USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 1 of 43

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4904

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY EUGENE PETERS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:19-cr-00082-HEH-1)

Argued: December 8, 2021 Decided: February 24, 2023

Before GREGORY, Chief Judge, and TRAXLER and FLOYD, Senior Circuit Judges.

Reversed, vacated, and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Senior Judge Floyd joined. Senior Judge Traxler wrote a dissenting opinion.

ARGUED: Paul Geoffrey Gill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Stephen Eugene Anthony, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 2 of 43

GREGORY, Chief Judge:

Anthony Eugene Peters was indicted on one count of possession of a firearm by a

person previously convicted of a felony, in violation of

(g)(1). Peters and

another individual, Gary Garrison, were walking down a sidewalk when the officers

approached them, accused them of trespass, and requested that they lift their shirts to show

they were unarmed. The Government argues that the officers suspected Peters of trespass

for eight reasons—one of which includes Peters’s association with Garrison, another

suspected trespasser. Garrison, however, was permitted to walk away after lifting his shirt

while Peters was seized until he did so. The officers found a firearm and ammunition on

Peters’s person pursuant to the seizure.

Peters filed a motion to suppress this evidence, arguing that the officers lacked

reasonable suspicion when they seized him. Following an evidentiary hearing, during

which the two officers testified, the district court found the stop was valid and denied the

suppression motion. Peters then entered a conditional plea of guilty, preserving his right

to appeal the denial of his motion.

On appeal, we find that the officers lacked reasonable and articulable suspicion to

justify seizing Peters. Thus, we reverse the district court’s order, vacate Peters’s

conviction, and remand for further proceedings consistent with this opinion.

I.

The Richmond Redevelopment and Housing Authority (“RRHA”) owns numerous

properties in Richmond, Virginia, including the Creighton Court apartment complex

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(“Creighton Court”). A Memorandum of Understanding (“MOU”) between the RRHA

and the Richmond Police Department (“RPD”), authorizes police officers to enforce state

trespass laws on RRHA’s properties and issue notice to any non-resident who is not: (1) a

resident’s guest; (2) a RRHA employee; or (3) on the property for “a legitimate business

or social purpose.” J.A. 247.

On February 3, 2019, at approximately 5:30 p.m., Officer Stephen Butler—an eight-

year veteran of the RPD—was patrolling the area with Officer Mitchell Cooper, a trainee

officer with a few days of experience (collectively “the officers”). The officers were

uniformed, with their service weapons holstered, and in a patrol car. They saw Peters and a

second individual, Garrison, walking along the sidewalk in the 2000 block of Creighton

Road. Officer Butler recognized Garrison as an individual prohibited from being in

Creighton Court. 1 Officer Butler also recognized Peters and knew that he had been arrested

for trespassing in 2011. While Officer Butler later testified that he learned this trespass

occurred in Creighton Court from the RPD Records Management System (“police

records”), 2 a screenshot of the police records shows that the trespass location was not

specified. J.A. 90, 248. The police records were also silent as to the arrest’s final disposition.

1 The RRHA apartment complexes have “No Trespassing” signs posted on the buildings. When asked by the district court however, Officer Butler testified that there were no signs along the walkways. J.A. 117.

Officer Butler took screenshots of the information he viewed in the RPD Records 2

Management System. These screenshots were admitted into evidence as Government’s Exhibits 2–3. 3 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 4 of 43

One month prior, Officer Butler received an uncorroborated tip from a confidential

informant that a male known as “Amp” sold crack cocaine at a specific address in Creighton

Court. J.A. 92, 98. The informant described “Amp” as “a black male in his mid 20s . . . with

a longer face” and “a slight goatee.” J.A. 93. Upon seeing a photo, the informant identified

Peters as “Amp,” prompting Officer Butler to review Peters’s record. The police records

listed Peters’s home residence as being on Mosby Street—outside Creighton Court—but

made no reference as to when this information was collected or last updated. A section of

the police records titled “Name Alerts” showed three separate alerts indicating Peters was

believed to be: (1) a “gang member,” as alerted in 2011; (2) a “narcotics seller/user,” as

alerted in 2009; and (3) “probably armed,” as alerted in 2009. J.A. 249.

Having gathered this information, the officers activated their body cameras and

exited the patrol car, walking toward Peters and Garrison. The district court admitted

Officer Cooper’s body camera footage into evidence, J.A. 250, and both of the officers

testified that the video accurately depicts the encounter. J.A. 61–62, 104. The parties do

not dispute the material facts, and this opinion describes the facts as reflected by the video.

See Scott v. Harris,

(2007) (stating that the Court of Appeals “should

have viewed the facts in the light depicted by the videotape”); United States v. Kehoe,

(4th Cir. 2018) (“[B]ody camera footage enables us to independently assess

the facts in question and to affirm on the basis of our assessment, not that of the district

court.”).

Without directing them to stop, Officer Butler immediately stated that they were

“not supposed to be out here.” J.A. 64. The officers testified that they spoke in “stern”

4 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 5 of 43

and “authoritative” tones of voice. J.A. 58, 69, 114–15. Peters and Garrison continued

walking when one of the officers asked if they “had any guns.” J.A. 114. As they walked,

they both answered no, and the officers requested that they lift their shirts. In response,

Garrison lifted his shirt and continued walking along the sidewalk. Peters, on the other

hand, who was dressed in formfitting “skinny jeans” and a hooded sweatshirt, only partially

lifted his shirt and stopped walking when the officers repeated their request. At this point,

the officers were standing about three to five feet from Peters. J.A. 193. The video footage

shows that the officers were positioned at a diagonal on both sides of Peters and an

apartment building was behind him. Officer Butler then alternated between asking Peters

to lift his shirt and stating that he was barred from the area. He addressed Peters as “Amp”

and asked if he had an official form of identification. Peters responded that he did not and

asked that Officer Butler search his name in the police records to verify that he was not

barred. Peters also asked a bystander to call his mother. Less than a minute after the

encounter began, Officer Butler and Peters discussed what would happen next.

Officer Butler: So you don’t mind if [Officer Cooper] pats you down?

Peters: I don’t want him to pat me down. Why he got to pat me down?

Officer Butler: So, you just want me to take you to jail then?

Peters: For what?

Officer Butler: For trespassing.

Video at 22:30:21–22:30:30.

Officer Butler then commented that Peters should consent to a “pat down,” and the

officers repeatedly asked Peters to lift his shirt while insisting that he was barred from the

5 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 6 of 43

property. Video at 22:30:30–22:32:56. Officer Butler also threatened to exercise his

authority to take Peters to jail. Video at 22:31:09–22:31:16 (“You’re barred. That’s a class

I misdemeanor in my presence. You understand I can take you to jail for that, right?”); see

Video at 22:30:26–22:30:28 (“So, you just want me to take you to jail then?”). In response,

Peters repeatedly informed the officers that he was not barred from the property and asked

that they verify their records. He also stated that he was in Creighton Court visiting his

family. Video at 22:31:33.

About three minutes into the encounter, Officer Butler made a sudden forward

motion—“like a buck,” as he later described it—toward Peters, “[j]ust to see how he would

respond.” J.A. 104 (“It was something that officers had told me like if you—you see how

someone responds if you do that. However, I see the immaturity in how I could cause an

individual to either take flight or posture up, and so it’s something that I’ve taken out of

how I conduct my business on the street.”). Just under four minutes into the encounter,

Peters lifted his shirt above his belt buckle. At this moment, Officer Butler testified he

“observed an object to the right side of [Peters’s] fly” resembling “the muzzle of a pistol.”

J.A. 102; see also J.A. 137–38. The officers both moved to secure Peters and ultimately

recovered a firearm from his front waistband. J.A. 60.

Peters was subsequently charged in a one-count indictment for possession of a

firearm by a person previously convicted of a felony, in violation of

(g).

Peters filed a motion to suppress all evidence and statements made, arguing that they were

the result of an unlawful seizure. Officers Butler and Cooper testified at the suppression

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hearing, and Peters’s defense counsel cross-examined Officer Butler as to why he initiated

the encounter with Peters.

Q: And, Officer Butler, you agree that when you saw Mr. Peters, and [Garrison] walking down the street, that you stopped your vehicle so you [could] talk to them to investigate trespass, is that right?

A: Yes, ma’am.

Q: And your only basis for believing that Mr. Peters was trespassing, you’ve testified, was a 2011 arrest, correct?

A: That’s correct.

Q: And you never checked, or you didn’t prior to that February 3rd encounter, to see the disposition of that trespass, did you?

A: No, ma’am.

Q: Now, the government asked you, and you talked about, information that you had received from a confidential source about possible drug trafficking, is that right?

A: Yes, ma’am.

Q: But you were not investigating Mr. Peters on that day for possible drug trafficking, correct?

A: No, ma’am.

Q: And you didn’t have enough information at that point to believe one way or the other that Mr. Peters was engaging in any drug trafficking activity in Creighton Court, correct?

A: On that day?

Q: Right. On that day.

A: On that day I got out of my vehicle to investigate trespassing.

J.A. 117–20 (emphases added).

In addition to suspecting Peters of trespass, Officer Butler also suspected Peters was

armed. This suspicion did not arise until after Officer Butler initiated the encounter. J.A. 7 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 8 of 43

120. According to his testimony, the combination of Peters’s skinny jeans and his refusal

to fully lift his shirt led Officer Butler to believe Peters was armed. When asked if this was

his “sole basis” for suspecting that Peters was armed, the Government objected, arguing that

this misconstrued Officer Butler’s testimony. J.A. 123. Overruling the objection, the district

court stated that Officer Butler could correct any mischaracterization. Officer Butler did not

make a correction and, instead, confirmed that he suspected Peters was armed because of

his skinny jeans and refusal to fully lift his shirt.

Q: [S]o was it the skinny jeans in conjunction with him doing a slight lift ...?

A: Yes.

Q: And that’s the sole basis?

A: That’s correct.

J.A. 124 (emphasis added).

The district court denied Peters’s suppression motion, concluding that Officer Butler

had “articulable suspicion” upon encountering Peters because of the information included

in the police records, Peters’s refusal to raise his shirt and prove he was unarmed, and

Officer Butler’s observation of the outline of a firearm on Peters’s person. J.A. 196.

Peters then entered a conditional plea of guilty and preserved his right to appeal the

denial of his motion to suppress. The district court sentenced Peters to 120 months of

imprisonment and three years of supervised release. This timely appeal followed.

8 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 9 of 43

II.

“Where, as here, the Government prevailed on the motion in the district court, we

construe the evidence in the light most favorable to the Government.” United States v.

Mitchell,

, 390 (4th Cir. 2020) (citation omitted). This court reviews the

district court’s legal conclusions de novo and its factual findings for clear error. United

States v. Cloud,

, 241 (4th Cir. 2021).

III.

The Fourth Amendment safeguards “[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. Consensual encounters between a police officer and an individual

require no objective justification. Florida v. Bostick,

(1991).

Investigatory stops, however, must be supported by reasonable, articulable suspicion that

the individual is engaged in criminal activity. Terry v. Ohio,

(1968); see

also United States v. Slocumb,

(4th Cir. 2015).

In reviewing whether the district court erred by denying Peters’s motion to suppress,

we must first establish when he was seized, and then determine if reasonable suspicion

justified the seizure.

A.

A seizure, as understood under the Fourth Amendment, occurs “[o]nly when the

officer, by means of physical force or show of authority, has in some way restrained the

liberty of a citizen.” Terry,

n.16. This is measured by whether, “in view of

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all the circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States v. Mendenhall,

(1980)

(plurality opinion). When establishing whether a reasonable person would feel free to

leave, we consider several factors, including:

(i) the number of police officers present; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they touched the defendant or made any attempt to physically block his departure or restrain his movement; (v) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled; (vi) whether the officers informed the defendant that they suspected him of illegal activity rather than treating the encounter as routine in nature; and (vii) whether, if the officer requested from the defendant . . . some form of official identification, the officer promptly returned it.

United States v. Black,

, 537–38 (4th Cir. 2013) (citation and internal

quotation marks omitted); see also, e.g., Wingate v. Fulford,

, 305 (4th Cir.

2021) (holding that the officer elevated a voluntary encounter to an investigatory stop upon

telling the defendant that he could not leave until he identified himself); United States v.

Bowman,

, 212–13 (4th Cir. 2018) (determining that the defendant was seized

when he began exiting a patrol car and the police officer stated, “just hang tight right there,

ok?”); United States v. Jones,

, 303–04 (4th Cir. 2012) (finding that the

defendant was seized when uniformed officers followed him from public to private

property, blocked his car, and immediately asked that he lift his shirt and consent to a pat

down search—noting that “[a]ny one of these facts on its own might very well be sufficient

to transform a consensual encounter into a detention”).

Looking to the totality of the circumstances, we find that Peters was seized

approximately one minute into the encounter when Officer Butler threatened to exercise

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his authority to take Peters to jail for trespass and suggested that Peters should consent to

a pat down. 3 Both the officers were in uniform, with their service weapons holstered, and

exited their patrol car upon seeing Peters and Garrison. They spoke in “stern” and

“authoritative” tones of voice while asking Peters and Garrison if they were armed and to

lift their shirts. Garrison complied by lifting his shirt, and the officers allowed him to walk

away. Peters, however, did not comply—only partially lifting his shirt—which led the

officers to repeat their request, and Peters stopped and turned around. Although the

Government maintains that the officers’ interaction with Peters constituted a consensual

encounter, we find otherwise. “[W]hen an officer, without reasonable suspicion or

probable cause, approaches an individual, the individual has a right to ignore the police

and go about his business.” Illinois v. Wardlow,

(2000) (citing Florida

v. Royer,

(1983)). Mere “refusal to cooperate, without more, does not

furnish the minimal level of objective justification needed for a detention or seizure.”

Bostick,

.

After insisting that Peters lift his shirt, Officer Butler made a clear show of authority

when he proposed taking Peters to jail for trespass. Once Peters responded by claiming that

he had done nothing wrong, Officer Butler countered that he should, therefore, not “mind”

if Officer Cooper patted him down. A reasonable person would not feel free to leave if an

officer says he can take the person to jail for a specific crime, or threatens that he will do so.

This is especially true after being accused of the specific crime several times. A reasonable

3 We need not consider whether Peters was seized at any point prior to this moment because, even if so, the result of our analysis would remain the same. 11 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 12 of 43

person in Peters’s circumstance would at least feel obligated to lift his shirt in order to leave.

In fact, while the officers began by accusing both Peters and Garrison of trespass, they

permitted Garrison to walk away after he complied and continued asking Peters to lift his

shirt when he did not. See Jones,

(“A request certainly is not an order, but

a request—two back-to-back requests in this case—that conveys the requisite show of

authority ‘may be enough to make a reasonable person feel that he would not be free to

leave.’” (quoting United States v. Richardson,

(6th Cir. 2004))).

B.

We next determine whether Peters’s seizure was justified by reasonable suspicion.

Reviewing courts measure reasonable suspicion “by the totality of the circumstances.”

United States v. Powell,

(4th Cir. 2011) (citing United States v. Arvizu,

(2002)). “Reasonable suspicion to initiate a brief investigative traffic

stop requires a particularized and objective basis for suspecting the particular person

stopped of criminal activity.” United States v. Feliciana,

, 523 (4th Cir. 2020)

(citations and internal quotation marks omitted). It is well settled that “the police 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,

.

Thus, the reasonable suspicion analysis is of an “officer-centered nature.” United States v.

Perkins,

(4th Cir. 2004) (emphasis added). While “[s]eemingly innocent

factors” may demonstrate reasonable suspicion when viewed together, “the Government

cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up

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contraband.” United States v. Foster,

(4th Cir. 2016) (citation and internal

quotation marks omitted).

The Government argues in its brief that the following eight factors created

reasonable suspicion that Peters was engaged in trespass and was armed: (1) a confidential

informant identified Peters as a person who sold crack cocaine from a specific address in

Creighton Court; (2) the confidential informant was previously reliable; (3) Peters’s “last

known address” was not in Creighton Court; (4) Peters “was present with Garrison,” an

individual the officers stated was barred from Creighton Court; (5) Peters was “nearly in

front of” the building where the informant said Peters sold drugs; (6) Peters had a 2011

arrest for trespass; (7) three police alerts marked Peters as a gang member in 2011, a buyer

or seller of narcotics in 2009, and “probably armed” in 2009; and (8) Officer Butler

observed drug-trafficking in Creighton Court where he found “drug-dealing and armed

violence was one [of] the residents’ chief complaints to [the] police”—none of such

observations involved Peters. Appellee’s Br. 11–12, 19.

We consider these eight factors, not in isolation, but within the wider context of the

complete record. In doing so, we note that a full review of this record suggests that the

Government’s eight factors reimagine the basis upon which Officer Butler suspected that

Peters was engaged in criminal activity. It is “the police officer” who “must be able to

point to specific and articulable facts”—not a party’s brief. Terry,

(emphasis

added). During cross-examination, Officer Butler confirmed that he stopped Peters to

investigate trespass and that his suspicion of trespass was based solely upon Peters’s 2011

arrest for trespass. J.A. 118–19. Neither inconsistent, nor irreconcilable, Officer Butler’s

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testimony should be read together as it also informs our review of the facts in their totality.

Nevertheless, we address the factors raised by the Government to explain why they, when

viewed in their totality, still fall short of the reasonable suspicion standard necessary to

seize Peters.

First, Peters’s criminal history as outlined in the police records does not justify

Officer Butler’s suspicion that he was trespassing in Creighton Court. See United States v.

Foster,

(4th Cir. 2011) (finding that, like past arrests and convictions,

“knowledge that a suspect is merely under investigation” does not demonstrate reasonable

suspicion without additional facts). As we have clarified in the past, holding otherwise

would allow “any person with any sort of criminal record—or even worse, a person with

arrests but no convictions—[to] be subjected to an investigative stop . . . at any time

without the need for any other justification at all.” Powell,

(citation

omitted). The police alerts—marking Peters as a “gang member” in 2011, a buyer or seller

of narcotics in 2009, and “probably armed” in 2009—preceded the encounter by at least

eight years. 4

4 The Government’s reliance on the 2011 “gang alert” also raises issues surrounding the general reliability of gang alerts and databases. At least one gang task force in Virginia has stopped using its gang database after noting its “declining utility.” Justin Jouvenal, Virginia police task force drops use of controversial gang database, Wash. Post (Jan. 28, 2021), https://www.washingtonpost.com/local/public-safety/gangnet- database-controversy/2021/01/27/0decb3d4-5bfd-11eb-b8bd-ee36b1cd18bf_story.html. (last visited Feb 23, 2022) (saved as ECF opinion attachment). At least two of our sister circuits have discussed these issues. See Diaz Ortiz v. Garland,

, 19 (1st Cir. 2022) (en banc) (reversing the Board of Immigration Appeals’ denial of the defendant’s petition because the gang database—which the agency relied upon to find the defendant was a gang member and therefore not credible—gave the court “no reason to believe the (Continued) 14 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 15 of 43

In Powell, we evaluated the usefulness of similar police database information,

labeled “caution data,” and ultimately found that it could not provide the police officer with

grounds for reasonable suspicion without additional facts.

(noting

that “caution data”—information indicating the defendant had “priors” and a suspended

license—lacked specificity, because there was no information as to when the data was

collected or if it resulted in a conviction). Likewise, the record here is silent as to what led

the officers to create the alerts, whether doing so led to further action, and whether the

information had been updated since collected. Therefore, without more specific facts, these

alerts do not heighten any suspicion that Peters was engaged in crime. See United States

v. Sprinkle,

, 617 (4th Cir. 1997) (finding that an individual “recently finish[ing]

a sentence” and having a criminal record alone cannot show reasonable suspicion).

Police records also indicated that Peters was arrested for trespass in 2011 but did not

include the location of the trespass or final disposition of the arrest. J.A. 248. Officer Butler

also confirmed that he did not know whether the arrest resulted in a conviction. During

the encounter, Peters asked Officer Butler to “run his name” to prove that he was not barred

from the property. J.A. 121. Officer Butler testified that he did not do so because he did

[database] labeled these individuals as gang members on any basis other than an application of the [detailed point system used to identify individuals]” and identifying an individual based on this “system alone, without additional information to bolster the credibility of its conclusion, is not reliable.”); see also Vasquez v. Rackauckas,

(9th Cir. 2013) (“Determining whether an individual is an active gang member presents a considerable risk of error. The informal structure of gangs, the often-fleeting nature of gang membership, and the lack of objective criteria in making the assessment all heighten the need for careful factfinding.”). 15 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 16 of 43

not feel comfortable diverting his attention or leaving Officer Cooper, his trainee, alone

with someone he suspected was armed. J.A. 106–07, 121–22.

Instead, Officer Butler chose to continue the interaction with Peters in the same

manner and make a sudden movement, or “buck,” toward him “[j]ust to see how [Peters]

would respond.” J.A. 104. Officer Butler also testified that he did not ask Officer Cooper

to verify whether Peters was barred because he was unsure “how familiar [Officer Cooper]

was with the operating system of our record management.” J.A. 124. While this may

explain why Officer Butler did not take additional steps to investigate, it does not change

the fact that his suspicion of trespass was based on an arrest—not a conviction—that was

eight years old. Although Officer Butler was not obligated to grant Peters’s request and

verify whether he was barred, his decision not to do so factors into the circumstances. And

had Officer Butler done so, he would have learned that Peters’s 2011 arrest did not result

in a conviction and that his name did not appear on the list of individuals barred from

Creighton Court. J.A. 14 n.1, 194.

Second, while Officer Butler testified that he received a confidential informant’s tip

alleging that Peters sold crack cocaine in front of a certain address in Creighton Court, he

also testified that the reason he seized Peters was the suspected trespass. It is worth noting

that when asked if he had “enough information” to believe Peters was trafficking drugs in

Creighton Court, Officer Butler responded that he did not, and he stopped Peters to

investigate trespass. J.A. 118. At oral argument, however, the Government linked the two

together by contending that Officer Butler’s trespass suspicion was predicated on his drug

trafficking suspicion when considered within the context of Creighton Court’s MOU. Oral

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Argument at 2:25:29, United States v. Peters (4th Cir. Dec. 8, 2021) (No. 19-4904),

https://www.ca4.uscourts.gov/OAarchive/mp3/19-4904-20211208.mp3. Under the MOU,

an individual in Creighton Court is a trespasser unless found to be: (1) a resident; (2) a

RRHA employee; or (3) there for “a legitimate business or social purpose.” J.A. 247.

According to the Government, Officer Butler reasonably suspected Peters of trespass

because he: (1) did not live in Creighton Court according to police records; (2) was not a

RRHA employee, although the Government did not explain its basis for assuming this

conclusion; and (3) was walking near the apartment building where an informant stated

Peters sold drugs—rather than engaging in “a legitimate business or social purpose.”

The confidential informant’s tip could not have significantly elevated the police

officers’ suspicion. Because tips vary in reliability, we have found it necessary to “take

into account all the facts surrounding a tip in assessing the totality of the circumstances

supporting a stop.” United States v. Drakeford,

, 264 (4th Cir. 2021) (citation

omitted). It is thus of crucial importance that Officer Butler had not taken any notable steps

to corroborate the confidential informant’s statement. While the confidential informant had

successfully collaborated with the RPD in the past, Officer Butler testified that he did not

corroborate this tip beyond referencing the police records. 5 Neither did the officers

describe witnessing any furtive gestures indicative of drug-related activity before Peters’s

5 Although the confidential informant had provided information leading to arrests and convictions, Officer Butler conceded that the informant had several prior felony convictions, a pending felony drug charge, and was “inactive with the [RPD]” at the time of the hearing. J.A. 151. 17 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 18 of 43

seizure. And despite his six and a half years patrolling the Creighton Court area, Officer

Butler did not mention ever having seen Peters selling drugs.

Instead, the Government points to the fact that Peters was “nearly in front of” the

building where the confidential informant claimed that he sold drugs. Appellee’s Br. 11.

But this observation is not as persuasive as the Government purports it to be. Peters was

not attempting to enter, leave, or even linger near the building. Indeed, the body camera

depicts Peters and Garrison continuing to walk down the sidewalk—a pedestrian travel

lane often stretching past buildings—when the officers began the interaction. And neither

does Officer Butler’s general observation that “drug-dealing and armed violence” are

“chief complaints to police” strongly support a particularized finding of reasonable

suspicion in this case. Appellee’s Br. at 19; see Wardlow,

(“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.”).

Third, the fact that Peters was seen walking with Garrison—who the officers stated

was barred—is not particular to Peters. See Black,

(finding that another

individual’s arrest cannot be the basis of reasonable suspicion concerning the defendant).

This factor is especially unpersuasive because the officers allowed Garrison to walk away.

If Officer Butler believed Peters was trespassing because of his association with Garrison,

it does not follow that the officers would only stop Peters and permit Garrison to leave.

Also, unlike the officer in Terry, who observed the defendants’ movements for at least ten

minutes before “becom[ing] thoroughly suspicious,” Officers Butler and Cooper spent no

time investigating Peters or Garrison before approaching them.

. Instead, the

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officers stopped their patrol car upon seeing Peters and Garrison, and immediately accused

them of trespass before asking that they lift their shirts. This action is more indicative of a

generalized sweep for guns rather than a particularized suspicion of criminal activity.

Peters’s reaction to the officers’ questions is also distinguishable from that of the

defendant in Bumpers, as relied on by the Government, where we found that the officers

had reasonable suspicion to believe the defendant was trespassing on a convenience store’s

parking lot. United States v. Bumpers,

, 175–76 (4th Cir. 2013). There, the

defendant—standing next to garbage dumpsters without any bags or items suggesting he

was a patron—left “almost immediately” and walked “at a fast pace” away from the store

upon seeing the police officer.

. Instead of attempting to walk away from the

officers here, Peters stopped and insisted he was not trespassing. Cf.

(“Bumpers’s

attempt to dodge the police created suspicion in a way that was not present in [previous

cases].”); Wardlow,

(finding that “headlong flight” is evasive behavior

which may indicate wrongdoing). Even if Officer Butler knew that Peters’s 2011 arrest

for trespass occurred in Creighton Court, an arrest alone does not support reasonable

suspicion. Furthermore, because non-residents are not necessarily trespassers under the

MOU, the police records listing Peters’s residence as outside Creighton Court does not add

much weight to Officer Butler’s suspicion.

Although the preceding discussion addresses why the Government’s factors fail to

give rise to reasonable suspicion, we find it necessary to also explain why the police

officers’ suspicion that Peters was armed further fails to legitimize their actions. Our good

colleague in dissent takes issue with this and, at the same time, laments our supposed lack

19 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 20 of 43

of review of the district court’s findings. See Dissenting Op. at 38–43. One need only look

to the district court’s findings, however, to understand why such an explanation is

necessary. Indeed, the district court found “Officer Butler clearly had articulable suspicion

that [Peters] may be engaged in criminal activity when he encountered him,” and that

“[t]his suspicion escalated as [the officers] approached the men.” J.A. 196. It then noted

Peters’s 2011 trespass arrest, as well as the outdated police records indicating Peters was

“probably armed” and “had also been previously implicated in selling narcotics.”

Finding a “well-founded probability that [Peters] was most likely a trespasser,” the district

court determined that “Officer Butler was justified in requesting that [Peters] raise his shirt

to show that he was not armed.”

It also found that Peters’s “partial compliance”

effectively “elevated” Officer Butler’s suspicion.

Because we disagree with the district

court’s analysis of this “escalated” and “elevated” suspicion, we press on to explain why.

To start, the Government relies on Peters’s repeated refusal to fully lift his shirt

when arguing that the officers’ actions were supported by reasonable suspicion. Officer

Butler articulated this same reasoning at the suppression hearing. Based on his years of

experience working as a police officer in “not only Creighton [Court], but Whitcomb,

Mosby, Fairfield, so other housing communities in that area,” Officer Butler testified, that

“the typical response of somebody who is not armed” is to “lift up their shirt well above

their waistline to prove that they don’t have a weapon on them.” J.A. 122. He also testified

that confidential sources informed him “men specifically were wearing skinny jeans drawn

tightly with a belt and would wedge a firearm in their waistband[.]” J.A.122–23.

20 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 21 of 43

In other words, before seeing the outline of a firearm, Officer Butler based his

suspicion that Peters was armed on two factors: (1) Peters’s skinny jeans; and (2) Peters’s

refusal to fully lift his shirt. See Appellee’s Br. at 6–7. A general tip “that men specifically

were wearing skinny jeans” to “wedge a firearm in their waistband” does not justify the

seizure here, because it is not at all particular to Peters. J.A. 122–23. The argument that

this rises to the level of reasonable suspicion is premised, at least in part, on the belief that

individuals like Peters—present in public housing communities like Creighton Court—

must lift their shirts upon request to prove they are unarmed. Such a belief cannot provide

reasonable suspicion because “a refusal to cooperate” alone does not justify a seizure.

United States v. Massenburg,

, 490–91 (4th Cir. 2011) (quoting Bostick,

); see also Royer,

(noting that refusal to listen or answer

questions does not demonstrate an objective basis supporting detention). To hold otherwise

would seemingly give way to the sort of general searches that we, as an en banc court, have

found to violate the Fourth Amendment. See United States v. Curry,

, 326

(4th Cir. 2020) (en banc) (“Allowing officers to bypass the individualized suspicion

requirement based on the information they had here—the sound of gunfire and the general

location where it may have originated—would completely cripple a fundamental Fourth

Amendment protection and create a dangerous precedent.”).

In Curry, we found that gunfire in a general location—following six shootings and

two homicides that occurred in the area in the preceding three months—failed to create

exigent circumstances allowing officers to search the defendant after he declined to fully

lift his shirt and give an officer “a full view of [the defendant’s] waistband.”

at 317

21 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 22 of 43

(referencing the officer’s testimony that he asked the defendant “to lift his shirt again”

because the defendant “nonchalantly pick[ed up] the left side of his shirt where [the officer]

could not get a full view of his waistband”). By doing so, we refused to accord special

weight to the Government’s argument that recent shootings in Creighton Court justified a

suspicionless seizure.

. To be sure, this case is distinguishable from Curry

because while there were no emergency conditions present here, the police officers had

identified Peters prior to seizing him and believed that he was trespassing.

In attempting to justify Officer Butler’s suspicion that Peters was armed, however,

the Government advances the same underlying argument that failed in Curry, that is, that

a general factor may be used to legitimize the assumption that individuals present in public

housing communities should lift their shirts upon request. The product of this reasoning

can be seen here. Despite suspecting both individuals of trespass, Garrison’s surrender of

his right not to lift his shirt freed him while Peters’s assertion of his right not to lift his shirt

was used to justify his seizure.

The record is clear that Peters was seized and his compliance with the officers

repeated request to lift his shirt was the only way he could avoid further detention or formal

arrest. When asked why he suspected Peters of having a weapon, Officer Butler’s response

was unequivocal. He stated,

Okay. So when I initially got out of the vehicle—so the individual with him, Gary Garrison, that’s like a very typical way if you ask someone, hey, do you have a weapon on you, they will show freely—like they’ll lift up their shirt well above their waistline to prove that they don’t have a weapon on them. And so from my six and a half years of experience of working not only Creighton [Court], but Whitcomb, Mosby, Fairfield, so other housing communities in that area, that has been the typical response of somebody who

22 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 23 of 43

is not armed to feel like “nope.” Like I won’t say no problem, but they will lift up and show more than what’s even requested.

J.A. 122 (emphases added). 6 Officer Butler thus perceived Peters’s failure to respond as a

“typical” unarmed person, and Peters’s skinny jeans, to indicate that he was armed. J.A.

123. But as we have already made clear, we renounce arguments that “risk[] treating

members of our communities as second-class citizens.” Curry, 965 F.3d at 331 (quoting

Utah v. Strieff,

, 252 (2016) (Sotomayor, J., dissenting)). We therefore reject

any argument that would “deem residents of Creighton Court—or any other high-crime

area—less worthy of Fourth Amendment protection by making them more susceptible to

search and seizure by virtue of where they live.”

. 7

Although the officers did not physically restrain Peters until he lifted his shirt high

enough for Officer Butler to see the outline of a firearm, the officers did continue to seize

Peters without reasonable suspicion. In Baker, we found the officer acted with reasonable

suspicion that the defendant was armed when he first, “observed a triangular-shaped bulge

underneath the front of [the defendant’s] shirt, near the waistband of his pants,” and then

“ordered [the defendant] to lift his shirt above the bulge.” United States v. Baker,

(4th Cir. 1996) (reversing the district court’s order and denying the defendant’s

motion to suppress the firearm).

6 We note that these “other housing communities” named by Officer Butler are all public housing communities. See J.A. 247. 7 Thus, without more indication that Peters was armed, Officer Butler’s testimony concerning “the typical response of somebody who is not armed” cannot recast Peters’s exercise of his right not to lift his shirt into a suspicious act. J.A. 122. See Black,

(“Being a felon in possession of a firearm is not the default status.”). 23 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 24 of 43

We see this reasoning reversed here because the officers began by approaching

Peters, accusing him of trespass, and requesting that he lift his shirt. Once Peters chose not

to comply with the officers’ request by only partially lifting his shirt, the officers repeated

the same request, stating that Peters should “just do it” because if Peters was unarmed then

“it shouldn’t be a problem”—“it’s that simple.” Video at 22:31:07–22:32:00. When Peters

protested that he had shown the officers the contents of his pockets, Officer Butler

responded, “that’s not what I asked” and continued the seizure until Peters did do what the

officers asked—fully lift his shirt. Video at 22:31:03. It was only after “requesting” that

Peters lift his shirt at least fifteen times, inferring that Peters should submit to a pat down

two times, and mentioning that Peters could be taken to jail for trespass two times that

Officer Butler observed “what appeared to be like the bulge or the outline of a muzzle of a

pistol” below Peters’s belt buckle. J.A. 135; see also Minnesota v. Dickerson,

(1993) (noting that a search was unjustified when “the incriminating character of

[an item] was not immediately apparent” but discovered “only as a result of a further

search”). To rely upon Officer Butler’s observation of the outline of the firearm as giving

rise to reasonable suspicion, without considering the coercive effect of the preceding

events, would adopt too shallow a view of the depth of the protections guaranteed to all

citizens under the Fourth Amendment.

With little analysis and almost no factual comparison to other Fourth Amendment

case law, it is difficult to understand why the dissent finds the surrounding circumstances

objectively sufficient to justify Peters’s seizure—other than because the district court

concluded as much. But for the reasons discussed, we find that case law indicates

24 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 25 of 43

otherwise and thus conclude that the Government’s factors—when weighed and assessed

in the totality of the circumstances—do not constitute reasonable suspicion to justify the

seizure. Officer Butler’s knowledge of Peters’s home address—as reflected and undated

in the police records—and an eight-year-old arrest for trespass fail to constitute reasonable

suspicion that Peters was trespassing as a non-resident who was not a resident’s guest, a

RRHA employee, or pursuing a legitimate business or social purpose. Efforts to then

cobble together the various outdated or unparticularized factors identified to bolster the

informant’s tip—without further investigation or any first-hand observations to corroborate

the allegation—add little to support a particularized suspicion. This is especially true given

the circumstances of the seizure by which Garrison, who was also suspected of trespass,

was free to walk away after lifting his shirt. It is for these reasons that Peters’s seizure was

unreasonable.

IV.

We find that the officers did not act with reasonable suspicion when they seized

Peters and the district court erred in denying the motion to suppress. Thus, we reverse the

district court’s ruling, vacate Peters’s conviction, and remand the case for further

proceedings consistent with this opinion.

REVERSED, VACATED, AND REMANDED

25 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 26 of 43

TRAXLER, Senior Circuit Judge, dissenting:

The majority concludes that this case involves a Fourth Amendment seizure rather

than a consensual encounter and that Officers Butler and Cooper lacked reasonable

suspicion to stop Peters when they saw him on the street. I agree that this case involves a

seizure, but I do not agree that the reasonable suspicion was lacking. To reach its decision,

the majority ignores the district court’s findings of fact and the standard of review, makes

its own factual findings, and then declares those facts insufficient to create reasonable

suspicion. And along the way, the majority improperly converts the reasonable-suspicion

inquiry into a subjective rather than objective inquiry. In my view, our standard of review

compels us to accept the district court’s factual findings, and those facts are sufficient to

establish reasonable suspicion for the stop and subsequent search of Peters’ person, as

required by Terry v. Ohio,

(1968). Accordingly, I respectfully dissent.

I.

“Under Terry, an officer may conduct a brief investigatory stop based on reasonable,

articulable suspicion of criminal activity. If the person is validly stopped, then the officer

may conduct a protective frisk, . . . so long as the officer reasonably believes that the person

is armed and dangerous.” United States v. Curry,

, 320 (4th Cir. 2020) (en

banc) (cleaned up). “Facts innocent in themselves may together amount to reasonable

suspicion . . . . And because reasonable suspicion is a less demanding standard, it can arise

from information that is less reliable than that required to show probable cause.” United

States v. Mitchell,

, 390 (4th Cir. 2020) (cleaned up); see Kansas v. Glover,

26 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 27 of 43

(2020) (“The reasonable suspicion inquiry falls considerably short

of 51% accuracy.”) (cleaned up).

Viewed in the light most favorable to the government, see United States v. Cloud,

, 241 (4th Cir. 2021), the evidence shows the following facts. Through a

Memorandum of Understanding (MOU) with the Richmond Redevelopment Housing

Authority, the Richmond Police Department is authorized to enforce trespassing laws on

Housing Authority property. Access to Housing Authority properties is limited to residents

and their guests, Housing Authority employees, and those with a “legitimate business or

social purpose.” J.A. 247. A person has no legitimate business or social purpose if, inter

alia, the person “reasonably appears” to be engaged in conduct that violates state or federal

law. J.A. 247. Officer Butler, who patrolled the area encompassing Creighton Court for

more than six years, testified that complaints about gun violence and drug dealing were

among the most common complaints he received from Creighton Court residents.

Officer Butler testified that he opened an investigative file on Peters in January 2019

after receiving information from a confidential informant (CI) that Peters was selling drugs

out of a specific address in Creighton Court. Butler had worked with the CI previously and

found him to be trustworthy, as his previous information had led to multiple arrests and

convictions. In the course of his preliminary investigation, Butler reviewed various police

databases and learned that Peters’ most recent address was not within Creighton Court and

that he had been arrested for trespassing at Creighton Court in 2011.

A few weeks after opening the investigative file, Butler while on patrol in his car

saw Peters walking in Creighton Court. Peters was accompanied by another person

27 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 28 of 43

(Garrison) who Butler knew and believed was barred from the property. Peters was very

close to and headed in the direction of the specific address identified by the CI as Peters’

base of drug operations. Peters was wearing skinny jeans, which Butler had learned were

being favored by some drug dealers because the jeans fit tightly and could hold a hidden

gun securely at the waist.

Officers Butler and Cooper got out of the car and immediately began challenging Peters

and Garrison, telling them they were not allowed to be on the property and asking them to

raise their shirts to show they had no weapons. Garrison raised his shirt and continued

walking away; the officers made no attempt to stop him. Peters, however, stopped walking,

turned around, and began engaging with the officers. Peters repeatedly told the officers that

he was not barred from the property and said he did not want to be searched. Several

minutes into the encounter, Peters raised the bottom of his shirt very carefully so as to

expose his belt buckle only. Butler testified that as Peters lifted his shirt, he saw to the right

of Peters’ fly the outline of what looked like the barrel of a pistol. Butler placed his palm

on Peters’ waistband and felt what he believed was the grip of a pistol. Butler and Cooper

then handcuffed Peters and removed the gun tucked into the waist of his jeans.

Over the course of his direct and redirect testimony, Officer Butler articulated all

the facts and factors discussed above. On cross-examination, however, Butler agreed with

questions from counsel for Peters that narrowed the bases for Butler’s actions. Butler

responded “[t]hat’s correct” when counsel asked, “your only basis for believing that Mr.

Peters was trespassing, you’ve testified, was a 2011 arrest, correct?” J.A. 118. As to why

28 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 29 of 43

Butler believed Peters was armed, counsel posited that the “sole basis” was that Peters was

wearing skinny jeans and only partially lifted his shirt, and Butler again agreed. J.A. 124.

When denying the suppression motion, the district court relied on the various factors

testified to by Butler on direct and re-direct examination. The court concluded that

reasonable suspicion for the stop existed because Butler believed that Peters was barred

from Creighton Court and had information that he was selling drugs out of Creighton Court,

which suggested that Peters was trespassing. The court found that Butler “credibly

testified” that he saw the outline of a gun when Peters partially lifted the bottom of his

shirt, which provided reasonable suspicion for the search. J.A. 196.

II.

Whether reasonable suspicion exists is an objective inquiry that focuses on the

totality of the circumstances. “We assess the totality of the circumstances to determine if

an objectively reasonable police officer would have had reasonable articulable suspicion

that [the defendant] was committing a crime at the time the officers seized him.” United

States v. Kehoe,

(4th Cir. 2018).

“The principal components of a determination of reasonable suspicion . . . will be

the events which occurred leading up to the stop or search, and then the decision whether

these historical facts, viewed from the standpoint of an objectively reasonable police

officer, amount to reasonable suspicion or to probable cause.” Ornelas v. United States,

(1996). The ultimate issue of the existence vel non of reasonable

suspicion is a mixed question of law and fact reviewed de novo, see

, but the

district court’s findings of historical fact must be accepted unless they are “against the clear

29 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 30 of 43

weight of the evidence considered as a whole.” United States v. Ferebee,

,

417 (4th Cir. 2020) (cleaned up); see Ornelas,

(explaining that appellate

courts must “review findings of historical fact only for clear error and . . . give due weight

to inferences drawn from those facts by resident judges and local law enforcement

officers”). When these standards are properly applied, I believe they compel us to affirm

the judgment of the district court.

Although there were some inconsistencies between Officer Butler’s testimony on

direct- and cross-examination, the district court’s distillation and understanding of Butler’s

testimony was reasonable, and we are obliged to accept it. See United States v. Manbeck,

(4th Cir. 1984) (“It is axiomatic that it is the role of the factfinder, not

the appellate court, to resolve conflicts in testimony, weigh the evidence, and judge the

credibility of witnesses.”). The question, then, is whether the historical facts as found by

the district court establish reasonable suspicion. I believe they do.

According to the information reviewed by Butler, Peters did not currently live in

Creighton Court and had previously been arrested for trespassing there, and his companion

had also been barred from Creighton Court. While those pieces of information did not

foreclose the possibility that Peters was a guest or had some other legitimate purpose,

Officer Butler also had very recent information--from a source Butler believed to be

reliable--that Peters was dealing drugs out of the Creighton Court unit he was walking

towards. Although Butler testified that he was investigating Peters that day for trespassing

only, not drug dealing, that does not mean the CI’s information about Peters selling drugs

in Creighton Court was irrelevant. As explained above, the agreement between the Housing

30 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 31 of 43

Authority and the Police Department provides that a person dealing drugs on the property

has no legitimate purpose for being on the property and is therefore a trespasser.

Accordingly, even if Butler’s knowledge of Peters’ prior trespassing arrest and his

knowledge that Peters did not live in Creighton Court were not enough on their own to

create reasonable suspicion, the CI’s tip about Peters’ drug activities provided further

reason for Officer Butler to suspect that Peters was trespassing. I believe these facts, when

considered together, were sufficient to establish reasonable suspicion.

Although the initial seizure was justified, the subsequent pat-down was proper only

if the “officer reasonably believes that the person is armed and dangerous.” Curry, 965

F.3d at 320 (cleaned up). Butler’s observation during the stop of what appeared to be the

outline of a gun was, in and of itself, sufficient to provide a reasonable belief that Peters

was armed and dangerous. See Pennsylvania v. Mimms,

(1977) (“The

bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed

a serious and present danger to the safety of the officer. In these circumstances, any man

of reasonable caution would likely have conducted the pat down.”) (cleaned up). 1 It may

well be that Peters’ skinny jeans caused Butler from the very first moment to suspect that

Peters was armed, as the majority contends. Butler, however, did not act on that personal

suspicion. Instead, he searched Peters only after he saw the outline of the gun barrel. Thus,

while I agree with the majority that skinny jeans do not automatically create reasonable

1 Because the search was justified by Butler’s observation of the outline of the gun, there is no need to consider whether Peters’ evasive actions when asked to lift his shirt would have been enough, on their own, to provide reasonable suspicion that Peters was armed. 31 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 32 of 43

suspicion that the skinny-jeans-wearer is armed, that point is irrelevant. The question is

whether reasonable suspicion existed at the time of the search, and Butler’s observation of

the outline of the gun barrel was sufficient on its own to support the search.

I recognize, of course, that the information the officers had about Peters was neither

perfect nor complete. Butler had done nothing to corroborate the CI’s tip that Peters was

selling drugs out of a Creighton Court unit. And while the CI had given credible

information in the past that led to arrests and convictions, the CI had gotten into legal

trouble by the time of trial and was no longer being used as an informant by the Richmond

Police Department. Moreover, Peters’ trespassing arrest was not a recent one, and he was

never convicted of that offense. Peters repeatedly told the officers that he was not barred,

and Butler could have gotten more current information about Peters’ status from police

dispatch during the stop. None of these points, however, makes it improper for the officers

to have relied on the information they had at the time of the stop.

Reasonable suspicion is a “commonsense, nontechnical” standard. Ornelas v.

United States,

(1996). “The reasonable suspicion inquiry falls

considerably short of 51% accuracy, for, as we have explained, to be reasonable is not to

be perfect.” Glover,

(cleaned up). Police are not required to exclude all

possible innocent explanations for the conduct before initiating a stop, nor are they required

to accept or investigate a suspect’s claim of no wrongdoing before acting. It would be

impractical and inconsistent with the public-interest and safety concerns animating the

Terry doctrine for courts to require law enforcement to pause and update all of their

information before investigating possible criminal activity unfolding before them. See

32 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 33 of

U.S. at 22 (explaining that the government’s interest in “effective crime

prevention and detection . . . underlies the recognition that a police officer may in

appropriate circumstances and in an appropriate manner approach a person for purposes of

investigating possibly criminal behavior even though there is no probable cause to make

an arrest”);

(“[W]e cannot blind ourselves to the need for law enforcement officers

to protect themselves and other prospective victims of violence in situations where they

may lack probable cause for an arrest.”).

Because the initial stop was supported by reasonable suspicion that Peters was

trespassing and the subsequent search was supported by reasonable suspicion that he was

armed, the officers’ conduct was consistent with the Fourth Amendment. The district court

properly therefore denied Peters’ motion to suppress.

III.

The majority reaches the opposite conclusion and holds that the district court erred

by denying the suppression motion. In my view, the majority reaches this result by

overstepping its authority as a reviewing court and substituting its own view of the facts

for those found by the district court.

As demonstrated above, resolution of this appeal requires us to determine whether

the historical facts found by the district court are clearly erroneous and, if not, “whether

the[] historical facts, viewed from the standpoint of an objectively reasonable police

officer, amount to reasonable suspicion.” Ornelas,

. The majority falters at

both steps.

33 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 34 of 43

A.

The first step of the inquiry is to review the district court’s factual findings. Rather

than review the findings, however, the majority ignores them and then selectively picks

through the testimony to create its own set of facts. The district court determined that Butler

stopped Peters for trespassing because of Butler’s knowledge of Peters’ then-current

address and the information from the CI; the majority says that Butler stopped Peters solely

because of Peters’ 2011 trespassing arrest. The district court held that the search was

justified given Butler’s testimony that he saw the outline of a gun, but the majority says

that the search was based on Peters’ skinny jeans and failure to lift his shirt. The majority

does not acknowledge the specific findings made by the district court, much less attempt

to explain why those findings are clearly erroneous.

The majority’s view of the facts is based solely on the testimony Butler provided on

cross-examination. Although the majority claims it is considering the entirety of his

testimony, see Majority Op. at 13, the majority in reality considers only the answers given

by Butler on cross-examination. See

(“During cross-examination, Officer Butler

confirmed both that he stopped Peters to investigate trespass and that his suspicion of

trespass was based solely upon Peters’ 2011 arrest for trespass.”); id. at 22-23 (referring

only to Butler’s cross-examination when discussing Butler’s suspicion that Peters was

armed).

While Butler’s answers on cross-examination were not entirely consistent with the

rest of his testimony, that inconsistency does not permit the reviewing court to decide

which portion of his testimony to accept. As already discussed, it is the job of the district

34 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 35 of 43

court to resolve any conflicts in Butler’s testimony, and it is our job to accept the district

court’s answer. See Manbeck,

(“It is axiomatic that it is the role of the

factfinder, not the appellate court, to resolve conflicts in testimony, weigh the evidence,

and judge the credibility of witnesses.”); see also United States v. Boone,

(3d Cir. 2002) (“[The factfinder] is free to believe part of a witness’ testimony and

disbelieve another part of it. Thus, a witness’ testimony is not insufficient to establish a

point simply because he or she later contradicts or alters it.”) (cleaned up). The district

court heard all of Butler’s testimony and reconciled any inconsistencies through its findings

of fact. Yet the majority ignores those factual findings, just as it ignores the constraints of

clear-error review.

The majority suggests its constricted view of Butler’s testimony is simply a function

of the “‘officer-centered nature’” of the reasonable-suspicion analysis. Majority Op. at 12

(quoting United States v. Perkins,

(4th Cir. 2004)). The majority relies

on this point to accuse the government (which in its brief points to multiple facts as

supporting the existence of reasonable suspicion) of “reimagin[ing] the basis upon which

Officer Butler suspected that Peters was engaged in criminal activity.” Maj. Op at 13. The

majority’s push-back against the government might be understandable if, for example, the

government were relying on information about which Butler was unaware when trying to

show the existence of reasonable suspicion. See United States v. Massenburg,

(4th Cir. 2011) (explaining that information unknown to the officer performing a

search “cannot enter into the [reasonable-suspicion] calculus”). In this case, however, all

of the factors identified by the government in its appellate brief were known to Officer

35 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 36 of 43

Butler at the time of the stop and were testified to by Butler at the hearing. Under these

circumstances, there simply is nothing improper about the government pointing to all of

those facts as a basis for affirming the district court’s judgment.

Our case law has never insisted on any magic words or particular phrasing from the

police officer when testifying about the reasons underlying a Terry stop. Instead, as is

always the case when facts are in dispute, it is up to the factfinder to consider the witness’s

testimony in its entirety in order to determine the relevant historical facts. In this case, the

district court as factfinder considered the whole of Officer Butler’s testimony and

understood that testimony to include Butler’s knowledge of Peters’ address and the

information from the CI as part of the reasonable-suspicion calculus. Those are the facts

that we must consider in this appeal, not the facts as recast by the majority.

Moreover, the majority’s narrow focus on Butler’s cross-examination testimony

distorts the objective nature of the reasonable-suspicion inquiry. The majority excludes the

CI’s information from its reasonable-suspicion analysis because Butler did not articulate

the CIs information as a basis for the stop and testified that he stopped Peters for

trespassing, not drug-dealing. The task of a court considering the propriety of a Terry stop,

however, is to determine “whether the[] historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to reasonable suspicion.” Ornelas,

(emphasis added). Thus, the question before us is whether the facts known to Butler

would cause a reasonable officer to believe that criminal activity was afoot; Butler’s

subjective view of the evidence is irrelevant. See United States v. Foreman,

(4th Cir. 2004) (“Because reasonable suspicion is an objective test, we examine the

36 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 37 of 43

facts within the knowledge of [the officer] to determine the presence or nonexistence

of reasonable suspicion; we do not examine the [officer’s] subjective beliefs to determine

whether he thought that the facts constituted reasonable suspicion.”).

B.

In addition to ignoring the standard of review and the factual findings made by the

district court, the majority also improperly applies the totality-of-the-circumstances

standard.

The totality-of-the-circumstances standard requires the court to consider the

cumulative weight of all of the information known to the officer. That is, each piece of

information is put on the scale to see if it is enough to tip the pointer over to “reasonable

suspicion.” If the first bit of information isn’t enough, it stays on the scale while the other

pieces of information are added. See, e.g., United States v. McBride,

(4th Cir. 2012) (explaining that the totality-of-the-circumstances inquiry “requires [the

reviewing court] to evaluate the cumulative information available to the detaining officer,

rather than engaging in piecemeal refutation of the individual facts upon which the officer

relied during the Terry stop”) (emphasis added). While the majority claims to consider the

totality of the information available to Officer Butler, see Majority Op. at 14, one searches

that opinion in vain for any actual consideration of the cumulative weight of the

information. Instead, the majority engages in the piecemeal refutation our cases have

expressly prohibited—the majority examines each piece of information individually, finds

it inadequate, and then tosses it off the scale before weighing the next piece.

37 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 38 of 43

As I have explained, I believe reasonable suspicion that Peters was trespassing can

be established through just a few facts: Butler knew Peters had previously been arrested

for trespassing at Creighton Court; Butler knew that Peters’ then-current address was not

in Creighton Court; and Butler had fresh information from a previously reliable CI that

Peters was selling drugs in Creighton Court. Even if none of these individual facts, standing

alone, would be enough to show reasonable suspicion, that does not mean that the

individual pieces of information have no value or relevance to the inquiry. See United

States v. Arvizu,

(2002) (“The court’s evaluation and rejection of seven

of the listed factors in isolation from each other does not take into account the totality of

the circumstances. . . . The court appeared to believe that each observation by [the officer]

that was by itself readily susceptible to an innocent explanation was entitled to no

weight. Terry, however, precludes this sort of divide-and-conquer analysis.”) (cleaned up).

When the individual pieces of information known to Butler are all on the scale together, I

believe their cumulative weight is enough to tip the scale and establish reasonable

suspicion.

C.

Once the majority concluded that the facts that it decided to consider were

insufficient to establish reasonable suspicion, that should have been the end of its analysis

and its opinion. The majority, however, spends the last five pages of its opinion discussing

the evidence tending to show that Peters was armed. According to the majority, this

discussion is necessary to “explain why the police officers’ suspicion that Peters was armed

further fails to legitimize their actions at the time of Peters’ seizure.” Majority Op. at 19;

38 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 39 of 43

see id. at 23 (noting that while “the officers did not physically restrain Peters until he lifted

his shirt high enough for Officer Butler to see the outline of a firearm, the officers did

continue to seize Peters without reasonable suspicion”).

I find this argument baffling. No one—not the government, and certainly not me—

is suggesting that an observation made by the police after a suspect has been stopped can

be used to somehow retroactively validate the initial stop. See Curry, 965 F.3d at 320 (“If

the initial stop was [unauthorized], then [the defendant’s] subsequent actions cannot make

the stop legal.”); United States v. Black,

, 539 n.5 (4th Cir. 2013) (rejecting

as “irrelevant” to the reasonable-suspicion inquiry facts that occurred after the initial

seizure of the defendant); United States v. Simmons,

(2d Cir. 2009) (“The

grounds for a stop must exist at the time of the [stop]. . . . The events that occurred after

[the defendant was stopped], therefore, do not factor into the analysis of reasonable

suspicion for the initial stop.”). Instead, Butler’s observation of the outline of a gun goes

to the propriety of the officers’ physical search of Peters, which occurred after the initial

stop. As discussed, a Terry stop is authorized if there is reasonable suspicion a crime is

afoot; a pat-down after the stop is authorized only if there is also reason to believe the

suspect is armed and dangerous. See Curry, 965 F.3d at 320 (“Under Terry, an officer may

conduct a brief investigatory stop based on reasonable, articulable suspicion of criminal

activity. If the person is validly stopped, then the officer may conduct a protective frisk, a

pat-down of the person’s outer clothing for weapons, so long as the officer reasonably

believes that the person is armed and dangerous.”) (cleaned up; emphasis added).

39 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 40 of 43

Because there is no jurisprudential reason for the majority to continue on even after

determining that the officers lacked reasonable suspicion, it seems to me that the real point

of the majority’s disquisition is to further express its displeasure with Officer Butler’s

practice of asking Creighton Court residents to lift their shirts to show that they are not

armed. 2 For what it’s worth, I share some of the majority’s concern about the practice of

routinely and without individualized suspicion asking people in Creighton Court and other

public housing communities to lift their shirts to show they are not armed. As police are

unlikely to make the same routine, suspicionless demands of people present in higher-

income neighborhoods, reasonable questions can be raised about the wisdom and propriety

of the approach taken by the Richmond police. The question in this case, however, is not

whether it is wise as a matter of policy to routinely ask public housing residents to lift their

shirts to prove they are not armed, but whether the officers’ requests to Peters in this case

violated any constitutional standards.

As I have explained, Butler had reasonable suspicion to stop Peters as soon as he

saw him, without regard to the lift-your-shirt directives or Peters’ response to them. And

once the stop became custodial, Butler asking Peters to lift his shirt was no different from

2 As part of its criticism of Butler’s practice of asking public housing residents to lift their shirts, the majority also complains about the disparate treatment of Garrison, Peters’ companion who continued walking away and was not stopped by the police. The officers’ inaction towards Garrison simply has no relevance to this case. The question on appeal is whether there was reasonable suspicion to stop Peters, not whether there would have been reasonable suspicion to support a hypothetical stop of Garrison. In any event, it seems apparent why the officers focused on Peters rather than Garrison. The CI’s information about drug dealing involved Peters, not Garrison. And while Garrison kept walking, Peters stopped and turned around to engage with the officers. 40 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 41 of 43

asking Peters to empty his pockets. Police routinely asks such questions during custodial

encounters as a means of ensuring their own safety. A suspect’s refusal to comply cannot

establish reasonable suspicion that he is armed, but the police are still free to ask the

question. See Illinois v. Wardlow,

(2000) (explaining that a “refusal to

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

needed for a detention or seizure”) (cleaned up).

In the majority’s view, however, these safety-based questions made during a

custodial stop were not routine, but instead were somehow improper and coercive. And

because it believes the directives were coercive, the majority takes an extraordinary step—

it declines to consider the evidence that Officer Butler saw the outline of a gun after Peters

slightly lifted his shirt. Even under the majority’s misguided view of the law, where

conduct occurring after a stop can affect the legality of the initial stop, the majority’s

approach makes no sense.

In the context of police interrogations, coercion involves things like threats,

violence, promises of reward, and undue influence. See, e.g., United States v. Braxton,

(4th Cir. 1997). Officer Butler’s request for Peters to lift his shirt was not

coercive no matter how many times the request was repeated. The requests were attempts

to ensure the safety of the officers during a close-range custodial stop, and they were not

improper. See Terry,

(“[W]e cannot blind ourselves to the need for law

enforcement officers to protect themselves and other prospective victims of violence in

situations where they may lack probable cause for an arrest. When an officer is justified in

believing that the individual whose suspicious behavior he is investigating at close range

41 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 42 of 43

is armed and presently dangerous to the officer or to others, it would appear to be clearly

unreasonable to deny the officer the power to take necessary measures to determine

whether the person is in fact carrying a weapon and to neutralize the threat of physical

harm.”) (emphasis added). While there may be good reason to question the wisdom of

Officer Butler’s lift-your-shirt approach to community policing, the directives issued to

Peters in this case have no bearing on the reasonable-suspicion inquiry and provide no basis

for the majority to disregard evidence found credible by the district court.

IV.

As explained above, binding precedent requires us to defer to the district court’s

findings of historical fact unless clearly erroneous. Because the district court’s findings in

this case are based on the testimony of Officer Butler and the district court’s resolution of

apparent inconsistencies created by Butler’s answers on cross-examination, there is no

legitimate basis for this court to reject the district court’s findings. The majority apparently

recognizes this point, given its failure to acknowledge the district court’s specific factual

findings and the absence of any effort to explain why the district court’s findings are not

entitled to deference or otherwise reconcile its approach with binding precedent.

Unable to reach its desired result by properly applying the governing cases, the

majority has charted a new path. Ignoring the factual findings of the district court and

freeing itself from the strictures of deferential appellate review, the majority makes its own

findings of fact and declares those facts insufficient to establish reasonable suspicion. I

decline to join the majority’s off-road adventure. Our standard of review compels us to

42 USCA4 Appeal: 19-4904 Doc: 38 Filed: 02/24/2023 Pg: 43 of 43

accept the district court’s findings of fact, and I believe those facts are sufficient to establish

reasonable suspicion for the stop and search. Accordingly, I dissent.

43