US v. James Bryant, Jr.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:15-cr-00099-JAB-1. Copies to all parties and the district court/agency [999890963]. [15-4618]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4618

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LEWIS BRYANT, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:15-cr-00099-JAB-1)

Submitted:

April 26, 2016

Decided:

July 19, 2016

Before KING, WYNN, and DIAZ, Circuit Judges.

Reversed, vacated, and remanded by unpublished opinion.
Judge
Diaz wrote the opinion, in which Judge King and Judge Wynn
joined.

Benjamin D. Porter, MORROW PORTER VERMITSKY FOWLER & TAYLOR,
PLLC, Winston-Salem, North Carolina, for Appellant.
Ripley
Rand, United States Attorney, Graham T. Green, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DIAZ, Circuit Judge:
James Lewis Bryant, Jr., entered a conditional guilty plea
to

being

a

prohibited

person

in

possession

of

a

firearm,

reserving the right to appeal the district court’s denial of his
motion to suppress evidence of a firearm recovered after a Terry 1
stop.

He argues that the stop violated his Fourth Amendment

rights because the police lacked reasonable suspicion that he
was

engaged

reverse

the

in

criminal

district

activity.

court’s

denial

We

agree

of

and

Bryant’s

therefore
motion

to

suppress, vacate his conviction and sentence, and remand for
further proceedings.

I.
A.
On September 4, 2014, the police in Winston-Salem, North
Carolina, received an anonymous tip that ultimately led to the
discovery of the evidence Bryant seeks to suppress.

The tipster

told the police to “check for” Bryant at Wingz & Spiritz, a
restaurant/bar in downtown Winston-Salem, because Bryant had a
gun inside a brown satchel.

J.A. 25–26.

In providing the

police with this information, the tipster gave Bryant’s full

1

Terry v. Ohio, 392 U.S. 1 (1968).

2

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name and his date of birth.

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The tipster also described Bryant’s

appearance and said he was a felon.
Officer David Walsh was dispatched to Wingz & Spiritz, but
before

heading

there,

he

researched

Bryant

on

his

computer.

Walsh reviewed Bryant’s mugshot, learned his height and weight,
and confirmed that the tipster correctly relayed Bryant’s full
name

and

date

of

birth.

Walsh

indicator[] . . . noting

[Bryant]

registered sex offender.”

also

as

a

saw

a

“caution

convicted

felon,

J.A. 26.

Walsh then walked to Wingz & Spiritz where he found Bryant, 2
who matched the tipster’s description in all respects except
that

he

was

satchel.
instead

wearing

Initially,
to

make

small

a

silver

Walsh
talk

backpack

did

not

with

a

rather

approach
restaurant

than

a

Bryant,
employee

brown
opting
while

observing Bryant’s behavior for “his reaction to [Walsh] as a
uniformed officer.”
Eventually,

J.A. 27. 3

Walsh

approached

somebody called the police on him.

Bryant

and

told

him

that

According to Walsh, Bryant

then “seemed like he started to walk away” but then turned back,

2

All of Walsh’s actions from this point forth were recorded
on his body camera.
3

While the district court said that “Officer Walsh stated
that he felt [Bryant] was acting nervous during this time,” J.A.
53, we do not find such testimony in the record.

3

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“sp[eaking] . . . in

a

low

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whisperish-type

voice.”

J.A.

28.

This tone of voice made Walsh “even more suspicious” because, in
his experience, people who “have just been caught or are in
trouble” will often become “really animated and shouting as kind
of a distraction or sometimes . . . they’ll lower their voice
and talk real low in a whisper.”

J.A. 28.

Bryant then sat on a bench.

Walsh observed that “when he

sat down his right arm, he had it pinned to his body and he sat
down real slow, kind of stunned.”

J.A. 28.

Based on this and

his interaction with Bryant so far, Walsh was left with the
overall impression that “this guy is really nervous and I don’t
think he wants to be—I don’t think he likes being around me.”
J.A. 28.
Walsh

next

told

Bryant

that

the

person

who

police on him reported that he might have a gun.

called

the

Walsh asked

Bryant if this report was true, to which Bryant responded, “No.”
J.A. 28.
are you?”
caller

Next, Walsh said, “You’re not supposed to have a gun,
J.A. 28.

told

the

Bryant agreed.

police

that

Walsh then said that the

Bryant’s

gun

was

inside

his

backpack, which Bryant denied.
Walsh next asked, “[C]an you open your backpack and show me
you don’t have a gun in there, please?”

J.A. 29.

Bryant then

took his backpack off his shoulder, placed the backpack on the
bench space next to him, and began reaching into the bag.
4

In

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doing this, Bryant had his back toward Walsh.

Walsh, fearful

that he could be shot, said, “Don’t put your hand in there.
I’ll do it for you.”

J.A. 30.

Walsh then took control of the bag, feeling “a centralized
heavy weight” that was “similar to what a handgun would weigh.”
J.A. 30, 41.

Bryant continued to deny that there was a gun

inside of the bag, but ultimately Walsh recovered a revolver.
Bryant was then arrested.
B.
Bryant was indicted for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

He

moved to suppress evidence of the revolver, asserting a Fourth
Amendment

violation

based

on

Florida

v.

J.L.,

529

U.S.

266

(2000) (holding that an unreliable anonymous tip that someone
was carrying a gun, without more, did not justify a Terry stop). 4
The district court denied Bryant’s motion.
Walsh

had

reasonable

suspicion

that

Bryant

It found that
was

engaged

criminal activity, justifying Walsh’s seizure of Bryant.

in
The

court based its conclusion on (1) the anonymous tip; (2) Walsh’s

4

Bryant maintained that he did not consent to a search and
that his interaction with Walsh was no longer consensual when
Walsh ordered him to keep his hands out of his bag.
The
district court agreed, and the government does not challenge
this finding on appeal.

5

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corroboration of details given in the tip, including the fact
that Bryant was a felon; and (3) Bryant’s nervous behavior.
Bryant then entered a conditional guilty plea, preserving
his

right

suppression

to

challenge

motion.

the

The

district

court

court’s

sentenced

denial

of

to

months’

him

21

his

imprisonment followed by three years of supervised release.
This appeal followed.

II.
The

only

issue

on

appeal

is

whether

Walsh’s

seizure

of

Bryant was justified—that is, whether Walsh violated the Fourth
Amendment when he ordered Bryant to keep his hands out of his
backpack.

Thus,

we

reasonable-suspicion

evaluate
standard

this

case

articulated

under
in

the

Terry

familiar
and

its

progeny.
On appeal from a denial of a suppression motion, “we review
the district court’s factual findings for clear error and its
legal conclusions de novo.”
275, 277 (4th Cir. 2014).
“[w]e
[it].”

construe

the

evidence

United States v. Green, 740 F.3d
As the government prevailed below,
in

the

light

most

favorable

to

Id.

A police officer may not conduct an investigatory stop of a
person unless “the officer’s action is supported by a reasonable
and articulable suspicion . . . that criminal activity ‘may be
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afoot.’”

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United States v. Bumpers, 705 F.3d 168, 171 (4th Cir.

2013) (quoting Terry, 392 U.S. at 30).

That suspicion must be

rooted in “a ‘particularized and objective basis for suspecting
the particular person stopped of criminal activity.’”

United

States v. Black, 707 F.3d 531, 539 (4th Cir. 2013) (quoting
United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)).
To evaluate whether an officer had reasonable suspicion,
courts

look

to

“the

totality

of

the

circumstances.”

States v. Slocumb, 804 F.3d 677, 682 (4th Cir. 2015).

United
Seemingly

innocent facts may, when viewed in aggregate, furnish reasonable
suspicion.
attempts

See id.
to

spin . . . largely

deception.’”
2996904,

at

“That said, we are skeptical of ‘Government

United
*3

(4th

States
Cir.

mundane
Foster,

v.

May

acts
No.

24,

2016)

into

a

web

of

15-4319,

2016

WL

(published

opinion)

(alteration in original) (quoting United States v. Foster, 634
F.3d 243, 248 (4th Cir. 2011)).

Consequently, “the Government

cannot rely upon post hoc rationalizations to validate those
seizures

that

happen

to

turn

up

contraband.”

Id.

(quoting

Foster, 634 F.3d at 249).
The government points to three factors supporting Walsh’s
suspicion that Bryant was breaking the law:
(1)

the anonymous call reporting that Bryant had a firearm
in his bag and giving particular details about Bryant,
and Walsh’s confirmation of the accuracy of some of
those details;

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(2)

Bryant’s criminal record; and

(3)

Bryant’s nervous behavior when confronted by Walsh
with the information that someone reported him to the
police.

Reviewing these factors together, we conclude that Walsh lacked
reasonable

suspicion

that

Bryant

was

engaged

in

criminal

activity.
The

first

factor—the

anonymous

tip

and

Walsh’s

research

confirming some of the details given by the caller—is the most
important,

as

the

tip

was

the

impetus

for

Walsh

confronting

Bryant and the most direct evidence supporting Walsh’s suspicion
that

Bryant

was

armed.

While

an

anonymous

tip,

by

itself,

cannot justify a Terry stop, see United States v. Elston, 479
F.3d 314, 317 (4th Cir. 2007), the police may rely on such a tip
if

it

is

“suitably

corroborated,

exhibit[ing]

‘sufficient

indicia of reliability,’” J.L., 529 U.S. at 270 (quoting Alabama
v. White, 496 U.S. 325, 327 (1990)).
The parties do not dispute that the tip, taken alone, was
insufficient

to

establish

reasonable

suspicion.

They

argue,

however, whether this case is akin to J.L., where a stop was not
justified based on an anonymous tip, or Alabama v. White, where
an anonymous tip supported a finding of reasonable suspicion.
In

White,

an

anonymous

tipster

told

the

police

that

a

Vanessa White would leave a particular apartment at a particular
time in a particular car to travel to Dobey’s Motel with an
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ounce of cocaine in an attaché case.
police

went

to

the

apartment

496 U.S. at 327.

specified

by

the

caller

The
and,

“within the timeframe predicted by the caller,” saw a woman walk
into the car that the tipster had described and drive on the
“most direct route to Dobey’s Motel.”

Id. at 327, 331.

police stopped the car and ultimately recovered drugs.

The

Id. at

327.
The Court concluded that, although it was a “close case,”
the stop was legal because it was reasonable for the police to
rely on the tip after corroborating “significant aspects of the
informer’s predictions.”

Id. at 331–32.

The Court was careful,

however, to distinguish between “details [given by a tipster]
relating . . . to easily obtained facts and conditions existing
at the time of the tip” and “future actions of third parties
ordinarily not easily predicted.”

Id. at 332 (quoting Illinois

v. Gates, 462 U.S. 213, 245 (1983)).
value

because

anyone

can

observe

The former are of little
and

report

unremarkable

conditions existing at the time of a call, such as the color and
location of White’s car.
of

detail

(a

See id.

prediction

of

In contrast, the latter type

future

actions)

increases

the

reliability of a tip by “demonstrat[ing] inside information—a
special

familiarity

Accordingly,
caller

was

the
privy

with

Court
to

[the

determined

White’s

suspect’s]
that

itinerary,
9

affairs.”

because

the

it

reasonable

was

Id.

anonymous
to

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think that the caller “also ha[d] access to reliable information
about [White’s] illegal activities.”

Id.

In J.L., an anonymous tipster reported that “a young black
male standing at a particular bus stop and wearing a plaid shirt
was carrying a gun.”

529 U.S. at 268.

Police officers arrived

at the scene and found J.L., who matched the description in the
tip, along with two other people.

Id.

The police then stopped

and frisked J.L. even though they “had no [other] reason to
suspect [J.L. or his two companions] of illegal conduct” and
they “did not see a firearm, and J.L. made no threatening or
otherwise unusual movements.”
The

Supreme

Court

Id.

concluded

that

the

police

reasonable suspicion to support a Terry stop.

Id.

lacked

The Court

rejected the government’s argument that “the tip was reliable
because

its

description

proved accurate.”
“[a]n

accurate

of

the

Id. at 271.

description

suspect’s

visible

attributes

The Court reasoned that while

of

a

subject’s

readily

observable

location and appearance” is reliable in the sense that “[i]t
will help
tipster

the

means

demonstrate

police
to

that

criminal activity.”

correctly

accuse,”
“the

identify

such

tipster

Id. at 272.

has

a

the

person

description
knowledge

of

whom
does

the
not

concealed

This was critical, the Court

explained, because reasonable suspicion “requires that a tip be

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reliable in its assertion of illegality, not just its tendency
to identify a determinate person.”

See id. (emphasis added).

The tip in the instant case is far more like the one in
J.L. than the one in White and therefore deserves little weight
in our reasonable-suspicion calculus.

While the tipster here

provided more detail than the tipster in J.L. (namely, Bryant’s
name,

birthday,

age,

and

status

as

a

felon),

these

details

merely “identify a determinate person” rather than demonstrate
the reliability of the tipster’s “assertion of illegality.”
Indeed,

similar

to

J.L.,

nothing

supported

the

Id.

tipster’s

assertion of illegality beyond his or her bald statement that
Bryant was carrying a gun inside of his bag. 5
Moreover, the details that the tipster provided in this
case were less impressive than those given in White.
that

the

tipster

recited

about

Bryant

are

available

internet, as Bryant is a registered sex offender.
are

a

weak

information,”

indicator
especially

of
in

the

caller’s

comparison

to

access
the

future behavior made by the tipster in White.
5

The trivia
on

the

Thus, they
to

“inside

predictions

of

See White, 496

This distinguishes the instant case from Navarette v.
California, 134 S. Ct. 1683, 1688–89 (2014) (explaining that a
tip reporting dangerous driving was reliable because the
tipster’s information was based on witnessing the dangerous
driving firsthand, unlike in J.L., “where the tip provided no
basis for concluding that the tipster had actually seen the
gun”).

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at

332

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(“The

general

Pg: 12 of 17

public

would

have

had

no

way

of

knowing that [White] would shortly leave the building, get in
the described car, and drive the most direct route to Dobey’s
Motel.”).
The second factor to which the government points—the fact
that

Bryant

had

a

felony

conviction—does

bolster the case for reasonable suspicion.

not

significantly

A person’s criminal

record, standing alone, cannot justify a stop, although it can
support a finding of reasonable suspicion when accompanied by
more “concrete” indications of criminal activity.

See United

States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997).

Here,

there are no concrete indications that Bryant was engaging in
criminal

activity.

Furthermore,

Walsh

learned

that

Bryant’s

felon status was based on a prior sex offense, a conviction that
does little to suggest that he was carrying a gun on the day in
question.
Finally, the third factor upon which the government relies—
Bryant’s

nervous

government’s

behavior—does

favor.

While

not
a

tip

the

suspect’s

balance

in

evasiveness

the
and

nervousness are relevant in a reasonable-suspicion inquiry, see
United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011),
“mild nervousness” is to be expected during a police-citizen
interaction and does little to support reasonable suspicion, see
id.

at

488–91

(explaining

that
12

an

unreliable

anonymous

tip

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coupled with mild signs of nervousness failed to justify a Terry
stop); see also Slocumb, 804 F.3d at 683 (“We have cautioned
that

‘it

is

important

not

to

overplay

a

suspect’s

nervous

behavior in situations where citizens would normally be expected
to be upset.’” (quoting United States v. Glover, 662 F.3d 694,
699 (4th Cir. 2011))).
Five aspects of Bryant’s behavior are relevant to whether
he appeared unusually nervous, specifically (1) Bryant “seemed
like

he

started

to

walk

away”

when

Walsh

approached

him,

(2) Bryant spoke in a “low whisperish-type voice” and did not
consistently make eye contact; (3) when Bryant sat down, he had
his right arm “pinned to his body”; (4) Bryant sat down slowly
and seemed “kind of stunned”; and (5) when Bryant took off his
backpack and opened it, he turned to the side, causing his back
to face Walsh.

J.A. 27–29.

Based on this evidence and after

viewing the body-camera footage, the district court concluded
that Bryant “was acting nervous and avoiding eye contact and any
interaction with Officer Walsh.” 6

6

J.A. 62.

We take no issue with the district court’s finding that
Bryant exhibited signs of nervousness and, at least to some
extent, avoided eye contact.
But, the court committed clear
error in finding that Bryant avoided “any interaction” with
Walsh, J.A. 62 (emphasis added), as Bryant did not leave the
scene, responded to Walsh’s questions, and complied with Walsh’s
requests.

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Though Bryant may have exhibited some nervousness, it was
nothing

more

than

results

from

a

the

garden-variety

police-citizen

nervousness

that

interaction—especially

often

one

in

which the officer tells the citizen that he was reported to the
police.

First, while Bryant may have “seemed like he started to

walk away,” citizens are free to refuse to cooperate with the
police before a seizure.
125

(2000).

suspicion

Moreover,

based

on

See Illinois v. Wardlow, 528 U.S. 119,
although

unusually

we

have

evasive

found

behavior

reasonable

like

quickly

walking away from police officers, see Slocumb, 804 F.3d at 683
(discussing

cases),

we

cannot

conclude

that

“seem[ing]

like . . . start[ing] to walk away” is particularly suspicious,
especially considering Bryant made no attempt to leave the scene
when Walsh arrived at Wingz & Spiritz, see Sprinkle, 106 F.3d at
618–19 (concluding that there was no reasonable suspicion where,
among other factors, the defendant attempted to conceal his face
and drove away “in a normal, unhurried manner”).
Second, while Bryant’s mumbling and lack of eye contact may
be

consistent

with

“unusually

nervous

suspicion.

See

nervousness,
behavior[s]”

Massenburg,

654

they

are

that
F.3d

at

not

the

furnish
490

sort

of

reasonable

(quoting

United

States v. Mayo, 361 F.3d 802, 806 (4th Cir. 2004); see also
Foster, 2016 WL 2996904, at *5–7 (explaining that a defendant’s
unresponsiveness and lack of eye contact—even when coupled with
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anonymous

Filed: 07/19/2016

tip

reporting

a

Pg: 15 of 17

gunshot

and

the

fact

that

the

defendant was the only person that the police encountered in the
area where the shot was reported—were insufficient to establish
reasonable suspicion); Slocumb, 804 F.3d at 682–84 (concluding
that

a

defendant’s

lack

of

eye

contact

and

“low,

mumbled

responses,” among other factors, did not give rise to reasonable
suspicion).

Bryant

responded

to

Walsh’s

questions

and

was

cooperative.

Additionally, while Bryant at times looked away

from Walsh, he did not avoid eye contact throughout the entire
interaction.

Fourth

Amendment

protections

do

not

turn

faultless elocution or the outcome of staring contests.

on
Only

those among us with ice water in our veins would fail to exhibit
mild signs of nervousness when confronted by a police officer,
especially

when

police on you.”

the

officer

says

that

“somebody

called

the

J.A. 27.

Third, we fail to see how the fact that Bryant’s arm was
pinned

to

his

suspiciousness.
analysis.

body
Thus,

is
we

indicative
give

this

of

fact

nervousness
no

weight

in

or
our

See Massenburg, 654 F.3d at 482 (cautioning against

crediting efforts by the government to use “whatever facts are
present,

no

matter

how

innocent,

as

indicia

of

suspicious

activity” (quoting Foster, 634 F.3d at 248)).
Fourth, although Bryant sat down slowly, “kind of stunned,”
J.A. 28, this reaction was also not unusual considering Walsh
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just told him that somebody reported him to the police.

See,

e.g., Massenburg, 654 F.3d at 490 (distinguishing unremarkable
nervousness during a police interaction from “unusually nervous
behavior” like breathing heavily, having shaky hands, and giving
inconsistent answers (quoting Mayo, 361 F.3d at 806)).
Fifth, the fact that Bryant turned his back to Walsh when
he complied with Walsh’s request to open his backpack does not
strongly indicate nervousness or evasiveness, if at all.

Bryant

was seated on the edge of a bench and, when he opened his bag,
he used the empty part of the bench next to him as a surface.
That this happened to cause Bryant to turn his back to Walsh is
of little moment.
In sum, viewing all of the facts together, we conclude that
the stop of Bryant was not justified by reasonable suspicion of
criminal

activity.

An

unreliable

tip,

mild

signs

of

nervousness, and a prior conviction for an offense unrelated to
the one being investigated are simply not enough to permit a
Terry

stop.

Compare

id.

at

484–91

(finding

no

reasonable

suspicion based on an anonymous tip reporting a gunshot, mild
nervousness, and the fact that the defendant and his companions
were the only people found within the vicinity of the reported
shot shortly after the police received the tip), with Foster,
2016

WL

2996904,

at

*7–9

(finding

that

the

defendant’s

suspicious “security check”—an instinctual movement in which a
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suspect reaches to ensure that a concealed weapon is secure—
tipped

the

reasonable-suspicion

balance

in

the

government’s

favor where the police also relied on, among other things, an
anonymous tip reporting a gunshot, the defendant’s presence in
the area reported, and the defendant’s unresponsiveness and lack
of eye contact).

III.
For

the

reasons

given,

we

reverse

the

district

court’s

denial of Bryant’s motion to suppress, vacate his conviction and
sentence, and remand for further proceedings.

We direct the

Clerk to issue the mandate forthwith.
REVERSED, VACATED, AND REMANDED

17