Supreme Court May Consider Change to Terry Frisk Standard
A West Virginian is asking the Supreme Court to consider whether the test for conducting a search in conjunction with a lawful Terry stop requires a particularized basis for believing the person poses a present danger to officer safety.
One afternoon in March 2014, the Ranson, West Virginia police department received an anonymous telephone call reporting a “black male” loading a firearm in the parking lot of a 7-Eleven store and putting that firearm into his pocket. The caller reported the man was a passenger in a car driven by a white woman. Although the caller did not report criminal activity, as it was legal in West Virginia to openly carry a firearm without a license, the police department dispatched an officer to respond.
The officer spotted a car matching the caller’s description and pulled the driver over for not wearing a seatbelt. While the first officer was speaking with the driver, a second officer arrived, opened the passenger-side car door, and asked Shaquille Robinson to step out. The officer then searched Robinson and found a gun “protruding” from Robinson’s pants pocket. The officer then handcuffed Robinson and subsequently recognized him as a convicted felon.
Robinson subsequently entered a conditional guilty plea to being a felon in possession of a firearm, reserving his right to appeal the trial court’s denial of his motion to suppress the firearm found during the roadside search. He was sentenced to thirty-seven months in prison and three years of supervised release.
The U.S. Court of Appeals for the Fourth Circuit eventually sustained the motion denial in an en banc decision. In so holding, the Fourth Circuit held whenever an “officer reasonably suspected that the person he has stopped is armed, the officer is warranted in the belief that his safety is in danger, thus justifying a Terry search.” In support of that holding, the en banc court interpreted the Supreme Court’s language in Terry to conclude that a risk of danger is inherent where a person, forcibly stopped, is armed.
The Fourth Circuit, according to Robinson, thus joined the Ninth and Tenth Circuit Courts of Appeal, and the Supreme Court of Illinois, holding that an officer’s reasonable belief that a weapon is present is enough, by itself, to make a person “presently dangerous” and thus subject to search under Terry. Those courts are at odds with the Sixth and Seventh Circuit Courts of Appeal, and the highest courts in Arizona, Idaho, and New Mexico.
Robinson highlights the divisions between the courts in his petition for the U.S. Supreme Court to hear his case. For example, in his petition, Robinson asks the Supreme Court to consider an individual subjected to a search in Arizona or Idaho based solely on an officer’s belief the individual is harmed. If the search turned up evidence, the individual’s motion to suppress would be granted if he were prosecuted in state court. But, that same evidence would be admissible if local policed turned it over to the federal government to prosecute in federal court.
The Department of Justice supports the Fourth Circuit’s decision and disagrees with Robinson that it is inconsistent with the holdings of other federal courts of appeal and state courts of last resort.
As of October 2, 2017, Robinson’s petition was fully briefed and it has been distributed to the justices of the Supreme Court to consider in its conference at the end of the month, to decide whether to hear the case. FedAgent will report on the Supreme Court’s decision whether to grant certiorari when the decision issues.
Read the petition for certiorari and associated briefs: Robinson v. United States
This case law update was written by an attorney at 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.