Fourth Circuit: Frisks Are Constitutional Where Reasonable Suspicion Exists That Individual Is Armed
The Fourth Circuit recently held that an officer who makes a lawful stop and has reasonable suspicion a passenger is armed may frisk that individual.
On March 24, 2015, an anonymous tipster called the Ranson, West Virginia Police Department to report he “witnessed a black male in a bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” while in a 7-Eleven parking lot. The tipster reported that the car was driven by a white woman and they pulled out of the parking lot.
When the police received the tip about an individual loading a gun in the 7-Eleven parking lot, they were on “heightened alert” due to the parking lot’s association with drug transactions. Officer Hudson left the station and a short time later observed a blue-green Toyota Camry driven by a white woman with a black male passenger. Noticing that they were not wearing seatbelts, Officer Hudson effected a traffic stop.
Officer Hudson approached the driver’s side of the vehicle with his weapon drawn but carried it below his waist. After asking the driver and the passenger, Shaquille Montel Robinson, for their identification, Officer Hudson asked Robinson to step out of the vehicle. At that point, Captain Roberts arrived on the scene. As Robinson exited the vehicle, Captain Roberts asked him if he had any weapons on him. Robinson made a “weird look” and did not respond verbally.
Captain Roberts directed Robinson to put his hands on the top of the car. Captain Roberts then performed a frisk of Robinson to search him for weapons. Captain Roberts recovered a loaded gun from the front pocket of Robinson’s pants. After conducting the frisk, Captain Roberts recognized Robinson as a convicted felon and arrested him. Robinson was charged with the illegal possession of a firearm by a felon.
After being charged, Robinson 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. The district court denied the motion, concluding that the officers possessed reasonable suspicion to believe that Robinson was armed and dangerous. Thereafter, Robinson pleaded guilty to the firearm possession charged, reserving his right to appeal the district court’s denial of his suppression motion.
Robinson appealed the denial of his motion to suppress to the U.S. Court of Appeals for the Fourth Circuit. A panel of that court reversed the district court’s decision denying Robinson’s motion to suppress and vacated his conviction and sentence. The government petitioned for rehearing en banc. The court of appeals granted the government’s petition, vacating the panel’s judgment and opinion.
On rehearing en banc, the court was faced with 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. Robinson acknowledged that the police had the right to stop the vehicle for the traffic violation, that the police had the authority to direct him to exit the vehicle, and that the police had reasonable suspicion to believe that he was armed. However, Robinson contested that while the officers had good reason to suspect that he was carrying a loaded concealed firearm, they lacked objective facts indicating that he was also dangerous. Robinson argued that an officer must reasonably suspect that the person being frisked is both armed and dangerous.
Robinson noted 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. He claimed that because of this law, a report of innocent behavior was not sufficient to indicate that he posed a danger to others. The court of appeals found that Robinson’s argument failed under the Supreme Court’s “stop-and-frisk” jurisprudence. To make a stop, police must have reasonable suspicion that a crime or infraction has been or is being committed. To make a frisk, police must first conduct a lawful investigatory stop and have reasonable suspicion that the person stopped is armed and dangerous.
The Supreme Court has recognized that whenever police use their authority to make a stop, they subject themselves to a risk of harm. Thus, the court of appeals held that when an officer reasonably suspects that the person he has stopped is armed, the officer is warranted in his belief that his safety is in danger, justifying a frisk. 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. The court found that 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 or her own safety when forcing an encounter with an individual that is armed and whose propensities are unknown. Therefore, it was inconsequential Robinson may have had a permit to carry the concealed firearm.
The court of appeals found 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. The court affirmed the judgment of the district court.
Read the full case: United States v. Robinson
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.