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.
2

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.
3

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)
4

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.
5

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 Terry3 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).
6

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 
7

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). 
8

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. 
9

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-andfrisk 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 
10

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 reasonablesuspicion 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 
11

waiver or forfeiture on appeal. See United States v. PalominoCoronado, 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 
12

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). 
13

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 
14

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 
15

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. 
16

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 
17

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 
18

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-
19

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 “airpatted himself down, . . . trying to show he didn’t have 

anything”).
20

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 
21

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. 
22

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 
23

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,’ 
24

‘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, 
25

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).
26

[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. 
27

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 
28

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 
29

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.
30

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. 
31

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.