CA4: Failure to make eye contact or acknowledge police not RS

Defendant was stopped because he was the only person seen in a three block radius from a shots fired call. His failure to respond to the police or make eye contact was ambiguous and within his rights, so it couldn’t support reasonable suspicion in themselves. Once he was stopped, however, his reaching for a pocket when asked about a gun was, in fact, reasonable suspicion. United States v. Foster, 2016 U.S. App. LEXIS 9502 (4th Cir. May 24, 2016):

Next, we address the extent to which Foster’s failure to respond to or make eye contact with the officers supports reasonable suspicion.

With respect to Foster’s silence, the Supreme Court has said 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.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). Thus, a “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Id. (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)). Here, because Foster did not have to respond to Burke and Boyer, we do not find his silence significant.

As for Foster’s lack of eye contact, we have explained that “while the failure of a suspect to make eye contact, standing alone, is an ambiguous indicator, the evidence may still contribute to a finding of reasonable suspicion.” George, 732 F.3d at 301 (citation omitted). We are hesitant, however, to afford lack of eye contact much weight because it is no more likely to be an indicator of suspiciousness than “a show of respect and an attempt to avoid confrontation.” See Massenburg, 654 F.3d at 489.