                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4804


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

JAMES KINGSBOROUGH,

                    Defendant – Appellant.


Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:15-cr-00478-JFM-1)


Argued: May 7, 2018                                               Decided: August 6, 2018


Before KING, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished opinion. Judge King wrote the opinion, in which Judge Agee
joined. Judge Thacker wrote a separate opinion concurring in part and concurring in the
judgment.


ARGUED: William B. Purpura, Jr., OFFICE OF WILLIAM PURPURA, Baltimore,
Maryland, for Appellant. David Daniel Metcalf, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
KING, Circuit Judge:

       James Kingsborough appeals from his conviction and sentence after a jury trial

conducted in the District of Maryland for possessing a firearm as a convicted felon.

Kingsborough primarily challenges the district court’s denial of his motion to suppress

the firearm evidence, which he contends was seized by Baltimore police officers in

violation of his Fourth Amendment rights. He also maintains that his trial was unfair in

that the court gave an erroneous jury instruction and failed to correct a prejudicial closing

argument. As explained below, we reject Kingsborough’s contentions of error and affirm

the judgment.



                                             I.

                                             A.

       On August 27, 2015, the federal grand jury in Baltimore returned an indictment

charging Kingsborough, who had theretofore been convicted of a felony, with knowingly

and unlawfully possessing a firearm and ammunition (a .380 caliber handgun loaded with

six hollow point rounds), in violation of 18 U.S.C. § 922(g)(1). Kingsborough moved to

suppress the firearm evidence on the ground that it was seized as the result of an

unconstitutional investigatory stop. The government opposed the motion, arguing that

the city police officers had reasonable suspicion for their stop of Kingsborough.

                                             1.

       On March 2, 2016, the district court conducted a hearing on the suppression

motion. The evidence was that, on June 17, 2015, just after 11:00 a.m., two Baltimore

                                             2
police officers — Christopher Szakolczai and Jeffrey Santos — were on patrol in the

southwest area of the city. While stopped at a traffic light on North Franklintown Road,

they saw a man later identified as Kingsborough.

      Kingsborough was near a corner across the street from the officers. The officers

thought Kingsborough was injured, in that he was — as Officer Szakolczai explained —

“hunched over in a weird manner, almost like holding something or doing something

with his, like, front area.”   See J.A. 38. 1    The officers described Kingsborough’s

movements as somewhat like a “duck walk.” Id. at 56, 117. To check on his well-being,

the officers drove their patrol car north on Franklintown Road and stopped near

Kingsborough.

      From inside the patrol car, the officers asked Kingsborough if he was okay.

Kingsborough responded in the affirmative and then added, “I’m on the box.” See J.A.

39, 95. The officers understood “I’m on the box” to mean that Kingsborough was

wearing a location device as part of some type “of supervision or sentence.” Id. at 60.2

Officer Szakolczai looked down and saw that Kingsborough, who was wearing shorts,

      1
         Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal. They also submitted two supplemental appendices.
      2
         It was Kingsborough’s lawyer who clarified on cross-examination of Officer
Szakolczai what the officers understood “I’m on the box” to mean. See, e.g., J.A. 60
(asking Szakolczai to agree that, “in essence, what [Kingsborough] was doing was
acknowledging to you that he was under some type of law enforcement monitoring or
supervision or sentence”). In his opening appellate brief, Kingsborough confirms that the
phrase “on the box” referred to “the fact that he was wearing a location device on his
ankle as required by some form [of] judicially mandated supervision.” See Br. of
Appellant 3 n.1.


                                            3
had a black GPS tracker box on his ankle.        The officers thought it “strange” that

Kingsborough shared that he was wearing the tracker box, because he did not appear to

be reaching for it and “I’m on the box” did not seem responsive to the officers’ inquiry.

Id. at 39-40, 62, 96. After their short exchange, however, Kingsborough walked away

from the officers unimpeded, heading diagonally across the intersection of North

Franklintown Road and West Franklin Street.

      The officers moved their patrol car to a nearby parking lot, from which they could

see Kingsborough from behind. At first, Kingsborough remained hunched over with his

hands in his front waistband area as he walked across the intersection. But suddenly,

according to Officer Szakolczai, Kingsborough “reached into, it looked like his front

waistband area, and just stood upright and began walking freely, loosely.” See J.A. 41.

Kingsborough’s “right arm was bent slightly, with the elbow at an angle, and then the left

arm was swinging freely.” Id.

      At that point, Officer Szakolczai immediately looked at Officer Santos and said

out loud, “[O]h shit, he has a gun.” See J.A. 41. That is, Szakolczai quickly deduced that

a handgun had been falling out of Kingsborough’s shorts when he was hunched over, and

that, having reached into his front waistband area and secured the firearm, Kingsborough

was now walking normally and keeping his right arm near his waistband as a so-called

“security check” to ensure that he kept the firearm under control. Id. at 90-91. Santos,

who had witnessed the same movements, concurred that Kingsborough exhibited “some

of the characteristics of an armed person.” Id. at 97. On cross-examination, the officers

clarified that, from their vantage point behind Kingsborough as he crossed the

                                            4
intersection, they could not see his frontside and only assumed that he reached inside his

shorts.       They explained, however, that their assumption was based on the visible

movements of Kingsborough’s right arm, as well as their experience. See, e.g., id. at 76

(Szakolczai’s testimony that “I didn’t see where his hand exactly went to. I knew that his

hand went to the front area. I saw the [right] arm, I saw the left arm swinging freely.

And from all my numerous times of seeing handguns on the street I knew that he had a

handgun . . . .”). 3

          Once Kingsborough crossed the intersection, he entered the Creative Cutz

barbershop, which was known to the officers as the site of a recent armed robbery. The

officers drove their patrol car to the front of the barbershop. Worried that Kingsborough

was armed and that someone in the barbershop could be robbed or injured, Officer

Szakolczai radioed their location to headquarters. He then followed Kingsborough into

the barbershop on foot, while Officer Santos positioned himself outside the barbershop

door.

          After entering the barbershop, Officer Szakolczai spotted Kingsborough walking

through the shop, still with his left arm swinging freely and his right arm locked to his

front waistband area. Szakolczai “blurted out something along the lines of come here,

stop,” seeking Kingsborough’s attention and intending to “stop him from continuing

          3
          Officer Szakolczai and Officer Santos each testified that they had received
training in identifying persons carrying firearms and had participated in handgun arrests.
Szakolczai specified that he had undergone training at the police academy, yearly in-
service training, roll call training, and training from more experienced officers. He also
cited personal experience that included fifteen or more handgun arrests.


                                             5
further into the barbershop.” See J.A. 45. Kingsborough “immediately turned around,”

“began doing a whole crouched-down thing again,” and started walking toward

Szakolczai. Id.

      Kingsborough continued to walk toward Officer Szakolczai as the officer said

“something along the lines of stop, stop, hands, hands” to “get [Kingsborough’s]

attention” and “keep his hands away.” See J.A. 45. Rather than stopping, Kingsborough

proceeded in Szakolczai’s direction, keeping his hands in his front waistband area. When

Kingsborough got close, Szakolczai tried to grab him but only briefly touched him.

Kingsborough slipped past Szakolczai, and the two men “ended up barrelling through the

[barbershop] door,” with Szakolczai grasping Kingsborough’s shirt. Id. at 46, 98-99.

      As Kingsborough came through the barbershop door, Officer Santos saw a black

and silver object fall from Kingsborough’s right hand as he tried to brace the object

against his waistband. Once the object hit the ground, it separated into two pieces that

Santos recognized as a handgun and a magazine. Meanwhile, Kingsborough attempted to

run past Santos, but Santos was able to grab Kingsborough. As Kingsborough fought to

get away, Officer Szakolczai withdrew his Taser device and used it on Kingsborough to

subdue him.       The officers then took Kingsborough into custody and retrieved the

handgun and ammunition.

      During the suppression hearing, to undermine the officers’ credibility,

Kingsborough sought to highlight inconsistencies between the officers’ written reports of

the arrest and their hearing testimony, which had been coupled with in-court

demonstrations of Kingsborough’s movements. The officers acknowledged inaccuracies

                                           6
and poorly worded descriptions in the reports, explaining, inter alia, that it was difficult

to describe Kingsborough’s movements in writing.

                                              2.

       In the arguments that followed the presentation of evidence at the suppression

hearing, Kingsborough challenged the officers’ credibility and contended that he was

illegally seized when Officer Szakolczai touched him inside the barbershop. According

to Kingsborough, the officers were not justified in stopping him until he subsequently

fled Szakolczai, in that nothing about his earlier movements as he crossed the intersection

and entered the barbershop generated reasonable suspicion for his seizure. In particular,

Kingsborough maintained that the officers could have had nothing more than a hunch that

he was armed during their encounter. See, e.g., J.A. 132 (“[W]hat this boils down to is

the officers essentially saying if your hand is in front of your body, . . . that’s reasonable

suspicion.”); id. at 135 (“The real issue is if you’re looking at someone in West Baltimore

from behind and you see one arm at their side and one arm [with] an elbow crooked, and

maybe they’re bent over a little bit, is that reasonable suspicion?”).         Kingsborough

emphasized that, during his initial encounter with the officers, he was cooperative,

volunteered that he was “on the box,” was not nervous or evasive, and simply walked

away from them.

       In response, the government argued that Kingsborough mischaracterized the

evidence and downplayed the significance of his movements. The government asserted

that the officers acted appropriately in confirming that Kingsborough’s initial hunched-

over position was not the result of injury, and then in resolving to conduct an
                                              7
investigatory stop of Kingsborough when his subsequent movements in the intersection

reflected that he was carrying a handgun. Those movements included his sudden change

to an upright position and the use of his right arm for an apparent “security check.”

       Ruling from the bench, the district court denied Kingsborough’s motion to

suppress the firearm evidence, concluding that there was reasonable suspicion for a stop

of Kingsborough by the time he was touched inside the barbershop by Officer Szakolczai.

The court specified that reasonable suspicion “was confirmed for the officers when they

saw [Kingsborough] stand up whenever crossing the road.” See J.A. 138 (elaborating

that the officers “did a good job of spotting a situation which was troublesome” and “had

reasonable suspicion for doing what they did”). By so concluding, the court necessarily

credited the officers’ hearing testimony.

       On May 20, 2016, Kingsborough filed a motion for reconsideration of the district

court’s suppression ruling. That motion was argued on June 20, 2016, at the start of

Kingsborough’s jury trial. As part of his argument, Kingsborough asserted that — in

addition to lacking sufficient evidence that he was armed — the officers lacked

reasonable suspicion that criminal activity was somehow afoot.           For its part, the

government urged the court to stand by its suppression ruling. The court agreed and

orally denied Kingsborough’s motion for reconsideration.

                                            B.

       At trial, the prosecution again called Officers Szakolczai and Santos to the stand.

They testified in a manner consistent with the evidence they presented at the suppression

hearing. Szakolczai clarified that he does not automatically assume that a person with

                                             8
either a “bent-over posture” or his “hands around [his] waist” has a handgun. See J.A.

173A (explaining that “a lot of people walk with their hands down their pants in

Baltimore,” and that he does not “stop every single person that does that”). The officers

believed Kingsborough to be armed, however, because of his sudden shift from being

hunched over to standing upright while apparently reaching into his waistband to retrieve

a falling handgun and then placing his hand in the “security check” position to keep the

firearm under control.

       Prior to the charge to the jury, the parties proposed instructions to the trial court.

Kingsborough objected to one proposed instruction, which related to the seizure of the

firearm evidence. The challenged instruction read:

       You have also heard testimony in this case regarding evidence seized by the
       government during an arrest and search of the defendant. You are hereby
       instructed that it is the responsibility of the Court alone to determine the
       validity and legality of the arrest and search, and the Court has determined
       that the searches in this case were valid and legal. It is up to you to decide
       what significance, if any, the evidence seized may have in this case.

See J.A. 152. The court overruled the objection and gave the challenged instruction to

the jury. During the subsequent closing arguments, Kingsborough did not lodge any

objections to the remarks of the prosecution.

       The jury convicted Kingsborough of the single offense charged in the indictment.

The district court later sentenced him to 120 months in prison. Kingsborough timely

noted this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.




                                             9
                                             II.

       In his appeal, Kingsborough maintains that the district court erred in failing to

suppress the seized firearm evidence.        He also pursues his challenge to the jury

instruction related to the seizure of that evidence, and he argues — for the first time on

appeal — that remarks made by the prosecutor in closing arguments were misleading and

prejudicial. We address Kingsborough’s contentions in turn.

                                             A.

       We begin with the suppression issue. In assessing a district court’s ruling on a

motion to suppress evidence, we review the court’s factual findings for clear error and its

legal conclusions de novo. See United States v. Holness, 706 F.3d 579, 588 (4th Cir.

2013). “We particularly defer to [the] court’s credibility determinations, for it is the role

of the district court to observe witnesses and weigh their credibility during a pre-trial

motion to suppress.” See United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008)

(internal quotation marks omitted). Moreover, when a motion to suppress has been

denied, we view the evidence in the light most favorable to the government. See Holness,

706 F.3d at 588.

       As the Supreme Court has long recognized, a police officer has the authority to

conduct a brief investigatory stop if “the officer’s action is supported by a reasonable and

articulable suspicion, under all the circumstances, that criminal activity ‘may be afoot.’”

See United States v. Bumpers, 705 F.3d 168, 171 (4th Cir. 2013) (quoting Terry v. Ohio,

392 U.S. 1, 30 (1968)). In justifying such a Terry stop, “the police officer must be able to

point to specific and articulable facts which, taken together with rational inferences from

                                             10
those facts, reasonably warrant that intrusion.” See Terry, 392 U.S. at 21. The facts are

“judged against an objective standard,” that is, “would the facts available to the officer at

the moment of the seizure . . . warrant a man of reasonable caution in the belief that the

action taken was appropriate?” Id. at 21-22 (internal quotation marks omitted).

       Here, the parties agree that Kingsborough was stopped and seized when Officer

Szakolczai first touched him inside the barbershop. See California v. Hodari D., 499

U.S. 621, 626 (1991) (“The word ‘seizure’ readily bears the meaning of a laying on of

hands or application of physical force to restrain movement, even when it is ultimately

unsuccessful.”). Additionally, the parties now agree that the criminal activity at issue in

the Terry analysis is the carrying of a handgun, as Maryland broadly prohibits anyone

from carrying a handgun in public.        See Md. Code, Crim. Law § 4-203.          That is,

Kingsborough has conceded on appeal — contrary to arguments he made in the district

court while seeking reconsideration of the court’s suppression ruling — that if the

officers had reasonable suspicion that he was armed, they also had reasonable suspicion

that criminal activity was afoot. 4

       Kingsborough continues to insist, however, that the officers lacked reasonable

suspicion that he was carrying a handgun. We disagree. Deferring to the district court’s

       4
          Notably, the parties have also suggested that the officers may have had
reasonable suspicion that criminal activity was afoot based on Kingsborough’s confessed
status of being “on the box.” For example, the officers might have reasonably suspected
that Kingsborough had been convicted of an offense that rendered him ineligible to
possess a firearm under federal and state law. See, e.g., 18 U.S.C. § 922(g)(1); Md.
Code, Crim. Law § 5-622; Md. Code, Pub. Safety § 5-133(c). In view of Maryland’s
general prohibition against carrying handguns, however, we need not reach this issue.


                                             11
credibility determinations, as we must, we also accept the court’s conclusion that the

officers had reasonable suspicion that Kingsborough was carrying a handgun once he

stood upright in the intersection. Notably, the officers at first assumed — and diligently

eliminated — an innocent explanation for Kingsborough’s initial hunched-over position,

i.e., that he was injured. The officers subsequently deduced that Kingsborough was

armed when they witnessed his sudden switch to the upright position and a free and loose

gait, coupled with the distinctive movements of his arms indicating that he had reached

into his shorts to retrieve a falling handgun and then was performing a “security check”

to ensure that the firearm remained secure in his waistband. Indeed, the totality of

Kingsborough’s movements prompted Officer Szakolczai to blurt out, “[O]h shit, he has

a gun,” and Officer Santos to concur. See J.A. 41, 97. In these circumstances, we are

satisfied that the officers have pointed to specific and articulable facts that reasonably

warranted the stop of Kingsborough. Accordingly, we will not disturb the district court’s

suppression ruling.

                                           B.

      We turn to the district court’s decision to give the jury instruction challenged by

Kingsborough. The challenged instruction advised the jury that the officers’ seizure of

the firearm evidence occurred “during an arrest and search” that had already been found

by the court to be “valid and legal.” See J.A. 152. Kingsborough does not assert that the

challenged instruction misstated the law, including that “it is the responsibility of the

Court alone to determine the validity and legality of the arrest and search.” See id.

Rather, Kingsborough argues that the challenged instruction was confusing (in that he

                                           12
was stopped and seized, but not searched) and unnecessary (as there was no indication

that the jury otherwise would have taken it upon itself to assess the legality of the stop).

Kingsborough also contends that the challenged instruction was prejudicial in the

circumstances of his case, where the only issue was the officers’ credibility in describing

their encounter with Kingsborough and his alleged dropping of the handgun and

ammunition outside the barbershop. See Br. of Appellant 23-24 (“Informing the jury that

the very same testimony offered against him for substantive purposes at trial, had

previously been heard and credited by the judge in finding his arrest to be valid, put the

court’s imprimatur on the testimony of the officers.”). We cannot say, however, that the

court abused its discretion with respect to the challenged instruction. See United States v.

Jinwright, 683 F.3d 471, 478 (4th Cir. 2012) (“We review for abuse of discretion both the

district court’s decision to offer an instruction and the content of that instruction.”).

                                              C.

       Finally, we consider whether the district court should have corrected remarks

made by the prosecutor during closing arguments. Specifically, Kingsborough contends

that the government improperly invited jurors with law enforcement backgrounds and

with relatives and friends in law enforcement to identify with the experiences of Officers

Szakolczai and Santos. See, e.g., J.A. 184 (telling those jurors that “[y]ou know it’s not

an easy job, and sometimes it means you have to go into dangerous places”).

Kingsborough refers to those remarks as a prohibited “Golden Rule” argument that asked

the jurors to put themselves in the shoes of a party. Because Kingsborough did not object

to the remarks at trial, our review is for plain error. See Fed. R. Crim. P. 52(b); United

                                              13
States v. Williamson, 706 F.3d 405, 411 (4th Cir. 2013) (explaining that, under plain error

review, an appellate court may correct an error only when: “(1) there is an error; (2) the

error is plain; (3) the error affects substantial rights; and (4) the court determines, after

examining the particulars of the case, that the error ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings’” (quoting United States v. Olano,

507 U.S. 725, 732 (1993))). Even assuming that the district court’s failure to correct the

prosecutor’s remarks constitutes an error that is plain, Kingsborough cannot show that the

error affects substantial rights, i.e., that the remarks “so infected the trial with unfairness

as to make the resulting conviction a denial of due process.” See Darden v. Wainwright,

477 U.S. 168, 181 (1986) (internal quotation marks omitted). Kingsborough’s final

contention of error therefore also fails.



                                             III.

       Pursuant to the foregoing, we reject Kingsborough’s appellate contentions and

affirm his conviction and sentence.

                                                                                  AFFIRMED




                                              14
THACKER, Circuit Judge, concurring in part and concurring in the judgment:

       I fully concur in the opinion’s analysis and conclusion as to the jury instruction

and closing argument issues.

       I also concur in the judgment on the suppression issue -- but only because

Kingsborough has now conceded that violation of Maryland Code Ann., Criminal Law

§ 4–203 1 is the “criminal activity” in which Officers Santos and Szakolczai suspected

Kingsborough to be engaging.          See Supp. Authorities at 1, United States v.

Kingsborough, No. 16–4804 (4th Cir. filed May 10, 2017), ECF No. 59; see also Oral

Argument at 12:04–08, United States v. Kingsborough, No. 16-4804 (4th Cir. May 7,

2018), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (hereinafter

“Oral Argument”) (“If [Kingsborough] had a gun period, he was a walking felony.”). I

would not have concurred otherwise.

      After floating a multitude of rationales in an apparent effort to see if any would

stick, for the first time at oral argument, the Government advanced the theory that

§ 4–203 was a basis for the officers’ suspicion of “criminal activity.” Of note, this post

hoc rationale was not mentioned in the police report, the officers’ testimony at the

suppression hearing, the Government’s argument at the suppression hearing, or appellate

       1
        This statute provides, “Except as provided in subsection (b) of this section, a
person may not . . . wear, carry, or transport a handgun, whether concealed or open, on or
about the person.” Md. Code Ann., Crim. Law § 4–203(a)(1)(i). Subsection (b)
provides, “This section does not prohibit . . . the wearing, carrying, or transporting of a
handgun, in compliance with any [permit] limitations . . . , by a person to whom a permit
to wear, carry, or transport the handgun has been issued under [state law].” Id.
§ 4–203(b)(2).


                                            15
briefing. 2 See Oral Argument at 27:40–45 (Government counsel admitting it has never

provided citation to § 4–203 to this court); id. at 28:14–24 (admitting police officers

never cited § 4–203 as the criminal activity of which they had reasonable suspicion in

district court record); id. at 34:16–25 (admitting it was not “in the[ officers’] testimony

that the reason they stopped [Kingsborough] was because of [§ 4–203]”). In my view,

law enforcement should know -- and be able to articulate -- the “criminal activity” they

suspect to be afoot in support of a deprivation of liberty at the time of the stop. A

theory for the stop articulated three years after the fact should not serve to justify the stop

in this case or any case.

                                              I.

       An officer may stop and briefly detain a person when he or she “has reasonable,

articulable suspicion that the person has been, is, or is about to be engaged in criminal

activity.” United States v. Hensley, 469 U.S. 221, 227 (1985) (one emphasis omitted)

(quoting United States v. Place, 462 U.S. 696, 702 (1983)); see also Terry v. Ohio, 392

U.S. 1, 21–22 (1968). We “must look to the totality of the circumstances in determining

whether the officer had a particularized . . . basis for suspecting criminal activity.”

United States v. David Foster, 634 F.3d 243, 246 (4th Cir. 2011) (emphasis supplied); see

also United States v. Cortez, 449 U.S. 411, 417 (1981) (“[I]nvestigatory stop[s] must be

       2
         The Government cited § 4–203 in its response to the motion to suppress, but only
in discussing whether officers had probable cause to arrest Kingsborough after seeing the
gun fall from his body. See J.A. 22. Citations to the “J.A.” and “S.J.A.” refer to the Joint
Appendix and Supplemental Joint Appendix, respectively, filed by the parties in this
appeal.


                                              16
justified by some objective manifestation that the person stopped is, or is about to be,

engaged in criminal activity.”). Indeed, “[w]ithout reasonable particularized suspicion of

wrongdoing, such searches and seizures offend the Constitution.”          United States v.

Massenburg, 654 F.3d 480, 488 (4th Cir. 2011) (emphasis in original).

                                            A.

       I do not dispute that objectively -- at the moment Kingsborough stood up from his

hunched position and kept his arm bent at his waist -- the officers, based on their training

and experience, may have had reasonable suspicion that Kingsborough was carrying a

firearm. We have held that a security check on a weapon “can contribute to a finding of

reasonable suspicion that the suspect was engaged in criminal activity.” United States v.

Zachary Foster, 824 F.3d 84, 94 (4th Cir. 2016); see also United States v. Humphries,

372 F.3d 653, 660 (4th Cir. 2004) (pointing to a security check as a factor supporting a

finding of probable cause). And we have defined a security check as “an instinctual

movement in which . . . suspects reach to ensure that a concealed weapon is secure.”

Foster, 824 F.3d at 87; see also Humphries, 372 F.3d at 660. The testimony of the

officers leads to a reasonable conclusion that Kingsborough was fiddling with a handgun

in his waistband, and when he stood up, he had secured it to the point that he could walk

again. Even though Officer Santos admitted that the object Kingsborough was fiddling

with “could have been anything.       It could have been a cell phone,” J.A. 116, “a

reasonable suspicion need not rule out all innocent explanations,” United States v. Sean

Black, 525 F.3d 359, 365 (4th Cir. 2008).



                                            17
       In reaching this conclusion, however, I refuse to adopt many of the arguments

proffered by the Government because they are not supported by the facts of record.

Indeed, it is not clear whether the district court found these arguments to be persuasive,

as it did not make any findings at all in its oral ruling. 3

             • The Government argued Kingsborough was non-responsive
               to the officers. The Government has represented that when
               the officers asked Kingsborough if he was okay,
               Kingsborough’s answer was “non-responsive.” See Gov’t’s
               Br. 3; Oral Argument at 21:48–50, 23:26–27. The record
               completely belies this notion. Officer Szakolczai testified
               that when he asked, “Are you okay?” Kingsborough
               answered, “[Y]eah.” J.A. 39. Officer Santos likewise testified
               that Kingsborough said, “I’m all right.” Id. at 104. In fact, at
               oral argument, the Government agreed that Kingsborough’s
               answer “yeah,” was responsive to the question, “Are you
               okay?” Oral Argument at 23:36–46. Not only was
               Kingsborough responsive, but he was also cooperative,
               offering the information -- unprompted -- that he was “on the
               box.”

       3
           In its entirety, the district court’s oral ruling on the motion is as follows:

                I think that at first there was reasonable suspicion . . . on two
                grounds, really. Either that Mr. Kingsborough was injured or
                that something . . . had happened in the front end. And I
                think that that was confirmed for the officers when they saw
                him stand up whenever crossing the road. And I think that
                they had very, I think they did a good job of spotting a
                situation which was troublesome. And I think they had
                reasonable suspicion for doing what they did.

                I think [defense counsel] is right, that the time of the touching
                is what I look at. I obviously don’t look at the fact that a gun
                was found. But I think that the officers did their job and did it
                well. So I am going to deny the motion.

       J.A. 138.


                                                 18
          • The Government argued Kingsborough was acting strange.
            The Government also attempts to classify Kingsborough’s
            subsequent statement that he was wearing an ankle
            monitoring device as “strange,” Gov’t’s Br. 3, 13, and
            presumably, reason to suspect Kingsborough had a gun. This
            theory makes no sense. 4 It is difficult to comprehend how an
            individual offering to police officers that he is wearing an
            ankle monitoring device can be seen as anything other than
            forthcoming and cooperative. In any event, we require the
            Government “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.”
            David Foster, 634 F.3d at 248. It wholly failed do so here.

          • The Government argued Kingsborough was evasive. The
            Government further contends that Kingsborough was acting
            “evasive.” Gov’t’s Br. 8, 13. But there is no evidence of
            evasion, and the district court made no such finding. There is
            no evidence Kingsborough was nervous, avoiding the police,
            or failing to answer their inquiries. Indeed, as noted above,
            he fully responded to their only inquiry. Once he did so, he
            simply walked away, which he had every right to do. See
            Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“[W]hen an
            officer, without reasonable suspicion or probable cause,
            approaches an individual, the individual has a right to ignore
            the police and go about his business.”).

          • The police report contains no basis for reasonable,
            articulable suspicion other than the security check. Officer
            Santos’s incident report filed in connection with
            Kingsborough’s seizure and arrest provides zero basis for

      4
        In the suppression hearing, Officer Szakolczai attempted to link Kingsborough’s
statement with the reasonable, articulable suspicion that Kingsborough had a firearm:
“[W]hen he gave me that response, it kind of drew my attention because it just gave me,
gave me like, almost like a flashback to a previous case I had where someone gave me a
weird answer and they had a gun as well.” J.A. 62. Critically, the Government never
connected this statement with any particular incident, and never used this statement in
support of reasonable suspicion that Kingsborough possessed a firearm.


                                          19
              reasonable suspicion, other than the officers believed
              Kingsborough was performing a security check. Indeed, the
              report states that when officers asked Kingsborough if he
              needed help, he “stated that he was fine.” Police Report at 2,
              United States v. Kingsborough, No. 16–4804 (4th Cir. filed
              May 10, 2018), ECF No. 59, Ex. 2. It did not mention that
              Kingsborough was evasive, nonresponsive, or strange.

           • The record contains significant inconsistencies.             For
             example, the record demonstrates that a report filed by
             Szakolczai 5 stated that when Szakolczai entered the barber
             shop, Kingsborough “was pulling his hands out of his pants,”
             and he “withd[rew] his arm and the object within his front
             waistband.” J.A. 84. But Szakolczai later conceded that he
             “couldn’t see any object” in the waistband and he couldn’t
             “say for sure if [Kingsborough’s hands] went down the top
             waistband of his pants.” Id. at 85, S.J.A. 48. In addition,
             although both Szakolczai’s and Santos’s reports stated that
             Szakolczai grabbed Kingsborough’s hand and ordered him to
             stop all at the same time, at the suppression hearing
             Szakolczai instead testified that he first “ordered him to come
             towards me,” and then, “when he came toward me was when
             he was within arm’s reach, I grabbed him, and that’s when we
             went out the door.” J.A. 86.

       Thus, I base my conclusion that the officers had reasonable suspicion to believe

Kingsborough was carrying a firearm in his waistband solely on the officers’ testimony

about Kingsborough’s actions while crossing the street, and that they believed

Kingsborough to be conducting a “security check” of a weapon based on their training



       5
         The parties have only provided the report filed by Santos. See Kingsborough,
No. 16–4804, ECF No. 59, Ex. 2. But at the suppression hearing, defense counsel clearly
cross-examined Szakolczai about a report that he completed and filed in relation to the
deployment of the Taser. See J.A. 64. The parties have failed to provide this report to
this court, despite the fact that defense counsel relied on it extensively at the suppression
hearing.


                                             20
and experience. But, I do so quite reluctantly given the Government’s shifting theories of

reasonable suspicion in this case.

                                            B.

       The fact remains that although the officers may have believed Kingsborough had a

firearm, the Government has not successfully connected that fact to the officers’

particularized basis for suspecting that Kingsborough had or was about to engage in

criminal activity.   See United States v. Mason, 628 F.3d 123, 137 (4th Cir. 2010)

(Gregory, J., dissenting) (“[The officer] failed to articulate why [the circumstances

alleged] would be associated with criminal activity.           In other words, [the officer]

provided ‘articulable’ facts, yet provided no basis for why these factors were ‘suspicious’

individually or in the aggregate.”). In its ruling at the suppression hearing, the district

court likewise failed to articulate what criminal activity was afoot. In fact, the officers’

testimony at the suppression hearing, the Government’s arguments in briefing, and the

Government’s arguments at oral argument reveal a revolving door of Terry theories, each

of which is largely unsatisfactory as far as I am concerned.

                                             1.

       First, at the suppression hearing, Officer Szakolczai suggested he believed

Kingsborough was preparing to rob the Creative Cutz barber shop. He testified that “a

few days, maybe a week or two” before the date in question, Creative Cutz was involved

in an armed robbery. J.A. 42. Szakolczai thought that “from the characteristics, along

with the fact that how quickly [Kingsborough] entered into the barbershop . . . this is

going to be an armed robbery in progress or someone inside the barbershop was going to

                                            21
be injured due to the fact that I still believed [Kingsborough] had a gun.” Id. at 43

(emphasis supplied). This theory did not stick, as it did not show up again in briefing

with this court. In fact, the Government has conceded that “a high-crime environment

does not itself produce reasonable suspicion.” Gov’t’s Br. 11. With good reason. Being

in a place where crimes have occurred in the past “does little to support the claimed

particularized suspicion,” Massenburg, 654 F.3d at 488, especially when the encounter

occurred “in the middle of the day,” David Foster, 634 F.3d at 247, and when

Kingsborough had been approached by the officers just moments before.

                                           2.

      Second, at oral argument, my good colleagues suggested that the electronic

monitoring device on Kingsborough’s ankle supported the officers’ reasonable,

articulable suspicion that Kingsborough was a felon in possession of a firearm, or was

otherwise violating the terms of some type of court supervision. See Oral Argument at

5:50–7:45, 10:45–11:00.

      Of note, however, the Government itself failed to make that argument at every

stage of this case. Indeed, prior to oral argument, the Government referred to the ankle

device only to argue that Kingsborough purportedly gave a strange answer to officers’

initial questioning. Gov’t’s Br. 12 n.1 (“It [wa]s not Mr. Kingsborough’s status as a

criminal probationer that necessarily drew suspicion, but rather that his answer [‘I’m on

the box’] made no sense at all. . . .”). The Government again confirmed this approach at

argument. See Oral Argument at 20:24–28 (“The crime at issue is not possessing a

firearm under supervision.”).    Moreover, in Maryland, monitoring devices may be

                                           22
required for individuals other than felons. See, e.g., Md. Code Ann., Corr. Servs. § 11–

704(c)(3) (an “inmate” in Baltimore City may participate in home detention/work

program and monitored by electronic monitoring devices); id. § 1–101(i) (defining

“inmate” as “an individual who is actually or constructively detained or confined in a

correctional facility,” without regard to whether he or she is a felon or misdemeanant).

So the argument that the officers had reasonable suspicion that Kingsborough was a felon

in possession of a firearm could not stick even if the Government had come up with it on

its own.

                                            3.

       Finally, I come to the Government’s eleventh hour (very nearly twelfth hour)

position which Kingsborough has now joined -- that the relevant “criminal activity” is a

violation of Maryland’s statute prohibiting a person to carry a firearm in public. Of

significance, however, in Maryland, one is permitted to “wear[], carry[], or transport[] a

handgun” if he or she has a permit to do so. Md. Code Ann., Crim. Law § 4–203(b)(2)

(effective Oct. 1, 2013). It is undisputed that whether Kingsborough had such a permit

or was otherwise prohibited from possessing a firearm were matters not known to the

officers prior to their observations of and interactions with Kingsborough.

       Our sister circuits have split on the issue of whether the mere possession of

firearms in a state where individuals may legally carry them provides reasonable

suspicion for a stop. Compare Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128,

1131 (6th Cir. 2015) (where pedestrian was visibly carrying a firearm on his hip, no

reasonable suspicion that the pedestrian was engaged in criminal activity because “Ohio

                                            23
law permits the open carry of firearms . . . and thus permitted [the pedestrian] to do

exactly what he was doing.”), and United States v. Lewis, 672 F.3d 232, 240 (3d Cir.

2012) (Where “[i]t is lawful for certain individuals in the Virgin Islands to carry a firearm

provided that a license is obtained,” and “[a]bsent any information about the criminality

of the firearms, the mere possession of the firearms could not provide [the officer] with

reasonable suspicion to stop the vehicle.”), with United States v. Lewis, 674 F.3d 1298,

1304 (11th Cir. 2012) (“Based on McRae’s admission that he was carrying a handgun in

his waistband, the officers had reasonable suspicion to believe that McRae was

committing a crime under Florida law -- carrying a concealed weapon. Under Florida

law, ‘[a] person who carries a concealed firearm on or about his person commits a felony

of the third degree.’ Fla. Stat. § 790.01(2). Notably, the possession of a valid permit for a

concealed weapon is not related to the elements of the crime, but rather is an affirmative

defense.” (footnotes omitted)).

       We have explained, “Being a felon in possession of a firearm is not the default

status.” United States v. Nathaniel Black, 707 F.3d 531, 540 (4th Cir. 2013). And in a

state where individuals can openly carry firearms, “the exercise of this right, without

more, cannot justify an investigatory detention. Permitting such a justification would

eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”

Id. Thus, there is a decent argument to be made that the nature of the statute -- that is,

whether the ability to carry a firearm is a blanket grant, or whether (like here) there is a

blanket prohibition with exceptions -- should not dictate whether reasonable suspicion to



                                             24
conduct a Terry stop should or should not be present. Unfortunately, that argument was

not made here.

                                             II.

       Because Kingsborough ultimately agreed with the Government’s asserted rationale

for a reasonable, articulable suspicion, albeit three years after the fact, I am compelled to

concur in the judgment on the suppression issue. Had Kingsborough challenged on

appeal any of the Government’s ever shifting views of the purported criminal activity that

provided a basis for the stop, my position would most assuredly be different.




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