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Decided: May 24, 2016

The Fourth Circuit affirmed the district court’s denial of Foster’s motion to suppress evidence recovered after a stop-and-frisk.

On August 11, 2014, police in Wheeling, West Virginia received a 911 call reporting a gunshot.  Two officers arrived within minutes to the area in question.  One of the officers saw Foster standing in an alley nearby, just looking around.  Foster was the only person the officers had encountered since arriving in the area.  When the officers approached Foster, he did not respond and avoided eye contact.  The officers believed that Foster was under the influence of drugs.  When asked if he had any weapons on him, Foster began to put his right hand in his right front pocket.  The officers frisked Foster, and felt an object that felt like a firearm.  Upon a search, the officers discovered three guns on Foster.  Foster was indicted for being a prohibited person in possession of a firearm.  Arguing that he was stopped and frisked without reasonable suspicion, Foster moved to suppress the evidence that the officers recovered.  The district court denied Foster’s motion to suppress.

Foster was not seized before he reached for his pocket.  Foster was not stopped until after he reached for his pocket, and reasonable suspicion existed at that time.  Five relevant factors support the presence of reasonable suspicion that Foster was or had been engaged in criminal activity: (1) The 911 call that reported a gunshot; (2) Shortly after the officers were dispatched, Foster was the only person they encountered in the area in which the gunshot was reported; (3) The stop occurred late at night in a party of the city described as a “high crime” area; (4) Foster did not respond to the officers’ questions and avoided eye contact; and (5) Foster reached for his right pocket after being asked if he was carrying a weapon.  In evaluating the totality of the circumstances, the officers had reasonable suspicion.  Although the circumstances observed or known by the police before Foster reached for his pocket were not enough to support reasonable suspicion, Foster reaching for his pocket tied all of the factors into a coherent whole that justified an investigatory stop.  The officers justifiably performed a Terry stop because they had reasonable suspicion that Foster committed a crime associated with discharging a firearm.

Accordingly, the Court affirmed the district court’s judgment.

Full Opinion

Katie E. Lowery