United States v. Irvin Bumpers , 705 F.3d 168 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4689
IRVIN BUMPERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, Senior District Judge.
(4:10-cr-00030-JBF-FBS-1)
Argued: September 20, 2012
Decided: January 16, 2013
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
majority opinion, in which Judge Floyd joined. Judge Diaz
wrote a dissenting opinion.
COUNSEL
ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON
2 UNITED STATES v. BUMPERS
BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, Rodolfo Cejas, II, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Neil H. Mac-
Bride, United States Attorney, Alexandria, Virginia, Kristine
E. Wolfe, Special Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Newport News,
Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Irvin Bumpers was convicted of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). He now
appeals the district court’s denial of his motion to suppress the
firearm that was the basis of his conviction. For the reasons
that follow, we affirm the judgment.
I.
On the evening of December 18, 2009, Newport News
Police Officer R.B. Tinsley was on routine patrol in his police
car. Around 7:30 p.m., his route took him to the intersection
of 27th Street and Chestnut Avenue, the location of a small
shopping plaza occupied mainly by a local convenience store.
In Officer Tinsley’s experience, the shopping plaza was a
"high-drug" and "high-crime area" where "multiple shootings"
and "countless drug arrests" had taken place. Officer Tinsley
considered it to be one of the worst crime spots in the City of
Newport News—an assessment that specifically included the
convenience store’s parking lot. The convenience store had a
particular history of problems with trespassing, leading the
store’s owner to post "no trespassing" signs around the store
and to file a written request for the police to "enforce criminal
UNITED STATES v. BUMPERS 3
violations" on the premises. Officer Tinsley was aware of this
written request on the evening in question.
As he approached the shopping plaza, Officer Tinsley
noticed two men standing next to a pair of garbage dumpsters
"toward the back" of the convenience store’s side parking lot,
off to the north side of the building. The place where the men
were standing was "not even close" to the convenience store’s
front entranceway, which was located on the west side of the
building. There was no indication that the men had shopping
bags or any other items suggestive of recent purchases from
the store.
Officer Tinsley observed the two men standing by the gar-
bage dumpsters for five to ten seconds as he approached the
parking lot. Once he pulled his car into the lot, the men saw
him "almost immediately" and began to walk away at a "fast
pace," trying to "get away from the area." Although their path
took them past the convenience store’s entrance, neither man
made an attempt to enter the store. Instead, their reaction
matched a pattern of previous trespassing conduct in the same
parking lot of which Officer Tinsley was well aware: individ-
uals would stand "around that corner behind the dumpster"
and then "immediately start to walk away" upon seeing a
police officer.
Suspecting that the two men had been trespassing, Officer
Tinsley exited his vehicle and told them that they were not
free to go and that he needed to see their identification. One
of the men disregarded Officer Tinsley’s order, but the other
man stopped: the defendant, Irvin Bumpers.
Bumpers informed Officer Tinsley that his name was
"Aaron Bumpers." The officer ran a records check on that
name, which returned an active warrant. Officer Tinsley
accordingly placed Bumpers under arrest. Bumpers then
informed Officer Tinsley that he had not provided his real
name and that he was actually "Irvin Bumpers." The officer
4 UNITED STATES v. BUMPERS
ran a records check on this second name, which also returned
an active warrant. Officer Tinsley told Bumpers that he was
therefore still under arrest and proceeded to search him inci-
dent to that arrest. The search uncovered a fully-loaded, .38
caliber Special Taurus revolver in the pocket of Bumpers’s
hooded sweatshirt.
A federal grand jury indicted Bumpers for being a felon in
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1). Bumpers filed a pre-trial motion to sup-
press, arguing that the revolver and ammunition were gath-
ered as the result of an unlawful seizure. The district court
held a suppression hearing during which it heard testimony
from Officer Tinsley regarding the circumstances surrounding
his investigatory stop of Bumpers. The court then denied the
motion, ruling that the stop was supported by a reasonable
suspicion that Bumpers was trespassing based on the "high
crime area" where he was found, the fact that he was standing
"near a dumpster on the side of the convenience store" in a
location away from the entrance, his evasive reaction in
"walk[ing] away from the officer at a quick pace," and the
route that he took upon leaving the premises.
Bumpers proceeded to a bench trial where he stipulated to
the elements of the felon-in-possession charge. The court
found Bumpers guilty and sentenced him to forty-two months
in prison. Bumpers now appeals the denial of his motion to
suppress.
II.
The touchstone of the Fourth Amendment inquiry is one of
simple reasonableness. Pennsylvania v. Mimms, 434 U.S. 106,
108-09 (1977) (per curiam). The term itself suggests a bal-
ance. In this case, that balance lies "between the public inter-
est" in basic community safety and "the individual’s right to
personal security free from arbitrary interference by law offi-
cers." United States v. Brignoni-Ponce, 422 U.S. 873, 878
UNITED STATES v. BUMPERS 5
(1975). Where to strike the balance between these two impor-
tant interests is the product of intensive factual inquiry, but
there can be no doubt that the weighing of these respective
values informs the resolution of many a Fourth Amendment
case.
On one side of the scale is the Fourth Amendment’s role in
preserving individual dignity and liberty by shielding citizens
from arbitrary and purposeless police restraints. Thus, for
example, the Supreme Court decisively rejected the argument
raised in Terry v. Ohio that "the Fourth Amendment does not
come into play at all" when a police officer detains someone
in a brief investigatory stop instead of a full-blown arrest. 392
U.S. 1, 19 (1968). The Court instead announced the now-
familiar standard that even a brief investigatory stop is imper-
missible unless the officer’s action is supported by a reason-
able and articulable suspicion, under all the circumstances,
that criminal activity "may be afoot." Id. at 21, 30; see also,
e.g., United States v. Arvizu, 534 U.S. 266, 273 (2002).
Central to the analysis in Terry was the Supreme Court’s
recognition that even a brief police investigatory stop consti-
tutes a "restraint" of an individual’s "freedom to walk away,"
and that such a stop can involve a "serious intrusion upon the
sanctity of the person, which may inflict great indignity and
arouse strong resentment." 392 U.S. at 16, 17. That concern
is surely present with respect to persons who live in the vicin-
ity of a neighborhood convenience store like the one where
Bumpers was found. Simply put, a person has every right to
go about his daily business unobstructed—to do what he
wants when he wants, so long as his actions violate no law.
If such a person is approached by an officer who lacks reason-
able suspicion that the person "has committed or is about to
commit a crime," the Fourth Amendment enables the person
to refuse to "answer any question put to him; indeed, he may
decline to listen to the questions at all and may go on his
way." Florida v. Royer, 460 U.S. 491, 498 (1983) (plurality
opinion).
6 UNITED STATES v. BUMPERS
Animated by this interest in individual dignity and liberty,
the Fourth Amendment operates as a bar against unfounded
police stops. As the Court wrote in Terry, the Fourth Amend-
ment is not satisfied by a mere "inchoate and unparticularized
suspicion or ‘hunch’" of criminal activity. 392 U.S. at 27. The
Supreme Court has accordingly held that when considered
alone, an individual’s mere "presence in an area of expected
criminal activity . . . is not enough to support a reasonable,
particularized suspicion that the person is committing a
crime." Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The
individual’s interest in being free from unjustified police
intrusions thus does not disappear because he may be found
in an area that is susceptible to crime; the interest follows the
individual wherever he or she may go.
But just as the individual liberty interest is critical to the
Fourth Amendment’s reasonableness requirement, so too is
there a weighty interest on the other side of the balance: the
community’s interest in basic public safety. See Terry, 392
U.S. at 15 (observing that the Fourth Amendment should not
be applied in a "rigid and unthinking" way that would "exact
a high toll in human injury and frustration of efforts to pre-
vent crime"). That is to say, the proprietor and customers of
the convenience store in this case share an important stake in
the safety of the area.
The proprietor has a vital interest in ensuring that his store
is a safe place for himself, his employees, and his customers
because, quite simply, his business, and the well-being of
those who work and shop there, depend on it. It is an all too
regrettable fact that many small businesses are unwilling to
locate within—or are driven out of—neighborhoods that are
beset by crime. See Christopher H. Wheeler, Neighborhood
Characteristics Matter When Businesses Look for a Location
15-16 (2006). Indeed, the record in this case shows that the
business immediately next to the convenience store where
Bumpers was found was shuttered right around the time of
Bumpers’s arrest.
UNITED STATES v. BUMPERS 7
It is also unremarkable to observe that a neighborhood con-
venience store can serve as a natural gathering place for drug
dealers. The proprietor here thus took sensible steps to ensure
the safety of his business in response to the high incidence of
crime in the area and the pattern of prior trespassing on his
own property: he posted "no trespassing" signs around the
premises and filed a request asking the police to enforce vio-
lations. The circumstances that drive local merchants in dan-
gerous areas to take such measures are necessarily severe,
since a retailer would ordinarily not want to post "no trespass-
ing" signs for fear of chasing off business. A retailer would
only post such signs, in other words, when the dangers of tres-
passers lurking around the store pose a significantly greater
threat than the risk of chasing customers away.
The store’s patrons likewise have an interest in the safety
of the area. Convenience stores often serve as a hub for local
neighborhoods, a place where many residents—some who
may be elderly and others who may be minors—need to shop
in order to pick up some aspirin or a decongestant, purchase
a quart of milk, or buy a can of soup or box of cereal. Some
customers who patronize stores in disadvantaged neighbor-
hoods may lack access to an automobile. The local conve-
nience store thus takes on heightened importance because of
its accessibility—a fact that in turn heightens the need to
ensure the security of the area. Here it is undisputed that mul-
tiple shootings had taken place at this very site. In such cir-
cumstances, the local resident’s journey to market must not be
one of fear or apprehension that residents of more affluent
communities never have to face.
The dissent protests that by referencing the convenience
store’s undisputed features—its trespassing signs, shuttered
neighbors, multiple shootings and "violent history"—we
appear to give "dispositive weight" to the high-crime nature
of the area in which the stop occurred, post at 20. Not so. The
undisputed fact that this particular convenience store was the
site of multiple shootings and drug crimes is but one consider-
8 UNITED STATES v. BUMPERS
ation (and not the most important one) in our analysis, in
addition to Bumpers’s suspicious location, evasive reaction,
and path of escape. Further, there is no support for the propo-
sition that we are to ignore the circumstances surrounding the
stop—circumstances that are not generalizations about high-
crime areas, but are rather concrete and specific to the very
store in question—and somehow apply the Fourth Amend-
ment in a vacuum. Officers, of course, do not investigate in
vacuums, they investigate in settings. To blind our eyes to
such settings would simply make adjudication ill-informed.
Moreover, to hobble the ability of law enforcement officers
to investigate even objectively suspicious activity raises the
risk of throwing Fourth Amendment reasonableness out of
balance. Recognizing the substantial public interest in com-
munity safety, the Supreme Court has made clear that in the
context of brief investigatory police stops, the "balance
between the public interest and the individual’s right to per-
sonal security tilts in favor of" a reasonable suspicion require-
ment, which is of course "a standard less than probable
cause." Arvizu, 534 U.S. at 273 (internal quotation marks and
citation omitted).
It is important ultimately that neither of these two compet-
ing interests crowd the other out. With that in mind, we turn
to Bumpers’s contentions in this case.
III.
A.
The most precise instrument that the judiciary possesses for
ensuring the proper balance between the interests that under-
gird the Fourth Amendment is the on-the-ground assessment
of district courts. It is the trial judge who renders a particular-
ized ruling as to the reasonableness of a Terry stop based on
the credibility of live testimony given by those involved and,
frequently, first-hand knowledge of the area where the stop
UNITED STATES v. BUMPERS 9
occurred. The dissent asserts, however, that we have given
deference to the district court’s "ultimate legal conclusion,"
post at 26. To the contrary, we have respected only the fact
that one who has heard testimony has an advantage in apprais-
ing and describing the sequence of events that form the basis
of a claim. See Ornelas v. United States, 517 U.S. 690, 700
(1996).
The distinctive competence of district court judges here is
no mere abstraction. It flows from the Supreme Court’s con-
crete admonition to appellate courts to "give due weight to
inferences drawn from [findings of] fact[ ] by resident
judges." Id. at 699; see also Arvizu, 534 U.S. at 273-74, 277.
In noting the obvious point that the question before us is a
mixed question of law and fact subject ultimately to de novo
review, Ornelas, 517 U.S. at 691, 696, the dissent appears to
give little if any weight to the function that a district court
performs. It simply wishes away Ornelas’s express recogni-
tion of that role as "dicta," post at 26. But dispensing with
Supreme Court analysis in this fashion is risky business.
Thus, although the ultimate question of whether reasonable
suspicion existed is of course a "mixed question of law and
fact," that standard does not displace the reality that district
judges find underlying facts and draw inferences that warrant
deference. Ornelas, 517 U.S. at 697, 699. In the words of the
Supreme Court:
A trial judge views the facts of a particular case in
light of the distinctive features and events of the
community . . . . The background facts provide a
context for the historical facts, and when seen
together yield inferences that deserve deference. For
example, what may not amount to reasonable suspi-
cion at a motel located alongside a transcontinental
highway at the height of the summer tourist season
may rise to that level in December in Milwaukee. . . .
The background facts, though rarely the subject of
10 UNITED STATES v. BUMPERS
explicit findings, inform the judge’s assessment of
the historical facts.
Id. at 699. The familiar fact-finding advantages enjoyed by
district courts dovetail with a second reason for respecting
their judgments in this context. By upholding a district court’s
Terry ruling when it is objectively reasonable in light of the
record, appellate courts can best achieve in the aggregate the
very equipoise between individual liberty and public safety
that the Fourth Amendment commands. Slight factual varia-
tions may suggest different results, and respecting the particu-
larized character of the fact-finding process leaves room for
different rulings when the credibility of the officer and/or the
setting of the stop are significantly or even slightly not the
same. A reversal in the face of a trial court’s assessment of
live testimony necessarily carries a heavier hand. There is less
room for the flexibility of fact-finding in future cases and
hence a heightened risk that either personal liberty or public
safety will be unreasonably shortchanged.
It makes sense then in close cases such as this one to accord
some respect to the fact-finder’s advantaged posture and to
proceed narrowly and non-preclusively in rulings of our own.
District judges should continue to scrutinize the situations that
come before them, mindful of our view that variable facts
may lead to variable results—none of which are necessarily
unreasonable so long as the Fourth Amendment balance is
assiduously and conscientiously maintained.
B.
The police conduct challenged in this case is Officer Tins-
ley’s decision to stop Bumpers for the purpose of investigat-
ing whether he was trespassing. It is a stop at issue—not a
frisk and not an arrest—either of which would have required
more than Officer Tinsley had here. "Consideration of the
extent of the intrusion abounds in modern Fourth Amendment
doctrine." United States v. Chaidez, 919 F.2d 1193, 1997 (7th
UNITED STATES v. BUMPERS 11
Cir. 1990). Indeed, it was only upon discovering an active
warrant during the Terry stop, and searching Bumpers inci-
dent to his undisputedly lawful arrest on that warrant, that
Bumpers’s firearm was discovered.
Nor does Bumpers contend that Officer Tinsley stopped
him based on a suspicion that he was a felon in possession of
a firearm, the crime for which he was ultimately convicted.
The facts are clear that the suspicion that gave rise to the chal-
lenged investigatory stop was instead Officer Tinsley’s belief
that Bumpers was engaged in the particular crime of trespass-
ing. Nothing in the Fourth Amendment renders modest mea-
sures in the enforcement of modest infractions impermissible.
See Atwater v. City of Lago Vista, 532 U.S. 318 (2001).
With that in mind, several factors prevent us from conclud-
ing that the district court erred reversibly in its judgment that
Officer Tinsley possessed a reasonable suspicion that Bump-
ers was trespassing at the time of the Terry stop. In reaching
this decision, we are cognizant of the Supreme Court’s obser-
vation that factors that may be "susceptible of innocent expla-
nation" when taken in isolation can combine to "form a
particularized and objective basis" for a stop when considered
together. Arvizu, 534 U.S. at 277-78; see also United States
v. Glover, 662 F.3d 694, 698 (4th Cir. 2011). And because the
district court denied Bumpers’s motion to suppress, "we con-
strue the evidence in the light most favorable to the Govern-
ment" on appeal. United States v. Hernandez-Mendez, 626
F.3d 203, 206 (4th Cir. 2010).
First, although the high-crime nature of the area in which
a stop is performed is plainly not alone enough to support a
reasonable suspicion of criminal activity, it is one of "the rele-
vant contextual considerations" that a court may credit in a
Terry analysis. Wardlow, 528 U.S. at 124. In this case, Officer
Tinsley testified during the suppression hearing that the con-
venience store where he observed Bumpers and his compan-
ion was part of a shopping plaza where "multiple shootings"
12 UNITED STATES v. BUMPERS
and "countless drug arrests" had taken place. Indeed, the very
place where Bumpers was standing was an area where tres-
passers were commonly found. Officer Tinsley was keenly
aware of the area’s criminal history on the evening in ques-
tion, in no small part because the store owner had filed a for-
mal request with the police to "enforce criminal violations" on
the premises.
Second, the particular location and manner in which Bump-
ers and the other man were standing suggested that they may
have been engaged in the specific, ongoing crime of trespass-
ing. Officer Tinsley testified that as he pulled his patrol car
into the convenience store parking lot, he observed Bumpers
and the second man standing next to a pair of garbage
dumpsters—off to the north side of the store in a location "not
even close" to the store’s west side entrance—for five to ten
seconds. The area where the men were standing was posted
"no trespassing," and Officer Tinsley could legitimately note
that a dumpster in a completely different place from the
store’s entrance was not a natural spot for customers to be just
standing around. Moreover, no evidence was presented during
the suppression hearing suggesting that Bumpers or the other
man were carrying shopping bags or any other items that
would have indicated that they had been lawful patrons of the
store.
Third, Bumpers’s "evasive behavior" upon seeing Officer
Tinsley’s patrol car was another "pertinent factor" that con-
tributed to the reasonable suspicion determination. Wardlow,
528 U.S. at 124. In Wardlow, the Supreme Court held that a
defendant’s flight upon seeing a police car in a high-crime
area was enough to create a reasonable suspicion of criminal
activity sufficient to justify a Terry stop. 528 U.S. at 124-25.
Here, as in Wardlow, Bumpers acted to evade the police upon
noticing a patrol car in a high-crime area. As Officer Tinsley
testified, "[a]s soon as they noticed" the patrol car, Bumpers
and the other man reacted by walking away "at a fast pace."
And although Bumpers’s reaction may not have been the type
UNITED STATES v. BUMPERS 13
of headlong flight that occurred in Wardlow, case law is clear
that "[e]vasive conduct, although stopping short of headlong
flight," is still an important factor for a court to consider when
making a reasonable suspicion determination. United States v.
Lender, 985 F.2d 151, 154 (4th Cir. 1993); see also, e.g.,
Wardlow, 528 U.S. at 124; United States v. Sharpe, 470 U.S.
675, 682 n.3 (1985).
Bumpers’s attempt to dodge the police created suspicion in
a way that was not present in United States v. Foster, 634
F.3d 243, 247 (4th Cir. 2011), and United States v. Massen-
burg, 654 F.3d 480, 493 (4th Cir. 2011). In those cases, the
defendants in no way sought to evade the police officers, but
rather acknowledged and spoke with them, something that
cannot be said of Bumpers. Moreover, Bumpers’s evasive
conduct added to Officer Tinsley’s suspicion of criminal
activity in another important respect beyond that which was
present in Foster, Massenburg, and Wardlow. Here, Bump-
ers’s attempt to evade the police by leaving the premises at a
"quick pace" amounted to the termination of the very crime
of trespassing that the officer sought to investigate—a factor
that was not present in the other cases. Officer Tinsley even
testified that Bumpers’s reaction was consistent with a pattern
of evasive activity that trespassers routinely engaged in at that
exact location: "[E]verybody does the same thing in this area
. . . they are back there on the—around that corner behind the
dumpster [and] they immediately start to walk away" upon
seeing the police.
In addition, Bumpers’s attempt to quickly vacate the prem-
ises and evade the police was suspicious in another regard: it
was conduct more consistent with that of a trespasser than that
of a lawful customer of the convenience store. The distinction
is relevant because customers of the store are not trespassers,
but rather invitees who have permission to be on the premises.
See Va. Code Ann. § 18.2-119. Unlike a trespasser, most cus-
tomers would have had little reason to do what Bumpers did:
14 UNITED STATES v. BUMPERS
vacate the area "at a fast pace" immediately upon seeing the
police.
Finally, Officer Tinsley testified that when Bumpers left
the premises, he took a path that led him past the convenience
store’s front door—and yet he made no effort to enter. This
route did nothing to dispel the officer’s suspicion that Bump-
ers was neither a prior nor future lawful customer of the store.
That is, the fact that Bumpers walked at a "quick pace" right
by the entrance without entering suggested that he had not
been standing by the dumpsters with some intention to shop
at the store in the future. The route also made it unlikely that
Bumpers had been a customer at the store immediately prior
to seeing Officer Tinsley, because if that were so, it would
have made little sense for him to exit the store heading in one
direction (north, towards the side parking lot) only to then
double back and retrace his steps in the opposite direction
when it came time to leave. In other words, as the district
court noted, Bumpers walked away from the spot where he
was standing at a "quick pace," in exactly the reverse direc-
tion that he would have taken had he actually earlier left the
store as a legitimate customer.
In sum, the totality of these factors—each of which the trial
judge considered carefully in his ruling—supports the district
court’s conclusion that the officer had a reasonable suspicion
that Bumpers was trespassing. To reverse the district court in
light of these facts would impose a significant barrier to
efforts to investigate trespassing violations in local shopping
markets where security is critical. If the precise place had a
less violent history, if the officer’s testimony had been less
credible, if the evasive action had been less apparent, if the
pattern of trespassing had been less consistent, a different
result might obtain. As it is, a reversal of sound fact-finding
risks signaling an unwarranted sanctuary for behavior to
which the proprietors, employees, and patrons of neighbor-
hood convenience stores should not be subject.
UNITED STATES v. BUMPERS 15
C.
Bumpers argues that reversing the district court in this case
would not disable police efforts to protect public safety
because officers could instead initiate voluntary police-citizen
encounters to determine whether a suspected trespasser had
lawful business at a store. That suggestion overlooks reality.
Consensual encounters may do little to prevent trespassers
from leaving the premises upon noticing the police, only to
return once the police have left.
Not to worry, Bumpers suggests, because the voluntary
police encounter tactic can be supplemented by an approach
in which reasonable suspicion of criminal activity may be
found where store owners or customers place specific calls to
the police indicating that a crime has occurred. But that too
fails to recognize the reality of life in crime-ridden neighbor-
hoods. To require a business owner or customer to personally
investigate and then accuse every suspicious person who lurks
outside a store would place the person doing the investigating
and making the call at needless personal risk.
Bumpers’s argument also fails for the simple reason that it
has been considered and rejected by the Supreme Court. His
argument is at bottom that Officer Tinsley’s decision to stop
him for investigatory purposes was unreasonable because
other less intrusive investigatory techniques could have been
used instead. Yet in United States v. Sokolow, the Supreme
Court explained that "[t]he reasonableness of the officer’s
decision to stop a suspect does not turn on the availability of
less intrusive investigatory techniques. Such a rule would
unduly hamper the police’s ability to make swift, on-the-spot
decisions . . . and it would require courts to indulge in unreal-
istic second-guessing." 490 U.S. 1, 11 (1989) (internal quota-
tion marks omitted). Officers must still, of course, be held
16 UNITED STATES v. BUMPERS
accountable and required to explain to courts their actions,
and the trial judge made sure that happened here.*
IV.
On the facts before us and for the reasons given, we affirm
the judgment of the district court.
AFFIRMED
DIAZ, Circuit Judge, dissenting:
While on routine patrol, Newport News Police Officer R.B.
Tinsley observed Irvin Bumpers for five to ten seconds stand-
ing next to another man by the side of an open convenience
store near a dumpster. The store was located in a high-crime
area. The store owner had posted "no trespassing" signs and
had also asked the police to enforce a no trespassing policy.
When Officer Tinsley approached, Bumpers quickly walked
away before being stopped.
These facts are as undisputed as they are insufficient to
establish a reasonable, particularized suspicion that criminal
*The dissent worries that upholding the stop in this case might "encour-
age some officers to make race-based stops under the pretense of policing
high-crime areas." Post at 20. It is surely true that race-based stops occur
and that they should be universally condemned. But race was not a factor
in this case, and our friend in dissent appears to agree, post at 20 n.*.
Thus, the district court analyzed the stop here by looking to objective fac-
tors such as Bumpers’s location, his attempt to evade the police, the path
he took in doing so, and the violent history of this specific site. Moreover,
to view this matter through a racial lens would miss a large and important
point. This case is about balancing the right of every individual in every
neighborhood to avoid arbitrary police infringement on his liberty with the
ability of law enforcement to ensure that every citizen of this country can
exercise such basic liberties as visiting a local convenience store free from
the threat of shooting and drug-related violence. Both of these are free-
doms that Americans of every race and every background ought to be able
to enjoy.
UNITED STATES v. BUMPERS 17
activity was afoot. See Terry v. Ohio, 392 U.S. 1, 27, 30
(1968). Permitting a Terry stop under these tenuous circum-
stances fails to prevent a substantial portion of innocent trav-
elers in high-crime areas from being subjected to what the
majority concedes can be a degrading and unwarranted intru-
sion. Maj. Op. at 5. Because I cannot square such a result with
the dictates of the Fourth Amendment, I respectfully dissent.
I.
A.
The district court summarized the underlying facts, which
are undisputed, as follows:
On December 18, 2009, at approximately 7:30 p.m.,
Officer Tinsley was on patrol in the area of a conve-
nience store located at 2610 Chestnut Avenue in
Newport News, Virginia. While on patrol, Officer
Tinsley observed the defendant standing with
another man on the side of the convenience store
nearby a trash dumpster.1 As Officer Tinsley entered
the parking lot, the defendant and his companion
noticed Officer Tinsley’s squad car and began to
quickly walk away from the area. Officer Tinsley
then exited his vehicle, told the defendant he was not
free to leave due to possible trespassing, and asked
to see the defendant’s identification.2 The defendant
1
Officer Tinsley testified that he observed the defendant standing in this
location for five to ten seconds, and did not see the defendant or the other
man enter or leave the convenience store, which was open for business at
the time these events took place. Officer Tinsley also testified that the con-
venience store is located in a high crime area. Specifically, Officer Tinsley
noted that the convenience store is located in one of the worst "drug neigh-
borhoods" in Newport News. Officer Tinsley also noted that shootings fre-
quently occur in this area.
2
At the time these events took place, the convenience store parking lot
was posted "No Trespassing," and a letter requesting the police to enforce
a no trespassing policy was on file with the Newport News Police Depart-
ment.
18 UNITED STATES v. BUMPERS
stated that he did not have any identification and told
Officer Tinsley that his name was Aaron Bumpers.
Officer Tinsley then ran a check on the name "Aaron
Bumpers," which revealed an outstanding warrant.
When Officer Tinsley informed the defendant of the
warrant, the defendant notified Officer Tinsley of his
true name. Officer Tinsley ran a check on the defen-
dant’s true name, discovered an active warrant, and
arrested the defendant. During a search incident to
arrest, Officer Tinsley found a loaded .38 caliber
revolver in the defendant’s pocket. Officer Tinsley
advised the defendant of his Miranda rights[,] and
the defendant confirmed that he understood those
rights. The defendant then told Officer Tinsley that
he and his friend were "rolling dice" and "smoking
weed" next to the dumpster.
J.A. 68-69.
Bumpers moved to suppress evidence of the firearm. The
district court held that Officer Tinsley had reasonable suspi-
cion to stop Bumpers based on (1) Bumpers’s presence in a
high-crime area; (2) the store’s "no trespassing" sign; and (3)
Bumpers’s reaction to Officer Tinsley’s approach.
B.
In considering the district court’s ruling on a motion to sup-
press, we review the court’s factual findings for clear error.
United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011). In
addition, we "give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers."
United States v. Humphries, 372 F.3d 653, 657 (4th Cir.
2004) (internal quotation marks and citation omitted). How-
ever, "the ultimate questions of reasonable suspicion and
probable cause to make a warrantless search should be
reviewed de novo." Ornelas v. United States, 517 U.S. 690,
691 (1996) (emphasis omitted).
UNITED STATES v. BUMPERS 19
Whenever a police officer restrains an individual’s freedom
to walk away, he has "seized" that person for Fourth Amend-
ment purposes. Terry, 392 U.S. at 16. Brief, investigatory
stops are justified "where a police officer observes unusual
conduct which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot." Id. at 30.
But an "inchoate and unparticularized suspicion or ‘hunch’"
is not a permissible basis for a Terry stop. Id. at 27. Moreover,
"[t]hough the facts need not give rise to probable cause, the
officer must be able to articulate an objectively reasonable
suspicion of criminal activity" sufficient to justify the stop.
United States v. Hernandez-Mendez, 626 F.3d 203, 207 (4th
Cir. 2010) (citing United States v. Arvizu, 534 U.S. 266, 274
(2002)).
We examine "the totality of the circumstances in order to
determine whether officers had a ‘particularized and objective
basis for suspecting the person stopped of criminal activity.’"
Id. at 207–08 (quoting United States v. Cortez, 449 U.S. 411,
417-18 (1981)). "The reasonable suspicion inquiry is fact-
intensive, but individual facts and observations cannot be
evaluated in isolation from each other." Id. at 208. An offi-
cer’s articulated facts must in their totality serve to exclude a
substantial portion of innocent travelers before reasonable
suspicion will exist; otherwise, innocent individuals will be
subject to "virtually random seizures." Reid v. Georgia, 448
U.S. 438, 441 (1980); see also United States v. Digiovanni,
650 F.3d 498, 511 (4th Cir. 2011).
C.
Here, the circumstances found by the district court are
insufficient to support Officer Tinsley’s decision to stop
Bumpers. The government and the majority rely heavily on
the district court’s finding that Bumpers was in a high-crime
area. Both, however, give this factor more weight than it can
bear. "An individual’s presence in an area of expected crimi-
nal activity, standing alone, is not enough to support a reason-
20 UNITED STATES v. BUMPERS
able, particularized suspicion that the person is committing a
crime . . . ." Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
And while a court may consider this factor as one of many in
the totality-of-the-circumstances inquiry, id., the majority
appears to give it dispositive weight, noting that the result
might be different "[i]f the precise place had a less violent his-
tory." Maj. Op. at 14.
The Supreme Court has found reasonable suspicion where
an individual’s presence in a high-crime area is coupled with
headlong flight, noting that such flight is the "consummate act
of evasion." See Wardlow, 528 U.S. at 124. But affirming the
district court here, where Bumpers simply walked away from
the officer, sets an even lower bar for permitting stops in
high-crime areas. We should be especially cautious in sanc-
tioning this result because it poses constitutional concerns
beyond the Fourth Amendment.
I have great respect for police officers, the vast majority of
whom perform incredibly tough jobs with great honor and
professionalism. But placing the judicial imprimatur on the
stop conducted here, when a stop under similar circumstances
would likely be impermissible elsewhere, may encourage
some officers to make race-based stops under the pretense of
policing high-crime areas.*Cf. United States v. Avery, 137
F.3d 343, 355 (6th Cir. 1997) ("If law enforcement adopts a
policy, employs a practice, or in a given situation takes steps
to initiate an investigation of a citizen based solely upon that
citizen’s race, without more, then a violation of the Equal Pro-
tection Clause has occurred."). Simply put, while the location
of the stop is a relevant consideration, it does not excuse
police officers from articulating a reasonable suspicion spe-
cific to the particular individual stopped. See Hernandez-
Mendez, 626 F.3d at 207-08.
*I do not suggest that Officer Tinsley acted with such a motive in this
case, but merely observe that potential collateral consequences caution
against concluding that reasonable suspicion may be based on neighbor-
hood characteristics and little else.
UNITED STATES v. BUMPERS 21
The government relies on two Virginia state cases that it
claims lend substantial weight to a defendant’s location when
stopped on suspicion of trespassing. In particular, the govern-
ment directs our attention to Joyce v. Commonwealth, 696
S.E.2d 237 (Va. Ct. App. 2010), where the court held that an
officer had probable cause to perform a search incident to
arrest when the officer observed a defendant standing at the
side of a convenience store, the store had posted a "no tres-
passing" sign, and the officer witnessed a hand-to-hand
exchange between the defendant and another man. Joyce,
however, is readily distinguishable because the officer in that
case (1) first spoke with the defendant to obtain additional
information before seizing him; and (2) observed a hand-to-
hand exchange between the defendant and another man, indi-
cating both that the defendant was not lawfully on the prop-
erty and that he might be engaged in a drug transaction. Id.
at 242.
The government also relies on Raab v. Commonwealth, 652
S.E.2d 144 (Va. Ct. App. 2007), where the court held that an
officer had reasonable suspicion to perform a Terry stop after
observing that the defendant was parked in a restaurant park-
ing lot at 12:40 a.m. that had "for patrons only" signs posted
and attempted to drive off upon seeing the police. Id. at 146.
In that case, however, the restaurant was closed, thus leading
to the reasonable inference that the defendant was not likely
a patron. In contrast, Bumpers was standing in the parking lot
of a convenience store during normal operating hours.
A more apt Virginia state case is Harris v. Commonwealth,
551 S.E.2d 606, 607 (Va. 2001), where a police officer
received an anonymous tip that an armed African-American
man was selling drugs in an area posted "no trespassing." The
Supreme Court of Virginia held that a Terry stop of the defen-
dant was unconstitutional because "the mere presence of an
unknown individual on the property of a large housing devel-
opment does not create a reasonable suspicion that such an
individual is engaged in trespassing or some other criminal
22 UNITED STATES v. BUMPERS
activity." Id. at 417. Likewise, Officer Tinsley merely
observed Bumpers for a few seconds standing adjacent to an
open convenience store, and he did nothing to determine
whether Bumpers was lawfully on property open to the public
before stopping him.
Both the government and the majority also rely on the dis-
trict court’s finding as to the direction and manner in which
Bumpers walked away from Officer Tinsley. In particular,
both contend that Bumpers’s reaction was not that of a store
patron, thereby supporting a reasonable suspicion of trespass-
ing. See J.A. 17; Maj. Op. at 13.
Admittedly, when a person displays "evasive behavior," his
conduct is relevant to the reasonable suspicion analysis.
Wardlow, 528 U.S. at 124. But it is also true that "when 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." Id. at 125. That is pre-
cisely what happened here, as Officer Tinsley simply did not
have a sufficient basis for reasonably suspecting Bumpers of
any offense in the five to ten seconds that he saw Bumpers
standing in the parking lot.
Another Virginia state case is instructive on this point. In
Ewell v. Commonwealth, 491 S.E.2d 721 (Va. 1997), the
Supreme Court of Virginia held that a police officer did not
have a reasonable suspicion to stop a defendant for trespass-
ing under the following circumstances: at 12:30 a.m. the offi-
cer observed an unfamiliar automobile in the parking lot of an
apartment complex that was known for drug trafficking, and
the automobile (driven by Ewell) exited the parking lot when
the police officer arrived. According to the court, "nothing
about Ewell’s conduct was suspicious. Indeed, Ewell acted as
any other person might have acted under similar circum-
stances." Id. at 723. But for the fact that Bumpers was on foot,
I see no material difference between the record before us and
UNITED STATES v. BUMPERS 23
the circumstances found woefully lacking in Ewell on the
question of reasonable suspicion.
In fact, the circumstances here are at least as unpersuasive
as those we have previously held insufficient to create a rea-
sonable suspicion. For example, in Foster, we held that a
Terry stop was not justified where the officer observed the
defendant—whom the officer knew had a prior criminal
record—suddenly jump from a crouched position and move
his arms in a "frenzied" manner towards the floor of the vehi-
cle upon seeing the officer. 634 F.3d at 246-47. Likewise, in
United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997), we
held that there was no reasonable suspicion where the officer
spotted the defendant in a high-crime area huddled next to a
convicted drug dealer with their hands together, the defendant
attempted to hide his face from the officer as he walked past
the vehicle, and the defendant acted evasively by driving off
as soon as the officers passed. Finally, in United States v.
Massenburg, 654 F.3d 480 (4th Cir. 2011), we concluded that
reasonable suspicion was absent where an individual was
observed several blocks from where gunfire had been heard
and nervously declined a consensual request for a pat down.
While the result in each of these cases is admittedly fact-
specific, together they illustrate that reasonable suspicion
requires more than this record contains.
The majority attempts to distinguish Foster and Massen-
burg on the ground that the defendants in those cases
acknowledged and spoke to the police officers. This, how-
ever, is an immaterial distinction because a person is not obli-
gated to speak to law enforcement. See Maj. Op. at 5
(acknowledging that an individual has a right "to refuse to
‘answer any question put to him; indeed, he may decline to
listen to the questions at all and may go on his way.’" (quot-
ing Florida v. Royer, 460 U.S. 491, 498 (1983) (plurality
opinion))).
Nor is this case different because, as the majority contends,
Bumpers’s departure terminated the suspected trespassing
24 UNITED STATES v. BUMPERS
offense. Except to the extent that Bumpers’s attempt to leave
the store parking lot might be characterized as minimally eva-
sive, I fail to see how that fact is at all relevant; either Officer
Tinsley had reasonable suspicion to stop Bumpers for tres-
passing, or he did not. If anything, Foster and Massenburg
present more compelling cases for a valid Terry stop because
the suspected crimes were more serious and posed potential
threats to public safety, factors absent when someone is sus-
pected of trespassing in the parking lot of an open conve-
nience store. Cf. United States v. Price, 599 F.2d 494, 500 (2d
Cir. 1979) ("The need for a stop depends upon factors such
as the seriousness of the offense suspected [and] the conse-
quences of delay on the part of the officers . . . ."). In this con-
text, the crime being investigated matters. Thus, if Tinsley
had witnessed a hand-to-hand exchange indicative of a drug
transaction, or if he had observed a suspicious bulge indica-
tive of a concealed weapon, the stop would likely have been
justified regardless of the length of observation.
Officer Tinsley, however, saw Bumpers standing in the
parking lot of an open convenience store for a matter of sec-
onds before walking away quickly as the officer approached.
Although there is no bright-line rule for how long an officer
must observe an individual’s conduct before initiating a stop,
if called to account, the officer must be able to articulate facts
sufficient to separate a large number of innocent travelers
from intrusion. Reid, 448 U.S. at 441; Digiovanni, 650 F.3d
at 511. With all due respect to my colleagues, that dividing
line is nowhere to be found in the majority’s holding.
There are any number of reasons why someone might be
standing in a parking lot adjacent to an open convenience
store. As Bumpers notes, "[i]t would hardly be remarkable for
a patron to linger [a few seconds] after making a purchase, or
to contemplate whether to go in the store at all, or for a pedes-
trian to chat with a friend whom he saw on the street, or to
ask someone for directions, or simply to catch his breath
while walking home." Appellant’s Br. at 16. Reviewing the
UNITED STATES v. BUMPERS 25
district court’s legal conclusions de novo, I would hold that
Officer Tinsley had nothing more than a mere "inchoate and
unparticularized suspicion or ‘hunch’" of criminal activity.
Terry, 392 U.S. at 27. Because the Fourth Amendment and
our cases require more, I would reverse the district court’s
judgment.
II.
Two pervasive errors lead my colleagues to hold otherwise:
(1) they fail to apply the applicable de novo standard of
review; and (2) they improperly weigh a policy consideration
that has no place in our analysis of whether the stop was
proper.
A.
De novo review applies to the ultimate question of whether
reasonable suspicion supported Bumpers’s seizure. Ornelas,
517 U.S. at 691. But the majority here is content to "uphold[ ]
a district court’s Terry ruling when it is objectively reasonable
in light of the record," suggesting that variations in such rul-
ings are not "necessarily unreasonable so long as the Fourth
Amendment balance is assiduously and conscientiously main-
tained." Maj. Op. at 10.
The majority’s analysis, however, bears a striking resem-
blance to the standard rejected in Ornelas. There, the
Supreme Court declined to adopt a "policy of sweeping defer-
ence" to district court rulings that "would permit, [i]n the
absence of any significant difference in the facts, the Fourth
Amendment’s incidence [to] tu[rn] on whether different trial
judges draw general conclusions that the facts are sufficient
or insufficient to constitute probable cause." 517 U.S. at 697
(internal quotations omitted, alterations in original). Accord-
ing to the Court, such a result "would be inconsistent with the
idea of a unitary system of law" and "unacceptable." Id.
26 UNITED STATES v. BUMPERS
Yet the majority clings to dicta from Ornelas concerning
appellate review of factual findings and inferences drawn
from those findings to justify its decision to defer to the dis-
trict court’s ultimate legal conclusion, despite the absence of
any factual disputes in this record. This, in my view, improp-
erly gives district courts carte blanche to determine whether
a Fourth Amendment violation has occurred and abdicates our
duty to independently review such legal determinations. Id.
The majority also suggests that by failing to defer generally
to district court rulings on Terry stops, this court would allow
"less room for the flexibility of fact-finding in future cases
and hence a heightened risk that either personal liberty or
public safety will be unreasonably shortchanged." Maj. Op. at
10. I see little merit to this concern because the facts of Terry
stop cases are generally sui generis, and we properly accord
substantial deference to a district court’s factual findings. As
a result, the cases do not lend themselves easily to broad hold-
ings, and so are not likely to inflexibly hamper the district
courts. Far more troubling is the threat to individual liberties
when we fail to exercise our own judgment in deciding
whether law enforcement has unlawfully subjected a person
to an unconstitutional intrusion.
B.
In addition to failing to apply the correct standard of
review, the majority stretches the totality-of-the-
circumstances test beyond its proper limit. When assessing a
Fourth Amendment violation, courts generally review "the
circumstances known to the officer and ‘the specific reason-
able inferences which he is entitled to draw from the facts in
light of his experience.’" United States v. Smith, 396 F.3d
579, 583 (4th Cir. 2005) (quoting Terry, 392 U.S. at 27). But
to lend further support to the stop in this case, the majority
also opines on the role of public safety in fostering the eco-
nomic viability of convenience stores in urban areas, without
UNITED STATES v. BUMPERS 27
citation to any authority except a policy paper from the Fed-
eral Reserve Bank of St. Louis. See Maj. Op. at 6-7.
To my knowledge, no court has heretofore applied a ver-
sion of Fourth Amendment "lite" based on the socio-
economic needs of the community where a stop occurs. To
the contrary, all persons should expect that courts will honor
their right to be free from unreasonable seizures "whether he
or she is one of the most affluent or most vulnerable members
of our community." Foster, 634 F.3d at 249. Any lesser stan-
dard "has the necessary effect of legitimizing the [unlawful]
conduct which produced the evidence," Terry, 392 U.S. at 13,
a result we should not condone.
III.
In my view, the district court erred in concluding that Offi-
cer Tinsley had a reasonable suspicion to stop Bumpers for
trespassing. Accordingly, I respectfully dissent.