Lead Opinion
Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge WILKINSON and Judge THACKER joined. Judge WILKINSON wrote a separate concurring opinion.
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.
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.
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.
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*88 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 “[bjecause the underlying principle for a Terry
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.
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,
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,
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,
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
To determine if the officer had reasonable suspicion, courts look to “the totality of the circumstances.” Slocumb,
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,
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.
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.
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,
“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,
A district court commits clear error “when it makes findings ‘without properly taking into account substantial evidence to the contrary.’ ” United States v. Francis,
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 officer.” J.A. 139 (quoting Massen-burg,
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.
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,
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, “Mas-senburg 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,
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,
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 Mas-senburg. 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 probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.” Illinois v. Wardlow,
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,
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-down search.”
Here, while Foster’s failure to make eye contact with the police is not irrelevant, George,
Based on the factors discussed thus far, this case is not meaningfully distinguishable from Massenburg. Accordingly, we
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,
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 incapable of any innocent interpretation.” United States v. Moore,
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.
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,
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
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 [them] shoulders and allow a crime to occur or a [possible] criminal to escape.” Id. at 1106 (quoting Adams v. Williams,
Our decision in United States v. Sims further supports finding reasonable suspicion in this case.
The suspect argued that the officer lacked reasonable suspicion under Florida v. J.L.,
We found the facts of Sims distinguishable from J.L. because the Sims defendant
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 [Foster] was the man of whom [they] had been warned.” Id. This was enough to justify the ■ investigatory stop of Foster.
III.
For the reasons given, we affirm the district court’s judgment.
AFFIRMED
Notes
. 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.
. Burke learned during his training that a suspect performing a security check presents a potential danger to police officers. Specifically, Burke testified about having 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.
. Terry v. Ohio,
. See United States v. Caporale,
. 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 Teiry stop is irrelevant. Whren v. United States,
. 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.
. 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.”
. 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—5 8(a)(1) (2014), or “disc-harg[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.
. 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,
. 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 Teny stop justified.
Concurrence Opinion
concurring:
Poor Terry v. Ohio,
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
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.”
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.”
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,
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,