                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4618


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES LEWIS BRYANT, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:15-cr-00099-JAB-1)


Submitted:   April 26, 2016                 Decided:   July 19, 2016


Before KING, WYNN, and DIAZ, Circuit Judges.


Reversed, vacated, and remanded by unpublished opinion. Judge
Diaz wrote the opinion, in which Judge King and Judge Wynn
joined.


Benjamin D. Porter, MORROW PORTER VERMITSKY FOWLER & TAYLOR,
PLLC, Winston-Salem, North Carolina, for Appellant.        Ripley
Rand, United States Attorney, Graham T. Green, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      James Lewis Bryant, Jr., entered a conditional guilty plea

to    being   a   prohibited      person       in   possession      of   a   firearm,

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

motion to suppress evidence of a firearm recovered after a Terry 1

stop.      He argues that the stop violated his Fourth Amendment

rights because the police lacked reasonable suspicion that he

was   engaged     in   criminal    activity.          We    agree    and     therefore

reverse     the   district   court’s       denial      of   Bryant’s       motion   to

suppress, vacate his conviction and sentence, and remand for

further proceedings.



                                       I.

                                       A.

      On September 4, 2014, the police in Winston-Salem, North

Carolina, received an anonymous tip that ultimately led to the

discovery of the evidence Bryant seeks to suppress.                      The tipster

told the police to “check for” Bryant at Wingz & Spiritz, a

restaurant/bar in downtown Winston-Salem, because Bryant had a

gun inside a brown satchel.                J.A. 25–26.         In providing the

police with this information, the tipster gave Bryant’s full



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



                                           2
name and his date of birth.                     The tipster also described Bryant’s

appearance and said he was a felon.

       Officer David Walsh was dispatched to Wingz & Spiritz, but

before      heading         there,       he    researched       Bryant    on        his    computer.

Walsh reviewed Bryant’s mugshot, learned his height and weight,

and confirmed that the tipster correctly relayed Bryant’s full

name       and       date     of     birth.            Walsh       also       saw     a     “caution

indicator[] . . . noting                      [Bryant]       as     a     convicted              felon,

registered sex offender.”                     J.A. 26.

       Walsh then walked to Wingz & Spiritz where he found Bryant, 2

who matched the tipster’s description in all respects except

that       he    was   wearing       a    silver       backpack      rather         than    a    brown

satchel.             Initially,      Walsh       did     not      approach      Bryant,          opting

instead         to   make    small       talk    with    a     restaurant       employee         while

observing Bryant’s behavior for “his reaction to [Walsh] as a

uniformed officer.”                J.A. 27. 3

       Eventually,           Walsh       approached       Bryant        and    told        him    that

somebody called the police on him.                           According to Walsh, Bryant

then “seemed like he started to walk away” but then turned back,



       2
       All of Walsh’s actions from this point forth were recorded
on his body camera.
       3
       While the district court said that “Officer Walsh stated
that he felt [Bryant] was acting nervous during this time,” J.A.
53, we do not find such testimony in the record.



                                                   3
“sp[eaking] . . . in           a    low    whisperish-type          voice.”      J.A.   28.

This tone of voice made Walsh “even more suspicious” because, in

his experience, people who “have just been caught or are in

trouble” will often become “really animated and shouting as kind

of a distraction or sometimes . . . they’ll lower their voice

and talk real low in a whisper.”                     J.A. 28.

     Bryant then sat on a bench.                       Walsh observed that “when he

sat down his right arm, he had it pinned to his body and he sat

down real slow, kind of stunned.”                       J.A. 28.       Based on this and

his interaction with Bryant so far, Walsh was left with the

overall impression that “this guy is really nervous and I don’t

think he wants to be—I don’t think he likes being around me.”

J.A. 28.

     Walsh    next      told       Bryant    that       the     person   who   called   the

police on him reported that he might have a gun.                               Walsh asked

Bryant if this report was true, to which Bryant responded, “No.”

J.A. 28.     Next, Walsh said, “You’re not supposed to have a gun,

are you?”     J.A. 28.             Bryant agreed.          Walsh then said that the

caller     told   the    police           that       Bryant’s    gun     was   inside   his

backpack, which Bryant denied.

     Walsh next asked, “[C]an you open your backpack and show me

you don’t have a gun in there, please?”                          J.A. 29.      Bryant then

took his backpack off his shoulder, placed the backpack on the

bench space next to him, and began reaching into the bag.                                In

                                                 4
doing this, Bryant had his back toward Walsh.                    Walsh, fearful

that he could be shot, said, “Don’t put your hand in there.

I’ll do it for you.”       J.A. 30.

     Walsh then took control of the bag, feeling “a centralized

heavy weight” that was “similar to what a handgun would weigh.”

J.A. 30, 41.        Bryant continued to deny that there was a gun

inside of the bag, but ultimately Walsh recovered a revolver.

Bryant was then arrested.

                                        B.

     Bryant was indicted for being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).                    He

moved to suppress evidence of the revolver, asserting a Fourth

Amendment      violation   based   on   Florida     v.   J.L.,   529   U.S.   266

(2000) (holding that an unreliable anonymous tip that someone

was carrying a gun, without more, did not justify a Terry stop). 4

     The district court denied Bryant’s motion.                  It found that

Walsh    had    reasonable   suspicion       that   Bryant   was    engaged   in

criminal activity, justifying Walsh’s seizure of Bryant.                      The

court based its conclusion on (1) the anonymous tip; (2) Walsh’s




     4 Bryant maintained that he did not consent to a search and
that his interaction with Walsh was no longer consensual when
Walsh ordered him to keep his hands out of his bag.          The
district court agreed, and the government does not challenge
this finding on appeal.



                                        5
corroboration of details given in the tip, including the fact

that Bryant was a felon; and (3) Bryant’s nervous behavior.

      Bryant then entered a conditional guilty plea, preserving

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

suppression        motion.          The    court      sentenced     him     to   21    months’

imprisonment followed by three years of supervised release.

      This appeal followed.



                                                II.

      The    only      issue       on   appeal       is   whether   Walsh’s      seizure     of

Bryant was justified—that is, whether Walsh violated the Fourth

Amendment when he ordered Bryant to keep his hands out of his

backpack.          Thus,      we    evaluate         this   case    under    the      familiar

reasonable-suspicion               standard      articulated        in    Terry       and   its

progeny.

      On appeal from a denial of a suppression motion, “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 the government prevailed below,

“[w]e    construe       the    evidence         in    the   light    most    favorable      to

[it].”      Id.

      A police officer may not conduct an investigatory stop of a

person unless “the officer’s action is supported by a reasonable

and articulable suspicion . . . that criminal activity ‘may be

                                                 6
afoot.’”     United States v. Bumpers, 705 F.3d 168, 171 (4th Cir.

2013) (quoting Terry, 392 U.S. at 30).                       That suspicion must be

rooted in “a ‘particularized and objective basis for suspecting

the particular person stopped of criminal activity.’”                             United

States v. Black, 707 F.3d 531, 539 (4th Cir. 2013) (quoting

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

     To evaluate whether an officer had reasonable suspicion,

courts   look      to    “the     totality     of    the   circumstances.”        United

States v. Slocumb, 804 F.3d 677, 682 (4th Cir. 2015).                          Seemingly

innocent facts may, when viewed in aggregate, furnish reasonable

suspicion.        See id.        “That said, we are skeptical of ‘Government

attempts     to    spin . . . largely              mundane   acts    into   a    web   of

deception.’”            United    States   v.      Foster,   No.    15-4319,    2016   WL

2996904,   at      *3     (4th    Cir.   May       24,   2016)   (published     opinion)

(alteration in original) (quoting United States v. Foster, 634

F.3d 243, 248 (4th Cir. 2011)).                      Consequently, “the Government

cannot rely upon post hoc rationalizations to validate those

seizures   that         happen    to   turn     up    contraband.”      Id.     (quoting

Foster, 634 F.3d at 249).

     The government points to three factors supporting Walsh’s

suspicion that Bryant was breaking the law:

     (1)   the anonymous call reporting that Bryant had a firearm
           in his bag and giving particular details about Bryant,
           and Walsh’s confirmation of the accuracy of some of
           those details;


                                               7
       (2)    Bryant’s criminal record; and

       (3)    Bryant’s nervous behavior when confronted by Walsh
              with the information that someone reported him to the
              police.

Reviewing these factors together, we conclude that Walsh lacked

reasonable        suspicion            that    Bryant     was    engaged        in    criminal

activity.

       The    first         factor—the        anonymous    tip   and     Walsh’s      research

confirming some of the details given by the caller—is the most

important,        as    the      tip    was    the   impetus     for    Walsh    confronting

Bryant and the most direct evidence supporting Walsh’s suspicion

that    Bryant     was       armed.       While      an   anonymous      tip,    by    itself,

cannot justify a Terry stop, see United States v. Elston, 479

F.3d 314, 317 (4th Cir. 2007), the police may rely on such a tip

if     it    is    “suitably           corroborated,       exhibit[ing]          ‘sufficient

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

v. White, 496 U.S. 325, 327 (1990)).

       The parties do not dispute that the tip, taken alone, was

insufficient           to    establish        reasonable    suspicion.          They    argue,

however, whether this case is akin to J.L., where a stop was not

justified based on an anonymous tip, or Alabama v. White, where

an anonymous tip supported a finding of reasonable suspicion.

       In    White,         an   anonymous      tipster     told       the   police    that   a

Vanessa White would leave a particular apartment at a particular

time in a particular car to travel to Dobey’s Motel with an

                                                 8
ounce of cocaine in an attaché case.                       496 U.S. at 327.            The

police    went    to     the   apartment         specified    by    the    caller    and,

“within the timeframe predicted by the caller,” saw a woman walk

into the car that the tipster had described and drive on the

“most direct route to Dobey’s Motel.”                      Id. at 327, 331.            The

police stopped the car and ultimately recovered drugs.                            Id. at

327.

       The Court concluded that, although it was a “close case,”

the stop was legal because it was reasonable for the police to

rely on the tip after corroborating “significant aspects of the

informer’s predictions.”           Id. at 331–32.            The Court was careful,

however, to distinguish between “details [given by a tipster]

relating . . . to easily obtained facts and conditions existing

at the time of the tip” and “future actions of third parties

ordinarily not easily predicted.”                  Id. at 332 (quoting Illinois

v. Gates, 462 U.S. 213, 245 (1983)).                   The former are of little

value     because      anyone     can     observe      and     report      unremarkable

conditions existing at the time of a call, such as the color and

location of White’s car.            See id.        In contrast, the latter type

of     detail    (a    prediction       of    future    actions)         increases     the

reliability of a tip by “demonstrat[ing] inside information—a

special     familiarity         with    [the       suspect’s]       affairs.”          Id.

Accordingly,      the    Court    determined        that     because      the   anonymous

caller    was    privy    to    White’s      itinerary,      it    was    reasonable    to

                                             9
think that the caller “also ha[d] access to reliable information

about [White’s] illegal activities.”                 Id.

     In J.L., an anonymous tipster reported that “a young black

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

was carrying a gun.”         529 U.S. at 268.                Police officers arrived

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

tip, along with two other people.                   Id.      The police then stopped

and frisked J.L. even though they “had no [other] reason to

suspect [J.L. or his two companions] of illegal conduct” and

they “did not see a firearm, and J.L. made no threatening or

otherwise unusual movements.”            Id.

     The    Supreme       Court     concluded           that    the     police     lacked

reasonable suspicion to support a Terry stop.                           Id.    The Court

rejected the government’s argument that “the tip was reliable

because    its   description       of    the      suspect’s      visible       attributes

proved accurate.”         Id. at 271.             The Court reasoned that while

“[a]n   accurate    description         of    a    subject’s     readily       observable

location and appearance” is reliable in the sense that “[i]t

will help     the   police       correctly        identify     the    person    whom   the

tipster    means     to    accuse,”          such       a    description       does    not

demonstrate      that     “the     tipster        has       knowledge    of    concealed

criminal activity.”         Id. at 272.            This was critical, the Court

explained, because reasonable suspicion “requires that a tip be



                                             10
reliable in its assertion of illegality, not just its tendency

to identify a determinate person.”                   See id. (emphasis added).

       The tip in the instant case is far more like the one in

J.L. than the one in White and therefore deserves little weight

in our reasonable-suspicion calculus.                         While the tipster here

provided more detail than the tipster in J.L. (namely, Bryant’s

name,       birthday,       age,   and     status    as   a   felon),    these        details

merely “identify a determinate person” rather than demonstrate

the reliability of the tipster’s “assertion of illegality.”                                Id.

Indeed,          similar     to    J.L.,      nothing     supported      the        tipster’s

assertion of illegality beyond his or her bald statement that

Bryant was carrying a gun inside of his bag. 5

       Moreover, the details that the tipster provided in this

case were less impressive than those given in White.                            The trivia

that       the    tipster    recited       about    Bryant     are   available        on   the

internet, as Bryant is a registered sex offender.                              Thus, they

are     a    weak     indicator       of      the   caller’s       access      to     “inside

information,”         especially         in   comparison      to   the   predictions        of

future behavior made by the tipster in White.                            See White, 496

       5
       This distinguishes the instant case from Navarette v.
California, 134 S. Ct. 1683, 1688–89 (2014) (explaining that a
tip reporting dangerous driving was reliable because the
tipster’s information was based on witnessing the dangerous
driving firsthand, unlike in J.L., “where the tip provided no
basis for concluding that the tipster had actually seen the
gun”).



                                               11
U.S.   at   332   (“The     general   public       would    have     had   no    way    of

knowing that [White] would shortly leave the building, get in

the described car, and drive the most direct route to Dobey’s

Motel.”).

       The second factor to which the government points—the fact

that    Bryant    had   a    felony   conviction—does          not     significantly

bolster the case for reasonable suspicion.                   A person’s criminal

record, standing alone, cannot justify a stop, although it can

support a finding of reasonable suspicion when accompanied by

more “concrete” indications of criminal activity.                          See United

States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997).                               Here,

there are no concrete indications that Bryant was engaging in

criminal    activity.        Furthermore,      Walsh       learned    that      Bryant’s

felon status was based on a prior sex offense, a conviction that

does little to suggest that he was carrying a gun on the day in

question.

       Finally, the third factor upon which the government relies—

Bryant’s     nervous    behavior—does        not    tip     the    balance      in     the

government’s      favor.        While    a     suspect’s           evasiveness         and

nervousness are relevant in a reasonable-suspicion inquiry, see

United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011),

“mild nervousness” is to be expected during a police-citizen

interaction and does little to support reasonable suspicion, see

id.    at   488–91   (explaining      that    an    unreliable        anonymous        tip

                                        12
coupled with mild signs of nervousness failed to justify a Terry

stop); see also Slocumb, 804 F.3d at 683 (“We have cautioned

that       ‘it   is   important    not    to     overplay   a    suspect’s   nervous

behavior in situations where citizens would normally be expected

to be upset.’” (quoting United States v. Glover, 662 F.3d 694,

699 (4th Cir. 2011))).

       Five aspects of Bryant’s behavior are relevant to whether

he appeared unusually nervous, specifically (1) Bryant “seemed

like       he    started    to   walk    away”    when   Walsh    approached   him,

(2) Bryant spoke in a “low whisperish-type voice” and did not

consistently make eye contact; (3) when Bryant sat down, he had

his right arm “pinned to his body”; (4) Bryant sat down slowly

and seemed “kind of stunned”; and (5) when Bryant took off his

backpack and opened it, he turned to the side, causing his back

to face Walsh.             J.A. 27–29.     Based on this evidence and after

viewing the body-camera footage, the district court concluded

that Bryant “was acting nervous and avoiding eye contact and any

interaction with Officer Walsh.” 6               J.A. 62.




       6
       We take no issue with the district court’s finding that
Bryant exhibited signs of nervousness and, at least to some
extent, avoided eye contact.    But, the court committed clear
error in finding that Bryant avoided “any interaction” with
Walsh, J.A. 62 (emphasis added), as Bryant did not leave the
scene, responded to Walsh’s questions, and complied with Walsh’s
requests.



                                           13
      Though Bryant may have exhibited some nervousness, it was

nothing   more     than       the    garden-variety         nervousness        that   often

results    from     a    police-citizen            interaction—especially           one   in

which the officer tells the citizen that he was reported to the

police.     First, while Bryant may have “seemed like he started to

walk away,” citizens are free to refuse to cooperate with the

police before a seizure.                 See Illinois v. Wardlow, 528 U.S. 119,

125    (2000).          Moreover,         although    we    have       found   reasonable

suspicion     based      on    unusually       evasive      behavior       like    quickly

walking away from police officers, see Slocumb, 804 F.3d at 683

(discussing       cases),           we     cannot     conclude         that      “seem[ing]

like . . . start[ing] to walk away” is particularly suspicious,

especially considering Bryant made no attempt to leave the scene

when Walsh arrived at Wingz & Spiritz, see Sprinkle, 106 F.3d at

618–19 (concluding that there was no reasonable suspicion where,

among other factors, the defendant attempted to conceal his face

and drove away “in a normal, unhurried manner”).

      Second, while Bryant’s mumbling and lack of eye contact may

be    consistent     with      nervousness,          they   are    not     the    sort    of

“unusually        nervous       behavior[s]”           that       furnish        reasonable

suspicion.        See    Massenburg,         654    F.3d    at   490    (quoting      United

States v. Mayo, 361 F.3d 802, 806 (4th Cir. 2004); see also

Foster, 2016 WL 2996904, at *5–7 (explaining that a defendant’s

unresponsiveness and lack of eye contact—even when coupled with

                                              14
an   anonymous    tip     reporting         a    gunshot      and    the       fact    that    the

defendant was the only person that the police encountered in the

area where the shot was reported—were insufficient to establish

reasonable suspicion); Slocumb, 804 F.3d at 682–84 (concluding

that   a   defendant’s        lack         of   eye     contact      and       “low,    mumbled

responses,” among other factors, did not give rise to reasonable

suspicion).        Bryant       responded          to   Walsh’s      questions          and    was

cooperative.       Additionally, while Bryant at times looked away

from Walsh, he did not avoid eye contact throughout the entire

interaction.           Fourth     Amendment           protections         do    not     turn    on

faultless elocution or the outcome of staring contests.                                        Only

those among us with ice water in our veins would fail to exhibit

mild signs of nervousness when confronted by a police officer,

especially      when    the     officer         says    that    “somebody           called     the

police on you.”         J.A. 27.

       Third, we fail to see how the fact that Bryant’s arm was

pinned     to     his     body         is       indicative          of        nervousness       or

suspiciousness.          Thus,        we    give      this    fact       no    weight    in    our

analysis.       See Massenburg, 654 F.3d at 482 (cautioning against

crediting efforts by the government to use “whatever facts are

present,     no   matter        how    innocent,         as    indicia         of     suspicious

activity” (quoting Foster, 634 F.3d at 248)).

       Fourth, although Bryant sat down slowly, “kind of stunned,”

J.A. 28, this reaction was also not unusual considering Walsh

                                                15
just told him that somebody reported him to the police.                      See,

e.g., Massenburg, 654 F.3d at 490 (distinguishing unremarkable

nervousness during a police interaction from “unusually nervous

behavior” like breathing heavily, having shaky hands, and giving

inconsistent answers (quoting Mayo, 361 F.3d at 806)).

       Fifth, the fact that Bryant turned his back to Walsh when

he complied with Walsh’s request to open his backpack does not

strongly indicate nervousness or evasiveness, if at all.                 Bryant

was seated on the edge of a bench and, when he opened his bag,

he used the empty part of the bench next to him as a surface.

That this happened to cause Bryant to turn his back to Walsh is

of little moment.

       In sum, viewing all of the facts together, we conclude that

the stop of Bryant was not justified by reasonable suspicion of

criminal     activity.        An     unreliable     tip,    mild     signs    of

nervousness, and a prior conviction for an offense unrelated to

the one being investigated are simply not enough to permit a

Terry   stop.     Compare     id.   at    484–91    (finding   no   reasonable

suspicion based on an anonymous tip reporting a gunshot, mild

nervousness, and the fact that the defendant and his companions

were the only people found within the vicinity of the reported

shot shortly after the police received the tip), with Foster,

2016    WL   2996904,    at   *7–9       (finding    that   the     defendant’s

suspicious “security check”—an instinctual movement in which a

                                         16
suspect reaches to ensure that a concealed weapon is secure—

tipped   the     reasonable-suspicion       balance   in    the   government’s

favor where the police also relied on, among other things, an

anonymous tip reporting a gunshot, the defendant’s presence in

the area reported, and the defendant’s unresponsiveness and lack

of eye contact).



                                     III.

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

denial of Bryant’s motion to suppress, vacate his conviction and

sentence, and remand for further proceedings.                 We direct the

Clerk to issue the mandate forthwith.

                                          REVERSED, VACATED, AND REMANDED




                                     17
