By Ken Wallentine
United States v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc)
An anonymous caller told police that he had just “witnessed a black male in a bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” in the parking lot of a 7–Eleven store well known for drug trafficking. The tipster reported that the Camry was being driven by a white woman and had just started to go south on North Mildred Street. This area is known as the “highest crime area” in the city.
As an officer turned on to North Mildred Street, he saw a Toyota Camry being driven by a white woman with a black male passenger. He observed that neither occupant was wearing a seat belt and he stopped the car based on that violation. The backup officer opened the passenger door for Robinson, the passenger, to step out. He asked Robinson whether he had any weapons on him. Robinson didn’t answer verbally, but gave the officer “’a weird look’ or, more specifically, an ‘oh, crap’ look.”
The officer frisked Robinson and found a loaded gun in his pocket. Recognizing Robinson as a convicted felon, he arrested him. Robinson asked the court to suppress the evidence from the frisk.
Robinson argued that the state permitted persons to carry concealed weapons by permit. The rule of Terry v. Ohio (392 U.S. 1 (1968)) permits a detention and frisk for weapons when an officer has reasonable suspicion that a person is both armed and dangerous. Because the officers did not know whether he had a permit prior to the time that they stopped the car and frisked him, Robinson claimed, they could not have known whether his possession of the concealed weapon was lawful. Thus, he might have been involved in innocent behavior that would not lead to reasonable suspicion that he was both armed and a danger to others.
The court rejected Robinson’s argument: “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.” As long as the officer carefully applies the Terry doctrine, the fact that a state allows carrying a concealed weapon will not defeat an otherwise proper frisk. The officer must have:
• Conducted a lawful stop, whether an investigative detention or traffic stop
• A reasonable belief that the person is both armed and presents a danger to others
The court cited the Supreme Court’s discussion of dangers that officers face in Maryland v. Wilson (519 U.S. 408 (1997)) and more recent data from the 2014 Law Enforcement Officers Killed and Assaulted report. Nonetheless, the court reminded officers that the risk inherent in every traffic stop—proven by the numbers of officers killed and assaulted—won’t automatically justify a frisk. In this case, there was more than ample reasonable suspicion to both stop and to frisk Robinson.
The number of concealed carry permit holders increases yearly and more states are allowing people to carry concealed weapons without a permit (subject to the usual restrictions of age, criminal history, etc.). Officers will increasingly face application of the Terry doctrine as it applies to frisks for weapons and persons who may be lawfully carrying a weapon.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.