Wake Forest Law Review

By John Van Swearingen

On Monday, January 23, 2017 the Fourth Circuit issued a published opinion following a rehearing en banc in the criminal case United States v. Robinson. The defendant Robinson appealed his conviction under 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a felon. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Robinson’s motion to suppress evidence of weapon possession, holding that the potential legal status of a concealed weapon does not automatically render that weapon harmless, and therefore, any officer that lawfully stops an individual and reasonably believes that individual to be armed is justified in frisking that individual to secure any weapons.

Facts and Procedural History

On March 24, 2014, an anonymous caller called the Ranson Police Department (West Virginia) to report seeing a black male, the defendant Robinson, in a “bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” while parked at a 7-Eleven. After this occurred, according to the tipster, the driver of the vehicle, a white female, pulled the Camry out of the parking lot and headed southbound.

This particular 7-Eleven, as several officers would later testify, was located next to the Apple Tree Garden Apartments. The 7-Eleven and the apartment complex were both part of “the highest crime area in Ranson,” especially with regard to drug trafficking, and calls to either location were treated with a heightened sense of alertness.

Two officers responded to the call, and within minutes, spotted the subject Camry containing the defendant and the white female. Neither occupant in the Camry was wearing a seatbelt. The first officer, Officer Hudson, effected a traffic stop for the seatbelt violations. Because the anonymous caller stated that defendant was armed, Officer Hudson asked Robinson to step out of the car.

The second officer, Captain Roberts, opened Robinson’s door and, as Robinson was getting out, asked if Robinson was armed. The Captain later testified that Robinson gave him an “oh, crap” look in lieu of a verbal response. Captain Roberts then frisked Robinson, discovering and securing a loaded handgun from Robinson’s pants pocket.

Captain Roberts, recognizing Robinson as a known felon, then arrested Robinson for illegal possession of a firearm by a felon.

Robinson filed a motion to suppress the firearm, claiming the frisk was a violation of his Fourth Amendment rights. More specifically, Robinson contended that, while the officers may have reasonably suspected that he was armed, West Virginia’s generally permissive laws regarding concealed carry mean an armed individual cannot be assumed to be dangerous absent other factual information. The United States District Court for the Northern District of West Virginia denied his motion.

Armed and Dangerous Means Armed and thus Dangerous

Terry v. Ohio, 392 U.S. 1, 30 (1968), governs the doctrine of weapons frisks by law enforcement officers. If an officer reasonably believes that criminal activity is afoot and suspects an individual is armed and dangerous, that officer may stop that individual and pat down that persons clothing to feel for weapons.

Robinson argued that language of Terry – “armed and dangerous” – requires an officer to reasonably suspect an individual be armed and – as a separate consideration – also dangerous.

Robinson correctly noted that West Virginia generally permits its citizens to acquire permits to arm themselves with concealed weapons. Therefore, Robinson contended, the suspicion that an individual is armed in and of itself does not give rise to suspicion that the individual is dangerous. Robinson conceded that Officer Hudson’s stop of the Camry was lawful. Thus, this challenge turns on the “armed and dangerous” language of the Terry opinion.

Robinson misconstrues both the language of Terry and the Supreme Court’s jurisprudence regard frisks. The Court does use the phrase “armed and dangerous” near the end of the Terry opinion. However, in the preceding discussion regarding the legality of frisks, the Court stated that an officer may frisk a lawfully-stopped individual if “a reasonably prudent man would have been warranted in believing [that individual] was armed and thus presented a threat to the officer’s safety.”

The Court applied the Terry doctrine to traffic stops in Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977). The Mimms opinion echoed Terry, holding that an officer’s frisk of a lawfully-stopped individual was proper where the officer reasonably believed the individual was “armed and thus posed a serious and present danger to the safety of the officer.”

The language of the Terry and Mimms opinions is fatal to Robinson’s argument. The phrase “armed and dangerous” does not, as Robinson argued, create a two element test wherein an officer must have reasonable suspicion that an individual is armed and also dangerous. Rather, Terry and its progeny state that, where an individual is reasonably suspected of being armed, they are presumed dangerous as a matter of law and fact.

Robinson’s argument also fails to account for the factual circumstances of his stop. First, an anonymous tip reported a man concealing a gun in a high-crime, high-drug activity area. The tip was then corroborated when the responding officers observed Robinson and the female driver in the blue-green Camry heading south away from the 7-Eleven. Further, Robinson’s “oh, crap” look to Captain Roberts was reasonably perceived as an evasive response to a direct question about being armed.

The Fourth Circuit also noted that widespread legal concealed carry does not render the presence of a firearm somehow less dangerous. The court held that concerns for officer safety logically permit an officer to secure a firearm when that officer lawfully stops an unknown individual who is reasonably suspected of being armed.

In sum, when an individual is lawfully stopped by law enforcement and that individual is reasonably suspected of being armed, that individual is therefore suspected of being dangerous as a matter of law. Therefore, Robinson’s Fourth Amendment rights were not violated when he was frisked.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Robinson’s motion to suppress the firearm. Robinson was lawfully stopped, and based on the facts of this case, the responding officers reasonably suspected that Robinson was armed and thus dangerous. Therefore, Captain Roberts’ frisk of Robinson was permissible, and the firearm recovered pursuant to that frisk was admissible as evidence against Robinson.

By Taylor Ey

On March 8, 2016, the Fourth Circuit issued its published opinion in the criminal case of United States v. Burleson, reversing the district court’s decision.  At the trial court, in 2013, Defendant Arnold Burleson pled guilty to the crime of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g).  Because Defendant Burleson had at least three prior felony offenses on his record, and the district court classified those offenses as predicate offenses that triggered automatic mandatory minimum sentencing for the felon-in-possession charge, Defendant Burleson was sentenced to fifteen years in prison after he pled guilty.

Defendant Burleson filed a pro se motion under 28 U.S.C. § 2255 with the trial court, asserting that he pled guilty to a crime he could not commit, and he should not have to complete his prison sentence.  Ultimately, the district court denied Defendant Burleson’s motion.  On appeal, the Fourth Circuit agreed with Defendant Burleson, vacating his conviction and prison sentence, and remanding to the district court with instructions to grant his 28 U.S.C. § 2255 motion.

A Question of Statutory Interpretation

Prior to being charged with this possession of a firearm offense, Defendant Burleson was convicted of North Carolina felony offenses, the last time in 1985.  He was discharged on parole in 1988, and his civil rights were fully restored by operation of state law in 1993.  Two years later, in 1995, North Carolina enacted a law that prohibited all people with felony convictions from possessing firearms, regardless of their conviction date.  See N.C. Gen. Stat. § 14-415.1(a) (1995).  For purposes of sentencing, 18 U.S.C. § 924(e) states that if a person charged has been convicted of at least three “crimes punishable by imprisonment for a term exceeding one year” then the person charged is subject to a mandatory minimum sentence.

Thus, this case required the Fourth Circuit to interpret 18 U.S.C. § 921(a)(20) to determine the time point for looking at a state’s statutes.  This statute defines “crime punishable by imprisonment for a term exceeding one year.”  It states, in pertinent part, that “[w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.  Any conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”  18 U.S.C. § 921(a)(20) (emphasis added).

Defendant Burleson urged the court to conclude that those statutes in effect at the time civil rights are restored should control.  In contrast, the government argued that those statutes in effect at the time of the subsequent § 922(g) arrest should control.  Based on the plain text of the statute, the Fourth Circuit decided that the answer is to look to the statutes in effect at the time civil rights are restored.

Fourth Circuit Precedent & the Statute’s Plain Meaning

The Fourth Circuit found decisions from other circuits persuasive, however, the Fourth Circuit also had its own published precedent upon which it could rely.  According to the Fourth Circuit, the district court improperly relied on unpublished decisions in reaching its decision, and thus gave too much weight to the 1995 North Carolina statute.  Even though North Carolina enacted a law in 1995, nothing at the time Defendant Burleson’s civil rights were restored indicated that he could not possess a firearm or otherwise, which is what is required by 18 U.S.C. § 921(a)(20).  The plain meaning of 18 U.S.C. § 921(a)(20) does not indicate that a state retroactive statute should be included in the evaluation.  Instead, the statute requires just the opposite.  It states “such restoration” which plainly refers back to the time of restoration and does not state “unless current state law expressly provides.”

Reverse, Vacate, and Remand

The Fourth Circuit decided that Defendant Burleson was actually innocent of the crime to which he pled guilty because it was not illegal for him to possess at firearm under 18 U.S.C. § 922(g) at the time he was charged.  Thus, the court reversed the judgment, vacated his conviction and sentence, and remanded to the district court.