UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4804

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JAMES KINGSBOROUGH,

Defendant – Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

J. Frederick Motz, Senior District Judge. (1:15-cr-00478-JFM-1)

Argued: May 7, 2018 Decided: August 6, 2018

Before KING, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge King wrote the opinion, in which Judge Agee 

joined. Judge Thacker wrote a separate opinion concurring in part and concurring in the 

judgment.

ARGUED: William B. Purpura, Jr., OFFICE OF WILLIAM PURPURA, Baltimore, 

Maryland, for Appellant. David Daniel Metcalf, OFFICE OF THE UNITED STATES 

ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, 

Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

KING, Circuit Judge: 

James Kingsborough appeals from his conviction and sentence after a jury trial

conducted in the District of Maryland for possessing a firearm as a convicted felon. 

Kingsborough primarily challenges the district court’s denial of his motion to suppress 

the firearm evidence, which he contends was seized by Baltimore police officers in 

violation of his Fourth Amendment rights. He also maintains that his trial was unfair in 

that the court gave an erroneous jury instruction and failed to correct a prejudicial closing 

argument. As explained below, we reject Kingsborough’s contentions of error and affirm

the judgment.

I.

A.

On August 27, 2015, the federal grand jury in Baltimore returned an indictment 

charging Kingsborough, who had theretofore been convicted of a felony, with knowingly 

and unlawfully possessing a firearm and ammunition (a .380 caliber handgun loaded with 

six hollow point rounds), in violation of 18 U.S.C. § 922(g)(1). Kingsborough moved to 

suppress the firearm evidence on the ground that it was seized as the result of an 

unconstitutional investigatory stop. The government opposed the motion, arguing that 

the city police officers had reasonable suspicion for their stop of Kingsborough.

1.

On March 2, 2016, the district court conducted a hearing on the suppression 

motion. The evidence was that, on June 17, 2015, just after 11:00 a.m., two Baltimore 
3

police officers — Christopher Szakolczai and Jeffrey Santos — were on patrol in the 

southwest area of the city. While stopped at a traffic light on North Franklintown Road, 

they saw a man later identified as Kingsborough.

Kingsborough was near a corner across the street from the officers. The officers

thought Kingsborough was injured, in that he was — as Officer Szakolczai explained —

“hunched over in a weird manner, almost like holding something or doing something 

with his, like, front area.” See J.A. 38.1

 The officers described Kingsborough’s 

movements as somewhat like a “duck walk.” Id. at 56, 117. To check on his well-being, 

the officers drove their patrol car north on Franklintown Road and stopped near

Kingsborough.

From inside the patrol car, the officers asked Kingsborough if he was okay. 

Kingsborough responded in the affirmative and then added, “I’m on the box.” See J.A.

39, 95. The officers understood “I’m on the box” to mean that Kingsborough was 

wearing a location device as part of some type “of supervision or sentence.” Id. at 60.2

Officer Szakolczai looked down and saw that Kingsborough, who was wearing shorts, 

 1 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by 

the parties in this appeal. They also submitted two supplemental appendices.

2 It was Kingsborough’s lawyer who clarified on cross-examination of Officer 

Szakolczai what the officers understood “I’m on the box” to mean. See, e.g., J.A. 60 

(asking Szakolczai to agree that, “in essence, what [Kingsborough] was doing was 

acknowledging to you that he was under some type of law enforcement monitoring or 

supervision or sentence”). In his opening appellate brief, Kingsborough confirms that the 

phrase “on the box” referred to “the fact that he was wearing a location device on his 

ankle as required by some form [of] judicially mandated supervision.” See Br. of 

Appellant 3 n.1.
4

had a black GPS tracker box on his ankle. The officers thought it “strange” that 

Kingsborough shared that he was wearing the tracker box, because he did not appear to 

be reaching for it and “I’m on the box” did not seem responsive to the officers’ inquiry. 

Id. at 39-40, 62, 96. After their short exchange, however, Kingsborough walked away 

from the officers unimpeded, heading diagonally across the intersection of North 

Franklintown Road and West Franklin Street.

The officers moved their patrol car to a nearby parking lot, from which they could 

see Kingsborough from behind. At first, Kingsborough remained hunched over with his 

hands in his front waistband area as he walked across the intersection. But suddenly, 

according to Officer Szakolczai, Kingsborough “reached into, it looked like his front 

waistband area, and just stood upright and began walking freely, loosely.” See J.A. 41. 

Kingsborough’s “right arm was bent slightly, with the elbow at an angle, and then the left 

arm was swinging freely.” Id.

At that point, Officer Szakolczai immediately looked at Officer Santos and said 

out loud, “[O]h shit, he has a gun.” See J.A. 41. That is, Szakolczai quickly deduced that 

a handgun had been falling out of Kingsborough’s shorts when he was hunched over, and 

that, having reached into his front waistband area and secured the firearm, Kingsborough 

was now walking normally and keeping his right arm near his waistband as a so-called 

“security check” to ensure that he kept the firearm under control. Id. at 90-91. Santos, 

who had witnessed the same movements, concurred that Kingsborough exhibited “some 

of the characteristics of an armed person.” Id. at 97. On cross-examination, the officers 

clarified that, from their vantage point behind Kingsborough as he crossed the 
5

intersection, they could not see his frontside and only assumed that he reached inside his 

shorts. They explained, however, that their assumption was based on the visible 

movements of Kingsborough’s right arm, as well as their experience. See, e.g., id. at 76 

(Szakolczai’s testimony that “I didn’t see where his hand exactly went to. I knew that his 

hand went to the front area. I saw the [right] arm, I saw the left arm swinging freely. 

And from all my numerous times of seeing handguns on the street I knew that he had a 

handgun . . . .”).3

Once Kingsborough crossed the intersection, he entered the Creative Cutz 

barbershop, which was known to the officers as the site of a recent armed robbery. The 

officers drove their patrol car to the front of the barbershop. Worried that Kingsborough 

was armed and that someone in the barbershop could be robbed or injured, Officer 

Szakolczai radioed their location to headquarters. He then followed Kingsborough into 

the barbershop on foot, while Officer Santos positioned himself outside the barbershop 

door.

After entering the barbershop, Officer Szakolczai spotted Kingsborough walking 

through the shop, still with his left arm swinging freely and his right arm locked to his 

front waistband area. Szakolczai “blurted out something along the lines of come here, 

stop,” seeking Kingsborough’s attention and intending to “stop him from continuing 

 3 Officer Szakolczai and Officer Santos each testified that they had received 

training in identifying persons carrying firearms and had participated in handgun arrests. 

Szakolczai specified that he had undergone training at the police academy, yearly inservice training, roll call training, and training from more experienced officers. He also 

cited personal experience that included fifteen or more handgun arrests.
6

further into the barbershop.” See J.A. 45. Kingsborough “immediately turned around,” 

“began doing a whole crouched-down thing again,” and started walking toward

Szakolczai. Id.

Kingsborough continued to walk toward Officer Szakolczai as the officer said 

“something along the lines of stop, stop, hands, hands” to “get [Kingsborough’s]

attention” and “keep his hands away.” See J.A. 45. Rather than stopping, Kingsborough 

proceeded in Szakolczai’s direction, keeping his hands in his front waistband area. When

Kingsborough got close, Szakolczai tried to grab him but only briefly touched him. 

Kingsborough slipped past Szakolczai, and the two men “ended up barrelling through the 

[barbershop] door,” with Szakolczai grasping Kingsborough’s shirt. Id. at 46, 98-99.

As Kingsborough came through the barbershop door, Officer Santos saw a black 

and silver object fall from Kingsborough’s right hand as he tried to brace the object 

against his waistband. Once the object hit the ground, it separated into two pieces that 

Santos recognized as a handgun and a magazine. Meanwhile, Kingsborough attempted to 

run past Santos, but Santos was able to grab Kingsborough. As Kingsborough fought to 

get away, Officer Szakolczai withdrew his Taser device and used it on Kingsborough to 

subdue him. The officers then took Kingsborough into custody and retrieved the 

handgun and ammunition.

During the suppression hearing, to undermine the officers’ credibility, 

Kingsborough sought to highlight inconsistencies between the officers’ written reports of 

the arrest and their hearing testimony, which had been coupled with in-court 

demonstrations of Kingsborough’s movements. The officers acknowledged inaccuracies 
7

and poorly worded descriptions in the reports, explaining, inter alia, that it was difficult 

to describe Kingsborough’s movements in writing.

2.

In the arguments that followed the presentation of evidence at the suppression 

hearing, Kingsborough challenged the officers’ credibility and contended that he was 

illegally seized when Officer Szakolczai touched him inside the barbershop. According 

to Kingsborough, the officers were not justified in stopping him until he subsequently 

fled Szakolczai, in that nothing about his earlier movements as he crossed the intersection 

and entered the barbershop generated reasonable suspicion for his seizure. In particular, 

Kingsborough maintained that the officers could have had nothing more than a hunch that 

he was armed during their encounter. See, e.g., J.A. 132 (“[W]hat this boils down to is 

the officers essentially saying if your hand is in front of your body, . . . that’s reasonable 

suspicion.”); id. at 135 (“The real issue is if you’re looking at someone in West Baltimore 

from behind and you see one arm at their side and one arm [with] an elbow crooked, and 

maybe they’re bent over a little bit, is that reasonable suspicion?”). Kingsborough 

emphasized that, during his initial encounter with the officers, he was cooperative, 

volunteered that he was “on the box,” was not nervous or evasive, and simply walked 

away from them.

In response, the government argued that Kingsborough mischaracterized the 

evidence and downplayed the significance of his movements. The government asserted 

that the officers acted appropriately in confirming that Kingsborough’s initial hunchedover position was not the result of injury, and then in resolving to conduct an 
8

investigatory stop of Kingsborough when his subsequent movements in the intersection

reflected that he was carrying a handgun. Those movements included his sudden change 

to an upright position and the use of his right arm for an apparent “security check.”

Ruling from the bench, the district court denied Kingsborough’s motion to 

suppress the firearm evidence, concluding that there was reasonable suspicion for a stop

of Kingsborough by the time he was touched inside the barbershop by Officer Szakolczai. 

The court specified that reasonable suspicion “was confirmed for the officers when they 

saw [Kingsborough] stand up whenever crossing the road.” See J.A. 138 (elaborating 

that the officers “did a good job of spotting a situation which was troublesome” and “had 

reasonable suspicion for doing what they did”). By so concluding, the court necessarily 

credited the officers’ hearing testimony.

On May 20, 2016, Kingsborough filed a motion for reconsideration of the district 

court’s suppression ruling. That motion was argued on June 20, 2016, at the start of 

Kingsborough’s jury trial. As part of his argument, Kingsborough asserted that — in 

addition to lacking sufficient evidence that he was armed — the officers lacked 

reasonable suspicion that criminal activity was somehow afoot. For its part, the 

government urged the court to stand by its suppression ruling. The court agreed and 

orally denied Kingsborough’s motion for reconsideration.

B.

At trial, the prosecution again called Officers Szakolczai and Santos to the stand. 

They testified in a manner consistent with the evidence they presented at the suppression 

hearing. Szakolczai clarified that he does not automatically assume that a person with 
9

either a “bent-over posture” or his “hands around [his] waist” has a handgun. See J.A. 

173A (explaining that “a lot of people walk with their hands down their pants in 

Baltimore,” and that he does not “stop every single person that does that”). The officers 

believed Kingsborough to be armed, however, because of his sudden shift from being 

hunched over to standing upright while apparently reaching into his waistband to retrieve 

a falling handgun and then placing his hand in the “security check” position to keep the 

firearm under control.

Prior to the charge to the jury, the parties proposed instructions to the trial court. 

Kingsborough objected to one proposed instruction, which related to the seizure of the 

firearm evidence. The challenged instruction read:

You have also heard testimony in this case regarding evidence seized by the 

government during an arrest and search of the defendant. You are hereby 

instructed that it is the responsibility of the Court alone to determine the 

validity and legality of the arrest and search, and the Court has determined 

that the searches in this case were valid and legal. It is up to you to decide 

what significance, if any, the evidence seized may have in this case.

See J.A. 152. The court overruled the objection and gave the challenged instruction to 

the jury. During the subsequent closing arguments, Kingsborough did not lodge any 

objections to the remarks of the prosecution.

The jury convicted Kingsborough of the single offense charged in the indictment. 

The district court later sentenced him to 120 months in prison. Kingsborough timely 

noted this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
10

II.

In his appeal, Kingsborough maintains that the district court erred in failing to 

suppress the seized firearm evidence. He also pursues his challenge to the jury 

instruction related to the seizure of that evidence, and he argues — for the first time on 

appeal — that remarks made by the prosecutor in closing arguments were misleading and 

prejudicial. We address Kingsborough’s contentions in turn.

A.

We begin with the suppression issue. In assessing a district court’s ruling on a

motion to suppress evidence, we review the court’s factual findings for clear error and its 

legal conclusions de novo. See United States v. Holness, 706 F.3d 579, 588 (4th Cir. 

2013). “We particularly defer to [the] court’s credibility determinations, for it is the role 

of the district court to observe witnesses and weigh their credibility during a pre-trial 

motion to suppress.” See United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) 

(internal quotation marks omitted). Moreover, when a motion to suppress has been 

denied, we view the evidence in the light most favorable to the government. See Holness, 

706 F.3d at 588.

As the Supreme Court has long recognized, a police officer has the authority to 

conduct a brief investigatory stop if “the officer’s action is supported by a reasonable and 

articulable suspicion, under all the circumstances, that criminal activity ‘may be afoot.’”

See United States v. Bumpers, 705 F.3d 168, 171 (4th Cir. 2013) (quoting Terry v. Ohio, 

392 U.S. 1, 30 (1968)). In justifying such a Terry stop, “the police officer must be able to 

point to specific and articulable facts which, taken together with rational inferences from 
11

those facts, reasonably warrant that intrusion.” See Terry, 392 U.S. at 21. The facts are 

“judged against an objective standard,” that is, “would the facts available to the officer at 

the moment of the seizure . . . warrant a man of reasonable caution in the belief that the 

action taken was appropriate?” Id. at 21-22 (internal quotation marks omitted).

Here, the parties agree that Kingsborough was stopped and seized when Officer 

Szakolczai first touched him inside the barbershop. See California v. Hodari D., 499 

U.S. 621, 626 (1991) (“The word ‘seizure’ readily bears the meaning of a laying on of 

hands or application of physical force to restrain movement, even when it is ultimately 

unsuccessful.”). Additionally, the parties now agree that the criminal activity at issue in 

the Terry analysis is the carrying of a handgun, as Maryland broadly prohibits anyone 

from carrying a handgun in public. See Md. Code, Crim. Law § 4-203. That is, 

Kingsborough has conceded on appeal — contrary to arguments he made in the district 

court while seeking reconsideration of the court’s suppression ruling — that if the 

officers had reasonable suspicion that he was armed, they also had reasonable suspicion 

that criminal activity was afoot.4

Kingsborough continues to insist, however, that the officers lacked reasonable 

suspicion that he was carrying a handgun. We disagree. Deferring to the district court’s 

 4 Notably, the parties have also suggested that the officers may have had 

reasonable suspicion that criminal activity was afoot based on Kingsborough’s confessed 

status of being “on the box.” For example, the officers might have reasonably suspected 

that Kingsborough had been convicted of an offense that rendered him ineligible to 

possess a firearm under federal and state law. See, e.g., 18 U.S.C. § 922(g)(1); Md. 

Code, Crim. Law § 5-622; Md. Code, Pub. Safety § 5-133(c). In view of Maryland’s 

general prohibition against carrying handguns, however, we need not reach this issue.
12

credibility determinations, as we must, we also accept the court’s conclusion that the 

officers had reasonable suspicion that Kingsborough was carrying a handgun once he 

stood upright in the intersection. Notably, the officers at first assumed — and diligently 

eliminated — an innocent explanation for Kingsborough’s initial hunched-over position, 

i.e., that he was injured. The officers subsequently deduced that Kingsborough was 

armed when they witnessed his sudden switch to the upright position and a free and loose 

gait, coupled with the distinctive movements of his arms indicating that he had reached 

into his shorts to retrieve a falling handgun and then was performing a “security check” 

to ensure that the firearm remained secure in his waistband. Indeed, the totality of 

Kingsborough’s movements prompted Officer Szakolczai to blurt out, “[O]h shit, he has 

a gun,” and Officer Santos to concur. See J.A. 41, 97. In these circumstances, we are 

satisfied that the officers have pointed to specific and articulable facts that reasonably 

warranted the stop of Kingsborough. Accordingly, we will not disturb the district court’s 

suppression ruling.

B.

We turn to the district court’s decision to give the jury instruction challenged by 

Kingsborough. The challenged instruction advised the jury that the officers’ seizure of 

the firearm evidence occurred “during an arrest and search” that had already been found 

by the court to be “valid and legal.” See J.A. 152. Kingsborough does not assert that the 

challenged instruction misstated the law, including that “it is the responsibility of the 

Court alone to determine the validity and legality of the arrest and search.” See id. 

Rather, Kingsborough argues that the challenged instruction was confusing (in that he 
13

was stopped and seized, but not searched) and unnecessary (as there was no indication 

that the jury otherwise would have taken it upon itself to assess the legality of the stop). 

Kingsborough also contends that the challenged instruction was prejudicial in the 

circumstances of his case, where the only issue was the officers’ credibility in describing 

their encounter with Kingsborough and his alleged dropping of the handgun and 

ammunition outside the barbershop. See Br. of Appellant 23-24 (“Informing the jury that 

the very same testimony offered against him for substantive purposes at trial, had 

previously been heard and credited by the judge in finding his arrest to be valid, put the 

court’s imprimatur on the testimony of the officers.”). We cannot say, however, that the 

court abused its discretion with respect to the challenged instruction. See United States v. 

Jinwright, 683 F.3d 471, 478 (4th Cir. 2012) (“We review for abuse of discretion both the 

district court’s decision to offer an instruction and the content of that instruction.”).

C.

Finally, we consider whether the district court should have corrected remarks 

made by the prosecutor during closing arguments. Specifically, Kingsborough contends 

that the government improperly invited jurors with law enforcement backgrounds and 

with relatives and friends in law enforcement to identify with the experiences of Officers 

Szakolczai and Santos. See, e.g., J.A. 184 (telling those jurors that “[y]ou know it’s not 

an easy job, and sometimes it means you have to go into dangerous places”). 

Kingsborough refers to those remarks as a prohibited “Golden Rule” argument that asked 

the jurors to put themselves in the shoes of a party. Because Kingsborough did not object 

to the remarks at trial, our review is for plain error. See Fed. R. Crim. P. 52(b); United 
14

States v. Williamson, 706 F.3d 405, 411 (4th Cir. 2013) (explaining that, under plain error 

review, an appellate court may correct an error only when: “(1) there is an error; (2) the 

error is plain; (3) the error affects substantial rights; and (4) the court determines, after 

examining the particulars of the case, that the error ‘seriously affect[s] the fairness, 

integrity, or public reputation of judicial proceedings’” (quoting United States v. Olano, 

507 U.S. 725, 732 (1993))). Even assuming that the district court’s failure to correct the 

prosecutor’s remarks constitutes an error that is plain, Kingsborough cannot show that the 

error affects substantial rights, i.e., that the remarks “so infected the trial with unfairness 

as to make the resulting conviction a denial of due process.” See Darden v. Wainwright, 

477 U.S. 168, 181 (1986) (internal quotation marks omitted). Kingsborough’s final 

contention of error therefore also fails.

III.

Pursuant to the foregoing, we reject Kingsborough’s appellate contentions and 

affirm his conviction and sentence.

AFFIRMED
15

THACKER, Circuit Judge, concurring in part and concurring in the judgment:

I fully concur in the opinion’s analysis and conclusion as to the jury instruction 

and closing argument issues. 

I also concur in the judgment on the suppression issue -- but only because 

Kingsborough has now conceded that violation of Maryland Code Ann., Criminal Law

§ 4–2031 is the “criminal activity” in which Officers Santos and Szakolczai suspected 

Kingsborough to be engaging. See Supp. Authorities at 1, United States v. 

Kingsborough, No. 16–4804 (4th Cir. filed May 10, 2017), ECF No. 59; see also Oral 

Argument at 12:04–08, United States v. Kingsborough, No. 16-4804 (4th Cir. May 7, 

2018), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (hereinafter 

“Oral Argument”) (“If [Kingsborough] had a gun period, he was a walking felony.”). I 

would not have concurred otherwise.

After floating a multitude of rationales in an apparent effort to see if any would 

stick, for the first time at oral argument, the Government advanced the theory that 

§ 4–203 was a basis for the officers’ suspicion of “criminal activity.” Of note, this post 

hoc rationale was not mentioned in the police report, the officers’ testimony at the 

suppression hearing, the Government’s argument at the suppression hearing, or appellate 

 1 This statute provides, “Except as provided in subsection (b) of this section, a 

person may not . . . wear, carry, or transport a handgun, whether concealed or open, on or 

about the person.” Md. Code Ann., Crim. Law § 4–203(a)(1)(i). Subsection (b) 

provides, “This section does not prohibit . . . the wearing, carrying, or transporting of a 

handgun, in compliance with any [permit] limitations . . . , by a person to whom a permit 

to wear, carry, or transport the handgun has been issued under [state law].” Id. 

§ 4–203(b)(2).
16

briefing.2

 See Oral Argument at 27:40–45 (Government counsel admitting it has never 

provided citation to § 4–203 to this court); id. at 28:14–24 (admitting police officers 

never cited § 4–203 as the criminal activity of which they had reasonable suspicion in 

district court record); id. at 34:16–25 (admitting it was not “in the[ officers’] testimony 

that the reason they stopped [Kingsborough] was because of [§ 4–203]”). In my view, 

law enforcement should know -- and be able to articulate -- the “criminal activity” they 

suspect to be afoot in support of a deprivation of liberty at the time of the stop. A 

theory for the stop articulated three years after the fact should not serve to justify the stop 

in this case or any case.

I.

An officer may stop and briefly detain a person when he or she “has reasonable, 

articulable suspicion that the person has been, is, or is about to be engaged in criminal 

activity.” United States v. Hensley, 469 U.S. 221, 227 (1985) (one emphasis omitted)

(quoting United States v. Place, 462 U.S. 696, 702 (1983)); see also Terry v. Ohio, 392 

U.S. 1, 21–22 (1968). We “must look to the totality of the circumstances in determining 

whether the officer had a particularized . . . basis for suspecting criminal activity.” 

United States v. David Foster, 634 F.3d 243, 246 (4th Cir. 2011) (emphasis supplied); see 

also United States v. Cortez, 449 U.S. 411, 417 (1981) (“[I]nvestigatory stop[s] must be 

 2 The Government cited § 4–203 in its response to the motion to suppress, but only 

in discussing whether officers had probable cause to arrest Kingsborough after seeing the 

gun fall from his body. See J.A. 22. Citations to the “J.A.” and “S.J.A.” refer to the Joint 

Appendix and Supplemental Joint Appendix, respectively, filed by the parties in this 

appeal. 
17

justified by some objective manifestation that the person stopped is, or is about to be, 

engaged in criminal activity.”). Indeed, “[w]ithout reasonable particularized suspicion of 

wrongdoing, such searches and seizures offend the Constitution.” United States v. 

Massenburg, 654 F.3d 480, 488 (4th Cir. 2011) (emphasis in original).

A.

I do not dispute that objectively -- at the moment Kingsborough stood up from his 

hunched position and kept his arm bent at his waist -- the officers, based on their training 

and experience, may have had reasonable suspicion that Kingsborough was carrying a 

firearm. We have held that a security check on a weapon “can contribute to a finding of 

reasonable suspicion that the suspect was engaged in criminal activity.” United States v. 

Zachary Foster, 824 F.3d 84, 94 (4th Cir. 2016); see also 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). And we have defined a security check as “an instinctual 

movement in which . . . suspects reach to ensure that a concealed weapon is secure.” 

Foster, 824 F.3d at 87; see also Humphries, 372 F.3d at 660. The testimony of the 

officers leads to a reasonable conclusion that Kingsborough was fiddling with a handgun 

in his waistband, and when he stood up, he had secured it to the point that he could walk 

again. Even though Officer Santos admitted that the object Kingsborough was fiddling 

with “could have been anything. It could have been a cell phone,” J.A. 116, “a 

reasonable suspicion need not rule out all innocent explanations,” United States v. Sean 

Black, 525 F.3d 359, 365 (4th Cir. 2008). 
18

In reaching this conclusion, however, I refuse to adopt many of the arguments 

proffered by the Government because they are not supported by the facts of record. 

Indeed, it is not clear whether the district court found these arguments to be persuasive, 

as it did not make any findings at all in its oral ruling.3

• The Government argued Kingsborough was non-responsive 

to the officers. The Government has represented that when 

the officers asked Kingsborough if he was okay, 

Kingsborough’s answer was “non-responsive.” See Gov’t’s 

Br. 3; Oral Argument at 21:48–50, 23:26–27. The record 

completely belies this notion. Officer Szakolczai testified 

that when he asked, “Are you okay?” Kingsborough 

answered, “[Y]eah.” J.A. 39. Officer Santos likewise testified 

that Kingsborough said, “I’m all right.” Id. at 104. In fact, at 

oral argument, the Government agreed that Kingsborough’s 

answer “yeah,” was responsive to the question, “Are you 

okay?” Oral Argument at 23:36–46. Not only was 

Kingsborough responsive, but he was also cooperative, 

offering the information -- unprompted -- that he was “on the 

box.” 

 3 In its entirety, the district court’s oral ruling on the motion is as follows: 

I think that at first there was reasonable suspicion . . . on two 

grounds, really. Either that Mr. Kingsborough was injured or 

that something . . . had happened in the front end. And I 

think that that was confirmed for the officers when they saw 

him stand up whenever crossing the road. And I think that 

they had very, I think they did a good job of spotting a 

situation which was troublesome. And I think they had 

reasonable suspicion for doing what they did. 

I think [defense counsel] is right, that the time of the touching 

is what I look at. I obviously don’t look at the fact that a gun 

was found. But I think that the officers did their job and did it 

well. So I am going to deny the motion.

J.A. 138.
19

• The Government argued Kingsborough was acting strange. 

The Government also attempts to classify Kingsborough’s 

subsequent statement that he was wearing an ankle 

monitoring device as “strange,” Gov’t’s Br. 3, 13, and 

presumably, reason to suspect Kingsborough had a gun. This 

theory makes no sense.4

 It is difficult to comprehend how an 

individual offering to police officers that he is wearing an 

ankle monitoring device can be seen as anything other than 

forthcoming and cooperative. In any event, we require the 

Government “to either articulate why a particular behavior is 

suspicious or logically demonstrate, given the surrounding 

circumstances, that the behavior is likely to be indicative of 

some more sinister activity than may appear at first glance.” 

David Foster, 634 F.3d at 248. It wholly failed do so here.

• The Government argued Kingsborough was evasive. The 

Government further contends that Kingsborough was acting 

“evasive.” Gov’t’s Br. 8, 13. But there is no evidence of 

evasion, and the district court made no such finding. There is 

no evidence Kingsborough was nervous, avoiding the police, 

or failing to answer their inquiries. Indeed, as noted above, 

he fully responded to their only inquiry. Once he did so, he 

simply walked away, which he had every right to do. See 

Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“[W]hen 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.”).

• The police report contains no basis for reasonable, 

articulable suspicion other than the security check. Officer 

Santos’s incident report filed in connection with 

Kingsborough’s seizure and arrest provides zero basis for 

 4 In the suppression hearing, Officer Szakolczai attempted to link Kingsborough’s 

statement with the reasonable, articulable suspicion that Kingsborough had a firearm: 

“[W]hen he gave me that response, it kind of drew my attention because it just gave me, 

gave me like, almost like a flashback to a previous case I had where someone gave me a 

weird answer and they had a gun as well.” J.A. 62. Critically, the Government never 

connected this statement with any particular incident, and never used this statement in 

support of reasonable suspicion that Kingsborough possessed a firearm.
20

reasonable suspicion, other than the officers believed 

Kingsborough was performing a security check. Indeed, the 

report states that when officers asked Kingsborough if he 

needed help, he “stated that he was fine.” Police Report at 2, 

United States v. Kingsborough, No. 16–4804 (4th Cir. filed 

May 10, 2018), ECF No. 59, Ex. 2. It did not mention that 

Kingsborough was evasive, nonresponsive, or strange. 

• The record contains significant inconsistencies. For 

example, the record demonstrates that a report filed by 

Szakolczai5 stated that when Szakolczai entered the barber 

shop, Kingsborough “was pulling his hands out of his pants,” 

and he “withd[rew] his arm and the object within his front 

waistband.” J.A. 84. But Szakolczai later conceded that he 

“couldn’t see any object” in the waistband and he couldn’t 

“say for sure if [Kingsborough’s hands] went down the top 

waistband of his pants.” Id. at 85, S.J.A. 48. In addition, 

although both Szakolczai’s and Santos’s reports stated that 

Szakolczai grabbed Kingsborough’s hand and ordered him to 

stop all at the same time, at the suppression hearing 

Szakolczai instead testified that he first “ordered him to come 

towards me,” and then, “when he came toward me was when 

he was within arm’s reach, I grabbed him, and that’s when we 

went out the door.” J.A. 86. 

Thus, I base my conclusion that the officers had reasonable suspicion to believe 

Kingsborough was carrying a firearm in his waistband solely on the officers’ testimony 

about Kingsborough’s actions while crossing the street, and that they believed 

Kingsborough to be conducting a “security check” of a weapon based on their training 

 5 The parties have only provided the report filed by Santos. See Kingsborough, 

No. 16–4804, ECF No. 59, Ex. 2. But at the suppression hearing, defense counsel clearly 

cross-examined Szakolczai about a report that he completed and filed in relation to the 

deployment of the Taser. See J.A. 64. The parties have failed to provide this report to 

this court, despite the fact that defense counsel relied on it extensively at the suppression 

hearing. 
21

and experience. But, I do so quite reluctantly given the Government’s shifting theories of 

reasonable suspicion in this case. 

B.

The fact remains that although the officers may have believed Kingsborough had a 

firearm, the Government has not successfully connected that fact to the officers’ 

particularized basis for suspecting that Kingsborough had or was about to engage in 

criminal activity. See United States v. Mason, 628 F.3d 123, 137 (4th Cir. 2010) 

(Gregory, J., dissenting) (“[The officer] failed to articulate why [the circumstances 

alleged] would be associated with criminal activity. In other words, [the officer] 

provided ‘articulable’ facts, yet provided no basis for why these factors were ‘suspicious’ 

individually or in the aggregate.”). In its ruling at the suppression hearing, the district 

court likewise failed to articulate what criminal activity was afoot. In fact, the officers’ 

testimony at the suppression hearing, the Government’s arguments in briefing, and the 

Government’s arguments at oral argument reveal a revolving door of Terry theories, each 

of which is largely unsatisfactory as far as I am concerned. 

1.

First, at the suppression hearing, Officer Szakolczai suggested he believed 

Kingsborough was preparing to rob the Creative Cutz barber shop. He testified that “a 

few days, maybe a week or two” before the date in question, Creative Cutz was involved 

in an armed robbery. J.A. 42. Szakolczai thought that “from the characteristics, along 

with the fact that how quickly [Kingsborough] entered into the barbershop . . . this is 

going to be an armed robbery in progress or someone inside the barbershop was going to 
22

be injured due to the fact that I still believed [Kingsborough] had a gun.” Id. at 43 

(emphasis supplied). This theory did not stick, as it did not show up again in briefing 

with this court. In fact, the Government has conceded that “a high-crime environment 

does not itself produce reasonable suspicion.” Gov’t’s Br. 11. With good reason. Being 

in a place where crimes have occurred in the past “does little to support the claimed 

particularized suspicion,” Massenburg, 654 F.3d at 488, especially when the encounter 

occurred “in the middle of the day,” David Foster, 634 F.3d at 247, and when 

Kingsborough had been approached by the officers just moments before. 

2.

Second, at oral argument, my good colleagues suggested that the electronic 

monitoring device on Kingsborough’s ankle supported the officers’ reasonable, 

articulable suspicion that Kingsborough was a felon in possession of a firearm, or was 

otherwise violating the terms of some type of court supervision. See Oral Argument at 

5:50–7:45, 10:45–11:00. 

Of note, however, the Government itself failed to make that argument at every 

stage of this case. Indeed, prior to oral argument, the Government referred to the ankle 

device only to argue that Kingsborough purportedly gave a strange answer to officers’ 

initial questioning. Gov’t’s Br. 12 n.1 (“It [wa]s not Mr. Kingsborough’s status as a 

criminal probationer that necessarily drew suspicion, but rather that his answer [‘I’m on 

the box’] made no sense at all. . . .”). The Government again confirmed this approach at 

argument. See Oral Argument at 20:24–28 (“The crime at issue is not possessing a 

firearm under supervision.”). Moreover, in Maryland, monitoring devices may be 
23

required for individuals other than felons. See, e.g., Md. Code Ann., Corr. Servs. § 11–

704(c)(3) (an “inmate” in Baltimore City may participate in home detention/work 

program and monitored by electronic monitoring devices); id. § 1–101(i) (defining 

“inmate” as “an individual who is actually or constructively detained or confined in a 

correctional facility,” without regard to whether he or she is a felon or misdemeanant). 

So the argument that the officers had reasonable suspicion that Kingsborough was a felon 

in possession of a firearm could not stick even if the Government had come up with it on 

its own. 

3.

 Finally, I come to the Government’s eleventh hour (very nearly twelfth hour) 

position which Kingsborough has now joined -- that the relevant “criminal activity” is a 

violation of Maryland’s statute prohibiting a person to carry a firearm in public. Of 

significance, however, in Maryland, one is permitted to “wear[], carry[], or transport[] a 

handgun” if he or she has a permit to do so. Md. Code Ann., Crim. Law § 4–203(b)(2) 

(effective Oct. 1, 2013). It is undisputed that whether Kingsborough had such a permit 

or was otherwise prohibited from possessing a firearm were matters not known to the 

officers prior to their observations of and interactions with Kingsborough. 

 Our sister circuits have split on the issue of whether the mere possession of 

firearms in a state where individuals may legally carry them provides reasonable 

suspicion for a stop. Compare Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128, 

1131 (6th Cir. 2015) (where pedestrian was visibly carrying a firearm on his hip, no 

reasonable suspicion that the pedestrian was engaged in criminal activity because “Ohio 
24

law permits the open carry of firearms . . . and thus permitted [the pedestrian] to do 

exactly what he was doing.”), and United States v. Lewis, 672 F.3d 232, 240 (3d Cir. 

2012) (Where “[i]t is lawful for certain individuals in the Virgin Islands to carry a firearm 

provided that a license is obtained,” and “[a]bsent any information about the criminality 

of the firearms, the mere possession of the firearms could not provide [the officer] with 

reasonable suspicion to stop the vehicle.”), with United States v. Lewis, 674 F.3d 1298, 

1304 (11th Cir. 2012) (“Based on McRae’s admission that he was carrying a handgun in 

his waistband, the officers had reasonable suspicion to believe that McRae was 

committing a crime under Florida law -- carrying a concealed weapon. Under Florida 

law, ‘[a] person who carries a concealed firearm on or about his person commits a felony 

of the third degree.’ Fla. Stat. § 790.01(2). Notably, the possession of a valid permit for a 

concealed weapon is not related to the elements of the crime, but rather is an affirmative 

defense.” (footnotes omitted)). 

We have explained, “Being a felon in possession of a firearm is not the default 

status.” United States v. Nathaniel Black, 707 F.3d 531, 540 (4th Cir. 2013). And in a 

state where individuals can 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.” 

Id. Thus, there is a decent argument to be made that the nature of the statute -- that is, 

whether the ability to carry a firearm is a blanket grant, or whether (like here) there is a 

blanket prohibition with exceptions -- should not dictate whether reasonable suspicion to 
25

conduct a Terry stop should or should not be present. Unfortunately, that argument was 

not made here. 

II.

Because Kingsborough ultimately agreed with the Government’s asserted rationale 

for a reasonable, articulable suspicion, albeit three years after the fact, I am compelled to 

concur in the judgment on the suppression issue. Had Kingsborough challenged on 

appeal any of the Government’s ever shifting views of the purported criminal activity that 

provided a basis for the stop, my position would most assuredly be different.