United States v. Temarco Pope, Jr. , 910 F.3d 413 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1264
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Temarco Sartorio Pope, Jr., also known as Temarco Sartorio Pope
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: October 18, 2018
Filed: December 10, 2018
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Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
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ARNOLD, Circuit Judge.
Around 4:00 a.m. one January morning, Des Moines police responded to a
complaint about noise at an area motel. Outside the motel room in question, a police
officer heard loud music and smelled marijuana, so he knocked on the door. When
someone answered, the officer could see about thirty people crowded into what he
agreed was "a pretty standard motel room." After receiving no answer to his question
about who had rented the room, the officer, having recognized some of the partygoers
as gang members, ordered all the occupants to leave with their hands up.
Someone in the back of the room caught the officer's attention. The officer saw
this man, later identified as Temarco Pope, Jr., place a black pistol in the waistband
of his jeans and cover it with his shirt. The officer testified that, as Pope approached
the officer to leave, he could see the outline of the gun through Pope's shirt. He then
stopped Pope, who was the last partygoer to leave, and placed him in handcuffs. At
that point, the officer disarmed Pope, who afterward admitted he did not have a
permit for the gun.
After the government indicted Pope for being a felon in possession of a
firearm, see 18 U.S.C. § 922(g)(1), he moved to suppress the gun and any other
evidence, including some of his statements to police, obtained from his detention at
the motel. Pope maintained that the officer lacked a reasonable, articulable suspicion
that he was engaging in criminal activity since the officer had no reason to suspect
that he lacked a permit to carry the gun. The district court1 disagreed and denied the
motion to suppress. Pope then pleaded guilty but reserved his right to appeal the
denial of his motion to suppress. He appeals and we affirm.
Police officers may briefly detain a person if they have a reasonable articulable
suspicion that criminal activity is afoot; a mere hunch will not suffice. United States
v. Cotter, 701 F.3d 544, 547 (8th Cir. 2012). We consider "the totality of the
circumstances" when determining whether reasonable suspicion supported an officer's
stop. Id. "We review reasonable-suspicion determinations de novo." United States v.
Cobo-Cobo, 873 F.3d 613, 616 (8th Cir. 2017). The government maintains that the
officer had reasonable suspicion that Pope was violating Iowa Code § 724.4(1),
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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which makes it an aggravated misdemeanor for someone to go "armed with a
dangerous weapon concealed on or about the person."
The question of whether an officer may stop someone he reasonably believes
is carrying a concealed gun was raised in United States v. Jones, 606 F.3d 964,
966–67 (8th Cir. 2010) (per curiam). We did not resolve that question, however,
because we concluded that the officer there lacked a reasonable suspicion that the
defendant had a gun in the first place. Judge Loken wrote a concurrence in which he
opined that the officer could not have performed a stop even if he had a reasonable
belief that the defendant was carrying a concealed weapon. He maintained that
"giving police officers unfettered discretion to stop and frisk anyone suspected of
carrying a concealed weapon without some particularized suspicion of unlawful
carrying conflicts with the spirit of" the Nebraska Constitution's guarantee of the right
to bear arms and the statutory exceptions to the prohibition of carrying concealed
weapons, such as the exception for holders of concealed-carry permits. Id. at 968–69.
The issue surfaced again in United States v. Harris, where an officer
encountered a man sleeping on a bench with a gun dangling from his pocket. 747
F.3d 1013, 1015–16 (8th Cir. 2014). The defendant maintained that the officer should
not have seized the gun because he lacked reasonable suspicion of criminal activity.
We showed some sympathy for the argument, even citing Jones and asserting
parenthetically that Jones held "that the officers did not have a justification to stop
the defendant merely because they suspected the defendant was carrying a firearm."
Id. at 1016–17. But that is not what our court held in Jones; that was Judge Loken's
position in concurrence. Nonetheless, our court in Harris stopped short of holding
that the government lacked a reasonable suspicion of criminal activity, upholding the
seizure of the gun instead because the officer was performing a community caretaking
function in seizing it. Id. at 1017–19. As a result, the Harris court's statement about
Jones does not bind our panel because it was dictum, and "we need not follow dicta."
Shephard v. United States, 735 F.3d 797, 798 (8th Cir. 2013) (per curiam).
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It is true that we asserted in another case that "the mere report of a person with
a handgun is insufficient to create reasonable suspicion." Duffie v. City of Lincoln,
834 F.3d 877, 883 (8th Cir. 2016). But Duffie did not involve a concealed gun; the
defendant there openly displayed a gun in a place where he could legally carry a gun
openly without a permit. So it made sense for us to conclude that a report of someone
openly displaying a firearm did not provide reasonable suspicion of criminal activity.
And the information the police had did not sufficiently indicate that the defendant
there had some disqualification, such as being underage, that precluded him from
openly carrying a gun legally.
Most of the cases from outside our circuit on which Pope relies involve
situations similar to the one in Duffie. For example, in Northrup v. City of Toledo
Police Department, the Sixth Circuit determined that reasonable suspicion did not
support an investigatory detention of a person whom police had stopped for openly
carrying a gun in a state that requires no permit for doing so. 785 F.3d 1128, 1132–33
(6th Cir. 2015). Because carrying a gun openly was not a criminal offense, the court
reasoned, there was no basis for the stop. Id.; see also United States v. Black, 707
F.3d 531, 540 (4th Cir. 2013); United States v. King, 990 F.2d 1552, 1555, 1558–59
(10th Cir. 1993). But that is not the situation we face. Carrying a concealed weapon
in Iowa is a criminal offense, and possession of a concealed-weapons permit is merely
an affirmative defense to a charge under § 724.4(1). See State v. Leisinger, 364
N.W.2d 200, 202 (Iowa 1985); State v. Bowdry, 337 N.W.2d 216, 218 (Iowa 1983).
In other words, carrying a concealed weapon in Iowa is presumptively criminal until
the suspect comes forward with a permit, see United States v. Gatlin, 613 F.3d 374,
378–79 (3d Cir. 2010), and we see no reason why the suspect's burden to produce a
permit should be any different on the street than in the courtroom. We thus think the
officer had reasonable suspicion that criminal activity was afoot when he personally
observed Pope place the gun in his waistband. See United States v. Dembry, 535 F.3d
798, 800–01 (8th Cir. 2008).
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And for what its worth, the Iowa Legislature seemingly contemplated the kind
of stop that the officer performed here when it passed § 724.4(1) by providing that the
prohibition against carrying a concealed weapon does not apply to one "who displays
to a peace officer on demand a valid permit." Iowa Code § 724.4(4)(i). That an officer
may "demand" to see a permit would seem to assume that the officer may briefly seize
the person to make such a demand. It would be odd to say that an officer may
"demand" to see a permit during the course of a consensual encounter not amounting
to a seizure. This legislative assumption is perhaps some evidence that a detention
like the one involved here was considered reasonable in the political and social
environment in which the statute was enacted.
Pope argues that, even if the officer had reasonable suspicion to stop him, the
officer did not have reasonable suspicion to frisk him for weapons as well. The Court
in Terry v. Ohio held that an officer may frisk a suspect he believes is "armed and
dangerous." 392 U.S. 1, 27 (1968). Pope maintains that the officer merely knew that
he was armed but had no reason to believe that he was also dangerous, especially
since many law-abiding citizens carry guns legally nowadays.
We believe that the Supreme Court has already authorized police officers to
frisk a suspect reasonably believed to be armed even where it could be that the
suspect possesses the arms legally. In Adams v. Williams, the Court emphasized that
the purpose of a Terry frisk is not to discover evidence of a crime "but to allow the
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." 407 U.S. 143, 146 (1972). The
Supreme Court has also intimated at least twice that being armed with a gun
necessarily means that the suspect poses a risk to an officer. In Terry, the Court said
that a suspect's being armed "thus presented a threat to the officer's safety." 392 U.S.
at 28. In another case the Court observed that a bulge in a suspect's jacket "permitted
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the officer to conclude that [the suspect] was armed and thus posed a serious and
present danger." Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977).
Pope argues that we need not give Adams, Terry, or Mimms much weight
because, he says, the Court decided them in an era in which criminals were the
primary carriers of guns and thus almost always dangerous. Even if this factual
assumption is true, a matter on which we express no view, it is the Supreme Court's
prerogative alone to overrule its cases, regardless of whether doubts have been raised
as to their continuing vitality. See Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per
curiam). And even if the Court decided these cases in a different legal environment,
we think it remains reasonable to allow an officer to frisk someone whom the officer
has lawfully stopped and whom the officer reasonably believes is armed. As the en
banc Fourth Circuit recently explained, "[t]he presumptive lawfulness of an
individual's gun possession in a particular State does next to nothing to negate the
reasonable concern an officer has for his own safety when forcing an encounter with
an individual who is armed with a gun and whose propensities are unknown." United
States v. Robinson, 846 F.3d 694, 701 (4th Cir. 2017).
Pope finally maintains that the frisk was unreasonable since the officer had
already handcuffed Pope, which, he asserts, obviated any danger that he might have
presented. We disagree. Handcuffs limit but do not eliminate a person's ability to
perform harmful acts. United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993).
Though it is more difficult for him to do so, a person in handcuffs can still use a
weapon to injure, and, of course, handcuffs can sometimes fail. Id. Further, unless
Pope were to go home in the officer's handcuffs, at some point the officer would have
to remove them, at which point Pope would have unfettered access to his gun. See id.
The Fourth Amendment does not require officers to submit themselves to such
dangers.
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Finally, we note that Pope appears to raise a Second Amendment challenge to
§ 724.4(1) in his reply brief. Because he failed to raise the argument in his opening
brief, we leave that issue for another day. See United States v. Grace, 893 F.3d 522,
525 (8th Cir. 2018).
Affirmed.
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