dissenting.
I would hold, as did the Magistrate Judge who heard the evidence in this case, that the police lacked sufficient reasonable suspicion to justify the search of the defendant.
Mr. Atlas was on the front porch of his own house. He looked up and saw Officer Reimer in the front yard. When Mr. Atlas saw the officer, he was surprised and dropped a bag he was holding. The bag landed with a thud.
With respect, I cannot agree that these facts are enough to create a reasonable suspicion, based on objective, articulable facts, that a crime was being committed. Significantly, the Court never identifies exactly what crime the officers thought Mr. Atlas was committing. They had no idea whether he was a felon or not, and possession of a gun, in itself, is not a crime. (Indeed, though the right to bear arms is not absolute, it finds explicit protection in the Bill of Rights.) Mr. Atlas did not make the slightest move to threaten or menace the officer. Further, though the bag clearly contained something heavy enough to make a thud, I can’t see what reason there was to believe that that something was a gun. The previous incident, in which Officer Reimer had discovered a gun in a similar bag, had nothing to do with Mr. Atlas.
I don’t have a front porch, or much of a front yard, but I do have a front door, and I suspect that I would look surprised if I should open my door and see a police officer standing there, on my property, without pri- or notice. When asked what was in the bag, Mr. Atlas said “nothing,” but surely it was unreasonable to take this statement literally. Obviously something was in the bag: the statement that “nothing” was in it was simply a colloquial way of saying that the bag contained nothing significant. When someone asks me what I am doing, and I say “nothing,” it is not reasonable to take me literally. I am doing something, even if only breathing. The answer means simply that I am not doing anything of importance.
*453Some emphasis is laid on the fact that the neighborhood “was high in gang activity.” Ante, at 449. We should remember that people who live in such neighborhoods are probably the most frequent victims of such activity. I do not believe that they should indiscriminately be considered dangerous. It would be just as reasonable to infer that Mr. Atlas, assuming he did have a gun, had it lawfully for his own protection. If this search is to be upheld, it would have to be, in my view, on the theory adopted by the District Court, that the officer had a reasonable apprehension of danger to himself. (The District Court did not find that the officers had an objectively reasonable suspicion that Atlas was committing a crime.) Perhaps it should be the law that officers may search citizens whenever they feel endangered for any reason. I do not think that is the law now. Nor do I believe that the officer’s apprehension of danger in this ease was sufficiently grounded to satisfy the Terry standard.
In short, I believe the motion to suppress should have been granted. I would therefore reverse this conviction and remand for further proceedings. On this view of the case, it is unnecessary for me to express an opinion on the sentencing issue decided by the Court.