                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4319


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ZACHARY M. FOSTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.   John Preston Bailey,
District Judge. (5:14−cr−00046−JPB−JES−1)


Argued:   January 28, 2016                 Decided:    May 24, 2016


Before WILKINSON, DIAZ, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wilkinson and Judge Thacker joined. Judge Wilkinson
wrote a separate concurring opinion.


ARGUED: Brendan S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Wheeling, West Virginia, for Appellant. Tara Noel Tighe, OFFICE
OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee.   ON BRIEF: William J. Ihlenfeld, II, United States
Attorney, Stephen L. Vogrin, Assistant United States Attorney,
Donald M. Kersey, Law Student, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.
DIAZ, Circuit Judge:

      Zachary Foster entered a conditional guilty plea to being a

prohibited    person     in    possession      of       a    firearm,       reserving      the

right to challenge the district court’s denial of his motion to

suppress    evidence     recovered      after       a       stop-and-frisk.          Foster

argues that the district court erred because the police lacked

reasonable suspicion.          We disagree and therefore affirm.



                                        I.

                                        A.

      Around 12:39 a.m. on August 11, 2014, police in Wheeling,

West Virginia, received a “911 hangup-only call” reporting a

gunshot near a jogging trail by Coleman’s Fish Market. 1                          J.A. 68.

Officers   Eric    Burke      and   Rachel   Boyer          were     dispatched      to    the

scene.

      Driving separately, the two officers arrived within minutes

to   the   area    in   question,     which     was         associated       with    theft,

vandalism, and the production of methamphetamine.                              With Boyer

trailing    him,    Burke     rounded   a     corner          and    saw    Foster     “just

standing     there,     looking      around”    in          an      alley    between       two

businesses that, like all others in the area, were closed.                                J.A.

      1 The facts recounted here are consistent with the
magistrate judge’s findings of fact as well as those of the
district court. As noted below in Section II.A, however, Foster
presents a different version of events.


                                         2
40.   When Burke spotted Foster, the officers were about three or

four blocks away from Coleman’s Fish Market.               Foster was the

only person Burke and Boyer had encountered since arriving in

the area.

      Both officers left their cars and approached Foster, with

Burke holding a rifle “in the low ready position.”                J.A. 20.

Burke informed Foster that he and Boyer were investigating a

report of a shot fired in the area.           Foster did not respond and

avoided eye contact.        Boyer believed that Foster was under the

influence of drugs because his eyes “appeared glassy,” he did

not respond to her or Burke, and “[h]e didn’t have the alertness

that most people have when police officers approach them.”               J.A.

71.       Burke   thought   Foster    might   “possibly”    be   under    the

influence of drugs “because of how unresponsive he was.”                 J.A.

41.

      Next, Burke asked Foster if he had any weapons.                Foster

then “began to put his right hand in his right front pocket.”

J.A. 41–42.       Burke and Boyer interpreted this as a “security

check”—an instinctual movement in which, upon being asked if

they are carrying any weapons, suspects reach to ensure that a

concealed weapon is secure.          J.A. 42–43, 73. 2     Burke then told


      2 Burke learned during his training that a suspect
performing a security check presents a potential danger to
police officers.   Specifically, Burke testified about having
(Continued)
                                      3
Foster    to   keep    his   hands     out    of     his   pockets,       and    Foster

complied.        Subsequently,      Burke     told    Boyer     to     frisk    Foster.

Boyer    first    patted     the    outside     of    Foster’s       right      pocket,

touching an object that felt like a firearm.                     Ultimately, Boyer

discovered three guns.

                                        B.

      Foster was indicted for one count of being a prohibited

person in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1),       924(a)(2).        Arguing      that    he    was     stopped    and

frisked without reasonable suspicion, Foster moved to suppress

the evidence that Boyer and Burke recovered.

      After a hearing, a magistrate judge recommended that the

district court grant Foster’s motion.                  The judge reasoned that

the     following     factors      together     did    not      create    reasonable

suspicion sufficient to justify the stop-and-frisk:

      (1) Defendant was spotted in the area where a 911
      caller reported that one shot was recently fired;
      (2) the gunshot was reported late at night and the
      area was considered a “high-crime” area by the
      officers;   (3) Defendant  did   not respond  to  any
      questions by the officers; (4) the officers believed
      Defendant was under the influence of illegal drugs;
      and (5) during questioning, Defendant moved his right
      hand toward his front right pocket.

J.A. 103.



watched video footage showing a suspect who, upon being asked if
he had any weapons, performed a security check, retrieved a
firearm, and shot and killed an officer. See J.A. 42–43.


                                         4
     Upon     the        government’s       objection,            the       district         court

declined      to     adopt        the      magistrate            judge’s           report      and

recommendation       and       denied    Foster’s          motion     to    suppress.          The

court placed particular emphasis on the security check, noting

that “[b]ecause the underlying principle for a Terry 3 frisk is

officer safety, this Court finds the defendant’s hand movements

to be especially significant.”               J.A. 145.

     The     court,       however,       gave     no       weight     to      the     officers’

observation that Foster may have been under the influence of

drugs because Burke—the officer who ordered the stop-and-frisk—

testified     merely        that        Foster       “possibly”            appeared     to     be

intoxicated.         J.A.      138–40.       Additionally,            the     court     “g[ave]

little     weight    to     [Foster’s]       lack          of   eye    contact        with    the

officers” because he “did not show signs of nervousness, but

[rather] stood there silently.”                  J.A. 141.

     Subsequently,          Foster      entered        a    conditional        guilty       plea,

reserving the right to appeal the district court’s denial of his

motion to     suppress.           Foster    was      sentenced        to     thirty     months’

imprisonment        to    be    followed        by     three     years        of    supervised

release.

     This appeal followed.




     3   Terry v. Ohio, 392 U.S. 1 (1968).


                                             5
                                          II.

      On appeal of “the denial of a motion to suppress, we review

the district court’s factual findings for clear error and its

legal conclusions de novo,” United States v. Green, 740 F.3d

275, 277 (4th Cir. 2014), as long as the relevant issues were

properly raised in the district court, see Fed. R. Crim. P.

52(b); United      States     v.    Olano,        507   U.S.       725,    731–32      (1993).

Because    the   government        prevailed         below,        “[w]e     construe        the

evidence in the light most favorable to [it].”                            Green, 740 F.3d

at 277.

      The Fourth Amendment protects “[t]he right of the people to

be secure in their persons . . . against unreasonable searches

and   seizures.”        U.S.       Const.         amend.     IV.          “Although       brief

encounters    between    police         and       citizens     require       no       objective

justification,” United States v. Black, 707 F.3d 531, 537 (4th

Cir. 2013), “a brief investigatory stop is impermissible unless

the   officer’s     action         is    supported           by     a     reasonable         and

articulable      suspicion . . . that               criminal        activity          ‘may    be

afoot,’” United States v. Bumpers, 705 F.3d 168, 171 (4th Cir.

2013) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).

      An   antecedent    question        to       whether     an    investigatory            stop

comports with the Fourth Amendment is whether there was such a

stop at    all—that     is,    whether        the    police        “seized”       a   suspect.

Black, 707 F.3d at 537; see also United States v. Slocumb, 804

                                              6
F.3d 677, 681 (4th Cir. 2015).                       To determine this, we consider

whether,      “in    view       of    all   the      circumstances       surrounding       the

incident, a reasonable person would have believed that he was

not free to leave.”                  Slocumb, 804 F.3d at 681 (quoting United

States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989)).

       If a person was seized, courts move on to consider whether

the    seizure      was   justified         by    reasonable       suspicion.        “Th[is]

level of suspicion must be a ‘particularized and objective basis

for    suspecting         the        particular       person      stopped    of    criminal

activity.’”         Black, 707 F.3d at 539 (quoting United States v.

Griffin, 589 F.3d 148, 152 (4th Cir. 2009)).

       To     determine       if      the   officer       had   reasonable        suspicion,

courts look to “the totality of the circumstances.”                                 Slocumb,

804    F.3d    at    682.          While    “a    mere    ‘hunch’    is     insufficient,”

reasonable suspicion is less demanding than probable cause “and

may     well        ‘fall[]          considerably         short     of      satisfying       a

preponderance        of     the      evidence     standard.’”         United      States    v.

Massenburg, 654 F.3d 480, 485 (4th Cir. 2011) (alteration in

original) (quoting United States v. Arvizu, 534 U.S. 266, 274

(2002)).       Seemingly innocent factors, when viewed together, can

amount to reasonable suspicion.                      See Slocumb, 804 F.3d at 682.

That    said,       we    are        skeptical       of    “Government       attempts       to

spin . . . largely mundane acts into a web of deception.”                                  See

United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011).

                                                 7
Accordingly,         “the       Government        cannot      rely       upon    post     hoc

rationalizations to validate those seizures that happen to turn

up contraband.”        Id. at 249.

       Even if an investigatory stop is justified by reasonable

suspicion, a subsequent frisk of a suspect for weapons is not

necessarily permissible.             United States v. Sakyi, 160 F.3d 164,

169    (4th   Cir.    1998)      (explaining          “that   an     officer     must   have

justification        for    a    frisk   or       a   ‘pat-down’      beyond     the    mere

justification for the traffic stop”).                      Instead, a frisk must be

supported by “reasonable suspicion that the [suspect] is armed

and dangerous.”        United States v. George, 732 F.3d 296, 299 (4th

Cir.    2013)   (quoting         Arizona     v.       Johnson,     555    U.S.   323,     327

(2009)); see also Terry, 392 U.S. at 24.

       On appeal, Foster presents two principal arguments.                                The

first is that he was seized before he reached for his right

pocket and that this seizure was not supported by reasonable

suspicion.      Foster’s second argument is that even if he were

seized after he reached for his pocket, the police still lacked

reasonable suspicion to stop him.                     We address these arguments in

turn.

                                             A.

       Before   us,    Foster       argues        that   he   was    seized      before    he

reached for his pocket and that this supposed seizure was not

justified by reasonable suspicion.                    We reject this contention.

                                              8
      Foster’s legal theory relies on a version of the facts that

differs from the findings of the magistrate judge and district

court.     Foster says that after Burke informed him that there was

a gunshot reported in the area, the officers told him that he

would be detained and frisked.                     According to Foster, only after

this did he reach for his right pocket upon being asked if he

was carrying any weapons.

      In pressing this version of the facts, Foster relies on a

portion     of        Boyer’s    testimony          from    the        motion-to-suppress

hearing.      Appellant’s           Br.   at   2–3    (quoting         J.A.   71).     After

testifying       that       Burke     told     Foster       that       the    police   were

responding       to    a    report   of   a    shot    fired      in    the   area,    Boyer

stated, “At that point we told Foster that we were going to

detain –– we were just going to pat him down to see if he had

weapons on him, because he was the only person in the area at

the time and all the businesses were closed.”                            J.A. 71.      Then,

Boyer testified that the police asked Foster if he was carrying

weapons “at a later time.”                J.A. 71.         Because the parties agree

that Foster reached for his right pocket after being asked if he

was   carrying        any    weapons,     this      portion    of      Boyer’s   testimony

suggests that the police ordered Foster to submit to a stop-and-

frisk before he reached for his pocket.

      Based on this excerpt of Boyer’s testimony, Foster argues

that when the officers told him that they were going to detain

                                               9
him and pat him down, he was subject to an investigatory stop.

Because     this     took    place     before        Foster      reached    for       his    right

pocket,      his     security    check          would      not     be    considered         in     a

reasonable-suspicion analysis.

       Foster,      however,     failed         to     make      this    argument       in       the

district court.             Instead, Foster accepted the version of the

facts ultimately found by the magistrate judge and the district

court and effectively conceded that the security check was a

relevant      consideration          by     including         it    in    his     reasonable-

suspicion analysis.             Indeed, Foster stated in his response to

the government’s objections to the magistrate judge’s report and

recommendation that “[t]he basic facts of this case are not in

dispute,” and he described the relevant facts in the following

sequence: the officers asked Foster if he had weapons, Foster

reached toward his pocket, and then the officers ordered him to

put his hands in front of him and conducted the pat down.                                    J.A.

125.

       A    theory     presented          for    the      first    time     on    appeal          is

generally considered waived or forfeited.                          See United States v.

Robinson,     744     F.3d    293,     298–300         (4th   Cir.       2014)    (discussing

waiver and forfeiture); United States v. Rendelman, 641 F.3d 36,

43   (4th    Cir.     2011)     (“An       appellate       contention          that    was       not

preserved     in     the     trial     court         is   reviewed       for     plain       error

only.”).       Curiously, however, the government has not pressed

                                                10
waiver or forfeiture on appeal.                     See United States v. Palomino-

Coronado, 805 F.3d 127, 130 n.3 (4th Cir. 2015) (holding that

“the government waived its waiver argument”).                           Accordingly, we

think it fair to proceed by determining if the district court

clearly    erred    in     failing       to    find    facts     consistent       with    the

version of events that Foster presents on appeal.

     “Clear     error        is     demonstrated . . . when              the     reviewing

court,    considering        all    of    the       evidence,    ‘is     left     with    the

definite     and      firm        conviction         that    a    mistake        has     been

committed.’”       United States v. Jackson, 728 F.3d 367, 372 (4th

Cir. 2013) (quoting United States v. Breza, 308 F.3d 430, 433

(4th Cir. 2002)).          But, “‘[i]f the district court’s account of

the evidence is plausible in light of the record viewed in its

entirety,’    we    will     not     reverse        the   district      court’s       finding

simply    because     we     have    become         convinced    that    we     would    have

decided the fact[s] differently.”                      United States v. Stevenson,

396 F.3d 538, 542 (4th Cir. 2005) (first alteration in original)

(quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

We also, as previously noted, review the facts in the light most

favorable to the government because it prevailed below.                                Green,

740 F.3d at 277.

     A     district      court      commits         clear   error       “when    it     makes

findings     ‘without        properly         taking      into   account        substantial

evidence to the contrary.’”               United States v. Francis, 686 F.3d

                                               11
265, 273 (4th Cir. 2012) (quoting Miller v. Mercy Hosp., Inc.,

720 F.2d 356, 361 (4th Cir. 1983)).             Here, however, the portion

of Boyer’s testimony to which Foster refers is not the sort of

“substantial evidence to the contrary” that must be explicitly

accounted     for   by   the    district   court.     Indeed,    neither     party

thought it significant enough to bring to the court’s attention.

Moreover, as the government points out, the officers’ incident

reports, Burke’s testimony, and Boyer’s testimony viewed as a

whole all support the district court’s findings. 4                Accordingly,

we   reject    Foster’s        version   of   the   facts   as   well   as     his

accompanying legal argument that he was seized before he reached

for his pocket. 5




     4 See United States v. Caporale, 701 F.3d 128, 140-42 (4th
Cir. 2012)(explaining that the district court’s failure to
address a particular piece of insubstantial contrary evidence
did not amount to clear error in light of the whole record);
Holton v. City of Thomasville Sch. Dist., 490 F.3d 1257, 1263
(11th Cir. 2007) (per curiam) (“[T]he district court may examine
the record as a whole and need not respond to every piece of
conflicting evidence.”).

     5 Foster also argues that the police were going to detain
him from the moment they approached him because he was the only
person they saw in the area.      Even if true (and the record
suggests   otherwise),   an  officer’s   subjective  intent  in
conducting a Terry stop is irrelevant. Whren v. United States,
517 U.S. 806, 812–13 (1996); United States v. Branch, 537 F.3d
328, 337 (4th Cir. 2008).



                                         12
                                        B.

     We next consider Foster’s argument that even if Burke and

Boyer stopped him after he reached for his pocket, they lacked

reasonable suspicion.

     There are five relevant factors supporting the presence of

reasonable    suspicion    that      Foster    was   or    had   been   engaged      in

criminal activity:

     (1) The 911 call that reported a gunshot;

     (2) Shortly after the officers were dispatched, Foster was
     the only person they encountered in the area in which the
     gunshot was reported;

     (3) The stop occurred late at night in a part of the city
     described as a “high crime” area;

     (4) Foster did not respond to the officers’ questions and
     avoided eye contact; and

     (5) Foster reached for his right pocket after being asked
     if he was carrying a weapon.

     The government also points to the fact that “Officers Burke

and Boyer suspected that [Foster] was under the influence of

illegal drugs.”       Appellee’s Br. at 8.           Like the district court,

we give this no weight.

     In evaluating the officers’ suspicion that Foster was on

drugs, the district court explained that courts must not simply

aggregate    the    knowledge   of    all     officers     involved     in   a    stop;

instead,     they     should    “substitute          the    knowledge        of     the

instructing officer or officers for the knowledge of the acting


                                        13
officer.”       J.A. 139 (quoting Massenburg, 654 F.3d at 493).                          The

court      found     that   “no    testimony         indicates      that    Officer    Boyer

communicated her concern to Officer Burke that [Foster] may have

been under the influence of drugs.”                           J.A. 139.          Thus, only

Burke’s knowledge was relevant.

       With    regard       to   his     knowledge,      the    court      explained    that

Burke merely “thought [Foster] could ‘possibly’ be under the

influence of drugs . . . ‘because of how unresponsive he was.’”

J.A. 139–40 (quoting J.A. 41).                      Based on this, the court found

that    “Officer      Burke’s      report      and    testimony       do   not   support   a

finding that he suspected the defendant was under the influence

of   drugs      or    alcohol.”           J.A.      139–40.         The    district    court

therefore       concluded         that    it     should       not    consider      Foster’s

suspected drug use in its reasonable-suspicion inquiry.                                 J.A.

140.       We find no error in the district court’s analysis.

       Nonetheless, based on the remaining factors, we conclude

that the stop was justified.

                                               1.

        The first relevant factor is the 911 call.                          Foster argues

that we should discount it in our reasonable-suspicion analysis

because it was anonymous and unreliable.

       A     “‘bare-boned,’         anonymous         tip,     standing      alone,     [is]

insufficient to justify a Terry stop.”                       United States v. Elston,

479 F.3d 314, 317 (4th Cir. 2007) (quoting Florida v. J.L., 529

                                               14
U.S.       266,   273–74        (2000)).     But,   the   police        may     rely   on   an

anonymous         tip     to     establish    reasonable        suspicion        if    it   is

“suitably corroborated” so as to “exhibit[] ‘sufficient indicia

of reliability.’”                J.L., 529 U.S. at 270 (quoting Alabama v.

White, 496 U.S. 325, 327 (1990)); Massenburg, 654 F.3d at 486.

       By itself, the tip here falls far short of supplying the

officers          with     reasonable        suspicion,       as    our       decision      in

Massenburg makes clear.                There, the police received a “vague,”

anonymous tip that shots were “possibly” fired in a particular

area.        Massenburg, 654 F.3d at 486.                 While we noted that the

fact       that    the     tipster     “disclosed       her     basis      of    knowledge”

increased the call’s reliability, the anonymous report was still

insufficiently reliable to support reasonable suspicion absent

further corroboration.               Id. at 487–88.       The tip here is similar,

and    thus       we     must    determine    whether     any      other      circumstances

increase its reliability to justify stopping Foster. 6




       6
       We cannot be sure that the call in this case was indeed
“anonymous.” On one hand, it was a “911 hangup-only call,” and
the police dispatcher “was unable to call the caller back.”
J.A. 80.    On the other hand, dispatch at some point later
informed the officers that the caller was one Sarah Wilson.
Ultimately, we need not resolve the issue conclusively.
Instead, we assume that the call was anonymous and nevertheless
conclude that the officers had reasonable suspicion.


                                              15
                                               2.

        We next consider the fact that, minutes after the officers

were dispatched, Foster was the only person they encountered in

the area in which the gunshot was reported.

      In     Massenburg,        we        explained    that       “when    a     tip       lacks

sufficient        indicia       of        reliability,       presence      in    the        area

identified by the tip does not generate reasonable suspicion.”

Id. at 487.         Similar to Foster, “Massenburg and his companions

were the only people encountered” when the police responded to a

report     of     gunshots     about       fifteen    minutes      after    receiving         an

anonymous tip.          Id. at 482–83, 487.              Additionally, like Foster,

Massenburg        was   found       four    blocks    away    from   the       site    of    the

alleged gunfire.             Id. at 487.       We concluded that the government

would      need    to   point        to    further    circumstances        to     meet      the

reasonable-suspicion threshold.                  See id. at 486–88.             Here, given

the   similarity        of    the    facts     at    hand    to   Massenburg,         we    must

conclude the same.

                                               3.

        Adding to the mix that the officers encountered Foster at

night in what they perceived to be a high-crime area also fails

to push the needle across the reasonable-suspicion threshold.

      Both the high-crime reputation of an area and the late hour

of a police encounter can contribute to a finding of reasonable

suspicion.         See, e.g., Slocumb, 804 F.3d at 682; George, 732

                                               16
F.3d at 300.          But here, even when combined with the factors

described       above,         they    are     insufficient          to    justify     an

investigatory stop.

        Massenburg,      once     again,     makes       this     clear.      There,   in

addition to the previously discussed similarities to Foster’s

case, Massenburg was encountered at night in a high-crime area

known     for    “drug         activity      as     well     as     random     gunfire.”

Massenburg, 654 F.3d at 482–83.                   We reasoned that the high-crime

reputation of the area “add[ed] little to the anonymous tip” and

“d[id] little to support the claimed particularized suspicion as

to Massenburg.”         Id. at 488.          Ultimately, we concluded that the

officers lacked reasonable suspicion.                    Id. at 482, 495–96.

        Here, the high-crime reputation of the area is of even less

value to the government than it was in Massenburg.                           The area in

which the police stopped Foster was not known specifically for

gun-related       incidents,          unlike       the     area     in     question    in

Massenburg.       Consequently, we cannot find reasonable suspicion

based on the factors discussed thus far.

                                             4.

        Next, we address the extent to which Foster’s failure to

respond    to    or     make    eye    contact      with    the     officers    supports

reasonable suspicion.

        With respect to Foster’s silence, the Supreme Court has

said    that    “when    an     officer,     without       reasonable      suspicion   or

                                             17
probable cause, approaches an individual, the individual has a

right to ignore the police and go about his business.”                 Illinois

v. Wardlow, 528 U.S. 119, 125 (2000).                 Thus, a “refusal to

cooperate, without more, does not furnish the minimal level of

objective justification needed for a detention or seizure.”                 Id.

(quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).                   Here,

because Foster did not have to respond to Burke and Boyer, we do

not find his silence significant.

     As for Foster’s lack of eye contact, we have explained that

“while the failure of a suspect to make eye contact, standing

alone,    is   an    ambiguous   indicator,     the   evidence    may     still

contribute to a finding of reasonable suspicion.”                George, 732

F.3d at 301 (citation omitted).           We are hesitant, however, to

afford lack of eye contact much weight because it is no more

likely to be an indicator of suspiciousness than “a show of

respect and an attempt to avoid confrontation.”            See Massenburg,

654 F.3d at 489.

     Massenburg is once again instructive.              There, the police

pointed   to   the    defendant’s   allegedly    suspicious      and    nervous

behavior, namely that he avoided eye contact, stood back from

the group of people he was with, and “took a step back away from

[a police officer], and . . . then began pantomiming a self pat-




                                     18
down search.” 7    Id. at 484–85.        We concluded that this behavior

was not “[g]enuinely suspicious,” but rather a “mild reaction”

to requests to consent to a voluntary search.                   See id. at 491.

Such unremarkable evidence of nervousness could not “suffice[]

to   create    reasonable      suspicion”    without    “Terry’s       reasonable

suspicion     requirement       [becoming]       meaningless.”          See   id.

Accordingly,     “it   [was]    clear    that    reasonable,     particularized

suspicion of criminal activity d[id] not exist.”                Id.

     Here, while Foster’s failure to make eye contact with the

police is not irrelevant, George, 732 F.3d at 301, it is too

“mild”   a    reaction   to    deserve    much    weight   in    our    analysis,

especially in light of the district court’s finding that Foster

did not appear to be nervous, J.A. 141.

     Based on the factors discussed thus far, this case is not

meaningfully distinguishable from Massenburg.                   Accordingly, we

turn to consider whether the security check is sufficient to tip

the scales in the government’s favor.




     7 The self-pat-down in Massenburg is unlike the security
check   in   this   case.      Massenburg’s  movements   “w[ere]
interpreted . . . by [the investigating officer] . . . as an
obvious attempt to satisfy [the officer] without consenting to a
frisk[;] [the movements] provided little basis, if any, as a
matter of constitutional analysis, for a reasonable suspicion of
wrongdoing.”   654 F.3d at 491; see also id. at 483 (quoting an
officer’s testimony for his observation that Massenburg “air-
patted himself down, . . . trying to show he didn’t have
anything”).


                                        19
                                            5.

       A security check by a suspect can contribute to a finding

of reasonable suspicion that the suspect was engaged in criminal

activity.       See 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); see also, e.g., United

States    v.    Briggs,       720   F.3d    1281,   1287–89       (10th       Cir.    2013)

(explaining      that     a    suspect      grabbing   at     his       waistline      was

relevant to a reasonable-suspicion analysis because it suggested

that he might be carrying a weapon); United States v. Oglesby,

597 F.3d 891, 895 (7th Cir. 2010) (finding reasonable suspicion

for a frisk where, among other factors, the suspect “repeatedly

lowered his right hand toward the right pocket of his pants”

because “such action . . . reasonably indicated to the officers

that [he] might be carrying a weapon”).

       Foster argues, however, that his hand motion should carry

little or no weight because it merely indicated “that he may or

may    not     [have    been]       carrying     something        in     his    pocket.”

Appellant’s      Br.      at    22.         He   points     to     “other       innocent

explanations for the movement”; for instance, Foster says he

could have been reaching for a cell phone.                  Id.

       While we have no doubt that there are possible innocent

explanations for Foster’s movement, “it must be rare indeed that

an    officer   observes       behavior     consistent      only       with    guilt    and

                                            20
incapable of any innocent interpretation.”                 United States v.

Moore,   817   F.2d   1105,   1107   (4th   Cir.   1987)    (quoting   United

States v. Price, 599 F.2d 494, 502 (2d Cir. 1979)); see also

Black, 525 F.3d at 365 (“[A] reasonable suspicion need not rule

out all innocent explanations . . . .”).            Burke and Boyer were

investigating a report of a gunshot and the one person they

encountered at the scene reached for his pocket when asked if he

was carrying a weapon.          It was not unreasonable under these

circumstances for the officers to have concluded that Foster

might have a weapon.

     Foster also contends that “West Virginia law allows the

open and concealed carry of firearms,” so the fact that Foster

might have been carrying a firearm did not suggest any evidence

of criminal conduct.          Appellant’s Br. at 22.          This argument

fails because Burke and Boyer stopped Foster not merely because

he might be armed, but because he might have been the source of

the reported gunshot. 8




     8 A gunshot at night in a business district of a city can
accompany any number of crimes, for instance armed robbery and
murder, as well as more minor infractions such as discharging a
weapon across a public road, see W. Va. Code § 20-2-58(a)(1)
(2014), or “discharg[ing] . . . [a] firearm within the corporate
limits of the Municipality [of Wheeling],” see Wheeling, W. Va.,
Ordinance § 545.11(a).   Indeed, after Foster was arrested, the
Wheeling Police Department “checked the surrounding area for a
possible [gunshot] victim.” J.A. 19.


                                     21
       Having     established          that     we     can          properly     include       the

security check as a factor in our reasonable-suspicion analysis,

we     now    combine     all     of     the    factors             supporting        reasonable

suspicion to “consider ‘the totality of the circumstances—the

whole picture.’”         United States v. Smith, 396 F.3d 579, 583 (4th

Cir. 2005) (quoting United States v. Cortez, 449 U.S. 411, 417

(1981)).

       Although the circumstances observed or known by the police

before Foster reached for his pocket were not enough to support

reasonable suspicion, the security check tied all of the factors

into    a    coherent    whole        that    justified         an    investigatory        stop.

Burke     and   Boyer    were     investigating            a    reported       gunshot,       in   a

high-crime area, at night.                   Because Foster was the only person

in     the    area    where      the     gunshot       was          reported,      the    police

justifiably       had    some    suspicion          that       he    might     have    been    the

individual      who     fired    the    shot.        Indeed,          we   found      reasonable

suspicion under similar circumstances in United States v. Moore,

though in that case a police officer was responding to a burglar

alarm rather than an anonymous 911 call.                            See 817 F.2d at 1106–

07 (concluding that there was reasonable suspicion for a Terry

stop where (1) a police officer responded quickly to a silent

burglar alarm in a high-crime area at night, (2) the officer saw

only the defendant in the area, (3) the defendant was “about 30

to   40      yards”   from      the    building       in       question,       and    (4) “[the

                                               22
defendant] was moving away from the scene of the crime, though

the silent nature of the alarm may have given him no cause to

hurry”).

      By performing a security check, which suggested that he

could    be      armed,   Foster       gave       the   officers       further       cause   to

suspect that he was the source of the gunshot.                               The check also

gave the officers an additional reason to trust the 911 caller’s

report:      not   only     was    there      a    person     near     the    scene    of    the

reported      gunshot     at      an   otherwise        quiet    hour,       but    there    was

reason      to     believe        that     person       was     armed.             Under     the

circumstances in which Burke and Boyer found themselves, “the

Fourth Amendment d[id] not require [them] . . . to simply shrug

[their] shoulders and allow a crime to occur or a [possible]

criminal to escape.”               Id. at 1106 (quoting Adams v. Williams,

407   U.S.    143,    145      (1972)).           Instead,    they     could       justifiably

perform a Terry stop because they had reasonable suspicion that

Foster committed a crime associated with discharging a firearm.

      Our     decision      in    United      States     v.     Sims    further       supports

finding reasonable suspicion in this case.                             296 F.3d 284 (4th

Cir. 2002).          There, the police received “an anonymous report

that a black male wearing a T-shirt and blue jeans had just

fired a pistol” in a particular area.                         Id. at 285.          An officer

arrived minutes later and saw a person matching the description

in the report standing behind a house “‘in a crouched position,’

                                              23
‘peeking around the corner,’” who then “‘jerk[ed] right back’

behind the house” when the officer made eye contact with him.

Id.   at    285–86      (alteration          in    original).           The   officer      then

stopped the suspect and frisked him.                      Id. at 286.

      The    suspect          argued    that       the    officer      lacked     reasonable

suspicion under Florida v. J.L., 529 U.S. 266 (2000).                                Id.    In

that case, an anonymous tipster reported that “a young black

male standing at a particular bus stop and wearing a plaid shirt

was   carrying      a    gun.”         J.L.,      529    U.S.   at     268.     Police     then

arrived at the scene and found J.L., who matched the description

in the anonymous tip, along with two other people.                               Id.     Other

than the tip, “the officers had no reason to suspect any of the

three of illegal conduct.”                     Id.       The police “did not see a

firearm,     and    J.L.       made     no     threatening       or     otherwise      unusual

movements.”         Id.        Nevertheless,            the   police    stopped     J.L.    and

frisked him.         Id.       The Court concluded that the police lacked

reasonable suspicion because outside of the anonymous tip, there

was no evidence that J.L. had done anything illegal.                                   Id. at

268, 270–74; see Sims, 296 F.3d at 286 (explaining that in J.L.,

the Supreme Court held “that the uncorroborated anonymous tip,

by itself, did not create the reasonable suspicion of criminal

activity necessary to support a search”).

      We    found       the     facts    of       Sims    distinguishable         from     J.L.

because the Sims defendant engaged in “furtive behavior.”                                Sims,

                                                24
296 F.3d at 286.      Accordingly, we concluded that the police had

reasonable suspicion based on the defendant’s evasive conduct

combined     with    the     fact    that     he    “matched     the    tipster’s

description, was the only person about, and was a very short

distance from the spot where a shot was reportedly fired just a

few minutes before.”         Id. at 287 (“[I]t was [not] unreasonable

for an officer to suspect that Sims was the man of whom he had

been warned.”). 9

     The   instant    case    is    similar.       In   Sims,   the    defendant’s

suspicious    behavior     bolstered        the    anonymous    tip    and,    once

combined with the tip, supported reasonable suspicion.                        Here,

Foster’s performance of a security check gave credence to the

anonymous tip and gave Burke and Boyer reason “to suspect that




     9 Other cases similarly show that an anonymous tip in
conjunction with a suspect’s suspicious actions can support a
finding of reasonable suspicion.    See, e.g., United States v.
Mosley, 743 F.3d 1317, 1321, 1328 (10th Cir. 2014) (finding
reasonable suspicion where the police responded to an anonymous
tip that two individuals had a gun inside their car where
(1) there had been previous shootings in the parking lot in
which the individuals were found, and (2) one of the passengers
made “furtive motions” that the “officers testified were
consistent with trying to either hide or retrieve a weapon”);
Robinson v. Howes, 663 F.3d 819, 828–31 (6th Cir. 2011)
(explaining that a suspect’s “evasive behavior” bolstered a
reasonable-suspicion finding where the other circumstances
included a nearly anonymous 911 call); United States v.
Muhammad, 463 F.3d 115, 122–23 (2d Cir. 2006) (finding
reasonable suspicion and distinguishing J.L. where an anonymous
tip was corroborated by evidence of flight).



                                       25
[Foster] was the man of whom [they] had been warned.”             Id.     This

was enough to justify the investigatory stop of Foster. 10



                                     III.

     For    the   reasons   given,   we     affirm   the   district   court’s

judgment.

                                                                      AFFIRMED




     10 While it is not the focus of his brief, Foster also
argues that Burke and Boyer violated the Fourth Amendment by
frisking him because they lacked reasonable suspicion that he
was armed. This argument fails for the same reasons we find the
Terry stop justified.


                                      26
WILKINSON, Circuit Judge, concurring:

       Poor Terry v. Ohio, 392 U.S. 1 (1968). It has fallen on

hard    times.    A   string    of    recent     tragic    street   encounters

involving the police has brought the stop-and-frisk procedure

authorized in Terry under fire. But that is nothing new. The

Court’s    authorization       of    an    investigative    procedure      on   a

standard less than probable cause came under fire at the time,

with    Justice    Douglas     noting      in   dissent    that   “[t]he    term

‘probable cause’ rings a bell of certainty that is not sounded

by phrases such as ‘reasonable suspicion.’” Id. at 37. In fact,

the decision was seen by some contemporaries as a capitulation

to cries for law and order during the 1968 political season.

Again, as Justice Douglas noted, the “hydraulic pressure” on the

Court to dilute constitutional guarantees “has probably never

been greater than it is today.” Id. at 39.

       There is truth in this indictment, though the truth is only

partial, as truth is often found to be. It is worth recalling

the three great purposes animating the Terry decision, because

those purposes are present in this case. The first purpose was

simple crime prevention -- the need being simply to allow police

to conduct an investigatory stop before criminals visit harm

upon the innocent. The Terry Court cautioned that “a rigid and

unthinking application of the exclusionary rule . . . may exact

a high toll in human injury and frustrat[e] efforts to prevent

                                          27
crime.” 392 U.S. at 15. Here, as Judge Diaz ably recounts, a

gunshot    was   reported     during    the     early      morning    hours    in    the

vicinity    of    an   area   known     for     theft,      vandalism,      and     drug

activity. J.A. 34-39. When the police arrived on the scene, they

found    only    Foster    standing     in    an    alley    between     two       closed

businesses. Id. at 40. And after being asked if he had any

weapons, Foster “began to put his right hand in his right front

pocket.” Id. at 41-42. Thus, the crime-preventive stop in this

case was justified, for under the totality of the circumstances

the officers had reasonable suspicion that criminal acts had

been committed or were in the offing.

      If Terry’s first purpose of crime prevention or detection

is more salient at the stop phase of an interaction, the frisk

brings    into    relief    the   second      and    third     purposes       of    that

decision    --   to    protect    the   safety      of     officers   and     suspects

alike. The Court gave due consideration to the “interest of the

police officer in taking steps to assure himself that the person

with whom he is dealing is not armed with a weapon that could

unexpectedly and fatally be used against him.” 392 U.S. at 23.

In the present case, the district court found that the officers

only frisked Foster after he reached for his pocket in response

to being asked whether he was armed. J.A. 145. Of course, before

the   officers    searched    Foster     they      could    not   have   known      with

certainty what was in his pocket. As Foster claims, he might

                                        28
have been “reaching for his cell phone.” Appellant’s Br. at 22.

But one of the principal aims of Terry was to ensure that in

circumstances such as these officers do not have to stand idly

by, waiting for a bullet. As Terry put it, “it would appear to

be clearly unreasonable to deny the officer the power to take

necessary measures to determine whether the [suspect] is in fact

carrying       a    weapon     and    to   neutralize     the     threat   of    physical

harm.” 392 U.S. at 24

     It    may          seem   ironic      that    a   decision      broadening     police

investigatory           powers     could    actually    promote      the   interests     of

suspects in some circumstances, but that is in fact the case.

The third and related purpose of Terry was to protect suspect

safety    by       deescalating      police-suspect       interactions.         True,   the

point only goes so far. As the Court acknowledged, “[i]n many

communities, field interrogations are a major source of friction

between the police and minority groups.” 392 U.S. at 14 n. 11

(internal          quotation       marks    omitted).     The     Court    feared       that

suspicionless            searches     in     particular     could      only     aggravate

hostilities and fuel resentment. In that way, frisks conducted

without reasonable suspicion run the risk of turning what would

otherwise          be    “wholly     friendly      exchanges    of    pleasantries       or

mutually       useful      information       [in]to     hostile      confrontations      of

armed men involving arrests, or injuries, or loss of life.” Id.

at 13.

                                              29
     Among Terry’s insights, however, was that a frisk performed

under the proper authority might actually help to ease tensions

by   dispelling     suspicion         and   by     removing          an    incentive         for

officers to use lethal or disabling force. An officer, like any

human being, may be less on edge if the person in his presence

is not a threat to shoot. Removing the threat affords greater

room for more humane police responses. In that respect, Terry

may help to protect suspects as well as the police.

     To    be    sure,    even   a    lawful      frisk       can    be    “an    annoying,

frightening, and perhaps humiliating experience.” Id. at 25. But

Terry makes clear that as great as the indignity inflicted by

that procedure might be, it pales in comparison to the tragic

results    and   inflamed      reactions         that    follow      from     the      use    of

lethal    force.    See    id.   at    13-15.       In    other      words,       Terry      may

actually    serve    to    defuse      interactions           such    as    this       one    if

parties    are   able     to   communicate        with    a    diminished         fear    that

grievous consequences may result. Whether the confrontation here

would have taken a more explosive turn without the frisk is of

course impossible to know. All one can say for certain is that

no one was wounded or otherwise physically abused, and no loss

of life ensued.

     Terry was decided in the high days of the Warren Court.

Chief    Justice    Warren     himself      wrote       the   opinion       for    a   nearly

unanimous tribunal. After Brown v. Board of Education, 347 U.S.

                                            30
483 (1954), Terry and Miranda v. Arizona, 384 U.S. 436 (1966),

may well be among the Chief Justice’s greatest legacies. Those

two   decisions     have    come   to   define    the    parameters      of   modern

police practice as much as any other case. Although Terry has

come under fire both then and now, the case remains good law. It

has   stood   the    test    of    time.    As   the    present   case    reminds,

deservedly so.




                                           31
