                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4733


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANDRE   LAVAR   SLOCUMB,   a/k/a   Hakeem         Slocumb,    a/k/a
Hakeem Jones, a/k/a Anthony Francis,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:13-cr-00017-GEC-1)


Argued:   September 16, 2015                 Decided:   October 22, 2015


Before GREGORY, AGEE, and DIAZ, Circuit Judges.


Reversed, vacated, and remanded for proceedings consistent with
this opinion by published opinion.      Judge Gregory wrote the
opinion, in which Judge Agee and Judge Diaz joined.


ARGUED: Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant.         Jean
Barrett   Hudson,  OFFICE   OF   THE  UNITED   STATES  ATTORNEY,
Charlottesville, Virginia, for Appellee.     ON BRIEF: Larry W.
Shelton, Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.   Timothy J. Heaphy,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
GREGORY, Circuit Judge:

     Andre Slocumb appeals the district court’s denial of his

motion to suppress.     Slocumb claims that the Culpeper, Virginia,

Police Department obtained evidence and statements in violation

of the Fourth Amendment by 1) detaining him without reasonable

suspicion,     2)   arresting    him        without    probable    cause,   and

3) searching his car without valid consent.                 We conclude that

the police lacked reasonable suspicion to detain Slocumb, and we

therefore    reverse   the    district       court’s   denial     of   Slocumb’s

motion to suppress, vacate Slocumb’s conviction and sentence,

and remand for further proceedings.



                                       I.

     Around midnight on March 18, 2013, approximately ten armed

officers with the Culpeper Police Department went to execute a

search warrant on a house on Old Fredericksburg Road pursuant to

a drug investigation.        As a staging area, the officers used the

parking lot of Culpeper Salvage, located across the street from

the target house.      The salvage business had closed earlier in

the evening.

     The officers knew the parking lot and the surrounding area

as a place for drug activity.              Lieutenant Timothy Chilton, who

was present that night, had previously been in contact with the



                                       2
owner of the salvage business about the parking lot being a

place where drugs were bought and sold.

     When the officers arrived, they encountered Slocumb, his

girlfriend,     Sierra    Lewis,    and       an   infant   near    two     cars,   a

Cadillac and a Honda.        The officers saw that Slocumb and Lewis

were in the process of transferring a child car seat from the

Cadillac to the Honda.        As the other officers moved toward the

target house, Chilton approached Slocumb and Lewis to inquire

about their presence.       Chilton noticed that Slocumb appeared to

be hurrying Lewis.        Slocumb told Chilton that Lewis’s car had

broken down and that he had come to pick her up.                     During their

conversation,    which    lasted    for       less   than   a   minute,      Chilton

believed Slocumb was acting evasively, as he did not make eye

contact and gave mumbled responses to Chilton’s questions.

     In   response   to    this    information,       Chilton      called    Officer

Eric Grant for assistance.          Within earshot of Slocumb, Chilton

told Grant to stay with Slocumb and Lewis and that they were

“not allowed to leave.”           Chilton then went to assist with the

execution of the search warrant.

     Slocumb told Grant his purpose for being there, consistent

with what he had told Chilton, and that he had borrowed his

landlord’s car, the Honda, to pick Lewis up.                    Grant permitted

Lewis to sit in the Honda with the infant but told Slocumb that

he had to stay outside with him.

                                          3
        At   some    point,      Grant   asked    Slocumb    for      identification.

Slocumb said that he did not have any but that his name was

“Anthony Francis,” gave a birthdate, and said that he was from

Georgia.       Grant ran this information through dispatch, and it

came back valid for someone with that name who matched Slocumb’s

physical appearance.

        Grant asked Slocumb if he was carrying anything illegal;

Slocumb said no.           Slocumb also declined to give Grant consent to

search him.         When Grant explained what the other officers were

doing and asked Slocumb about his knowledge of drugs at the

target house, Grant observed Slocumb act increasingly nervous

and not make eye contact.

      Chilton sent Officer Ball to assist Grant before he himself

returned     to     the   parking    lot    about   ten    minutes      later.        When

Chilton returned, Grant told him that Slocumb had given the name

“Anthony Francis,” which information had checked out.                            Chilton

asked    Slocumb      a    few   additional       questions,     to     which    Slocumb

provided      what        the    officers       believed    to     be    inconsistent

responses,        including      about   any     tattoos    Slocumb      had    and   any

history of arrests.

      Grant then asked Lewis for Slocumb’s name.                      Lewis said that

Slocumb’s name was “Hakeem,” which the officers recognized as

someone who was under investigation for drug trafficking.                          Based

on   Lewis’s      response,      Grant     immediately     placed       Slocumb    under

                                            4
arrest for providing a false name.                       In a search incident to

arrest, officers found close to $6,000 on his person.

       In response to further questioning, Lewis told the officers

that she had been dating Slocumb for a month and that she was

pregnant with his child.              She also said that she had never heard

the name “Anthony Francis” and only knew him as “Hakeem Jones.”

       At   that    point,      Officer     Richard      McKnight,       who    had    also

participated       in    the   execution      of   the    search     warrant,      joined

Chilton and Grant in the parking lot.                          Chilton told McKnight

that    Slocumb     had       given   a    false     name      and   that      Lewis     had

identified him as “Hakeem Jones.”                  McKnight asked Lewis if she

knew whether Slocumb had ever been in the target house.                                Lewis

said   that   she       did    not.       McKnight      also    asked    if    there    was

anything    illegal       in   the    Cadillac     or    the    Honda.         Lewis    told

McKnight that there was nothing illegal in the Cadillac but that

she wasn’t sure about the Honda.                     McKnight then asked Lewis

where Slocumb had been inside the Honda, and she responded that

he was in the passenger seat.                McKnight asked Lewis for consent

to search the Honda, and she agreed.

       McKnight found methamphetamine, cocaine powder, and cocaine

base in a grocery bag under the passenger seat.                         He also found a

purse in the trunk of the Honda that contained identification

belonging to Linda Ross, Slocumb’s landlord, and a small amount



                                             5
of marijuana.       Slocumb claimed ownership of the drugs and said

that Lewis did not have anything to do with them.

     Officers took Slocumb to the magistrate’s office, where he

gave his real name, and made incriminating statements.              Chilton

subsequently obtained a search warrant for Slocumb’s residence

and found marijuana smoking devices, a small amount of white

powder, and other various items.

     Following a federal grand jury’s return of a three-count

indictment against him, Slocumb filed a motion to suppress the

physical    evidence   seized    and   statements   made.   The    district

court denied Slocumb’s motion in part, finding that his initial

detention was supported by reasonable suspicion and finding that

the officers had probable cause to arrest him.              The district

court   requested    further    argument   regarding   whether    Lewis   had

authority to consent to the search of the Honda.

     The district court held a supplemental hearing on the issue

of consent.     Following the hearing, the court denied Slocumb’s

motion to suppress, finding that Lewis had apparent authority to

consent.     Slocumb pleaded guilty pursuant to a plea agreement

but retained the right to appeal the denial of his motion to

suppress.    He was sentenced to ninety-four months on each count,

to run concurrently.     Slocumb filed a timely notice of appeal.




                                       6
                                                 II.

    In     considering         the    appeal           of    a    denial    of    a    motion     to

suppress, we review the district court’s legal conclusions de

novo and its factual findings for clear error.                               United States v.

Massenburg,    654      F.3d    480,        485       (4th       Cir.    2011).       We   further

construe    the    evidence          in     the       light       most     favorable       to    the

government—the prevailing party below.                            United States v. Foster,

634 F.3d 243, 246 (4th Cir. 2011).



                                             III.

     Slocumb appeals the district court’s denial of his motion

to suppress, arguing first that Chilton did not have reasonable

suspicion of criminal activity when he seized Slocumb.

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

be secure in their persons, houses, papers, and effects against

unreasonable searches and seizures.”                             U.S. Const. amend. IV.            A

law enforcement officer is permitted to seize a person for a

brief investigatory stop if he “observes unusual conduct which

leads him reasonably to conclude in light of his experience that

criminal activity may be afoot.”                       Terry v. Ohio, 392 U.S. 1, 30

(1968); see also United States v. Black, 707 F.3d 531, 537 (4th

Cir. 2013).        A person is “seized” within the meaning of the

Fourth     Amendment      if,        “‘in        view       of     all     the    circumstances

surrounding       the    incident,           a        reasonable         person       would     have

                                                  7
believed that he was not free to leave.’”               United States v.

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

v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality opinion)).

Here, the parties do not dispute the district court’s finding

that Slocumb was seized by the time Grant arrived at the parking

lot at Chilton’s direction.

     To justify a stop, the officer “must be able to point to

specific   and    articulable    facts    which,    taken   together   with

rational inferences from those facts, reasonably warrant that

intrusion.”      Terry, 392 U.S. at 21.            The officer must have

“reasonable and articulable suspicion that the person seized is

engaged in criminal activity.”           Reid v. Georgia, 448 U.S. 438,

440 (1980).      “The 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)); see also

Massenburg, 654 F.3d at 486 (“We emphasize that the Constitution

requires ‘a particularized and objective basis for suspecting

the particular person stopped of criminal activity.’” (quoting

Griffin, 589 F.3d at 154)).       That is, the officer must have more

than an “inchoate and unparticularized suspicion or ‘hunch.’”

Terry, 392 U.S. at 27.

     We look to the totality of the circumstances in determining

whether    the   officer   had   reasonable     suspicion    of   criminal

                                    8
activity.        United States v. Arvizu, 534 U.S. 266, 273 (2002).

“[I]ndividual          facts    and     observations       cannot    be   evaluated      in

isolation from each other,” United States v. Hernandez-Mendez,

626   F.3d      203,    208     (4th    Cir.   2010);      factors    “susceptible       to

innocent     explanation”         individually        may    “suffice[]     to    form    a

particularized and objective basis” when taken together, Arvizu,

534 U.S. at 277.

      Here,      the     factors       considered     by    the     district     court—1)

Chilton’s awareness of the high-crime nature of the area; 2) the

lateness of the hour; 3) Slocumb’s presence in the parking lot

of a commercial business that had been closed for several hours;

4) Slocumb’s conduct, including appearing to hurry Lewis, giving

low, mumbled responses to Chilton’s questioning, and avoiding

eye contact with Chilton; and 5) that Slocumb’s conduct seemed

“inconsistent”         with     his     explanation     for    his    presence—do     not

amount     to    reasonable           suspicion     under     the    totality    of   the

circumstances in this case.

      The objective factors mentioned by the district court—the

high-crime area, the lateness of the hour, and the fact that the

business had been closed for many hours—are permissible factors

that can contribute to a finding of reasonable suspicion in the

totality-of-the-circumstances analysis.                     E.g., United States v.

Bumpers,     705   F.3d        168,    175   (4th   Cir.    2013)    (considering     the

high-crime area as a factor); United States v. Glover, 662 F.3d

                                               9
694, 698 (4th Cir. 2011) (considering the high-crime area and

the lateness of the hour as factors); United States v. Lender,

985 F.2d 151, 154 (4th Cir. 1993) (same); see also United States

v. Hendricks, 319 F.3d 993, 1003 (7th Cir. 2003) (noting that

the    business    establishment      was       closed);      United    States    v.

Briggman, 931 F.2d 705, 709 (11th Cir. 1991) (considering the

fact that the “commercial establishments served by the lot were

closed for the night” in its totality analysis).                           But these

objective     factors    “do[]      little       to      support     the     claimed

particularized suspicion as to [Slocumb].”                   Massenburg, 654 F.3d

at 488; see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000)

(“An   individual’s     presence    in     an    area    of    expected     criminal

activity, standing alone, is not enough to support a reasonable,

particularized      suspicion     that     the     person      is    committing    a

crime.”).

       The   district   court      also     took      into    account      Slocumb’s

individual        behavior   in      finding            reasonable      suspicion,

specifically the officers’ account of Slocumb’s evasive manner.

Slocumb appeared to be hurrying Lewis, and he gave low, mumbled

responses to Chilton’s questions and failed to make eye contact

with Chilton.       The district court determined that this conduct

was “seemingly inconsistent” with Slocumb’s explanation for his

presence in the parking lot—that is, that Lewis’s car had broken

down and he was picking her up.             The court reasoned that “most

                                      10
people   with    a   disabled   vehicle,     particularly     at       such    a   late

hour, would have little reason to avoid speaking to or making

eye contact with a law enforcement officer who arrives on the

scene, and, in all likelihood, would have welcomed the officer’s

arrival.”    J.A. 149.    We disagree.

     Slocumb’s       behavior—“the     only         substantial         basis       for

particularized       suspicion,”    Massenburg,       654    F.3d       at     491—was

insufficient to support reasonable suspicion.                 Slocumb did not,

for example, walk away or attempt to leave, let alone take off

in   “[h]eadlong     flight.”      Wardlow,     528    U.S.       at    124.       And

Slocumb’s other conduct, including Chilton’s belief that Slocumb

was hurrying Lewis, falls short of that which we have recognized

in other cases as sufficient to support reasonable suspicion.

In Bumpers, for example, we found that Bumpers “attempt[ed] to

dodge the police” by “walking away ‘at a fast pace’” when he and

his companion noticed the patrol car.            705 F.3d at 175; see also

id. at 175–76 (contrasting the facts in Bumpers with those in

other    cases   where   the    defendants    did    not    try    to    leave     the

premises but instead “acknowledged and spoke with them”); United

States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004) (finding

reasonable suspicion where, in conjunction with other factors,

the defendant “walked away at a quick pace”).

     Where a defendant did not try to flee or leave the area, we

have found reasonable suspicion on a showing of more “extreme”

                                      11
or unusual nervousness or acts of evasion.               E.g., United States

v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004).                In Foreman, for

example,    we    pointed    to   Foreman’s   “physical     signs   of     extreme

nervousness . . . (e.g., heavy breathing, heavy sweating, and

pulsating of the carotid artery).”            Id. at 784; see also United

States v. Branch, 537 F.3d 328, 338 (4th Cir. 2008) (finding

that, in addition to several other factors, including failing to

make eye contact, the defendant’s hands were shaking); United

States     v.    McFarley,    991   F.2d    1188,   1192     (4th   Cir.     1993)

(identifying      the   defendant’s    behavior     as   “unusually      nervous”

where his hands shook, he was breathing heavily, and he provided

inconsistent answers).

     Meanwhile, in United States v. Sprinkle, 106 F.3d 613 (4th

Cir. 1997), we held that the officers did not have reasonable

suspicion, even where one of the actors “raised his hand to the

side of his face as if to conceal his identity” and subsequently

drove away “in a normal, unhurried manner.”                106 F.3d at 617–18.

While “[h]iding one’s face is an act that may be appraised with

others in deciding whether suspicion reaches the threshold of

reasonableness,” we found that “without some stronger indication

of criminal activity, this act cannot tip [a] case to reasonable

suspicion.”      Id. at 618.

     We have cautioned that “it is important not to overplay a

suspect’s nervous behavior in situations where citizens would

                                       12
normally be expected to be upset.”                         Glover, 662 F.3d at 699

(citing Massenburg, 654 F.3d at 490).                      Here, Slocumb’s actions—

hurrying Lewis to finish the transfer of the car seat, keeping

his    head    turned      and   avoiding      eye     contact,          and    giving     low,

mumbled      responses—did       not   give     rise       to    reasonable       suspicion.

There   was    no    attempt     to    evade    the    officers,          instead    Slocumb

“acknowledged [them], was not noticeably nervous, and did not

hastily flee the area.”           Foster, 634 F.3d at 247.                     Any suspicion

that Chilton might have had when he first approached Slocumb was

dispelled when Slocumb gave answers consistent with his actions.

At that point, there was no more reason to suspect that Slocumb

was engaged in criminal activity than there was to believe his

stated purpose and corresponding actions.                           Slocumb was simply

“going about [his] business.”             Wardlow, 528 U.S. at 125.

       As we have “warned against,” Massenburg, 654 F.3d at 491,

we will not “us[e] whatever facts are present, no matter how

innocent, as indicia of suspicious activity,” Foster, 634 F.3d

at    248.     The   government        “must    do     more       than    simply    label     a

behavior as ‘suspicious’ to make it so”; rather, the government

must    be    able    to    “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.”

Massenburg, 654 F.3d at 491 (quoting Foster, 634 F.3d at 248).

                                           13
Here, Chilton did not articulate why Slocumb’s explanation for

his presence in the parking lot and the activity accompanying

it—both seemingly innocent acts—were “likely to be indicative of

some more sinister activity.”   Id.   Ultimately, this seizure had

“no connection with the individual seized, the activity [he was]

involved in, [his] mannerisms, or [his] suspiciousness; rather

the seizure [was] a mere happenstance of geography.”    Black, 707

F.3d at 541.



                                IV.

     Viewed in their totality, the factors cited by the district

court do not amount to reasonable suspicion to justify Slocumb’s

seizure.   The district court thus erred in denying Slocumb’s

motion to suppress.   Therefore, we reverse the district court’s

ruling, vacate Slocumb’s conviction and sentence, and remand for

further proceedings consistent with this opinion.



                                   REVERSED, VACATED, AND REMANDED
                      FOR PROCEEDINGS CONSISTENT WITH THIS OPINION




                                14
