©2018 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)

On May 24, 2016, the Fourth Circuit Court of Appeals decided the United States v. Foster[i], in which the court discussed whether officers had sufficient reasonable suspicion to detain a subject found in the area of a gunshot call. The relevant facts of Foster, taken directly from the case, are as follows:

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. 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. 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.” 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.” Burke thought Foster might “possibly” be under the influence of drugs “because of how unresponsive he was.”

Next, Burke asked Foster if he had any weapons. Foster then “began to put his right hand in his right front pocket.” 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. 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.[ii]

Foster was indicted under federal law for being a felon in possession of a firearm. Foster filed a motion to suppress and the district court denied the motion. Foster entered a conditional guilty plea with the right to appeal the denial of the motion to suppress. He then filed a timely appeal with the Fourth Circuit Court of Appeals.

On appeal, the court first discussed the general issues it must examine and the legal principles that pertain to each. First, the court will examine whether the suspect was stopped, within the meaning of the Fourth Amendment. The court stated

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) ).[iii] [emphasis added]

If the suspect was seized under the Fourth Amendment, the court must then examine whether the stop was supported by reasonable suspicion. The court stated

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 suspicionSee 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). Accordingly, “the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.” Id . at 249.[iv] [emphasis added]

Lastly, if the stop was supported by reasonable suspicion, the court must examine if the subsequent frisk complied with the Fourth Amendment. For a frisk to comply with the Fourth Amendment, the officer must have reasonable suspicion that the suspect is “armed and dangerous.” The court stated

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, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ); see also Terry , 392 U.S. at 24, 88 S.Ct. 1868.[v] [emphasis added]

On appeal, Foster’s first argument was that he was seized before he reached for his right pocket (the “security check”). His second argument was that, even if he was not seized prior to the “security check,” that still did not provide reasonable suspicion to detain and frisk him.

Regarding Foster’s first argument, this is “fact based” and the district court held, at the motion to suppress, that Foster was not seized prior to the “security check.” The court of appeals can only reverse this finding of fact if the facts show that the district court committed “clear error” in its decision. After a review, the court of appeals found sufficient facts to support the district court’s ruling and no clear error. As such, Foster was not seized prior to the “security check.”

The court then set out to examine Foster’s second argument, particularly whether reasonable suspicion was present to justify his detention. This included whether the “security check” Foster conducted (reaching for his pocket) when the officers asked him if he had a gun helped provide reasonable suspicion.

The court noted that the district court relied on five (5) facts in holding that reasonable suspicion was present to detain and frisk Foster. The court of appeals set out to examine each of those facts and associated legal principles. First, the court considered the 911 call that reported the gunshot. The court stated

A ‘bare-boned,’ anonymous tip, standing alone, [is] insufficient to justify a Terrystop.” United States v. Elston , 479 F.3d 314, 317 (4th Cir. 2007) (quoting Florida v. J.L. , 529 U.S. 266, 273–74, 120 S.Ct. 1375, 146 L.Ed.2d 254 (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, 120 S.Ct. 1375 (quoting Alabama v. White , 496 U.S. 325, 327, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ); Massenburg , 654 F.3d at 486.[vi]

The court noted that the 911, standing alone, fell “far short” of supplying reasonable suspicion to believe that Foster was involved in criminal activity. Anonymous tips, standing alone, with no corroboration or indications of reliability, do not provide reasonable suspicion to justify a stop.

The second fact considered by the court was that, shortly after the dispatch, Foster was the only person they encountered in the area. The officers located Foster within fifteen (15) minutes of receiving the dispatch. The court noted that, while it is a valid consideration, that fact alone, even considering the 911 gunshot dispatch, this fact does not provide reasonable suspicion to detain Foster.

The third fact considered by the court was that the stop occurred late at night, in a high crime area of the city. The court stated

Both the high-crime reputation of an area and the late hour of a police encounter can contribute to a finding of reasonable suspicionSee, e.g. , Slocumb , 804 F.3d at 682 ; George , 732 F.3d at 300.[vii] [emphasis added]

The court stated that, even combined with the factors previously discussed, the fact that they were located in a high-crime area did not provide sufficient reasonable suspicion to justify Foster’s detention.

The fourth fact considered was that Foster did not respond to the officer’s questions and avoided eye contact. Regarding Foster’s silence, the court stated

With respect to Foster’s silence, the Supreme Court has said that “when an officer, without reasonable suspicion or 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, 120 S.Ct. 673, 145 L.Ed.2d 570 (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, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ).

Thus, since Foster was not required to speak to the police in the initial consensual encounter, the court did not find his silence significant.

The court also considered his lack of eye contact. The court stated

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).[viii] [emphasis added]

The court noted that it is hesitant to afford a lack of eye contact too much weight in the reasonable suspicion analysis because of its ambiguity and the ability to articulate it to either support or not support reasonable suspicion. Thus, considering the totality of the four facts discussed above, the court still found that reasonable suspicion was not present.

The fifth, and final fact the court considered was the “security check,” which referred to when Foster reached for his right pocket when officers asked him if he had a weapon. The court stated

A security check by a suspect can contribute to a finding of reasonable suspicion that the suspect was engaged in criminal activitySee 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 alsoe.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”).[ix] [emphasis added]

Foster argued that reaching for a pocket is also ambiguous because people keep various articles and innocent items in pockets. Regarding the possible innocent explanations for reaching for a pocket, the court stated

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 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 ….”).[x] [emphasis added]

Thus, the fact that there may be innocent explanations for Foster reaching for his pocket when the officers asked about weapons, officers are not require to ignore that behavior.

Foster also argued that West Virginia law allows a person to carry weapons, either open or concealed. However, that argument was not persuasive because Foster was detained because officers were investigating a gunshot dispatch, not merely a person carrying a firearm.

In light of all five facts, including the “security check,” the court of appeals held that there was reasonable suspicion to justify Foster’s detention and to justify the frisk, as this incident centered around a gunshot and a weapon, thus the “armed and dangerous” requirement for a frisk was met.

Therefore, the court of appeals affirmed the denial of the motion to suppress.



[i]  824 F.3d 84 (4th Cir. 2016)

[ii] Id. at 87

[iii] Id. at 88

[iv] Id. at 89

[v] Id.

[vi] Id. at 92

[vii] Id.

[viii] Id. at 93

[ix] Id. at 94

[x] Id.

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