inception as
the facts of this case are similar to our recent decision in
United States v. Jones, 678 F.3d 293, 299, 301-04 (4th Cir.
2012), where we held that the defendant was seized prior to
the beginning of the verbal interaction. Even assuming the
encounter here was consensual at its inception, the increasing
show of authority, immediate seizure of Troupe’s gun, and
frisk of the men in the group quickly changed the encounter
to an investigatory detention. Because we hold that Black was
seized for purposes of the Fourth Amendment when his ID
was retained while his companions were frisked, we need not
determine whether he was seized at any point prior to this.
B.
We next consider whether Black’s seizure was reasonable.
To be lawful, a Terry stop "must be supported at least by a
reasonable and articulable suspicion that the person seized is
engaged in criminal activity." Reid v. Georgia, 448 U.S. 438,
440 (1980). The level of suspicion must be a "particularized
and objective basis for suspecting the particular person
stopped of criminal activity." United States v. Griffin, 589
F.3d 148, 152 (4th Cir. 2009). As such, "the officer must be
able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion." Terry, 392 U.S. at 21.4 There is no
reasonable suspicion merely by association.
4
We believe the collective-knowledge doctrine issue raised in this case
is fully addressed by our decision in United States v. Massenburg, 654
F.3d 480, 492 (4th Cir. 2011), and see no need to further address it.
UNITED STATES v. BLACK 11
Here, the totality of the factors outlined by the district
court—an individual’s presence at a gas station; prior arrest
history of another individual; lawful possession and display of
a firearm by another; Black’s submission of his ID showing
an out-of-district address to Officer Zastrow, all of which
occurred in a high crime area at night—fails to support the
conclusion that Officer Zastrow had reasonable suspicion to
detain Black.5
At least four times in 2011, we admonished against the
Government’s misuse of innocent facts as indicia of suspi-
cious activity. See United States v. Powell, 666 F.3d 180 (4th
Cir. 2011); Massenburg, 654 F.3d 480; United States v.
Digiovanni, 650 F.3d 498 (4th Cir. 2011); and United States
v. Foster, 634 F.3d 243 (4th Cir. 2011). Although factors
"susceptible of innocent explanation," when taken together,
may "form a particularized and objective basis" for reasonable
suspicion for a Terry stop, United States v. Arvizu, 534 U.S.
266, 277-78 (2002), this is not such a case. Instead, we
encounter yet another situation where the Government
attempts to meet its Terry burden by patching together a set
of innocent, suspicion-free facts, which cannot rationally be
relied on to establish reasonable suspicion.
First, Officer Zastrow’s suspicion that a lone driver at a gas
pump who he did not observe drive into the gas station is
engaged in drug trafficking borders on absurd.6 Other than
Troupe, there was no one else in the vehicle, and it defies rea-
son to believe that Troupe was engaged in drug trafficking—
5
The other factors the district court recited as establishing reasonable
suspicion—that Black looked nervous as his companions were frisked;
walked away from the scene after he was told not to; left his ID behind;
and said he was going home but walked towards the apartment complexes
he did not live in—are irrelevant because they occurred after Black was
seized.
6
Both parties are in accord, and we agree, that the district court erred
in finding that the officers saw the vehicle pull into the gas station. This
finding is unsupported by the officers’ own testimonies.
12 UNITED STATES v. BLACK
an act that by definition involves transmitting drugs to another
person. Moreover, by Officer Zastrow’s own admission, he
failed to include this gas station observation in his incident
report on Black’s arrest because he viewed them as separate
incidents. In short, concluding that Troupe’s presence in his
vehicle at a gas station is suspicious is unreasonable.
Second, Gates’ prior arrest history cannot be a logical basis
for a reasonable, particularized suspicion as to Black. Without
more, Gates’ prior arrest history in itself is insufficient to sup-
port reasonable suspicion as to Gates, much less Black. See
Powell, 666 F.3d at 188 ("[A] prior criminal record is not,
standing alone, sufficient to create reasonable suspicion."
(citation omitted)). Moreover, we "ha[ve] repeatedly empha-
sized that to be reasonable under the Fourth Amendment, a
search ordinarily must be based on individualized suspicion of
wrongdoing." DesRoches v. Caprio, 156 F.3d 571, 574 (4th
Cir. 1998) (quotation marks and alterations omitted) (empha-
sis added). In other words, the suspicious facts must be spe-
cific and particular to the individual seized. Exceptions to the
individualized suspicion requirement "have been upheld only
in ‘certain limited circumstances,’ where the search is justi-
fied by ‘special needs’"—that is, concerns other than crime
detection—and must be justified by balancing the individual’s
privacy expectations against the government interests. Id.(quoting Chandler v. Miller, 520 U.S. 305, 308, 313 (1997));
see Treasury Employees v. Von Raab, 489 U.S. 656, 665-66
(1989). Here, the Government has not identified any substan-
tial interests that override Black’s interest in privacy or that
suppress the normal requirement of individualized suspicion.
Third, it is undisputed that under the laws of North Caro-
lina, which permit its residents to openly carry firearms, see
generally N.C. Gen. Stat. §§ 14-415.10 to 14-415.23,
Troupe’s gun was legally possessed and displayed. The Gov-
ernment contends that because other laws prevent convicted
felons from possessing guns, the officers could not know
whether Troupe was lawfully in possession of the gun until
UNITED STATES v. BLACK 13
they performed a records check. Additionally, the Govern-
ment avers it would be "foolhardy" for the officers to "go
about their business while allowing a stranger in their midst
to possess a firearm." We are not persuaded.
Being a felon in possession of a firearm is not the default
status. More importantly, where a state permits individuals to
openly carry firearms, the exercise of this right, without more,
cannot justify an investigatory detention. Permitting such a
justification would eviscerate Fourth Amendment protections
for lawfully armed individuals in those states. United States
v. King, 990 F.2d 1552, 1559 (10th Cir. 1993). Here, Troupe’s
lawful display of his lawfully possessed firearm cannot be the
justification for Troupe’s detention. See St. John v. McColley,
653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding no rea-
sonable suspicion where the plaintiff arrived at a movie the-
ater openly carrying a holstered handgun, an act which is
legal in the State of New Mexico.) That the officer had never
seen anyone in this particular division openly carry a weapon
also fails to justify reasonable suspicion. From our under-
standing of the laws of North Carolina, its laws apply uni-
formly and without exception in every single division, and
every part of the state. Thus, the officer’s observation is irra-
tional and fails to give rise to reasonable suspicion. To hold
otherwise would be to give the judicial imprimatur to the
dichotomy in the intrusion of constitutional protections.
Additionally, even if the officers were justified in detaining
Troupe for exercising his constitutional right to bear arms,
reasonable suspicion as to Troupe does not amount to, and is
not particularized as to Black, and we refuse to find reason-
able suspicion merely by association.
Fourth, with respect to the officers’ "Rule of Two" or "one-
plus rule," we would abdicate our judicial role if we took law
enforcement-created rules as sufficient to establish reasonable
suspicion. "The essential purpose of the proscriptions in the
Fourth Amendment is to impose a standard of ‘reasonable-
14 UNITED STATES v. BLACK
ness’ upon the exercise of discretion by government officials,
including law enforcement agents, in order to safeguard the
privacy and security of individuals against arbitrary inva-
sions." Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)
(citation and quotation marks omitted). As such, we must con-
sider whether, in applying law enforcement rules, there are
safeguards "to assure that the individual’s reasonable expecta-
tion of privacy is not subject to the discretion of the official
in the field." Id. at 655 (citation and quotation marks omitted).
Here, the practical implication of applying the so-called
"Rule of Two" is that anyone in proximity to an individual
with a gun is involved in criminal activity. Such a rule sub-
jects to seizure or search anyone who actively or passively
associates with a gun carrier. The seizure has no connection
with the individual seized, the activity they are involved in,
their mannerisms, or their suspiciousness; rather, the seizure
is a mere happenstance of geography. The absurdity of this
rule may be gleaned from scenarios where an individual car-
rying a firearm walks into a monastery subjecting to seizure
all of the nuns and priests, or an ice-cream shop subjecting all
of the patrons to a seizure. Or could police officers apply this
rule to seize all individuals at a shooting range or on a hunting
trip? The scenarios abound. As there are no safeguards against
the unlawful use of discretion by the officer applying such an
arbitrary and boundless rule, it cannot be a basis for reason-
able suspicion of criminal activity.
Fifth, it is counterintuitive that Black provided a justifica-
tion for reasonable suspicion by volunteering his ID to the
officer. The Government characterizes Black’s behavior as
"overly" cooperative and cites cases outside this Circuit for
the proposition that "a surprisingly high level of cooperation"
though not dispositive, is a factor to consider for individual-
ized suspicion. See United States v. Bravo, 295 F.3d 1002,
1007 (9th Cir. 2002); United States v. Ozbirn, 189 F.3d 1194,
1200 n.4 (10th Cir. 1999). The record indicates that three of
the six men provided identification to the officers, thus,
UNITED STATES v. BLACK 15
Black’s action could hardly be characterized as overly cooper-
ative. Additionally, we have noted that this type of argu-
ment—that cooperation is a justification for reasonable
suspicion—actually places a defendant in a worse position
than if he had simply refused to cooperate altogether because
the Supreme Court has "‘consistently held that a refusal to
cooperate, without more, does not furnish the minimal level
of objective justification needed for a detention or seizure.’"
Powell, 666 F.3d at 189 n.10 (quoting Florida v. Bostick, 501
U.S. 429, 437 (1991)). In certain communities that have been
subject to overbearing or harassing police conduct, cautious
parents may counsel their children to be respective, compli-
ant, and accommodating to police officers, to do everything
officers instruct them to do. If police officers can justify
unreasonable seizures on a citizen’s acquiescence, individuals
would have no Fourth Amendment protections unless they
interact with officers with the perfect amount of graceful dis-
dain.
Likewise, there is nothing suspicious about the fact that
Black’s ID revealed he lived outside the district. Black cor-
rectly informed the officers that he was visiting friends. If
Black was untruthful or provided a false identification, then
the officers may have had some minimal, but not dispositive,
basis for reasonable suspicion.
The pertinent facts remaining in the reasonable suspicion
analysis are that the men were in a high crime area at night.
These facts, even when coupled with the officers’ irrational
assumptions based on innocent facts, fail to support the con-
clusion that Officer Zastrow had reasonable suspicion that
Black was engaging in criminal activity. See Illinois v. War-
dlow, 528 U.S. 119, 124 (2000) (though a relevant consider-
ation, "presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable, particu-
larized suspicion that the person is committing a crime"). In
our present society, the demographics of those who reside in
high crime neighborhoods often consist of racial minorities
16 UNITED STATES v. BLACK
and individuals disadvantaged by their social and economic
circumstances. To conclude that mere presence in a high
crime area at night is sufficient justification for detention by
law enforcement is to accept carte blanche the implicit asser-
tion that Fourth Amendment protections are reserved only for
a certain race or class of people. We denounce such an asser-
tion.
IV.
The facts of this case give us cause to pause and ponder the
slow systematic erosion of Fourth Amendment protections for
a certain demographic. In the words of Dr. Martin Luther
King, Jr., we are reminded that "we are tied together in a sin-
gle garment of destiny, caught in an inescapable network of
mutuality," that our individual freedom is inextricably bound
to the freedom of others. Thus, we must ensure that the Fourth
Amendment rights of all individuals are protected.
Viewed in their totality, all the factors recited by the Gov-
ernment fail to amount to a reasonable suspicion justifying
Black’s seizure, and the district court erred in denying the
motion to suppress. Therefore, we reverse the district court’s
ruling, and vacate Black’s conviction and sentence.
REVERSED AND VACATED
TRAXLER, Chief Judge, concurring:
I concur in the result reached by the majority.