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,

, 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, 

, 23 (1968).         And it is inconsequential that the person

thought to be armed was a passenger.                See Maryland v. Wilson,

, 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, 

, 146 (1972); Michigan v. Long,

, 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,

(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, 

, 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, 

, 819 (1996), and also that they

had the authority to direct him to exit the vehicle during the

valid    traffic    stop,     see   

.       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 

(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 

.                 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,

, 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,” 

,

or a stop of a motor vehicle and all of its occupants to enforce

a jurisdiction’s traffic laws, 

               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.’”      

(quoting 

); see

also    

   (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.”          

.              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,” 

, as “the motivation of a

passenger to employ violence . . . is every bit as great as that

of the driver,” 

       In Wilson, the Court observed that “[i]n 1994 alone, there

were    5,762    officer      assaults      and    11    officers       killed        during

traffic   pursuits      and    

,   prompting        the

Court to conclude that the public interest in police officer

safety during traffic stops is “both legitimate and weighty,”

(quoting 

).                          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.                       

.      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,” 

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

.           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.

       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.”                          

          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.”                 

(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.”

   see    also       

    (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 

.    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.’”           

(emphasis added).            The only evidence of Mimms’ dangerousness was

the bulge indicating that he was armed.                             See 

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, 

, 137 (4th

Cir.    1996)       (citing     

)       (“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.                

(emphasis added); 

(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.”            

(emphasis

added);     see    also    

  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, 

, 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,

, 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,    

,    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, 

, 58 (1932); Am. Paper Inst. v. U.S. E.P.A., 

, 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, 

, 748 (7th

Cir. 2015) (emphasis added); Northrup v. City of Toledo Police

                                         23
Dep’t, 

, 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, 

, 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, 

, 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, 

, 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, 

, 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,

      (1968),    and    Pennsylvania       v.   Mimms,   

(1977) (per curiam), by approving frisks because the officers

“reasonably       believed       that    the    person     stopped     ‘was    armed    and

thus’ dangerous.” Ante at 16 (quoting 

;

).        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, 

, 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 

.                        By contrast, in Terry

and Mimms, the officers reasonably suspected the detainees had

firearms.         

; 

.

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,       

,    17

(1986).     This Court also has recognized “the substantial risk of

danger and the inherently violent nature of firearms,” Pelissero

v.   Thompson,      

,     447       (4th       Cir.    1999)     (quotation

omitted),     as    have        other     Circuits,            e.g.,       United    States      v.

Copening, 

, 1248 (10th Cir. 2007) (characterizing a

“loaded     gun     [as]       by   any       measure          an    inherently         dangerous

weapon”); Love v. Tippy, 

, 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,   

,     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

                                               

,    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, 

, 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, 

, 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, 

,

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, 

243, 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.” 

.

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, 

, 475 (4th Cir. 2011), other
courts are divided on the question, compare Moore v. Madigan,

, 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, 

, 181-82 (D.D.C. 2014) (holding
that Second Amendment right recognized in Heller extends beyond
home), with Peruta v. Cnty. of San Diego, 

, 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, 

, 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,

(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,

, 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

                                         

, 791 (2010); District of Columbia v. Heller, 

, 635 (2008), and state law has followed, providing expanded

rights to carry guns in public, see 

.

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 

; Arizona v. Johnson, 

, 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, 

, 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.”                  

         We are not alone in this insight.              In Northrup v. City of

Toledo Police Dep’t, 

, 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.              

see also, e.g., United

States v. Leo, 

, 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, 

, 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.     

.    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

(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, 

, 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 

(police may not proceed on assumption that gun

displayed in open-carry jurisdiction may be illegally possessed

by convicted felon); see also 

(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. 

, and Pennsylvania v. Mimms, 

, 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 

. 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, 

,

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.”        

;    see

(“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.         

; 

.       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 

,

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

, 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, 

(1972), resolve this

issue.      Adams does make clear, as the majority emphasizes, that

even a lawfully possessed firearm can pose a threat to officer

.         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.     

.        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, 

(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, 

, 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. 

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.

                                    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 

               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, 

, 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,” 

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, 

, 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.; 

.      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 

; see also Utah v. Strieff, 

, 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 

, 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, 

(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, 

, 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.

& n. 14.                            And under Michigan

                                                48
v. Long, 

, 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 

  (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.,

-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 

.

                                         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, 

, 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, 

,   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 

.



                                          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.          

     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    

.         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, 

, 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.”       

       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.”                  

         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.”         

        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, 

, 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., 

.                       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 

.

       Black    should    govern       here.      Whether       or    not   a   high-crime

environment might make other ambiguous conduct – for instance,

fleeing from a police officer, see 

–

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.

   (“[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 

.     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.”       

(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. 

(“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