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Armed and dangerous, 4th Circuit: Firearm possession ‘objective basis for inferring danger’

By Heath Hamacher, South Carolina Lawyers Weekly

A divided panel from the 4th U.S. Circuit Court of Appeals last February held in U.S. v. Shaquille Robinson that just because an individual is armed, “in and of itself,” that does not provide an objective indication of danger and does not justify a frisk under Terry v. Ohio.

 
But on Jan. 23, in an 11-4 en banc decision, the court determined that the possession of a firearm does in fact provide “an objective basis for inferring danger.”

 
“We reject Robinson’s argument and affirm, concluding that an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene,” Judge Paul Niemeyer wrote for the majority.

 
Under Terry, police may pat down an individual for weapons if they reasonably suspect that he or she is both armed and dangerous.

 
In last year’s decision, Judge Pamela Harris wrote that while the traffic stop of Robinson in Ranson, West Virginia, may have been legal, the suspicion that he was armed “does not by itself give rise to reasonable suspicion that a person is dangerous for Terry purposes.”

 
“Where the state legislature has decided that its citizens may be entrusted to carry firearms on public streets, we may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent,” Harris wrote.

 
West Virginia is an open-carry state, as is North Carolina. West Virginia also recently legalized concealed carry without a permit. South Carolina prohibits the open display of firearms but allows concealed carry with a valid permit.

 
Harris, joined by three other judges, penned a dissent in this latest ruling.

 

Around 4 p.m. on the day of the incident, police received a tip that a black man, later identified as Robinson, was seen loading a handgun in the parking lot of a 7-Eleven store and concealing the weapon in his front pants pocket. The man then rode off in a “bluish greenish” Toyota Camry being driven by a white woman.

 
Police say the store is located in a high-crime area.

 
When officers stopped the vehicle for a seatbelt violation, they ordered the passenger, Robinson, out of the car. According to the court, one of the officers asked Robinson if he had any weapons on him, to which Robinson responded only with a “weird look.” Robinson was ordered to put his hands on his head; a pat-down revealed a loaded gun.

 
According to police, aside from failing to immediately verbally respond to the officer’s question, he was cooperative throughout the process and never made any movements suggesting he might reach for a weapon.

 
Robinson was subsequently indicted for being a felon in possession of a firearm. He moved to have the evidence suppressed on the grounds of an unlawful search, and the district court referred the motion to a magistrate judge for a report and recommendation. The magistrate judge heard testimony from all of the involved officers and a state trooper who spoke about the “high level of criminal activity” at an apartment complex adjacent to the 7-Eleven.

 
The judge found that while the traffic stop was justified, the pat-down was not. There was no “reasonable belief that [Robinson] [was] armed and presently dangerous,” the judge held, noting that West Virginia law allows both open carry and concealed carry of firearms.

 
But despite the recommendation, after the government submitted objections, the district court denied Robinson’s motion to suppress, citing Robinson’s presence in a high-crime area and failure to immediately reply when asked if he was armed in finding that the officers had reasonable suspicion that he was dangerous.

 
Robinson did not argue the legality of the traffic stop or the reasonable suspicion that he was armed. His only challenge on appeal was whether he should have been considered dangerous.

 
In reviewing the ruling, the appeals court noted that while Terry permits a stop if authorities have a reasonable suspicion of criminal activity, a frisk, considered much more intrusive, is subject to a separate standard and justified only if an officer possesses a reasonable and articulable suspicion that the individual is “armed and presently dangerous to the officer or to others.”

 
Niemeyer, who authored this opinion, dissented last year, calling the holding a “remarkable” one based on “basic flaws of law and logic” that will make traffic stops substantially more dangerous to police.

 
He believed the approach taken by the majority added criteria “distinct from and in addition to” the Supreme Court’s requirement for the inherent “danger posed by an individual’s possession of a firearm during the course of a forced police encounter.”

 
Relying on 1977’s Pennsylvania v. Mimms, Niemeyer wrote that a reasonable officer needs only to suspect that an individual lawfully stopped is “armed and thus dangerous.” Terry also linked the two terms.

 
The majority addressed that reliance in a footnote, writing that the arrest in Mimms took place during a time “when local law appears to have strictly limited the public possession of firearms, allowing it only in narrow circumstances.”

 
As mentioned previously, at the time of this incident, West Virginia allowed the concealed carry of firearms with the proper permit. Officers did not discover that Robinson was a felon until after the traffic stop was conducted.

 
But according to the en banc decision, traffic stops are inherently dangerous and are made more dangerous when persons “whose propensities are unknown” are armed, whether legally or illegally.

 
“As such, when the officer reasonably suspects that the person he has stopped is armed, the officer is “warranted in the belief that his safety . . . [is] in danger,” Niemeyer wrote.
He added that the U.S. Supreme Court has previously explained that the purpose of a Terry frisk is not to discover evidence of crime, but to allow an officer to “pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.”

 
Judge James A Wynn concurred with the decision, but disagreed that “armed and dangerous” is a unitary concept. Assigning an independent meaning to “dangerous” is appropriate because the majority’s unitary interpretation would allow officers to frisk “a wide swath of lawfully stopped individuals engaging in harmless activity,” according to Wynn, who noted that courts have considered objects from a wine bottle to a sharpened pencil “weapons.”

 
He wrote that this case isn’t about traffic stops or weapons, but about firearms, specifically. It’s about, Wynn opined, whether those who choose to carry firearms pose a “categorical risk of danger” to others and whether they forego certain constitutional protections afforded those who do not carry firearms. He believes the answer is yes to both.

 
“We must confront this issue because treating individuals armed with firearms — lawfully or unlawfully — as categorically dangerous places special burdens on such individuals,” Wynn wrote. “Today we recognize one such burden: individuals who carry firearms elect to subject themselves to being frisked when lawfully stopped by law enforcement officers
As she stated in last year’s majority opinion, Judge Harris — now joined in dissent by judges Motz, Gregory and Davis — wrote that once upon a time, because of the prohibition or tight regulation of the public carrying of guns, police officers could assume that anyone carrying a concealed firearm was “up to no good.”

 
That is no longer the case in many states, she said.

 
“Today in West Virginia, citizens are legally entitled to arm themselves in public, and there is no reason to think that a person carrying or concealing a weapon during a traffic stop — conduct fully sanctioned by state law — is anything but a law-abiding citizen who poses no threat to the Authorities,” Harris wrote.

 
She added that until the Supreme Court says that the price of exercising the right to bear arms is relinquishing certain Fourth Amendment rights, she cannot endorse a rule on a collision course with Second Amendment rights.

 
“Nor would I 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,” Harris wrote.

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