3. Analysis: Legal Reasoning and Precedents Cited
A. Appellate Review: Independent Constitutional Judgment, Respect for Factual Findings
The court separated factual review from constitutional review. Under United States v. Whitley, 34 F.4th 522, factual findings receive clear-error review, while legal conclusions are reviewed de novo. United States v. Spikes, 158 F.3d 913, and United States v. Johnson, 620 F.3d 685, establish that the ultimate reasonableness of a search or seizure is a legal question reviewed independently.
These standards nevertheless require respect for the district court’s credibility determinations and reasonable factual inferences. The evidence is considered in the light most favorable to the government following denial of suppression. That approach mattered because Harris’s interpretation of Ozomaro’s movements and identification of the bulge supplied important factual foundations.
United States v. Whitley, quoting United States v. Trice, 966 F.3d 506, also permits affirmance when the suppression ruling can be justified on an alternative ground. This principle allowed the panel to uphold the result without resolving whether the district court correctly identified the first moment of seizure.
B. The Governing Framework: A Stop and a Frisk Require Related but Distinct Justifications
The central precedent is Terry v. Ohio, 392 U.S. 1. It authorizes a brief investigative detention based on specific, articulable facts supporting reasonable suspicion of criminal activity. It separately authorizes a limited protective search when officers reasonably suspect that the detained person is armed and dangerous.
The opinion situates Terry v. Ohio within the broader warrant requirement. Bambach v. Moegle, 92 F.4th 615, citing Groh v. Ramirez, 540 U.S. 551, and United States v. Garza, 10 F.3d 1241, supply the general presumption against warrantless searches and seizures absent an applicable exception. United States v. McMullen, 103 F.4th 1225, drawing on Minnesota v. Dickerson, 508 U.S. 366, identifies investigative stops and protective frisks as established exceptions. These authorities frame the case as an application of a limited exception, not a general police power to search people near reported crime.
United States v. Johnson, 620 F.3d 685, quoting United States v. Place, 462 U.S. 696, describes the necessary suspicion as concerning whether a person has been, is, or is about to be engaged in criminal activity. United States v. Smith, 594 F.3d 530, rejects an unparticularized hunch. Through United States v. Waldon, 206 F.3d 597, and United States v. Foster, 376 F.3d 577, it requires an objectively explainable inference grounded in facts and police experience.
The threshold remains lower than probable cause. United States v. McCallister, 39 F.4th 368, quoting United States v. Sokolow, 490 U.S. 1, describes the required degree of suspicion as relatively low. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, contrasts reasonable suspicion’s “moderate chance” of wrongdoing with the “fair probability” or “substantial chance” associated with probable cause under Illinois v. Gates, 462 U.S. 213. These descriptions express relative thresholds; they are not numerical probability tests.
Most importantly, United States v. Arvizu, 534 U.S. 266, applying United States v. Cortez, 449 U.S. 411, requires consideration of the totality of the circumstances. Courts must not reject every ambiguous fact individually and then conclude that nothing remains. As Terry v. Ohio itself illustrates, individually innocent acts may become suspicious when their sequence and relationship are considered together.
C. Seizure Timing: An Important Issue the Court Did Not Resolve
United States v. Campbell, 486 F.3d 949, supports the uncontested starting point: consensual questioning is not itself a Fourth Amendment seizure. The harder question was when the officers’ presence and positioning transformed that encounter into a detention.
United States v. Jones, 673 F.3d 497, establishes that an investigative stop must be justified at its inception. United States v. Johnson, 2022 WL 35406, illustrates why precise timing can be decisive when circumstances change quickly. Here, the apparent firearm became visible after the moment Ozomaro claimed he had already been seized.
| Stage |
Constitutional significance |
| Initial questioning |
Agreed to be consensual; no seizure justification was yet required. |
| Additional officers surround Ozomaro |
Ozomaro’s proposed seizure point; the court found reasonable suspicion already existed. |
| Harris observes the angular bulge |
Additional support for a firearm-related detention and protective frisk. |
| Harris reaches toward the hip; Ozomaro attempts flight |
The frisk begins; subsequent flight cannot retroactively justify an earlier unlawful detention. |
United States v. Lewis, 843 F. App’x 683, supported treating a waistband bulge as relevant to suspicion of criminal activity. Pennsylvania v. Mimms, 434 U.S. 106, and United States v. Stennis, 457 F. App’x 494, supported its significance to suspicion that a person is armed and dangerous. But the panel did not use the later observation to repair an earlier deficiency. Instead, it found the earlier circumstances sufficient on their own.
The holding therefore does not establish when police “surrounding” becomes a seizure. It establishes that, on this record, the detention would have been justified even under Ozomaro’s proposed timing.
D. Proximity to Gunfire: Relevant, but Weak Without Individualization
The court recognized proximity as a legitimate starting point. United States v. Chambers, 638 F. App’x 437, explains that temporal and geographic closeness to reported crime can be salient. United States v. Galaviz, 645 F.3d 347, considered a vehicle’s location and the timing of an encounter relative to a robbery. United States v. Hurst, 228 F.3d 751, relied partly on a location consistent with travel from a crime scene. United States v. Thornton, 621 F. App’x 324, collects similar authority.
Those decisions did not make proximity conclusive. United States v. Caruthers, 458 F.3d 459, quoting United States v. Woodrum, 202 F.3d 1, warns against reasoning that would expose everyone entering an area after a serious crime to detention. United States v. Johnson, 428 F. App’x 616, rejects mere presence as sufficient, while United States v. McElrath, 786 F. App’x 575, similarly rejects reliance solely on a high-crime neighborhood or general proximity to suspected wrongdoing.
King v. United States, 917 F.3d 409, further illustrated the weakness of a stop premised on being several blocks from a relevant intersection. The opinion acknowledged that this decision was reversed on other grounds in Brownback v. King, 592 U.S. 209. That qualification is important: the panel invoked the proximity analysis while expressly identifying the later disposition.
The court also distinguished cases in which a suspect’s location was unusually identifying. In United States v. Thornton and United States v. Chambers, the officers encountered only the relevant suspects near the suspected crime scene. United States v. Edwards, 761 F.3d 977, involved the only nearby person fairly matching a reported shooter’s description. United States v. Moore, 817 F.2d 1105, likewise emphasized that the defendant was the only person nearby. United States v. Baldwin, 114 F. App’x 675, expressly distinguished United States v. Moore on that basis.
Ozomaro was not similarly isolated. Other people were outside the complex, and others were closer to the suspected shooting location and equally uncooperative. Consequently, being two blocks away approximately ten minutes after the shots received little independent weight. This limitation is a significant safeguard within the court’s analysis.
E. Avoiding Police: A Spectrum, Not an Automatic Indicator of Crime
Illinois v. Wardlow, 528 U.S. 119, establishes that evasive conduct may contribute to reasonable suspicion and identifies unprovoked headlong flight as especially significant. The panel nevertheless distinguished running away from the far more ambiguous conduct shown here.
United States v. Caruthers, drawing on United States v. Gordon, 231 F.3d 750, makes the speed of departure relevant. United States v. Johnson, 620 F.3d 685, similarly emphasizes abruptness and distinguishes weaker behaviors such as looking at officers or leaving their line of sight. Its discussion draws on United States v. Keith, 559 F.3d 499, and United Sates v. Patterson, 340 F.3d 368.
Ozomaro initially turned and walked away from an approaching police vehicle, then maintained some distance while a companion spoke with Harris. He did not initially run or hurry away. The court therefore gave this conduct only modest weight. The later attempted flight during the frisk was a different event and was not the basis for justifying the earlier stop.
The distinction prevents the decision from equating an ordinary preference to avoid police with the “consummate act of evasion” discussed in Illinois v. Wardlow.
F. Firearm-Related History and Gang Association: Contextual Relevance, Not Standalone Suspicion
Joshua v. DeWitt, 341 F.3d 430, supplies the essential restriction: a criminal history does not independently establish reasonable suspicion of present wrongdoing. The panel did not discard that rule.
Instead, it relied on United States v. Stepp, 680 F.3d 651, which recognizes that history related to an officer’s developing suspicions can inform the significance of other facts. The language about casting a “suspicious light” on otherwise weaker indicators came through that decision’s quotation of United States v. Simpson. The operative connection here was specific: Harris was investigating gunfire and recalled reports of Ozomaro’s involvement in shootings and firearm violations.
The court treated gang association similarly. The relevant information was not merely a gang label, but reported membership in a particular group associated with gun violence, considered during an investigation of recent nearby gunfire.
The panel cited United States v. Feliciano, 45 F.3d 1070, United States v. Hammond, 890 F.3d 901, United States v. Holmes, 376 F.3d 270, and United States v. Monteiro, 447 F.3d 39, as supporting consideration of gang-related information in context. These out-of-circuit authorities supported the contextual proposition; they did not establish a rule allowing detention solely because of association.
Within the Sixth Circuit, United States v. Howard, 815 F. App’x 69, had treated tattoos consistent with gang membership as carrying some weight. United States v. McMullen, 103 F.4th 1225, considered gang-related surroundings and proximity to a known gang member among multiple relevant circumstances. Together, these decisions reinforced the panel’s cumulative approach.
A necessary qualification is that reports of involvement and prior arrests are not equivalent to adjudicated findings of criminal conduct. The opinion treated them as information available to Harris, not as proof that Ozomaro committed the earlier incidents. Nor did it hold that gang membership or a firearm arrest automatically permits a stop.
G. Guarding Movements and “Blading”: The Key Individualized Conduct
The most immediate behavioral evidence was Ozomaro’s repeated protection of his right side. Harris described a right arm that barely moved despite left-arm gesturing, and a stance that kept the right hip away from him as he changed position. Unlike general location or association, these were contemporaneous observations directed specifically at Ozomaro.
Ozomaro argued that the conduct could be innocent. Navarette v. California, 572 U.S. 393, quoting United States v. Arvizu, explains that reasonable suspicion does not require ruling out every innocent explanation. The question is whether the inference of wrongdoing is objectively reasonable in context, not whether innocence remains possible.
United States v. Arvizu, quoting Ornelas v. United States, 517 U.S. 690, also requires appropriate weight for inferences grounded in police experience and training. The panel accepted Harris’s explanation that the repeated positioning was consistent with concealing a firearm. That deference remained tied to articulated observations; experience was not treated as a substitute for describing what happened.
United States v. Faught, 2022 WL 2813240, specifically recognizes that a “bladed” stance can contribute to suspicion that a person has a weapon. It relied on United States v. Moberly, 861 F. App’x 27, United States v. Lewis, and United States v. Johnson, 428 F. App’x 616. These authorities supported treating positioning as an additional clue, not as an invariably incriminating posture.
The record also showed that another officer could see at least part of Ozomaro’s right side. That qualification prevents an exaggerated description that he successfully hid that side from every officer. The accepted inference concerned his repeated effort to keep it away from Harris.
H. Why the Four Factors Were Sufficient Together
The court’s reasoning depended on the relationship among the circumstances:
- A recent shooting supplied a specific offense under investigation.
- Nearby presence and mild avoidance provided limited contextual support.
- Harris’s prior information connected Ozomaro specifically to firearm-related concerns.
- Repeated guarding of one hip supplied an immediate behavioral indication consistent with possessing a concealed weapon.
Under United States v. Stepp and United States v. Arvizu, the more individualized information changed the significance of the weaker facts. The panel found at least the “moderate chance” of wrongdoing described in Safford Unified Sch. Dist. No. 1 v. Redding.
This is not simply arithmetic: four weak facts do not automatically establish reasonable suspicion. The court found a coherent connection between the investigated shooting, the officer’s information, and Ozomaro’s current conduct. Its holding is correspondingly narrower than a rule permitting stops whenever someone near gunfire avoids police.
I. The Frisk: Suspicion of Danger and the Apparent Firearm
A lawful stop does not automatically authorize a frisk. Under Terry v. Ohio and United States v. McMullen, the officer must also reasonably suspect that the person is armed and dangerous, and the search must remain protective in character.
United States v. McMullin, 739 F.3d 943—a different decision from United States v. McMullen—explains that the same facts can sometimes justify both detention and a weapons frisk. It discusses offenses, including drug trafficking and burglary, whose circumstances may support an inference of weapons-related danger. The panel reasoned that suspicion of criminal activity directly involving firearms supplied an especially straightforward application of that principle.
The court then identified a stronger, additional basis. Before reaching toward Ozomaro, Harris observed a hard-looking bulge with distinct right angles at the guarded hip and immediately identified it as a firearm. Under Pennsylvania v. Mimms and United States v. Stennis, an apparent weapon bulge supports reasonable suspicion that a lawfully stopped person is armed and dangerous.
The observation independently supported the protective-search requirement; it did not eliminate the need for a lawful detention. That distinction matters because evidence of a weapon cannot simply excuse an already unlawful stop.
Finally, Ozomaro argued that Harris’s calm tone and decision to reach toward the suspected weapon showed he did not genuinely believe danger existed. United States v. Noble, 762 F.3d 509, applying Terry v. Ohio, makes the inquiry objective. The issue was whether the circumstances reasonably justified protective action, not whether Harris sounded frightened or displayed a particular subjective emotional response.
J. Two Important Qualifications: Staleness and Officer-Influenced Conduct
Staleness was not decided on the merits. Ozomaro challenged the ten-month age of the crime reduction notes, but the court found the argument inadequately developed. United States v. Persaud, 866 F.3d 371, quoting McPherson v. Kelsey, 125 F.3d 989, treats perfunctorily raised issues unsupported by developed argument as forfeited. The opinion therefore does not establish that ten-month-old intelligence is necessarily fresh, reliable, or sufficient in another case.
Reasonable officer movement did not disqualify the resulting observations. Ozomaro also argued that Harris’s own movement around him produced the allegedly suspicious positioning. The panel noted that he did not contend Harris acted unreasonably in moving during the conversation.
The court analogized to Kentucky v. King, 563 U.S. 452, through United States v. Fletcher, 978 F.3d 1009. Those authorities reject treating reasonably conducted police activity as automatically invalidating circumstances that later justify warrantless action. The panel used that reasoning to reject the proposed exclusion of observations merely because the officer’s lawful movement influenced the interaction. It did not authorize unconstitutional police conduct to manufacture justification.