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

Anonymous Tip to Police, Pretextual Traffic Stop, and Subsequent Frisk

Today, the Fourth Circuit issued its published in the criminal case of United States v. Robinson, deciding 2-1, the Court reversed and vacated the decision of District Court of the Northern District of West Virginia, holding that Defendant Robinson’s motion to suppress evidence should have been granted.  In this case, the West Virginia police department received an anonymous tip.  The tipper reported that the tipper saw a man load a gun in a 7-Eleven parking lot, the man subsequently concealed the gun, and then left the parking lot in a car.  Only a few minutes passed when the police stopped a car matching the tipper’s description.  The police stopped the car because the driver and passenger’s failure to wear a seatbelt in violation of West Virginia traffic law.  Defendant Robinson was the passenger in the car.  He complied with the police requests to exit the car.  Then an officer frisked Defendant Robinson and found a firearm in one of Defendant Robinson’s pockets.  Defendant Robinson was indicted by a grand jury on one count of being a felon in possession of a firearm and ammunition.  Defendant Robinson sought to exclude the evidence recovered by the officer during the stop and frisk.  The district court referred Defendant’s motion to a magistrate.  The magistrate recommended that the evidence did not indicate that the officer had reasonable suspicion that Defendant was dangerous.  However, the district court did not grant his motion to suppress.  At issue in this case is whether the officer complied with the Fourth Amendment when the officer conducted the stop and frisk.

Under Terry v. Ohio, Whether the Officer Had Reasonable Suspicion that Defendant Robinson Was Both Armed and Dangerous when the Officer Conducted the Stop and Frisk

Under Terry v. Ohio, the test for whether a stop and frisk is lawful is to determine if the officer had reasonable suspicion that the suspect was both armed and dangerous at the time of the stop and frisk.  This question is two-fold: the officer has to have reasonable suspicion that the suspect is armed and that the suspect is dangerous.  In this case, the question of whether the police had reasonable suspicion that Defendant Robinson was armed at the time of the traffic stop and frisk was not at issue due to the anonymous tip.  However, because this case arose in West Virginia, and West Virginia allows its citizens to carry concealed weapons, the question on appeal was whether the police had reasonable suspicion that Defendant Robinson was dangerous at the time of the traffic stop and frisk.

The Court applied the totality of the circumstances test to determine whether the officer had reasonable suspicion that Defendant was dangerous.  First, the Court considered that, in West Virginia, carrying a concealed firearm is not prohibited by law, thus the fact that Defendant was carrying alone was not enough to give the officer reasonable suspicion that he was dangerous because the state legislature decided that its citizens could carry.  The Court noted that this same approach has been adopted by the Third, Sixth, and Seventh Circuits.  The Court was worried that allowing an officer in states that allow for concealed carry to have reasonable suspicion of danger if a suspect is carrying would eliminate Fourth Amendment protections for carriers and would not allow them to exercise their Second Amendment rights.  Further, the Court was concerned that such a rule would create a “serious and recurring threat” to their privacy, and it would give police officers “unbridled discretion.”

Second, the Court looked at the circumstances surrounding the stop.  These included that there was an anonymous tip, that Defendant Robinson failed to answer the officer’s question of whether he had a gun on his person, and that Defendant Robinson was in a “high-crime area” at the time of the stop.  The Court concluded that the circumstances did not give the officer reasonable suspicion.  Instead, Defendant Robinson was otherwise cooperative during his encounter with the police, he never made a gesture that he was reaching for a weapon, and the officer did not give Defendant Robinson enough time to respond to the question about whether he was armed.  Even though Defendant Robinson was in a high-crime area, the Court reasoned that this was just the area where you would expect to find people carrying a weapon to protect themselves.

Looking at the Totality of the Circumstances, the Fourth Circuit Reversed the District Court’s Decision Denying Defendant Robinson’s Motion to Suppress and Vacated His Conviction and Sentence.

The Dissenting Opinion Articulated Three Reasons for Disagreement with the Majority

The three reasons that the dissenting judge articulated for his opinion were (1) that an officer need only reasonable suspicion that the suspect is armed and thus dangerous, (2) that West Virginia allows its citizens to carry a concealed weapon does not minimize the danger to officers and officers should still be allowed to stop and frisk under the Fourth Amendment, and (3) that even though Defendant Robinson may have been innocent, “reasonable suspicion need not rule out the possibility of innocent conduct.”