January 28, 2016.
from the United States District Court for the Northern
District of West Virginia, at Wheeling.
(5:14-cr-00046-JPB-JES-1). John Preston Bailey, District
S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling,
West Virginia, for Appellant.
Noel Tighe, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.
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.
WILKINSON, DIAZ, and THACKER, Circuit Judges. Judge Diaz
wrote the opinion, in which Judge Wilkinson and Judge Thacker
joined. Judge Wilkinson wrote a separate concurring opinion.
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
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. J.A. 68. Officers Eric Burke and
Rachel Boyer were dispatched to the scene.
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. 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.
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.
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. Burke then told 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.
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.
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.
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 frisk is
officer safety, this Court finds the defendant's hand
movements to be especially significant." J.A. 145.
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.
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
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, 113 S.Ct. 1770, 123
L.Ed.2d 508 (1993). Because the government prevailed below,
" [w]e construe the evidence in the light most favorable
to [it]." Green, 740 F.3d at 277.
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,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
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 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.
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)).
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, 122 S.Ct. 744, 151 L.Ed.2d
740 (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 Accordingly,
" the Government cannot rely upon post hoc
rationalizations to validate those seizures that happen to
turn up contraband." Id. at 249.
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. ...