PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 06-4850
STANAUS MCCOY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:06-cr-00208-GBL)
Argued: September 28, 2007
Decided: January 25, 2008
Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and
Samuel G. WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Chief Judge Williams
wrote the majority opinion, in which Judge Wilson joined. Judge Wil-
son wrote a separate concurring opinion. Judge Gregory wrote a sepa-
rate dissenting opinion.
COUNSEL
ARGUED: Jonathan Leo Fahey, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Todd M. Richman, Assistant Federal Public
2 UNITED STATES v. MCCOY
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
UNITED STATES ATTORNEY, Paul Ahern, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellant. Michael S. Nach-
manoff, Acting Federal Public Defender, Alexandria, Virginia, for
Appellee.
OPINION
WILLIAMS, Chief Judge:
The Government in this pending criminal case appeals the district
court’s order granting Stanaus McCoy’s motion to suppress evidence
obtained by Loudoun County, Virginia police officers as a result of
Officer Paul Loconti’s detention and search of McCoy in a grocery
store parking lot in Leesburg, Virginia. The district court suppressed
the evidence as the fruit of an unlawful seizure, concluding that,
under Terry v. Ohio, 392 U.S. 1 (1968), Officer Loconti lacked rea-
sonable suspicion to stop and frisk McCoy and thus violated his
Fourth Amendment rights in doing so.
We reverse. Considering the totality of the circumstances, as we
must, we believe that Officer Loconti possessed a reasonable, articul-
able suspicion that McCoy was engaged in serious criminality when
Loconti stopped and frisked him. As such, no Fourth Amendment vio-
lation occurred.
I.
Because McCoy prevailed on his suppression motion, we view the
facts in the light most favorable to him. United States v. Kimbrough,
477 F.3d 144, 147 (4th Cir. 2007).
A.
According to evidence presented in this case, a good number of
illegal drug transactions in Loudoun County occur in grocery store
UNITED STATES v. MCCOY 3
parking lots. In fact, according to some Loudoun County police offi-
cers, nearly half of all the drug deals in Loudoun County occur in
public parking lots of grocery stores and other retail stores.
Although these parking-lot drug deals do not all "go down" in iden-
tical fashion, they consistently share some common characteristics.
Two people usually meet at a prearranged location in a public parking
lot; one person gets into the vehicle of the other; the cash-for-drugs
transaction occurs; and the individuals go their separate ways. From
beginning to end, the typical parking-lot drug deal only takes about
one or two minutes.
Drug dealers in the area know that police officers in the area know
that public parking lots often are the locale of choice for drug deals,
so they employ counter-surveillance techniques in an effort to avoid
detection by law enforcement. A common counter-surveillance tech-
nique is for the parties to change the location of the drug transaction
at the last minute. Parties often agree to meet at a certain location,
decide at the last moment to move to a different location for the com-
pletion of the transaction, and then meet at the different location to
complete the drug deal.
Officer Loconti is well versed in the practices of drug dealers in
Loudoun County. A vice narcotics investigator with the Loudoun
County Sheriff’s Office and an over ten-year veteran of the police
force, Loconti has participated in over 100 investigations in which he
worked undercover and completed controlled drug purchases, includ-
ing purchases of crack, powder cocaine, marijuana, LSD, and ecstasy.
In addition to his extensive street experience with drug investigations,
Loconti has also received formal training in drug surveillance, drug
recognition, and the use of drug informants.
Loconti was thus in a familiar setting when, on July 28, 2005, he
was staked out in a Safeway grocery-store parking lot in Leesburg,
Virginia. At the time, he was conducting surveillance for a controlled
drug purchase unrelated to this appeal. Loconti was in plain clothes
and in an unmarked patrol vehicle. He had previously been involved
in other controlled drug purchases in the very same Safeway parking
lot.
4 UNITED STATES v. MCCOY
Around 6:20 pm, while it was still daylight, Loconti observed a
man drive through the Safeway parking lot and park a white Mitsu-
bishi Eclipse in a parking space next to his patrol vehicle. The driver,
McCoy, was accompanied by his girlfriend, Christina Thurman. Ms.
Thurman was the owner of the Eclipse.
Neither McCoy nor Ms. Thurman exited the vehicle after it was
parked. After two or three minutes had passed, a tow truck pulled in
front of Loconti’s vehicle, in a position close enough to the Eclipse
so that the tow-truck driver could communicate with McCoy and/or
Ms. Thurman. Loconti heard the tow-truck driver ask McCoy "where
he wanted—where they wanted to meet," but he could not hear
McCoy’s answer. Loconti did, however, observe McCoy respond to
the question by pointing in a southerly direction. (J.A. at 77.) In
response to McCoy’s gesture, the tow truck exited the parking lot and
began heading south on King Street, with the Eclipse following
closely behind. Loconti found this exchange unusual, and, as the vehi-
cles left the Safeway parking lot, Loconti radioed the other units
involved in the controlled drug purchase to let them know that "there
may be a drug deal getting ready to happen" and that he "was going
to follow these two vehicles to see . . . if anything unfolded." (J.A.
at 78.)
Loconti followed the tow truck and Eclipse into a Food Lion park-
ing lot located roughly a quarter mile south of the Safeway parking
lot. As with the Safeway parking lot, Loconti had been involved in
previous drug busts in the Food Lion parking lot. McCoy and the tow-
truck driver parked their vehicles in the right corner of the lot,
approximately five to eight parking spaces apart. The parking lot was
around half full, and there were numerous available spaces between
the store and the places where McCoy and the tow-truck driver
decided to park their vehicles. Loconti parked two rows behind the
tow truck; from this vantage point, he was able to see the tow-truck
driver’s head through the truck’s back window.
Loconti watched as McCoy got out of the Eclipse and entered the
passenger side of the tow truck. Although he could not see much of
what was transpiring in the truck, it appeared to Loconti that McCoy
and the tow-truck driver were talking. After about a minute, McCoy
got out of the truck and began walking back toward the Eclipse. The
UNITED STATES v. MCCOY 5
tow-truck driver began to drive away, exiting the parking lot onto an
adjacent service street. At this point, it was clear to Loconti that the
tow-truck driver had not visited the parking lots for the purpose of
performing towing services. Loconti’s suspicion was particularly
aroused because the vehicles "had been to two grocery stores within
a quarter mile of each other and no one had gone into a grocery
store." (J.A. at 81.)
Loconti believed that "a drug deal had just occurred." (J.A. at 80-
81.) He radioed the patrol units back at the Safeway parking lot and
exited his vehicle. He began to approach McCoy and, as he was walk-
ing toward McCoy, asked to speak with him. McCoy acknowledged
Loconti. Loconti then whistled at the tow-truck driver, who at this
point had pulled the truck onto the nearby service street, and told him
to park the truck. The driver "responded by driving away at a high
rate of speed." (J.A. at 314.)
Once Loconti made his way to McCoy, he informed McCoy that
he was a police officer and told him to put his hands on the Eclipse
so he could frisk McCoy. When McCoy asked Loconti why he
wanted to frisk him, Loconti informed McCoy that he believed that
McCoy had just completed a drug deal in the tow truck. McCoy put
his hands on the trunk of the Eclipse, but after he pulled them away
a few times and turned around to speak to Loconti, Loconti placed
McCoy in handcuffs and told him that he was being detained. Loconti
patted down McCoy and found a pocketknife, after which Loconti
directed McCoy to sit down on the curb.
With McCoy handcuffed and seated on the curb, Loconti
approached the Eclipse and questioned Ms. Thurman, who had
remained in the car through the entire encounter. Thurman stated that
she believed McCoy had just engaged in a drug deal. She then con-
sented to a search of the Eclipse and exited the car. Loconti searched
the car and found marijuana and cash.
Loconti read McCoy his Miranda rights and began to question him.
McCoy admitted that he had just completed a drug transaction; that
the cash in the glove compartment belonged to him; that the cash con-
stituted drug proceeds; and that he had about $200 worth of crack
cocaine concealed in his buttocks. Suffice it to say that, at that point,
6 UNITED STATES v. MCCOY
Loconti recovered the crack cocaine.1 The whole encounter — from
the time Loconti approached McCoy to the recovery of the crack
cocaine — lasted less than 30 minutes.
Based on the evidence obtained by Officer Loconti, and acting pur-
suant to a search warrant, officers searched McCoy’s home on Sep-
tember 16, 2005. McCoy, who was at home at the time, was placed
in handcuffs. During the search, the officers discovered other evi-
dence of drug trafficking and firearms. McCoy also made certain
inculpatory statements during the search.
B.
On May 11, 2006, a federal grand jury returned a five-count indict-
ment charging McCoy with two counts of possession with intent to
distribute crack cocaine and one count of possession with intent to
distribute cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (West
1999); one count of possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1) (West 1999
& Supp. 2006); and one count of possession of being a felon in pos-
session of a firearm, in violation of 18 U.S.C.A. §§ 922(g)(1) and
924(e) (West 2000 & Supp. 2006).
McCoy moved to suppress the evidence uncovered by Loconti
through his detention and frisk of McCoy in the Food Lion parking
lot, arguing that the evidence was "fruit of the poisonous tree"
because Loconti lacked the requisite reasonable, articulable suspicion
to conduct a Terry stop and frisk. He also moved to suppress the evi-
dence recovered through the September 16, 2005 search of his home,
including the pre-Miranda statements that he made on that occasion,
and requested a hearing under Franks v. Delaware, 438 U.S. 154
(1978).2
1
Near the very end of the encounter, another officer arrived and
assisted Loconti in seizing the drugs and cash.
2
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court rec-
ognized a "presumption of validity with respect to the affidavit support-
ing [a] search warrant," id. at 171, and held that a hearing on a motion
to test the sufficiency of the affidavit is required only if the defendant
"makes a substantial preliminary showing that a false statement know-
ingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit," and the offending infor-
mation was essential to the probable cause determination, id. at 155-56.
UNITED STATES v. MCCOY 7
The district court held a suppression hearing on July 26-27, 2006.
The court agreed with McCoy that Loconti’s detention and frisk of
him violated his Fourth Amendment rights because Loconti lacked a
reasonable suspicion to justify a Terry stop and frisk. The court thus
ordered the suppression of the evidence obtained by Loconti on that
night, which included the crack cocaine, marijuana, cash, and
McCoy’s statements. The court also suppressed the pre-Miranda
statements McCoy made at his home on September 16, 2005. The
court denied McCoy’s motion with respect to the other evidence
obtained through the September 16, 2005 search of his home and also
denied his request for a Franks hearing. On October 18, 2006, the
court issued a written opinion explaining further its rulings on the
suppression motion.
The Government timely appealed the suppression of the evidence
obtained by Officer Loconti through the July 28, 2005 stop and frisk
of McCoy.3 We have jurisdiction pursuant to 18 U.S.C.A. § 3731
(West 2000 & Supp. 2006) (granting the courts of appeals jurisdiction
over interlocutory appeals by the United States "from a decision or
order of a district court suppressing or excluding evidence").
II.
In reviewing a district court’s ruling on a motion to suppress, we
review the court’s findings of historical fact for clear error, "giving
due weight to inferences drawn from those facts by resident judges
and local law enforcement officers." Ornelas v. United States, 517
U.S. 690, 699 (1996). We review de novo the ultimate legal conclu-
sion of whether reasonable suspicion existed to justify police action.
Id.
The Fourth Amendment provides that "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unrea-
sonable searches and seizures, shall not be violated . . . ." U.S. Const.
amend. IV. These rights are not "second-class rights," Brinegar v.
3
McCoy initially argues that we should dismiss this case because the
Government has not diligently prosecuted the appeal. This argument is
without merit, as the Government fully complied with our briefing
schedule.
8 UNITED STATES v. MCCOY
United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting), but
rather are among the rights held most sacred by the progenitors of the
Bill of Rights and most guarded by the common-law tradition. See
Terry, 392 U.S. at 9.
As is obvious from the constitutional text, the central inquiry under
the Fourth Amendment is reasonableness, id. at 19, for "what the
Constitution forbids is not all searches and seizures, but unreasonable
searches and seizures," Elkins v. United States, 364 U.S. 206, 222
(1960). Drawing on the requirement in the second clause of the
Fourth Amendment that no warrant may be issued without probable
cause, the Supreme Court has laid down the general rule that a search
or seizure without probable cause is unreasonable and, thus, unconsti-
tutional. See Kyllo v. United States, 533 U.S. 27, 32 (2001) (noting
that searches without probable cause are "presumptively unconstitu-
tional"). But this general rule is subject to so many exceptions that
one can scarcely call it a "general" rule at all. See United States v.
Chaidez, 919 F.2d 1193, 1196-97 (7th Cir. 1990) (citing cases and
listing a number of exceptions that require less than probable cause,
including: administrative searches, inventory searches, school
searches, border searches, drug-testing programs, searches incident to
arrest, and Terry frisks).
Among "the most important of these exceptions, at least from the
perspective of law-enforcement-officer safety, is the ‘stop-and-frisk’
doctrine" that comes from the Supreme Court’s decision in Terry.
United States v. Holmes, 376 F.3d 270, 275 (4th Cir. 2004). The Terry
Court authorized police officers to stop a person who is behaving sus-
piciously to question him briefly and, if the officers believe the person
is armed, to pat down, or "frisk," him for weapons if the officers have
a "reasonable suspicion," based on articulable, particularized facts,
that "criminal activity may be afoot." Terry, 392 U.S. at 30.
"Reasonable suspicion," like any "reasonableness" standard, defies
precise definition. Far from being susceptible to a "neat set of legal
rules," it is, as the Supreme Court has described, a "commonsense,
nontechnical conception[ ] that deal[s] with the factual and practical
considerations of everyday life on which reasonable and prudent men,
not legal technicians, act." Ornelas, 517 U.S. at 695-96 (internal quo-
tation marks and citations omitted); see also United States v. Arvizu,
UNITED STATES v. MCCOY 9
534 U.S. 266, 274 (2002) ("Our cases have recognized that the con-
cept of reasonable suspicion is somewhat abstract."). It is thus not sur-
prising that the Supreme Court has often counseled lower courts to
give "due weight" to the factual inferences drawn by police officers
as they investigate crime, Arvizu, 534 U.S. at 273, Ornelas, 517 U.S.
at 699, Terry, 392 U.S. at 27, for the reasonable suspicion analysis is
by its nature "officer-centered." United States v. Perkins, 363 F.3d
317, 323 (4th Cir. 2004).
A court must look to the totality of the circumstances in determin-
ing whether the requisite reasonable suspicion existed for a Terry stop
and frisk. Whatever the factual context, reasonable suspicion is a less
demanding standard than the probable cause standard applied to
arrests, Alabama v. White, 496 U.S. 325, 330 (1990), falling "consid-
erably short of satisfying a preponderance of the evidence standard,"
Arvizu, 534 U.S. at 274. Requiring a lower quantum of suspicion
makes sense because a Terry protective stop and frisk — a brief, if
not inconsiderable, intrusion on the person — is less intrusive than a
traditional full-blown arrest.
Of course, the protections of the Fourth Amendment do not bear
on every encounter between a police officer and a member of the pub-
lic; it is only when a "search" or a "seizure" has occurred that the
Fourth Amendment comes into play. County of Sacramento v. Lewis,
523 U.S. 833, 843 (1998) ("The Fourth Amendment covers only
‘searches and seizures.’"). If all that is involved is the officer
approaching a person, announcing that he is an officer, and asking if
the person would be willing to answer some questions, then no rea-
sonable suspicion is required because no "seizure" has occurred. Flor-
ida v. Bostick, 501 U.S. 429, 434 (1991); Florida v. Royer, 460 U.S.
491, 497-98 (1983) (plurality opinion). Here, Loconti did not need an
articulable suspicion to get out of his patrol vehicle, approach McCoy,
inform McCoy that he was an officer, and ask to speak with him.
Although many members of the public might feel uncomfortable
when an officer approaches them in this manner and asks to speak
with them, uncomfortable does not equal unconstitutional.
We therefore must look beyond the point of mere conversation
between Officer Loconti and McCoy to determine when the "seizure"
occurred that brings us this appeal. See Ferguson v. City of Charles-
10 UNITED STATES v. MCCOY
ton, 532 U.S. 67, 92 (2001) (Scalia, J., dissenting) ("The first step in
Fourth Amendment analysis is to identify the search or seizure at
issue."). There is no doubt that a Fourth Amendment "seizure"
occurred once Officer Loconti reached McCoy and told him to put his
hands on the trunk of the Eclipse in preparation for a Terry frisk. At
that point, McCoy’s freedom of movement was restrained in such a
way that the protections of the Fourth Amendment were triggered.
"The Fourth Amendment applies to all seizures of the person, includ-
ing seizures that involve only a brief detention short of traditional
arrest." Maryland v. Wilson, 519 U.S. 408, 420 n.8 (1997) (internal
quotation marks omitted). With his hands on the trunk of the Eclipse
at Loconti’s order, McCoy was not going anywhere, and the Fourth
Amendment’s protections came to bear on the encounter.
So the question is: Did Loconti have a reasonable, articulable sus-
picion at that point? The district court said no. Although the court
recounted what Officer Loconti had observed and what he knew at
the time he frisked McCoy, it focused its reasonable suspicion analy-
sis on what Loconti had not observed and what facts were not present.
For example, the district court reasoned that "while the Safeway and
Food Lion parking lots were known areas of drug activity, they do not
qualify as high-crime areas." (J.A. at 325.) The court noted that
Loconti did not hear McCoy’s conversation with the tow-truck driver;
did not observe any furtive movements by McCoy; did not observe
a hand-to-hand drug transaction; and did not have any knowledge that
McCoy or the tow-truck driver was involved in drugs. The court fur-
ther noted that McCoy did not try to evade Loconti or flee from the
scene. It emphasized that "all Officer Loconti saw," (J.A. at 327), was
McCoy signal to a tow-truck driver, lead the tow-truck driver to
another grocery store parking lot, and then climb into the tow truck
for a brief period of time, and that, in any event, the public parking
lot is also "an area where people go to shop." (J.A. at 283.) The court
did not recite the precise words from Terry, but it is clear enough that
it viewed Loconti as having nothing more than an "inchoate and
unparticularized suspicion or ‘hunch’" that McCoy was engaged in
criminality.4 Terry, 392 U.S. at 27.
4
The district court also relied heavily on our decision in United States
v. Sprinkle, 106 F.3d 613 (4th Cir. 1997), a case in which we held that
UNITED STATES v. MCCOY 11
The district court was taken by what factual circumstances did not
exist at the time Officer Loconti detained and frisked McCoy, but
when we look at what facts did exist in this case, we must reject the
district court’s conclusion that Officer Loconti’s detention and pat
down of McCoy were based merely on an inchoate hunch. At the time
that Loconti began patting down McCoy, Loconti was aware of the
following factual circumstances: (1) nearly 50% of the drug deals in
Loudoun County occur in public parking lots; (2) both the Safeway
and Food Lion parking lots visited by McCoy and the tow-truck
driver were often meeting places for drug deals; (3) drug dealers often
engage in counter-surveillance techniques, including changing the
location of the drug deal at the last minute; (4) Loconti observed
McCoy and his girlfriend drive into the Safeway parking lot and then
sit in the car for several minutes; (5) after the tow-truck driver asked
McCoy where he wanted to meet, McCoy pointed in a southerly
direction; (6) the tow-truck driver and McCoy then traveled from the
Safeway parking lot to the Food Lion parking lot approximately a
quarter-mile south and did not enter either store; (7) Loconti observed
McCoy enter the cab of the tow truck and then exit it after about only
a minute; (8) the tow truck performed no towing services and began
to leave before Loconti reached McCoy; and (9) when Loconti whis-
tled for the tow-truck driver to stop after the tow truck pulled out of
the Food Lion parking lot, the tow-truck driver "responded by driving
away at a high rate of speed." (J.A. at 314.) These factual circum-
reasonable suspicion did not exist to justify a Terry stop and that the dis-
trict court found factually analogous to this case. Id. at 618-19. We first
note that the Supreme Court has observed that because the reasonable-
suspicion determination is such a multi-faceted, fact-intensive inquiry,
"one determination will seldom be a useful precedent for another."
Ornelas, 517 U.S. 690, 698 (1996) (internal quotation marks omitted). In
any event, Sprinkle does not, as the district court apparently thought,
command the result reached below. Even a cursory review of Sprinkle
shows that the case dealt with a very different set of facts than are pres-
ent here. There, the police officers conducted a Terry stop based largely
on one officer’s knowledge about the criminal history of one of the sur-
veilled individuals and the high-crime nature of the area in which the
stop occurred. Sprinkle, 106 F.3d at 618-19. This simply is not the case
where Sprinkle requires a certain conclusion because the facts are so sim-
ilar to those in that case.
12 UNITED STATES v. MCCOY
stances closely mirrored the circumstances that Loconti, an over ten-
year veteran of the police force and a narcotics detective with special-
ized training in drug surveillance, had observed countless times
before in public parking lots around Loudoun County and, in fact, had
observed before in the very same Safeway and Food Lion parking
lots. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("[O]fficers
are not required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently suspicious to
warrant further investigation.")
Under the Supreme Court’s decision in United States v. Sokolow,
490 U.S. 1 (1989), an officer’s articulated facts must in their totality
serve to eliminate a substantial portion of innocent travelers before
reasonable suspicion will exist. Id. at 7-11; United States v. Brugal,
209 F.3d 353, 361 (4th Cir. 2000) (en banc). Sokolow does not require
that each of an officer’s articulated facts on its own eliminate every
innocent traveler in order for reasonable suspicion to exist, for reason-
able suspicion "does not deal with hard certainties, but with probabili-
ties." Sokolow, 490 U.S. at 8 (internal quotation marks and citations
omitted). It does not even require that an officer’s articulated facts,
when taken together, eliminate every innocent traveler, just a substan-
tial portion of them. Rather, Sokolow underscores that "Terry itself
involved a series of acts, each of them perhaps innocent if viewed
separately, but which taken together warranted further investigation."
Id. at 9-10 (internal quotation marks and citation omitted). We believe
that all of the facts mentioned above that were available to Officer
Loconti at the moment of the Fourth Amendment seizure, considered
in their totality, eliminated a substantial portion of innocent travelers
and made Loconti’s suspicion of active criminality reasonable.
Statements by the district court suggest that it viewed what it con-
sidered the "innocent" facts here without considering how an experi-
enced police officer might approach the same factual circumstances.
To give one example, the district court effectively dismissed testi-
mony that nearly half of the drug deals in Loudoun County occur in
public parking lots because it believed that a parking lot is also "an
area where people go to shop." (J.A. at 283.) We perceive two prob-
lems with the district court’s approach. First, and apart from the issue
of Officer Loconti’s experience, it is quite clear from the Supreme
Court’s many precedents in this area that "the relevant inquiry is not
UNITED STATES v. MCCOY 13
whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of
suspicion that attaches to particular types of non-criminal acts." Soko-
low, 490 U.S. at 10. As our earlier discussion makes clear, reasonable
suspicion may exist even if each fact standing alone is susceptible to
an innocent explanation.5 Arvizu, 534 U.S. at 277-78. Indeed, if, as
the Supreme Court has stated, "innocent behavior frequently will pro-
vide the basis for a showing of probable cause," Illinois v. Gates, 462
U.S. 213, 243 n.13 (1983), innocent behavior will frequently provide
the basis for reasonable suspicion, a much less demanding standard,
all the more.
Second, and no less importantly, the reasonable suspicion determi-
nation demands that facts — whether seemingly innocent or obvi-
ously incriminating — be assessed in light of their effect on the
respective officer’s perception of the situation at hand. Although the
district court was aware of Officer Loconti’s considerable experience,
there is no indication that the court gave "due weight" to the infer-
ences drawn by Loconti from the facts he observed in the moments
leading up to the Terry encounter. Instead, it seems to have substi-
tuted its "innocent" take on the facts for Officer Loconti’s seasoned
perspective. But innocence, like beauty, is in the eye of the beholder,
and given the "officer-centered" nature of the reasonable-suspicion
inquiry, courts "must give due weight to common sense judgments
reached by officers in light of their experience and training" about
even seemingly innocent factual circumstances. Perkins, 363 F.3d at
321; see also United States v. Lender, 985 F.2d 151, 154 (4th Cir.
1993)(stating that courts are "not remiss in crediting the practical
experience of officers who observe on a daily basis what transpires
on the street"). After all, we assess the reasonableness of the officer’s
actions.
5
We note that not every fact present here might be susceptible to a
readily-forthcoming innocent explanation. When Officer Loconti ordered
the tow-truck driver to stop after the truck pulled out of the Food Lion
parking lot, the driver "responded by driving away at a high rate of
speed." (J.A. at 314.) This fact is harder to account for in innocent terms.
Although Loconti was in plain clothes and an unmarked vehicle and was
not flashing his police badge, it does not always take a police officer’s
show of force to provoke nervous reactions in a guilty mind, and, as
noted throughout the opinion, we must consider the effect the tow-truck
driver’s actions had on Officer Loconti.
14 UNITED STATES v. MCCOY
To the layman, two men pacing in front of a store window and
periodically peering in the store might suggest that a lady in the store
has two bashful admirers. To the street-tested officer, however, the
same conduct might suggest that the men are "casing the joint" for a
stickup. Terry, 392 U.S. at 5-6. Similarly, to the layman, the circum-
stances of this case might admit of some innocent explanation
(although we strongly suspect that the average layman, if a fly on the
wall for the entire encounter, would have thought McCoy’s parking-
lot hopping suspicious as well). To Officer Loconti, however, the cir-
cumstances strongly suggested that a drug deal was taking place. See
Ornelas, 517 U.S. at 700 ("To a layman the sort of loose panel below
the back seat armrest in the automobile involved in this case may sug-
gest only wear and tear, but to Officer Luedke, who had searched
roughly 2,000 cars for narcotics, it suggested that drugs may be
secreted inside the panel."). This difference in perspective is wholly
attributable to the difference in day-to-day experiences of laymen and
officers like Officer Loconti. One’s primary job is to investigate
crime; the other’s is not. To then decide whether an officer’s actions
in a given situation were reasonable for Fourth Amendment purposes
without affording proper weight to the officer’s respective inferences
borne out of his experience would be to fail to consider the "totality
of the circumstances," as courts must do in conducting the reasonable
suspicion analysis. Arvizu, 534 U.S. at 275. Moreover, and as noted
above, Officer Loconti was not obligated to eliminate every innocent
explanation for his suspicion to be reasonable, see Perkins, 363 F.3d
at 327, and he certainly was not obligated to turn a blind eye to facts
that would have seemed suspicious to many people (such as the tow-
truck speeding off in response to Loconti’s order to the driver to
stop).
This is not to say that a wealth of experience will overcome a com-
plete absence of articulable facts, for Terry clearly requires that an
officer wishing to briefly detain and frisk a person "must be able to
point to specific and articulable facts which, taken together with ratio-
nal inferences from those facts, reasonably warrant that intrusion."
Terry, 392 U.S. at 21. Even Sherlock Holmes, living as he does in the
pages of fiction where reality is bounded only by imagination, needs
some factual clues to work his investigative magic. Here, for exam-
ple, if the question on appeal were whether Officer Loconti had a rea-
sonable suspicion to detain and frisk McCoy after he had only
UNITED STATES v. MCCOY 15
observed McCoy drive the Eclipse into the Safeway parking lot and
remain seated in the vehicle for a few minutes, the answer would cer-
tainly be no, for at that point, and no matter how extensive Loconti’s
experience, there simply were not enough articulable facts to support
a Terry stop and frisk. Particularized, articulable facts are always
required. But neither should federal judges discount seemingly "inno-
cent" factual circumstances simply because they do not possess the
seasoned perspective of a police officer, whose eyes and ears have
been trained to detect the nefarious in the mundane. We believe the
district court did so here and, in so doing, incorrectly concluded that
Officer Loconti did not have a reasonable, articulable suspicion to
detain and frisk McCoy pursuant to Terry.
It would have been "poor police work indeed," Terry, 392 U.S. at
23, for an officer of Loconti’s experience to fail to investigate further
given the numerous facts that strongly suggested, in light of his
accrued knowledge of the drug trade, that a drug deal was afoot. The
"ultimate test [is] reasonableness under the Fourth Amendment,"
Royer, 460 U.S. at 499, and we cannot say, in light of Terry, that Offi-
cer Loconti’s actions here were unreasonable in any sense.
III.
Terry reflects a careful but common sense balancing of the compet-
ing Fourth Amendment interests of the individual in being left alone
by the police and the community (and by extension, the police) in
investigating and preventing crime. Officer Loconti’s investigative
efforts in this case did not upset that balance. This is not a case of
governmental overreaching, nor is it a case of a "hunch" gone right.
It is a case of an experienced police officer dutifully investigating and
uncovering criminality well within the bounds of Terry.
Accordingly, because we conclude that Officer Loconti had the
requisite reasonable suspicion under Terry to briefly detain and frisk
McCoy, we reverse that part of the district court’s order granting
McCoy’s motion to suppress the evidence obtained as a result of the
Terry encounter and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED
16 UNITED STATES v. MCCOY
WILSON, District Judge, concurring:
I join in the majority opinion based on a fact found by the district
court but undervalued in the dissenting opinion, an objective fact
which, in my view, taken together with the facts that preceded it, cul-
minated in reasonable, articulable suspicion justifying a limited Terry
stop. Officer Loconti approached McCoy after McCoy exited the tow
truck; Loconti signaled the tow truck driver in an effort to gain his
attention, and, in the words of the district court, the tow truck "driver
responded by driving away at a high rate of speed." (emphasis added).
(J.A. at 314.) Although Loconti was not in uniform, I believe it was
objectively reasonable in light of all the facts that preceded it for Offi-
cer Loconti to view the tow truck driver’s flight to be highly suspi-
cious — not confirming guilty conduct, but warranting further
investigation. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000)
("[N]ervous, evasive behavior is a pertinent factor in determining rea-
sonable suspicion. . . . Headlong flight — wherever it occurs — is the
consummate act of evasion . . . ."); United States v. Smith, 396 F.3d
579, 584-5 (4th Cir. 2004). At that moment, the facts in their totality
served to eliminate a substantial portion of innocent travelers and jus-
tified a limited Terry stop of McCoy. Therefore, I join in the majority
opinion based on objective facts supporting the officer’s subjective
beliefs.*
*I think it especially important to give appropriate deference to find-
ings of historical fact made by resident judges. On that score, the major-
ity opinion does not countermand a single finding of historical fact. It
does, however, follow two clear commands of the Supreme Court. First,
it follows the command to determine reasonable suspicion de novo. In
contrast to findings of historical fact, "determinations of reasonable sus-
picion and probable cause should be reviewed de novo on appeal."
Ornelas v. United States, 517 U.S. 690, 699 (1996). Second, the majority
opinion follows the Supreme Court’s command that courts are not to
view facts through the lens of guilt or innocence, but rather through the
lens of probabilities. United States v. Sokolow, 490 U.S. 1, 7 (1989). The
dissent suggests the facts here are innocent, but Terry itself illustrates, as
the majority opinion notes, that the conduct justifying a stop may be
entirely lawful. It is well-established that lawful but evasive, suggestive
behavior justifies a stop so that an officer can "resolve the ambiguity."
Wardlow, 528 U.S. at 125. Officer Loconti made a fact-based, common-
sense judgment that the conduct he observed was suspicious.
UNITED STATES v. MCCOY 17
GREGORY, Circuit Judge, dissenting:
The issue is whether Officer Loconti had a "reasonable suspicion"
to stop McCoy. Terry v. Ohio, 392 U.S. 1 (1968), provides police
officers with a limited exception to the warrant and probable cause
requirements of the Fourth Amendment when there is reasonable sus-
picion supported by articulable facts that criminal activity is afoot —
not a general warrant to hunt out the "nefarious in the mundane"
based on hunches, intuition, or stereotypes. Id. at 30; see also United
States v. Sokolow, 490 U.S. 1, 7 (1989). Viewing innocuous facts
through the lens of Officer Loconti’s "seasoned perspective," see Maj.
Op. 13, the majority opinion exploits subjective experience to trump
an otherwise absence of reasonable suspicion. Today’s holding ren-
ders law enforcement — not the courts — the sole arbiter of what
qualifies as reasonable suspicion. By failing to recognize that Officer
Loconti (who dwells not "in the pages of fiction where reality is
bounded only by the imagination," Maj. Op. 14) is restricted by words
(the United States Constitution) far more riveting than those found in
any novel, the majority obliterates the Fourth Amendment’s protec-
tions. Thus, I respectfully dissent.
The test for reasonable suspicion is objective. See Illinois v. Ward-
low, 528 U.S. 119, 123 (2000). The subjective beliefs of any one offi-
cer — even a "seasoned officer" — does not and cannot overcome the
objective, reasonable, and articulable factual inferences drawn by a
court. See Ornelas v. United States, 517 U.S. 690, 699 (1996) (stating
that "a reviewing court should take care both to review findings of
historical fact for clear error and to give due weight to inferences
drawn from those facts by resident judges and local law enforcement
officers") (emphasis added).1 While the majority criticizes the district
court’s decision to focus on what did not happen, a careful reading of
what did occur reveals only two individuals having a conversation in
broad daylight, following each other from one public location to
another, and continuing their conversation.
1
To be clear, I do not suggest that the district court’s determination of
reasonable suspicion is not subject to de novo review. Rather, I believe
that the majority, while taking into account inferences drawn by Officer
Loconti, fails to give due weight to the inferences drawn by the district
court in determining that reasonable suspicion did not exist.
18 UNITED STATES v. MCCOY
Unlike the hundreds of Terry stops we have affirmed, McCoy did
nothing more than communicate and associate in a public place. The
district court correctly found that: (1) McCoy’s actions occurred in
broad daylight in public grocery store parking lots during business
hours; (2) the grocery store parking lots were not high-crime areas;
(3) Officer Loconti did not hear McCoy’s conversation with the tow
truck driver; (4) Officer Loconti did not witness McCoy make any
furtive movements, including any hand-to-hand transaction with the
tow-truck driver; and (5) McCoy did not try to avoid Officer Loconti
or flee the scene.2 (J.A. 325, 327.); cf. United States v. Lender, 985
F.2d 151, 154 (4th Cir. 1997) (noting that when officers tried to
approach the suspect, he evaded them by turning his back and walk-
ing away); United States v. Mayo, 361 F.3d 802 (4th Cir. 2004) (find-
ing the defendant’s unusual nervousness and the appearance of
something heavy in his pocket were articulable bases for reasonable
suspicion); United States v. Perkins, 363 F.3d 317 (4th Cir. 2004)
(finding reasonable suspicion where suspect fits description of infor-
mant tip). The district court concluded, in light of these factors, that
Officer Loconti’s observations were insufficient to form reasonable
suspicion. I agree. Taking an objective view of Officer Loconti’s
observations, as we must, McCoy’s conduct does not eliminate a sub-
stantial portion of innocent ordinary activity. United States v. Brugal,
209 F.3d 353, 361 (en banc) (plurality opinion); see also United
States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (noting that
suspicious behavior may give an officer the impression that a narcot-
ics transaction is occurring, but more is needed to qualify for reason-
able suspicion). Yet the majority’s holding is so broad that it
encompasses such seemingly innocent and ordinary behavior.
2
Although the district court found that the tow truck driver fled "at a
high rate of speed," this fact does not bolster the majority’s position.
Officer Loconti testified that when he called out to McCoy and indicated
that he wanted to talk; McCoy stopped. (J.A. 82.) Further, Officer
Loconti testified that he believed he witnessed a drug deal and stopped
McCoy before whistling to the tow truck driver. (J.A. 81, 82.) Thus, to
impute the tow truck driver’s evasive behavior to McCoy would be par-
ticularly disconcerting because McCoy took no evasive action when
summoned by Officer Loconti and was already stopped prior to the tow
truck driver fleeing.
UNITED STATES v. MCCOY 19
The fact that drug deals previously occurred in both parking lots is
inconsequential. As our Circuit has explained, an officer spotting a
person in a high crime area does not provide independent or free-
standing grounds for reasonable suspicion. Sprinkle, 106 F.3d at 617
(citing Brown v. Texas, 443 U.S. 47 (1979)). To consider the illegal
propensities of an area as an independent corroborating factor in the
reasonable suspicion analysis "would, in effect, hold[ ] a suspect
accountable for factors wholly outside of his control." United States
v. Perrin, 45 F.3d 869, 873 (4th Cir. 1995). Likewise, to find reason-
able suspicion based on Officer Loconti’s reflexive profile of drug
transactions in Loudoun County, Virginia, would upend constitutional
requirements. Even when a defendant is a known drug dealer, we
have held that more is required to create reasonable suspicion. Sprin-
kle, 106 F.3d at 617 (citing United States v. Davis, 94 F.3d 1465,
1469 (10th Cir. 1996)). We have, here, only two unknown individuals
conversing and following each other from one grocery store parking
lot to another.
Law enforcement officers are suspicious by training, but the broad
reach of their suspicion is constrained by the Court’s objective analy-
sis of reasonableness. By justifying the existence of both suspicion
and reasonableness solely on Officer Loconti’s "seasoned perspec-
tive," the majority abdicates that role. Officer Loconti’s subjective
opinion may very well be that McCoy’s behavior was indicative of a
drug deal. Frankly, however, the law is clear that Officer Loconti’s
subjective opinion — without more — cannot objectively support rea-
sonable suspicion. See United States v. Jones, 990 F.2d 405, 408 (8th
Cir. 1993) ("Because we decide whether reasonable suspicion justifies
a detention based on all the objective facts, we are not limited by the
detaining officer’s subjective opinions."). The facts known to him at
the time of McCoy’s seizure, viewed in a light most favorable to
McCoy, reflect no more than an "inchoate and unparticularized suspi-
cion or hunch." Terry, 392 U.S. at 27. A "hunch" is not reasonable
suspicion and, therefore, cannot justify a search under the Fourth
Amendment. Officer Loconti had nothing more than a hunch, to
which the majority in error gives dispositive weight.
While constitutional interpretation is not an exact science, it is cer-
tainly not left solely, as the majority does here, to law enforcement’s
subjective opinions. Beauty very well may be "in the eye of the
20 UNITED STATES v. MCCOY
beholder," to use the majority’s words, but one’s constitutional rights
are not left to such whim. The district court rightly understood this
important distinction. Because the majority does not, and — in the
process — diminishes the rights of all citizens "to be secure in their
persons," U.S. Const. amend. IV, I must respectfully dissent.