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,

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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).

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[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.

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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

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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

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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.

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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.

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