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United States v. Foster

United States Court of Appeals, Fourth Circuit

May 24, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
ZACHARY M. FOSTER, Defendant - Appellant

         Argued January 28, 2016.

          Appeal 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 Judge.


         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.

         Before 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.


         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.



         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. 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 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.


         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.

         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.


          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, 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.

          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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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 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, 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.

          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. ...

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