UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4618
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LEWIS BRYANT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:15-cr-00099-JAB-1)
Submitted: April 26, 2016 Decided: July 19, 2016
Before KING, WYNN, and DIAZ, Circuit Judges.
Reversed, vacated, and remanded by unpublished opinion. Judge
Diaz wrote the opinion, in which Judge King and Judge Wynn
joined.
Benjamin D. Porter, MORROW PORTER VERMITSKY FOWLER & TAYLOR,
PLLC, Winston-Salem, North Carolina, for Appellant. Ripley
Rand, United States Attorney, Graham T. Green, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:
James Lewis Bryant, Jr., entered a conditional guilty plea
to being a prohibited person in possession of a firearm,
reserving the right to appeal the district court’s denial of his
motion to suppress evidence of a firearm recovered after a Terry 1
stop. He argues that the stop violated his Fourth Amendment
rights because the police lacked reasonable suspicion that he
was engaged in criminal activity. We agree and therefore
reverse the district court’s denial of Bryant’s motion to
suppress, vacate his conviction and sentence, and remand for
further proceedings.
I.
A.
On September 4, 2014, the police in Winston-Salem, North
Carolina, received an anonymous tip that ultimately led to the
discovery of the evidence Bryant seeks to suppress. The tipster
told the police to “check for” Bryant at Wingz & Spiritz, a
restaurant/bar in downtown Winston-Salem, because Bryant had a
gun inside a brown satchel. J.A. 25–26. In providing the
police with this information, the tipster gave Bryant’s full
1 Terry v. Ohio, 392 U.S. 1 (1968).
2
name and his date of birth. The tipster also described Bryant’s
appearance and said he was a felon.
Officer David Walsh was dispatched to Wingz & Spiritz, but
before heading there, he researched Bryant on his computer.
Walsh reviewed Bryant’s mugshot, learned his height and weight,
and confirmed that the tipster correctly relayed Bryant’s full
name and date of birth. Walsh also saw a “caution
indicator[] . . . noting [Bryant] as a convicted felon,
registered sex offender.” J.A. 26.
Walsh then walked to Wingz & Spiritz where he found Bryant, 2
who matched the tipster’s description in all respects except
that he was wearing a silver backpack rather than a brown
satchel. Initially, Walsh did not approach Bryant, opting
instead to make small talk with a restaurant employee while
observing Bryant’s behavior for “his reaction to [Walsh] as a
uniformed officer.” J.A. 27. 3
Eventually, Walsh approached Bryant and told him that
somebody called the police on him. According to Walsh, Bryant
then “seemed like he started to walk away” but then turned back,
2
All of Walsh’s actions from this point forth were recorded
on his body camera.
3
While the district court said that “Officer Walsh stated
that he felt [Bryant] was acting nervous during this time,” J.A.
53, we do not find such testimony in the record.
3
“sp[eaking] . . . in a low whisperish-type voice.” J.A. 28.
This tone of voice made Walsh “even more suspicious” because, in
his experience, people who “have just been caught or are in
trouble” will often become “really animated and shouting as kind
of a distraction or sometimes . . . they’ll lower their voice
and talk real low in a whisper.” J.A. 28.
Bryant then sat on a bench. Walsh observed that “when he
sat down his right arm, he had it pinned to his body and he sat
down real slow, kind of stunned.” J.A. 28. Based on this and
his interaction with Bryant so far, Walsh was left with the
overall impression that “this guy is really nervous and I don’t
think he wants to be—I don’t think he likes being around me.”
J.A. 28.
Walsh next told Bryant that the person who called the
police on him reported that he might have a gun. Walsh asked
Bryant if this report was true, to which Bryant responded, “No.”
J.A. 28. Next, Walsh said, “You’re not supposed to have a gun,
are you?” J.A. 28. Bryant agreed. Walsh then said that the
caller told the police that Bryant’s gun was inside his
backpack, which Bryant denied.
Walsh next asked, “[C]an you open your backpack and show me
you don’t have a gun in there, please?” J.A. 29. Bryant then
took his backpack off his shoulder, placed the backpack on the
bench space next to him, and began reaching into the bag. In
4
doing this, Bryant had his back toward Walsh. Walsh, fearful
that he could be shot, said, “Don’t put your hand in there.
I’ll do it for you.” J.A. 30.
Walsh then took control of the bag, feeling “a centralized
heavy weight” that was “similar to what a handgun would weigh.”
J.A. 30, 41. Bryant continued to deny that there was a gun
inside of the bag, but ultimately Walsh recovered a revolver.
Bryant was then arrested.
B.
Bryant was indicted for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He
moved to suppress evidence of the revolver, asserting a Fourth
Amendment violation based on Florida v. J.L., 529 U.S. 266
(2000) (holding that an unreliable anonymous tip that someone
was carrying a gun, without more, did not justify a Terry stop). 4
The district court denied Bryant’s motion. It found that
Walsh had reasonable suspicion that Bryant was engaged in
criminal activity, justifying Walsh’s seizure of Bryant. The
court based its conclusion on (1) the anonymous tip; (2) Walsh’s
4 Bryant maintained that he did not consent to a search and
that his interaction with Walsh was no longer consensual when
Walsh ordered him to keep his hands out of his bag. The
district court agreed, and the government does not challenge
this finding on appeal.
5
corroboration of details given in the tip, including the fact
that Bryant was a felon; and (3) Bryant’s nervous behavior.
Bryant then entered a conditional guilty plea, preserving
his right to challenge the district court’s denial of his
suppression motion. The court sentenced him to 21 months’
imprisonment followed by three years of supervised release.
This appeal followed.
II.
The only issue on appeal is whether Walsh’s seizure of
Bryant was justified—that is, whether Walsh violated the Fourth
Amendment when he ordered Bryant to keep his hands out of his
backpack. Thus, we evaluate this case under the familiar
reasonable-suspicion standard articulated in Terry and its
progeny.
On appeal from a denial of a suppression motion, “we review
the district court’s factual findings for clear error and its
legal conclusions de novo.” United States v. Green, 740 F.3d
275, 277 (4th Cir. 2014). As the government prevailed below,
“[w]e construe the evidence in the light most favorable to
[it].” Id.
A police officer may not conduct an investigatory stop of a
person unless “the officer’s action is supported by a reasonable
and articulable suspicion . . . that criminal activity ‘may be
6
afoot.’” United States v. Bumpers, 705 F.3d 168, 171 (4th Cir.
2013) (quoting Terry, 392 U.S. at 30). That suspicion must be
rooted in “a ‘particularized and objective basis for suspecting
the particular person stopped of criminal activity.’” United
States v. Black, 707 F.3d 531, 539 (4th Cir. 2013) (quoting
United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)).
To evaluate whether an officer had reasonable suspicion,
courts look to “the totality of the circumstances.” United
States v. Slocumb, 804 F.3d 677, 682 (4th Cir. 2015). Seemingly
innocent facts may, when viewed in aggregate, furnish reasonable
suspicion. See id. “That said, we are skeptical of ‘Government
attempts to spin . . . largely mundane acts into a web of
deception.’” United States v. Foster, No. 15-4319, 2016 WL
2996904, at *3 (4th Cir. May 24, 2016) (published opinion)
(alteration in original) (quoting United States v. Foster, 634
F.3d 243, 248 (4th Cir. 2011)). Consequently, “the Government
cannot rely upon post hoc rationalizations to validate those
seizures that happen to turn up contraband.” Id. (quoting
Foster, 634 F.3d at 249).
The government points to three factors supporting Walsh’s
suspicion that Bryant was breaking the law:
(1) the anonymous call reporting that Bryant had a firearm
in his bag and giving particular details about Bryant,
and Walsh’s confirmation of the accuracy of some of
those details;
7
(2) Bryant’s criminal record; and
(3) Bryant’s nervous behavior when confronted by Walsh
with the information that someone reported him to the
police.
Reviewing these factors together, we conclude that Walsh lacked
reasonable suspicion that Bryant was engaged in criminal
activity.
The first factor—the anonymous tip and Walsh’s research
confirming some of the details given by the caller—is the most
important, as the tip was the impetus for Walsh confronting
Bryant and the most direct evidence supporting Walsh’s suspicion
that Bryant was armed. While an anonymous tip, by itself,
cannot justify a Terry stop, see United States v. Elston, 479
F.3d 314, 317 (4th Cir. 2007), the police may rely on such a tip
if it is “suitably corroborated, exhibit[ing] ‘sufficient
indicia of reliability,’” J.L., 529 U.S. at 270 (quoting Alabama
v. White, 496 U.S. 325, 327 (1990)).
The parties do not dispute that the tip, taken alone, was
insufficient to establish reasonable suspicion. They argue,
however, whether this case is akin to J.L., where a stop was not
justified based on an anonymous tip, or Alabama v. White, where
an anonymous tip supported a finding of reasonable suspicion.
In White, an anonymous tipster told the police that a
Vanessa White would leave a particular apartment at a particular
time in a particular car to travel to Dobey’s Motel with an
8
ounce of cocaine in an attaché case. 496 U.S. at 327. The
police went to the apartment specified by the caller and,
“within the timeframe predicted by the caller,” saw a woman walk
into the car that the tipster had described and drive on the
“most direct route to Dobey’s Motel.” Id. at 327, 331. The
police stopped the car and ultimately recovered drugs. Id. at
327.
The Court concluded that, although it was a “close case,”
the stop was legal because it was reasonable for the police to
rely on the tip after corroborating “significant aspects of the
informer’s predictions.” Id. at 331–32. The Court was careful,
however, to distinguish between “details [given by a tipster]
relating . . . to easily obtained facts and conditions existing
at the time of the tip” and “future actions of third parties
ordinarily not easily predicted.” Id. at 332 (quoting Illinois
v. Gates, 462 U.S. 213, 245 (1983)). The former are of little
value because anyone can observe and report unremarkable
conditions existing at the time of a call, such as the color and
location of White’s car. See id. In contrast, the latter type
of detail (a prediction of future actions) increases the
reliability of a tip by “demonstrat[ing] inside information—a
special familiarity with [the suspect’s] affairs.” Id.
Accordingly, the Court determined that because the anonymous
caller was privy to White’s itinerary, it was reasonable to
9
think that the caller “also ha[d] access to reliable information
about [White’s] illegal activities.” Id.
In J.L., an anonymous tipster reported that “a young black
male standing at a particular bus stop and wearing a plaid shirt
was carrying a gun.” 529 U.S. at 268. Police officers arrived
at the scene and found J.L., who matched the description in the
tip, along with two other people. Id. The police then stopped
and frisked J.L. even though they “had no [other] reason to
suspect [J.L. or his two companions] of illegal conduct” and
they “did not see a firearm, and J.L. made no threatening or
otherwise unusual movements.” Id.
The Supreme Court concluded that the police lacked
reasonable suspicion to support a Terry stop. Id. The Court
rejected the government’s argument that “the tip was reliable
because its description of the suspect’s visible attributes
proved accurate.” Id. at 271. The Court reasoned that while
“[a]n accurate description of a subject’s readily observable
location and appearance” is reliable in the sense that “[i]t
will help the police correctly identify the person whom the
tipster means to accuse,” such a description does not
demonstrate that “the tipster has knowledge of concealed
criminal activity.” Id. at 272. This was critical, the Court
explained, because reasonable suspicion “requires that a tip be
10
reliable in its assertion of illegality, not just its tendency
to identify a determinate person.” See id. (emphasis added).
The tip in the instant case is far more like the one in
J.L. than the one in White and therefore deserves little weight
in our reasonable-suspicion calculus. While the tipster here
provided more detail than the tipster in J.L. (namely, Bryant’s
name, birthday, age, and status as a felon), these details
merely “identify a determinate person” rather than demonstrate
the reliability of the tipster’s “assertion of illegality.” Id.
Indeed, similar to J.L., nothing supported the tipster’s
assertion of illegality beyond his or her bald statement that
Bryant was carrying a gun inside of his bag. 5
Moreover, the details that the tipster provided in this
case were less impressive than those given in White. The trivia
that the tipster recited about Bryant are available on the
internet, as Bryant is a registered sex offender. Thus, they
are a weak indicator of the caller’s access to “inside
information,” especially in comparison to the predictions of
future behavior made by the tipster in White. See White, 496
5
This distinguishes the instant case from Navarette v.
California, 134 S. Ct. 1683, 1688–89 (2014) (explaining that a
tip reporting dangerous driving was reliable because the
tipster’s information was based on witnessing the dangerous
driving firsthand, unlike in J.L., “where the tip provided no
basis for concluding that the tipster had actually seen the
gun”).
11
U.S. at 332 (“The general public would have had no way of
knowing that [White] would shortly leave the building, get in
the described car, and drive the most direct route to Dobey’s
Motel.”).
The second factor to which the government points—the fact
that Bryant had a felony conviction—does not significantly
bolster the case for reasonable suspicion. A person’s criminal
record, standing alone, cannot justify a stop, although it can
support a finding of reasonable suspicion when accompanied by
more “concrete” indications of criminal activity. See United
States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997). Here,
there are no concrete indications that Bryant was engaging in
criminal activity. Furthermore, Walsh learned that Bryant’s
felon status was based on a prior sex offense, a conviction that
does little to suggest that he was carrying a gun on the day in
question.
Finally, the third factor upon which the government relies—
Bryant’s nervous behavior—does not tip the balance in the
government’s favor. While a suspect’s evasiveness and
nervousness are relevant in a reasonable-suspicion inquiry, see
United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011),
“mild nervousness” is to be expected during a police-citizen
interaction and does little to support reasonable suspicion, see
id. at 488–91 (explaining that an unreliable anonymous tip
12
coupled with mild signs of nervousness failed to justify a Terry
stop); see also Slocumb, 804 F.3d at 683 (“We have cautioned
that ‘it is important not to overplay a suspect’s nervous
behavior in situations where citizens would normally be expected
to be upset.’” (quoting United States v. Glover, 662 F.3d 694,
699 (4th Cir. 2011))).
Five aspects of Bryant’s behavior are relevant to whether
he appeared unusually nervous, specifically (1) Bryant “seemed
like he started to walk away” when Walsh approached him,
(2) Bryant spoke in a “low whisperish-type voice” and did not
consistently make eye contact; (3) when Bryant sat down, he had
his right arm “pinned to his body”; (4) Bryant sat down slowly
and seemed “kind of stunned”; and (5) when Bryant took off his
backpack and opened it, he turned to the side, causing his back
to face Walsh. J.A. 27–29. Based on this evidence and after
viewing the body-camera footage, the district court concluded
that Bryant “was acting nervous and avoiding eye contact and any
interaction with Officer Walsh.” 6 J.A. 62.
6
We take no issue with the district court’s finding that
Bryant exhibited signs of nervousness and, at least to some
extent, avoided eye contact. But, the court committed clear
error in finding that Bryant avoided “any interaction” with
Walsh, J.A. 62 (emphasis added), as Bryant did not leave the
scene, responded to Walsh’s questions, and complied with Walsh’s
requests.
13
Though Bryant may have exhibited some nervousness, it was
nothing more than the garden-variety nervousness that often
results from a police-citizen interaction—especially one in
which the officer tells the citizen that he was reported to the
police. First, while Bryant may have “seemed like he started to
walk away,” citizens are free to refuse to cooperate with the
police before a seizure. See Illinois v. Wardlow, 528 U.S. 119,
125 (2000). Moreover, although we have found reasonable
suspicion based on unusually evasive behavior like quickly
walking away from police officers, see Slocumb, 804 F.3d at 683
(discussing cases), we cannot conclude that “seem[ing]
like . . . start[ing] to walk away” is particularly suspicious,
especially considering Bryant made no attempt to leave the scene
when Walsh arrived at Wingz & Spiritz, see Sprinkle, 106 F.3d at
618–19 (concluding that there was no reasonable suspicion where,
among other factors, the defendant attempted to conceal his face
and drove away “in a normal, unhurried manner”).
Second, while Bryant’s mumbling and lack of eye contact may
be consistent with nervousness, they are not the sort of
“unusually nervous behavior[s]” that furnish reasonable
suspicion. See Massenburg, 654 F.3d at 490 (quoting United
States v. Mayo, 361 F.3d 802, 806 (4th Cir. 2004); see also
Foster, 2016 WL 2996904, at *5–7 (explaining that a defendant’s
unresponsiveness and lack of eye contact—even when coupled with
14
an anonymous tip reporting a gunshot and the fact that the
defendant was the only person that the police encountered in the
area where the shot was reported—were insufficient to establish
reasonable suspicion); Slocumb, 804 F.3d at 682–84 (concluding
that a defendant’s lack of eye contact and “low, mumbled
responses,” among other factors, did not give rise to reasonable
suspicion). Bryant responded to Walsh’s questions and was
cooperative. Additionally, while Bryant at times looked away
from Walsh, he did not avoid eye contact throughout the entire
interaction. Fourth Amendment protections do not turn on
faultless elocution or the outcome of staring contests. Only
those among us with ice water in our veins would fail to exhibit
mild signs of nervousness when confronted by a police officer,
especially when the officer says that “somebody called the
police on you.” J.A. 27.
Third, we fail to see how the fact that Bryant’s arm was
pinned to his body is indicative of nervousness or
suspiciousness. Thus, we give this fact no weight in our
analysis. See Massenburg, 654 F.3d at 482 (cautioning against
crediting efforts by the government to use “whatever facts are
present, no matter how innocent, as indicia of suspicious
activity” (quoting Foster, 634 F.3d at 248)).
Fourth, although Bryant sat down slowly, “kind of stunned,”
J.A. 28, this reaction was also not unusual considering Walsh
15
just told him that somebody reported him to the police. See,
e.g., Massenburg, 654 F.3d at 490 (distinguishing unremarkable
nervousness during a police interaction from “unusually nervous
behavior” like breathing heavily, having shaky hands, and giving
inconsistent answers (quoting Mayo, 361 F.3d at 806)).
Fifth, the fact that Bryant turned his back to Walsh when
he complied with Walsh’s request to open his backpack does not
strongly indicate nervousness or evasiveness, if at all. Bryant
was seated on the edge of a bench and, when he opened his bag,
he used the empty part of the bench next to him as a surface.
That this happened to cause Bryant to turn his back to Walsh is
of little moment.
In sum, viewing all of the facts together, we conclude that
the stop of Bryant was not justified by reasonable suspicion of
criminal activity. An unreliable tip, mild signs of
nervousness, and a prior conviction for an offense unrelated to
the one being investigated are simply not enough to permit a
Terry stop. Compare id. at 484–91 (finding no reasonable
suspicion based on an anonymous tip reporting a gunshot, mild
nervousness, and the fact that the defendant and his companions
were the only people found within the vicinity of the reported
shot shortly after the police received the tip), with Foster,
2016 WL 2996904, at *7–9 (finding that the defendant’s
suspicious “security check”—an instinctual movement in which a
16
suspect reaches to ensure that a concealed weapon is secure—
tipped the reasonable-suspicion balance in the government’s
favor where the police also relied on, among other things, an
anonymous tip reporting a gunshot, the defendant’s presence in
the area reported, and the defendant’s unresponsiveness and lack
of eye contact).
III.
For the reasons given, we reverse the district court’s
denial of Bryant’s motion to suppress, vacate his conviction and
sentence, and remand for further proceedings. We direct the
Clerk to issue the mandate forthwith.
REVERSED, VACATED, AND REMANDED
17