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Criminal Practice – Gun Tip Not ‘Reasonable’ Basis for Pat-Down

U.S. v. Robinson (Lawyers Weekly No. 001-040-16, 46 pp.) (Harris, J.) No. 14-4902, Feb. 23, 2016; USDC at Martinsburg, W.Va. (Groh, J.) 4th Cir.

Holding: 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 did not provide an objective basis for inferring danger, in light of West Virginia gun ownership laws, and an officer making a lawful traffic stop after following up on the tip did not have a reasonable suspicion to justify a weapons frisk; a divided 4th Circuit panel vacates defendant’s conviction for possession of a gun as a convicted felon.

None of the conduct reported in the anonymous tip – that a man had loaded a gun in the parking lot of a 7-Eleven and then concealed it in his pocket before leaving in a car – is currently illegal under West Virginia law. On the contrary, in West Virginia it is legal to carry a gun in public and it is legal to carry a concealed firearm with a permit. And permits are relatively easy to obtain; West Virginia is a “shall issue” state, in which the sheriff must issue a license to any applicant who submits a complete and accurate application, pays the $75 fee and certifies that he or she meets certain basic requirements, such as age and training. Today in West Virginia, in other words, there is no reason to think that public gun possession is unusual, or that a person carrying or concealing a weapon during a traffic stop is anything but a law-abiding citizen who poses no danger to the authorities.

As conduct once the province of law-breakers becomes increasingly commonplace, courts must reevaluate what counts as suspicious or dangerous behavior under Terry v. Ohio when it comes to public possession of guns.

We conclude that in states like West Virginia, which broadly allow public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person is dangerous for Terry purposes. Allowing police officers making stops to frisk anyone who is thought to be armed, in a state where the carrying of guns is widely permitted, would create a serious and recurring threat to the privacy of countless individuals, and give police officers unbridled discretion to decide which of those legally armed citizens to target for frisks.

The government relies on two additional factors to justify the frisk: defendant’s failure to answer when asked by the officer if he had a gun, and defendant’s presence in a high-crime area. We conclude that, in the context of this case, neither is probative of dangerousness, and that the totality of the circumstances, taken together, did not authorize the frisk.

We reverse the denial of defendant’s motion to suppress and vacate defendant’s conviction and sentence.


Niemeyer, J.: The majority reasons that the officer was required to assume that defendant was a law-abiding citizen who posed no danger to the authorities and that the frisk, which the officer conducted for officer safety, violated the Fourth Amendment. This remarkable holding establishes a new approach that will make traffic stops substantially more dangerous to police officers. With this new approach, police officers will be confused and their efforts in protecting themselves impaired. I respectfully dissent.

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