Fourth Circuit: Mere possession of a gun not enough for Terry frisk

In a previous post, I explored the problem of police conducting a Terry stop, and subsequent frisk, in places that have liberal gun laws.  A frisk pursuant to Terry v. Ohio requires reasonable suspicion that the suspect be both “armed” and “dangerous.”  In a state that liberally permits firearm possession, when does mere possession amount to be being both “armed” and “dangerous”?

Police in Ranson, West Virginia (in the Eastern Panhandle, near Charles Town and Harpers Ferry, and not far from Washington, DC) received an anonymous tip that a black male was carrying a loaded gun in the parking lot of a 7-Eleven.  The tip was specific as to the make, model, and color of the car in which the man was traveling, and that the driver of the car was a white female.  The 7-Eleven was also adjacent to an apartment complex that was known as the highest-crime area of Ranson.  Officers subsequently stopped the car for a seatbelt violation.  After asking Robinson, a black male, to exit the car and submit to a patdown, one of the officers discovered a firearm in Robinson’s pants pocket.  Based initially on personal knowledge, the officers discovered that Robinson was a convicted felon.  Robinson was cooperative throughout the stop.

Robinson was prosecuted under the federal felon-in-possession statute, and he entered a conditional guilty plea so that he could challenge the legality of the frisk.  According to Robinson, it is lawful to carry a firearm in West Virginia.  Therefore, mere possession of a firearm cannot give rise to a Terry frisk unless police have additional facts that would lead them to believe that the suspect, in addition to being armed, is also “dangerous.”

The Fourth Circuit agreed.  In this opinion released last week, the court concluded that because West Virginia liberally permits issuing of gun licenses (West Virginia is a “shall issue” state) and also liberally permits the carrying of handguns, the mere fact that Robinson possessed the gun was not enough to create reasonable suspicion of dangerousness.  The court then looked to the surrounding circumstances of the stop, and concluded that even though Robinson gave a “weird look” when asked whether he was armed, and even though the stop occurred near a high-crime area, none of the surrounding circumstances were probative of Robinson’s dangerousness.

Judge Neimeyer dissented.

I am currently engaged in further research and writing on this topic.  My own sense is that it is problematic to ask whether the person actually is dangerous.  Rather, the proper inquiry is whether the police could reasonably conclude that the person is dangerous, even if it turns out that he is not.  But for now, as I have previously believed, I think this issue is worthy of review at the Supreme Court.  And I hope that the Solicitor General’s office at DOJ will strongly consider filing a cert petition in this case.



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