United States v. Zachary Foster, 2016 U.S. App. LEXIS 9502

Shortly after a 911 hang-up reporting a gunshot near a jogging trail, Officers Burke and Boyer arrived in the area at ~12:39 a.m.; the neighborhood had a reputation for theft, vandalism, and drug activity.
Burke observed Zachary Foster alone in a closed-business alley several blocks from the reported shot; officers approached and identified they were investigating the reported gunshot.
When asked if he had weapons, Foster reached with his right hand toward his right front pocket; officers ordered his hands out of pockets and Officer Boyer performed a pat-down, recovering three firearms.
Foster was charged under 18 U.S.C. §§ 922(g)(1), 924(a)(2) for being a prohibited person in possession of firearms and moved to suppress the weapons as the product of an unlawful stop-and-frisk.
A magistrate judge recommended suppression; the district court disagreed, crediting the officers’ account that Foster performed a security check and denying suppression; Foster pleaded guilty conditionally and appealed the suppression denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Foster was seized before reaching for his pocket such that the security-check movement cannot be considered in the reasonable-suspicion analysis	Foster: officers told him they would detain/frisk him before he reached, so the reach is not part of pre-seizure facts	Government: district court’s factual findings are plausible and the reach occurred before the seizure; Foster waived a contrary factual theory below	Court: rejected Foster’s alternative version (no clear error in district court findings); considered the reach as part of the pre-seizure facts
Whether officers had reasonable suspicion to stop and frisk Foster	Foster: anonymous 911 tip + being alone at scene + nighttime/high-crime area + silence/avoiding eye contact + possible innocent explanations for the reach are insufficient	Government: totality of circumstances — anonymous 911 report corroborated by finding one person at scene shortly after the call, plus Foster’s pocket reach when asked about weapons — gave reasonable suspicion that he was source of gunfire and possibly armed	Court: affirmed — the security-check movement combined with the call, location/time, and being the only person present created reasonable suspicion to stop and frisk

Terry v. Ohio, 392 U.S. 1 (1968) (establishes investigatory stop and limited frisk standard under reasonable suspicion)
Florida v. J.L., 529 U.S. 266 (2000) (anonymous tip alone cannot justify stop unless corroborated)
United States v. Sims, 296 F.3d 284 (4th Cir. 2002) (anonymous tip plus furtive behavior can supply reasonable suspicion)
United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011) (anonymous, vague tip + mere presence in area insufficient for reasonable suspicion)
United States v. Moore, 817 F.2d 1105 (4th Cir. 1987) (analogous finding of reasonable suspicion where defendant was sole person near alarm at night and conduct suggested connection)
Arizona v. Johnson, 555 U.S. 323 (2009) (frisk requires reasonable suspicion that suspect is armed and dangerous)
United States v. Smith, 396 F.3d 579 (4th Cir. 2005) (totality-of-the-circumstances approach to reasonable suspicion)