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Media Alerts - United States v. Robinson -- Fourth Circuit
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February 22, 2017
  United States v. Robinson -- Fourth Circuit
Gun Owners, Beware: Armed = Dangerous

Areas of Law: Fourth Amendment, Second Amendment

Issue Presented: Whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonable believes to be equipped with a firearm, if state law allows persons to carry concealed firearms with a permit.

Brief Summary: The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of the defendant's motion to suppress a firearm uncovered during a frisk, because the frisk was justified. Citing Terry v. Ohio, 392 U.S. 1 (1968), and Pennsylvania v. Mimms, 434 U.S. 106 (1997), the Fourth Circuit held that when an officer reasonably suspects the person he has stopped is armed, the officer is "warranted in the belief that his safety . . . [is] in danger," thus justifying a Terry frisk. Accordingly, the Fourth Circuit concluded that because the officers made a lawful traffic stop and had reasonable suspicion to believe that the defendant was armed, the frisk was lawful.

Extended Summary: On the afternoon of March 24, 2014, the West Virginia Police Department received an anonymous tip. The tipster stated that a black male in the parking lot of a 7-Eleven had just loaded a firearm, concealed it in his pocket, and climbed into a blue-green Toyota Camry being driven by a white woman. Knowing that the parking lot was frequently used as a site for drug trafficking, Officer Hudson and Captain Roberts immediately responded. After observing a blue-green Toyota Camry driven by a white woman with a black male passenger who were not wearing seatbelts, Officer Hudson effected a traffic stop. Officer Hudson asked the driver for her license, registration, and proof of insurance. He also asked the passenger, the appellant, Shaquille Robinson, for his identification and to step out of the car.

As Robinson was exiting the vehicle, Captain Roberts asked Robinson if he had any weapons on him. Robinson "gave [Roberts] a weird look." Captain Roberts took the look to mean, "I don't want to lie to you, but I'm not going to tell you anything [either]." At that point, Captain Roberts directed Robinson to put his hands on the car and performed a frisk for weapons, recovering a loaded gun from Robinson's pocket.

Robinson was charged with illegal possession of a firearm by a felon. In the district court, he filed a motion to suppress the firearm, arguing that the frisk violated his Fourth Amendment rights. As explained in Terry v. Ohio, 392 U.S. 1 (1968), an officer can frisk a validly stopped person if the officer reasonably suspects the person is "armed and dangerous."

Robinson argued that the officers did not have reasonable suspicion to believe he was dangerous for two reasons. First, at the time of the frisk, West Virginia residents could lawfully carry a concealed firearm if they had a license. Because the police did not know whether Robinson possessed such a license, the tip that a suspect matching his description was carrying a loaded firearm concealed in his pocket was a report of innocent behavior that was not sufficient to indicate that he posed a danger to others. Second, Robinson argued that his behavior during the stop - being compliant, cooperative, and not displaying signs of nervousness - did not create suspicion.

The district court denied Robinson's motion to suppress. The district court explained that the "anonymous tip that [Robinson] [had] recently loaded a firearm and concealed it on his person in a public parking lot in a high-crime area," as well as Robinson's "weird look and failure to verbally respond to the inquiry whether he was armed," gave rise to the officers' reasonable suspicion that Robinson was armed and dangerous.

Robinson appealed the denial of his motion to suppress, and a panel of the Fourth Circuit reversed the district court's decision and vacated Robinson's conviction. The government then filed a petition for rehearing en banc. The full court vacated the panel's judgment and opinion.

Relying on Terry v. Ohio and Pennsylvania v. Mimms, the Fourth Circuit held that when an officer reasonably suspects the person he has stopped is armed, the officer is "warranted in the belief that his safety . . . [is] in danger," thus justifying a Terry frisk. The Fourth Circuit first acknowledged the Supreme Court's statement in Terry discussing the legality of the frisk: "there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." "[T]he danger," the Fourth Circuit concluded, "was thus found in the presence of a weapon during a forced police encounter."

Second, the Fourth Circuit acknowledged similar language in both Terry and Mimms regarding the relationship between "armed" and "dangerous." In Terry, in approving an officer's frisk of Terry, the Supreme Court stated that "a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety." In Mimms, the Supreme Court found the frisk there was justified because the bulge in Mimms' jacket "permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer." The Fourth Circuit concluded that in both Terry and Mimms, the Supreme Court deliberately linked "armed" and "dangerous," recognizing that the risk of danger is created simply because the person, who was forcibly stopped, is armed. Accordingly, the Fourth Circuit held that, in the present case, because the officers made a lawful traffic stop and had reasonable suspicion to believe that Robinson was armed, the frisk was lawful.

Robinson also argued that Mimms was distinguishable because the frisk there took place in a jurisdiction that made it a crime to carry a concealed deadly weapon, while West Virginia permitted its citizens to carry firearms. Robinson argued that when the person forcibly stopped might be legally permitted to possess a firearm, the risk of danger posed by the firearm is eliminated. The Fourth Circuit rejected this argument as well. Citing Adams v. Williams, 407 U.S. 143, 146 (1972), the Fourth Circuit held that the legality of the frisk does not depend on the illegality of the firearm's possession.

Finally, in dicta, the Fourth Circuit agreed with the district court's findings that the reliable tip that Robinson had recently loaded a firearm and concealed it in his pocket in a public parking lot in a high-crime area, as well as Robinson's failure to verbally respond to the inquiry whether he was armed, gave rise to a reasonable suspicion that Robinson was armed and dangerous. As a result, the Fourth Circuit affirmed the district court's decision.

Judge Harris (together with Chief Judge Gregory, Circuit Judge Motz, and Senior Judge Davis) disagreed with the majority's interpretation of "armed and dangerous." Judge Harris acknowledged that for many years, carrying firearms in public was prohibited or closely regulated, and a concealed gun was indicative of criminal activity and might give rise to "reasonable suspicion" sufficient to justify an investigative stop. However, Judge Harris emphasized, "that is no longer the case, at least in states like West Virginia."

Judge Harris observed that within the last decade, federal constitutional law has recognized new Second Amendment protections for individual possession of firearms, see McDonald v. City of Chicago, 561 U.S. 742, 791 (2010); District of Columbia v. Heller, 554 U.S. 570, 635 (2008); and state law has followed, providing expanded rights to carry guns in public, see United States v. Williams, 731 F.3d 678, 691 (7th Cir. 2013). Citing United States v. Black, 707 F.3d 531, 539-40 (4th Cir. 2013), Judge Harris noted that the Fourth Circuit had held that when a state elects to legalize the public carrying of firearms, the Fourth Amendment equation changes, and public possession of a gun is no longer "suspicious" in a way that would authorize a Terry stop. This view, Judge Harris found, had been supported by the Third, Sixth, and Seventh Circuits.

Therefore, Judge Harris concluded that in a state like West Virginia, which broadly allows public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person also is dangerous, so as to justify a Terry frisk. Additionally, none of the conduct reported in the anonymous tip was illegal under West Virginia law, or unusual where it occurred.

Judge Harris refused to "endorse a rule that puts us on a collision course with rights to gun possession rooted in the Second Amendment and conferred by state legislatures. Nor would [she] adopt a rule that leaves to unbridled police discretion the decision as to which legally armed citizens will be targeted for frisks, opening the door to the very abuses the Fourth Amendment is designed to prevent."

To read the full opinion, click here.

Panel: Chief Judge Gregory, Judges Wilkinson, Niemeyer, Motz, Traxler, King, Shedd, Duncan, Agee, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris, and Senior Judge Davis

Argument Date: 09/22/2016

Date of Issued Opinion: 01/23/2017

Docket Number: No. 14-4902

Decided:
Affirmed by published opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 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, Jarod J. Douglas, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Author of Opinion: Judge Niemeyer

Dissenting Opinion:
Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/22/2017 12:52 PM     4th Circuit  

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