Filed: Feb. 23, 2016
Latest Update: Mar. 02, 2020
Summary: 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: October 29, 2015 Decided: February 23, 2016 Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Reversed and vacated by pub
Summary: 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: October 29, 2015 Decided: February 23, 2016 Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Reversed and vacated by publ..
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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: October 29, 2015 Decided: February 23, 2016
Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Reversed and vacated by published opinion. Judge Harris wrote
the opinion, in which Senior Judge Davis joined. Judge Niemeyer
wrote a dissenting opinion.
ARGUED: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Martinsburg, West Virginia, for Appellant. Jarod
James Douglas, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, 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, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:
On an afternoon in 2014, the Ranson, West Virginia police
department received an anonymous tip that a black man had loaded
a gun in a 7-Eleven parking lot and then concealed it in his
pocket before leaving in a car. A few minutes later, the police
stopped a car matching the description they had been given,
citing a traffic violation. Shaquille Montel Robinson, a black
man, was a passenger in the car. After Robinson exited the
vehicle at police request, an officer frisked Robinson and
discovered a firearm in the pocket of Robinson’s pants.
Under Terry v. Ohio, 392 U.S. 1 (1968), the police may
conduct a limited pat-down for weapons when there is reasonable
suspicion that a suspect is both armed and dangerous. “Armed”
is not a problem in this case: Assuming the credibility of the
anonymous tip, which we may for purposes of this appeal, the
police had reason to believe that Robinson was armed when they
stopped him. But “dangerous” is more difficult, and what makes
it difficult is that West Virginia law authorizes citizens to
arm themselves with concealed guns. Because the carrying of a
concealed firearm is not itself illegal in West Virginia, and
because the circumstances did not otherwise provide an objective
basis for inferring danger, we must conclude that the officer
who frisked Robinson lacked reasonable suspicion that Robinson
was not only armed but also dangerous. Accordingly, we reverse
2
the district court decision denying Robinson’s motion to
suppress the evidence uncovered by this unlawful search.
I.
A.
At 3:55 p.m. on March 24, 2014, the Ranson police
department forwarded an anonymous call to Officer Crystal Tharp.
At a hearing conducted by the magistrate judge, Tharp testified
that the caller “advised that he had witnessed a black male in a
bluish greenish Toyota Camry load a firearm, conceal it in his
pocket, and there was a white female driver.” J.A. 43. The
caller indicated that the car had just left the location, which
he identified as the parking lot of a 7-Eleven on North Mildred
Street. Immediately adjacent to that 7-Eleven is the Apple Tree
Gardens apartment complex, regarded by the officers in this case
as the highest-crime area in Ranson.
The caller advised that the Camry had headed south on North
Mildred Street. Two officers, Captain Robbie Roberts and
Officer Kendall Hudson, separately left the station to find the
car. Officer Hudson spotted a car matching the description
traveling on North Mildred Street, and noticed that the two
occupants were not wearing seatbelts, a traffic violation under
West Virginia law. Relying on the seatbelt violation, he pulled
over the car, approximately two to three minutes after the
3
anonymous call had been received and roughly three-quarters of a
mile from the 7-Eleven.
Officer Hudson approached the driver’s side of the car with
his weapon drawn and asked the female driver for her license and
registration. She complied. At the hearing before the
magistrate judge, Hudson testified that he also initially asked
Robinson for his identification, but then realized that asking
him to reach into his pocket was “probably not a good idea”
because “[t]his guy might have a gun.” J.A. 66. Instead,
Hudson asked Robinson to step out of the car.
At this point, Captain Roberts had arrived at the scene as
backup. Roberts testified that he approached Robinson and
opened the passenger-side door. As Robinson was exiting the
car, Roberts asked Robinson if he had any weapons. In response,
Roberts testified, Robinson gave a “weird look.” J.A. 88.
Roberts ordered Robinson to put his hands on top of the car and
began to frisk him for weapons, discovering a firearm in
Robinson’s pants pocket.
Captain Roberts whispered “gun” to Officer Hudson, and
Hudson handcuffed Robinson and ordered him to sit on the
sidewalk. According to the officers’ testimony, Robinson was
cooperative throughout his encounter with the police, and made
no furtive gestures or movements suggesting that he intended to
reach for a weapon. After frisking him, however, Roberts
4
recognized Robinson from prior criminal proceedings and
confirmed that Robinson was a convicted felon.
B.
A grand jury in the Northern District of West Virginia
indicted Robinson on one count of being a felon in possession of
a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). Robinson moved to suppress the evidence against
him — the gun recovered during the traffic stop of March 24 — on
the ground that the frisk was unlawful. The district court
referred the motion to a magistrate judge for a report and
recommendation.
The magistrate judge conducted a hearing, taking testimony
from all of the officers involved in the events of March 24:
Officer Tharp, Officer Hudson, and Captain Roberts. A fourth
officer, Trooper D.R. Walker, testified as to the high level of
criminal activity at the Apple Tree Garden apartment complex
next to the 7-Eleven at which Robinson had been seen loading his
weapon. Following the hearing, the magistrate judge issued a
report that recommended granting Robinson’s motion to suppress.
The magistrate judge agreed with the government that the
initial stop of the car was justified by the observed seatbelt
violation. But the frisk, the magistrate judge concluded, was
not supported by a “reasonable belief that [Robinson] [was]
armed and presently dangerous,” as required to justify a pat-
5
down for weapons under Terry. J.A. 124 (quoting Ybarra v.
Illinois, 444 U.S. 85, 86 (1979)). The problem, the magistrate
judge explained, was that in light of West Virginia law allowing
for both open and concealed carrying of loaded guns, “the
content of the tip provided to the police, while reporting the
individual was armed, does not contain any information
demonstrating that the individual was engaging in any objective
or particularized dangerous behavior.” J.A. 136 (emphasis
added) (internal quotation marks omitted).
The magistrate judge also considered the facts surrounding
the officers’ encounter with Robinson, including the “high-
crime” status of the apartment complex next to the 7-Eleven.
Based on the officers’ testimony, the magistrate judge concluded
that both the car’s driver and Robinson were cooperative
throughout, and that Robinson had made no “furtive gestures,
movements or inconsistent statements” suggesting nervousness or
an intent to reach for a weapon. J.A. 131. Apart from what one
officer perceived as a “weird look” — which the magistrate judge
deemed a “subjective impression” insufficient to justify a
frisk, J.A. 137 — 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,
6
which would justify the officer’s suspicion that [Robinson] was
dangerous.” J.A. 138.
After the government submitted objections, the district
court rejected the magistrate judge’s report and recommendation
in relevant part and denied the suppression motion. Because it
did not conduct a second hearing, the district court relied on
the record created before the magistrate judge. And in the
district court’s view, a reasonable suspicion that Robinson was
armed in a high-crime area, when combined with Robinson’s
failure to answer when asked by an officer if he was armed,
translated to a reasonable suspicion that Robinson was
dangerous.
Robinson conditionally pleaded guilty to being a felon in
possession of a firearm, preserving his right to appeal the
denial of his suppression motion, and was sentenced to 37 months
of incarceration. This timely appeal followed.
II.
In reviewing the denial of a motion to suppress, we examine
the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Elston, 479 F.3d
314, 317 (4th Cir. 2007). We view the evidence in the light
most favorable to the government, as the prevailing party before
7
the district court. United States v. Black, 707 F.3d 531, 534
(4th Cir. 2013).
A.
This case is governed by the familiar two-part standard of
Terry v. Ohio, which considered the lawfulness of “stop and
frisk” procedures under the Fourth Amendment. 392 U.S. 1.
Under Terry, an officer may conduct a brief investigatory “stop”
— including a traffic stop, see Arizona v. Johnson,
555 U.S.
323, 330–32 (2009) — based on reasonable suspicion of criminal
activity, without the need for a warrant or probable cause.
Terry, 392 U.S. at 30; see, e.g., United States v. Holmes,
376
F.3d 270, 275 (4th Cir. 2004). But a valid stop does not
automatically entitle an officer to conduct a “frisk,” or
protective pat-down of outer clothing for weapons. See United
States v. Sakyi,
160 F.3d 164, 169 (4th Cir. 1998) (officer
“must have justification for a frisk or a ‘pat-down’ beyond the
mere justification for [a] traffic stop”). Rather, because a
frisk is a “serious intrusion upon the sanctity of the person,”
Terry, 392 U.S. at 17, it is subject to a separate standard:
The police may frisk a person who has been legally stopped only
if the officer has a reasonable and articulable suspicion that
the person is “armed and presently dangerous to the officer or
to others.”
Id. at 24; Holmes, 376 F.3d at 275.
8
In deciding whether a frisk is justified, we “examine the
‘totality of the circumstances’ to determine if the officer had
a ‘particularized and objective basis’ for believing that the
detained suspect might be armed and dangerous.” United States
v. George, 732 F.3d 296, 299 (4th Cir. 2013) (quoting United
States v. Arvizu,
534 U.S. 266, 273 (2002)). As the district
court noted, multiple factors may together create reasonable
suspicion that a suspect is armed and dangerous even if none of
them would be sufficient taken alone.
Id. at 300. The standard
is objective, so a frisking officer’s subjective impressions are
not relevant to our analysis.
Id. at 299; United States v.
Hernandez-Mendez,
626 F.3d 203, 212 (4th Cir. 2010).
Here, Robinson does not contest the validity of the initial
traffic stop by Officer Hudson. Nor could he. As the
magistrate judge explained, under Whren v. United States, 517
U.S. 806 (1996), approving “pretextual” stops under the Fourth
Amendment, evidence of a seatbelt violation justified the stop
regardless of whether the officer actually was motivated by the
anonymous tip. Accordingly, the only question we must decide is
whether the subsequent frisk was lawful — that is, whether the
officers had reasonable suspicion that Robinson was “armed and
dangerous.” And our inquiry is narrower still because Robinson
does not dispute reasonable suspicion that he was “armed,”
choosing not to contest the reliability of the anonymous tip to
9
the police. 1 All that remains for us to decide is whether there
was reasonable suspicion that Robinson was “dangerous.” 2 For the
reasons set out below, we conclude that there was not.
1 Though Robinson addressed the issue in his brief, at oral
argument he expressly declined to rely on any challenge to the
reliability of the anonymous tip. Accordingly, for purposes of
this appeal, we will assume without deciding that the tip was
reliable.
2 Our dissenting colleague suggests that we may dispense
with this inquiry entirely, because when the Supreme Court says
“armed and dangerous” what it really means is “armed and thus
dangerous” — or, put more simply, “armed.” See post at 9-14.
But the government does not dispute that “armed” and “dangerous”
are separate and independent conditions of a lawful Terry frisk.
See Gov’t Br. at 16-17 (given reasonable suspicion that Robinson
was armed, “the dispositive issue becomes whether a reasonable
prudent . . . officer would be warranted in the belief that his
safety . . . was in danger”). We think that is a wise
concession. 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. Indeed, where the Court has
elaborated, it has highlighted the independent role of
“dangerousness,” holding in Michigan v. Long, 463 U.S. 1032
(1983), that Terry authorizes a “frisk” of an automobile when a
police officer possesses reasonable suspicion “that the suspect
is dangerous and the suspect may gain immediate control of
weapons,”
id. at 1049. Like other courts applying Terry in
jurisdictions that routinely permit the public possession of
firearms, we take the Supreme Court at its word: A Terry frisk
requires reasonable suspicion that a person is “both armed and a
danger to the safety of officers or others.” United States v.
Leo,
792 F.3d 742, 748 (7th Cir. 2015); see Northrup v. City of
Toledo Police 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) (internal citation and
quotation marks omitted).
10
B.
All parties agree that the anonymous tip to the police,
giving rise to a reasonable suspicion that Robinson was carrying
a loaded and concealed firearm, is critical to the government’s
case on dangerousness. Accordingly, we start with the tip, and
consider first whether reasonable suspicion that Robinson was
armed, in and of itself, generated reasonable suspicion of
dangerousness sufficient to justify a Terry frisk.
In a different time or jurisdiction, it might well have.
If carrying a concealed firearm were prohibited by local law,
then a suspect concealing a gun in his pocket by definition
would be presently engaged in criminal activity involving a
deadly weapon. And where local law tightly regulates the
concealed carry of firearms, permitting it only in rare cases,
then a concealed gun may remain a strong indication of criminal
activity. In those circumstances, there is precious little
space between “armed” and “dangerous,” and a police officer may
be justified in conducting a Terry frisk on reasonable suspicion
that a suspect is concealing a gun. Indeed, Terry itself,
approving a protective frisk where an officer had reason to
believe a robbery suspect was armed with a concealed handgun,
see 392 U.S. at 24, was decided at a time when handgun
11
possession was illegal. See Northrup v. City of Toledo Police
Dep’t, 785 F.3d 1128, 1131 (6th Cir. 2015) (Sutton, J.). 3
But times have changed, and we decide this case against a
different legal background. As Officer Tharp testified, none of
the conduct reported in the anonymous tip she received — that a
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 — is
currently illegal under West Virginia law. On the contrary, in
West Virginia it is legal to carry a gun in public, see W. Va.
Code § 61-7-3; United States v. Perkins, 363 F.3d 317, 327 (4th
Cir. 2004), and it is legal to carry a concealed firearm with a
permit, see W. Va. Code §§ 61-7-3, 61-7-4. And permits are
relatively easy to obtain; West Virginia is a “shall issue”
state, in which the sheriff must issue a license to any
applicant who submits a complete and accurate application, pays
the $75 fee, and certifies that he or she meets certain basic
requirements, such as age and training.
Id. § 61-7-4. Today in
West Virginia, in other words, there is no reason to think that
public gun possession is unusual, or that a person carrying or
3 Similarly, Pennsylvania v. Mimms, 434 U.S. 106 (1977), a
per curiam opinion on which the dissent relies, arose from an
arrest at a time when local law appears to have strictly limited
the public possession of firearms, allowing it only in narrow
circumstances. See 1943 Pa. Laws 487; 1972 Pa. Laws 1577.
12
concealing a weapon during a traffic stop is anything but a law-
abiding citizen who poses no danger to the authorities.
“[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
U.S. 742 (2010); District of Columbia v. Heller,
554 U.S. 570
(2008), and state law has followed, providing expanded rights to
carry guns in public, see
Williams, 731 F.3d at 691. And as
conduct once the province of law-breakers becomes increasingly
commonplace, courts must reevaluate what counts as suspicious or
dangerous behavior under Terry when it comes to public
possession of guns. See
Northrup, 785 F.3d at 1132–33.
We have recognized as much already, holding in United
States v. Black that when a state authorizes the open display of
firearms, public possession of a gun is no longer suspicious in
a way that would authorize a Terry stop. 707 F.3d at 539–40.
“Permitting such a justification,” we explained, “would
eviscerate Fourth Amendment protections for lawfully armed
individuals in those states.”
Id. at 540. Several of our
sister circuits have reached similar conclusions. In Northrup,
13
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 frisk of a person
brandishing a gun in public. 785 F.3d at 1131–33. Likewise, in
United States v. Ubiles,
224 F.3d 213, 218 (3d Cir. 2000), the
Third Circuit invalidated a Terry stop based on the suspicion of
gun possession at a street festival because local law permitted
public possession of firearms: “For all the officers knew, even
assuming the reliability of the tip that [the defendant]
possessed a gun, [the defendant] was another celebrant lawfully
exercising his right under Virgin Islands law to possess a gun
in public.”
Id. at 218. And in United States v. Leo,
792 F.3d
742 (7th Cir. 2015), the Seventh Circuit quoted approvingly from
Judge Hamilton’s concurrence in Williams,
id. at 752, and held
that in a “concealed-carry” state, the police could neither
Terry “frisk” nor search a backpack in a preschool parking lot
on the suspicion that it contained a gun,
id. at 749–50, 751–52
(rejecting search of backpack in light of “important
developments in Second Amendment law together with Wisconsin’s
[concealed-carry] gun laws”).
Applying the same reasoning, we conclude that in states
like West Virginia, which broadly allow public possession of
firearms, reasonable suspicion that a person is armed does not
by itself give rise to reasonable suspicion that the person is
14
dangerous for Terry purposes. Where the state legislature has
decided that its citizens may be entrusted to carry firearms on
public streets, we may not make the contrary assumption that
those firearms inherently pose a danger justifying their seizure
by law enforcement officers without consent. Cf. Northrup, 785
F.3d at 1133 (police have “no authority to disregard” the
decision of the legislature to allow public possession of guns
by using such possession to justify Terry stops and frisks).
Nor will we adopt a rule that “would effectively eliminate
Fourth Amendment protections for lawfully armed persons,”
id. at
1132 (citation and quotation marks omitted), authorizing a
personally intrusive frisk whenever a citizen stopped by the
police is exercising the constitutional right to bear arms. See
id.;
Black, 707 F.3d at 540.
Allowing police officers making stops to frisk anyone who
is thought to be armed, in a state where the carrying of guns is
widely permitted, would “create[] a serious and recurring threat
to the privacy of countless individuals,” Arizona v. Gant, 556
U.S. 332, 345 (2009) (holding that police may not search a car
“whenever an individual is caught committing a traffic
offense”). It also would “giv[e] police officers unbridled
discretion” to decide which of those legally armed citizens to
target for frisks, implicating concerns about abuse of police
discretion that are central to the Fourth Amendment. See id.;
15
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.
Those concerns are especially pressing in the context of
traffic stops like the one in this case. Under Whren, on which
the government relies here, the police may conduct a pretextual
stop for a routine traffic violation — like Robinson’s seatbelt
violation — when their real motive is to investigate some other
unsupported hunch. 517 U.S. at 813. And under Michigan v.
Long,
463 U.S. 1032 (1983), reasonable suspicion that the
subject of such a traffic 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.
Id. at 1049–
50. So if public possession of a firearm in an open- or
concealed-carry state were enough to generate a reasonable
suspicion of dangerousness, then pretextual traffic stops would
allow police officers to target perfectly law-abiding gun owners
for frisks and also limited car searches, at police discretion
and on the basis of nothing more than a traffic violation. That
is effectively the same result that the Supreme Court found
unacceptable in
Gant, 556 U.S. at 345 (forbidding car searches
16
incident to arrest for minor traffic violations), and it is no
more acceptable here.
We recognize that in this case, Robinson’s possession of a
gun was not in fact legal because Robinson was a convicted
felon. But a frisk must be justified on the basis of “what the
officers knew before they conducted their search,” see Florida
v. J.L., 529 U.S. 266, 271 (2000) (emphasis added), and at the
time of the frisk, Captain Roberts had no reason to suspect
Robinson of a prior felony conviction. Nor, we have made clear,
does the mere chance that a gun may be possessed in violation of
some legal restriction satisfy Terry: Where it is lawful to
possess a gun, unlawful possession “is not the default status.”
Black, 707 F.3d at 540; accord
Northrup, 785 F.3d at 1132
(quoting
Black, 707 F.3d at 540);
Ubiles, 224 F.3d at 217–18.
We also recognize, of course, the serious concerns for
officer safety that underlie the Terry frisk doctrine and may be
especially pronounced during traffic stops. See, e.g.,
Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977) (per curiam)
(police may order driver out of vehicle during traffic stop to
protect officer safety). And we 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. Several states — though not West Virginia —
have responded to this concern with “duty to inform” laws, which
17
require individuals carrying concealed weapons to disclose that
fact to the police if they are stopped. 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. 4 And
where the police have reasonable suspicion that a person is
armed, that person’s failure to so inform the police, as
required by law, may well give rise to a reasonable suspicion of
dangerousness.
But as we have explained, under Supreme Court precedent, a
more “generalized risk to officer safety” during traffic stops
is not enough to justify the intrusion worked by a frisk.
Sakyi, 160 F.3d at 168–69. The Supreme Court has struck a
different balance, authorizing a protective frisk only on a
“specific, articulable suspicion of danger” in a particular
case.
Id. at 168. And for the reasons given above, once state
law routinely permits the public possession of weapons, the fact
that an individual is armed, in and of itself, is not an
objective indication of danger. Absent some other basis for
suspecting danger — a question to which we turn next — police
officers must put their trust in West Virginia’s considered
4
Other states — though again, it seems, not West Virginia —
require those carrying or concealing firearms to disclose that
fact to the police in response to a police question, but not
otherwise. 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.
18
judgment that its citizens may safely carry concealed weapons in
public and during traffic stops. See Northrup, 785 F.3d at 1133
(responding to government argument that prohibiting stop and
frisk of individual carrying a gun would leave officer with no
recourse but to “hope that [the suspect] was not about to start
shooting”: “[This] hope . . . remains another word for the
trust that Ohioans have placed in their State’s approach to gun
licensure and gun possession.”).
C.
Because West Virginia authorizes the public carrying of
weapons, reasonable suspicion that Robinson was armed did not by
itself justify a Terry frisk. But even a lawfully possessed
firearm can pose a threat to officer safety, and so we also must
consider whether a frisk was authorized in light not only of
reasonable suspicion that Robinson was armed but also of the
surrounding circumstances. See Adams v. Williams, 407 U.S. 143,
146 (1972) (Terry frisk may be conducted on reasonable suspicion
that a suspect is “armed and presently dangerous,” regardless of
whether “carrying a concealed weapon violate[s] any applicable
state law”). 5 The government relies on two additional factors:
5 We have no quarrel with the dissent’s observation that a
gun may be dangerous to a police officer whether or not it is
legally possessed. See post at 15. Where, for instance, there
is not only reasonable suspicion that a person is armed but also
reasonable suspicion that he is engaged in a drug offense or
19
Robinson’s failure to answer when asked by Captain Roberts if he
had a gun, and Robinson’s presence in a high-crime area. We
conclude that in the context of this case, neither is probative
of dangerousness, and that the totality of the circumstances,
taken together, see George, 732 F.3d at 300 (reasonable
suspicion depends on totality of the circumstances, taken
together), did not authorize the frisk of Robinson. 6
some other serious crime, or there are other objective indicia
of danger, then a Terry frisk may be justified whatever the
legal status of the gun in question, consistent with Adams.
See
407 U.S. at 147-48 (armed subject of frisk suspected of drug
offenses, sitting alone in car at 2:15 a.m., and unwilling to
cooperate with police). So in the many cases in which the
police stop individuals they believe to be armed on reasonable
suspicion of an actual crime, there may well be enough to show
reasonable suspicion that the suspect is dangerous as well as
armed. What makes this case different, however, is that the
only “crime” of which the police reasonably suspected Robinson
was a seatbelt violation; the government has never argued that
there was reasonable suspicion of any other crime, nor that
danger to the police may be inferred from a person’s failure to
wear a seatbelt.
6 The government contends that our totality-of-the-
circumstances analysis must take account of the actual reason
for the stop — investigation of a tip regarding gun possession —
and not the pretextual reason on which the government relies to
justify the stop — a seatbelt violation. For the proposition
that it can have it both ways under Whren, the government can
cite only an unpublished decision from our circuit that does not
address the issue directly. Without deciding the question here,
we may assume that the government is correct for purposes of
this appeal, and we will consider the anonymous tip along with
the other circumstances surrounding the traffic stop.
20
The government first argues — and the district court agreed
— that Robinson’s non-answer when asked by Captain Roberts if he
was carrying a gun contributed to reasonable suspicion that
Robinson was dangerous. Taking the full context into account,
as we must, and in light of both the rapidity with which events
unfolded and the fact that Robinson was under no legal
obligation to inform the police of his weapon, we think that the
government’s contention gives too much significance to
Robinson’s failure to tell the officers that he was armed.
According to the officers’ testimony before the magistrate
judge, Robinson was cooperative throughout his encounter with
the police, and he never made any gesture that they construed as
reaching for a weapon. 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 quickly enough did not provide an
21
objective indication that he was about to abandon his
cooperative posture and become dangerous. 7
That is particularly so given that West Virginia does not
appear to require that people carrying firearms inform the
police of their guns during traffic or other stops. Where a
state has decided that gun owners have the right to carry
concealed weapons without so informing the police, it would be
inconsistent with that legislative judgment to subject gun
owners 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 a
firearm but also “does not require gun owners to produce or even
carry their licenses for inquiring officers”). Again, we
recognize that under a different legal regime, different
reasonable inferences could be drawn from a failure to answer an
officer’s question about a gun. See supra at 17–18. But in
light of West Virginia law, and under all of the circumstances
7 We note that the government does not emphasize the “weird
look” in its argument. Nor do we understand the district court
to have given significant weight to the “weird look” in its
analysis. In our view, Captain Roberts’s perception that
through his look Robinson 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, was sufficiently subjective that it cannot constitute
an objective or articulable factor supporting reasonable
suspicion of dangerousness.
22
of this case, Robinson’s failure to respond immediately to
Captain Roberts’s question does not add appreciably to the
reasonable suspicion calculus.
The government also relies on the fact that the relevant
conduct in this case — the loading of a gun in a 7-Eleven
parking lot and the stop of the car approximately three-quarters
of a mile away — happened in or near a “high-crime area.” And
the Supreme Court indeed has held that presence in a high-crime
area may contribute to a finding of reasonable suspicion.
Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Under the
circumstances here, however, we conclude that this factor does
not lend support to an inference that Robinson was a danger to
the police.
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 in part 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
23
open carrying of firearms, gun possession in a high-crime area
at night would be sufficient. 707 F.3d at 542. 8
We think that Black applies 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, we conclude
that it sheds no light on the likelihood that an individual’s
gun possession poses a danger to the police. Where public gun
possession is legal, high-crime areas are precisely the setting
in which we should most expect to see law-abiding citizens who
present no threat to officers 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
police tell the difference.
8 We note that most of our cases assessing the relevance of
a high-crime area involve nighttime police encounters, whereas
the events at issue here transpired during the afternoon. Given
our holding, we need not consider the effect of a daylight
setting on any inferences that otherwise might be drawn from a
high-crime location.
24
As discussed above, in states allowing the public
possession of weapons, authorizing a Terry pat-down in
connection with a traffic stop whenever there is reasonable
suspicion that a person is armed 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 would be 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 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.
Again, we recognize that expanded rights to openly carry or
conceal guns in public may give rise to 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 may safely arm themselves in public, we cannot
25
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, we must conclude that Terry
did not authorize the police to conduct a frisk of Robinson.
Accordingly, we reverse the decision of the district court
denying Robinson’s motion to suppress and vacate Robinson’s
conviction and sentence.
III.
For the foregoing reasons the judgment of the district
court is
REVERSED AND VACATED.
26
NIEMEYER, Circuit Judge, dissenting:
The majority acknowledges that when Captain Robbie Roberts
confronted Shaquille Robinson following a lawful traffic stop,
Roberts had reasonable suspicion to believe that Robinson was
armed with a loaded gun concealed in his pocket. Nonetheless,
it concludes that Captain Roberts could not have reasonably
believed that he was in danger because, for all Roberts knew,
Robinson could have been carrying a concealed weapon pursuant to
a license issued by West Virginia. The majority reasons that
Roberts was required to presume that Robinson was “a law-abiding
citizen who pose[d] no danger to the authorities.” Ante at 13.
Therefore, it holds, the frisk, which Roberts conducted for his
safety and the safety of a fellow officer, violated the Fourth
Amendment.
This remarkable holding establishes a new approach that
will make traffic stops substantially more dangerous to police
officers and that is based, I respectfully submit, on several
basic flaws of law and logic. First, the majority’s approach
modifies the Supreme Court’s existing criteria for frisks by
requiring indicia of dangerousness distinct from and in addition
to the danger posed by an individual’s possession of a firearm
during the course of a forced police encounter. The majority
fails to accept the Supreme Court’s explanation that a
reasonable officer need have only a suspicion that the
27
individual who has been lawfully stopped is armed and thus
dangerous. See Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977)
(per curiam); Terry v. Ohio,
392 U.S. 1, 28 (1968).
Second, the fact that Robinson could have been licensed to
carry a concealed weapon does not minimize the danger that
prompted the Supreme Court in Terry to authorize protective
frisks under the Fourth Amendment. The Supreme Court has
explained that the dangerousness justifying the frisk arises
from the combination of the police forcing an encounter with a
person and that person’s possession of a gun, whether the
possession of a gun was legal or not. See Adams v. Williams,
407 U.S. 143, 146 (1972). The frisk authorized by Terry is
justified by dangerousness, not by criminal conduct.
Third, in hypothesizing innocence to various isolated
aspects of Robinson’s conduct -- for instance, that he could
have possessed the gun legally and that its possession in a high
crime area is consistent with “innocent and non-dangerous gun
possession,” ante at 24 -- the majority overlooks the Supreme
Court’s guidance that “reasonable suspicion need not rule out
the possibility of innocent conduct.” Navarette v. California,
134 S. Ct. 1683, 1691 (2014) (internal quotation marks and
citation omitted). It also overlooks the totality of the real
world circumstances that leaves no doubt that Captain Roberts
had a reasonable suspicion that Robinson was armed and
28
dangerous. Not only did Roberts have good reason to believe
that Robinson possessed a loaded gun in his pocket, he also had
information indicating that Robinson had both loaded and
concealed the gun while in a well-known drug market. And
Captain Roberts’ suspicion was only heightened when, prior to
the frisk, he asked Robinson whether he had a gun and Robinson
responded with an “‘oh, crap’ look[],” taken by Roberts as
indicating that Robinson did not want to deny possession of a
gun and thus lie, but also did not want to confess to possessing
one.
With the majority’s new approach to what justifies a frisk
during a lawful stop, police officers will be confused and their
efforts in protecting themselves impaired. Traffic stops, which
the Supreme Court has noted are already “especially fraught with
danger,” Michigan v. Long, 463 U.S. 1032, 1047 (1983), will
become yet more dangerous as a result. The majority, I am
afraid, has forgotten Terry’s fundamental principle that the
Fourth Amendment does not “require . . . police officers [to]
take unnecessary risks in the performance of their
duties.” 392
U.S. at 23.
I respectfully dissent.
29
I
The facts 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. He 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, which itself is a high crime city.
One officer who testified said that in his short one and a half
years as a state trooper, he experienced 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 “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
30
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
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 female with a black male passenger. Noticing
that they were not wearing seatbelts, Hudson effected a traffic
stop at a location 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 and asked the driver for her
license, registration, and proof of insurance. He also asked
the male passenger, the defendant Robinson, for his
identification before realizing that that 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.
31
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,
Captain Roberts recognized Robinson and recalled that he had
previously been convicted of a felony.
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.
The district court denied the motion, concluding that the
officers possessed reasonable suspicion to believe that Robinson
was armed and dangerous. Relying on Navarette, 134 S. Ct. at
1688-89, 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
32
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,” when combined with 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 gun 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 filed this
appeal, challenging Captain Roberts’ frisk under the Fourth
Amendment.
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 infraction, 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 Maryland v. Wilson,
519 U.S. 408, 415
(1997). 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
33
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, he does not contest the
district court’s conclusion that the police had reasonable
suspicion to believe that he was armed, surely recognizing that
he perfectly matched the caller’s specific description of the
individual whom the caller claimed to have just seen with a gun.
Robinson’s argument is that while the officers may well
have had good reason to suspect that he was carrying a loaded
concealed weapon, they lacked 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. Robinson notes, in this regard,
that West Virginia residents may lawfully carry a concealed
firearm if they have received a license from the State. See W.
Va. Code § 61-7-4. Because the police did not know whether or
not Robinson possessed such a license, he contends that the tip
that a suspect matching his description was carrying a loaded
firearm concealed in his pocket was a report of innocent
34
behavior that was not sufficient to indicate that he posed a
danger to others.
The majority accepts this argument and, in doing so, adopts
its several flaws, both as a matter of law and as a matter of
logic. Thus, it establishes a new principle in tension with
basic Supreme Court jurisprudence, holding that, “in states like
West Virginia, which broadly allow public possession of
firearms, reasonable suspicion that a person [lawfully stopped]
is armed does not by itself give rise to reasonable suspicion
that the person is dangerous for Terry purposes.” Ante at 14-
15. Under the majority’s new standard, a frisk during a traffic
stop must be justified by more than suspicion that the person
who has been stopped is armed.
The majority achieves this position by dissecting the
armed-and-dangerous requirement into two distinct requirements,
holding that dangerousness must exist separately and to a
greater extent than the danger created by the person’s
possession of a gun during a lawful but forced police encounter.
Respectfully, this fundamentally twists the Supreme Court’s
armed-and-dangerous standard and, in any event, defies common
sense.
In Terry, where the Court first authorized a stop and frisk
under the Fourth Amendment without probable cause, the Court was
confronted with two distinct issues: first, whether a person
35
could be stopped on suspicion of criminal conduct that fell
short of probable cause; and second, whether the officer could
conduct a protective frisk or “pat down” during the stop. As
the Court posed the second issue, “We are now concerned with
more 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.” Terry, 392 U.S.
at 23 (emphasis added). Accordingly, the frisk that the Court
ultimately authorized had to be “limited to that which is
necessary for the discovery of weapons which might be used to
harm the officer.”
Id. at 26. In approving the frisk before
it, the Court observed that “Officer McFadden confined his
search strictly to what was minimally necessary to learn whether
the men were armed and to disarm them once he discovered
weapons.”
Id. at 30. The concern -- the danger -- was thus the
presence of a weapon during a forced police encounter. The
Court said this explicitly in approving Officer McFadden’s
frisk, noting 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 fashion, the Court approved the well-known standard that
during a Terry stop, an officer can frisk a suspect if the
36
officer reasonably believes that the suspect is armed and thus
dangerous, or, in short, “armed and dangerous.”
The Court again relied on this exact understanding 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 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 on which the Court relied
was the bulge indicating that Mimms was armed. It was thus
Mimms’ status of being armed during a forced police encounter
(the traffic stop) that posed the danger justifying the frisk.
The armed-and-dangerous appellation is thus a unitary
concept, and no further evidence of dangerousness is required to
justify a frisk once a police officer reasonably suspects that
an individual who has been lawfully stopped is armed. This
approach rests on the well-recognized background level of risk
attendant whenever police use their authority to effect a stop.
This holds true whether the temporary detention is a traditional
Terry stop to investigate an officer’s reasonable suspicion
37
“that the person apprehended is committing or has committed a
criminal offense,” Arizona v. Johnson, 555 U.S. 323, 326 (2009),
or a stop to enforce a jurisdiction’s traffic laws, see
id. at
331 (“[T]he 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 that
evidence of a more serious crime might be uncovered during the
stop’” (quoting
Wilson, 519 U.S. at 414)); see also
Mimms, 434
U.S. at 110 (emphasizing that the Court had previously
“expressly declined to accept the argument that traffic
violations necessarily involve less danger to officers than
other types of confrontations”). To be sure, this general risk
does not, by itself, justify a frisk, but it is a component
background risk such that when an officer suspects that the
person he has stopped -- a person whose propensities are unknown
-- is “armed with a weapon,”
Terry, 392 U.S. at 23, the officer
is “warranted in the belief that his safety . . . [is] in
danger,”
id. at 27. A Terry frisk is then lawful, with or
without any additional signs indicating that the individual may
be dangerous. 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
38
“had no reason to believe he was dangerous” even though the
officer had seen a handgun tucked into the waistband of his
pants).
The cases relied on by the majority miss the mark. They do
not concern what justifies a frisk after a lawful stop is made.
Their holdings instead relate to whether possession of a gun
gives rise to a reasonable suspicion of criminal activity,
therefore justifying a Terry stop in the first instance. See
United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013)
(“[W]here a state permits individuals to openly carry firearms,
the exercise of this right, without more, cannot justify an
investigatory detention” (emphasis added)); Northrup v. City of
Toledo Police Dep’t,
785 F.3d 1128, 1133 (6th Cir. 2015) (“[T]he
Ohio legislature has decided its citizens may be entrusted with
firearms on public streets. The Toledo Police Department has no
authority to disregard this decision . . . by detaining every
‘gunman’ who lawfully possesses a firearm” (emphasis added)
(citation omitted)); United States v. Williams,
731 F.3d 678,
692-93 (7th Cir. 2013) (Hamilton, J., concurring) (“A Terry stop
does not require probable cause for an arrest, of course, but it
still requires reasonable suspicion of genuinely criminal
conduct. Based on the new Wisconsin law, that is hard to find
on this record”); United States v. Ubiles,
224 F.3d 213, 214 (3d
Cir. 2000) (“[T]he stop and subsequent search were unjustified
39
because the precondition for a ‘Terry’ stop was not present in
this case”). These cases thus have little bearing on the
present case, where both Robinson and the majority acknowledge
that the police had the right to detain Robinson and the only
issue is whether Captain Roberts acted reasonably to protect his
safety and the safety of his fellow officer during that
encounter. The majority has thus conflated the nature of
suspicion for making a stop in the first instance with the
nature of suspicion for conducting a frisk during a lawful stop.
The first requires a suspicion of criminal conduct, while the
latter requires suspicion of weapons possession. It is clear
that if the officer has a reasonable suspicion that the person
he has stopped is armed, the officer may conduct a frisk.
In sum, established law imposes two requirements for
conducting a frisk: first, that the officer have conducted a
lawful investigatory stop, which includes both traditional Terry
stops as well as traffic stops; and second, that during the
valid but forced encounter, the officer reasonably suspect that
the person is armed and therefore dangerous. Both were
satisfied in this case, thus justifying Captain Roberts’ frisk
under the Fourth Amendment as a matter of law.
Also, as a matter of logic, the majority’s position -- that
because Robinson could have been licensed under West Virginia
law to carry a concealed weapon, Captain Roberts could not have
40
reasonably believed that he was dangerous -- is flawed. It does
not follow that because an individual has a license to carry a
concealed weapon, he does not pose a threat to officers’ safety
during a lawful but forced police encounter. Indeed, when a
person is stopped on the highway for a traffic infraction, that
person poses a heightened risk of danger simply by possessing a
firearm during the encounter, whether the weapon is possessed
legally or not. As the Supreme Court has explained, “The
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, and thus the frisk
for weapons might be equally necessary and reasonable, whether
or not carrying a concealed weapon violated any applicable state
law.” Adams, 407 U.S. at 146 (emphasis added). The majority’s
position directly conflicts with this, concluding that . . .
when gun possession is legal, “there is no reason to think that
a person carrying or concealing a weapon during a traffic stop
is anything but a law-abiding citizen who poses no danger to the
authorities.” Ante at 12-13.
Contrary to the majority’s thesis, nothing about the
assumed recent liberalization of gun laws changes the proper
analysis. The majority’s analysis rests on the premise that,
without some other basis for suspecting danger, an officer can
reasonably suspect that an armed individual who has been
41
detained during a traffic stop only presents a threat to the
officer’s safety if the stop takes place in a jurisdiction where
gun possession is generally illegal. See ante at 18 (“[O]nce
state law routinely permits the public possession of weapons,
the fact that an individual is armed, in and of itself, is not
an objective indication of danger”). But the presumptive
lawfulness of an individual’s gun possession in a particular
state does nothing to negate the reasonable concern an officer
would almost invariably feel for his own safety when forcing an
encounter with an unknown individual who is armed with a gun and
whose propensities are unknown. See Rodriguez, 739 F.3d at 491.
The final flaw in the majority’s approach is attributable
to its focus on isolated, innocent possibilities of Robinson’s
conduct -- that he could be an innocent citizen carrying a gun
as authorized by a lawfully issued license; that he was
coincidentally in a high-drug zone; and that he had no legal
duty to tell Captain Roberts of any license to carry a gun --
and its failure to consider the totality of the actual
circumstances presented. To be sure, the observations that the
majority makes about the possibilities of innocent conduct in
isolated circumstances may be valid, but in the context of the
real world circumstances, considered as a whole, they are
neither likely nor relevant. As an initial matter, the
majority’s analysis completely overlooks the Supreme Court’s
42
recognition that “reasonable suspicion need not rule out the
possibility of innocent conduct.” Navarette, 134 S. Ct. at 1691
(emphasis added) (internal quotation marks and citation
omitted). Rather, the inquiry must, as the Supreme Court has
repeatedly instructed, be based on common sense, see
Navarette,
134 S. Ct. at 1690; Illinois v. Wardlow,
528 U.S. 119, 125
(2000); Ornelas v. United States,
517 U.S. 690, 695 (1996), and
must be focused on what a reasonable officer would believe in
light of the totality of the circumstances. The majority’s
innocent possibilities analysis, by contrast, fails to give due
weight to two key facts known to Captain Roberts and the
“commonsense judgments and inferences” that Roberts could draw
from those facts when taken together.
Wardlow, 528 U.S. at 125.
First, the reliable tip in this case was not just that an
individual matching Robinson’s description possessed a gun.
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. Indeed, at the evidentiary hearing, a state trooper
who had been on the force only a year and a half estimated that
he had experience with at least 20 incidents of drug trafficking
in that particular parking lot. Another officer testified that
“when [she] was doing drug work[,] . . . [she] dropped an
43
informant off to buy drugs there” and observed “three other
people waiting for drugs in that parking lot.” A third officer
explained, “[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 that an individual who was
seen both loading and concealing a gun in that very parking lot
may well have been doing so in connection with drug-trafficking
activity. 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”). Thus, that an
individual matching Robinson’s description was reported to have
recently loaded and concealed a firearm while in a parking lot
so well known for its connection to drug activity greatly
reinforces the reasonableness of Captain Roberts’ suspicion that
Robinson was both armed and dangerous.
Second, when Captain Roberts asked Robinson, as he was
getting out of the car, whether he was carrying any firearms,
Robinson 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, this was not the reaction
of a person who legally possessed a concealed weapon for a
benign purpose. In other words, Robinson’s response to Captain
Roberts’ question not only confirmed Roberts’ suspicion that
44
Robinson had a concealed weapon, it also made it eminently
reasonable for Captain Roberts to suspect that Robinson’s
possession of a concealed weapon was illegal and dangerous. See
W. Va. Code § 61-7-3 (making it a crime to carry a concealed
deadly weapon without a license or other lawful authorization).
That West Virginia does not impose a legal duty on those
licensed to carry concealed weapons to report their gun
possession when stopped by police does not obviate Captain
Roberts’ suspicion, based on common sense, that Robinson’s
silence was telling.
At bottom, the fact that Captain Roberts reasonably
suspected that Robinson, who had been detained pursuant to a
valid traffic stop, was armed and thus dangerous fully supports
the legality of the frisk. But even beyond that, a proper
consideration of the totality of the circumstances presented
here -- the information provided by the reliable tip, the
lawlessness prevalent at the relevant location, and Robinson’s
incriminating reaction during the traffic stop -- establishes,
beyond doubt, that Captain Roberts’ belief that Robinson was
armed and dangerous was reasonable and that a protective frisk
of Robinson’s person during a valid stop was therefore
warranted. “In these circumstances, any man of ‘reasonable
caution’ would likely have conducted the ‘pat down.’” Mimms,
434 U.S. at 112.
45
With an analysis that finesses the context that supported
the officers’ suspicions, the majority reaches a highly abstract
result because “times have changed,” ante at 12, and officers
must allow that everyone can possess a gun during a traffic stop
absent other indicators of dangerousness. But, in light of all
the circumstances known to Captain Roberts, I submit that
Roberts would unquestionably have been criticized for not having
taken reasonable precautions if, after failing to conduct a
frisk, something untoward had happened.
I would affirm the district court’s denial of Robinson’s
motion to suppress, which was undoubtedly correct.
46
