dissenting:
With all respect to my distinguished colleagues in the majority, I must dissent.
Not all police-citizen encounters amount to seizures within the meaning of the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (seizure does not occur simply because police officer approaches individual and asks questions). Instead, a seizure occurs only when the officer, by means of physical force or show of authority, restrains the liberty of a citizen in such a way that a reasonable person would believe he is not free to terminate the encounter. See California v. Hodari D., 499 U.S. 621, 626-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In other words, an officer may, at any time, approach any individual to ask questions, and no justification is required as long as a reasonable person would believe he is free to walk away. As the Supreme Court made clear:
[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search his or her luggage, as long as the police do not convey a message that compliance with their requests is required.
Bostick, 501 U.S. at 434-35, 111 S.Ct. 2382 (citations omitted).
While we review the district court’s legal conclusions de novo, we review its factual findings — including a court finding that a law officer’s fear was reasonable — for clear error. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.1992). Officer Burke1 needed no justification to approach Burton, but there is no doubt that he later seized and searched him. At this latter point, he needed reasonable suspicion — proper justification — for his actions.
Several important principles guide our review in this regard. For example, if, during a consensual encounter, an officer becomes aware of facts that justify a reasonable fear for his safety, that officer may respond with a protective frisk to safeguard himself and others. As the Su*530preme Court has recognized, an officer may conduct a reasonable search if there is “reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also United States v. Davis, 202 F.3d 1060, 1063 (8th Cir.2000) (“The danger to officer safety that justifies a protective search may arise after a consensual encounter or investigative stop has commenced.”). Thus, our question is simple: Was Officer Burke reasonable in his perception that Burton was armed and constituted a safety threat? As Chief Judge Wilkinson has cogently observed, courts make this commonsensical inquiry “crediting the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993), quoted in United States v. Brugal, 209 F.3d 353, 359 (4th Cir.2000) (en banc). More importantly for the purposes of this appeal, the district court has- already found two vital facts: first of all, Officer Burke had subjective fear and, secondly, his fear was objectively reasonable.
To the extent the majority has concluded that the district court clearly erred in these findings, I disagree. Officer Burke’s testimony was specifically credited by the district court, and much of that testimony related to his belief that he was in danger. This belief was entirely sufficient to justify all that occurred thereafter.2 When Officer Burke was asked what he thought Burton had in his pocket, he responded:
My opinion was he possibly had a weapon in his pocket or in his hand or in his coat that he was holding on to.
J.A. 21. While Burke acknowledged, “It could have been narcotics or maybe [an] alcoholic beverage or something,” id., his opinion was prophetically correct. Burton in fact possessed a loaded handgun, in his pocket. And luckily for the officers, it misfired.
Had Burton simply failed to respond to Officer Burke’s inquiries, I might be constrained to agree with the majority. However, Burton did more: He held his hand close to his chest — inside his coat — and refused to remove it. J.A. 20, 31. And Burton’s non-response to requests that he remove his hand from his coat constituted — crediting the practical experience of the officers — an entirely reasonable safety concern.
When Officer Burke directed Burton, “Remove your hand from your pocket,” the clear message from Officer Burke was, “I feel threatened by the position of your hand.” The finding that Officer Burke’s fear for his safety was reasonable is the paradigmatic circumstance in which we should defer to a district court. What constitutes a “threat” is a classic factual inquiry that depends on the time, place, and other circumstances surrounding an incident. I will not, in these circumstances, vote to disturb that finding.
We all strongly support the Constitution and its Fourth Amendment. And we abhor violations of its strictures. However, the Constitution does not mandate our loyal public servants acting with trepidation in the face of danger, such that they may be needlessly sacrificed or injured in their efforts to protect the public and uphold the rule of law.
I dissent.
. I use “Officer Burke” to refer both to Officer Burke individually and to all of the officers collectively.
. Moreover, Officer Burke’s testimony encompassed a belief that criminal activity was afoot. In South Carolina, the unauthorized possession of a pistol, as well as the carrying of a concealed weapon, are separate violations of the criminal statutes. See S.C.Code Ann. §§ 16-23-20, -460 (Law. Co-op. 1976 & Supp.1999).