United States v. Shaquille Robinson

ON REHEARING EN BANC PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4902

UNITED STATES OF AMERICA, Plaintiff - Appellee, v.

SHAQUILLE MONTEL ROBINSON, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:14-cr-00028-GMG-RWT-1)

Argued: September 22, 2016 Decided: January 23, 2017

Before GREGORY, Chief Judge, WILKINSON, NIEMEYER, MOTZ, TRAXLER, KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judge Wilkinson, Judge Traxler, Judge King, Judge Shedd, Judge Duncan, Judge Agee, Judge Keenan, Judge Diaz, Judge Floyd, and Judge Thacker joined. Judge Wynn wrote a separate opinion concurring in the judgment. Judge Harris wrote a dissenting opinion, in which Chief Judge Gregory, Judge Motz, and Senior Judge Davis joined.

ARGUED: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kristen M. Leddy, Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Jarod J. Douglas, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

2 NIEMEYER, Circuit Judge:

This appeal presents 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, regardless of whether the person may

legally be entitled to carry the firearm. Stated otherwise, the

question is whether the risk of danger to a law enforcement

officer created by the forced stop of a person who is armed is

eliminated by the fact that state law authorizes persons to

obtain a permit to carry a concealed firearm.

After receiving a tip that a man in a parking lot well

known for drug-trafficking activity had just loaded a firearm

and then concealed it in his pocket before getting into a car as

a passenger, Ranson, West Virginia police stopped the car after

observing that its occupants were not wearing seatbelts.

Reasonably believing that the car’s passenger, Shaquille

Robinson, was armed, the police frisked him and uncovered the

firearm, leading to his arrest for the possession of a firearm

by a felon.

During his prosecution, Robinson filed a motion to suppress

the evidence recovered as a result of the frisk, contending that

the frisk violated his Fourth Amendment rights. The officers,

he argued, had no articulable facts demonstrating that he was

dangerous since, as far as the officers knew, the State could 3 have issued him a permit to carry a concealed firearm. After

the district court denied the motion to suppress, Robinson

pleaded guilty to the illegal possession of a firearm, reserving

the right to appeal the denial of his motion to suppress.

On appeal, Robinson contends again that the information

that police received from the tip described seemingly innocent

conduct and that his conduct at the time of the traffic stop

also provided no basis for officers to reach the conclusion that

he was dangerous. He argues, “Under the logic of the district

court, in any state where carrying a firearm is a perfectly

legal activity, every citizen could be dangerous, and subject to

a Terry frisk and pat down.”

We reject Robinson’s argument and affirm, concluding that

an officer who makes a lawful traffic stop and who has a

reasonable suspicion that one of the automobile’s occupants is

armed may frisk that individual for the officer’s protection and

the safety of everyone on the scene. See Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (per curiam). The Fourth Amendment

does not “require . . . police officers [to] take unnecessary

risks in the performance of their duties.” Terry v. Ohio, 392

U.S. 1, 23 (1968). And it is inconsequential that the person

thought to be armed was a passenger. See Maryland v. Wilson, 519 U.S. 408, 414 (1997). It is also inconsequential that the

passenger may have had a permit to carry the concealed firearm.

4 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. See

Adams v. Williams, 407 U.S. 143, 146 (1972); Michigan v. Long, 463 U.S. 1032 , 1052 n.16 (1983).

I

The material facts in this case are not disputed. At about

3:55 p.m. on March 24, 2014, an unidentified man called the

Ranson, West Virginia Police Department and told Officer Crystal

Tharp that he had just “witnessed a black male in a bluish

greenish Toyota Camry load a firearm [and] conceal it in his

pocket” while in the parking lot of the 7-Eleven on North

Mildred Street. The caller advised Officer Tharp that the Camry

was being driven by a white woman and had “just left” the

parking lot, traveling south on North Mildred Street.

The 7-Eleven on North Mildred Street is adjacent to the

Apple Tree Garden Apartments, and the area constitutes the

highest crime area in Ranson. One officer who testified said

that in his short one and a half years as a state trooper, he

had experience with at least 20 incidents of drug trafficking in

the 7-Eleven parking lot. Another officer testified that “when

[she] was doing drug work[,] . . . [she] dropped an informant

off to buy drugs” at the 7-Eleven parking lot and observed 5 “three other people waiting for drugs in that parking lot.” She

added that she had personally received “numerous complaints” of

people running between the parking lot and the apartment

complex, making drug transactions. Another officer testified

that “[a]nytime you hear Apple Tree or 7-Eleven, your radar goes

up a notch.” Accordingly, when the Ranson Police Department

received the tip about someone loading a gun in the 7-Eleven

parking lot, its officers’ “radar [went] up a notch,” and the

officers went “on heightened alert.”

While still on the telephone with the caller, Officer Tharp

relayed the information to Officer Kendall Hudson and Captain

Robbie Roberts. Hudson immediately left the station to respond

to the call, and Roberts left soon thereafter to provide backup.

When Officer Hudson turned onto North Mildred Street a

short time later, he observed a blue-green Toyota Camry being

driven by a white woman with a black male passenger. Noticing

that they were not wearing seatbelts, Hudson effected a traffic

stop approximately seven blocks, or three-quarters of a mile,

south of the 7-Eleven. He estimated that the traffic stop took

place two to three minutes after the call had been received at

the station.

After calling in the stop, Officer Hudson approached the

driver’s side of the vehicle with his weapon drawn but carried

below his waist and asked the driver for her license, 6 registration, and proof of insurance. He also asked the male

passenger, the defendant Robinson, for his identification but

quickly realized that doing so was “probably not a good idea”

because “[t]his guy might have a gun[,] [and] I’m asking him to

get into his pocket to get his I.D.” Instead, Officer Hudson

asked Robinson to step out of the vehicle.

At this point, Captain Roberts arrived and opened the front

passenger door. As Robinson was exiting the vehicle, Captain

Roberts asked him if he had any weapons on him. Instead of

responding verbally, Robinson “gave [Roberts] a weird look” or,

more specifically, an “‘oh, crap’ look[].” Roberts took the

look to mean, “I don’t want to lie to you, but I’m not going to

tell you anything [either].” At this point, Captain Roberts

directed Robinson to put his hands on top of the car and

performed a frisk for weapons, recovering a loaded gun from the

front pocket of Robinson’s pants. After conducting the frisk,

Roberts recognized Robinson, recalled that he had previously

been convicted of a felony, and arrested him.

After Robinson was charged with the illegal possession of a

firearm by a felon, in violation of 18 U.S.C. § 922 (g)(1), he

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.

7 The district court denied the motion, concluding that the

officers possessed reasonable suspicion to believe that Robinson

was armed and dangerous. Relying on Navarette v. California, 134 S. Ct. 1683 (2014), the court concluded that the anonymous

caller’s eyewitness knowledge and the contemporaneous nature of

the report indicated that the tip was sufficiently reliable to

contribute to the officers’ reasonable suspicion. The court

explained that the “anonymous tip that [Robinson] [had] recently

loaded a firearm and concealed it on his person in a public

parking lot in a high-crime area,” as well as Robinson’s “weird

look and failure to verbally respond to the inquiry whether he

was armed,” gave rise to a reasonable suspicion that Robinson

was armed and dangerous.

Robinson thereafter pleaded guilty to the firearm

possession charge, reserving his right to appeal the district

court’s denial of his suppression motion, and the district court

sentenced him to 37 months’ imprisonment. Robinson appealed the

denial of his motion to suppress, and a panel of this court

reversed the district court’s decision denying Robinson’s motion

to suppress and vacated his conviction and sentence. United

States v. Robinson, 814 F.3d 201, 213 (4th Cir. 2016). By order

dated April 25, 2016, we granted the government’s petition for

rehearing en banc, which vacated the panel’s judgment and

opinion. See 4th Cir. Local R. 35(c).

8 II

Robinson’s appeal is defined as much by what he concedes as

by what he challenges. Robinson rightfully acknowledges that

the Ranson police had the right to stop the vehicle in which he

was a passenger after observing a traffic violation, see Whren

v. United States, 517 U.S. 806, 819 (1996), and also that they

had the authority to direct him to exit the vehicle during the

valid traffic stop, see Wilson, 519 U.S. at 415 . He also

correctly concedes that the anonymous tip received by the Ranson

Police Department was sufficiently reliable to justify the

officers’ reliance on it. See Navarette, 134 S. Ct. at 1688-89

(concluding that an anonymous 911 call “bore adequate indicia of

reliability for the officer to credit the caller’s account” in

large part because, like here, the caller “claimed eyewitness

knowledge of the alleged [conduct]” and the call was a

“contemporaneous report” that was “made under the stress of

excitement caused by a startling event”). Finally, and most

importantly, Robinson does not contest the district court’s

conclusion that the police had reasonable suspicion to believe

that he was armed.

Robinson’s argument focuses on whether the officers could

reasonably have suspected that he was dangerous. He argues that

while the officers may well have had good reason to suspect that

he was carrying a loaded concealed firearm, they lacked 9 objective facts indicating that he was also dangerous, so as to

justify a frisk for weapons, since an officer must reasonably

suspect that the person being frisked is both armed and

dangerous. See Terry, 392 U.S. at 27 . Robinson notes 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. See W. Va. Code § 61-7-3 to -4 (2014). And, because

the police did not know whether or not he possessed such a

license, the tip that a suspect matching his description was

carrying a loaded firearm concealed in his pocket was, he

argues, a report of innocent behavior that was not sufficient to

indicate that he posed a danger to others. Moreover, he argues,

his behavior during the stop did not create suspicion -- “he was

compliant, cooperative, [and] not displaying signs of

nervousness.” In these circumstances, he concludes, the

officer’s frisk was not justified by any reasonable suspicion

that he was dangerous.

Robinson’s argument presumes that the legal possession of a

firearm cannot pose a danger to police officers during a forced

stop, and it collapses the requirements for making a stop with

the requirements for conducting a frisk. It thus fails at

several levels when considered under the Supreme Court’s “stop-

and-frisk” jurisprudence. First, Robinson confuses the standard

for making stops -- which requires a reasonable suspicion that a 10 crime or other infraction has been or is being committed -- with

the standard for conducting a frisk -- which requires both a

lawful investigatory stop and a reasonable suspicion that the

person stopped is armed and dangerous. See Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). Second, he fails to recognize that

traffic stops alone are inherently dangerous for police

officers. Third, he also fails to recognize that traffic stops

of persons who are armed, whether legally or illegally, pose yet

a greater safety risk to police officers. And fourth, he argues

illogically that when a person forcefully stopped may be legally

permitted to possess a firearm, any risk of danger to police

officers posed by the firearm is eliminated.

We begin by noting that the Supreme Court has repeatedly

recognized that whenever police officers use their authority to

effect a stop, they subject themselves to a risk of harm. This

holds true whether the temporary detention is a traditional,

“on-the-street” Terry stop to investigate an officer’s

reasonable suspicion “that the person apprehended is committing

or has committed a criminal offense,” Johnson, 555 U.S. at 326 ,

or a stop of a motor vehicle and all of its occupants to enforce

a jurisdiction’s traffic laws, id. at 327 . The Supreme Court

has explained that “the risk of a violent encounter in a

traffic-stop setting ‘stems not from the ordinary reaction of a

motorist stopped for a speeding violation, but from the fact 11 that evidence of a more serious crime might be uncovered during

the stop.’” Id. at 331 (quoting Wilson, 519 U.S. at 414 ); see

also Mimms, 434 U.S. at 110 (rejecting “the argument that

traffic violations necessarily involve less danger to officers

than other types of confrontations”). Indeed, the Court has

concluded that traffic stops are “especially fraught with danger

to police officers.” Long, 463 U.S. at 1047 . And the Court has

also observed that when the stop involves one or more

passengers, that fact “increases the possible sources of harm to

the officer,” Wilson, 519 U.S. at 413 , as “the motivation of a

passenger to employ violence . . . is every bit as great as that

of the driver,” id. at 414 .

In Wilson, the Court observed that “[i]n 1994 alone, there

were 5,762 officer assaults and 11 officers killed during

traffic pursuits and stops,” 519 U.S. at 413 , prompting the

Court to conclude that the public interest in police officer

safety during traffic stops is “both legitimate and weighty,”

id. at 412 (quoting Mimms, 434 U.S. at 110 ). And more recent

statistics, unfortunately, remain as grim. Of the 51 law

enforcement officers feloniously killed in the line of duty in

2014, 9 officers (or 18%) were fatally injured during traffic

pursuits or stops. FBI, Officers Feloniously Killed, in Uniform

Crime Reports: Law Enforcement Officers Killed and Assaulted,

2014.

12 To be clear, the general risk that is inherent during a

traffic stop does not, without more, justify a frisk of the

automobile’s occupants. But the risk inherent in all traffic

stops is heightened exponentially when the person who has been

stopped -- a person whose propensities are unknown -- is “armed

with a weapon that could unexpectedly and fatally be used

against” the officer in a matter of seconds. Terry, 392 U.S. at

23 . As such, when the officer reasonably suspects that the

person he has stopped is armed, the officer is “warranted in the

belief that his safety . . . [is] in danger,” id. at 27 , thus

justifying a Terry frisk.

In Terry, Officer McFadden “seized” Terry on the street and

subjected him to a “search” without probable cause to believe

that he had committed or was committing a crime or that he was

armed. 392 U.S. at 19 . The Court was thus confronted with two

distinct constitutional issues: first, whether a person could

be stopped (seized) on suspicion of criminal conduct that fell

short of probable cause; and second, whether the officer could

conduct a protective frisk or “pat down” for weapons (search)

during the stop. The Court readily concluded that Terry’s

seizure was “reasonable” under the Fourth Amendment because the

officer reasonably believed that criminal conduct was afoot.

Id. at 22-23 . The Court then turned its attention to the

legality of the frisk, stating, “We are now concerned with more 13 than the governmental interest in investigating crime; in

addition, there is the more immediate interest of the police

officer in taking steps to assure himself that the person with

whom he is dealing is not armed with a weapon that could

unexpectedly and fatally be used against him.” Id. at 23 . The

concern -- i.e., the danger -- was thus found in the presence of

a weapon during a forced police encounter. Indeed, the Court

said as much, noting in approving Officer McFadden’s frisk of

Terry that “a reasonably prudent man would have been warranted

in believing petitioner was armed and thus presented a threat to

the officer’s safety.” Id. at 28 (emphasis added). In this

manner, the Court adopted the now well-known standard that an

officer can frisk a validly stopped person if the officer

reasonably believes that the person is “armed and dangerous.”

Id. at 27 ; see also id. at 32 (Harlan, J., concurring)

(explaining that because a “frisk is justified in order to

protect the officer during an encounter with a citizen, the

officer must first have constitutional grounds to insist on an

encounter, to make a forcible stop”).

The Supreme Court applied Terry to circumstances analogous

to those before us in Mimms, where an officer, after making a

routine traffic stop, “noticed a large bulge” under the

defendant’s jacket and therefore conducted a frisk. 434 U.S. at

107 . Holding that the frisk was clearly justified, the Mimms 14 Court explained that “[t]he bulge in the jacket permitted the

officer to conclude that Mimms was armed and thus posed a

serious and present danger to the safety of the officer,” adding

that “[i]n these circumstances, any man of ‘reasonable caution’

would likely have conducted the ‘pat down.’” Id. at 112

(emphasis added). The only evidence of Mimms’ dangerousness was

the bulge indicating that he was armed. See id. It was thus

Mimms’ status of being armed during a forced police encounter

(the traffic stop) that posed the danger justifying the frisk,

and we have previously relied on Mimms for that precise

principle. See United States v. Baker, 78 F.3d 135, 137 (4th

Cir. 1996) (citing Mimms, 434 U.S. at 112 ) (“Based on the

inordinate risk of danger to law enforcement officers during

traffic stops, observing a bulge that could be made by a weapon

in a suspect’s clothing reasonably warrants a belief that the

suspect is potentially dangerous, even if the suspect was

stopped only for a minor violation”).

In short, established Supreme Court law imposes two

requirements for conducting a frisk, but no more than two:

first, that the officer have conducted a lawful stop, which

includes both a traditional Terry stop as well as a traffic

stop; and second, that during the valid but forced encounter,

the officer reasonably suspect that the person is armed and

therefore dangerous. In both Terry and Mimms, the Court 15 deliberately linked “armed” and “dangerous,” recognizing that

the frisks in those cases were lawful because the stops were

valid and the officer reasonably believed that the person

stopped “was armed and thus” dangerous. Terry, 392 U.S. at 28

(emphasis added); Mimms, 434 U.S. at 112 (emphasis added). The

use of “and thus” recognizes that the risk of danger is created

simply because the person, who was forcibly stopped, is armed.

In this case, both requirements -- a lawful stop and a

reasonable suspicion that Robinson was armed -- were satisfied,

thus justifying Captain Roberts’ frisk under the Fourth

Amendment as a matter of law.

Robinson argues that Mimms is distinguishable because the

frisk there took place in a jurisdiction that made it a crime to

carry a concealed deadly weapon. West Virginia, on the other

hand, generally permits its citizens to carry firearms. From

this distinction, Robinson argues that when the person forcibly

stopped may be legally permitted to possess a firearm, the risk

of danger posed by the firearm is eliminated. This argument,

however, fails under the Supreme Court’s express recognition

that the legality of the frisk does not depend on the illegality

of the firearm’s possession. Indeed, the Court has twice

explained that “[t]he purpose of this limited search [i.e., the

frisk] is not to discover evidence of crime, but to allow the

officer to pursue his investigation without fear of violence, 16 and thus the frisk for weapons might be equally necessary and

reasonable, whether or not carrying a concealed weapon violated

any applicable state law.” Williams, 407 U.S. at 146 (emphasis

added); see also Long, 463 U.S. at 1052 n.16 (“[W]e have

expressly rejected the view that the validity of a Terry search

[i.e., a frisk] depends on whether the weapon is possessed in

accordance with state law”). Robinson’s position directly

conflicts with these observations.

Notwithstanding the Supreme Court’s statements, Robinson’s

position also fails as a matter of logic to recognize that the

risk inherent in a forced stop of a person who is armed exists

even when the firearm is legally possessed. 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 own safety when forcing an encounter with an

individual who is armed with a gun and whose propensities are

unknown. See United States v. Rodriguez, 739 F.3d 481, 491

(10th Cir. 2013) (concluding that “an officer making a lawful

investigatory stop [must have] the ability to protect himself

from an armed suspect whose propensities are unknown” and

therefore rejecting the defendant’s argument that the officer

“had no reason to believe he was dangerous” even though the

officer had seen a handgun tucked into the waistband of his

pants).

17 Accordingly, we conclude 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 and, in

doing so, did not violate Robinson’s Fourth Amendment rights.

III

While the lawful traffic stop of Robinson and the

reasonable suspicion that he was armed justified the frisk in

this case, the officers had knowledge of additional facts that

increased the level of their suspicion that Robinson was

dangerous.

First, the reliable tip in this case was not just that an

individual matching Robinson’s description possessed a firearm.

Rather, the caller reported that he had observed an individual

“load a firearm [and] conceal it in his pocket” while in the

parking lot of the 7-Eleven on North Mildred Street, a location

that the officers knew to be a popular spot for drug-trafficking

activity. Four officers testified about the high level of drug-

trafficking and other criminal activity in that particular

parking lot, prompting one to explain, “[a]nytime you hear . . .

7-Eleven, your radar goes up a notch.” Knowing that the 7-

Eleven parking lot was frequently used as a site for drug

trafficking, a reasonable officer could legitimately suspect 18 that an individual who was seen both loading and concealing a

firearm in that very parking lot may well have been doing so in

connection with drug-trafficking activity, making his possession

of a firearm even more dangerous. See United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (recognizing the “numerous

ways in which a firearm might further or advance drug

trafficking”).

Second, when Captain Roberts asked Robinson, as he was

getting out of the car, whether he was carrying any firearms,

Robinson failed to respond verbally and instead gave the officer

an “‘oh, crap’ look[],” which Roberts took to mean, “I don’t

want to lie to you, but I’m not going to tell you anything

[either].” Surely, Robinson’s evasive response further

heightened Captain Roberts’ legitimate concern as to the

dangerousness of the situation.

While not necessary to the conclusion in this case, these

facts can only confirm Captain Roberts’ reasonable suspicion

that Robinson was dangerous and therefore should be frisked for

the protection of the officer and all others present. Indeed,

in light of all of the circumstances known to Captain Roberts,

he would unquestionably have been criticized for not conducting

a frisk if, after having failed to do so, something untoward had

happened.

19 * * *

The judgment of the district court is accordingly AFFIRMED.

20 WYNN, Circuit Judge, concurring in the judgment:

Defendant Shaquille Robinson concedes that law enforcement

officers reasonably suspected that he was carrying a firearm. 1

Defendant further concedes that the law enforcement officers

lawfully stopped him for an unrelated, albeit pretextual,

reason. I agree with the majority that these facts alone allowed

the officers to perform a protective frisk of Defendant during

the stop.

In reaching this conclusion, the majority frames this case

as a run-of-the-mill search-and-seizure case involving a traffic

stop in which we must assess whether law enforcement officers

had reasonable suspicion to frisk Defendant based on the facts

known to the officers at the time they conducted the frisk. To

that end, the majority focuses on the dangers law enforcement

officers face in conducting lawful stops, particularly traffic

stops, and the officers’ reasonable suspicion that Defendant had

a “weapon.”

1 The majority states that the law enforcement officers received a “tip” that Defendant was carrying a loaded firearm. Ante at 4.

Carrying a loaded firearm in West Virginia is presumptively lawful activity. Thus, information that an individual is engaging in presumptively lawful activity should not constitute a “tip” for purposes of this analysis.

21 But this case is not about traffic stops or “weapons”--it

is about firearms and the danger they pose to law enforcement

officers. In particular, this case arises from the Defendant’s

presumptively lawful activity of carrying a firearm, which

became the basis for making a pretextual, albeit lawful, stop

for not wearing a seatbelt. From these remarkable facts, the

majority opinion reduces the issue in this case to whether the

officers justifiably frisked Defendant, after a lawful stop,

because they had a “tip” that Defendant carried a “weapon.”

By focusing on the officers’ justification--rather than

Defendant’s presumptively lawful decision to carry a firearm--

the majority elides discussion of the two key issues in this

case: (1) whether individuals who carry firearms--lawfully or

unlawfully--pose a categorical risk of danger to others and

police officers, in particular, and (2) whether individuals who

choose to carry firearms forego certain constitutional

protections afforded to individuals who elect not to carry

firearms. As explained in more detail below, the majority

opinion’s attempt to duck these questions is futile because its

conclusion necessarily answers “yes” to both questions.

I.

First, the majority opinion altogether avoids addressing

the first issue--whether individuals who carry firearms

(lawfully or unlawfully) pose a categorical risk of danger to 22 others--by reinterpreting the Supreme Court’s long-established

test for determining whether law enforcement officers lawfully

performed a protective frisk. Under that test, the question is

whether the officers had “reasonable suspicion that the person

subjected to the frisk is armed and dangerous.” Arizona v.

Johnson, 555 U.S. 323, 327 (1997). Instead of according

“dangerous” an independent meaning, the majority contends that

“armed and dangerous” is a unitary concept--if law enforcement

officers reasonably suspect a detainee is “armed,” they

necessarily reasonably suspect he is “dangerous.” Ante at 16

(“[T]he risk of the danger is created simply because the person,

who was forcibly stopped, is armed.”). I disagree with the

majority opinion’s contention that “armed and dangerous” is a

unitary concept.

To be sure, from the outset, stripping “dangerous” of

independent meaning violates the long-standing principle that

elements separated by a conjunctive should be interpreted as

distinct requirements. See, e.g., Crooks v. Harrelson, 282 U.S.

55, 58 (1932); Am. Paper Inst. v. U.S. E.P.A., 660 F.2d 954, 961

(4th Cir. 1981). That is why other Circuits have held that law

enforcement officers must reasonably suspect a detainee is “both

armed and a danger to the safety of officers or others” before

conducting a frisk. United States v. Leo, 792 F.3d 742, 748 (7th

Cir. 2015) (emphasis added); Northrup v. City of Toledo Police 23 Dep’t, 785 F.3d 1128, 1132 (6th Cir. 2015) (“Clearly established

law required [the officer] to point to evidence that [the

subject] may have been armed and dangerous. Yet all he ever saw

was that [the subject] was armed--and legally so.” (emphasis in

original) (citation and internal quotation marks omitted)).

The view of the other Circuits on according “dangerous” an

independent meaning makes sense because the majority opinion’s

unitary meaning interpretation would allow law enforcement

officers to frisk a wide swath of lawfully stopped individuals

engaging in harmless activity. Indeed, by definition, an

individual is “armed” if he is “[e]quipped with a weapon.”

Armed, Black’s Law Dictionary (9th ed. 2009).

To illustrate the absurdity of the majority opinion’s

unitary meaning interpretation, consider, for example, that

courts have found a bottle to be a “weapon.” See United States

v. Daulton, 488 F.2d 524, 525 (5th Cir. 1973) (“Courts have held

that a wine bottle can be a dangerous weapon.”). Under the

majority’s unitary meaning interpretation, officers informed

that an individual was leaving a convenience store “armed” with

a bottle of wine could, after a lawful stop, frisk that

individual because, in the majority’s words, “the risk of the

danger is created simply because the person, who was forcibly

stopped, is armed.” Ante at 16.

24 As Justice Brennan noted, numerous everyday objects turn

into “weapons” when put to appropriate use:

A “weapon” could include a brick, a baseball bat, a hammer, a broken bottle, a fishing knife, barbed wire, a knitting needle, a sharpened pencil, a riding crop, a jagged can, rope, a screw driver, an ice pick, a tire iron, garden shears, a pitch fork, a shovel, a length of chain, a penknife, a fork, metal pipe, a stick, etc. The foregoing only illustrate the variety of lawful objects which are often innocently possessed without wrongful intent.

Wright v. New Jersey, 469 U.S. 1146 , 1149 n.3 (1985) (Brennan,

J., dissenting from dismissal for want of substantial federal

question). Under the majority opinion’s unitary meaning

interpretation, reasonable suspicion that an individual

possessed any of these items would give rise to reasonable

suspicion to frisk the individual, after a lawful stop, even

absent any evidence the individual intended to use the object as

a weapon. The Fourth Amendment does not contemplate giving law

enforcement officers such wide-ranging authority to engage in

warrantless frisks of detainees. See, e.g., City of Los Angeles

v. Patel, 135 S. Ct. 2443, 2455 (2015) (holding that courts must

not interpret the Fourth Amendment in a way that allows the

“narrow exception[s]” to the warrant requirement “to swallow the

rule”); United States v. Wilson, 953 F.2d 116, 126 (4th Cir.

1991) (refusing to allow “limited Terry exception to swallow the

rule”).

25 The majority nonetheless contends that the Supreme Court

“deliberately linked ‘armed’ and ‘dangerous’” in Terry v. Ohio, 392 U.S. 1 (1968), and Pennsylvania v. Mimms, 434 U.S. 106

(1977) (per curiam), by approving frisks because the officers

“reasonably believed that the person stopped ‘was armed and

thus’ dangerous.” Ante at 16 (quoting Terry, 392 U.S. at 28 ;

Mimms, 434 U.S. at 112 ). But when the Supreme Court has

elaborated on the test for a lawful frisk, it has highlighted

the independent role of “dangerousness,” holding that Terry

authorizes a “frisk” of an automobile when law enforcement

officers reasonably suspect “that the suspect is dangerous and

the suspect may gain immediate control of weapons.” Michigan v.

Long, 463 U.S. 1032, 1049 (1983).

How then do we reconcile the language in Terry and Mimms,

upon which the majority relies, with Long and the plain language

of the test, which requires that officers reasonably suspect an

individual is both armed and dangerous? The answer plainly lies

in the type of “weapon” at issue.

In Long, the officers reasonably suspected that the

defendant had a knife. 463 U.S. at 1050 . By contrast, in Terry

and Mimms, the officers reasonably suspected the detainees had

firearms. Terry, 392 U.S. at 6-7 ; Mimms, 434 U.S. at 106 .

Accordingly, Terry and Mimms collapse the “armed and dangerous”

test into a single inquiry only when law enforcement officers 26 reasonably suspect that a detainee has a firearm or other

inherently dangerous weapon. Such a reading ensures that the

“armed” and “dangerous” prongs retain distinct meaning and

places meaningful restrictions on law enforcement officers’

ability to frisk lawfully stopped individuals.

But the majority opinion also contends that we should

collapse the “armed and dangerous” test into a single inquiry--

regardless of the type of “weapon” with which the detainee is

“armed”-- because the combination of a “forcible stop” and an

armed detainee poses a “risk of danger.” Ante at 16 (“[T]he risk

of danger is created simply because the person, who was forcibly

stopped, is armed.”). Yet committing a minor traffic violation-

-a seatbelt violation here--provides no basis to believe an

individual poses any special danger warranting departure from

the rule that law enforcement officers may not, as a general

matter, frisk lawfully detained individuals. Likewise, as

explained above, given the numerous objects that can constitute

“weapons,” being “armed” does not, by itself, establish that an

individual poses a danger. Rather, what the majority opinion

skillfully avoids is that the “risk of danger” to the officers

arose from the officers’ reasonable suspicion Defendant was

carrying a firearm.

Confronting the inescapable reality that lawfully-stopped

individuals armed with firearms are categorically dangerous 27 reflects the heightened danger posed by firearms. To that end,

the Supreme Court has held that “a gun is an article that is

typically and characteristically dangerous; the use for which it

is manufactured and sold is a dangerous one, and the law

reasonably may presume that such an article is always

dangerous.” McLaughlin v. United States, 476 U.S. 16, 17

(1986). This Court also has recognized “the substantial risk of

danger and the inherently violent nature of firearms,” Pelissero

v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999) (quotation

omitted), as have other Circuits, e.g., United States v.

Copening, 506 F.3d 1241, 1248 (10th Cir. 2007) (characterizing a

“loaded gun [as] by any measure an inherently dangerous

weapon”); Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir. 1998)

(recognizing “the inherently violent nature of firearms, and the

danger firearms pose to all members of society”); United States

v. Allah, 130 F.3d 33, 40 (2d Cir. 1997) (“[F]irearms are

inherently dangerous devices.”).

Indeed, the Supreme Court’s decision in District of

Columbia v. Heller--which first recognized the individual right

to carry firearms--is premised on the dangerousness of carrying

firearms. In particular, Heller held that the Second Amendment

affords individuals the right to keep and use handguns for the

“defense” and “protection of one’s home and family”--for

example, to ward off “attacker[s]” or threaten “burglar[s].” 554 28 U.S. 570 , 628-29 (2008) (emphasis added). If a lawfully

possessed firearm did not pose a danger to attackers, burglars,

or other threatening individuals, there would be no need for

individuals to own and carry firearms for protection.

And the widespread judicial recognition of the inherent

dangerousness of firearms accords with the evidence. The

Department of Justice reported that in 2011, the most recent

year for which comprehensive statistics are available, a total

of 478,400 fatal and nonfatal violent crimes were committed with

afirearm. Michael Planty & Jennifer L. Truman, U.S. Dep’t of

Justice, Bureau of Justice Stats., Special Report: Firearm

Violence, 1993-2011, at 1 (May 2013). Likewise, firearms are a

leading cause of injury-related death in the United States and

have been for many years. Jonathan E. Selkowitz, Comment, Guns,

Public Nuisance, and the PLCAA: A Public Health-Inspired Legal

Analysis of the Predicate Exception, 83 Temp. L. Rev. 793 , 801-

02 (2011); see also Centers for Disease Control & Prevention,

Nat’l Ctr. for Health Stats., Underlying Cause of Death 1999-

2014 on CDC WONDER Online Database, http://wonder.cdc.gov/ucd-

icd10.html (queried on Nov. 18, 2016) (reporting that there were

497,632 intentional firearms deaths between 1999 and 2014).

Accordingly, as a matter of law and fact, firearms--and

therefore individuals who choose to carry firearms--are

inherently dangerous.

29 In sum, individuals who carry firearms--lawfully or

unlawfully--pose a risk of danger to themselves, law enforcement

officers, and the public at large. Accordingly, law enforcement

officers may frisk lawfully stopped individuals whom the

officers reasonably suspect are carrying a firearm because a

detainee’s possession of a firearm poses a categorical “danger”

to the officers.

II.

Having determined that individuals who are armed with a

firearm are categorically “dangerous,” we confront the second

issue--whether individuals who choose to carry firearms

sacrifice certain constitutional protections afforded to

individuals who elect not to carry firearms. We must confront

this issue because treating individuals armed with firearms--

lawfully or unlawfully--as categorically dangerous places

special burdens on such individuals. Today we recognize one

such burden: individuals who carry firearms elect to subject

themselves to being frisked when lawfully stopped by law

enforcement officers.

I see no basis--nor does the majority opinion provide any--

for limiting our conclusion that individuals who choose to carry

firearms are categorically dangerous to the Terry frisk inquiry.

Accordingly, the majority decision today necessarily leads to

the conclusion that individuals who elect to carry firearms 30 forego other constitutional rights, like the Fourth Amendment

right to have law enforcement officers “knock-and-announce”

before forcibly entering homes. See Richards v. Wisconsin, 520

U.S. 385, 394 (1997) (“In order to justify a ‘no-knock’ entry,

the police must have a reasonable suspicion that knocking and

announcing their presence, under the particular circumstances,

would be dangerous or futile.” (emphasis added)). Likewise, it

is difficult to escape the conclusion that individuals who

choose to carry firearms necessarily face greater restriction on

their concurrent exercise of other constitutional rights, like

those protected by the First Amendment. See Schenck v. United

States, 249 U.S. 47, 52 (1919) (Holmes, J.) (“The question in

every [freedom of speech] case is whether the words used are

used in such circumstances and are of such a nature as to create

a clear and present danger that they will bring about the

substantive evils that Congress has a right to prevent.”

(emphasis added)).

The Supreme Court has long recognized that “[t]he promotion

of safety of persons and property is unquestionably at the core

of the State’s police power,” Kelley v. Johnson, 425 U.S. 238,

247 (1976), and “the structure and limitations of federalism . .

. allow the States great latitude under their police powers to

legislate as to the protection of the lives, limbs, health,

comfort, and quiet of all persons,” Gonzales v. Oregon, 546 U.S.

31 243, 270 (2006). Thus, like most rights, the right protected by

the Second Amendment--which Defendant’s conduct may or may not

implicate 2--“is not unlimited” and therefore does not amount to

“a right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.” Heller, 554 U.S. at 626.

In particular, today’s majority opinion necessarily recognizes

that the limitations on the right to carry firearms derive not

only from the language of the Second Amendment--as Heller

recognized--but also from other provisions in the Constitution,

which protect law enforcement officers and the public at large

from individuals who elect to engage in dangerous activities,

like the carrying of firearms.

2 Although we have expressly declined to resolve whether the right recognized in Heller extends beyond the home, United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), other courts are divided on the question, compare Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense . . . implies a right to carry a loaded gun outside the home”); Palmer v. Dist. of Columbia, 59 F. Supp. 3d 173, 181-82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F. Supp. 2d, 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[] not implicate activity protected by the Second Amendment.”); Williams v. State, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald”).

32 III. In sum, because the carrying of a firearm poses a

categorical danger to others--in this case, law enforcement

officers--the law enforcement officers lawfully frisked

Defendant, after lawfully detaining him, based on information

that he carried a firearm. Accordingly, I concur in the

majority opinion’s decision to affirm Defendant’s convictions.

33 PAMELA HARRIS, Circuit Judge, with whom GREGORY, Chief Judge, DIANA GRIBBON MOTZ, Circuit Judge, and DAVIS, Senior Circuit Judge, join, dissenting:

In many jurisdictions and for many years, police officers

could assume that anyone carrying a concealed firearm was up to

no good. Because public possession of guns was prohibited or

tightly regulated, concealed firearms were hallmarks of criminal

activity, deadly weapons carried by law-breakers to facilitate

their crimes. So it followed, without much need for

elaboration, that if a suspect legally stopped by the police was

carrying a gun, then he was not only “armed” but also

“dangerous,” justifying a protective frisk under Terry v. Ohio, 392 U.S. 1 (1968).

But that is no longer the case, at least in states like

West Virginia. Today in West Virginia, citizens are legally

entitled to arm themselves in public, and there is no reason to

think that a person carrying or concealing a weapon during a

traffic stop – conduct fully sanctioned by state law – is

anything but a law-abiding citizen who poses no threat to the

authorities. And as behavior once the province of law-breakers

becomes commonplace and a matter of legal right, we no longer

may take for granted the same correlation between “armed” and

“dangerous.”

The majority disagrees, adopting a bright-line rule that

any citizen availing him or herself of the legal right to carry 34 arms in public is per se “dangerous” under the Terry formulation

and therefore subject to frisk and disarmament, at police

discretion, if stopped for a traffic violation or some other

minor infraction. It may be, as the concurring opinion

suggests, that this is where we will end up – that the price for

exercising the right to bear arms will be the forfeiture of

certain Fourth Amendment protections. Conc. Op. at 30-31. But

unless and until the Supreme Court takes us there, I cannot

endorse a rule that puts us on a collision course with rights to

gun possession rooted in the Second Amendment and conferred by

state legislatures. Nor would I adopt a rule that leaves to

unbridled police discretion the decision as to which legally

armed citizens will be targeted for frisks, opening the door to

the very abuses the Fourth Amendment is designed to prevent. I

must respectfully dissent.

I.

“[A]s public possession and display of firearms become

lawful under more circumstances, Fourth Amendment jurisprudence

and police practices must adapt.” United States v. Williams, 731 F.3d 678, 691 (7th Cir. 2013) (Hamilton, J., concurring).

Within the last decade, federal constitutional law has

recognized new Second Amendment protections for individual

possession of firearms, see McDonald v. City of Chicago, 561 35 U.S. 742 , 791 (2010); District of Columbia v. Heller, 554 U.S.

570, 635 (2008), and state law has followed, providing expanded

rights to carry guns in public, see Williams, 731 F.3d at 691 .

That states have elected to trust their citizens to carry guns

safely cannot, of course, change federal Fourth Amendment law.

But it does change the facts on the ground to which Fourth

Amendment standards apply. And once it no longer is the case

that the public carry of guns is illegal or even unusual, courts

must take into account that changed circumstance in applying the

familiar Terry standard.

We have recognized as much already when it comes to the

“stop” portion of a Terry “stop and frisk,” justified on

reasonable suspicion of criminal activity. See Terry, 392 U.S.

at 30 ; Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). In

jurisdictions in which the public carry of firearms is

prohibited or closely regulated, a concealed gun is indicative

of criminal activity and may give rise to “reasonable suspicion”

sufficient to justify an investigative stop. But when a state

elects to legalize the public carry of firearms, we have held,

the Fourth Amendment equation changes, and public possession of

a gun is no longer “suspicious” in a way that would authorize a

Terry stop. United States v. Black, 707 F.3d 531, 539-40 (4th

Cir. 2013). “Permitting such a justification” for a Terry stop, 36 we explained, “would eviscerate Fourth Amendment protections for

lawfully armed individuals in those states.” Id. at 540 .

We are not alone in this insight. In Northrup v. City of

Toledo Police Dep’t, 785 F.3d 1128, 1131-33 (6th Cir. 2015), for

instance, the Sixth Circuit held that where state law permits

the open carry of firearms, the police are not authorized by

Terry to conduct a stop – or an attendant frisk – of a person

brandishing a gun in public. Where the state legislature “has

decided its citizens may be entrusted with firearms on public

streets,” the court reasoned, the police have “no authority to

disregard this decision” by subjecting law-abiding citizens to

Terry stops and frisks. Id. at 1133 ; see also, e.g., United

States v. Leo, 792 F.3d 742, 749-50, 751-52 (7th Cir. 2015)

(rejecting “frisk” and search of backpack on suspicion that it

contains gun in light of “important developments in Second

Amendment law together with Wisconsin’s [concealed-carry] gun

laws”); United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.

2000) (invalidating Terry stop based on suspicion of gun

possession in open-carry jurisdiction).

In my view, the same reasoning compels the conclusion that

in a state like West Virginia, which broadly allows public

possession of firearms, reasonable suspicion that a person is

armed does not by itself give rise to reasonable suspicion that

the person also is dangerous, so as to justify a Terry frisk.

37 Guns, of course, are in some sense intrinsically dangerous. But

the question under Terry is whether a person carrying a gun is a

danger to the police or others. Terry, 392 U.S. at 24 . And

where the state legislature has decided that its citizens may be

entrusted to safely carry firearms on public streets and during

traffic stops, and law-abiding citizens have availed themselves

of these rights, I do not see how we can presume that every one

of those citizens necessarily poses a danger to the police. See

Northrup, 785 F.3d at 1133 (absent reasonable suspicion that an

armed man is dangerous, officers must “trust . . . their State’s

approach to gun licensure and gun possession”).

To be clear: As Officer Tharp testified at the suppression

hearing, none of the conduct reported in the anonymous tip she

received – that an African-American 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 – was illegal under West Virginia law.

Nor was there any testimony from the officers that the reported

conduct was unusual, or “out of place” where it occurred. Cf.

United States v. Arvizu, 534 U.S. 266, 276 (2002) (conduct that

appears innocuous in one setting but is unusual in another may

give rise to reasonable suspicion). 1 In terms of Robinson’s 1 We have held that in jurisdictions generally allowing public gun possession, police testimony that few law-abiding citizens take advantage of that right is not enough to establish 38 behavior, the officers knew nothing except that Robinson was

engaging in what we must treat as a presumptively lawful

exercise of his right to carry a concealed weapon. See Black, 707 F.3d at 540 (police may not proceed on assumption that gun

displayed in open-carry jurisdiction may be illegally possessed

by convicted felon); see also Northrup, 785 F.3d at 1132 (same).

If that by itself is enough to make a person “dangerous” for

Terry purposes, then the legal right to carry arms in public is

perfectly self-defeating: The moment a person exercises that

right – and has the misfortune to be stopped for a traffic

violation or other minor infraction – he opens himself up to

being frisked and disarmed, at least temporarily, by law

enforcement officers.

The majority insists that this result, putting at cross-

purposes Fourth Amendment and gun possession rights, is

compelled by the Supreme Court’s holdings in Terry v. Ohio, 392

U.S. at 27 , and Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977)

(per curiam). According to the majority, those cases establish

that if the police have reasonable suspicion that a suspect is

“armed,” then they necessarily have reasonable suspicion that he

reasonable suspicion for a Terry stop when a gun is publicly displayed. See Black, 707 F.3d at 540 . But even assuming that such testimony might bear on the separate “dangerousness” inquiry under Terry, none was offered at this suppression hearing.

39 is “dangerous,” as well, justifying a frisk under Terry’s “armed

and dangerous” standard. In other words, when the Supreme Court

says “armed and dangerous,” what it really means is “armed and

therefore dangerous,” Maj. Op. at 13-16 – or, put more simply,

“armed.”

But the Supreme Court for decades has adhered to its

conjunctive “armed and dangerous” formulation, giving no

indication that “dangerous” may be read out of the equation as

an expendable redundancy. See Michigan v. Long, 463 U.S. 1032,

1049 (1983) (approving Terry “frisk” of automobile on reasonable

suspicion “that the suspect is dangerous and the suspect may

gain immediate control of weapons”) (emphasis added). Indeed,

until its latest filing before our en banc court, the government

itself understood “armed” and “dangerous” as separate and

independent conditions of a lawful Terry frisk. See Gov’t Br.

at 16-17. And other courts applying Terry in precisely this

context – against a backdrop of state laws that routinely permit

the public possession of firearms – have taken the same

position, holding that a Terry frisk requires reasonable

suspicion that a person is “both armed and a danger to the

safety of officers or others.” Leo, 792 F.3d at 748 ; see

Northrup, 785 F.3d at 1132 (“Clearly established law required

[the officer] to point to evidence that [the suspect] may have

been armed and dangerous. Yet all he ever saw was that [the 40 suspect] was armed – and legally so.”) (emphasis in original)

(citation omitted).

It is true, as the majority argues, that the Court in Terry

and Mimms was prepared to infer danger from the presence of a

concealed firearm. Terry, 392 U.S. at 28 ; Mimms, 434 U.S. at

112 . But that simply brings us back to our starting point:

that in jurisdictions where public possession or concealed carry

of guns is illegal, as in Terry, see Northrup, 785 F.3d at 1131 ,

or tightly regulated, as in Mimms, 2 there is precious little

space between “armed” and “dangerous” – not only because someone

carrying a gun probably is breaking the law already, but also

because he likely is inclined to commit other crimes with the

assistance of the gun. Nobody – including Robinson – doubts

that as in Mimms and Terry, a presumptively illegal concealed

gun gives rise to a reasonable suspicion of dangerousness,

allowing the police to conduct a protective frisk. But those

cases simply do not speak to the very different circumstances

presented when public gun possession is presumptively legal, see

Black, 707 F.3d at 540 , and there no longer is reason to believe 2 At the time of the events in Mimms, local law appears to have strictly limited the public possession of firearms, allowing it only in certain narrow circumstances. See 1943 Pa. Laws 487 ; 1972 Pa. Laws 1577 .

41 that a person carrying a gun during a traffic stop is anything

but a perfectly law-abiding citizen.

Nor, contrary to the majority’s analysis, Maj. Op. at 16-

17, does Adams v. Williams, 407 U.S. 143 (1972), resolve this

issue. Adams does make clear, as the majority emphasizes, that

even a lawfully possessed firearm can pose a threat to officer

safety. 407 U.S. at 146 . But that point is of limited use

here, because nobody is disputing it. Robinson’s argument is

not, as the majority would have it, Maj. Op. at 16, that any

risk of danger posed by a firearm necessarily is “eliminated” if

the firearm is legally possessed. Where, as in Adams, an armed

man suspected of drug offenses is sitting alone in a parked car

at 2:15 a.m. and unwilling to cooperate with the police,

everyone agrees that the circumstances give rise to a reasonable

suspicion of “dangerousness” regardless of the legal status of

the gun. See 407 U.S. at 147-48 . But the question in this case

is different: not whether a presumptively lawful gun may give

rise to a reasonable suspicion of dangerousness under certain

circumstances, but whether it necessarily and automatically does

so in every circumstance. On that question, Adams has nothing

to say. 3 3 Nor does Michigan v. Long, 463 U.S. 1032 (1983), on which the majority also relies. In a footnote, Long cites Adams for the proposition that a person in legal possession of a weapon – 42 The problems with treating “armed and dangerous” as a

“unitary” concept, see Conc. Op. at 23, go beyond the mismatch

with precedent. As the concurring opinion cogently explains,

the logic of Terry frisk doctrine is premised on an independent

role for dangerousness: Whether a person in possession of, say,

a screwdriver is deemed “armed” under Terry depends entirely on

whether there is separate reason to believe he or she also is

“dangerous” and thus might use that screwdriver as a weapon.

See Conc. Op. at 24-25; United States v. Matchett, 802 F.3d

1185, 1193 (11th Cir. 2015) (upholding Terry frisk of burglary

suspect because burglars frequently are “armed” with tools like

screwdrivers).

And though it purports to rely on a common-sense equation

of guns with danger, the majority’s approach can embrace that

connection only very selectively: An armed citizen in an open-

carry jurisdiction necessarily poses a “danger” to the police

in Long, a knife – may pose a risk of danger to the police. Id.

at 1052 n.16. But the Court’s approval of the frisk in Long rested not only on the presence of a weapon, but also on an independent finding that under all the circumstances of the case – featuring a suspect who drove at excessive speed, swerved into a ditch, refused initially to cooperate, and appeared to be intoxicated – the officers were “clearly justified” in their “reasonable belief that Long posed a danger” to their safety. Id. at 1050.

43 that justifies a protective frisk if and only if he appears to

have committed some offense, however trivial – like the seatbelt

violation here – leading to a valid stop. See Maj. Op. at 15-

16. If, on the other hand, the police in this case had

initiated a consensual encounter with Robinson in the 7-Eleven

parking lot, then the gun Robinson was suspected of carrying

would not have been grounds for a frisk, as the government

conceded at oral argument. Likewise, had Robinson exited the

car in which he was a passenger before the police could conduct

their pretextual traffic stop, then again he would no longer be

“dangerous” for purposes of allowing a Terry frisk,

notwithstanding the concealed gun in his pocket. To be sure, as

the majority explains, Maj. Op. at 15, Terry doctrine requires

that a frisk be attendant to a lawful stop. But if “armed” may

be conflated with “dangerous” under Terry, then it is hard to

see why an officer’s right to protect him or herself would be

made to turn on whether a dangerous person carrying a gun has

remembered to fasten his seatbelt.

Most important, by equating “armed” with “dangerous” even

in states where the carrying of guns is widely permitted, the

majority’s rule has the effect of depriving countless law-

abiding citizens of what otherwise would be their Fourth

Amendment and other constitutional rights. As the concurring

opinion explains, the upshot of the majority’s approach is that 44 citizens who avail themselves of their legal right to carry

firearms will be subject to a wide range of “special burdens,”

the full extent of which we only can begin to discern. Conc.

Op. at 30. Certainly, such citizens may be frisked and

temporarily disarmed when stopped, even for the most minor of

infractions; if they necessarily are “dangerous,” then the

police should be free to dispense with Fourth Amendment “knock-

and-announce” protections before entering their homes; and when

armed and “therefore dangerous” citizens seek to assemble in

public, their First Amendment rights may be restricted based on

the risk they are conclusively presumed to pose to public

safety. See id. at 30-31. To the concurring opinion’s list, I

would add one more: If a police officer reasonably believes

that a suspect poses a “threat of serious physical harm,” he may

use deadly force to protect himself, see, e.g., Cooper v.

Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (internal quotation

marks omitted), and while we have held in the past that the

presence of a gun alone does not constitute a “threat,” id., or

establish that a suspect is “dangerous” to an officer, Pena v.

Porter, 316 F. App’x 303, 311 (4th Cir. 2009) (unpublished),

today’s decision insisting on a conclusive link between “armed”

and “dangerous” undoubtedly will have implications for police

use of force, as well. Those consequences – and others that

surely will follow – are profound, both practically and 45 constitutionally, and I would not be so quick to invite them

without some direction from the Supreme Court.

But my biggest concern is that these “special burdens” –

most relevantly, the Terry frisks at issue here – will not be

distributed evenly across the population. Allowing police

officers making stops to frisk anyone thought to be armed, in a

state where the carrying of guns is widely permitted, “creates a

serious and recurring threat to the privacy of countless

individuals,” Arizona v. Gant, 556 U.S. 332, 345 (2009) (police

may not search a car “whenever an individual is caught

committing a traffic offense”). And, critically, it “gives

police officers unbridled discretion” to decide which of those

legally armed citizens will be targeted for frisks, implicating

concerns about the abuse of police discretion that are

fundamental to the Fourth Amendment. See id.; Black, 707 F.3d

at 541 . As Judge Hamilton warned in Williams, once a state

legalizes the public possession of firearms, unchecked police

discretion to single out anyone carrying a gun gives rise to

“the potential for intentional or unintentional discrimination

based on neighborhood, class, race, or ethnicity.” 731 F.3d at

694 ; see also Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016)

(Sotomayor, J., dissenting) (“it is no secret that people of

color are disproportionate victims” of special police scrutiny).

46 The government assures that we need not worry about these

possible disproportionate effects because a Terry frisk may be

conducted only after a stop on reasonable suspicion of “criminal

activity” – an “objective standard” that “prevents police stops

on hunches alone.” Pet’n for Reh’g En Banc at 13. But that

simply is not so, and to understand why not, we need look no

further than the facts of this very case. Robinson was not

stopped for “criminal activity,” at least as that term generally

is understood. As a legal matter, he was stopped because

Officer Hudson observed a seatbelt violation – the kind of minor

and routine traffic infraction that does next to nothing to

narrow the class of legally armed citizens who may be subjected

to a frisk at police discretion. And in reality, as Officer

Hudson candidly testified at the suppression hearing, Robinson

was stopped so that the police could investigate the tip they

had received about a black male carrying a concealed firearm.

Though Robinson’s gun possession was presumptively lawful in

light of West Virginia’s generous public-carry laws, see Black, 707 F.3d at 540 , that is, Robinson was stopped precisely because

the police had a hunch that his possession in fact might be

unlawful.

It is true, as the government argues, that under Whren v.

United States, 517 U.S. 806 (1996), the Fourth Amendment permits

this kind of pretextual traffic stop, undertaken in order to 47 explore some unsupported hunch. But that is exactly the

problem: In light of Whren, the requirement that a valid stop

precede a Terry frisk imposes no meaningful limit at all on

police discretion. If the police in a public-carry jurisdiction

want to target a particular armed citizen for an exploratory

frisk, then they need do no more than wait and watch for a

moving violation, as in this case – or a parking violation, see

United States v. Johnson, 823 F.3d 408, 412 (7th Cir. 2016)

(Hamilton, J., dissenting) (describing pretextual stop for

“parking while black”) reh’g en banc granted, opinion vacated

(Aug. 8, 2016); or, for the pedestrians among us, a jaywalking

infraction, as the government helpfully explained at oral

argument – and then make a pretextual stop.

And we should be clear about the degree to which that

pretextual stop may be leveraged into a wide-ranging and

intrusive investigation. Cf. Strieff, 136 S. Ct. at 2069

(Sotomayor, J., dissenting) (“Although many Americans have been

stopped for speeding or jaywalking, few may realize how

degrading a stop can be when the officer is looking for more.”)

First, of course, is the frisk itself, euphemistically described

as a “pat-down” but recognized, since Terry, as a “serious

intrusion upon the sanctity of the person” that may extend to a

thorough touching of sensitive and private areas of the body.

Id. at 2070 ; Terry, 392 U.S. at 17 & n. 14. And under Michigan 48 v. Long, 463 U.S. 1032, 1049-50 (1983), reasonable suspicion

that the subject of a vehicular stop is armed and dangerous may

authorize not only a frisk of the suspect’s person but also a

“frisk” of the passenger compartment of the car. So with

possession of a firearm in a public-carry state now enough to

generate a reasonable suspicion of dangerousness, pretextual

stops will allow police officers to target law-abiding gun

owners not only for intrusive frisks but also limited car

searches, at police discretion and on the basis of nothing more

than a minor infraction. That is effectively the same result

that the Supreme Court found unacceptable in Gant, 556 U.S. at

345 (forbidding car searches incident to arrest for minor

traffic violations), and it should be no more acceptable here,

where a right of constitutional dimension – the right to bear

arms – is in the balance.

I recognize the serious concerns for officer safety that

underlie the Terry frisk doctrine and the majority’s opinion.

Those concerns, as the majority points out, Maj. Op. at 12-13,

may be especially pronounced during traffic stops, see, e.g.,

Mimms, 434 U.S. at 110 -11 – though, of course, the majority’s

rule is not limited to the context of traffic stops. And I do

not doubt that recent legal developments regarding gun

possession have made the work of the police more dangerous as

well as more difficult. See Williams, 731 F.3d at 694 .

49 In my view, states have every right to address these

pressing safety concerns with generally applicable and even-

handed laws imposing modest burdens on all citizens who choose

to arm themselves in public. For instance, many states – though

not West Virginia – seek to reconcile police safety and a right

to public carry through “duty to inform” laws, requiring any

individual carrying a weapon to so inform the police whenever he

or she is stopped, 4 or in response to police queries. 5 And if a

person fails to disclose a suspected weapon to the police as

required by state law, then that failure itself may give rise to

a reasonable suspicion of dangerousness, justifying a protective

frisk.

West Virginia, however, has taken a different approach,

permitting concealed carry without the need for disclosure or

temporary disarmament during traffic stops. For the reasons

described above, I do not believe we may deem inherently

“dangerous” any West Virginia citizen stopped for a routine

traffic violation, on the sole ground that he is thought to have

availed himself fully of those state-law rights to gun 4 See, e.g., Alaska Stat. § 11.61.220 ; La. Stat. § 40:1379.3; Neb. Rev. Stat. § 69-2440 ; N.C. Gen. Stat. § 14 - 415.11; Okla. Stat. tit. 21, § 1290.8 . 5 See, e.g., Ariz. Rev. Stat. § 13-3112 ; Ark. Code § 5-73- 315; 430 Ill. Comp. Stat. 66/10; S.C. Code § 23-31-215.

50 possession. Nor, in my view, does the Fourth Amendment allow

for a regime in which the safety risks of a policy like West

Virginia’s are mitigated by selective and discretionary police

spot-checks and frisks of certain legally armed citizens, by way

of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440

U.S. 648, 661 (1979) (invalidating discretionary spot-checks of

drivers for licenses and registrations in furtherance of roadway

safety). Absent some “specific, articulable suspicion of

danger” in a particular case, see United States v. Sakyi, 160

F.3d 164, 168-69 (4th Cir. 1998), West Virginia’s citizens,

including its police officers, must trust their state’s

considered judgment that the benefits of its approach to public

gun possession outweigh the risks. See Northrup, 785 F.3d at

1133 .

II.

The majority’s rule is bright-line and broad: Any citizen

carrying a gun in a public-carry jurisdiction is “armed” and

also per se “dangerous” under Terry, regardless of surrounding

circumstances. Maj. Op. at 18. The majority goes on, however,

to consider the particular facts surrounding Robinson’s stop,

and concludes that they confirm a reasonable suspicion of

dangerousness. Id. at 18-19. Though this portion of the 51 majority’s opinion appears to be dicta unnecessary to its

holding, I respectfully note my disagreement.

To be clear, I have no quarrel with the majority’s premise:

that under certain circumstances, even a lawfully possessed

firearm can give rise to a reasonable suspicion of

dangerousness. See Adams, 407 U.S. at 146 . And so it is

incumbent on me to consider whether the frisk in this case was

justified in light not only of reasonable suspicion that

Robinson was armed – insufficient by itself – but also of the

surrounding circumstances. But like the magistrate judge who

conducted Robinson’s suppression hearing, I do not believe that

either of the factors cited by the government and the majority –

Robinson’s presence in a high-crime neighborhood, or his

“evasive response” when asked if he had a gun – is probative of

dangerousness in the context of this case. Taking all of the

circumstances together, I see no “particularized and objective

basis” for believing that Robinson was dangerous as well as

armed. See United States v. George, 732 F.3d 296, 299 (4th Cir.

2013) (internal quotation marks omitted).

The suppression hearing in this case was conducted by a

magistrate judge, who heard testimony from all of the officers

involved in the events leading up to Robinson’s frisk. In

recommending suppression, the magistrate judge evaluated the

full circumstances surrounding Robinson’s frisk, including both 52 the “high-crime” status of the apartment complex next to the 7-

Eleven at which Robinson was seen loading his weapon and

Robinson’s conduct during the traffic stop. According to the

magistrate judge, the testimony at the hearing indicated that

Robinson was fully cooperative with the police, who perceived no

“furtive gestures” or movements suggesting an intent to reach

for a weapon. J.A. 131. And based on all of the evidence

before him, the magistrate judge concluded that the government

had failed to “articulate any specific fact, other than

[Robinson’s] possession of a firearm in a high crime

neighborhood, a legal activity in the state of West Virginia,

which would justify the officer’s suspicion that [Robinson] was

dangerous.” Id. at 138.

The district court, of course, rejected the magistrate

judge’s report and recommendation and denied the suppression

motion. But because the district court did not conduct a second

hearing, this case must be decided on the record created before

the magistrate judge. And on that record, I see no reason for

second-guessing the magistrate judge’s determination that the

government’s witnesses “testified to no objective and

particularized facts demonstrating that [Robinson] was dangerous

at the time of the traffic stop.” Id. at 137.

It is true, as the magistrate judge carefully reviewed,

that police officers provided testimony that an apartment 53 complex adjacent to the 7-Eleven at issue is considered a high

crime area, and that crime from that complex often “spilled

over” into the 7-Eleven parking lot where Robinson was seen, “as

evidenced by shoplifting, thefts and drug trafficking

activities.” Id. at 130. And it is clear, as the magistrate

judge recognized, that presence in a high-crime area may

contribute to a finding of reasonable suspicion. See Illinois

v. Wardlow, 528 U.S. 119, 124 (2000).

But as our cases have indicated, the relative significance

of a high-crime area, like other reasonable suspicion factors,

is context-specific. In some cases, for instance, we have

sustained a Terry frisk because it occurred in a high-crime area

late at night. See, e.g., George, 732 F.3d at 300 . In Black,

however, we rejected a position substantially the same as the

government’s here: that even if public gun possession alone

does not justify a Terry stop where the law permits the open

carry of firearms, gun possession in a high-crime area would be

sufficiently “suspicious” to do so. 707 F.3d at 542 .

Black should govern here. Whether or not a high-crime

environment might make other ambiguous conduct – for instance,

fleeing from a police officer, see Wardlow, 528 U.S. at 124 –

more likely to be criminal or dangerous, it sheds no light on

the likelihood that an individual’s presumptively legal gun

possession poses a danger to the police. That is because where 54 public gun possession is permitted, high-crime areas are exactly

the setting in which we should most expect to see law-abiding

citizens carrying guns; there is more, not less, reason to arm

oneself lawfully for self-defense in a high-crime area. Cf.

McDonald, 561 U.S. at 790 (“[T]he Second Amendment right

protects the rights of minorities and other residents of high-

crime areas.”). Presence in a high-crime area, in other words,

is as likely an explanation for innocent and non-dangerous gun

possession as it is an indication that gun possession is illegal

or dangerous, and it does nothing to help the police tell the

difference.

As discussed above, in states allowing the public

possession of weapons, authorizing a Terry pat-down whenever

there is reasonable suspicion that a person is armed, and in

connection with a stop for any minor violation, would give the

police unchecked discretion in deciding which armed citizens to

frisk. Allowing such automatic frisks only in high-crime areas

would do nothing to address that concern. Instead, it would

guarantee that the costs of such intrusions are borne

disproportionately by the racial minorities and less affluent

individuals who today are most likely to live and work in

neighborhoods classified as high-crime. See Black, 707 F.3d at

542 . Given the lack of probative value associated with a high-

crime area when it comes to gun possession, there is no 55 justification for adopting such a rule. “The new constitutional

and statutory rights for individuals to bear arms at home and in

public apply to all,” and “[t]he courts have an obligation to

protect those rights” in neighborhoods labeled “bad” as well as

“good.” Williams, 731 F.3d at 694 (Hamilton, J., concurring).

Apart from the high-crime neighborhood, the majority, like

the government, puts primary reliance on Robinson’s “evasive

response” when asked by Captain Roberts whether he was carrying

a firearm. Maj. Op. at 19. But according to the officers’

testimony, Robinson was cooperative throughout his encounter

with the police, and never made any inconsistent statements

indicating nervousness. And the magistrate judge found –

without dispute by the district court – that Captain Roberts’s

inquiry to Robinson came virtually simultaneously with the frisk

itself: Roberts “asked [Robinson] if he had any firearms on his

person as [Robinson] was exiting the vehicle,” and upon

perceiving a “weird look,” ordered Robinson to place his hands

on top of the car and conducted the frisk. J.A. 118. Even

construing this evidence in the light most favorable to the

government, there was a very limited time window during which

Robinson could have responded before the frisk made the question

moot, and his failure to interject an answer immediately did not 56 provide an objective indication that he was about to abandon his

cooperative posture and become dangerous. 6 That is particularly so given that West Virginia does not

require that people carrying firearms inform the police of their

guns during traffic or other stops, even if asked. See supra at

50. Where a state has decided that gun owners have a right to

carry concealed weapons without so informing the police, gun

owners should not be subjected to frisks because they stand on

their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of

officer’s demand to see permit for gun being brandished in

public is “particularly acute” where state has not only

legalized open carry of firearms but also “does not require gun

owners to produce or even carry their licenses for inquiring

officers”). Under a different legal regime, different

inferences could be drawn from a failure to answer an officer’s

question about a gun. See supra at 50-11. But I do not think

we may presume dangerousness from a failure to waive – quickly 6The majority appears also to credit the “weirdness” of Robinson’s look, as understood by Captain Roberts, as indicative of evasiveness or perhaps dangerousness itself. Maj. Op. at 19. On this point, I must agree with the magistrate judge: Captain Roberts’s perception that through his look Robinson actually was saying, “[O]h, crap,” “I don’t want to lie to you, but I’m not going to tell you anything,” J.A. 89, is sufficiently subjective that it cannot constitute an objective or articulable factor supporting reasonable suspicion of anything.

57 enough – a state-conferred right to conceal a weapon during a

police encounter.

Again, I recognize that expanded rights to openly carry or

conceal guns in public will engender genuine safety concerns on

the part of police officers, as well as other citizens, who more

often will find themselves confronting individuals who may be

armed. But where a sovereign state has made the judgment that

its citizens safely may arm themselves in public, I do not

believe we may presume that public gun possession gives rise to

a reasonable suspicion of dangerousness, no matter what the

neighborhood. And because the rest of the circumstances

surrounding this otherwise unremarkable traffic stop do not add

appreciably to the reasonable suspicion calculus, I must

conclude that the police were without authority to frisk

Robinson under Terry’s “armed and dangerous” standard.

Accordingly, I dissent.

58