United States v. Massenburg

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-4209
TYERAIL D. MASSENBURG,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(3:09-cr-00276-RLW-1)

Argued: May 13, 2011

Decided: August 15, 2011

Before MOTZ, DAVIS, and KEENAN, Circuit Judges.

Vacated, reversed, and remanded by published opinion. Judge
Davis wrote the opinion, in which Judge Motz and Judge
Keenan joined.

COUNSEL

ARGUED: Caroline Swift Platt, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Michael Arlen Jagels, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
2 UNITED STATES v. MASSENBURG
ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, Carolyn V. Grady, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.

OPINION

DAVIS, Circuit Judge:

In this appeal from a judgment of sentence, we are once
again called on to determine whether evidence seized during
a street encounter between law enforcement and citizens was
properly admitted into evidence during a subsequent criminal
prosecution. We conclude that the seizure of the evidence did
not comport with settled Fourth Amendment principles, and
we therefore reverse the district court’s denial of appellant’s
motion to suppress and remand for further proceedings.

Responding one night to an anonymous tip that shots were
fired in a high-crime neighborhood, Richmond police encoun-
tered four young men, including appellant Tyerail Massen-
burg, four blocks from the reported gunfire. When an officer
approached them in a marked police car, the men were not
evasive; they continued walking forward, toward the car, and
voluntarily paused to speak with the officer upon the officer’s
request. In fact, they were cooperative: one of the men
reported that he had heard shots fired from a passing car two
blocks away and handed over his identification when asked;
and at least two of the men consented to voluntary pat-downs.
Appellant Massenburg stopped with his friends, but he
refused to consent to a frisk. As the officer interacting with
Massenburg testified, he first thought Massenburg nervous
when he began asking him to consent to a pat-down and
Massenburg was "real reluctant to give consent." J.A. 48.
 UNITED STATES v. MASSENBURG 3
Based on the fact that appellant stood a foot or two away from
the other men, who were shoulder-to-shoulder, and did not
make eye contact as the officer renewed his requests for a
consensual search, the officer undertook a nonconsensual
search. The search produced a firearm and some marijuana,
the subjects of the suppression motion at issue here.

Charged with one count of possession of a firearm by a
drug user under 18 U.S.C. § 922(g)(3) and one count of pos-
session of marijuana under 21 U.S.C. § 844, Massenburg
moved to suppress the gun and drugs on the ground that the
officer’s frisk was unlawful. The district court denied that
motion, and Massenburg entered a conditional guilty plea,
reserving his right to appeal the suppression ruling.

Before an officer can stop and frisk a citizen, she must have
"reasonable and articulable suspicion that the person seized is
engaged in criminal activity." Reid v. Georgia, 448 U.S. 438,
440 (1980). We recently warned against the Government’s
proffering "whatever facts are present, no matter how inno-
cent, as indicia of suspicious activity" and noted that we were
"deeply troubled by the way in which the Government
attempts to spin . . . mundane acts into a web of deception."
United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011).
This concern is only heightened when the "mundane acts"
emerge from the refusal to consent to a voluntary search. If
the important limitations on the "stop and frisk" regime
crafted by Terry v. Ohio, 392 U.S. 1 (1968), are not to
become dead letters, refusing to consent to a search cannot
itself justify a nonconsensual search.

I.

A.

On the night of March 28, 2009, at 10:33 p.m., Richmond
City Police received an anonymous tip that shots had just
been fired. The caller reported eight shots fired "possibly" two
4 UNITED STATES v. MASSENBURG
blocks south of 14th and Hull Streets, a high-crime area in
which "drug activity as well as random gunfire" were
"usual[ ]." J.A. 46, 77. The caller said nothing more; in partic-
ular, he or she included no description of a suspect.

Officers Stephen Gaines and Eric Fries responded to the
call and arrived at 14th and Hull at 10:48 p.m. They split up
and patrolled the area in marked police cars. Fries soon saw
four young black men, including appellant Massenburg, walk-
ing north at the corner of East 17th Street and Stockton Street,
four blocks west and two south of the intersection of 14th and
Hull and thus four blocks from the alleged origin of the shots.
They were walking in the direction of Fries’s marked car and
did not stop or change course when they saw it.

Fries approached in his vehicle and asked, "hey guys, can
you stop for a second?" J.A. 31. The men stopped to talk with
him. Fries asked if they had heard gunfire, and one man
reported hearing shots fired from a vehicle on Maury Street,
two blocks south of their present location. Gaines arrived, the
two officers exited their vehicles, and they began taking the
men’s names. Fries then asked if they had weapons on them
and if they would consent to a pat-down. The four men were
now "all basically lined up in a row on the sidewalk," with the
man who reported hearing gunfire on Maury Street on the left
end of the line and Massenburg on the right. J.A. 32. Accord-
ing to Gaines, the three left-most men were "pretty much
shoulder-to-shoulder, and [Massenburg] was kind of offset
from the group" by a "foot or two," "give or take." J.A. 57.

The man on the left consented to Fries’s request for a pat-
down, as did the man nearest him. Gaines began at the other
end of the line, asking Massenburg if he would consent to a
frisk. Gaines testified that Massenburg, in reply to the request,
"was kind of hesitant and stand-offish, and kind of real reluc-
tant to give consent to a pat down or a search of his person."
J.A. 48. Instead, "[h]e stated he did not have anything. You
don’t need to check me. Stood back and kind of air-patted
 UNITED STATES v. MASSENBURG 5
himself down, stating, trying to show he didn’t have any-
thing." J.A. 48. At this point Gaines insisted and patted
Massenburg down without his consent.

Officer Fries testified that he had seen "a small bulge in the
left jacket pocket of Mr. Massenburg" prior to Officer
Gaines’s frisk, but he "didn’t alert" Gaines to it. J.A. 32, 42.
Officer Gaines, asked multiple times about the basis for his
suspicion of Massenburg, never indicated in his testimony
that he saw a sign or signal from Fries.

During the frisk of Massenburg, Gaines felt the handle of
a firearm on Massenburg’s waist band (not in the jacket), and
Massenburg fled before Gaines could grab it. Gaines pursued
and directed him to drop the firearm, which Massenburg did,
dropping it on the grass. Massenburg ran another 250 feet
before Gaines caught up and arrested him. In addition to the
firearm, police recovered a small amount of marijuana on
Massenburg’s person.

B.

Massenburg was charged with one count of possession of
a firearm by a drug user, in violation of 18 U.S.C.
§ 922(g)(3), and one count of possession of marijuana, in vio-
lation of 21 U.S.C. § 844. He filed a motion to suppress the
firearm and marijuana, arguing that Gaines lacked the reason-
able, particularized suspicion that he was engaged in criminal
activity necessary to authorize a nonconsensual frisk under
the Fourth and Fourteenth Amendments.

At the suppression hearing, the Government presented few
objective bases for particularized suspicion of Massenburg. It
was only able to point to the following: (1) Massenburg and
his three friends were walking four blocks from the location
of the shots reported by the tipster, the only people the
responding officers encountered in the vicinity; and (2) sev-
eral observations made by Gaines of Massenburg’s allegedly
6 UNITED STATES v. MASSENBURG
"nervous behavior." In particular: (a) Massenburg was stand-
ing a foot or two from the other three men, who were
"shoulder-to-shoulder," J.A. 57; (b) he did not make eye con-
tact with Gaines as Gaines asked him to consent to a frisk;
and (c) he did not consent. Gaines’s testimony on these points
is instructive.

Officer Gaines testified that "it wasn’t until actually I made
contact with him that I noticed nervous behavior from him."
J.A. 48. He elaborated:

A: . . . We questioned if anybody had any weap-
ons on them. The individuals besides Massenburg
stated, we don’t have anything, you can check us.
And Tyerail [Massenburg] was kind of hesitant and
stand-offish, and kind of real reluctant to give con-
sent to a pat down or a search of his person.

...

Q: You indicated that Mr. Massenburg, you said,
was acting nervously. What gave you that impres-
sion?

A: Like, I said, he was standing off from the three
in the group from being questioned. He was reluc-
tant, didn’t show any eye contact. Looked down.
Once he stood back and stated, "I don’t need to get
a pat-down." That kind of raised my suspicion a little
further. And we were more persistent to find out
whether he had weapons on his person.

J.A. 48-50. On cross-examination, Massenburg’s attorney
attempted to clarify Gaines’s ostensible particularized suspi-
cion concerning Massenburg.

Q: And during your conversation with him, he
wouldn’t look you in the eye?
 UNITED STATES v. MASSENBURG 7
A: Correct.

Q: And he just kept on saying, I don’t need to be
patted down?

A: Yes.

Q: That made you more persistent?

A: It did.

Q: Because he didn’t want to be patted down?

A: Correct. As I said, the others made statements
when asked if they had weapons. Said, you can
check me. And he was the only one to be reluctant.

Q: You had no new information to know he was
armed and dangerous but for the fact he didn’t want
to be patted down?

A: I mean the nature of the call and nature of [the]
area.

Q: You had no new information, did you, Officer,
other than his repeated statements that he didn’t want
to be patted down?

A: Besides the statements, the area of the call.

Q: Right. Nothing new other than the area of the
call?

A: Nothing, ma’am.

J.A. 57-59.
8 UNITED STATES v. MASSENBURG
The district court denied Massenburg’s suppression motion,
holding that the search was lawful. It found that reasonable
suspicion existed on the basis of six factors: (1) "a vague
report of shots fired"; (2) the four men were encountered
"roughly two blocks from the location of the reported shoot-
ing incident"1 and were the only people in the area; (3) this
was a "high-drug, high-crime area"; (4) Massenburg was "act-
ing nervously, looked down and refused to make eye contact
and stood off from the group"; (5) Massenburg "continued to
act strangely by making a series of two furtive move-
ments"—that is, he "took a step back away from Officer
Gaines, and he then began pantomiming a self pat-down
search"; (6) Gaines’s actions were informed by a "year’s
worth of practical experience serving as a law enforcement
officer." J.A. 73-75.

After the denial of his suppression motion, Massenburg
entered a conditional guilty plea, reserving his right to appeal
the court’s ruling. Judgment was entered and he was sen-
tenced to 18 months in prison. He brought this timely appeal
challenging the suppression ruling. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291.

II.

We review the district court’s legal conclusions de novo
and its factual findings for clear error. See United States v.
Day, 591 F.3d 679, 682 (4th Cir. 2010).

To comport with the Fourth Amendment, even a "brief"
investigatory detention "must be supported at least by a rea-
sonable and articulable suspicion that the person seized is
1
The district court appears to have confused the location given by the
anonymous caller, which was four blocks from the encounter with
Massenburg, and the location reported by one of Massenburg’s compan-
ions, who acknowledged hearing shots fired from a passing car roughly
two blocks away.
 UNITED STATES v. MASSENBURG 9
engaged in criminal activity." Reid v. Georgia, 448 U.S. at
440; see United States v. Foster, 634 F.3d 243, 246 (4th Cir.
2011). Considering the totality of the circumstances, we are
to determine whether there was a sufficient objective, particu-
larized basis for suspecting the person seized of criminal
activity. United States v. Arvizu, 534 U.S. 266, 273 (2002).
Evidence that would support only "a mere ‘hunch’ is insuffi-
cient," though a reasonable basis need not establish probable
cause and may well "fall[ ] considerably short of satisfying a
preponderance of the evidence standard." Id. at 274 (quoting
Terry, 392 U.S. at 27); cf. United States v. Digiovanni, ___
F.3d ___, ___ (4th Cir. 2011) ("The reasonable suspicion
standard is an objective one, so we examine the facts within
the knowledge of [the officer] to determine the presence or
nonexistence of reasonable suspicion.").

This quantum of suspicion is likewise required prior to a
frisk when the officer’s initial encounter with the citizen is
voluntary. See United States v. Burton, 228 F.3d 524, 528 (4th
Cir. 2000) ("[D]uring [initially consensual] police-citizen
encounters, an officer is not entitled, without additional justi-
fication, to conduct a protective search. To conduct such a
protective search, an officer must first have reasonable suspi-
cion supported by articulable facts that criminal activity may
be afoot."); see also Terry, 392 U.S. at 32-33 (Harlan, J., con-
curring) ("[I]f the frisk is justified in order to protect the offi-
cer during an encounter with a citizen, the officer must first
have constitutional grounds to insist on an encounter, to make
a forcible stop. . . . If and when a policeman has a right . . .
to disarm such a person for his own protection, he must first
have a right not to avoid him but to be in his presence. That
right must be more than the liberty . . . to address questions
to other persons, for ordinarily the person addressed has an
equal right to ignore his interrogator and walk away; he cer-
tainly need not submit to a frisk for the questioner’s protec-
tion.") (emphasis added). Thus we can assume without
deciding that Officer Fries’s initial conversation with Massen-
burg and his companions was consensual and that the Fourth
10 UNITED STATES v. MASSENBURG
Amendment was first implicated by Officer Gaines’s frisk of
Massenburg.

We emphasize that the Constitution requires "a particular-
ized and objective basis for suspecting the particular person
stopped of criminal activity." United States v. Griffin, 589
F.3d 148, 152 (4th Cir. 2009) (quoting United States v. Cor-
tez, 449 U.S. 411, 417-18 (1981)) (emphases added). As the
Supreme Court noted in Cortez, "Chief Justice Warren, speak-
ing for the Court in Terry v. Ohio, said that, "[t]his demand
for specificity in the information upon which police action is
predicated is the central teaching of this Court’s Fourth
Amendment jurisprudence." Cortez, 449 U.S. at 418 (quoting
Terry, 392 U.S. at 21 n. 18 (emphasis added by Cortez)).
Indeed, as our late friend and colleague Judge Michael
reminded us in the 2010 Madison Lecture at New York Uni-
versity, "The Fourth Amendment owes its existence to furious
opposition in the American colonies to British search and sei-
zure practices . . . . Th[e] controversy [over the use of general
warrants] left citizens of the new American states with a deep-
dyed fear of discretionary searches permitted by general war-
rants and writs of assistance." The Honorable M. Blane
Michael, Reading the Fourth Amendment: Guidance from the
Mischief that Gave it Birth, 85 N.Y.U. L. Rev. 905, 907, 911-
12 (2010). Cf. Arizona v. Gant, 556 U.S. 332, ___, 129 S. Ct.
1710, 1720 (2009) (noting "the central concern underlying the
Fourth Amendment" is "the concern about giving police offi-
cers unbridled discretion to rummage at will among a per-
son’s private effects"); Delaware v. Prouse, 440 U.S. 648,
661 (1979) (holding unconstitutional a discretionary, suspi-
cionless stop for a "spot check" of a motorist’s license and
registration, emphasizing that "[t]his kind of standardless and
unconstrained discretion is the evil the Court has discerned
when in previous cases it has insisted that the discretion of the
official in the field be circumscribed").

III.

On the facts of this case, there is precious little to sustain
the district court’s holding that Officer Gaines had reasonable,
 UNITED STATES v. MASSENBURG 11
particularized suspicion of Massenburg such that a noncon-
sensual frisk was lawful under the Fourth Amendment.
Among the six factors the district court cited in support of its
ruling is Officer Gaines’s one "year’s worth of practical expe-
rience serving as a law enforcement officer," which of course
is wholly unrelated to appellant. J.A. 74. The first three fac-
tors it listed—that the officers were responding to a "vague
report of shots fired," J.A. 73, that Massenburg was found in
the general vicinity (four blocks) of the reported site of the
gunfire, and that this encounter occurred in a high-crime
area—also do little to create particularized suspicion.

A.

As the district court noted, the officers were responding to
"a vague report of shots fired." J.A. 73. This report was not
only "vague"—indicating only that eight shots were "possi-
bly" fired two blocks south of a certain intersection, J.A.
77—it was also anonymous. Reliance on an anonymous tip
may be reasonable where, "suitably corroborated, [it] exhibits
sufficient indicia of reliability." Florida v. J.L., 529 U.S. 266,
270 (2000). Yet here corroboration did not exist until one of
Massenburg’s companions reported hearing shots
fired—which cannot be said to increase reasonable suspicion
of the companion’s own party, especially since he also
reported that the shots were fired from a moving car (by
unknown parties) several blocks away. Like the tip of illegal
gun possession held unreliable in J.L., the tip here "provided
no predictive information and therefore left the police without
means to test the informant’s knowledge or credibility." Id. at
271. The tipster here disclosed her basis of knowledge—she
heard the shots herself—but little else. Though that disclosure
"enhance[s] the tip’s reliability," United States v. Perkins, 363
F.3d 317, 322 (4th Cir. 2004), we have held that even a
"nearly contemporaneous report" of a drug transaction the tip-
ster reportedly saw was unreliable in the absence of "[s]ome
corroboration," since "a fraudulent tipster can fabricate her
basis of knowledge," United States v. Reaves, 512 F.3d 123,
12 UNITED STATES v. MASSENBURG
127-28 (4th Cir. 2008). Cf. Perkins 363 F.3d at 322, 327-28
(anonymous tip held sufficiently reliable where contempora-
neous viewing was corroborated by presence of a known drug
user in front of a known drug house and where tipster, though
she did not explicitly identify herself, was reasonably
assumed to be a known, reliable informant).2

Furthermore, the poor match between the vague tip and the
individuals encountered substantially undermines reliance on
the tip for reasonable particularized suspicion of Massenburg.
The tip contained no physical description of the perpetrators
or any other outward identifying features; the only link
between the tip and Massenburg’s group was the group’s
rough proximity to the alleged site of the gunfire. The tipster
reported hearing shots two blocks south of the intersection of
Hull and 14th Streets; Massenburg and his friends were
encountered four blocks west of that intersection.
2
Though the threat of harassment that occupied the Court in J.L. may
seem substantially lessened here, where the tipster provided no physical
description or any other identifying information concerning the allegedly
armed person(s), this threat always exists in cases where the information
given by an anonymous tip is sufficiently specific to identify individuals.
See J.L., 529 U.S. at 272 (warning that an "automatic firearm exception
to our established reliability analysis would . . . enable any person seeking
to harass another to set in motion an intrusive, embarrassing police search
of the targeted person"). Since, for this issue to arise, individuals must
have been singled out on the basis of an anonymous tip, the possibility of
targeted harassment always exists, no matter how generic the tip itself may
appear. Just as the anonymous tipster in J.L. likely knew that there was
only one "young black male . . . wearing a plaid shirt" at the indicated bus
stop, id. at 268, the tipster here might well have known that the streets in
the indicated area were empty except for Massenburg and his friends.
We also note that in Reaves, where we held an anonymous tip unreli-
able, the threat of harassment also appeared minimal. There the tipster,
who notified police after she saw what appeared to be a drug deal and
guided police as she followed the car of the alleged drug dealer for several
blocks, ceased pursuit when it came time to turn onto another street to
reach the market, where she was traveling on an errand. Reaves, 512 F.3d
at 125.
 UNITED STATES v. MASSENBURG 13
Thus, while the district court appears to have heavily relied
on the fact that Massenburg and his companions were the only
people encountered as Officers Fries and Gaines responded to
the tip, this provides little basis for reasonable, particularized
suspicion of Massenburg. As J.L. and its progeny indicate,
when a tip lacks sufficient indicia of reliability, presence in
the area identified by the tip does not generate reasonable sus-
picion. Here, Massenburg was not even present at the site of
the alleged gunfire—he was encountered four blocks away.
Cf. United States v. Moore, 817 F.2d 1105, 1106 (4th Cir.
1987) (finding reasonable suspicion where only individual in
the vicinity was found "30 to 40 yards" from the entrance to
a building burglarized two to three minutes before, "moving
away from the scene of the crime"). To the extent that the tip,
together with Massenburg’s location, did identify his group
with particularity, J.L. and Reaves teach that an anonymous
tip, absent some corroboration or sufficient other indicia of
reliability, is not itself a reasonable basis for suspicion justify-
ing a nonconsensual frisk.

The fact that this was a "high-drug, high-crime area" adds
little to the anonymous tip. J.A. 74. This counts among the
totality of the circumstances we consider, but it does little to
support the claimed particularized suspicion as to Massen-
burg. "An individual’s presence in an area of expected crimi-
nal activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is commit-
ting a crime." Illinois v. Wardlow, 528 U.S. 119, 124 (2000);
see Brown v. Texas, 443 U.S. 47, 52 (1979). This is true
because "presence in a high crime neighborhood is a fact too
generic and susceptible to innocent explanation to satisfy the
reasonable suspicion inquiry." Wardlow, 528 U.S. at 139 (Ste-
vens, J., concurring in part and dissenting in part).

As the officers testified, the city police "usually get com-
plaints . . . [for] random gunfire" in this area. J.A. 46. That
such incidents are common may make it more reasonable for
otherwise innocent behavior to appear suspicious to officers
14 UNITED STATES v. MASSENBURG
on the beat; but where a tip has already indicated that shots
were fired, the level of such crime in the neighborhood does
not provide an additional reasonable basis for suspicion of
particular individuals. That the tip concerned a common inci-
dent in a high-crime neighborhood does little to bolster its
reliability and less to create particularized suspicion. While
we appreciate the danger posed by firearms in our cities, the
Supreme Court has rejected "an automatic firearm exception
to our established reliability analysis." J.L., 529 U.S. at 272.
Like any other anonymous tip, a tip concerning firearms must
present certain indicia of reliability before it can provide a
basis for reasonable, particularized suspicion.

To hold otherwise would be to authorize general searches
of persons on the street not unlike those conducted of old by
the crown against the colonists. Allowing officers to stop and
frisk any individuals in the neighborhood after even the most
generic of anonymous tips would be tantamount to permitting
a regime of general searches of virtually any individual resid-
ing in or found in high-crime neighborhoods, where "com-
plaints" of "random gunfire" in the night are all too "usual[ ]."
J.A. 46. James Otis famously decried general searches as "in-
struments of slavery . . . and villainy," which "place[ ] the lib-
erty of every man in the hands of every petty officer,"
warning against abuses by "[e]very man prompted by
revenge, ill humor, or wantonness." Timothy Lynch, In
Defense of the Exclusionary Rule, 23 Harv. J. L. & Pub. P.
711, 722 (2000) (quoting James Otis, Speech on the Writs of
Assistance (1761)). The Fourth Amendment, and the courts’
Fourth Amendment jurisprudence, is aimed at this evil. With-
out reasonable particularized suspicion of wrongdoing, such
searches and seizures offend the Constitution.

B.

Reasonable suspicion determinations are made according to
the totality of the circumstances, and in light of the
above—Massenburg’s presence in a high-crime neighborhood
 UNITED STATES v. MASSENBURG 15
shortly after an (unreliable) tip concerning random gunfire in
the general vicinity—we give Officer Gaines a good deal of
leeway in his interpretation of Massenburg’s behavior. Yet, as
we recently reminded the Government in Foster, it cannot
simply proffer "whatever facts are present, no matter how
innocent, as indicia of suspicious activity." 634 F.3d at 248.
We expressed serious concerns there about "the way in which
the Government attempts to spin . . . mundane acts into a web
of deception," id.; these concerns are amplified when these
"mundane acts" are incident to the refusal to consent to a vol-
untary search.

Officer Gaines made clear in his testimony that "it wasn’t
until actually I made contact with [Massenburg] that I noticed
nervous behavior from him." J.A. 48. His "blow-by-blow"
account of the encounter—which is not contradicted by Fries
or any other evidence—indicates that this "nervous behavior"
was his characterization of Massenburg’s repeated refusal to
consent to a voluntary pat-down: "We questioned if anybody
had any weapons on them. The individuals besides Massen-
burg stated, we don’t have anything, you can check us. And
Tyerail [Massenburg] was kind of hesitant and stand-offish,
and kind of real reluctant to give consent to a pat down or a
search of his person." J.A. 48. Gaines reiterated this when
asked a second time to describe Massenburg’s nervous behav-
ior:

Like, I said, he was standing off from the three in the
group from being questioned [sic]. He was reluctant,
didn’t show any eye contact. Looked down. Once he
stood back and stated, "I don’t need to get a pat-
down. That kind of raised my suspicion a little fur-
ther. And we were more persistent to find out
whether he had weapons on his person.

J.A. 49-50 (emphases added). On cross-examination, Gaines
again explained that Massenburg "was the only one to be
reluctant" and admitted, when asked if it was true he had "no
16 UNITED STATES v. MASSENBURG
new information to know [Massenburg] was armed and dan-
gerous but for the fact he didn’t want to be patted down," that
there was "[n]othing" except Massenburg’s "statements" (he
"kept on saying, I don’t need to be patted down") and "the
area of the call." J.A. 57-59.

The evidence Gaines cites for Massenburg’s nervousness is
slight: Massenburg was standing a foot or two from the other
three, who were lined up shoulder-to-shoulder, and "[l]ooked
down" or failed to make eye contact as Gaines repeatedly
asked him if he would consent to a search. The district court
accepted the Government’s characterization and deemed
Massenburg’s lack of eye contact "nervous behavior," yet as
Judge Gregory noted in United States v. Foreman, the Gov-
ernment often argues just the reverse: that it is suspicious
when "an individual looks or stares back at [officers]." 369
F.3d 776, 787 n.1 (4th Cir. 2004) (Gregory, J., concurring in
part and dissenting in part) (collecting cases); see also United
States v. McFarley, 991 F.2d 1188, 1192 (4th Cir. 1993) (not-
ing, in support of reasonable suspicion, that appellant and his
companion "each canvassed the terminal area, obtaining eye
contact with Officer Faulkenberry"). Given the complex real-
ity of citizen-police relationships in many cities, a young
man’s keeping his eyes down during a police encounter seems
just as likely to be a show of respect and an attempt to avoid
confrontation. Cf. State v. Scott, 412 So. 2d 988, 989 (La.
1982) ("Nervousness on the part of a black laborer when con-
fronted by an armed uniformed police officer does not seem
so unusual as to indicate guilt or criminal proclivity.")

It is, of course, highly relevant when suspects "engage[ ] in
evasive behavior or act[ ] nervously." United States v. Mayo,
361 F.3d 802, 806 (4th Cir. 2004). Yet Massenburg did not
attempt to evade the officers—in fact, he and his companions
stopped to speak with Officer Fries, and one volunteered
information about recent gunfire. And looking down as an
officer persists in requesting consent to a search is a far cry
from the "unusually nervous behavior" we cited in United
 UNITED STATES v. MASSENBURG 17
States v. Mayo, which included "shaking hands, heavy breath-
ing, and providing inconsistent answers." 861 F.3d at 806 (cit-
ing to United States v. McFarley, 991 F.2d 1188, 1192 (4th
Cir. 1993)). As the Tenth Circuit explained in United States
v. Salzano,

[I]t is common for most people to exhibit signs of
nervousness when confronted by a law enforcement
officer whether or not the person is currently
engaged in criminal activity. Thus, absent signs of
nervousness beyond the norm, we will discount the
detaining officer’s reliance on the detainee’s ner-
vousness as a basis for reasonable suspicion.

158 F.3d 1107, 1113 (10th Cir. 1998) (internal quotation
marks and citations omitted). See also State v. Lee, 658
N.W.2d 669, 678-79 (Neb. 2003) ("[N]ervousness is of lim-
ited value" to reasonable suspicion analyses as "it is common
knowledge that most citizens whether innocent or guilty,
when confronted by a law enforcement officer who asks them
potentially incriminating questions are likely to exhibit some
signs of nervousness.").

Indeed, the Supreme Court of Wyoming has applied this
commonsense principle to a situation much like this one,
where an officer was asking a motorist for consent to search
his car and, upon the motorist’s refusal, continued to ask him
"whether there was some reason he did not want the officer
looking in the vehicle." Damato v. State, 64 P.3d 700, 709
(Wyo. 2003). Reasoning that "[r]ealistically, few citizens
would not have become uncomfortable to some degree with
these questions," the court discounted as a "factor of no sig-
nificance" far more extreme signs of nervousness, including
the motorist’s "sweating heavily although it was a chilly day,
his carotid artery pulsating hard and fast, and an inability to
keep eye contact." Id.

And as a reasonable response to continued police question-
ing, looking down is a good deal more innocent than the
18 UNITED STATES v. MASSENBURG
defendant’s actions in United States v. Sprinkle, where the
defendant "put his head down and his hand up to his face as
if to avoid recognition" as an officer passed the car and then
"drove away as soon as the officers walked by." 106 F.3d 613,
617 (4th Cir. 1997). In Sprinkle we found no reasonable sus-
picion existed, even though the officers knew the defendant
to have been recently released from prison following narcotics
convictions, defendant was in a neighborhood known for drug
trafficking, and his evasive behavior was preceded by some-
one else’s entering the car and making gestures consistent
with a covert exchange ("huddling" with the two men’s hands
"close[ ] together" as if to pass something). Id. at 615-16.
When we have held that behavior far more extreme, by a
known narcotics dealer, in a high-crime area does not create
reasonable suspicion, it is difficult to imagine that Massen-
burg’s keeping his eyes down as he is asked repeatedly to
consent to a voluntary search would suffice.

Indeed, we are especially conscious here of the fact that
Massenburg’s looking down was incident to his repeated
refusal to consent to a voluntary search. It cannot be doubted
that "a refusal to cooperate [with a police request to conduct
a voluntary search], without more, does not furnish the mini-
mal level of objective justification needed for a detention or
seizure." Florida v. Bostick, 501 U.S. 429, 437 (1991); see
also Mayo, 361 F.3d at 806 ("A suspect’s refusal to cooperate
with police, without more, does not satisfy Terry stop require-
ments."). If the ordinary response of the innocent upon being
asked to consent to a search—some mild nervous-
ness—sufficed to create reasonable suspicion, then Terry’s
reasonable suspicion requirement would become meaningless:
officers could ask a citizen for permission to conduct a volun-
tary search, and, if denied, they could use the citizen’s denial
as evidence of criminal activity and perform the search any-
way. Though, as an analytic matter, nervousness can be sepa-
rated from the denial of consent itself,3 to attempt to extricate
3
Indeed, the suggestion in Bostick that the refusal to cooperate may go
even some of the way toward establishing reasonable suspicion is best
read to refer to these sorts of indicators. See Bostick, 501 U.S. at 437.
 UNITED STATES v. MASSENBURG 19
the very mildest indicators of nervousness—such as a failure
to maintain eye contact during the refusal, as the officer
becomes "more persistent," J.A. 50—from the denial itself is
too nice a matter. Virtually any denial will be accompanied by
these mild reactions to the request, and thus virtually any
denial would go much of the way toward authorizing a non-
consensual search. This cannot be the case.

As for the district court’s characterization of Massenburg’s
"self-pat down" as "[f]urtive movements," J.A. 74, it recalls
the Government’s suggestion in Foster that a man’s "sud-
den[ly]" "pop[ping] up" in a car with "his arms going hay-
wire" was suspicious. Foster, 634 F.3d at 247. There we
warned against "using whatever facts are present, no matter
how innocent, as indicia of suspicious activity," and reminded
the Government that it "must do more than simply label a
behavior as ‘suspicious’ to make it so": "The Government
must also be able 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."
Id. at 248. No such demonstration has been forthcoming.
Massenburg’s "self-pat down" was interpreted as such by
Officer Gaines, and as an obvious attempt to satisfy him with-
out consenting to a frisk, it provided little basis, if any, as a
matter of constitutional analysis, for a reasonable suspicion of
wrongdoing.

Genuinely suspicious behavior, occurring in a high-crime
neighborhood after a tip concerning gunfire, would certainly
justify a Terry stop and almost certainly a frisk of the
detainee. Where that tip is unreliable, the question becomes
closer. But where the accompanying behavior—the only sub-
stantial basis for particularized suspicion—is simply a mild
reaction to repeated requests to relinquish one’s constitutional
right to be free from unreasonable searches, it is clear that rea-
sonable, particularized suspicion of criminal activity does not
exist.
20 UNITED STATES v. MASSENBURG
IV.

The Government suggests that under the collective-
knowledge doctrine (also called the "fellow officer" rule)
Officer Fries’s observation of a bulge in Massenburg’s jacket
pocket should be imputed to Officer Gaines, though, as the
Government concedes, Fries never "inform[ed]" Gaines about
it. Br. of Appellee, at 16 n.1.4 Because this novel application
of the doctrine would stretch it well beyond its purpose, we
decline to do so.

The collective-knowledge doctrine, as enunciated by the
Supreme Court, holds that when an officer acts on an instruc-
tion from another officer, the act is justified if the instructing
officer had sufficient information to justify taking such action
herself; in this very limited sense, the instructing officer’s
knowledge is imputed to the acting officer. In Whiteley v.
Warden, the Supreme Court recognized in dicta that "officers
called upon to aid other officers in executing arrest warrants
are entitled to assume that the officers requesting aid" had
probable cause to support the issue of the warrant. 401 U.S.
560, 568 (1971). The Court applied this principle in United
States v. Hensley, holding that where officers stopped defen-
dant "in objective reliance" on a flyer from another depart-
ment that explained that defendant was wanted in connection
with an aggravated robbery and requested that other police
4
During cross-examination, Fries said that after seeing the bulge he
"made a movement towards him [Gaines? Massenburg?], but that is a
hand gesture, maybe," "[a]t best." J.A. 43. There was no serious conten-
tion by Fries that he communicated his observation to Gaines, see J.A. 32;
he admitted he "didn’t alert" Gaines. J.A. 43. The Government has con-
ceded this point: it relegates discussion of the bulge to a footnote, where
it admits that "before [Fries] could inform Officer Gaines, Gaines began
performing a pat-down of Massenburg." Br. of Appellee, at 16 n.1. More
importantly, Officer Gaines made no mention in his testimony of seeing
a sign or signal from Fries. Accordingly, we conclude that Fries’s observa-
tion of the "bulge" was not communicated to Gaines at the time he under-
took his search.
 UNITED STATES v. MASSENBURG 21
departments "pick up and hold" him, the stop was justified if
and only if the officers who issued the request had reasonable,
particularized suspicion sufficient to justify their own stop:

We conclude that, if a flyer or bulletin has been
issued on the basis of articulable facts supporting a
reasonable suspicion that the wanted person has
committed an offense, then reliance on that flyer or
bulletin justifies a stop . . . . If the flyer has been
issued in the absence of a reasonable suspicion, then
a stop in the objective reliance upon it violates the
Fourth Amendment.

469 U.S. 221, 223, 232 (1985) (internal citations omitted).

We have applied the collective-knowledge doctrine often,
both before and after Whiteley and Hensley, and our case law
likewise establishes that the doctrine has a limited domain:
officers acting on the information and instructions of other
officers. In United States v. Pitt, federal police agent Wurms
learned through an informant that a large quantity of heroin
was being driven from New York City to Washington, D.C.
382 F.2d 322 (4th Cir. 1967). Agent Wurms informed fellow
agents, including Agent Worden, and instructed Baltimore
City police to intercept the car. Pitt was arrested by Agent
Worden, with the assistance of city police. Rejecting Pitt’s
claim that Worden lacked personal knowledge of the facts
constituting probable cause, we noted that "[p]robable cause
. . . can rest upon the collective knowledge of the police,
rather than solely on that of the officer who actually makes
the arrest." Id. at 324. Though this shorthand reference to the
collective-knowledge doctrine might be misleading out of
context, we went on in the next sentence to explain that "[i]t
was enough that Agent Wurms reported to Agent Worden the
substance of his telephone conversation with the informant."
Id.

In our discussion of the doctrine in United States v. Laugh-
man, we made its limitations explicit:
22 UNITED STATES v. MASSENBURG
The law seems to be clear that so long as the offi-
cer who orders an arrest or search has knowledge of
facts establishing probable cause, it is not necessary
for the officers actually making the arrest or con-
ducting the search to be personally aware of those
facts.

[N.3] When a superior officer orders another offi-
cer to make an arrest, it is proper to consider the
superior’s knowledge in determining whether there
was probable cause. Likewise, when a group of
agents in close communication with one another
determines that it is proper to arrest an individual,
the knowledge of the group that made the decision
may be considered in determining probable cause,
not just the knowledge of the individual officer who
physically effected the arrest. [collecting cases]

618 F.2d 1067, 1072-73 & n.3 (4th Cir. 1980) (emphasis
added). Again, the collective-knowledge doctrine simply
directs us to substitute the knowledge of the instructing offi-
cer or officers for the knowledge of the acting officer; it does
not permit us to aggregate bits and pieces of information from
among myriad officers, nor does it apply outside the context
of communicated alerts or instructions. See 2 Wayne R.
LaFave, Search and Seizure § 3.5(b) (4th ed. 2004) ("[U]nder
the Whiteley rule (or, as it is sometimes termed, the ‘fellow
officer’ rule) police are in a limited sense ‘entitled to act’
upon the strength of a communication through official chan-
nels directing or requesting that an arrest be made."); cf.
United States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996)
("[A]lthough the agent who actually seized the weapon pursu-
ant to the supervising agent’s instructions had no personal
knowledge that Wells was a convicted felon, it is sufficient
that the agents collectively had probable cause to believe the
weapon was evidence of a crime at the time of the seizure.")
(emphasis added); United States v. Gaither, 527 F.2d 456,
458 (4th Cir. 1975) (quoting Pitt to support application of
 UNITED STATES v. MASSENBURG 23
collective-knowledge doctrine where arresting officer was
"acting on" a "‘flash’ bulletin" issued by FBI agents who had
just observed a bank robbery).

The Government would have us recognize a far more
expansive rule, which would look to the aggregated knowl-
edge of all officers involved to determine if reasonable suspi-
cion or probable cause existed. Under this proposed rule, it
would be irrelevant that no officer had sufficient information
to justify a search or seizure. It would be irrelevant that no
officer believed any other officer had pertinent information,
and thus that the acting officer undertook a search or seizure
she should have believed to be illegal. Indeed, as this aggrega-
tion rule is only required when the information at issue has
not been communicated to other officers (as the "aggregation"
it concerns is judicial, after-the-fact aggregation, not an acting
officer’s reliance on instructions or information conveyed by
another officer), this would be the paradigmatic case. Were
we to adopt this rule, the legality of the search would depend
solely on whether, after the fact, it turns out that the disparate
pieces of information held by different officers added up to
reasonable suspicion or probable cause.

The Tenth Circuit has helpfully distinguished "‘vertical’
collective knowledge relationships in which [one] officer’s
conclusion [i]s conveyed" to others who effect the seizure
from a "‘horizontal’ collective knowledge relationship in
which the knowledge of several officers must be aggregated
to create probable cause." United States v. Rodriguez-
Rodriguez, 550 F.3d 1223, 1228 n.5 (10th Cir. 2008). No case
from the Supreme Court or from our own court has ever
expanded the collective-knowledge doctrine beyond the con-
text of information or instructions communicated
("vertically") to acting officers. Some of our sister courts have
authorized "horizontal" aggregation of uncommunicated
information. See United States v. Ramirez, 473 F.3d 1027,
1032-33 (9th Cir. 2007) (collecting cases). Because we
believe that this expansive aggregation rule strays from the
24 UNITED STATES v. MASSENBURG
purposes of the collective-knowledge doctrine recognized by
the Supreme Court and promotes none of the proper ends of
law enforcement, we decline to follow them.

The rationale behind the Supreme Court’s collective-
knowledge doctrine is, as the Court noted in Hensley, "a mat-
ter of common sense: [the rule] minimizes the volume of
information concerning suspects that must be transmitted to
other jurisdictions [or officers] and enables police . . . to act
promptly in reliance on information from another jurisdiction
[or officer]." Hensley, 469 U.S. at 231. Thus, law enforcement
efficiency and responsiveness would be increased: Police
department search-and-seizure training would soon reflect
Hensley’s rule, and officers would learn that they need not
relay the information justifying an alert when issuing one nor
wait for such information upon hearing one.

The Government’s proposed aggregation rule serves no
such ends. Because it jettisons the present requirement of
communication between an instructing and an acting officer,
officers would have no way of knowing before a search or
seizure whether the aggregation rule would make it legal, or
even how likely that is. The officer deciding whether or not
to perform a given search will simply know that she lacks
cause; in ordinary circumstances, she will have no way of
estimating the likelihood that her fellow officers hold enough
uncommunicated information to justify the search. And as an
officer will never know ex ante when the aggregation rule
might apply, the rule does not allow for useful shortcuts when
an officer knows an action to be legal, as Hensley did. Per-
haps an officer who knows she lacks cause for a search will
be more likely to roll the dice and conduct the search anyway,
in the hopes that uncommunicated information existed. But as
this would only create an incentive for officers to conduct
searches and seizures they believe are likely illegal, it would
be directly contrary to the purposes of longstanding Fourth
Amendment jurisprudence.
 UNITED STATES v. MASSENBURG 25
As the Supreme Court recently reaffirmed in Davis v.
United States, the exclusionary rule’s "sole purpose . . . is to
deter future Fourth Amendment violations." ___ U.S. ___,
___, 131 S. Ct. 2419, 2426 (2011). It targets police action that
"exhibit[s] deliberate, reckless, or grossly negligent disregard
for Fourth Amendment rights"—in these cases the "deterrent
value of exclusion is strong and tends to outweigh the result-
ing costs." Id. at 2427 (internal quotation marks omitted). As
the Government’s proposed aggregation rule would do noth-
ing but redeem searches or seizures that the acting officers
should have believed at the time to be unlawful, it would
serve only to erode that deterrence. The Davis Court further
broadened the "good-faith" exception to the exclusionary rule,
recognizing that "when the police act with an objectively rea-
sonable good-faith belief that their conduct is lawful . . . the
deterrence rationale loses much of its force." Id. at 2427-28.
The Government’s proposed aggregation rule would per-
versely reward officers acting in bad faith according to the
result of an after-the-fact aggregation inquiry that is simply
academic.

Though we have studied our sister circuits’ cases adopting
an aggregation rule, we can find no convincing defense of it.5
Most courts to have adopted the rule appear to have done so
simply on the grounds that officers working closely together
are "a team," United States v. Terry, 400 F.3d 575, 581 (8th
Cir. 2005); United States v. Edwards, 885 F.2d 377, 383 (7th
Cir. 1989), or, as one court put it, "on the theory that officers
working closely together during a stop or an arrest can be
treated as a single organism," United States v. Shareef, 100
F.3d 1491, 1504 & n.6 (10th Cir. 1996) (considering this
rationale after rejecting a general aggregation rule). But why?
We must frame the question in terms of deterrence, and for
the purposes of deterrence we look to each individual offi-
cer’s decision-making process as she considers executing a
5
For collections of these cases, see Ramirez, 473 F.3d at 1032-33, and
Bailey v. Newland, 263 F.3d 1022, 1031-32 (9th Cir. 2001).
26 UNITED STATES v. MASSENBURG
search or effecting a seizure. Where officers working closely
together have not communicated pertinent information, the
acting officer weighs the costs and benefits of performing the
search in total ignorance of the existence of that informa-
tion—it is not known to her, so it cannot enter into the calcu-
lus. Therefore, for purposes of the exclusionary rule, that
additional information must be irrelevant.6

Furthermore, if the "team" or "single organism" theory
should apply when the information at issue is incriminating,
should it not apply when the information is exculpatory? Yet,
we held in United States v. Holmes that the collective-
knowledge doctrine does not impute uncommunicated excul-
patory knowledge to fellow officers in similar circumstances.
376 F.3d 270, 277 n.3 (4th Cir. 2004). Likewise, though most
courts to allow aggregation have required "some degree of
communication" among the officers, Terry, 400 F.3d at 581,
see also Ramirez, 473 F.3d at 1032-33, it is not clear why. If
the Fourth Amendment is satisfied when, unbeknownst to the
officer conducting a search, a fellow officer on the scene has
the information necessary to justify it, why should the analy-
sis change when the other officer is not on the scene? Yet we
recently held in United States v. Blauvelt that information
held by others in the "law enforcement community at large"
is not imputed to members of a particular investigative team.
638 F.3d 281, 289 (4th Cir. 2011). Cf. People v. Hazelhurst,
662 P.2d 1081, 1087 (Colo. 1983) ("The fellow officer rule,
however, is not a means of creating probable cause by using
6
It is true that in the "vertical" collective-knowledge context the acting
officer is ignorant of the actual information held by the instructing officer.
But there the instruction itself communicates to the acting officer that the
instructing officer believes that she has sufficient information to justify the
action; after Hensley, police procedure can have the acting officer defer to
the instructing officer. Thus, the only officer making a reasonable suspi-
cion or probable cause determination is the instructing officer, and she will
be deterred by potential application of the exclusionary rule from ordering
an illegal search in the same way that an officer executing her own search
would be.
 UNITED STATES v. MASSENBURG 27
post hoc combinations of information available to the police.
The rule does not permit the police to cull its archives in
hopes of justifying an arrest which is not supported by proba-
ble cause.")

Because we believe the aggregation rule runs contrary to
the Supreme Court’s Fourth Amendment jurisprudence,
would seriously erode the efficacy of the exclusionary rule’s
deterrent purposes, and serves none of the legitimate ends of
law enforcement, we reject it. We do not impute Officer
Fries’s observation of a "bulge" in Massenburg’s jacket
pocket to Officer Gaines, and thus, for the reasons stated
above, we hold that Gaines lacked the reasonable suspicion
needed to conduct a lawful nonconsensual frisk. Accordingly,
the district court erred when it failed to suppress the fruits of
that unlawful search.

V.

For the reasons set forth herein, the judgment is vacated,
the district court’s order denying the motion to suppress is
reversed, and the case is remanded for further proceedings
consistent with this opinion.

VACATED, REVERSED, AND REMANDED