UNITED STATES OF AMERICA v. SHAQUILLE MONTEL ROBINSON
US Court of Appeals for the 4th Circuit, Harris, Filed Feb. 23, 2016,
VACATED, EN BANC – opinion by Niemeyer
Seizure – “Because West Virginia authorizes the public carrying of weapons, reasonable suspicion that [an individual] was armed did not by itself justify a Terry frisk”
(Dissent by Niemeyer – 1) The standard is armed and THUS dangerous, 2) the possibility of a valid firearm license did not acceptably minimize the danger to officers, and 3) RAS is not the negation of all possible innocent conduct)
ed – Though the flawed premise should be noted, as WVA does not allow concealed possession without a permit
Frisk – A frisk requires two findings: reasonable suspicion that an individual is armed AND that they are dangerous
ed – see dissent and below
Frisk – Terry – Where a state allows open-carry of firearms and allows concealed carry of firearms with a shall-issue license (mandatory issuance by state if criteria are met), then possession of a firearm does not justify a frisk in that state
ed – see dissent and below
Frisk – Terry – Possession of a firearm in a high-crime area is “as likely an explanation for innocent and non-dangerous gun possession as it is an indication that gun possession is illegal or dangerous”
ed- 50/50 is significantly more than the probability generally necessary to sustain a frisk…
Ok, few things here:
Under West Virginia law
Any person who carries a concealed deadly weapon, without a state license or other lawful authorization established under the provisions of this code, shall be guilty of a misdemeanor
The Fourth circuit (despite interpreting WVA law) assumes, without citing state authority, that lack of a state license is an element of the crime and not an exception (that the lack of a license needs to be proven by the state, not possession demonstrated by the individual).
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But assuming that’s the case, the Court also found that the circumstances didn’t suggest any immediate danger to the officers.
Police received “an anonymous tip that a black man had loaded a gun in a 7-Eleven parking lot and then concealed it in his pocket before leaving in a car.” The location where the suspect was observed loading a gun was just outside the “the highest-crime area” in the city and was itself the site of numerous drug transactions within the knowledge of the officers.
Also, someone was concerned enough about the situation to call the police… which goes against the “everyone carries guns in WVA” argument.
Police stopped the vehicle and had the suspect exit, at which point the suspect was asked if he had any weapons. The police received an “oh, crap!” look in return. Suspect was frisked and a gun recovered. Post-frisk, police recognized the suspect from “prior criminal proceedings.” Turns out he was a prohibited felon.
Despite this, the Court holds that because each of these individually could be innocent, there was no RAS that the suspect posed a danger to officers.
As Niemeyer notes in dissent, the Supreme Court held in Adams (decided shortly after Terry):
The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.
In case you’re wondering, they didn’t get into the “credibility of the anonymous tip” because both sides stipulated. Which, broadly speaking, is too bad. Directly addressing it would provide a nice differentiation with Florida v. JL, particularly in light of Navarette‘s explanation that an anonymous tip that demonstrates basis of knowledge can provide RAS for a stop. That being said, perhaps it’s best that this particular panel didn’t address the question…