Security check tips reasonable suspicion analysis against defendant

US v. Foster:  In this appeal from a felon in possession conviction, the Fourth Circuit considered the denial of the defendant’s motion to suppress evidence revealed by a stop-and-frisk in downtown Wheeling, WV.  With facts similar to those of the Massenberg case from 2011, including an unreliable tip, high-crime area, the only person found in an area where a shot was reportedly fired, the individual’s failure to make eye contact, the Fourth Circuit undertook a similar reasonable suspicion analysis.  Where this case diverged from Massenberg, however, arose from a security check the defendant made, and it sufficiently changed the Court’s analysis to find the totality of the circumstances supported the conviction.  The Fourth Circuit affirmed.

Here, when officers approached Foster and asked if he had any weapons, Foster put his right hand in his right front pants pocket, a “security check” referred to as the instinctive movement that suspects purportedly use to ensure their concealed weapon is secure.  Foster complied when police told him to keep his hands out of his pockets; subsequently the officers frisked Foster, patted his right front pocket area that Foster had security checked, and discovered a firearm.  The Fourth Circuit found that the security check “tied all the factors into a coherent whole that justified an investigatory stop.”  It gave the police cause to suspect that Foster had been the source of the reported gunshot here, sufficient to justify a Terry stop and frisk.