United States v. Black

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4986
SEAN D. BLACK,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(3:06-cr-00031-REP-AL)

Argued: December 7, 2007

Decided: May 14, 2008

Before NIEMEYER and GREGORY, Circuit Judges, and
Henry F. FLOYD, United States District Judge for the
District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the majority
opinion, in which Judge Floyd joined. Judge Gregory wrote a dissent-
ing opinion.

COUNSEL

ARGUED: David Lassiter, Jr., JEFFERSON & LASSITER, Rich-
mond, Virginia, for Appellant. Richard Daniel Cooke, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Chuck
2 UNITED STATES v. BLACK
Rosenberg, United States Attorney, Matthew C. Ackley, Special
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

During the course of a voluntary citizen-police encounter, City of
Richmond (Virginia) police seized Sean Black, in a constitutional
sense, patted him down, and, after discovering an illegal firearm,
arrested him. Along with the firearm, heroin was then recovered from
Black’s person. Black was ultimately convicted of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),
and possession of heroin, in violation of 21 U.S.C. §§ 841 and 844.
The district court sentenced Black to 360 months’ imprisonment,
which was based on a one-level upward departure under the district
court’s Sentencing Guidelines calculation.

On appeal, Black challenges the district court’s denial of his
motion to suppress, contending that the Richmond police did not have
the reasonable suspicion necessary to seize him and thus violated his
Fourth Amendment rights. He also challenges the reasonableness of
the district court’s sentence. For the reasons that follow, we affirm.

I

On the evening of December 17, 2005, City of Richmond Police
Detective Sean Adams, Detective Daniel Minton, and Officer Perry
Barber were driving in a marked patrol car through the Mosby Court
area of Richmond, a "high-crime" neighborhood that had been desig-
nated as a target of the police department’s violent crime reduction
initiative, to increase police visibility in that area. Detective Adams
knew the neighborhood to be a high-crime area, and he had made
numerous arrests for drugs and trespassing in Mosby Court in his 12
years as a police officer.

Around 9:00 p.m., the officers pulled into a parking spot near 1336
Coalter Street, a building posted with "No Trespassing" signs, which
 UNITED STATES v. BLACK 3
the police department was authorized to enforce. A group of four or
five people were gathered near a breezeway in front of the building,
but when the officers arrived, they immediately dispersed in different
directions. As the officers exited the vehicle, Sean Black, who was
standing about thirty feet from the breezeway, started walking across
the street past the passenger side of the police car. When Detective
Adams asked Black, "Hey man, do you live out here?" Black stopped,
turned to Adams, and said that he lived across the street at 1312
Coalter, which was the direction toward which he had been walking.
After turning his flashlight on Black’s midsection, Detective Adams
noticed that Black’s left hand was outside of his coat pocket, but his
right hand was awkwardly inserted halfway in his right coat pocket
and was "cupped," as if grasping an object. Adams, concerned about
the possibility of a weapon in Black’s pocket, asked Black, "Can you
take your hand out of your pocket?" Black did not respond either ver-
bally or by removing his hand from his pocket. When Adams repeated
the request, Black took his hand out of his pocket. Adams then saw
a bulge "6 to 8 inches long along the bottom of the pocket" and "1
to 1½ inches high" that "appeared to have a flat side." Adams sus-
pected that the object was a firearm. Detective Minton, who was
standing behind Black, also discerned a bulge in the pocket but did
not see its shape as clearly.

The following exchange then occurred between Detective Adams
and Black:

ADAMS: What’s in your pocket?

BLACK: Huh?

ADAMS: What’s in your pocket?

BLACK: Nothing.

ADAMS: What?

BLACK: My money and my ID.

Adams believed Black’s answer to be flatly inconsistent with the
shape of the object in Black’s pocket, which appeared to be the slide
of a semi-automatic handgun.
4 UNITED STATES v. BLACK
Black then put his hand back into his right coat pocket, and Detec-
tive Adams "became nervous." Adams placed his hand on his gun and
said, "[T]ake your hand out of your pocket. I don’t want to have to
shoot you." Black removed his hand from his pocket, and Adams
ordered Black to move to the police car where Adams patted him
down. Adams immediately confirmed that the bulge in Black’s right
coat pocket was a firearm. Adams then handcuffed Black and
removed a Ruger semi-automatic handgun from Black’s pocket,
which was loaded and had a round in its chamber. When Black
acknowledged that he did not have a concealed-carry permit for a
weapon and that he was a convicted felon, the officers placed Black
under arrest. From the search that followed, the officers recovered
from Black’s person a razor blade and individually wrapped baggies
of an off-white rock-like substance that was later determined to be
heroin.

Before trial, Black filed a motion to suppress the evidence seized
from him, contending that the seizure by the officers violated his
Fourth Amendment rights and was not justified by a reasonable suspi-
cion of criminal wrongdoing, as required by Terry v. Ohio, 392 U.S.
1 (1968). Following a hearing on the motion, the district court found
the facts stated above. It then concluded that the encounter between
Detective Adams and Black was initially a voluntary citizen-police
encounter, as described in Florida v. Bostick, 501 U.S. 429, 434
(1991), but that during the encounter Black was "seized" in a constitu-
tional sense "when Officer Adams told Black to take his hand out of
his pocket because he didn’t want to have to shoot him." The court
held, however, that the seizure was justified because at that point in
time the officers had a reasonable, articulable suspicion that Black
was illegally carrying a firearm. Accordingly, the court denied
Black’s motion to suppress.

After the jury convicted Black, the district court sentenced him to
360 months’ imprisonment, which was based on a one-level upward
departure under the Sentencing Guidelines. The government moved
for an upward departure based on Black’s criminal history. Because
Black’s criminal history was already at the maximum Category VI,
the way to reflect an underrepresentation of this history was to
increase the offense level. See U.S.S.G. § 4A1.3(a)(4)(B). The gov-
ernment observed:
 UNITED STATES v. BLACK 5
The nature and sequence of the defendant’s prior criminal
record are significant here. In 1989, Sean Black, who was
fifteen at the time, killed Everett Hubbard in Richmond,
Virginia after Hubbard had taken a bag of narcotics from
him. Black shot Hubbard twice in the back and once in the
head. Black was convicted of voluntary manslaughter and
served approximately two years in prison. Less than a year
after his release, he committed new crimes, including
receiving stolen property. Black was arrested for possession
of cocaine on July 14, 1994, and gave a false name during
the booking process. He also severely beat a man and was
later convicted of malicious wounding. Black served
approximately 10 years in prison, and was paroled on May
24, 2005. Within two weeks, he violated his parole by vio-
lently acting out at his treatment program. He was referred
to an inpatient treatment program, and was released from
that on August 17, 2005. He committed the instant offenses
on December 17, 2005. Over the course of his years of
incarceration, Black incurred 61 institutional infractions,
including violent offenses.

The district court granted the government’s motion to increase the
Guidelines recommendation, explaining:

In my judgment the criminal history category . . . signifi-
cantly underrepresents the serious[ness] of the defendant’s
criminal history, even though it’s the most serious of crimi-
nal histories, and it certainly underrepresents the likelihood
that the defendant will commit further crimes.

He, in fact, has proved the likelihood of committing fur-
ther crimes after the offense of conviction [in this case] by
committing further crimes, two further crimes. One is to
threaten someone with bodily harm. The other is to effectu-
ate it with aggravated assault.

The court concluded under 18 U.S.C. § 3553(a) that the enhanced
sentence best served the goals of federal sentencing and imposed a
360-month sentence.
6 UNITED STATES v. BLACK
From the district court’s judgment, Black appeals, challenging the
district court’s denial of his motion to suppress and the reasonable-
ness of his sentence.

II

The parties agree that the encounter between Black and Detective
Adams on December 17, 2005, began as a consensual encounter.
Black argues, however, that when he was seized during that encounter
— when Adams ordered Black to take his hand out of his pocket
because he did not want to have to shoot him — his Fourth Amend-
ment rights were violated because the officers did not have a reason-
able suspicion at that time that he had committed or was committing
a crime. Black does not contend that the district court’s factual find-
ings were clearly erroneous. Rather, he argues that the facts leading
up to his seizure were insufficient as a matter of law to support a
Terry seizure.1 Relying on United States v. Burton, 228 F.3d 524 (4th
Cir. 2000), Black asserts that the police had no right to pat him down
merely because he exercised his clearly established "legal right to
choose not to respond to the directive to remove his hand from his
pocket" during a consensual encounter. As he summarizes the facts:

Black was simply walking home on a cold night with his
hand partially closed inside of his coat pocket. Officer
Adams was looking for a "legal" reason to pat down an indi-
vidual in the area. As the officers approached Black, all he
did was continue [to] walk in the same non-evasive manner
1
Our dissenting colleague argues for a different point, earlier in time,
during the citizen-police encounter at which Black was seized so as to
be able to argue that at that point the officer did not have a reasonable
suspicion to conduct a Terry stop. In doing so, however, the dissent
ignores the conclusion reached by the district court that Black was seized
"when Officer Adams told Black to take his hand out of his pocket
because he didn’t want to have to shoot him." J.A. 148. Black did not
challenge that ruling in his brief, nor has he challenged any factual find-
ing by the district court upon which that ruling was based. Instead, Black
focused his sole argument on whether, at the time of the seizure found
by the district court, the officers had a reasonable suspicion to make a
Terry stop. See Brief of Appellant at 12.
 UNITED STATES v. BLACK 7
and exercise his legal right to choose not to respond to the
directive to remove his hand from his pocket.

He argues that the officer’s "nervousness" was at most a "subjective
belief" or a "hunch," not evidence that criminal activity was afoot.

The government contends that when Detective Adams seized
Black, he had a reasonable suspicion that Black had an illegal con-
cealed weapon in his pocket, in violation of Virginia Code § 18.2-308
(making concealed carry of a weapon without a permit unlawful),
much in the manner that justified a Terry stop in United States v.
Mayo, 361 F.3d 802, 807-08 (4th Cir. 2004). Accordingly, the gov-
ernment maintains that Detective Adams was entitled to conduct a
brief investigatory stop under Terry v. Ohio and then to frisk Black
out of legitimate safety concerns.

To the extent that we are reviewing the district court’s factual find-
ings, we do so for clear error, and to the extent we are reviewing its
legal determinations on the basis of those facts, we review de novo.
See United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004). And
"[b]ecause the district court denied the motion to suppress, we con-
strue the evidence in the light most favorable to the government." Id.

We begin by noting that voluntary citizen-police encounters do not
implicate the Fourth Amendment. Although the Fourth Amendment
prohibits unreasonable seizures of persons, "law enforcement officers
do not violate the Fourth Amendment by merely approaching an indi-
vidual on the street or in another public place." Florida v. Bostick,
501 U.S. 429, 434 (1991) (quoting Florida v. Royer, 460 U.S. 491,
497 (1983)). "Police may question citizens without implicating Fourth
Amendment protections. . . . Indeed, officers remain free to seek
cooperation from citizens on the street without being called upon to
articulate any level of suspicion or justification for their encounters."
Burton, 228 F.3d at 527 (citing INS v. Delgado, 466 U.S. 210, 216
(1984)). Because such encounters are voluntary, a citizen approached
by a police officer in this way has the "right to ignore his interrogator
and walk away." Terry, 392 U.S. at 33 (Harlan, J., concurring).
Indeed, a citizen need not even leave the area to avoid speaking with
the police; he has a "right to go about his business or to stay put and
remain silent in the face of police questioning." Illinois v. Wardlow,
8 UNITED STATES v. BLACK
528 U.S. 119, 125 (2000); Burton, 228 F.3d at 528. The fact that a
police officer seeks cooperation or information by itself, however,
does not establish a seizure. See Schultz v. Braga, 455 F.3d 470, 480
(4th Cir. 2006).

But when a police officer, during a voluntary encounter or other-
wise, "observes unusual conduct which leads him reasonably to con-
clude in light of his experience that criminal activity may be afoot,"
the officer may temporarily seize and detain a citizen. Terry, 392 U.S.
at 30. Moreover, in connection with such a seizure or stop, if pre-
sented with a reasonable belief that the person may be armed and
presently dangerous, an officer may conduct a protective frisk. Adams
v. Williams, 407 U.S. 143, 146 (1972); see also Mayo, 361 F.3d at
806-07. In determining whether a Terry stop is supported by reason-
able suspicion, we determine whether the "totality of the circum-
stances" presented the detaining officer with a "particularized and
objective basis" to conclude that a crime may have been committed
or was being committed. Mayo, 361 F.3d at 805 (quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002)) (internal quotation marks
omitted).

In this case, during the encounter with Black, which was initially
voluntary, Detective Adams was presented with the following circum-
stances, all of which were known or experienced before Adams
effected a Terry seizure of Black:

First, the encounter occurred in a high-crime area that Detective
Adams knew to be a locus of drug — and firearm — related criminal
activity. His patrol arrived in the area as part of a Richmond initiative
to reduce violent crimes, and he personally had made numerous
arrests in Mosby Court.

Second, when police initially spoke with Black, he had his left
hand out of his pocket and his right hand awkwardly inserted halfway
in his right-hand pocket, "cupped" as if "grasping an object."2
2
The dissent makes much of the point that Black cupped his hand in
his pocket simply in response to the temperature of a winter evening.
Indeed, the opinion goes to some lengths to suggest that a cupped hand
 UNITED STATES v. BLACK 9
Third, Black hesitated to remove his hand from his pocket, without
saying either yes or no, in response to Detective Adams’ request.

Fourth, after Black did remove his hand, Detective Adams saw a
bulge which was "6 to 8 inches long along the bottom of the pocket,"
"1 to 1½ inches high," and "appeared to have a flat side." Detective
Adams stated that he suspected the object was a firearm.

Fifth, Black apparently lied about what the object in his pocket
was, stating first that he had "nothing" in his pocket and then stating
that it was "money and my ID." Neither answer explained the large
bulge.

Sixth, after Detective Adams engaged Black in the conversation
and Black surely recognized that Detective Adams did not believe his
statements about what was in his pocket, Black put his hand back in
the pocket where the suspected gun was.

Only at this point in the encounter did Detective Adams put his
hand on his own gun and tell Black, "[T]ake your hand out of your
pocket. I don’t want to have to shoot you." Adams then ordered Black
to move to the police car and thus had effectively seized him for
Fourth Amendment purposes.

In the totality of these circumstances, we conclude that Detective
Adams had a reasonable suspicion that Black had a firearm concealed
in his pocket, in violation of Virginia law, and therefore was justified
in conducting a Terry stop and patting Black down. See Mayo, 361

was the natural posture for a cold hand in the pocket. This argument,
however, ignores the facts that Black’s hand was not fully in the pocket
but was half in the pocket, cupped over something that was there, and
that the other hand was not in a pocket at all. As the officer testified, "I
could see that his left hand was empty and at his side, but his right hand
was in his lower coat pocket . . . partially into his pocket." J.A. 62. More-
over, it disregards the district court’s factual findings that "Mr. Black did
appear to be cupping his hand around something in his pocket," J.A. 150,
and the "officer thought that the hand was grasping an object. It was into
the pocket above the knuckles," J.A. 143.
10 UNITED STATES v. BLACK
F.3d at 807 ("But the fact that Mayo removed his hand from his
pocket did not reduce the level of suspicion that the officers had that
Mayo was violating the law by carrying a concealed weapon without
a permit.") (emphasis omitted). Surely, there could be other explana-
tions for Black’s actions and what the officers observed, but a reason-
able suspicion need not rule out all innocent explanations; it need
only be a suspicion, albeit a reasonable one. As the Supreme Court
has stated, "A determination that reasonable suspicion exists . . . need
not rule out the possibility of innocent conduct." Arvizu, 534 U.S. at
277. Even where each individual factor "alone is susceptible of inno-
cent explanation," the question is whether, "[t]aken together," they are
sufficient to "form a particularized and objective basis" for an offi-
cer’s suspicions. Id. In the totality of the circumstances noted, we
conclude that Detective Adams had a reasonable articulable suspicion
that Black was concealing a firearm, and with that suspicion, he was
then entitled, in the circumstances of this case, to pat Black down for
the officers’ safety. See Adams, 407 U.S. at 146; Mayo, 361 F.3d at
806-07.

Accordingly, we affirm the district court’s order refusing to grant
Black’s motion to suppress.

III

Black also contends that the district court erred in departing
upward by one level in calculating the recommended Guidelines sen-
tence. Our careful review of the record, however, reveals that the dis-
trict court amply articulated its reasons for granting the government’s
motion to depart upward based on the substantial underrepresentation
of the seriousness of Black’s criminal history. The court also consid-
ered the increased sentence in light of the factors in 18 U.S.C.
§ 3553(a), determining that the enhanced sentence would serve the
goals of federal sentencing. Finding no procedural or substantive error
in sentencing, we are unable to conclude that it was unreasonable and
therefore affirm. See Gall v. United States, 552 U.S. ___, 128 S. Ct.
586, 597-98 (2007).

For the foregoing reasons, the judgment of the district court is

AFFIRMED.
 UNITED STATES v. BLACK 11
GREGORY, Circuit Judge, dissenting:

I cannot accept that Fourth Amendment protections are suspended
or reduced in so-called "high-crime" neighborhoods. Because the
majority’s opinion significantly lowers those constitutional protec-
tions for law-abiding citizens who, by choice or for reasons beyond
their control, live in high-crime areas, I am compelled to dissent.

I.

In its recitation of the facts, the majority indicates that Black was
thirty feet from the breezeway when he began his walk across the
street, yet fails to note that Black was not amongst the group that fled
moments before. (Majority Op. 3.) Although the group dispersed
mere feet from where Black was walking, at no time did the officers
speculate that Black was a member of that group. To the contrary,
both sides agree that Black approached the police car from a com-
pletely different direction.1 When asked if he lived in the area, Black
responded that he lived at an address across the street, a response con-
sistent with the direction in which he was walking. It is undisputed
that upon first seeing the officers, Black continued on his way and
exhibited no suspect or evasive behavior. Neither the officers nor the
Government point to any evidence in the record linking Black to
seemingly criminal activity prior to his encounter with the police. Yet
despite Black’s compliance, the police continued to question him,
apparently unnerved that Black was "cupping" his hand in his pocket
on that cold December evening.

The majority writes that Officer Adams asked Black to take his
hand out of his pocket because Adams was "concerned about the pos-
sibility of a weapon in Black’s pocket." (Majority Op. 3.) However,
"cupping" a hand does not indicate that one is carrying anything at all.
Rather, cupping is the natural, relaxed position of a hand when placed
in the warmth of a pocket. As such, to expect a man with his hand
in his pocket to hold that hand stiffly open defies common sense. It
1
In its brief, the Government explained that "[a] man later identified
as the defendant, Sean Black, was standing approximately 30 feet off to
the side of this group and began to walk in the direction of the officers
as the group fled." (Appellee’s Br. 5 (emphasis added).)
12 UNITED STATES v. BLACK
would be far more unusual, and therefore suspicious, to observe
someone holding his hand in his pocket in a completely straight and
rigid position. Furthermore, as Black’s counsel noted during oral
argument, Black’s having his hand cupped in his pocket is behavior
completely consistent with the temperature on a winter evening in
Richmond. In short, a "cupped" hand is nothing more than a relaxed
hand and cannot create the sort of reasonable articulable suspicion
required to justify a police search and seizure.

Without any suspicious behavior on the part of Black to justify his
seizure, the majority is left with a de facto rule that allows police to
search and seize anyone who finds himself in a "high-crime area."
The majority begins its analysis by stating that the Mosby Court area
of Richmond2 where these events occurred is "a ‘high-crime’ neigh-
borhood that had been designated as a target of the police depart-
ment’s violent crime reduction initiative, to increase police visibility
in that area." (Majority Op. 2.) The majority notes that "Detective
Adams knew the neighborhood to be a high-crime area and he had
made numerous arrests for drugs and trespassing in Mosby Court in
his 12 years as a police officer." (Majority Op. 2.) However, it is an
unfortunate reality that, in America today, high-crime areas are fre-
quently poor. Thus, by making much of the fact that the events of this
case transpired in a "high-crime" area—notably near public housing
projects—the majority embarks on the treacherous path of lowering
the Fourth Amendment protection afforded to people in low-income
areas.

Because the interaction between Black and the police was no lon-
ger voluntary when Adams demanded that Black remove his hand
from his pocket after Black initially failed to comply, I would hold
Black was seized at that time and that the police lacked a reasonable
articulable suspicion for seizing and searching Black.

II.

In Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California
v. Hodari D., 499 U.S. 621, 628 (1991)), the Supreme Court
2
Mosby Court is a large public housing community found in Rich-
mond’s East End.
 UNITED STATES v. BLACK 13
explained that "a seizure does not occur simply because a police offi-
cer approaches an individual and asks a few questions. So long as a
reasonable person would feel free ‘to disregard the police and go
about his business,’ the encounter is consensual and no reasonable
suspicion is required." Consequently, when examining whether a sei-
zure has occurred, courts analyze whether "‘the officer, by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen such that he is not free to walk away.’" United
States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989) (quoting United
States v. Viegas, 639 F.2d 42, 45 (1st Cir. 1981)); see also Terry v.
Ohio, 392 U.S. 1, 19 n.16 (1968). Undoubtedly, when Adams first
asked Black where he lived and Black responded, their interaction
required no objective verification. However, the inquiry does not end
with the constitutionality of the initial encounter. Although police
officers may approach individuals on public streets and ask them
questions without invoking Fourth Amendment protections, "[s]ome
contacts that start out as constitutional may, however, at some unspec-
ified point, cross the line and become an unconstitutional seizure."
United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002).

The touchstone of whether a seizure has taken place is the individ-
ual’s ability to terminate the encounter. See Hodari D., 499 U.S. at
637 (citing Terry, 392 U.S. at 19 n.16). When Adams asked Black to
remove his hand from his pocket the first time and Black did not
respond, Adams asked Black a second time, indicating that his
instruction was in essence a mandate, not a mere request. At that
point, Black had been seized. Furthermore, when Adams asked Black
what was in his pocket, that question was tantamount to a search.

In affirming the district court, the majority upholds the conclusion
that Black was seized when Adams told Black to remove his hand
from his pocket because Adams did not want to shoot him.3 I vigor-
3
The entirety of the majority’s position relies on the timing of the sei-
zure. In its opinion, the majority writes:
Black argues . . . that when he was seized during that encounter
—when Adams ordered Black to take his hand out of his pocket
because he did not want to have to shoot him—his Fourth
Amendment rights were violated because the officers did not
14 UNITED STATES v. BLACK
ously disagree. Adams’s interaction with Black went from a brief
encounter between a police officer and a citizen to an investigatory
stop, requiring the presence of an articulable suspicion, the moment
that Black no longer felt able to end the encounter, something which

have a reasonable suspicion at that time that he had committed
or was committing a crime.
(Majority Op. 6.) In a footnote, the majority states that I "ignore[ ] the
conclusion made by the district court that Black was seized ‘when Offi-
cer Adams told Black to take his hand out of his pocket because he didn’t
want to have to shoot him.’" (Majority Op. 6 n.1 (emphasis added).)
However, whether a seizure has occurred is a legal question, which we
review de novo. In United States v. Sullivan, 138 F.3d 126, 132-33 (4th
Cir. 1998) (emphasis added) (internal quotations and citations omitted)
(Niemeyer, J. writing for the Court), we explained that
[t]he test we apply in determining whether a person has been
seized for the purposes of the Fourth Amendment is whether,
under the totality of the circumstances surrounding the encoun-
ter, a reasonable person in the suspect’s position would have felt
free to decline the officers’ requests or otherwise terminate the
encounter. Because the test is an objective one, its proper appli-
cation is a question of law.
Thus, what the majority cites as an inviolate district court ruling is actu-
ally only a comment made by the district court that "[i]t appears to me
that Mr. Black was seized at the point when Officer Adams told Black
to take his hand out of his pocket because he didn’t want to have to shoot
him" and is thereby subject to de novo review. (J.A. 148.) Moreover, this
statement is not inconsistent with my conclusion that Black was seized
before he was threatened with the gun. Despite what the majority implies
in footnote 1, Black does challenge the order that he remove his hand
from his pocket, which occurred prior to the officer’s threat to shoot him.
In his brief to this Court, Black asserts that "[t]he fact that [he] had his
hand closed in his pocket is not a justifiable reason to seize him and
order that he remove it." (Appellant’s Br. at 17.) Black explains that "Of-
ficer Minton admitted that the second time the appellant was not ‘asked’
to remove his hand. Minton stated that he was ‘ordered’ to do so." (Id.)
This statement refers to the second time Black was asked to remove his
hand from his pocket and did so, not the instance in which Adams told
Black for the third time to remove his hand because Adams did not want
to shoot Black.
 UNITED STATES v. BLACK 15
occurred when he was first asked to remove his hand from his pocket,
did not comply, and was asked again. Thus, the record is quite clear
that it was not until after the seizure occurred and Black was forced
to remove his hand from his pocket that he acted at all suspiciously.

III.

After articulating my position that the seizure occurred when
Adams asked Black a second time to remove his hand from his
pocket, I now examine whether the police had a reasonable articulable
suspicion for seizing Black.

This Court has reasoned that "the very point of Terry was to permit
officers to take preventive action and conduct investigative stops
before crimes are committed, based on what they view as suspicious
—albeit even legal—activity." United States v. Perkins, 363 F.3d 317,
326 (4th Cir. 2004) (citing Illinois v. Wardlow, 528 U.S. 119, 125-26
(2000)) (emphasis in original). Thus, in assessing whether the officer
had a reasonable suspicion, we look to "the totality of the circum-
stances." United States v. Cortez, 449 U.S. 411, 417 (1981).

In analyzing the totality of the circumstances, the majority enumer-
ates six factors it believes justify the search and seizure of Black. (See
Majority Op. 8-9.) The fourth, fifth, and sixth of these factors
occurred after the time at which I maintain Black was initially seized.
I, therefore, examine the remaining three factors.

The majority cites both the placement of Black’s hand and his hesi-
tance to remove his hand from his pocket as circumstances justifying
his search and seizure by the police. The relevant precedent of this
Circuit, however, does not support this reasoning.

In United States v. Burton, 228 F.3d 524, 529 (4th Cir. 2000)
(quoting Bostick, 501 U.S. at 437), we held that an individual’s
refusal to cooperate does not on its own create sufficient justification
for detention or seizure. We explained:

There is no evidence in the record that Burton made any
moves as Officer Burke approached. He simply continued to
16 UNITED STATES v. BLACK
stand by the telephone booth with his hand in his pocket. He
did refuse to talk with the policemen and to remove his hand
from his pocket, but something more is required to establish
reasonable suspicion that criminal activity is afoot. And in
the absence of reasonable suspicion, an officer may not frisk
a citizen merely because he feels uneasy about his safety.

Id. In Burton, we rejected the officer’s explanation that he searched
Burton because Burton failed to respond to questions and to remove
his hand from inside his coat, which made the officer "uneasy." Bur-
ton, 228 F.3d at 526. Thus, the fact that a man walking home with his
hand in his pocket made Adams "uneasy" absent some other indicia
of criminal activity could not possibly justify a search and seizure, yet
the majority’s opinion buttresses its holding on this very faulty tenet.
Under Burton, neither the placement of Black’s hand, nor his failure
to comply with Adams’s initial request to remove his hand from his
pocket justify the search and seizure.

We distinguished Burton in our opinion in United States v. Mayo,
361 F.3d 802, 806-08 (4th Cir. 2004). In Mayo, we held that the offi-
cers had a reasonable suspicion to stop and frisk Mayo. Id. at 807-08.
In determining the totality of the circumstances, the Mayo Court con-
sidered that (1) the encounter occurred in a high crime area, (2) Mayo
put his hand in his pocket after seeing a marked police car, (3) Mayo
attempted to evade the police, and (4) when confronted, Mayo acted
in a nervous manner. Id.

Although the majority chooses to apply Mayo, the facts of the pres-
ent case correspond more closely to Burton. Black did not react to the
police: he did not alter his behavior, attempt to avoid the officers, or
act nervously. Unlike Mayo, who put his hand in his pocket after see-
ing the officers and who acted evasively, Black, like Burton, had his
hand in his pocket before he saw the officers and continued doing
exactly what he had been doing—walking home with his hand in his
pocket—after seeing them. Because the only factor this case shares
with Mayo is that both incidents occurred in a high-crime area, I
would reverse the district court’s finding and apply Burton, holding
that a "cupped" hand and a failure to comply with a police request do
not justify a search and seizure.
 UNITED STATES v. BLACK 17
Absent these other justifications, the majority is left only with the
fact that "the encounter occurred in a high-crime area that Detective
Adams knew to be a locus of drug — and firearm — related criminal
activity." (Majority Op. 8.) However, "[a] ‘high crime neighborhood’
is not by itself enough to raise a reasonable suspicion." United States
v. Moore, 817 F.2d 1105, 1107 (4th Cir. 1987). Quite to the contrary
of our precedent, the result of the majority’s opinion is that any per-
son walking in a high-crime neighborhood becomes vulnerable to a
police search. As mentioned, "high-crime" areas are often low-income
areas. By creating zones of lower constitutional protection in poor
neighborhoods, the majority, albeit unwittingly, engages in a blatant
display of class discrimination of the basest variety. It has never been
my understanding of the Fourth Amendment that those with less
means likewise receive less constitutional protection as a result of
their plight. It is written into the very fiber of our Constitution that
the protections granted therein apply equally to all Americans, regard-
less of whether they are returning home to the grandest of mansions
or the humblest of shanties. Such a broad reading of "reasonable
articulable suspicion" significantly limits the freedom of people who
happen to be in an area deemed "high crime." Surely, the Constitution
cannot support such an arbitrary and discriminatory result.