United States v. Timothy Cloud ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4091
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY LAMONT CLOUD,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:19-cr-00224-MOC-DSC-1)
Argued: January 27, 2021 Decided: April 12, 2021
Before WILKINSON, AGEE and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson
and Judge Diaz joined.
ARGUED: Megan Coyle Hoffman, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
AGEE, Circuit Judge:
A federal grand jury issued a one-count indictment against Timothy Cloud after
officers with the Charlotte-Mecklenburg Police Department (“CMPD”) arrested him and
discovered a stolen firearm on his person. Cloud subsequently moved to suppress that
firearm as evidence, arguing that it was the fruit of an unlawful seizure. The district court
denied that motion and, for the reasons that follow, we affirm.
I.
A.
At about 10:30 p.m. on April 7, 2017, CMPD Officers Reginald Jenkins and Joshua
Skipper were together in a marked police vehicle patrolling the parking lot of the
Brookwood Inn in Charlotte, North Carolina, located just off of Interstate 85 between the
Sugar Creek and Hidden Valley neighborhoods. As Cloud admits, this area “ha[s] the
reputation as being ‘crime-ridden.’” Opening Br. 29 (citation omitted). Indeed, both
Officers Jenkins and Skipper testified that the area is known for a high volume of drug-
and gun-related crimes, and that they had previously made arrests for those types of
offenses at the Brookwood Inn. In fact, earlier that month, the officers were assigned to
“Operation Anvil,” a six-man CMPD unit aimed at reducing drug and gun offenses in “the
Sugar Creek and I-85 corridor.” J.A. 50, 87. Prior to Cloud’s arrest, Operation Anvil had
led to two other drug- and/or gun-related arrests at the Brookwood Inn stemming from
“people loitering in cars.” J.A. 88.
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B.
That night, Officers Jenkins and Skipper observed a red, four-door Dodge Avenger
(the “Dodge”) parked head-first in a space about “12 to 15 feet away” from Room 110 at
the Brookwood Inn, which is on the ground level. J.A. 57. While cars were parked on both
sides of the Dodge, there was “ample space to get in and out” of the passenger doors. J.A.
139. The car was running, had its lights on, and had four occupants––one in the front
passenger seat, and one in each of the three rear passenger seats. The driver’s seat was
unoccupied. When the occupants saw the patrol car drive by, they rolled up the car
windows. The officers decided at that point to turn around and make contact with the car’s
occupants.
Officer Jenkins parked the marked police car eight to twelve feet behind (and
perpendicular to) the tail end of the Dodge. He did not, however, leave a clear path for the
car’s driver to back out of the parking spot. The patrol car’s front-end “partially blocked”
the Dodge’s back end, so there was not “enough space to easily [back] out and leave
without skill on the part of the driver.” Id.; see also J.A. 71 (Officer Jenkins explaining that
the driver “would have to work some magic to get out of” that parking spot). The police
vehicle’s emergency light equipment was not engaged.
Officer Jenkins then approached the driver’s side of the Dodge, while Officer
Skipper approached the passenger’s side. Both officers were wearing standard issue CMPD
uniforms, and their firearms remained holstered. While the parking lot was generally well-
lit, both officers carried their flashlights in their hands.
3
Once Officer Jenkins arrived at the rear driver’s side of the Dodge, he testified,
“sitting in the back seat was a black male and I saw him holding what I believed to be the
– a firearm and I could see the butt end of the firearm.” J.A. 55. As Officer Jenkins got
closer and shined his flashlight on the individual sitting in that seat, later identified as L.W.,
he began acting “really nervous” and “feverishly,” “tr[ying] to conceal [the firearm] under
the driver seat under the floor mat.” J.A. 55–56. At that point, Officer Jenkins testified that
he had a reasonable articulable suspicion that L.W. was unlawfully carrying a concealed
weapon, which he believed established probable cause to search the vehicle for that
weapon. See N.C. Gen. Stat. § 14-269(a1)(1)–(2), (c) (making it a Class 2 misdemeanor to
carry a concealed weapon unless, as relevant here, the person is on their “own premises”
or has a concealed carry permit).
During Officer Jenkins’ exchange with L.W., Officer Skipper began speaking with
a female passenger sitting in the front passenger seat. Unaware of what Officer Jenkins had
seen, Officer Skipper began explaining to her “why we were getting out with them”––that
they were sitting inside a running vehicle without a driver in a high crime area––and asked
if they were staying at the motel. J.A. 91–92. She stated that they were not.
About fifteen seconds after Officer Skipper began talking with the female occupant,
and after Officer Jenkins saw L.W. with the alleged firearm, Cloud and his girlfriend exited
Room 110. They stood on the wide, covered walkway between the room and the parking
lot. Cloud then began to walk towards the driver’s side of the Dodge. Officer Skipper asked
if he had a room at the Brookwood Inn, to which Cloud responded, “[N]o,” J.A. 58, and
put his hand on the driver’s door handle. Officer Jenkins then asked Cloud, “How’s it
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going?” Id. Cloud responded, “Okay.” Id. Officer Jenkins then began explaining why they
had stopped to speak to the car’s occupants, but Cloud interrupted to state that the female
in the front passenger seat was his daughter, got into the driver’s seat of the Dodge, and
shut the door. He then “turned his head and acted like he wanted to back out. He looked
over his right shoulder and then he looked out the [driver’s side] window,” but he did not
attempt to back out of the space. J.A. 59–60.
With Cloud in the driver’s seat, Officer Skipper prepared to walk back to the patrol
car because “I didn’t see anything, hear anything, and we were just doing a voluntary
contact.” J.A. 93. But then he heard Officer Jenkins ask the passenger behind the driver’s
seat what it was that he placed under the seat, so he returned to his original position next
to the front passenger’s door. L.W. partially rolled the window down and told Officer
Jenkins that he had dropped a “Black & Mild” cigarillo on the floor. Officer Jenkins then
“continually began asking questions to ask [L.W.], you know, ‘Are you sure you didn’t put
anything down there?’” J.A. 61. Officer Jenkins asked Cloud through the driver’s door
window if there were any drugs or guns in the vehicle. Cloud responded, “Drugs or guns?”
Id. Officer Jenkins repeated the question, and Cloud said there were none. While Officer
Jenkins spoke with L.W. and Cloud, four more officers in full uniform arrived on the scene.
After telling Officer Jenkins that there were no drugs or guns in the car, Cloud
exited the Dodge and walked to the front of it towards the motel room and began pacing
up and down the sidewalk while placing a call to his mother. Officer Jenkins asked Cloud
to “come back” and “hang out” with the officers, J.A. 290 (Jenkins Body Camera Video at
2:40–50), but Cloud “ignored” his request and continued walking up and down the covered
5
portico of the motel, J.A. 144. Immediately afterwards, Officer Jenkins said “actually, no,
he’s good,” J.A. 290 (Jenkins Body Camera Video at 2:40–50), but asked the Dodge’s four
occupants to exit the vehicle. As each of the four occupants exited the car, they were paired
with an officer. Officer Jenkins realized that they all appeared to be juveniles, leaving
Cloud as the only adult associated with the Dodge.
Officer Skipper attempted to explain to Cloud why he and Officer Jenkins were
there, but Cloud “refused” to listen “and instead handed Skipper his phone and asked
Skipper to talk to his mother.” J.A. 140. Officer Skipper took the phone for a few moments,
but only held it at his side, and never spoke with Cloud’s mother. He then gave the phone
back to Cloud, who began speaking on the phone again while pacing on the covered
sidewalk without interference or restriction. He walked towards, and eventually past,
Officer Skipper while talking on the phone.
Officer Jenkins then asked Cloud who owned the Dodge. Cloud responded that it
belonged to his mother. Officer Jenkins asked for consent to search the vehicle, but Cloud
immediately refused. Once again asking if there were drugs or guns in the car, Cloud
responded, “I don’t know what he got on him,” and that Cloud was “just driving.” J.A. 291
(Skipper Body Camera Video at 4:54–57). Officer Jenkins then told Cloud that he was
going to “frisk” the car, but Cloud repeated that Officer Jenkins could not search it. J.A.
290 (Jenkins Body Camera Video at 4:35–51). Officer Jenkins then searched the floor area
where L.W. had been sitting and under the driver’s seat, where he retrieved the handgun
he had seen earlier.
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During Officer Jenkins’ search, Cloud resumed talking on the phone and walked
away from Officer Skipper and the Dodge towards a breezeway that led away from the
scene. Officer Skipper testified that initially “as [Cloud was] walking away, I’m kind of
letting him . . . because I still don’t know [what Officer Jenkins has seen],” J.A. 97, meaning
that, in Officer Skipper’s eyes, Cloud was “free to leave,” J.A. 105. But then Officer
Jenkins radioed that he found a gun, and ordered that Cloud be detained. Officers attempted
to do so, but Cloud resisted and tried to flee, leading to a struggle that required multiple
officers to subdue him. Officers then discovered what turned out to be a stolen handgun in
Cloud’s front right pocket. That stolen handgun formed the basis of the instant federal
criminal proceedings against Cloud.
II.
After his arrest and subsequent indictment for being a felon in possession of a
firearm, 18 U.S.C. § 922(g), Cloud moved to suppress the firearm found on his person as
evidence, arguing that it was the fruit of an unlawful seizure. According to Cloud, once
police officers parked their patrol vehicle behind the Dodge and likely prevented him from
backing out of his parking spot, he was “seized” within the meaning of the Fourth
Amendment. That seizure was unsupported by a sufficient reasonable articulable suspicion,
he posited, because Officer Jenkins’ having witnessed L.W. hide a gun under Cloud’s seat
before he exited the motel room was insufficient to suspect that Cloud was engaged in
criminal activity. He argued that since the firearm on his person was only discovered after
this unlawful seizure, it must be suppressed. The district court held an evidentiary hearing,
7
in which it heard testimony from Officers Jenkins and Skipper and viewed their bodycam
footage.
The district court denied Cloud’s motion. J.A. 143–45. The court agreed that the
underlying facts––the officers’ partially blocking the Dodge, the “number of in-uniform
police officers with weapons in view,” and “other factors”––“suggest[ed] that [Cloud] was
seized.” J.A. 144. However, the court ruled that no seizure occurred, because Cloud did
not acquiesce to the officers’ show of authority. Relying on our decision in United States
v. Stover, 808 F.3d 991 (4th Cir. 2015), the court found that “at best, an attempted seizure”
occurred. Id. And even if a seizure did occur, the court further found that there was
reasonable articulable suspicion to detain Cloud. J.A. 145.
Cloud subsequently executed a written plea agreement with the Government under
which he agreed to plead guilty to a superseding Bill of Information charging him with one
count of knowingly possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). The
agreement preserved Cloud’s right to appeal the denial of his motion to suppress. After the
court sentenced Cloud to seventy-four months’ imprisonment, he timely filed a notice of
appeal. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
III.
When a defendant appeals the denial of a motion to suppress, we must view the
evidence in the light most favorable to the Government, United States v. Foster, 634 F.3d
243, 246 (4th Cir. 2011), and “give ‘due weight to inferences drawn from those facts by
resident judges and law enforcement officers,’” United States v. Lewis, 606 F.3d 193, 197
8
(4th Cir. 2010) (citation omitted). We examine the district court’s factual findings for clear
error, but review all legal conclusions de novo. Lewis, 606 F.3d at 197.
On appeal, Cloud asserts that he was seized within the meaning of the Fourth
Amendment during his encounter with police, and that there was no reasonable articulable
suspicion attributable to him justifying that seizure. Cloud first argues that officers seized
him as soon as they parked their police car behind the Dodge in a way that likely prevented
him from leaving. Further, he posits that the officers did so without any reasonable
articulable suspicion that he was engaged in criminal activity. In Cloud’s view, Officer
Jenkins’ suspicion that L.W. was unlawfully in possession of a concealed firearm gave
Officer Jenkins no reason to suspect that Cloud was either: (1) the owner of that firearm;
or (2) also carrying a concealed firearm.
We disagree. As explained below, the Fourth Amendment was not implicated during
Cloud’s encounter with police on April 7, because he never acquiesced (passively or
otherwise) to a show of authority. Further, even assuming that Cloud acquiesced to a show
of authority, there was a reasonable articulable suspicion to support the seizure in order to
investigate who owned the firearm that Officer Jenkins observed.
A.
The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S.
Const. amend. IV. But not every police-citizen encounter will implicate this prohibition.
See Stover, 808 F.3d at 995. For example, it is well-settled that “a seizure does not occur
simply because a police officer approaches an individual and asks a few questions.”
Florida v. Bostick, 501 U.S. 429, 434 (1991). Such “consensual encounters” demand no
9
inquiry into the reasonableness of the officer’s justification for engaging the individual,
because the Fourth Amendment is not at all implicated. See, e.g., United States v. Jones,
678 F.3d 293, 299 (4th Cir. 2012).
It is equally well-settled, however, that “brief investigatory stops” are “seizures”
that implicate the Fourth Amendment. United States v. Curry, 965 F.3d 313, 319 (4th Cir.
2020) (en banc). A “seizure,” the Supreme Court recently affirmed, occurs when officers
employ “‘physical force’ or a ‘show of authority’ that ‘in some way restrain[s] the liberty’
of the person.” Torres v. Madrid, __ U.S. __, 141 S. Ct. 989, 995 (2021) (alteration in
original) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
Because Cloud argues that he was seized before officers used force to detain him,
we must determine if police made a sufficient “show of authority” to effectuate such a
seizure. 1 Our precedent dictates that we make that determination according to the objective
test set forth in United States v. Mendenhall, 446 U.S. 544 (1980) (plurality opinion).
Stover, 808 F.3d at 995. Under Mendenhall, a show of authority occurs if the totality of the
circumstances demonstrates that a reasonable person, measured objectively from an
1
In Torres, a majority of the Court declared that “each type of seizure”––a “seizure
by control” and a “seizure by force”––“enjoys a separate common law pedigree that gives
rise to a separate rule.” __U.S. at __, 989 S. Ct. at 1001. As the Court explained, this means
that “[u]nlike a seizure by force, a seizure by acquisition of control involves either
voluntary submission to a show of authority or the termination of freedom of movement.”
Id. Accordingly, the Court’s holding in Torres that a woman was seized when officers shot
her, despite her failure to yield to that use of force (a “seizure by force”), has no bearing
on the issue presented in our case, whether Cloud was seized through an alleged show of
authority. See id. at 995–96.
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innocent citizen’s perspective, “would have believed that he was not free to leave.” 446
U.S. at 554; Bostick, 501 U.S. at 438.
That officers employed a show of authority does not alone implicate the Fourth
Amendment. As we have observed, “[t]he Mendenhall test states a necessary, but not a
sufficient, condition for . . . seizure[s] effected through a ‘show of authority.’” Stover, 808
F.3d at 995 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). For a seizure to
occur, the defendant must actually submit to that show of authority. Id. (citing Hodari D.,
499 U.S. at 628–29). That submission need not be explicit; it can take the form of “passive
acquiescence.” Id. at 996. Whatever form it takes, “‘without actual submission’ to the
police, ‘there is at most an attempted seizure,’ which is not subject to Fourth Amendment
protection.” Id. (alteration omitted) (quoting Brendlin v California, 551 U.S. 249, 254
(2007)). If a person acquiesces to an officer’s show of authority, thereby giving rise to a
seizure, then we must consider whether the officer had a reasonable articulable suspicion
of criminal activity to justify the seizure. E.g., United States v. Kehoe, 893 F.3d 232, 237
(4th Cir. 2018).
B.
1.
We begin with analyzing whether a reasonable person in Cloud’s position would
have felt free to leave the scene or otherwise terminate the encounter with police. This is a
question of law that we review de novo, Jones, 678 F.3d at 299, and whether a reasonable
person would have felt free to leave requires a holistic analysis of the totality of the
circumstances of the encounter, Mendenhall, 446 U.S. at 554; Jones, 678 F.3d at 299
11
(quoting Bostick, 501 U.S. at 439). Our cases have enumerated six broad, non-exclusive
categories of facts that may be relevant: (1) how many officers were present; (2) whether
officers were in uniform and/or displayed firearms; (3) whether any officer touched the
defendant or made any attempt to block or restrain his movement; (4) if the officer’s
questioning was “‘conversational’ rather than ‘intimidating’”; (5) whether the officer
informed the defendant that he suspected him of illegal activity, or treated the encounter as
“routine”; and (6) if the officer asked for identification, how quickly the officer returned it
to the defendant. United States v. Gray, 883 F.2d 320, 322–23 (4th Cir. 1989); see also,
e.g., Jones, 678 F.3d at 299–300.
Cloud argues that based on a number of these factors, Officers Jenkins and Skipper
seized him as soon as they parked their patrol vehicle behind his car. We disagree, because
even if the parked vehicle alone constituted a “show of authority,” there is no evidence that
Cloud was aware of it, much less acquiesced. True, even “an unintended person may be
the object of the detention” caused by an intentional show of authority, Brendlin, 551 U.S.
at 254 (alterations and internal quotation marks omitted) (quoting Brower v. County of
Inyo, 489 U.S. 593, 597 (1989)), but the relevant inquiry is whether “a reasonable [person]
would have perceived that the show of authority was at least partly directed at him,” id. at
261. Here, Cloud was still inside of Room 110 when the officers parked the patrol vehicle,
and there is no evidence that he saw it until he left the motel room. Without evidence that
Cloud perceived any alleged show of authority prior to exiting the motel room, the mere
act of parking the patrol car was of no constitutional significance to him. Id.; see also
United States v. Salvucci, 448 U.S. 83, 86 (1980) (“[A]ttempts to vicariously assert
12
violations of the Fourth Amendment rights of others have been repeatedly rejected by [the
Supreme] Court.”).
However, Officers Jenkins and Skipper did eventually make a constitutionally
significant show of authority as to Cloud. After they arrived––and notably, shortly after
Officer Jenkins witnessed L.W. hide a firearm under the Dodge’s driver’s seat––Cloud
voluntarily exited Room 110 and inserted himself into the scene by sitting in the Dodge’s
driver’s seat. When he did so, neither Officer Jenkins nor Officer Skipper retreated from
their respective positions on each side of the car and continued to focus their flashlights on
the Dodge’s occupants. Further, while Officer Jenkins’ initial interaction with Cloud was
an exchange of mere pleasantries, as Cloud continued to sit in the driver’s seat, Officer
Jenkins began asking Cloud (and continued asking L.W.) questions about the presence of
guns or drugs in the car.
Given this factual progression, we agree with Cloud that a reasonable person would
have concluded that he was not free to leave at that point, and that any effort to have the
officers move the patrol vehicle in order to facilitate an easier exit would have been met
with an objection. See Stover, 808 F.3d at 996–97 (holding that officers made a show of
authority when they followed a defendant’s car into a parking lot, activated their patrol
car’s emergency equipment, blocked the defendant in by parking directly behind him, and
eventually drew their weapons); Jones, 678 F.3d at 296–98, 302–04 (holding that officers
made a show of authority by parking their marked patrol vehicle behind the defendant’s
car in the defendant’s driveway, immediately proceeding to the driver’s side of the
defendant’s car, and demanding that he lift up his shirt and consent to a patdown).
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2.
As we have made clear, however, that Officers Jenkins and Skipper made a show of
authority towards Cloud does not itself equate to a seizure. Rather, Cloud must show that
he acquiesced to that show of authority. Stover, 808 F.3d at 995–96. Ascertaining when, if
at all, a defendant acquiesces to a show of authority “can be a difficult, fact-intensive
inquiry,” for “what may amount to submission depends on what a person was doing before
the show of authority.” Id. at 996 (alteration omitted) (quoting Brendlin, 551 U.S. at 262).
Accordingly, our precedent dictates that the question of acquiescence is a factual one that
we review only for clear error. Id. at 998 (“[T]he district court did not clearly err in finding
that Stover had not submitted[.]”).
We observed in Stover that “a range of conduct exists between the ‘passive
acquiescence’ in Brendlin and the headlong flight in Hodari D.” Id. And within that range,
the same facts can have varying legal significance based on context. For example, a
person’s mere movement within a scene of police activity generally neither establishes nor
eliminates acquiescence. But in certain contexts, like a traffic stop, a person’s lack of
movement within a scene of police activity can be enough to indicate his acquiescence to
the show of authority by police. Brendlin, 551 U.S. at 262 (explaining that a passenger in
a car “had no effective way to signal submission while the car was still moving, but once
it came to a stop he could, and apparently did, by staying inside”); see also, e.g., Jones,
678 F.3d at 303–04 (defendant seized after officers made consecutive “requests” for him
to lift up his shirt and to consent to a patdown); United States v. Black, 707 F.3d 531, 536–
38 & n.3 (4th Cir. 2013) (finding a submission to police authority where the defendant,
14
surrounded by a group of police officers, was “extremely cooperative” with officers,
volunteered his identification badge, which an officer then pinned to his uniform, and
remained at the scene while other officers frisked the other individuals present).
The circumstances in Stover are instructive and illustrate the need to “draw the line
between submission and non-submission in the face of an individual’s equivocal reaction
to police acts initiating a show of authority.” 808 F.3d at 999. There, officers parked their
patrol vehicle three feet behind Stover’s parked car, blocking him in. Id. at 993. Stover
exited the driver’s side of the vehicle and opened the driver’s side passenger’s door. Id. at
994. Officers ordered him to get back into his car, but Stover walked towards the front of
his car. Id. At least one officer ran to the front of Stover’s car with his gun drawn,
“caus[ing] [Stover] to acquiesce” and drop what officers discovered was a firearm. Id.
Stover then complied with the officers’ orders to get back into his vehicle. Id. We held that
Stover did not acquiesce until after dropping his firearm, because his “initial action was
not to cooperate with police and answer their questions,” but was to “disobey[] a police
order to return to the car, and instead walk[] away from the police with a loaded gun in his
hand.” Id. at 999. “Only after he discarded that gun and was confronted by an armed police
officer did Stover submit to police authority.” Id.
Cloud asserts that he passively acquiesced to Officers Jenkins’ and Skipper’s show
of authority by remaining in the vicinity of the motel and answering their questions. 2 To
2
According to Cloud, the Government has “waived any argument that [he] did not
submit to police authority” by failing to develop its argument in its response brief. Reply
Br. 3 n.1. While we have recognized that the Government’s “outright failure” to address
15
the contrary, we find no clear error in the district court’s determination that, as in Stover,
Cloud never intended to, or did in fact, yield to Officers Jenkins and Skipper or any of the
other police officers.
Immediately upon exiting Room 110 and approaching Officer Jenkins, Cloud
ignored Officer Jenkins’ initial efforts to explain why he and Officer Skipper were speaking
with the Dodge’s occupants, and only offered the unprompted remark that one of the
passengers was his daughter. After answering Officer Jenkins’ initial questions, Cloud then
exited the Dodge and went to the front of the car, ignoring Officer Jenkins’ order to hang
back with one of the other officers. 3 He instead decided to focus his attention on calling
his mother while he freely moved around the motel sidewalk without hindrance or
restriction. At one point, Cloud––again unprompted––gave Officer Skipper his cell phone
and directed him to talk with his mother. Officer Skipper used this opportunity to ask Cloud
an appellant’s argument for reversal “would ordinarily result in waiver,” Alvarez v. Lynch,
828 F.3d 288, 295 (4th Cir. 2016), that result is not valid here. Though the Government’s
response brief is not overly expansive on this point, it does address it, and argues for the
district court’s “well founded” rationale. Response Br. 21–22.
3
Cloud asserts that the district court clearly erred in finding that he “ignored” this
request. J.A. 144. We discern no such error, as Cloud’s challenge is merely one of
semantics. Officer Jenkins’ body camera footage shows that Cloud was, at most, one car
length away from him when he gave that order. Although Cloud’s back was facing Officer
Jenkins, he spoke loudly enough that Cloud would have heard the order. Instead, Cloud
decided to focus his attention on calling his mother. It was thus not unreasonable, let alone
clearly erroneous, for the court to find that Cloud ignored Officer Jenkins. See United
States v. Martinez-Melgar, 591 F.3d 733, 738 (4th Cir. 2010) (explaining that we may
reverse a factual finding “only . . . where the factual determination[] [is] not supported by
substantial evidence” (citation and internal quotation marks omitted)).
16
a few questions about who occupied Room 110, which Cloud answered, 4 but Cloud shortly
thereafter terminated this sequence by taking the phone back from Officer Skipper. He then
resumed his phone conversation with his mother and walked away from Officer Skipper
again without restraint or hinderance. Only when Officer Jenkins announced the retrieval
of the gun under Cloud’s seat and police sought to detain him did Cloud resist and attempt
to flee. The crux of Cloud’s pattern of conduct here is the same that compelled affirmance
in Stover: Cloud’s “initial action was not to cooperate with police and answer their
questions,” but instead to “disobey[] a police order” to hang back with an officer, and
conduct himself the way that he, not police, desired. 808 F.3d at 999.
Cloud argues that our decision in Black “controls,” and that it compels a finding that
“[o]nce police asked [him] if there were drugs or weapons in the car,” he was seized.
Opening Br. 18, 20–21. We are not persuaded. The “highly material” fact that transformed
the encounter into a seizure in Black was when the officer involved took Black’s
identification card and pinned it to his uniform as another officer frisked the other men in
the group. 707 F.3d at 538. Throughout the encounter, Black was “extremely cooperative”
4
Cloud also argues that the district court made a contrary, clearly erroneous finding:
that throughout the entire encounter, Cloud “refused to speak with Officer Skipper.” J.A.
144. But the court made no such finding. Read in its proper context, the district court found
that after Cloud exited the Dodge and proceeded to pace the sidewalk unrestricted while
speaking with his mother on the phone, Officer Skipper “attempted to talk with [Cloud],
but [Cloud] refused and instead handed [Officer] Skipper his phone and asked [Officer]
Skipper to talk to his mother.” J.A. 140. Officer Skipper’s body camera footage verifies
this chain of events. That Cloud later answered some of Officer Skipper’s questions does
not negate the fact that Cloud initially “refused” to engage with Officer Skipper and,
instead, directed him to speak on the phone with his mother. Id. We thus discern no clear
error in this regard.
17
with officers and remained sitting where he was when officers arrived on the scene, thereby
demonstrating his passive acquiescence to their show of authority. Id. at 535–37 & n.3.
There is no similar “highly material” factor analogous to Black here as Cloud’s
consistent, unfettered movement reflects. That Cloud, like the defendant in Black,
answered some of the questions Officers Jenkins and Skipper posed to him does not render
the district court’s conclusion as to acquiescence clearly erroneous. In some contexts, an
individual’s decision to answer questions that police pose can be probative evidence that
he has passively acquiesced to police authority. Compare, e.g., id. at 535–38 & n.3, with
United States v. Wilson, 953 F.2d 116, 123 (4th Cir. 1991) (holding that, despite the
defendant’s earlier willingness to answer police questioning and consent to being searched,
no seizure occurred until police continued to question him after he “had conveyed an
unequivocal unwillingness to engage in further conversation”). But here, the record amply
supports the view that Cloud did not feel compelled to answer the officers’ questions, as
he selectively chose which to answer, and which to ignore. Indeed, far from the “extreme[]
cooperat[ion]” that signaled passive acquiescence in Black, 707 F.3d at 536–37 & n.3,
Cloud ignored police orders and moved about the scene without restraint, hinderance, or
regard to the officers’ presence.
Especially in cases like this one, “we must be mindful of a trial court’s superior
vantage point” in making factual findings. United States v. White, 549 F.3d 946, 951 (4th
Cir. 2008). Unlike appellate courts, district courts observe the live testimony of the officers
and other individuals involved in an encounter, which allows them to make a community-
specific assessment of “inflections and demeanor, [as well as] the human dimensions and
18
the practical demands in the situations before them.” United States v. Johnson, 599 F.3d
339, 344 (4th Cir. 2010). Here, based on the record currently before us, and giving the
district court the deference it is owed in making this “context-sensitive judgment,” id., we
are convinced that Cloud did not acquiesce to a show of authority by police. We may affirm
the judgment on this ground alone.
C.
Even if we agreed with Cloud that he was seized prior to being physically restrained
by the police, they had a reasonable articulable suspicion that he was engaged in criminal
activity sufficient to warrant his investigatory detention. We review this issue de novo.
United States v. Williams, 808 F.3d 238, 244 (4th Cir. 2015).
Officers must have some “reasonable, articulable suspicion” that an individual is
engaged in criminal activity before making an investigatory detention. Id. at 245 (quoting
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). The reasonable suspicion standard “is a
commonsensical proposition.” United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993).
It is “a less demanding standard than probable cause and requires a showing considerably
less than preponderance of the evidence,” but requires at least “more than an inchoate and
unparticularized suspicion or hunch of criminal activity.” Wardlow, 528 U.S. at 123–24
(internal quotation marks omitted) (quoting Terry, 392 U.S. at 27). We require that officers
“either 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.” Williams, 808 F.3d at 246 (quoting Foster,
634 F.3d at 248). That suspicion must also provide “a particularized and objective basis
19
for suspecting the particular person stopped of criminal activity.” Wingate v. Fulford, 987
F.3d 299, 305 (4th Cir. 2021) (citations omitted). But in the end, “[t]he reasonable
suspicion inquiry ‘falls considerably short’ of 51% accuracy, for . . . ‘[t]o be reasonable is
not to be perfect.” Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020) (second alteration in
original) (internal citations omitted).
We review the totality of the circumstances of a particular encounter to determine
whether officers had a reasonable articulable suspicion to perform an investigatory
detention, looking at the factors supporting the detention both individually and holistically.
See United States v. Arvizu, 534 U.S. 266, 273 (2002); Williams, 808 F.3d at 247. In that
analysis, we owe deference to the reasonable inferences that both the trial court and the
officers involved drew from the underlying facts. See Ornelas v. United States, 517 U.S.
690, 699 (1996) (“A trial judge views the facts of a particular case in light of the distinctive
features and events of the community; likewise, a police officer views the facts through the
lens of his police experience and expertise. The background facts provide a context for the
historical facts, and when seen together yield inferences that deserve deference.”); accord
Lender, 985 F.2d at 154 (“Courts are not remiss in crediting the practical experience of
officers who observe on a daily basis what transpires on the street.”).
The district court’s reasonable suspicion determination rested on four factors: (1)
Officer Jenkins’ having seen L.W. hide a firearm under Cloud’s seat; (2) Cloud’s claim of
control over the Dodge; (3) Cloud being the only adult associated with the Dodge; and (4)
“the time of day and location of the incident.” J.A. 145. Applying the principles noted
20
above, we are satisfied that under these circumstances, the police officers had a reasonable
articulable suspicion of criminal activity particularized to Cloud sufficient to detain him.
First, within fifteen seconds of approaching the Dodge to interact with the
passengers, Officer Jenkins observed L.W. conceal a firearm under the Dodge’s driver’s
seat. This activity, if substantiated in court, could prove unlawful. While North Carolina is
an open carry state (making it lawful to carry a firearm in plain sight in a public place), it
specifically outlaws the concealed carrying of firearms in public places without a permit.
N.C. Gen. Stat. § 14-269(a1)(1)–(2), (c). Such direct observation of potentially unlawful
activity is plainly relevant to a finding of reasonable suspicion. See, e.g., Terry, 392 U.S.
at 27–28.
Second, armed with that contextual knowledge, Officer Jenkins then immediately
observed Cloud voluntarily exit the Brookwood Inn and place himself in the Dodge’s
driver’s seat––the very seat under which L.W. hid the firearm. At this point, the
“commonsense . . . inference[]” for police to draw was that Cloud was the owner, or at
least the one exercising dominion and control over, the Dodge. Glover, 140 S. Ct. at 1188
(quoting Wardlow, 528 U.S. at 125). Indeed, Officer Jenkins later confirmed this fact by
asking Cloud whose car it was. Cloud affirmed that it was his mother’s.
Cloud’s control and possession of the car is especially significant, for it entitled
officers to infer that L.W. could have been handling a firearm that belonged to the occupant
of the Dodge’s driver’s seat: Cloud. North Carolina courts “have held consistently that the
‘driver of a borrowed car, like the owner of the car, has the power to control the contents
of the car.’” State v. Best, 713 S.E.2d 556, 562 (N.C. Ct. App. 2011) (quoting State v.
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Hudson, 696 S.E.2d 577, 583 (N.C. Ct. App. 2010)). Such power over a borrowed car “is
sufficient, in and of itself, to give rise to the inference of knowledge and possession [of a
controlled substance within the car] sufficient to go to the jury.” Id. (quoting Hudson, 696
S.E.2d at 583). Following that logic, the Best court observed that the presence of a firearm
in a borrowed car “standing alone, might be sufficient to permit a reasonable inference that
[the driver] possessed the firearm in question.” Id.; cf. Maryland v. Pringle, 540 U.S. 366,
371–72 (2003) (holding that probable cause existed to arrest all of a vehicle’s occupants
after police discovered cocaine and money over which no occupant claimed possession).
Suffice it to say that, at minimum, North Carolina law permitted officers to infer that Cloud
could have been the owner of a firearm stored under his seat in a car that he controlled. 5
Third, later on in the encounter when Officer Jenkins ordered the remaining
passengers to exit the vehicle, it became obvious that all of the passengers were juveniles.
This fact only cements the reasonableness of the officers’ suspicions regarding Cloud,
because in order to qualify for a concealed carry permit under North Carolina law, a person
must be over the age of twenty-one. N.C. Gen. Stat. § 14-415.12(a)(2). So not only were
5
Attempting to erect a strawman, Cloud cites our decision in Black for the argument
that any potentially illegal conduct that L.W. engaged in cannot be attributed to him. That
argument fails to withstand examination. In the relevant portion of Black that Cloud relies
upon, we rejected officers’ reliance on the so-called “Rule of Two,” an assumption that
because one individual was (lawfully) in possession of a firearm, someone else in his group
must also be in possession of one. 707 F.3d at 540–41. But nowhere in the record is this
concept ever put forward as a justification; it is purely a creation by Cloud. The issue here
was that police suspected that Cloud was the owner, or had dominion and control, of the
gun that Officer Jenkins saw L.W. hide under Cloud’s seat. “Although common sense
suffices to justify this inference,” as we have explained above, “[North Carolina law]
reinforces that it is” a reasonable one. Glover, 140 S. Ct. at 1188; see Best, 713 S.E.2d at
562.
22
officers already justified in suspecting that the firearm hidden under the driver’s seat may
have been Cloud’s given his dominion and control over the Dodge, but now that
justification grew stronger, given that Cloud was the only one who could have potentially
purchased or possessed the firearm through legal means.
Finally, the fact that the encounter took place at night in a high-crime area is a
relevant factor in the totality of the circumstances analysis. Of course, as we have long
recognized, presence in a high-crime area at night is not itself sufficient alone to give rise
to reasonable suspicion of criminal activity. See, e.g., Wingate, 987 F.3d at 306; Curry, 965
F.3d at 331; Black, 707 F.3d at 542. But as Officers Jenkins and Skipper uniformly
testified, the Brookwood Inn is located in between two crime-laden neighborhoods on the
I-85 corridor (the Sugar Creek and Hidden Valley neighborhoods), and the motel itself is
known for having a high propensity for drug- and gun-related crime. So much so, in fact,
that Operation Anvil, a specialized CMPD task force designed to reduce drug- and gun-
related crime around the Sugar Creek neighborhood, encompassed that motel.
Additionally, Officer Skipper testified that Operation Anvil had recently produced two
gun- and/or drug-related arrests at the Brookwood Inn stemming from individuals loitering
in cars. Officers Jenkins and Skipper, and the district court by extension, were thus well-
justified in considering this factor as part of the totality of the circumstances. See Wardlow,
528 U.S. at 124 (“[O]fficers are not required to ignore the relevant characteristics of a
location in determining whether the circumstances are sufficiently suspicious to warrant
further investigation.”); Lender, 985 F.2d at 154 (deeming as relevant both the facts that
23
“officers personally knew that the area they were patrolling had a large amount of drug
traffic,” and that the defendant was present in that area “at nearly 1:00 a.m.”).
Analyzing these facts holistically, we are readily satisfied that the officers had a
reasonable articulable suspicion that Cloud may have been the owner, or had dominion and
control, of the firearm that L.W. hid under Cloud’s seat in the Dodge. As Officer Jenkins
admitted, after searching the Dodge and finding the gun, he “didn’t know” whether the
firearm was Cloud’s or not––all he knew was that “there’s a firearm in a vehicle with four
kids and one adult. Juveniles can’t possess firearms or even purchase one.” J.A. 78. Nor
did officers know whether Cloud was in conformance with North Carolina’s concealed
carry laws at that moment. In these rapidly evolving circumstances––in which the danger
to police officers was heightened by the presence of a firearm within Cloud’s and L.W.’s
reach while each remained in the Dodge––nothing in our precedents required Officers
Jenkins and Skipper to merely “shrug [their] shoulders” to the reasonable possibility that
the firearm was Cloud’s, and that Cloud was illegally concealing that firearm. Lender, 985
F.2d at 154 (alteration in original) (quoting Adams v. Williams, 407 U.S. 143, 145 (1972));
see also Arvizu, 534 U.S. at 277 (“A determination that reasonable suspicion exists . . .
need not rule out the possibility of innocent conduct.”). Accordingly, even if Cloud was
seized at some point before or after he exited the Dodge, there was a particularized and
reasonable articulable suspicion supporting his investigatory detention, meaning that the
eventual seizure of the firearm found on Cloud’s person was lawful.
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IV.
For these reasons, the judgment of the district court is
AFFIRMED.
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