PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-5084

NATHANIEL BLACK,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Max O. Cogburn, Jr., District Judge.

(3:10-cr-00206-MOC-1)

Argued: December 7, 2012

Decided: February 25, 2013

Before TRAXLER, Chief Judge, and

GREGORY and DAVIS, Circuit Judges.

Reversed and vacated by published opinion. Judge Gregory

wrote the opinion, in which Judge Davis joined. Chief Judge

Traxler wrote a separate opinion concurring in the result.

COUNSEL

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS

OF WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Richard Lee Edwards, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Henderson Hill, Executive

Director, Elizabeth A. Blackwood, FEDERAL DEFENDERS

OF WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Anne M. Tompkins, United States

Attorney, Charlotte, North Carolina, for Appellee.

OPINION

GREGORY, Circuit Judge:

In Terry v. Ohio, Chief Justice Earl Warren recognized that

police officers need discretion to perform their investigative

duties. 392 U.S. 1 (1968). Since Terry, this discretion has

been judicially broadened, giving police wide latitude to fulfill their functions. In some circumstances, however, police

abuse this discretion, and we must remind law enforcement

that the Fourth Amendment protects against unreasonable

searches and seizures. Because in this case, we find the police

disregarded the basic tenets of the Fourth Amendment, we

reverse.

I.

In reviewing the denial of a motion to suppress, we view

the facts in the light most favorable to the Government, as the

party prevailing below. United States v. Jamison, 509 F.3d

623, 628 (4th Cir. 2007). At approximately 10:00 p.m. on

June 15, 2010, uniformed Officers Matthew Zastrow and

Shane Strayer of the Charlotte-Mecklenburg Police Department were in a marked police vehicle, patrolling the Eastway

Division of Charlotte, North Carolina. Certain apartment

complexes in the Eastway Division are known for armed robberies and other violent crimes.

As the officers patrolled, they observed a vehicle parked at

the pump of a gas station. Though neither officer saw the

2 UNITED STATES v. BLACK
vehicle pull into the gas station, during the approximately

three-minute observation, the officers observed that the driver

and sole occupant of the vehicle did not leave the car, pump

gas, or go into the convenience store. Officer Zastrow

believed this type of behavior was "unusual" and indicative of

drug transactions. On this basis, the officers ran the license

tag of the vehicle, which retrieved no outstanding traffic violations, and followed the vehicle as it traveled to a nearby

parking lot located in between two apartment complexes.

At the parking lot, the officers observed the driver of the

vehicle, later identified as Dior Troupe, park his vehicle and

walk toward a group of five men in a semi-circle who were

speaking and laughing with each other. Four of the men were

standing, and an African-American male, later identified as

Appellant Nathaniel Black, was sitting at the left-end of the

semi-circle. The six men saw the police vehicle but did not

react. Neither officer observed the men engaging in any criminal activity.

Officer Zastrow drove out of view and contacted other

police units for assistance because he and Officer Strayer

wanted to make "voluntary contact" with the men, and the

officers believed it was unwise to do so if they were outnumbered. Officers Butler and Lang were in the immediate area

and joined Officers Zastrow and Strayer in an adjacent parking lot. The four officers returned in their marked police vehicles to the same parking lot where they saw the men in the

semi-circle. Three other officers, Fusco, Conner, and Harris,

were also nearby in another apartment complex responding to

a different call and later joined the first four officers.

At about 10:15 p.m., the four uniformed officers exited

their marked patrol vehicles and started walking towards the

men. Officers Zastrow and Strayer recognized one of the men

in the group as Charles Gates. They had spoken with Gates

two weeks prior to this incident about his residence in one of

the nearby apartments. Officer Zastrow was aware of Gates’

UNITED STATES v. BLACK 3
prior felony drug arrests. Officer Strayer had previously

arrested Gates for driving while intoxicated and drug

offenses, and also knew Gates had been tased once by another

officer. Neither officer knew whether Gates’ prior arrests

resulted in convictions.

As the officers approached the men, Troupe, who was

closer to the officers, motioned to the officers with his hands

indicating that he had a firearm in a holster on his hip, in plain

view. Officer Strayer seized Troupe’s firearm, obtained

Troupe’s driver’s license, and secured the firearm in a patrol

vehicle. Officer Strayer stated that although it is legal in

North Carolina for a person to openly carry a firearm, in his

years in the Eastway Division, he had never seen anyone do

it.

Officer Zastrow testified he had been trained to operate on

what he called the "Rule of Two," that is, if the police find

one firearm, there will "most likely" be another firearm in the

immediate area. Officer Strayer testified he had also been

trained on what he referred to as the "one-plus" rule, that

where there is one gun, there usually is another gun. Officer

Strayer acknowledged that this "rule" was not always accurate

as there are instances where a second gun is not always recovered.

After securing Troupe’s gun in the police vehicle, Officer

Strayer frisked Troupe, and proceeded to frisk the other men

in the group. By this time, Officers Fusco and Conner had

arrived at the scene, and a total of six officers were present.1

Officers Fusco and Conner stood at a distance of about 10 to

15 feet from the men to ensure no other individuals walked

up to the locale of the police encounter with the men.

1

It is unclear when the seventh officer, Officer Harris, arrived at the

scene. 

4 UNITED STATES v. BLACK
While Officer Strayer was securing Troupe’s gun, Officer

Zastrow introduced himself to the men. He asked if any of the

men lived in the apartments or if they were visiting. At that

point, Appellant Black, who was still sitting, offered Officer

Zastrow his North Carolina identification card. To Officer

Zastrow, it was "unusual for someone to volunteer an ID" and

the "remaining individuals in the group were argumentative

and did not give any information, so it stood out that one volunteered an ID immediately." From his ID, Officer Zastrow

believed that Black lived outside the Eastway Division. Black

confirmed this belief by informing Officer Zastrow that he

was visiting some friends in the area.

Officer Zastrow did not return Black’s ID, instead, he

pinned it to his uniform, and continued to obtain identification

information from the other individuals. Officer Zastrow testified that the other individuals did not have physical identification so he wrote their names, addresses, and birthdates in a

notebook.2 Officer Zastrow described Black’s behavior during

this encounter as "extremely cooperative."

By this time, Officer Strayer had frisked Troupe and proceeded to frisk Nicolas Moses, who was standing at the rightend of the semi-circle. While Officer Strayer was frisking

Moses, Officer Zastrow noticed that Black became "fidgety,"

sat forward in his chair, and "began looking left and right." In

Officer Zastrow’s training and experience, looking left and

right is a "cue" that the individual is looking to flee. To Officer Fusco, who also observed this behavior, it indicates that

the individual seeks a path to escape.

Black stood up, said he was going home, and began walking towards the apartments. Officer Zastrow, who was

approximately five feet from Black, walked in front of Black

2We note that Officer Zastrow’s testimony that the other men had no

physical identification is contrary to Officer Strayer’s testimony that he

obtained physical ID from Troupe and Moses. 

UNITED STATES v. BLACK 5
and told him that he was not free to leave and he should sit

down. In response, Black said "I can’t go home?" or "I can’t

leave?" and continued walking away.

Officer Zastrow then grabbed Black’s left bicep with his

left hand. According to Officer Zastrow, he could feel Black’s

"extremely fast" pulse through Black’s t-shirt, which he

believed was a sign of nervousness. Black pulled away from

Officer Zastrow and began running towards an apartment

building. Officers Zastrow and Fusco told Black to stop, and

when he refused, they chased him. Officer Fusco grabbed

Black from behind and tackled him to the ground. Officer

Zastrow grabbed Black’s wrist to try to handcuff him. As he

did so, Officer Zastrow felt a metal object underneath Black’s

hand and clothing, which Officer Zastrow immediately recognized as a firearm. Officer Zastrow yelled "gun," and held on

to Black’s hand until the firearm fell to the ground. Officer

Zastrow placed Black in handcuffs and arrested him.

Black was charged in a one-count indictment for possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Black moved to suppress the firearm on the basis

that it was the fruit of the unlawful seizure of his person. At

a hearing on the motion to suppress, Black argued that he was

unlawfully seized when he was told he could not leave, and

the seizure was not supported by reasonable articulable suspicion. The Government relied on California v. Hodari D., 499

U.S. 621 (1991), to argue that until Black’s bicep was

grabbed, he was not seized for Fourth Amendment purposes,

and his seizure was supported by reasonable suspicion. The

district court agreed with the Government and denied the

motion.

Subsequently, Black entered a conditional plea of guilty

and reserved his right to appeal the denial of his suppression

motion. See Fed. R. Crim. P. 11(a)(2). At sentencing, the district court found that with a total offense level of 31, and a

criminal history category of IV, Black’s advisory guideline

6 UNITED STATES v. BLACK
range was 151 to 188 months. However, because Black was

subject to a statutory minimum sentence of 180 months, see

18 U.S.C. § 924(e), the court sentenced Black to 180 months’

imprisonment and three years of supervised release.

Black now appeals the denial of his motion to suppress, and

we have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review a district court’s factual findings in a motion to

suppress for clear error, and the legal determinations de novo.

United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008).

III.

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. "The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed ‘to prevent arbitrary and oppressive

interference by enforcement officials with the privacy and

personal security of individuals.’" I.N.S. v. Delgado, 466 U.S.

210, 215 (1984) (quoting United States v. Martinez–Fuerte,

428 U.S. 543, 554 (1976)).

Although brief encounters between police and citizens

require no objective justification, United States v. Weaver,

282 F.3d 302, 309 (4th Cir. 1968), it is clearly established that

an investigatory detention of a citizen by an officer must be

supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry, 392 U.S. at 21. In

the case before us, we first consider when Black was "seized"

for purposes of the Fourth Amendment, and then consider

whether the seizure comports with the reasonable suspicion

standard set forth in Terry.

UNITED STATES v. BLACK 7
A.

A person is "seized" within the meaning of the Fourth

Amendment if, "‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave.’" United States v. Gray,

883 F.2d 320, 322 (4th Cir. 1989) (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)).3 Specific factors to

consider in determining whether a reasonable person would

feel free to leave include: (i) the number of police officers

present at the scene; (ii) whether the police officers were in

uniform; (iii) whether the police officers displayed their

weapons; (iv) whether they "touched the defendant or made

any attempt to physically block his departure or restrain his

movement"; (v) "the use of language or tone of voice indicating that compliance with the officer’s request might be compelled"; (vi) whether the officers informed the defendant that

they suspected him of "illegal activity rather than treating the

encounter as ‘routine’ in nature"; and (vii) "whether, if the

officer requested from the defendant . . . some form of official

identification, the officer promptly returned it." Mendenhall,

446 U.S. at 554; Gray, 883 F.2d at 322-23. We have noted

3The Government argues that in determining whether a seizure

occurred, we should apply the "force or submission" standard set forth in

Hodari D., where the Supreme Court stated, "[a]n arrest requires either

physical force . . . or, where that is absent, submission to the assertion of

authority." 499 U.S. at 626 (emphasis omitted). The Government intends

that in applying Hodari D., we would reach the conclusion that Black was

seized only when Officer Zastrow exerted physical force by grabbing

Black’s bicep. In Brendlin v. California, the Supreme Court clarified

Hodari D., stating that "[w]hen the actions of the police do not show an

unambiguous intent to restrain or when an individual’s submission to a

show of governmental authority takes the form of passive acquiescence,"

Hodari D.’s force or submission test yields to Mendenhall’s free to leave,

totality of the circumstances test. 551 U.S. 249, 255 (2007). Here, we find

that at the time the officers arrived and seized Troupe’s gun, their actions

did not convey an unambiguous intent to restrain Black, and Black’s submission to the officers’ authority was in essence passive acquiescence, and

thus, Mendenhall, as opposed to Hodari D. applies. 

8 UNITED STATES v. BLACK
that though not dispositive, "the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis." Weaver,

282 F.3d at 310 (emphasis added).

Considering the totality of the following circumstances of

this case, it is clear that when Officer Zastrow expressly told

Black he could not leave, Black was already seized for purposes of the Fourth Amendment. First is the collective show

of authority by the uniformed police officers and their marked

police vehicles. The citizens observed a marked police vehicle

drive to the parking lot, and then drive out of view. The police

vehicle returned along with another marked police vehicle.

Four uniformed officers approached the men, a number that

quickly increased to six uniformed officers, and then seven.

At least two of the officers were performing perimeter duties,

ensuring that no other individuals interrupted the police interaction, and preventing the men from leaving the vicinity. Second, Officer Strayer had obtained Troupe’s gun and secured

it in his police vehicle, indicating that at the very least,

Troupe was not free to leave. See Weaver, 282 F.3d at 310

(retention of personal property is highly material). Third,

Officer Strayer had frisked Troupe and was frisking Moses;

a reliable indicator that Officer Strayer would proceed to frisk

the other men, and that the men were not free to leave until

such action was completed. Fourth, and highly material, is the

retention of Black’s ID by Officer Zastrow, while Officer

Strayer frisked other men in the group. See id.

These factors persuade us that long before he was told not

to leave, Black was seized for purposes of the Fourth Amendment. Specifically, we hold that in view of all these circumstances, Black was seized at the point when Officer Zastrow

pinned Black’s ID to his uniform, while Officer Strayer

frisked the men in the group. The verbal directive from the

officers not to leave was not the initiation of the seizure, but

rather an affirmation that Black was not free to leave. Black’s

subsequent decision to leave does not negate the finding that

UNITED STATES v. BLACK 9
a reasonable person in Black’s circumstances would not feel

free to leave. Instead, Black’s decision to leave was an effort

to terminate an illegal seizure.

We disagree with the Government’s argument that all of

Black’s interactions with the police before his bicep was

grabbed were consensual and do not implicate the Fourth

Amendment. Though we do not reach this issue, we are

doubtful that this encounter was consensual at its inception as

the facts of this case are similar to our recent decision in

United States v. Jones, 678 F.3d 293, 299, 301-04 (4th Cir.

2012), where we held that the defendant was seized prior to

the beginning of the verbal interaction. Even assuming the

encounter here was consensual at its inception, the increasing

show of authority, immediate seizure of Troupe’s gun, and

frisk of the men in the group quickly changed the encounter

to an investigatory detention. Because we hold that Black was

seized for purposes of the Fourth Amendment when his ID

was retained while his companions were frisked, we need not

determine whether he was seized at any point prior to this.

B.

We next consider whether Black’s seizure was reasonable.

To be lawful, a Terry stop "must be supported at least by a

reasonable and articulable suspicion that the person seized is

engaged in criminal activity." Reid v. Georgia, 448 U.S. 438,

440 (1980). The level of suspicion must be a "particularized

and objective basis for suspecting the particular person

stopped of criminal activity." United States v. Griffin, 589

F.3d 148, 152 (4th Cir. 2009). As such, "the officer must be

able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant that intrusion." Terry, 392 U.S. at 21.4 There is no

reasonable suspicion merely by association.

4We believe the collective-knowledge doctrine issue raised in this case

is fully addressed by our decision in United States v. Massenburg, 654

F.3d 480, 492 (4th Cir. 2011), and see no need to further address it. 

10 UNITED STATES v. BLACK
Here, the totality of the factors outlined by the district

court—an individual’s presence at a gas station; prior arrest

history of another individual; lawful possession and display of

a firearm by another; Black’s submission of his ID showing

an out-of-district address to Officer Zastrow, all of which

occurred in a high crime area at night—fails to support the

conclusion that Officer Zastrow had reasonable suspicion to

detain Black.5

At least four times in 2011, we admonished against the

Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th

Cir. 2011); Massenburg, 654 F.3d 480; United States v.

Digiovanni, 650 F.3d 498 (4th Cir. 2011); and United States

v. Foster, 634 F.3d 243 (4th Cir. 2011). Although factors

"susceptible of innocent explanation," when taken together,

may "form a particularized and objective basis" for reasonable

suspicion for a Terry stop, United States v. Arvizu, 534 U.S.

266, 277-78 (2002), this is not such a case. Instead, we

encounter yet another situation where the Government

attempts to meet its Terry burden by patching together a set

of innocent, suspicion-free facts, which cannot rationally be

relied on to establish reasonable suspicion.

First, Officer Zastrow’s suspicion that a lone driver at a gas

pump who he did not observe drive into the gas station is

engaged in drug trafficking borders on absurd.6 Other than

Troupe, there was no one else in the vehicle, and it defies reason to believe that Troupe was engaged in drug trafficking—

5The other factors the district court recited as establishing reasonable

suspicion—that Black looked nervous as his companions were frisked;

walked away from the scene after he was told not to; left his ID behind;

and said he was going home but walked towards the apartment complexes

he did not live in—are irrelevant because they occurred after Black was

seized. 

6Both parties are in accord, and we agree, that the district court erred

in finding that the officers saw the vehicle pull into the gas station. This

finding is unsupported by the officers’ own testimonies. 

UNITED STATES v. BLACK 11
an act that by definition involves transmitting drugs to another

person. Moreover, by Officer Zastrow’s own admission, he

failed to include this gas station observation in his incident

report on Black’s arrest because he viewed them as separate

incidents. In short, concluding that Troupe’s presence in his

vehicle at a gas station is suspicious is unreasonable.

Second, Gates’ prior arrest history cannot be a logical basis

for a reasonable, particularized suspicion as to Black. Without

more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See

Powell, 666 F.3d at 188 ("[A] prior criminal record is not,

standing alone, sufficient to create reasonable suspicion."

(citation omitted)). Moreover, we "ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a

search ordinarily must be based on individualized suspicion of

wrongdoing." DesRoches v. Caprio, 156 F.3d 571, 574 (4th

Cir. 1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the

individualized suspicion requirement "have been upheld only

in ‘certain limited circumstances,’ where the search is justified by ‘special needs’"—that is, concerns other than crime

detection—and must be justified by balancing the individual’s

privacy expectations against the government interests. Id.

(quoting Chandler v. Miller, 520 U.S. 305, 308, 313 (1997));

see Treasury Employees v. Von Raab, 489 U.S. 656, 665-66

(1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that

suppress the normal requirement of individualized suspicion.

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see

generally N.C. Gen. Stat. §§ 14-415.10 to 14-415.23,

Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted

felons from possessing guns, the officers could not know

whether Troupe was lawfully in possession of the gun until

12 UNITED STATES v. BLACK
they performed a records check. Additionally, the Government avers it would be "foolhardy" for the officers to "go

about their business while allowing a stranger in their midst

to possess a firearm." We are not persuaded.

Being a felon in possession of a firearm is not the default

status. More importantly, where a state permits individuals to

openly carry firearms, the exercise of this right, without more,

cannot justify an investigatory detention. Permitting such a

justification would eviscerate Fourth Amendment protections

for lawfully armed individuals in those states. United States

v. King, 990 F.2d 1552, 1559 (10th Cir. 1993). Here, Troupe’s

lawful display of his lawfully possessed firearm cannot be the

justification for Troupe’s detention. See St. John v. McColley,

653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is

legal in the State of New Mexico.) That the officer had never

seen anyone in this particular division openly carry a weapon

also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and

every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold

otherwise would be to give the judicial imprimatur to the

dichotomy in the intrusion of constitutional protections.

Additionally, even if the officers were justified in detaining

Troupe for exercising his constitutional right to bear arms,

reasonable suspicion as to Troupe does not amount to, and is

not particularized as to Black, and we refuse to find reasonable suspicion merely by association.

Fourth, with respect to the officers’ "Rule of Two" or "oneplus rule," we would abdicate our judicial role if we took law

enforcement-created rules as sufficient to establish reasonable

suspicion. "The essential purpose of the proscriptions in the

Fourth Amendment is to impose a standard of ‘reasonableUNITED STATES v. BLACK 13
ness’ upon the exercise of discretion by government officials,

including law enforcement agents, in order to safeguard the

privacy and security of individuals against arbitrary invasions." Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)

(citation and quotation marks omitted). As such, we must consider whether, in applying law enforcement rules, there are

safeguards "to assure that the individual’s reasonable expectation of privacy is not subject to the discretion of the official

in the field." Id. at 655 (citation and quotation marks omitted).

Here, the practical implication of applying the so-called

"Rule of Two" is that anyone in proximity to an individual

with a gun is involved in criminal activity. Such a rule subjects to seizure or search anyone who actively or passively

associates with a gun carrier. The seizure has no connection

with the individual seized, the activity they are involved in,

their mannerisms, or their suspiciousness; rather, the seizure

is a mere happenstance of geography. The absurdity of this

rule may be gleaned from scenarios where an individual carrying a firearm walks into a monastery subjecting to seizure

all of the nuns and priests, or an ice-cream shop subjecting all

of the patrons to a seizure. Or could police officers apply this

rule to seize all individuals at a shooting range or on a hunting

trip? The scenarios abound. As there are no safeguards against

the unlawful use of discretion by the officer applying such an

arbitrary and boundless rule, it cannot be a basis for reasonable suspicion of criminal activity.

Fifth, it is counterintuitive that Black provided a justification for reasonable suspicion by volunteering his ID to the

officer. The Government characterizes Black’s behavior as

"overly" cooperative and cites cases outside this Circuit for

the proposition that "a surprisingly high level of cooperation"

though not dispositive, is a factor to consider for individualized suspicion. See United States v. Bravo, 295 F.3d 1002,

1007 (9th Cir. 2002); United States v. Ozbirn, 189 F.3d 1194,

1200 n.4 (10th Cir. 1999). The record indicates that three of

the six men provided identification to the officers, thus,

14 UNITED STATES v. BLACK
Black’s action could hardly be characterized as overly cooperative. Additionally, we have noted that this type of argument—that cooperation is a justification for reasonable

suspicion—actually places a defendant in a worse position

than if he had simply refused to cooperate altogether because

the Supreme Court has "‘consistently held that a refusal to

cooperate, without more, does not furnish the minimal level

of objective justification needed for a detention or seizure.’"

Powell, 666 F.3d at 189 n.10 (quoting Florida v. Bostick, 501

U.S. 429, 437 (1991)). In certain communities that have been

subject to overbearing or harassing police conduct, cautious

parents may counsel their children to be respective, compliant, and accommodating to police officers, to do everything

officers instruct them to do. If police officers can justify

unreasonable seizures on a citizen’s acquiescence, individuals

would have no Fourth Amendment protections unless they

interact with officers with the perfect amount of graceful disdain.

Likewise, there is nothing suspicious about the fact that

Black’s ID revealed he lived outside the district. Black correctly informed the officers that he was visiting friends. If

Black was untruthful or provided a false identification, then

the officers may have had some minimal, but not dispositive,

basis for reasonable suspicion.

The pertinent facts remaining in the reasonable suspicion

analysis are that the men were in a high crime area at night.

These facts, even when coupled with the officers’ irrational

assumptions based on innocent facts, fail to support the conclusion that Officer Zastrow had reasonable suspicion that

Black was engaging in criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (though a relevant consideration, "presence in an area of expected criminal activity,

standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime"). In

our present society, the demographics of those who reside in

high crime neighborhoods often consist of racial minorities

UNITED STATES v. BLACK 15
and individuals disadvantaged by their social and economic

circumstances. To conclude that mere presence in a high

crime area at night is sufficient justification for detention by

law enforcement is to accept carte blanche the implicit assertion that Fourth Amendment protections are reserved only for

a certain race or class of people. We denounce such an assertion.

IV.

The facts of this case give us cause to pause and ponder the

slow systematic erosion of Fourth Amendment protections for

a certain demographic. In the words of Dr. Martin Luther

King, Jr., we are reminded that "we are tied together in a single garment of destiny, caught in an inescapable network of

mutuality," that our individual freedom is inextricably bound

to the freedom of others. Thus, we must ensure that the Fourth

Amendment rights of all individuals are protected.

Viewed in their totality, all the factors recited by the Government fail to amount to a reasonable suspicion justifying

Black’s seizure, and the district court erred in denying the

motion to suppress. Therefore, we reverse the district court’s

ruling, and vacate Black’s conviction and sentence.

REVERSED AND VACATED

TRAXLER, Chief Judge, concurring:

I concur in the result reached by the majority.

16 UNITED STATES v. BLACK