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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4902
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:
Decided:
appeal
presents
the
question
of
whether
law
to
be
armed,
regardless
of
whether
the
person
may
by
the
fact
that
state
law
authorizes
persons
to
that
its
believing
occupants
that
were
the
not
cars
wearing
passenger,
seatbelts.
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,
district
court
denied
the
motion
to
suppress,
After
Robinson
appeal,
Robinson
contends
again
that
the
information
officer
who
makes
lawful
traffic
stop
and
who
has
The
danger
justifying
protective
frisk
arises
from
the
See
I
The material facts in this case are not disputed.
At about
while
Mildred Street.
was
being
in
the
parking
lot
of
the
7-Eleven
on
North
driven
by
white
woman
and
had
just
left
the
Tree
Garden
Apartments,
and
the
area
constitutes
the
to
buy
drugs
at
the
7-Eleven
parking
lot
and
observed
She
running
between
the
parking
lot
and
the
apartment
that [a]nytime you hear Apple Tree or 7-Eleven, your radar goes
up a notch.
Officer
Hudson
turned
onto
North
Mildred
Street
Noticing
place two to three minutes after the call had been received at
the station.
After calling in the stop, Officer Hudson approached the
drivers side of the vehicle with his weapon drawn but carried
below
his
waist
and
asked
the
6
driver
for
her
license,
Instead of
directed
hands
Robinson
to
put
his
on
top
of
the
car
and
recognized
Robinson,
recalled
that
he
had
previously
motion
ammunition
to
seized
suppress
during
the
the
evidence
frisk,
of
arguing
the
that
firearm
the
and
frisk
134 S. Ct. 1683 (2014), the court concluded that the anonymous
callers 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
thereafter
pleaded
guilty
to
the
firearm
United
By order
en
banc,
which
vacated
the
panels
judgment
and
II
Robinsons appeal is defined as much by what he concedes as
by what he challenges.
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
Department
was
sufficiently
reliable
to
justify
the
of
the
contemporaneous
alleged
report
[conduct]
that
was
made
and
under
Robinson
does
not
contest
the
the
call
the
was
stress
a
of
courts
He argues that
while the officers may well have had good reason to suspect that
he
was
carrying
loaded
concealed
9
firearm,
they
lacked
that
dangerous.
the
person
being
frisked
is
both
armed
and
And, because
loaded
firearm
concealed
in
his
was,
he
Moreover, he argues,
his behavior during the stop did not create suspicion -- he was
compliant,
cooperative,
nervousness.
In
these
[and]
not
displaying
circumstances,
he
signs
of
concludes,
the
requirements
for
conducting
frisk.
It
thus
fails
at
several levels when considered under the Supreme Courts stopand-frisk jurisprudence.
stops
alone
are
dangerous
for
police
This
Terry
stop
to
investigate
an
officers
explained
that
the
risk
of
violent
encounter
in
also
434
Mimms,
U.S.
at
110
(rejecting
the
argument
that
observed
that
when
the
stop
involves
one
or
more
5,762
traffic
officer
pursuits
and
assaults
and
11
stops,
519
U.S.
officers
at
killed
413,
during
prompting
the
statistics,
Of
unfortunately,
remain
as
grim.
the
51
law
2014.
12
weapon
that
could
unexpectedly
and
fatally
be
used
the
stop.
The
Court
readily
concluded
that
Terrys
reasonably
Id.
22-23.
at
believed
The
Court
that
then
criminal
turned
conduct
its
was
attention
afoot.
to
the
than
the
governmental
interest
in
investigating
crime;
in
he
is
dealing
is
not
armed
with
weapon
that
could
Id. at 23.
The
In this
can
frisk
validly
stopped
person
if
the
officer
at
27;
(explaining
protect
the
see
that
also
id.
because
officer
during
at
32
frisk
an
(Harlan,
is
J.,
justified
encounter
with
concurring)
in
order
citizen,
to
the
traffic
stop,
noticed
large
bulge
under
the
434 U.S. at
to
conclude
that
Mimms
was
armed
and
thus
posed
likely
have
(emphasis added).
conducted
the
pat
down.
Id.
at
112
See id.
It was thus
we
have
previously
relied
on
Mimms
for
that
precise
principle.
Cir.
(citing
1996)
Mimms,
434
U.S.
at
112)
(Based
on
the
is
potentially
dangerous,
even
if
the
suspect
was
imposes
two
short,
requirements
for
first,
the
that
established
conducting
officer
Supreme
a
Court
frisk,
have
but
conducted
law
no
more
lawful
than
stop,
two:
which
officer
therefore
reasonably
dangerous.
suspect
In
both
15
that
the
Terry
person
and
is
Mimms,
armed
the
and
Court
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
The
justifying
Captain
Roberts
frisk
under
the
Fourth
From
fails
under
the
Supreme
Courts
This argument,
express
recognition
that the legality of the frisk does not depend on the illegality
of
the
firearms
possession.
Indeed,
the
Court
has
twice
and thus the frisk for weapons might be equally necessary and
reasonable, whether or not carrying a concealed weapon violated
any applicable state law.
added);
see
also
Long,
U.S.
at
1052
n.16
([W]e
have
with
state
law).
Robinsons
position
directly
The presumptive
an
armed
suspect
whose
propensities
are
unknown
and
III
While
the
lawful
traffic
stop
of
Robinson
and
the
the
level
of
their
suspicion
that
Robinson
was
dangerous.
First, the reliable tip in this case was not just that an
individual matching Robinsons 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.
trafficking
and
other
criminal
activity
in
that
particular
parking
trafficking,
lot
was
frequently
reasonable
officer
18
used
could
site
legitimately
for
drug
suspect
293 F.3d 701, 705 (4th Cir. 2002) (recognizing the numerous
ways
in
which
firearm
might
further
or
advance
drug
trafficking).
Second,
when
Captain
Roberts
asked
Robinson,
as
he
was
Surely,
Captain
Robinsons
Roberts
evasive
legitimate
response
concern
as
further
to
the
can
only
confirm
Captain
Roberts
reasonable
suspicion
Indeed,
19
20
further
stopped
concedes
that
him
an
for
the
law
unrelated,
enforcement
albeit
officers
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
21
presumptively
lawful
activity
of
carrying
firearm,
which
justifiably
frisked
Defendant,
after
lawful
stop,
focusing
on
the
officers
justification--rather
than
Defendants 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
categorical
risk
of
danger
to
others
and
to
carry
protections
afforded
firearms.
As
firearms
to
explained
forego
individuals
in
more
certain
who
detail
constitutional
elect
below,
not
to
the
carry
majority
first
the
majority
opinion
issue--whether
altogether
individuals
who
avoids
carry
addressing
firearms
to
Johnson,
555
the
frisk
U.S.
323,
is
armed
327
and
(1997).
dangerous.
Instead
of
Arizona
v.
according
reasonably
suspect
detainee
is
armed,
they
be
independent
sure,
from
meaning
the
violates
outset,
the
stripping
long-standing
dangerous
principle
of
that
Dept, 785 F.3d 1128, 1132 (6th Cir. 2015) (Clearly established
law
required
[the
officer]
to
point
to
evidence
that
[the
meaning
interpretation
would
allow
law
enforcement
in
individual
harmless
is
armed
activity.
if
he
is
Indeed,
by
[e]quipped
definition,
with
an
weapon.
illustrate
meaning
the
absurdity
interpretation,
of
the
consider,
majority
for
opinions
example,
that
unitary
meaning
interpretation,
Under the
officers
informed
bottle
of
wine
could,
after
lawful
stop,
frisk
that
24
Under
interpretation,
possessed
any
the
majority
reasonable
of
these
opinions
suspicion
items
would
unitary
that
give
rise
an
to
meaning
individual
reasonable
25
U.S.
(1968),
and
Pennsylvania
v.
Mimms,
434
U.S.
106
believed
that
the
person
stopped
was
armed
and
434
U.S.
at
112).
But
when
the
Supreme
Court
has
independent
authorizes
role
of
dangerousness,
frisk
of
an
automobile
holding
when
law
that
Terry
enforcement
Long,
the
officers
reasonably
suspected
that
the
By contrast, in Terry
reasonably
suspect
that
detainee
and
dangerous
meaningful
has
firearm
or
other
prongs
retain
restrictions
on
distinct
law
meaning
enforcement
and
officers
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.).
-a
seatbelt
violation
here--provides
no
basis
to
believe
an
frisk
lawfully
detained
individuals.
Likewise,
as
from
the
officers
reasonable
suspicion
Defendant
was
carrying a firearm.
Confronting the inescapable reality that lawfully-stopped
individuals
armed
with
firearms
27
are
categorically
dangerous
To that end,
manufactured
reasonably
may
dangerous.
(1986).
and
sold
presume
is
that
McLaughlin
v.
dangerous
such
United
an
one,
and
article
States,
476
the
is
U.S.
law
always
16,
17
Thompson,
omitted),
170
as
F.3d
have
442,
other
447
(4th
Circuits,
Cir.
e.g.,
1999)
United
(quotation
States
v.
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
the
Supreme
Courts
decision
in
District
of
affords individuals the right to keep and use handguns for the
defense
and
protection
of
ones
home
and
family--for
U.S.
570,
628-29
(2008)
(emphasis
added).
If
lawfully
the
dangerousness
widespread
of
judicial
firearms
recognition
accords
with
the
of
the
inherent
evidence.
The
Bureau
of
Justice
Stats.,
Special
Report:
Firearm
intentional
Accordingly,
therefore
as
firearms
matter
individuals
who
deaths
of
law
choose
inherently dangerous.
29
between
1999
and
2014).
and
fact,
firearms--and
to
carry
firearms--are
In
sum,
individuals
who
carry
firearms--lawfully
or
may
frisk
lawfully
stopped
individuals
whom
the
individuals
certain
who
choose
constitutional
to
carry
protections
firearms
afforded
to
We must confront
or
unlawfully--as
categorically
dangerous
places
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
30
who
elect
to
carry
firearms
to
have
law
enforcement
officers
knock-and-announce
difficult
to
escape
the
conclusion
that
Likewise, it
individuals
who
clear
and
substantive
present
evils
danger
that
that
Congress
they
has
will
a
bring
right
to
about
the
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 States 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,
from
the
language
of
the
Second
Amendment--as
Heller
III.
In
sum,
categorical
because
danger
officers--the
law
to
the
carrying
others--in
enforcement
of
this
firearm
case,
law
officers
poses
enforcement
lawfully
frisked
he
carried
firearm.
Accordingly,
concur
in
33
the
crimes.
So
it
followed,
without
much
need
for
gun,
then
he
was
not
only
armed
but
also
stop
conduct
fully
sanctioned
by
state
law
is
therefore
subject
to
frisk
and
disarmament,
at
police
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.
But
I.
[A]s
public
possession
and
display
of
firearms
become
731 F.3d 678, 691 (7th Cir. 2013) (Hamilton, J., concurring).
Within
the
recognized
last
new
decade,
Second
federal
Amendment
constitutional
protections
for
law
has
individual
portion
of
Terry
stop
and
frisk,
justified
on
In
jurisdictions
is
in
which
the
public
carry
of
firearms
Cir. 2013).
36
Id. at 540.
In Northrup v. City of
Toledo Police Dept, 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.
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
Amendment
gun
in
law
light
together
of
with
important
developments
Wisconsins
in
Second
[concealed-carry]
gun
laws); United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.
2000)
(invalidating
Terry
stop
based
on
suspicion
of
gun
state
like
West
Virginia,
which
broadly
allows
public
But
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
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 Robinsons
in
what
we
must
treat
as
presumptively
lawful
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:
frisked
and
disarmed,
at
least
temporarily,
by
law
enforcement officers.
The majority insists that this result, putting at crosspurposes
Fourth
Amendment
and
gun
possession
rights,
is
the
conjunctive
Supreme
armed
Court
and
for
decades
dangerous
has
adhered
formulation,
to
its
giving
no
Indeed,
until its latest filing before our en banc court, the government
itself
understood
armed
and
dangerous
as
separate
and
public
position,
possession
holding
of
that
firearms
Terry
have
frisk
taken
requires
the
same
reasonable
of
officers
or
others.
Leo,
792
F.3d
at
748;
see
gives
rise
to
reasonable
suspicion
of
dangerousness,
But those
41
Robinsons 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.
2:15
a.m.
and
unwilling
to
cooperate
with
the
police,
is different:
to say. 3
The
problems
with
treating
armed
and
dangerous
as
43
If,
on
the
other
hand,
the
police
in
this
case
had
not
have
been
grounds
for
frisk,
as
the
government
for
purposes
of
allowing
Terry
frisk,
To be sure, as
rule
citizens
has
of
the
what
effect
of
otherwise
depriving
would
be
countless
their
law-
Fourth
As the concurring
citizens
who
avail
themselves
of
their
legal
right
to
carry
at
30.
Certainly,
such
citizens
may
be
Conc.
frisked
and
if
they
necessarily
are
dangerous,
then
the
police should be free to dispense with Fourth Amendment knockand-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
safety.
they
are
conclusively
presumed
to
pose
to
public
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. Appx 303, 311 (4th Cir. 2009) (unpublished),
todays decision insisting on a conclusive link between armed
and dangerous undoubtedly will have implications for police
use of force, as well.
surely
will
follow
profound,
45
both
practically
and
evenly
across
the
population.
Allowing
police
and
recurring
threat
to
the
privacy
of
countless
not
committing
search
a
traffic
car
whenever
offense).
an
And,
individual
is
caught
critically,
it
gives
about
the
abuse
of
police
discretion
that
are
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
But that
understood.
As
legal
matter,
he
was
stopped
because
routine
traffic
infraction
that
does
next
to
nothing
to
Robinsons
gun
possession
was
presumptively
lawful
in
explore
some
problem:
unsupported
hunch.
But
that
is
exactly
the
J.,
dissenting)
(describing
pretextual
stop
for
as
the
government
helpfully
explained
at
oral
which
that
we
pretextual
intrusive
should
stop
be
may
clear
be
investigation.
about
leveraged
Cf.
the
degree
into
Strieff,
a
136
to
wide-ranging
S.
Ct.
at
and
2069
for
speeding
or
jaywalking,
few
may
realize
how
pat-down
but
recognized,
since
Terry,
as
serious
of
the
passenger
compartment
of
the
car.
So
with
will
owners
not
reasonable
allow
only
suspicion
police
for
of
officers
intrusive
dangerousness,
to
frisks
target
but
pretextual
law-abiding
also
limited
gun
car
(forbidding
car
searches
incident
to
arrest
for
minor
doubt
that
recent
legal
developments
And I do
regarding
gun
In
my
pressing
view,
safety
states
have
concerns
with
every
right
generally
to
address
applicable
and
these
even-
And if a
Virginia,
however,
has
taken
different
approach,
described
deem
dangerous
above,
any
West
do
not
believe
Virginia
citizen
we
may
stopped
inherently
for
routine
himself
fully
of
those
state-law
rights
to
gun
See, e.g., Ariz. Rev. Stat. 13-3112; Ark. Code 5-73315; 430 Ill. Comp. Stat. 66/10; S.C. Code 23-31-215.
50
possession.
Absent
some
specific,
articulable
suspicion
of
164,
including
168-69
its
(4th
police
Cir.
1998),
officers,
West
must
Virginias
trust
citizens,
their
states
1133.
II.
The majoritys rule is bright-line and broad:
Any citizen
concludes
dangerousness.
that
Id.
they
at
confirm
18-19.
51
reasonable
Though
this
suspicion
portion
of
of
the
majoritys
opinion
appears
to
be
dicta
unnecessary
to
its
under
firearm
certain
can
give
dangerousness.
See
circumstances,
rise
Adams,
even
to
407
U.S.
lawfully
reasonable
at
146.
possessed
suspicion
of
And
is
so
it
in
light
not
only
of
reasonable
suspicion
that
presence
in
high-crime
neighborhood,
or
his
for
believing
that
Robinson
was
dangerous
as
well
as
armed.
See United States v. George, 732 F.3d 296, 299 (4th Cir.
in
recommending
the
events
leading
suppression,
the
up
to
Robinsons
magistrate
judge
frisk.
evaluated
In
the
at
which
Robinson
was
seen
loading
his
weapon
and
According to the
J.A. 131.
failed
[Robinsons]
to
articulate
possession
any
of
specific
firearm
fact,
in
other
high
than
crime
Id. at 138.
district
and
court,
of
course,
recommendation
and
rejected
denied
the
the
magistrate
judges
report
suppression
motion.
the
magistrate
witnesses
judges
testified
determination
to
no
that
objective
the
and
Id. at 137.
police
officers
provided
53
testimony
that
an
apartment
area,
and
that
crime
from
that
complex
often
spilled
over into the 7-Eleven parking lot where Robinson was seen, as
evidenced
by
activities.
judge
shoplifting,
Id. at 130.
recognized,
that
thefts
and
drug
trafficking
in
high-crime
area
may
See Illinois
context-specific.
In
some
cases,
for
instance,
we
have
In Black,
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.
Black
should
govern
here.
or
not
high-crime
likelihood
that
an
individuals
presumptively
legal
gun
561
U.S.
at
790
([T]he
Second
Amendment
Cf.
right
discussed
possession
of
above,
weapons,
in
states
authorizing
allowing
Terry
the
pat-down
public
whenever
that
the
costs
of
such
Instead, it would
intrusions
are
borne
who
today
are
most
likely
to
live
and
work
in
when
it
comes
to
55
gun
possession,
there
is
no
government,
puts
primary
reliance
on
Robinsons
evasive
the
indicating
was
and
cooperative
never
nervousness.
made
And
throughout
any
the
his
inconsistent
magistrate
encounter
statements
judge
found
[Robinson]
was
exiting
the
vehicle,
and
upon
this
evidence
in
the
light
most
J.A. 118.
favorable
Even
to
the
56
See supra at
demand
is
to
see
particularly
permit
acute
for
gun
where
being
state
brandished
has
not
in
only
legalized open carry of firearms but also does not require gun
owners to produce or even carry their licenses for inquiring
officers).
Under
different
legal
regime,
different
citizens
safely
may
arm
themselves
in
public,
do
not
reasonable
suspicion
neighborhood.
And
of
dangerousness,
because
the
rest
no
of
matter
the
what
the
circumstances
to
that
under
the
the
reasonable
police
Terrys
suspicion
were
without
armed
and
Accordingly, I dissent.
58
calculus,
authority
dangerous
I
to
must
frisk
standard.