STOP, DETAIN, SEARCH - What CAN an Officer Do Legally (IANAL)

[ImminentDanger]

A recent case with disturbing ideas (in the 4th Circuit Court of Appeals):


US v. Robinson - January 23, 2017
(US Court of Appeals - 4th Circuit - 14-4902)
http://www.ca4.uscourts.gov/opinions/144902A.P.pdf

Writing the majority opinion, Circuit Judge NIEMEYER write:

"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."

"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, 41 (1997). It is also inconsequential that the passenger may have had a permit to carry the concealed firearm. 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). "

In a concurring opinion, Circuit Judge Wynn writes:

"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. "

"Today we recognize one such burden: individuals who carry firearms elect to subject themselves to being frisked when lawfully stopped by law enforcement officers. "

"Accordingly, the majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers “knock-and-announce” before forcibly entering homes."

"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."

In a dessenting opinion, Circuit Judge Pamela Harris writes:

"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 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. "

"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). "

[bill gray]

PA under Hicks and the 4th Circuit of appeals have very different definitions of the word "AND." It seems that in PA you need to show some evidence of aggression/agitation/resistance to bring "and dangerous" into play. In the 4th dist of appeals, possession of a firearm is dangerous in and of itself. In PA, maintaining a calm and reasonable tone, not droning on about violation of rights or vengeance against the officer detaining you should allow you to keep that .50 cal revolver in a chest holster right where it is during your traffic stop. Voice or video recording might just reveal the officer grinding his molars to powder in frustration but, hey, the law is the law.