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April 27, 2016
  United States v. Robinson -- Fourth Circuit
Frisk No More: Person Carrying Weapon in 'Shall Issue' State Not Automatically Dangerous

Areas of Law: Criminal Procedure

Issue Presented: Whether a police officer had reasonable suspicion to believe a person carrying a concealed weapon in a 'shall issue' state was presently dangerous.

Brief Summary: The Ranson, West Virginia police department received an anonymous tip that a black man loaded a gun and then concealed it. The anonymous caller identified the car that the man got into. The officers later stopped the car and asked the suspect, Robinson, to exit the vehicle. An officer then frisked Robinson and discovered a gun in his pants pocket. The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") held that although Robinson was armed, he was not dangerous simply because he was reported as carrying a concealed firearm. Carrying a concealed weapon is not itself illegal in West Virginia and the facts surrounding the stop and frisk did not provide the officers with an objective basis to infer danger. Therefore, the Fourth Circuit held the officer who frisked Robinson lacked reasonable suspicion to believe that Robinson was armed and dangerous.

Extended Summary: As explained in Terry v. Ohio, 392 U.S. 1 (1968), police officers "may conduct a limited pat-down for weapons when there is reasonable suspicion that a suspect is both armed and dangerous." Whether Robinson was armed was not an issue in this case. The Fourth Circuit based its holding on the second prong of the Terry analysis, whether Robinson was dangerous.

The moment officers approached Robinson in his vehicle they asked him to step out. Robinson complied. The officers then asked Robinson if he had any weapons and "Robinson gave [them] a 'weird look.'" The officers then proceeded to frisk him and discovered a firearm in Robinson's pants pocket. Robinson was cooperative throughout the entire encounter. Only after frisking him did one of the officers recognized "Robinson from prior criminal proceedings and confirmed that Robinson was a convicted felon." A grand jury indicted Robinson on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Robinson moved to suppress the evidence challenging the unconstitutionality of the frisk. A magistrate judge assigned to the motion concluded that the frisk "was not supported by a 'reasonable belief that [Robinson] [was] armed and presently dangerous.'" The district court rejected the magistrate's holding and found that "a reasonable suspicion that Robinson was armed in a high-crime area, when combined with Robinson's failure to answer when asked by an officer if he was armed" gave the officer reasonable suspicion to believe Robinson was dangerous.

The Fourth Circuit reviewed the district court's factual findings for clear error and its legal conclusions de novo. According to the Fourth Circuit, "a valid [Terry] stop does not automatically entitle an officer to conduct a 'frisk.'" Instead, an officer "may frisk a person who has been legally stopped only if the officer has a reasonable and articulable suspicion that the person is 'armed and presently dangerous.'" In analyzing the justification for a frisk, the court must consider the totality of the circumstances "to determine if the officer had a 'particularized and objective basis' for believing that the detained suspect might be armed and dangerous."

The Fourth Circuit then analyzed whether Robinson was presently dangerous. First, the court noted that if "carrying a concealed firearm were prohibited by local law, then a suspect concealing a gun" would be considered presently dangerous. However, that is not the case in West Virginia. In 'shall issue' jurisdictions, such as West Virginia, where "it is legal to carry a gun in public ... and it is legal to carry a concealed firearm with a permit," the Fourth Circuit held that there is no reasonable suspicion to believe "that a person carrying or concealing a weapon during a traffic stop is anything but a law-abiding citizen who poses no danger to the authorities." The court noted that the United States Court of Appeals for the Sixth, Third, and Seventh Circuits have reached similar conclusions when open and concealed carry of a weapon is permitted by law. This, according to the court, is what the Supreme Court found "unacceptable in Gant." The court noted "it is no more acceptable here." The court also noted that a "frisk must be justified on the basis of 'what the officers knew before they conducted their search.'" See Florida v. J.L., 529 U.S. 266, 271 (2000).

The officer in this case did not discover that Robinson was a convicted felon until after the frisk took place. The court noted that officer safety is a "serious concern" under Terry, however West Virginia does not have a "'duty to inform' [law], which [requires] individuals carrying concealed weapons to disclose that fact to the police if they are stopped." In such cases, a "generalized risk to officer safety" is not enough to justify a frisk.

Next, the court analyzed whether Robinson's non-answer when asked if he was armed was a significant factor permitting the officers to infer that Robinson was dangerous. The court held that it did not.

In dictum, the Fourth Circuit noted that allowing officers to frisk a person carrying a gun in a 'shall issue' state would "'give police officers unbridled discretion...' implicating concerns about abuse" of police power. Further, the court noted that this could give "rise to 'the potential for intentional or unintentional discrimination based on neighborhood, class, race, or ethnicity.'" Lastly, the court noted that in a 'shall issue' state, a high crime area is exactly the place a law abiding citizen may feel the need to carry a weapon the most.

In dissent, Judge Niemeyer wrote that the majority's opinion contained "flaws of law and logic." Citing Pennsylvania v. Mimms, he noted that the Supreme Court has held "that a reasonable officer need have only a suspicion that the individual who has been lawfully stopped is armed and thus dangerous." According to Judge Niemeyer, "the dangerousness justifying the frisk arises from the combination of the police forcing an encounter with a person and that person's possession of a gun, whether the possession of a gun was legal or not." Lastly, Judge Niemeyer explained that the majority "has forgotten Terry's fundamental principle that the Fourth Amendment does not 'require...police officers [to] take unnecessary risks in the performance of their duties.'"

To read the full opinion, click here.

Panel: Judges Niemeyer, Harris, and Davis.

Argument Date: 10/29/2015

Date of Issued Opinion: 02/23/2016

Docket Number: No. 14-4902

Decided: Reversed and vacated by published opinion

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Jarod James Douglas, OFFICE OF THE UNITES STATES ATTORNEY, Wheeling, West Virginia, for Appelle. On Brief: Kristen M. Leddy, Research and Writing Specialist, Office of the Federal Public Defender, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/27/2016 03:04 PM     4th Circuit  

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