United States v. Shaquille Robinson

ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4902
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAQUILLE MONTEL ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:14-cr-00028-GMG-RWT-1)
Argued: September 22, 2016 Decided: January 23, 2017
Before GREGORY, Chief Judge, WILKINSON, NIEMEYER, MOTZ, TRAXLER,
KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER,
and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.
Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Wilkinson, Judge Traxler, Judge
King, Judge Shedd, Judge Duncan, Judge Agee, Judge Keenan, Judge
Diaz, Judge Floyd, and Judge Thacker joined. Judge Wynn wrote a
separate opinion concurring in the judgment. Judge Harris wrote
a dissenting opinion, in which Chief Judge Gregory, Judge Motz,
and Senior Judge Davis joined.
ARGUED: 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.
2
NIEMEYER, Circuit Judge:
This appeal presents the question of whether a law
enforcement officer is justified in frisking a person whom the
officer has lawfully stopped and whom the officer reasonably
believes to be armed, regardless of whether the person may
legally be entitled to carry the firearm. Stated otherwise, the
question is whether the risk of danger to a law enforcement
officer created by the forced stop of a person who is armed is
eliminated by the fact that state law authorizes persons to
obtain a permit to carry a concealed firearm.
After receiving a tip that a man in a parking lot well
known for drug-trafficking activity had just loaded a firearm
and then concealed it in his pocket before getting into a car as
a passenger, Ranson, West Virginia police stopped the car after
observing that its occupants were not wearing seatbelts.
Reasonably believing that the car’s passenger, Shaquille
Robinson, was armed, the police frisked him and uncovered the
firearm, leading to his arrest for the possession of a firearm
by a felon.
During his prosecution, Robinson filed a motion to suppress
the evidence recovered as a result of the frisk, contending that
the frisk violated his Fourth Amendment rights. The officers,
he argued, had no articulable facts demonstrating that he was
dangerous since, as far as the officers knew, the State could
3
have issued him a permit to carry a concealed firearm. After
the district court denied the motion to suppress, Robinson
pleaded guilty to the illegal possession of a firearm, reserving
the right to appeal the denial of his motion to suppress.
On appeal, Robinson contends again that the information
that police received from the tip described seemingly innocent
conduct and that his conduct at the time of the traffic stop
also provided no basis for officers to reach the conclusion that
he was dangerous. He argues, “Under the logic of the district
court, in any state where carrying a firearm is a perfectly
legal activity, every citizen could be dangerous, and subject to
a Terry frisk and pat down.”
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. See Pennsylvania v. Mimms,
434 U.S. 106, 112 (1977) (per curiam). The Fourth Amendment
does not “require . . . police officers [to] take unnecessary
risks in the performance of their duties.” Terry v. Ohio, 392
U.S. 1, 23 (1968). And it is inconsequential that the person
thought to be armed was a passenger. See Maryland v. Wilson,
519 U.S. 408, 414 (1997). It is also inconsequential that the
passenger may have had a permit to carry the concealed firearm.
4
The danger justifying a protective frisk arises from the
combination of a forced police encounter and the presence of a
weapon, not from any illegality of the weapon’s possession. See
Adams v. Williams, 407 U.S. 143, 146 (1972); Michigan v. Long,
463 U.S. 1032, 1052 n.16 (1983).
I
The material facts in this case are not disputed. At about
3:55 p.m. on March 24, 2014, an unidentified man called the
Ranson, West Virginia Police Department and told Officer Crystal
Tharp that he had just “witnessed a black male in a bluish
greenish Toyota Camry load a firearm [and] conceal it in his
pocket” while in the parking lot of the 7-Eleven on North
Mildred Street. The caller advised Officer Tharp that the Camry
was being driven by a white woman and had “just left” the
parking lot, traveling south on North Mildred Street.
The 7-Eleven on North Mildred Street is adjacent to the
Apple Tree Garden Apartments, and the area constitutes the
highest crime area in Ranson. One officer who testified said
that in his short one and a half years as a state trooper, he
had experience with at least 20 incidents of drug trafficking in
the 7-Eleven parking lot. Another officer testified that “when
[she] was doing drug work[,] . . . [she] dropped an informant
off to buy drugs” at the 7-Eleven parking lot and observed
5
“three other people waiting for drugs in that parking lot.” She
added that she had personally received “numerous complaints” of
people running between the parking lot and the apartment
complex, making drug transactions. Another officer testified
that “[a]nytime you hear Apple Tree or 7-Eleven, your radar goes
up a notch.” Accordingly, when the Ranson Police Department
received the tip about someone loading a gun in the 7-Eleven
parking lot, its officers’ “radar [went] up a notch,” and the
officers went “on heightened alert.”
While still on the telephone with the caller, Officer Tharp
relayed the information to Officer Kendall Hudson and Captain
Robbie Roberts. Hudson immediately left the station to respond
to the call, and Roberts left soon thereafter to provide backup.
When Officer Hudson turned onto North Mildred Street a
short time later, he observed a blue-green Toyota Camry being
driven by a white woman with a black male passenger. Noticing
that they were not wearing seatbelts, Hudson effected a traffic
stop approximately seven blocks, or three-quarters of a mile,
south of the 7-Eleven. He estimated that the traffic stop took
place two to three minutes after the call had been received at
the station.
After calling in the stop, Officer Hudson approached the
driver’s side of the vehicle with his weapon drawn but carried
below his waist and asked the driver for her license,
6
registration, and proof of insurance. He also asked the male
passenger, the defendant Robinson, for his identification but
quickly realized that doing so was “probably not a good idea”
because “[t]his guy might have a gun[,] [and] I’m asking him to
get into his pocket to get his I.D.” Instead, Officer Hudson
asked Robinson to step out of the vehicle.
At this point, Captain Roberts arrived and opened the front
passenger door. As Robinson was exiting the vehicle, Captain
Roberts asked him if he had any weapons on him. Instead of
responding verbally, Robinson “gave [Roberts] a weird look” or,
more specifically, an “‘oh, crap’ look[].” 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 this point, Captain Roberts
directed Robinson to put his hands on top of the car and
performed a frisk for weapons, recovering a loaded gun from the
front pocket of Robinson’s pants. After conducting the frisk,
Roberts recognized Robinson, recalled that he had previously
been convicted of a felony, and arrested him.
After Robinson was charged with the illegal possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), he
filed a motion to suppress the evidence of the firearm and
ammunition seized during the frisk, arguing that the frisk
violated his Fourth Amendment rights.
7
The district court denied the motion, concluding that the
officers possessed reasonable suspicion to believe that Robinson
was armed and dangerous. Relying on Navarette v. California,
134 S. Ct. 1683 (2014), the court concluded that the anonymous
caller’s eyewitness knowledge and the contemporaneous nature of
the report indicated that the tip was sufficiently reliable to
contribute to the officers’ reasonable suspicion. The 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 a reasonable suspicion that Robinson
was armed and dangerous.
Robinson thereafter pleaded guilty to the firearm
possession charge, reserving his right to appeal the district
court’s denial of his suppression motion, and the district court
sentenced him to 37 months’ imprisonment. Robinson appealed the
denial of his motion to suppress, and a panel of this court
reversed the district court’s decision denying Robinson’s motion
to suppress and vacated his conviction and sentence. United
States v. Robinson, 814 F.3d 201, 213 (4th Cir. 2016). By order
dated April 25, 2016, we granted the government’s petition for
rehearing en banc, which vacated the panel’s judgment and
opinion. See 4th Cir. Local R. 35(c).
8
II
Robinson’s appeal is defined as much by what he concedes as
by what he challenges. Robinson rightfully acknowledges that
the Ranson police had the right to stop the vehicle in which he
was a passenger after observing a traffic violation, see Whren
v. United States, 517 U.S. 806, 819 (1996), and also that they
had the authority to direct him to exit the vehicle during the
valid traffic stop, see Wilson, 519 U.S. at 415. He also
correctly concedes that the anonymous tip received by the Ranson
Police Department was sufficiently reliable to justify the
officers’ reliance on it. See Navarette, 134 S. Ct. at 1688-89(concluding that an anonymous 911 call “bore adequate indicia of
reliability for the officer to credit the caller’s account” in
large part because, like here, the caller “claimed eyewitness
knowledge of the alleged [conduct]” and the call was a
“contemporaneous report” that was “made under the stress of
excitement caused by a startling event”). Finally, and most
importantly, Robinson does not contest the district court’s
conclusion that the police had reasonable suspicion to believe
that he was armed.
Robinson’s argument focuses on whether the officers could
reasonably have suspected that he was dangerous. He argues that
while the officers may well have had good reason to suspect that
he was carrying a loaded concealed firearm, they lacked
9
objective facts indicating that he was also dangerous, so as to
justify a frisk for weapons, since an officer must reasonably
suspect that the person being frisked is both armed and
dangerous. See Terry, 392 U.S. at 27. Robinson notes that at
the time of the frisk, West Virginia residents could lawfully
carry a concealed firearm if they had received a license from
the State. See W. Va. Code § 61-7-3 to -4 (2014). And, because
the police did not know whether or not he possessed such a
license, the tip that a suspect matching his description was
carrying a loaded firearm concealed in his pocket was, he
argues, a report of innocent behavior that was not sufficient to
indicate that he posed a danger to others. Moreover, he argues,
his behavior during the stop did not create suspicion -- “he was
compliant, cooperative, [and] not displaying signs of
nervousness.” In these circumstances, he concludes, the
officer’s frisk was not justified by any reasonable suspicion
that he was dangerous.
Robinson’s argument presumes that the legal possession of a
firearm cannot pose a danger to police officers during a forced
stop, and it collapses the requirements for making a stop with
the requirements for conducting a frisk. It thus fails at
several levels when considered under the Supreme Court’s “stop-
and-frisk” jurisprudence. First, Robinson confuses the standard
for making stops -- which requires a reasonable suspicion that a
10
crime or other infraction has been or is being committed -- with
the standard for conducting a frisk -- which requires both a
lawful investigatory stop and a reasonable suspicion that the
person stopped is armed and dangerous. See Arizona v. Johnson,
555 U.S. 323, 326-27 (2009). Second, he fails to recognize that
traffic stops alone are inherently dangerous for police
officers. Third, he also fails to recognize that traffic stops
of persons who are armed, whether legally or illegally, pose yet
a greater safety risk to police officers. And fourth, he argues
illogically that when a person forcefully stopped may be legally
permitted to possess a firearm, any risk of danger to police
officers posed by the firearm is eliminated.
We begin by noting that the Supreme Court has repeatedly
recognized that whenever police officers use their authority to
effect a stop, they subject themselves to a risk of harm. This
holds true whether the temporary detention is a traditional,
“on-the-street” Terry stop to investigate an officer’s
reasonable suspicion “that the person apprehended is committing
or has committed a criminal offense,” Johnson, 555 U.S. at 326,
or a stop of a motor vehicle and all of its occupants to enforce
a jurisdiction’s traffic laws, id. at 327. The Supreme Court
has explained that “the risk of a violent encounter in a
traffic-stop setting ‘stems not from the ordinary reaction of a
motorist stopped for a speeding violation, but from the fact
11
that evidence of a more serious crime might be uncovered during
the stop.’” Id. at 331 (quoting Wilson, 519 U.S. at 414); see
also Mimms, 434 U.S. at 110 (rejecting “the argument that
traffic violations necessarily involve less danger to officers
than other types of confrontations”). Indeed, the Court has
concluded that traffic stops are “especially fraught with danger
to police officers.” Long, 463 U.S. at 1047. And the Court has
also observed that when the stop involves one or more
passengers, that fact “increases the possible sources of harm to
the officer,” Wilson, 519 U.S. at 413, as “the motivation of a
passenger to employ violence . . . is every bit as great as that
of the driver,” id. at 414.
In Wilson, the Court observed that “[i]n 1994 alone, there
were 5,762 officer assaults and 11 officers killed during
traffic pursuits and stops,” 519 U.S. at 413, prompting the
Court to conclude that the public interest in police officer
safety during traffic stops is “both legitimate and weighty,”
id. at 412 (quoting Mimms, 434 U.S. at 110). And more recent
statistics, unfortunately, remain as grim. Of the 51 law
enforcement officers feloniously killed in the line of duty in
2014, 9 officers (or 18%) were fatally injured during traffic
pursuits or stops. FBI, Officers Feloniously Killed, in Uniform
Crime Reports: Law Enforcement Officers Killed and Assaulted,
2014.
12
To be clear, the general risk that is inherent during a
traffic stop does not, without more, justify a frisk of the
automobile’s occupants. But the risk inherent in all traffic
stops is heightened exponentially when the person who has been
stopped -- a person whose propensities are unknown -- is “armed
with a weapon that could unexpectedly and fatally be used
against” the officer in a matter of seconds. Terry, 392 U.S. at
23. 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,” id. at 27, thus
justifying a Terry frisk.
In Terry, Officer McFadden “seized” Terry on the street and
subjected him to a “search” without probable cause to believe
that he had committed or was committing a crime or that he was
armed. 392 U.S. at 19. The Court was thus confronted with two
distinct constitutional issues: first, whether a person could
be stopped (seized) on suspicion of criminal conduct that fell
short of probable cause; and second, whether the officer could
conduct a protective frisk or “pat down” for weapons (search)
during the stop. The Court readily concluded that Terry’s
seizure was “reasonable” under the Fourth Amendment because the
officer reasonably believed that criminal conduct was afoot.
Id. at 22-23. The Court then turned its attention to the
legality of the frisk, stating, “We are now concerned with more
13
than the governmental interest in investigating crime; in
addition, 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.” Id. at 23. The
concern -- i.e., the danger -- was thus found in the presence of
a weapon during a forced police encounter. Indeed, the Court
said as much, noting in approving Officer McFadden’s frisk of
Terry that “a reasonably prudent man would have been warranted
in believing petitioner was armed and thus presented a threat to
the officer’s safety.” Id. at 28 (emphasis added). In this
manner, the Court adopted the now well-known standard that an
officer can frisk a validly stopped person if the officer
reasonably believes that the person is “armed and dangerous.”
Id. at 27; see also id. at 32 (Harlan, J., concurring)
(explaining that because a “frisk is justified in order to
protect the officer during an encounter with a citizen, the
officer must first have constitutional grounds to insist on an
encounter, to make a forcible stop”).
The Supreme Court applied Terry to circumstances analogous
to those before us in Mimms, where an officer, after making a
routine traffic stop, “noticed a large bulge” under the
defendant’s jacket and therefore conducted a frisk. 434 U.S. at
107. Holding that the frisk was clearly justified, the Mimms
14
Court explained that “[t]he bulge in the jacket permitted the
officer to conclude that Mimms was armed and thus posed a
serious and present danger to the safety of the officer,” adding
that “[i]n these circumstances, any man of ‘reasonable caution’
would likely have conducted the ‘pat down.’” Id. at 112(emphasis added). The only evidence of Mimms’ dangerousness was
the bulge indicating that he was armed. See id. It was thus
Mimms’ status of being armed during a forced police encounter
(the traffic stop) that posed the danger justifying the frisk,
and we have previously relied on Mimms for that precise
principle. See United States v. Baker, 78 F.3d 135, 137 (4th
Cir. 1996) (citing Mimms, 434 U.S. at 112) (“Based on the
inordinate risk of danger to law enforcement officers during
traffic stops, observing a bulge that could be made by a weapon
in a suspect’s clothing reasonably warrants a belief that the
suspect is potentially dangerous, even if the suspect was
stopped only for a minor violation”).
In short, established Supreme Court law imposes two
requirements for conducting a frisk, but no more than two:
first, that the officer have conducted a lawful stop, which
includes both a traditional Terry stop as well as a traffic
stop; and second, that during the valid but forced encounter,
the officer reasonably suspect that the person is armed and
therefore dangerous. In both Terry and Mimms, the Court
15
deliberately linked “armed” and “dangerous,” recognizing that
the frisks in those cases were lawful because the stops were
valid and the officer reasonably believed that the person
stopped “was armed and thus” dangerous. Terry, 392 U.S. at 28(emphasis added); Mimms, 434 U.S. at 112 (emphasis added). The
use of “and thus” recognizes that the risk of danger is created
simply because the person, who was forcibly stopped, is armed.
In this case, both requirements -- a lawful stop and a
reasonable suspicion that Robinson was armed -- were satisfied,
thus justifying Captain Roberts’ frisk under the Fourth
Amendment as a matter of law.
Robinson argues that Mimms is distinguishable because the
frisk there took place in a jurisdiction that made it a crime to
carry a concealed deadly weapon. West Virginia, on the other
hand, generally permits its citizens to carry firearms. From
this distinction, Robinson argues that when the person forcibly
stopped may be legally permitted to possess a firearm, the risk
of danger posed by the firearm is eliminated. This argument,
however, fails under the Supreme Court’s express recognition
that the legality of the frisk does not depend on the illegality
of the firearm’s possession. Indeed, the Court has twice
explained that “[t]he purpose of this limited search [i.e., the
frisk] is not to discover evidence of crime, but to allow the
officer to pursue his investigation without fear of violence,
16
and thus the frisk for weapons might be equally necessary and
reasonable, whether or not carrying a concealed weapon violated
any applicable state law.” Williams, 407 U.S. at 146 (emphasis
added); see also Long, 463 U.S. at 1052 n.16 (“[W]e have
expressly rejected the view that the validity of a Terry search
[i.e., a frisk] depends on whether the weapon is possessed in
accordance with state law”). Robinson’s position directly
conflicts with these observations.
Notwithstanding the Supreme Court’s statements, Robinson’s
position also fails as a matter of logic to recognize that the
risk inherent in a forced stop of a person who is armed exists
even when the firearm is legally possessed. The 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. See United States v. Rodriguez, 739 F.3d 481, 491
(10th Cir. 2013) (concluding that “an officer making a lawful
investigatory stop [must have] the ability to protect himself
from an armed suspect whose propensities are unknown” and
therefore rejecting the defendant’s argument that the officer
“had no reason to believe he was dangerous” even though the
officer had seen a handgun tucked into the waistband of his
pants).
17
Accordingly, we conclude that given Robinson’s concession
that he was lawfully stopped and that the police officers had
reasonable suspicion to believe that he was armed, the officers
were, as a matter of law, justified in frisking him and, in
doing so, did not violate Robinson’s Fourth Amendment rights.
III
While the lawful traffic stop of Robinson and the
reasonable suspicion that he was armed justified the frisk in
this case, the officers had knowledge of additional facts that
increased the level of their suspicion that Robinson was
dangerous.
First, the reliable tip in this case was not just that an
individual matching Robinson’s description possessed a firearm.
Rather, the caller reported that he had observed an individual
“load a firearm [and] conceal it in his pocket” while in the
parking lot of the 7-Eleven on North Mildred Street, a location
that the officers knew to be a popular spot for drug-trafficking
activity. Four officers testified about the high level of drug-
trafficking and other criminal activity in that particular
parking lot, prompting one to explain, “[a]nytime you hear . . .
7-Eleven, your radar goes up a notch.” Knowing that the 7-
Eleven parking lot was frequently used as a site for drug
trafficking, a reasonable officer could legitimately suspect
18
that an individual who was seen both loading and concealing a
firearm in that very parking lot may well have been doing so in
connection with drug-trafficking activity, making his possession
of a firearm even more dangerous. See United States v. Lomax,
293 F.3d 701, 705 (4th Cir. 2002) (recognizing the “numerous
ways in which a firearm might further or advance drug
trafficking”).
Second, when Captain Roberts asked Robinson, as he was
getting out of the car, whether he was carrying any firearms,
Robinson failed to respond verbally and instead gave the officer
an “‘oh, crap’ look[],” which Roberts took to mean, “I don’t
want to lie to you, but I’m not going to tell you anything
[either].” Surely, Robinson’s evasive response further
heightened Captain Roberts’ legitimate concern as to the
dangerousness of the situation.
While not necessary to the conclusion in this case, these
facts can only confirm Captain Roberts’ reasonable suspicion
that Robinson was dangerous and therefore should be frisked for
the protection of the officer and all others present. Indeed,
in light of all of the circumstances known to Captain Roberts,
he would unquestionably have been criticized for not conducting
a frisk if, after having failed to do so, something untoward had
happened.
19
* * *
The judgment of the district court is accordingly
AFFIRMED.
20
WYNN, Circuit Judge, concurring in the judgment:
Defendant Shaquille Robinson concedes that law enforcement
officers reasonably suspected that he was carrying a firearm. 1
Defendant further concedes that the law enforcement officers
lawfully stopped him for an unrelated, albeit pretextual,
reason. I agree with the majority that these facts alone allowed
the officers to perform a protective frisk of Defendant during
the stop.
In reaching this conclusion, the majority frames this case
as a run-of-the-mill search-and-seizure case involving a traffic
stop in which we must assess whether law enforcement officers
had reasonable suspicion to frisk Defendant based on the facts
known to the officers at the time they conducted the frisk. To
that end, the majority focuses on the dangers law enforcement
officers face in conducting lawful stops, particularly traffic
stops, and the officers’ reasonable suspicion that Defendant had
a “weapon.”
1 The majority states that the law enforcement officers
received a “tip” that Defendant was carrying a loaded firearm.
Ante at 4.
Carrying a loaded firearm in West Virginia is presumptively
lawful activity. Thus, information that an individual is
engaging in presumptively lawful activity should not constitute
a “tip” for purposes of this analysis.
21
But this case is not about traffic stops or “weapons”--it
is about firearms and the danger they pose to law enforcement
officers. In particular, this case arises from the Defendant’s
presumptively lawful activity of carrying a firearm, which
became the basis for making a pretextual, albeit lawful, stop
for not wearing a seatbelt. From these remarkable facts, the
majority opinion reduces the issue in this case to whether the
officers justifiably frisked Defendant, after a lawful stop,
because they had a “tip” that Defendant carried a “weapon.”
By focusing on the officers’ justification--rather than
Defendant’s presumptively lawful decision to carry a firearm--
the majority elides discussion of the two key issues in this
case: (1) whether individuals who carry firearms--lawfully or
unlawfully--pose a categorical risk of danger to others and
police officers, in particular, and (2) whether individuals who
choose to carry firearms forego certain constitutional
protections afforded to individuals who elect not to carry
firearms. As explained in more detail below, the majority
opinion’s attempt to duck these questions is futile because its
conclusion necessarily answers “yes” to both questions.
I.
First, the majority opinion altogether avoids addressing
the first issue--whether individuals who carry firearms
(lawfully or unlawfully) pose a categorical risk of danger to
22
others--by reinterpreting the Supreme Court’s long-established
test for determining whether law enforcement officers lawfully
performed a protective frisk. Under that test, the question is
whether the officers had “reasonable suspicion that the person
subjected to the frisk is armed and dangerous.” Arizona v.
Johnson, 555 U.S. 323, 327 (1997). Instead of according
“dangerous” an independent meaning, the majority contends that
“armed and dangerous” is a unitary concept--if law enforcement
officers reasonably suspect a detainee is “armed,” they
necessarily reasonably suspect he is “dangerous.” Ante at 16
(“[T]he risk of the danger is created simply because the person,
who was forcibly stopped, is armed.”). I disagree with the
majority opinion’s contention that “armed and dangerous” is a
unitary concept.
To be sure, from the outset, stripping “dangerous” of
independent meaning violates the long-standing principle that
elements separated by a conjunctive should be interpreted as
distinct requirements. See, e.g., Crooks v. Harrelson, 282 U.S.
55, 58 (1932); Am. Paper Inst. v. U.S. E.P.A., 660 F.2d 954, 961
(4th Cir. 1981). That is why other Circuits have held that law
enforcement officers must reasonably suspect a detainee is “both
armed and a danger to the safety of officers or others” before
conducting a frisk. United States v. Leo, 792 F.3d 742, 748 (7th
Cir. 2015) (emphasis added); Northrup v. City of Toledo Police
23
Dep’t, 785 F.3d 1128, 1132 (6th Cir. 2015) (“Clearly established
law required [the officer] to point to evidence that [the
subject] may have been armed and dangerous. Yet all he ever saw
was that [the subject] was armed--and legally so.” (emphasis in
original) (citation and internal quotation marks omitted)).
The view of the other Circuits on according “dangerous” an
independent meaning makes sense because the majority opinion’s
unitary meaning interpretation would allow law enforcement
officers to frisk a wide swath of lawfully stopped individuals
engaging in harmless activity. Indeed, by definition, an
individual is “armed” if he is “[e]quipped with a weapon.”
Armed, Black’s Law Dictionary (9th ed. 2009).
To illustrate the absurdity of the majority opinion’s
unitary meaning interpretation, consider, for example, that
courts have found a bottle to be a “weapon.” See United States
v. Daulton, 488 F.2d 524, 525 (5th Cir. 1973) (“Courts have held
that a wine bottle can be a dangerous weapon.”). Under the
majority’s unitary meaning interpretation, officers informed
that an individual was leaving a convenience store “armed” with
a bottle of wine could, after a lawful stop, frisk that
individual because, in the majority’s words, “the risk of the
danger is created simply because the person, who was forcibly
stopped, is armed.” Ante at 16.
24
As Justice Brennan noted, numerous everyday objects turn
into “weapons” when put to appropriate use:
A “weapon” could include a brick, a baseball bat, a hammer,
a broken bottle, a fishing knife, barbed wire, a knitting
needle, a sharpened pencil, a riding crop, a jagged can,
rope, a screw driver, an ice pick, a tire iron, garden
shears, a pitch fork, a shovel, a length of chain, a
penknife, a fork, metal pipe, a stick, etc. The foregoing
only illustrate the variety of lawful objects which are
often innocently possessed without wrongful intent.
Wright v. New Jersey, 469 U.S. 1146, 1149 n.3 (1985) (Brennan,
J., dissenting from dismissal for want of substantial federal
question). Under the majority opinion’s unitary meaning
interpretation, reasonable suspicion that an individual
possessed any of these items would give rise to reasonable
suspicion to frisk the individual, after a lawful stop, even
absent any evidence the individual intended to use the object as
a weapon. The Fourth Amendment does not contemplate giving law
enforcement officers such wide-ranging authority to engage in
warrantless frisks of detainees. See, e.g., City of Los Angeles
v. Patel, 135 S. Ct. 2443, 2455 (2015) (holding that courts must
not interpret the Fourth Amendment in a way that allows the
“narrow exception[s]” to the warrant requirement “to swallow the
rule”); United States v. Wilson, 953 F.2d 116, 126 (4th Cir.
1991) (refusing to allow “limited Terry exception to swallow the
rule”).
25
The majority nonetheless contends that the Supreme Court
“deliberately linked ‘armed’ and ‘dangerous’” in Terry v. Ohio,
392 U.S. 1 (1968), and Pennsylvania v. Mimms, 434 U.S. 106(1977) (per curiam), by approving frisks because the officers
“reasonably believed that the person stopped ‘was armed and
thus’ dangerous.” Ante at 16 (quoting Terry, 392 U.S. at 28;
Mimms, 434 U.S. at 112). But when the Supreme Court has
elaborated on the test for a lawful frisk, it has highlighted
the independent role of “dangerousness,” holding that Terry
authorizes a “frisk” of an automobile when law enforcement
officers reasonably suspect “that the suspect is dangerous and
the suspect may gain immediate control of weapons.” Michigan v.
Long, 463 U.S. 1032, 1049 (1983).
How then do we reconcile the language in Terry and Mimms,
upon which the majority relies, with Long and the plain language
of the test, which requires that officers reasonably suspect an
individual is both armed and dangerous? The answer plainly lies
in the type of “weapon” at issue.
In Long, the officers reasonably suspected that the
defendant had a knife. 463 U.S. at 1050. By contrast, in Terry
and Mimms, the officers reasonably suspected the detainees had
firearms. Terry, 392 U.S. at 6-7; Mimms, 434 U.S. at 106.
Accordingly, Terry and Mimms collapse the “armed and dangerous”
test into a single inquiry only when law enforcement officers
26
reasonably suspect that a detainee has a firearm or other
inherently dangerous weapon. Such a reading ensures that the
“armed” and “dangerous” prongs retain distinct meaning and
places meaningful restrictions on law enforcement officers’
ability to frisk lawfully stopped individuals.
But the majority opinion also contends that we should
collapse the “armed and dangerous” test into a single inquiry--
regardless of the type of “weapon” with which the detainee is
“armed”-- because the combination of a “forcible stop” and an
armed detainee poses a “risk of danger.” Ante at 16 (“[T]he risk
of danger is created simply because the person, who was forcibly
stopped, is armed.”). Yet committing a minor traffic violation-
-a seatbelt violation here--provides no basis to believe an
individual poses any special danger warranting departure from
the rule that law enforcement officers may not, as a general
matter, frisk lawfully detained individuals. Likewise, as
explained above, given the numerous objects that can constitute
“weapons,” being “armed” does not, by itself, establish that an
individual poses a danger. Rather, what the majority opinion
skillfully avoids is that the “risk of danger” to the officers
arose from the officers’ reasonable suspicion Defendant was
carrying a firearm.
Confronting the inescapable reality that lawfully-stopped
individuals armed with firearms are categorically dangerous
27
reflects the heightened danger posed by firearms. To that end,
the Supreme Court has held that “a gun is an article that is
typically and characteristically dangerous; the use for which it
is manufactured and sold is a dangerous one, and the law
reasonably may presume that such an article is always
dangerous.” McLaughlin v. United States, 476 U.S. 16, 17
(1986). This Court also has recognized “the substantial risk of
danger and the inherently violent nature of firearms,” Pelissero
v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999) (quotation
omitted), as have other Circuits, e.g., United States v.
Copening, 506 F.3d 1241, 1248 (10th Cir. 2007) (characterizing a
“loaded gun [as] by any measure an inherently dangerous
weapon”); Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir. 1998)
(recognizing “the inherently violent nature of firearms, and the
danger firearms pose to all members of society”); United States
v. Allah, 130 F.3d 33, 40 (2d Cir. 1997) (“[F]irearms are
inherently dangerous devices.”).
Indeed, the Supreme Court’s decision in District of
Columbia v. Heller--which first recognized the individual right
to carry firearms--is premised on the dangerousness of carrying
firearms. In particular, Heller held that the Second Amendment
affords individuals the right to keep and use handguns for the
“defense” and “protection of one’s home and family”--for
example, to ward off “attacker[s]” or threaten “burglar[s].” 554
28
U.S. 570, 628-29 (2008) (emphasis added). If a lawfully
possessed firearm did not pose a danger to attackers, burglars,
or other threatening individuals, there would be no need for
individuals to own and carry firearms for protection.
And the widespread judicial recognition of the inherent
dangerousness of firearms accords with the evidence. The
Department of Justice reported that in 2011, the most recent
year for which comprehensive statistics are available, a total
of 478,400 fatal and nonfatal violent crimes were committed with
afirearm. Michael Planty & Jennifer L. Truman, U.S. Dep’t of
Justice, Bureau of Justice Stats., Special Report: Firearm
Violence, 1993-2011, at 1 (May 2013). Likewise, firearms are a
leading cause of injury-related death in the United States and
have been for many years. Jonathan E. Selkowitz, Comment, Guns,
Public Nuisance, and the PLCAA: A Public Health-Inspired Legal
Analysis of the Predicate Exception, 83 Temp. L. Rev. 793, 801-
02 (2011); see also Centers for Disease Control & Prevention,
Nat’l Ctr. for Health Stats., Underlying Cause of Death 1999-
2014 on CDC WONDER Online Database, http://wonder.cdc.gov/ucd-
icd10.html (queried on Nov. 18, 2016) (reporting that there were
497,632 intentional firearms deaths between 1999 and 2014).
Accordingly, as a matter of law and fact, firearms--and
therefore individuals who choose to carry firearms--are
inherently dangerous.
29
In sum, individuals who carry firearms--lawfully or
unlawfully--pose a risk of danger to themselves, law enforcement
officers, and the public at large. Accordingly, law enforcement
officers may frisk lawfully stopped individuals whom the
officers reasonably suspect are carrying a firearm because a
detainee’s possession of a firearm poses a categorical “danger”
to the officers.
II.
Having determined that individuals who are armed with a
firearm are categorically “dangerous,” we confront the second
issue--whether individuals who choose to carry firearms
sacrifice certain constitutional protections afforded to
individuals who elect not to carry firearms. We must confront
this issue because treating individuals armed with firearms--
lawfully or unlawfully--as categorically dangerous places
special burdens on such individuals. Today we recognize one
such burden: individuals who carry firearms elect to subject
themselves to being frisked when lawfully stopped by law
enforcement officers.
I see no basis--nor does the majority opinion provide any--
for limiting our conclusion that individuals who choose to carry
firearms are categorically dangerous to the Terry frisk inquiry.
Accordingly, the majority decision today necessarily leads to
the conclusion that individuals who elect to carry firearms
30
forego other constitutional rights, like the Fourth Amendment
right to have law enforcement officers “knock-and-announce”
before forcibly entering homes. See Richards v. Wisconsin, 520
U.S. 385, 394 (1997) (“In order to justify a ‘no-knock’ entry,
the police must have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances,
would be dangerous or futile.” (emphasis added)). Likewise, it
is difficult to escape the conclusion that individuals who
choose to carry firearms necessarily face greater restriction on
their concurrent exercise of other constitutional rights, like
those protected by the First Amendment. See Schenck v. United
States, 249 U.S. 47, 52 (1919) (Holmes, J.) (“The question in
every [freedom of speech] case is whether the words used are
used in such circumstances and are of such a nature as to create
a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.”
(emphasis added)).
The Supreme Court has long recognized that “[t]he promotion
of safety of persons and property is unquestionably at the core
of the State’s police power,” Kelley v. Johnson, 425 U.S. 238,
247 (1976), and “the structure and limitations of federalism . .
. allow the States great latitude under their police powers to
legislate as to the protection of the lives, limbs, health,
comfort, and quiet of all persons,” Gonzales v. Oregon, 546 U.S.
31243, 270 (2006). Thus, like most rights, the right protected by
the Second Amendment--which Defendant’s conduct may or may not
implicate 2--“is not unlimited” and therefore does not amount to
“a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Heller, 554 U.S. at 626.
In particular, today’s majority opinion necessarily recognizes
that the limitations on the right to carry firearms derive not
only from the language of the Second Amendment--as Heller
recognized--but also from other provisions in the Constitution,
which protect law enforcement officers and the public at large
from individuals who elect to engage in dangerous activities,
like the carrying of firearms.
2
Although we have expressly declined to resolve whether the
right recognized in Heller extends beyond the home, United
States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), other
courts are divided on the question, compare Moore v. Madigan,
702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right
to keep and bear arms for personal self-defense . . . implies a
right to carry a loaded gun outside the home”); Palmer v. Dist.
of Columbia, 59 F. Supp. 3d 173, 181-82 (D.D.C. 2014) (holding
that Second Amendment right recognized in Heller extends beyond
home), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th
Cir. 2016) (“[T]he Second Amendment does not protect the right
of a member of the general public to carry concealed firearms in
public.” (emphasis added)); Young v. Hawaii, 911 F. Supp. 2d,
972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in
public do[] not implicate activity protected by the Second
Amendment.”); Williams v. State, 10 A.3d 1167, 1178 (Md. 2011)
(holding that regulations on carrying firearms outside the home
are “outside of the scope of the Second Amendment, as
articulated in Heller and McDonald”).
32
III.
In sum, because the carrying of a firearm poses a
categorical danger to others--in this case, law enforcement
officers--the law enforcement officers lawfully frisked
Defendant, after lawfully detaining him, based on information
that he carried a firearm. Accordingly, I concur in the
majority opinion’s decision to affirm Defendant’s convictions.
33
PAMELA HARRIS, Circuit Judge, with whom GREGORY, Chief Judge,
DIANA GRIBBON MOTZ, Circuit Judge, and DAVIS, Senior Circuit
Judge, join, dissenting:
In many jurisdictions and for many years, police officers
could assume that anyone carrying a concealed firearm was up to
no good. Because public possession of guns was prohibited or
tightly regulated, concealed firearms were hallmarks of criminal
activity, deadly weapons carried by law-breakers to facilitate
their crimes. So it followed, without much need for
elaboration, that if a suspect legally stopped by the police was
carrying a gun, then he was not only “armed” but also
“dangerous,” justifying a protective frisk under Terry v. Ohio,
392 U.S. 1 (1968).
But that is no longer the case, at least in states like
West Virginia. 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. And as behavior once the province of law-breakers
becomes commonplace and a matter of legal right, we no longer
may take for granted the same correlation between “armed” and
“dangerous.”
The majority disagrees, adopting a bright-line rule that
any citizen availing him or herself of the legal right to carry
34
arms in public is per se “dangerous” under the Terry formulation
and therefore subject to frisk and disarmament, at police
discretion, if stopped for a traffic violation or some other
minor infraction. It may be, as the concurring opinion
suggests, that this is where we will end up – that the price for
exercising the right to bear arms will be the forfeiture of
certain Fourth Amendment protections. Conc. Op. at 30-31. But
unless and until the Supreme Court takes us there, I cannot
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 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. I
must respectfully dissent.
I.
“[A]s public possession and display of firearms become
lawful under more circumstances, Fourth Amendment jurisprudence
and police practices must adapt.” United States v. Williams,
731 F.3d 678, 691 (7th Cir. 2013) (Hamilton, J., concurring).
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
35
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 Williams, 731 F.3d at 691.
That states have elected to trust their citizens to carry guns
safely cannot, of course, change federal Fourth Amendment law.
But it does change the facts on the ground to which Fourth
Amendment standards apply. And once it no longer is the case
that the public carry of guns is illegal or even unusual, courts
must take into account that changed circumstance in applying the
familiar Terry standard.
We have recognized as much already when it comes to the
“stop” portion of a Terry “stop and frisk,” justified on
reasonable suspicion of criminal activity. See Terry, 392 U.S.
at 30; Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). In
jurisdictions in which the public carry of firearms is
prohibited or closely regulated, a concealed gun is indicative
of criminal activity and may give rise to “reasonable suspicion”
sufficient to justify an investigative stop. But when a state
elects to legalize the public carry of firearms, we have held,
the Fourth Amendment equation changes, and public possession of
a gun is no longer “suspicious” in a way that would authorize a
Terry stop. United States v. Black, 707 F.3d 531, 539-40 (4th
Cir. 2013). “Permitting such a justification” for a Terry stop,
36
we explained, “would eviscerate Fourth Amendment protections for
lawfully armed individuals in those states.” Id. at 540.
We are not alone in this insight. In Northrup v. City of
Toledo Police Dep’t, 785 F.3d 1128, 1131-33 (6th Cir. 2015), for
instance, the Sixth Circuit held that where state law permits
the open carry of firearms, the police are not authorized by
Terry to conduct a stop – or an attendant frisk – of a person
brandishing a gun in public. Where the state legislature “has
decided its citizens may be entrusted with firearms on public
streets,” the court reasoned, the police have “no authority to
disregard this decision” by subjecting law-abiding citizens to
Terry stops and frisks. Id. at 1133; see also, e.g., United
States v. Leo, 792 F.3d 742, 749-50, 751-52 (7th Cir. 2015)
(rejecting “frisk” and search of backpack on suspicion that it
contains gun in light of “important developments in Second
Amendment law together with Wisconsin’s [concealed-carry] gun
laws”); United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.
2000) (invalidating Terry stop based on suspicion of gun
possession in open-carry jurisdiction).
In my view, the same reasoning compels the conclusion 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.
37
Guns, of course, are in some sense intrinsically dangerous. But
the question under Terry is whether a person carrying a gun is a
danger to the police or others. Terry, 392 U.S. at 24. And
where the state legislature has decided that its citizens may be
entrusted to safely carry firearms on public streets and during
traffic stops, and law-abiding citizens have availed themselves
of these rights, I do not see how we can presume that every one
of those citizens necessarily poses a danger to the police. See
Northrup, 785 F.3d at 1133 (absent reasonable suspicion that an
armed man is dangerous, officers must “trust . . . their State’s
approach to gun licensure and gun possession”).
To be clear: As Officer Tharp testified at the suppression
hearing, none of the conduct reported in the anonymous tip she
received – that an African-American man had loaded a gun in the
parking lot of a 7-Eleven and then concealed it in his pocket
before leaving in a car – was illegal under West Virginia law.
Nor was there any testimony from the officers that the reported
conduct was unusual, or “out of place” where it occurred. Cf.
United States v. Arvizu, 534 U.S. 266, 276 (2002) (conduct that
appears innocuous in one setting but is unusual in another may
give rise to reasonable suspicion). 1 In terms of Robinson’s
1 We have held that in jurisdictions generally allowing
public gun possession, police testimony that few law-abiding
citizens take advantage of that right is not enough to establish
38
behavior, the officers knew nothing except that Robinson was
engaging in what we must treat as a presumptively lawful
exercise of his right to carry a concealed weapon. See Black,
707 F.3d at 540 (police may not proceed on assumption that gun
displayed in open-carry jurisdiction may be illegally possessed
by convicted felon); see also Northrup, 785 F.3d at 1132 (same).
If that by itself is enough to make a person “dangerous” for
Terry purposes, then the legal right to carry arms in public is
perfectly self-defeating: The moment a person exercises that
right – and has the misfortune to be stopped for a traffic
violation or other minor infraction – he opens himself up to
being frisked and disarmed, at least temporarily, by law
enforcement officers.
The majority insists that this result, putting at cross-
purposes Fourth Amendment and gun possession rights, is
compelled by the Supreme Court’s holdings in Terry v. Ohio, 392
U.S. at 27, and Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977)
(per curiam). According to the majority, those cases establish
that if the police have reasonable suspicion that a suspect is
“armed,” then they necessarily have reasonable suspicion that he
reasonable suspicion for a Terry stop when a gun is publicly
displayed. See Black, 707 F.3d at 540. But even assuming that
such testimony might bear on the separate “dangerousness”
inquiry under Terry, none was offered at this suppression
hearing.
39
is “dangerous,” as well, justifying a frisk under Terry’s “armed
and dangerous” standard. In other words, when the Supreme Court
says “armed and dangerous,” what it really means is “armed and
therefore dangerous,” Maj. Op. at 13-16 – or, put more simply,
“armed.”
But the Supreme Court for decades has adhered to its
conjunctive “armed and dangerous” formulation, giving no
indication that “dangerous” may be read out of the equation as
an expendable redundancy. See Michigan v. Long, 463 U.S. 1032,
1049 (1983) (approving Terry “frisk” of automobile on reasonable
suspicion “that the suspect is dangerous and the suspect may
gain immediate control of weapons”) (emphasis added). Indeed,
until its latest filing before our en banc court, the government
itself understood “armed” and “dangerous” as separate and
independent conditions of a lawful Terry frisk. See Gov’t Br.
at 16-17. And other courts applying Terry in precisely this
context – against a backdrop of state laws that routinely permit
the public possession of firearms – have taken the same
position, holding that a Terry frisk requires reasonable
suspicion that a person is “both armed and a danger to the
safety of officers or others.” Leo, 792 F.3d at 748; see
Northrup, 785 F.3d at 1132 (“Clearly established law required
[the officer] to point to evidence that [the suspect] may have
been armed and dangerous. Yet all he ever saw was that [the
40
suspect] was armed – and legally so.”) (emphasis in original)
(citation omitted).
It is true, as the majority argues, that the Court in Terry
and Mimms was prepared to infer danger from the presence of a
concealed firearm. Terry, 392 U.S. at 28; Mimms, 434 U.S. at
112. But that simply brings us back to our starting point:
that in jurisdictions where public possession or concealed carry
of guns is illegal, as in Terry, see Northrup, 785 F.3d at 1131,
or tightly regulated, as in Mimms, 2 there is precious little
space between “armed” and “dangerous” – not only because someone
carrying a gun probably is breaking the law already, but also
because he likely is inclined to commit other crimes with the
assistance of the gun. Nobody – including Robinson – doubts
that as in Mimms and Terry, a presumptively illegal concealed
gun gives rise to a reasonable suspicion of dangerousness,
allowing the police to conduct a protective frisk. But those
cases simply do not speak to the very different circumstances
presented when public gun possession is presumptively legal, see
Black, 707 F.3d at 540, and there no longer is reason to believe
2
At the time of the events in Mimms, local law appears to
have strictly limited the public possession of firearms,
allowing it only in certain narrow circumstances. See 1943 Pa.
Laws 487; 1972 Pa. Laws 1577.
41
that a person carrying a gun during a traffic stop is anything
but a perfectly law-abiding citizen.
Nor, contrary to the majority’s analysis, Maj. Op. at 16-
17, does Adams v. Williams, 407 U.S. 143 (1972), resolve this
issue. Adams does make clear, as the majority emphasizes, that
even a lawfully possessed firearm can pose a threat to officer
safety. 407 U.S. at 146. But that point is of limited use
here, because nobody is disputing it. Robinson’s argument is
not, as the majority would have it, Maj. Op. at 16, that any
risk of danger posed by a firearm necessarily is “eliminated” if
the firearm is legally possessed. Where, as in Adams, an armed
man suspected of drug offenses is sitting alone in a parked car
at 2:15 a.m. and unwilling to cooperate with the police,
everyone agrees that the circumstances give rise to a reasonable
suspicion of “dangerousness” regardless of the legal status of
the gun. See 407 U.S. at 147-48. But the question in this case
is different: not whether a presumptively lawful gun may give
rise to a reasonable suspicion of dangerousness under certain
circumstances, but whether it necessarily and automatically does
so in every circumstance. On that question, Adams has nothing
to say. 3
3 Nor does Michigan v. Long, 463 U.S. 1032 (1983), on which
the majority also relies. In a footnote, Long cites Adams for
the proposition that a person in legal possession of a weapon –
42
The problems with treating “armed and dangerous” as a
“unitary” concept, see Conc. Op. at 23, go beyond the mismatch
with precedent. As the concurring opinion cogently explains,
the logic of Terry frisk doctrine is premised on an independent
role for dangerousness: Whether a person in possession of, say,
a screwdriver is deemed “armed” under Terry depends entirely on
whether there is separate reason to believe he or she also is
“dangerous” and thus might use that screwdriver as a weapon.
See Conc. Op. at 24-25; United States v. Matchett, 802 F.3d
1185, 1193 (11th Cir. 2015) (upholding Terry frisk of burglary
suspect because burglars frequently are “armed” with tools like
screwdrivers).
And though it purports to rely on a common-sense equation
of guns with danger, the majority’s approach can embrace that
connection only very selectively: An armed citizen in an open-
carry jurisdiction necessarily poses a “danger” to the police
in Long, a knife – may pose a risk of danger to the police. Id.at 1052 n.16. But the Court’s approval of the frisk in Long
rested not only on the presence of a weapon, but also on an
independent finding that under all the circumstances of the case
– featuring a suspect who drove at excessive speed, swerved into
a ditch, refused initially to cooperate, and appeared to be
intoxicated – the officers were “clearly justified” in their
“reasonable belief that Long posed a danger” to their safety.
Id. at 1050.
43
that justifies a protective frisk if and only if he appears to
have committed some offense, however trivial – like the seatbelt
violation here – leading to a valid stop. See Maj. Op. at 15-
16. If, on the other hand, the police in this case had
initiated a consensual encounter with Robinson in the 7-Eleven
parking lot, then the gun Robinson was suspected of carrying
would not have been grounds for a frisk, as the government
conceded at oral argument. Likewise, had Robinson exited the
car in which he was a passenger before the police could conduct
their pretextual traffic stop, then again he would no longer be
“dangerous” for purposes of allowing a Terry frisk,
notwithstanding the concealed gun in his pocket. To be sure, as
the majority explains, Maj. Op. at 15, Terry doctrine requires
that a frisk be attendant to a lawful stop. But if “armed” may
be conflated with “dangerous” under Terry, then it is hard to
see why an officer’s right to protect him or herself would be
made to turn on whether a dangerous person carrying a gun has
remembered to fasten his seatbelt.
Most important, by equating “armed” with “dangerous” even
in states where the carrying of guns is widely permitted, the
majority’s rule has the effect of depriving countless law-
abiding citizens of what otherwise would be their Fourth
Amendment and other constitutional rights. As the concurring
opinion explains, the upshot of the majority’s approach is that
44
citizens who avail themselves of their legal right to carry
firearms will be subject to a wide range of “special burdens,”
the full extent of which we only can begin to discern. Conc.
Op. at 30. Certainly, such citizens may be frisked and
temporarily disarmed when stopped, even for the most minor of
infractions; if they necessarily are “dangerous,” then the
police should be free to dispense with Fourth Amendment “knock-
and-announce” protections before entering their homes; and when
armed and “therefore dangerous” citizens seek to assemble in
public, their First Amendment rights may be restricted based on
the risk they are conclusively presumed to pose to public
safety. See id. at 30-31. To the concurring opinion’s list, I
would add one more: If a police officer reasonably believes
that a suspect poses a “threat of serious physical harm,” he may
use deadly force to protect himself, see, e.g., Cooper v.
Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (internal quotation
marks omitted), and while we have held in the past that the
presence of a gun alone does not constitute a “threat,” id., or
establish that a suspect is “dangerous” to an officer, Pena v.
Porter, 316 F. App’x 303, 311 (4th Cir. 2009) (unpublished),
today’s decision insisting on a conclusive link between “armed”
and “dangerous” undoubtedly will have implications for police
use of force, as well. Those consequences – and others that
surely will follow – are profound, both practically and
45
constitutionally, and I would not be so quick to invite them
without some direction from the Supreme Court.
But my biggest concern is that these “special burdens” –
most relevantly, the Terry frisks at issue here – will not be
distributed evenly across the population. Allowing police
officers making stops to frisk anyone thought to be armed, in a
state where the carrying of guns is widely permitted, “creates a
serious and recurring threat to the privacy of countless
individuals,” Arizona v. Gant, 556 U.S. 332, 345 (2009) (police
may not search a car “whenever an individual is caught
committing a traffic offense”). And, critically, it “gives
police officers unbridled discretion” to decide which of those
legally armed citizens will be targeted for frisks, implicating
concerns about the abuse of police discretion that are
fundamental to the Fourth Amendment. See id.; Black, 707 F.3d
at 541. As Judge Hamilton warned in Williams, once a state
legalizes the public possession of firearms, unchecked police
discretion to single out anyone carrying a gun gives rise to
“the potential for intentional or unintentional discrimination
based on neighborhood, class, race, or ethnicity.” 731 F.3d at
694; see also Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016)
(Sotomayor, J., dissenting) (“it is no secret that people of
color are disproportionate victims” of special police scrutiny).
46
The government assures that we need not worry about these
possible disproportionate effects because a Terry frisk may be
conducted only after a stop on reasonable suspicion of “criminal
activity” – an “objective standard” that “prevents police stops
on hunches alone.” Pet’n for Reh’g En Banc at 13. But that
simply is not so, and to understand why not, we need look no
further than the facts of this very case. Robinson was not
stopped for “criminal activity,” at least as that term generally
is understood. As a legal matter, he was stopped because
Officer Hudson observed a seatbelt violation – the kind of minor
and routine traffic infraction that does next to nothing to
narrow the class of legally armed citizens who may be subjected
to a frisk at police discretion. And in reality, as Officer
Hudson candidly testified at the suppression hearing, Robinson
was stopped so that the police could investigate the tip they
had received about a black male carrying a concealed firearm.
Though Robinson’s gun possession was presumptively lawful in
light of West Virginia’s generous public-carry laws, see Black,
707 F.3d at 540, that is, Robinson was stopped precisely because
the police had a hunch that his possession in fact might be
unlawful.
It is true, as the government argues, that under Whren v.
United States, 517 U.S. 806 (1996), the Fourth Amendment permits
this kind of pretextual traffic stop, undertaken in order to
47
explore some unsupported hunch. But that is exactly the
problem: In light of Whren, the requirement that a valid stop
precede a Terry frisk imposes no meaningful limit at all on
police discretion. If the police in a public-carry jurisdiction
want to target a particular armed citizen for an exploratory
frisk, then they need do no more than wait and watch for a
moving violation, as in this case – or a parking violation, see
United States v. Johnson, 823 F.3d 408, 412 (7th Cir. 2016)
(Hamilton, J., dissenting) (describing pretextual stop for
“parking while black”) reh’g en banc granted, opinion vacated
(Aug. 8, 2016); or, for the pedestrians among us, a jaywalking
infraction, as the government helpfully explained at oral
argument – and then make a pretextual stop.
And we should be clear about the degree to which that
pretextual stop may be leveraged into a wide-ranging and
intrusive investigation. Cf. Strieff, 136 S. Ct. at 2069
(Sotomayor, J., dissenting) (“Although many Americans have been
stopped for speeding or jaywalking, few may realize how
degrading a stop can be when the officer is looking for more.”)
First, of course, is the frisk itself, euphemistically described
as a “pat-down” but recognized, since Terry, as a “serious
intrusion upon the sanctity of the person” that may extend to a
thorough touching of sensitive and private areas of the body.
Id. at 2070; Terry, 392 U.S. at 17 & n. 14. And under Michigan
48
v. Long, 463 U.S. 1032, 1049-50 (1983), reasonable suspicion
that the subject of a vehicular stop is armed and dangerous may
authorize not only a frisk of the suspect’s person but also a
“frisk” of the passenger compartment of the car. So with
possession of a firearm in a public-carry state now enough to
generate a reasonable suspicion of dangerousness, pretextual
stops will allow police officers to target law-abiding gun
owners not only for intrusive frisks but also limited car
searches, at police discretion and on the basis of nothing more
than a minor infraction. That is effectively the same result
that the Supreme Court found unacceptable in Gant, 556 U.S. at
345 (forbidding car searches incident to arrest for minor
traffic violations), and it should be no more acceptable here,
where a right of constitutional dimension – the right to bear
arms – is in the balance.
I recognize the serious concerns for officer safety that
underlie the Terry frisk doctrine and the majority’s opinion.
Those concerns, as the majority points out, Maj. Op. at 12-13,
may be especially pronounced during traffic stops, see, e.g.,
Mimms, 434 U.S. at 110-11 – though, of course, the majority’s
rule is not limited to the context of traffic stops. And I do
not doubt that recent legal developments regarding gun
possession have made the work of the police more dangerous as
well as more difficult. See Williams, 731 F.3d at 694.
49
In my view, states have every right to address these
pressing safety concerns with generally applicable and even-
handed laws imposing modest burdens on all citizens who choose
to arm themselves in public. For instance, many states – though
not West Virginia – seek to reconcile police safety and a right
to public carry through “duty to inform” laws, requiring any
individual carrying a weapon to so inform the police whenever he
or she is stopped, 4 or in response to police queries. 5 And if a
person fails to disclose a suspected weapon to the police as
required by state law, then that failure itself may give rise to
a reasonable suspicion of dangerousness, justifying a protective
frisk.
West Virginia, however, has taken a different approach,
permitting concealed carry without the need for disclosure or
temporary disarmament during traffic stops. For the reasons
described above, I do not believe we may deem inherently
“dangerous” any West Virginia citizen stopped for a routine
traffic violation, on the sole ground that he is thought to have
availed himself fully of those state-law rights to gun
4 See, e.g., Alaska Stat. § 11.61.220; La. Stat. §
40:1379.3; Neb. Rev. Stat. § 69-2440; N.C. Gen. Stat. § 14-
415.11; Okla. Stat. tit. 21, § 1290.8.
5 See, e.g., Ariz. Rev. Stat. § 13-3112; Ark. Code § 5-73-
315; 430 Ill. Comp. Stat. 66/10; S.C. Code § 23-31-215.
50
possession. Nor, in my view, does the Fourth Amendment allow
for a regime in which the safety risks of a policy like West
Virginia’s are mitigated by selective and discretionary police
spot-checks and frisks of certain legally armed citizens, by way
of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440
U.S. 648, 661 (1979) (invalidating discretionary spot-checks of
drivers for licenses and registrations in furtherance of roadway
safety). Absent some “specific, articulable suspicion of
danger” in a particular case, see United States v. Sakyi, 160
F.3d 164, 168-69 (4th Cir. 1998), West Virginia’s citizens,
including its police officers, must trust their state’s
considered judgment that the benefits of its approach to public
gun possession outweigh the risks. See Northrup, 785 F.3d at
1133.
II.
The majority’s rule is bright-line and broad: Any citizen
carrying a gun in a public-carry jurisdiction is “armed” and
also per se “dangerous” under Terry, regardless of surrounding
circumstances. Maj. Op. at 18. The majority goes on, however,
to consider the particular facts surrounding Robinson’s stop,
and concludes that they confirm a reasonable suspicion of
dangerousness. Id. at 18-19. Though this portion of the
51
majority’s opinion appears to be dicta unnecessary to its
holding, I respectfully note my disagreement.
To be clear, I have no quarrel with the majority’s premise:
that under certain circumstances, even a lawfully possessed
firearm can give rise to a reasonable suspicion of
dangerousness. See Adams, 407 U.S. at 146. And so it is
incumbent on me to consider whether the frisk in this case was
justified in light not only of reasonable suspicion that
Robinson was armed – insufficient by itself – but also of the
surrounding circumstances. But like the magistrate judge who
conducted Robinson’s suppression hearing, I do not believe that
either of the factors cited by the government and the majority –
Robinson’s presence in a high-crime neighborhood, or his
“evasive response” when asked if he had a gun – is probative of
dangerousness in the context of this case. Taking all of the
circumstances together, I see no “particularized and objective
basis” for believing that Robinson was dangerous as well as
armed. See United States v. George, 732 F.3d 296, 299 (4th Cir.
2013) (internal quotation marks omitted).
The suppression hearing in this case was conducted by a
magistrate judge, who heard testimony from all of the officers
involved in the events leading up to Robinson’s frisk. In
recommending suppression, the magistrate judge evaluated the
full circumstances surrounding Robinson’s frisk, including both
52
the “high-crime” status of the apartment complex next to the 7-
Eleven at which Robinson was seen loading his weapon and
Robinson’s conduct during the traffic stop. According to the
magistrate judge, the testimony at the hearing indicated that
Robinson was fully cooperative with the police, who perceived no
“furtive gestures” or movements suggesting an intent to reach
for a weapon. J.A. 131. And based on all of the evidence
before him, the magistrate judge concluded that the government
had failed to “articulate any specific fact, other than
[Robinson’s] possession of a firearm in a high crime
neighborhood, a legal activity in the state of West Virginia,
which would justify the officer’s suspicion that [Robinson] was
dangerous.” Id. at 138.
The district court, of course, rejected the magistrate
judge’s report and recommendation and denied the suppression
motion. But because the district court did not conduct a second
hearing, this case must be decided on the record created before
the magistrate judge. And on that record, I see no reason for
second-guessing the magistrate judge’s determination that the
government’s witnesses “testified to no objective and
particularized facts demonstrating that [Robinson] was dangerous
at the time of the traffic stop.” Id. at 137.
It is true, as the magistrate judge carefully reviewed,
that police officers provided testimony that an apartment
53
complex adjacent to the 7-Eleven at issue is considered a high
crime area, and that crime from that complex often “spilled
over” into the 7-Eleven parking lot where Robinson was seen, “as
evidenced by shoplifting, thefts and drug trafficking
activities.” Id. at 130. And it is clear, as the magistrate
judge recognized, that presence in a high-crime area may
contribute to a finding of reasonable suspicion. See Illinois
v. Wardlow, 528 U.S. 119, 124 (2000).
But as our cases have indicated, the relative significance
of a high-crime area, like other reasonable suspicion factors,
is context-specific. In some cases, for instance, we have
sustained a Terry frisk because it occurred in a high-crime area
late at night. See, e.g., George, 732 F.3d at 300. In Black,
however, we rejected a position substantially the same as the
government’s here: that even if public gun possession alone
does not justify a Terry stop where the law permits the open
carry of firearms, gun possession in a high-crime area would be
sufficiently “suspicious” to do so. 707 F.3d at 542.
Black should govern here. Whether or not a high-crime
environment might make other ambiguous conduct – for instance,
fleeing from a police officer, see Wardlow, 528 U.S. at 124 –
more likely to be criminal or dangerous, it sheds no light on
the likelihood that an individual’s presumptively legal gun
possession poses a danger to the police. That is because where
54
public gun possession is permitted, high-crime areas are exactly
the setting in which we should most expect to see law-abiding
citizens carrying guns; there is more, not less, reason to arm
oneself lawfully for self-defense in a high-crime area. Cf.
McDonald, 561 U.S. at 790 (“[T]he Second Amendment right
protects the rights of minorities and other residents of high-
crime areas.”). Presence in a high-crime area, in other words,
is as likely an explanation for innocent and non-dangerous gun
possession as it is an indication that gun possession is illegal
or dangerous, and it does nothing to help the police tell the
difference.
As discussed above, in states allowing the public
possession of weapons, authorizing a Terry pat-down whenever
there is reasonable suspicion that a person is armed, and in
connection with a stop for any minor violation, would give the
police unchecked discretion in deciding which armed citizens to
frisk. Allowing such automatic frisks only in high-crime areas
would do nothing to address that concern. Instead, it would
guarantee that the costs of such intrusions are borne
disproportionately by the racial minorities and less affluent
individuals who today are most likely to live and work in
neighborhoods classified as high-crime. See Black, 707 F.3d at
542. Given the lack of probative value associated with a high-
crime area when it comes to gun possession, there is no
55
justification for adopting such a rule. “The new constitutional
and statutory rights for individuals to bear arms at home and in
public apply to all,” and “[t]he courts have an obligation to
protect those rights” in neighborhoods labeled “bad” as well as
“good.” Williams, 731 F.3d at 694 (Hamilton, J., concurring).
Apart from the high-crime neighborhood, the majority, like
the government, puts primary reliance on Robinson’s “evasive
response” when asked by Captain Roberts whether he was carrying
a firearm. Maj. Op. at 19. But according to the officers’
testimony, Robinson was cooperative throughout his encounter
with the police, and never made any inconsistent statements
indicating nervousness. And the magistrate judge found –
without dispute by the district court – that Captain Roberts’s
inquiry to Robinson came virtually simultaneously with the frisk
itself: Roberts “asked [Robinson] if he had any firearms on his
person as [Robinson] was exiting the vehicle,” and upon
perceiving a “weird look,” ordered Robinson to place his hands
on top of the car and conducted the frisk. J.A. 118. Even
construing this evidence in the light most favorable to the
government, there was a very limited time window during which
Robinson could have responded before the frisk made the question
moot, and his failure to interject an answer immediately did not
56
provide an objective indication that he was about to abandon his
cooperative posture and become dangerous. 6
That is particularly so given that West Virginia does not
require that people carrying firearms inform the police of their
guns during traffic or other stops, even if asked. See supra at
50. Where a state has decided that gun owners have a right to
carry concealed weapons without so informing the police, gun
owners should not be subjected to frisks because they stand on
their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of
officer’s demand to see permit for gun being brandished in
public is “particularly acute” where state has not only
legalized open carry of firearms but also “does not require gun
owners to produce or even carry their licenses for inquiring
officers”). Under a different legal regime, different
inferences could be drawn from a failure to answer an officer’s
question about a gun. See supra at 50-11. But I do not think
we may presume dangerousness from a failure to waive – quickly
6The majority appears also to credit the “weirdness” of
Robinson’s look, as understood by Captain Roberts, as indicative
of evasiveness or perhaps dangerousness itself. Maj. Op. at 19.
On this point, I must agree with the magistrate judge: Captain
Roberts’s perception that through his look Robinson actually was
saying, “[O]h, crap,” “I don’t want to lie to you, but I’m not
going to tell you anything,” J.A. 89, is sufficiently subjective
that it cannot constitute an objective or articulable factor
supporting reasonable suspicion of anything.
57
enough – a state-conferred right to conceal a weapon during a
police encounter.
Again, I recognize that expanded rights to openly carry or
conceal guns in public will engender genuine safety concerns on
the part of police officers, as well as other citizens, who more
often will find themselves confronting individuals who may be
armed. But where a sovereign state has made the judgment that
its citizens safely may arm themselves in public, I do not
believe we may presume that public gun possession gives rise to
a reasonable suspicion of dangerousness, no matter what the
neighborhood. And because the rest of the circumstances
surrounding this otherwise unremarkable traffic stop do not add
appreciably to the reasonable suspicion calculus, I must
conclude that the police were without authority to frisk
Robinson under Terry’s “armed and dangerous” standard.
Accordingly, I dissent.
58