thank you your honor and may please the court my name is nicholas compton i represent the appellant in this case a shaquille robinson i would die asked to reserves on my time for rebuttal which i think of the clerk has done daughters this case is about a young african american man who was removed from a vehicle and subjected by law enforcement to a terry frisk without any reasonable suspicion that he was armed and dangerous and that is the standard that we're asking the court to follow the standard that was announced by the supreme court in arizona versus johnson that the defendant was armed and dangerous reasonable suspicion is an objective standard based on the totality of the circumstances as the court has announced in its u s b george case and it is a reasonable suspicion that the defendant is armed and dangerous not just armed and the government bears the burden of  producing some facts some evidence to suggest that the defendant to establish the reasonable suspicion standard again of armed and dangerous i just asked are you are you effect are you focusing really on this dangerous thing and not really contesting that there was reasonable suspicion that he was i believe that's correct your honor and i think that that will sort of narrows the argument here the government who were in that connection  following this the law with the del robust second amendment that we have yes some states so i understand it well i guess all states require a permit for concealed carry although i think some states are now moving towards you don't need a permit west virginia does require a permit you know i think every virtually every state does and so the question becomes in the twenty first century under the the new second amendment is there by definition reasonable suspicion to pat down if that everybody at least everybody who somebody says is our eyes or where we are i think your honor gets to the point and i believe that's what in this case the government is ultimately suggesting with their position is that in west virginia and as in the court has suggested in most states west virginia is an open carry state you don't need a permit just to carry if you want to conceal you do need a permit and so if you are armed for if you follow the government's position if you are armed and then in this ambiguously defined high crime area then you automatically become armed and dangerous and for somebody like shaquille robinson who lives and has lived and his family lives in the area where he was arrested then he by virtue of complying with the laws of west virginia either by openly carrying or concealed carrying with a permit then he is automatically subject to this reasonable suspicion because he would then be armed say yes high crime area counts in the reasonable suspicious calculus then there's a second line of cases to say well wait a minute you know people live in high crime areas and people go to school in high crime areas and people walk through the streets in high crime areas so the fourth amendment doesn't evaporate just because you happen to be in or live in a quote unquote high crime area ok but is that the crux of this case that that th combined with the location and not withstanding west virginia's permit system i get the pat down or was it the weird look was the weird look necessary to reasonable suspicion here i don't believe so your honor it's an objective standard first of all and that clearly the as the officer described it the oh crap luck is a subjective means any of this i mean very we have an officer mak step on it because i think it's really relevant i and i don't know the answer is it's state law question i know in some states if you have a concealed carry permit you are under an obligation if the police stop you to say i have a permit i'm armed and i have a permit but i don't there's nothing in the record suggesting that west virginia is one of those states and i know those laws are controversial that a lot of people don't like the idea that you would have to tell a police officer if you're carrying a gun but you know what the status is in west virginia i'll be honest with your honor i am not familiar enough to say to the court are getting to i think if the court looks at the testimony that was taken by the magistrate judge we do not have a situation here where the officer stopped the vehicle they walked up they looked at the defendant in the passenger seat and said are you armed and he just you know looked at them and didn't say anything and went in that they had evidence that he was our so now the real question is how far did they go you know allowing the armed person to be there and basically if the dialogue had carried out it could easily have said are you warm and the man could have answered and said him a chance they didn't give him a chance to answer or you are and how do you react they asked him are you well armed as they are taking as he is being asked to get out of the vehicle this wasn't a question it of are you you know i've conducted this stop i'm concerned for my safety are you armed let me see what you i mean the guy clearly didn't answer as he responded with a look at the officer interpreted as additional suspicion because there were so of the timing the exchange prompted this particular officer think he was at risk now the question is was that reason your honor we suggest that they they already made the determination that they were at risk before they even got to the vehicle to even have any interaction with the defendant officer hudson testified that he got out of his vehicle for a seatbelt traffic stop with his weapon drawn captain roberts came up to the vehicle immediately said to officer hudson did you frisk him before having any interaction with mr robinson said officer hudson did you first came hudson said no captain roberts goes up to the passenger seat says get out and then they got in then says as he's getting out do you have a weapon mr robinson gives this subjective law that the officer interprets as over crap i have a weapon and you caught me and then they do the friends is the weird thing about this case i really struggle with this this is a seat belt stop right we have to take the government sort of at its word this is a seatbelt stop so whatever we decide about this case you know we have to view this as a traffic stop and so i don't i don't even know which way that cuts but it is an odd thing about this case right it's it's like we're toggling back and forth in rand land right on the one hand it's a valid stop because it was for a seatbelt on the other hand arguably the first is valid because of course it wasn't a seatbelt stop it was a gun stop and that just makes it hard for me at least to figure out is that how do announce a rule for this case well i think that we go back to the objective reasonable suspicion and our position that the officers had already made decision officer hudson testified that he had left the station before the tip call had even finished he had already made the determination that we have a young african american at the seven eleven in this suppose d high crime area and so for us that must mean he's dangerous so i'm going to go that i've got a traffic stop here that i'm going to use as the pretext to make this in of all the there was not only a high crime area the highest crime area and that it was a parking lot which the citizens were afraid to go into the store or go across to the to the apartment complex and the transactions occurred regularly on the parking lot i mean and and this man arms and self and puts the gun in his belt in that parking lot this is not a so called this is  contributes to the suspicion the officers obviously were making a drawing on their experience and background i don't think you can be little doubt i see my time is expired with a court like the response i would i would simply point out to the court that the officers the same officers with all of the experience that the court decided in the government cited in their brief have also testified that the entire city of branson is a high crime area that doesn't take away from the fact this was the number one place they said this was the worst location and that private citizens had difficulty in this area engaging them so yes you're right that the transactions  well his argument and it would help his argument is that it was not suspicion that yes so obviously i saw from the questioning and the argument that that's the issue in this case really and i know i've known that from the beginning that it's about danger and first of all i think the starting point is to look back to that terry case in chief justice warren how he described it well if rather than terry this this is j l right this is florida versus jail no and the distinction well hear me out and then respond if i understand the record forget the traffic stop as as judge harris has pointed out that makes it very interesting and weird and calls into mine you know justice o'connor's dissent and ran and all of that but seatbelt violation the stop is ok and the defendant's not challenging the stop so in a sense you can change the facts a little bit and forget the traffic stop and the guy standing in front of the seven eleven all right that's j l and the only difference if i understand the record as judge  officer jumps out does the pat down doesn't conduct an investigation here we have if you want to call it that an investigation in so far as he asked the question are you armed now counsel argue district simply simply reached a different legal conclusion and now the legal conclusion that the district judge reach is before us for our determination these are all questions of law not questions of fat nobody nobody over not for one second whether officers are always in danger and we want to do everything in the law should do everything to protect these officers they put their lives on the line every time they leave their home but the question here is the admissibility of evidence not the safety of the office the admissibility of the evidence and so this looks like j l to me it's clearly distinguishable from  so i'm trying to figure out with your help why is it ok for an officer to walk up to somebody standing in front of a seven eleven or to pull him over in a car a few blocks away and immediately put hands on them in the face of jail and some of our own press is going to respond to your initial question about jail that it's not just a traffic stop that's different in jail the court found that was the whole reason why the court was addressing that case the door was not a reliable tip so it wasn't a reliable tip we have reliable tip in this case but you also cannot divorce the traffic stop out of this case it is what makes the case and drawing lines it is what make the traffic stop makes t because we're yes because we're talking when we're talking about reasonable suspicion there are two different standards there's reason suspicion of criminal activity which was jail is he up to no good not is a reasonable suspicion as to armed and dangerous and there's a difference there and that's what when you look at that the case isn't even in this circuit there aren't very many cases on point to armed and dangerous all the cases are really about criminal activity in their different standards because they're different competing interests versus the individual liberty in the criminal activity case you're talking about the society being free from crime in armed and dangerous cases you're talking about an officer being free from a bullet there's a difference so j l doesn't really speak to this case at all because we have a traffic stop and really to get to your hypothetical i do think i agree with you in this part that there would be much more difficulty if he was just standing at the seven law why that's why yeah why yes you're still in the high crime area there's still this report that he he's on you have the additional fact that that apparently only basis is the belief that the individual is in possession of a weapon that could be used to harm the officer or those in the vicinity right yes doesn't matter what the basis for the encounter is the danger doesn't imply require criminality i'm agreeing with you that's why does it matter whether it's a traffic stop or not you could you could meet somebody on wall street and if there's reasonable suspicion that that individual is armed and dangerous the officer can do a pat down your honor in your case massenburg opinion that you wrote there's a major difference there because they just walk up to the officers make in an i think they called a voluntary encounter with the four black males on the sidewalk lyneham up and start the stop and right and first that right well they had no reason to stop them in the first place there was no suspicion of criminal activity they had an anonymous tip they were shot some were fired and and some general  they have to have i disagree with your interpretation of my despair think i did have they did have a basis to stop them the question was did they have a basis to frisk that young man and that's the same question here again there's no dispute about the stop simple violation that's in the record nobody disputes that the question is the legitimacy of going hands on with a with the person that's the question yes but then one reason i'm going back to the stop your hypothetical not stopping him at the seven eleven if you were standing in the parking lot you don't have to have a reason to stop and at that point you don't have evidence of criminality correct and you have to start with suspicion of criminality or you can get into dangerous it seems to me to go i don't think the fact that this is the seat belt stuff like twist my own mind around it it does seem like the government sort of trying to have it both ways a little bit and maybe this is technically correct but it is odd to say right the stop i because we only stopped over the seatbelt violation but then to turn around and say but come on obviously we really stopped him because we thought he had a gun so of course we have to be able to protect ourselves it would be like if in ran they had argued we want the right to stop the jeep and immediately search everyone inside because we're stopping it because they didn't whatever was a u turn without signaling but really come on we're stopping at because we think they're drug dealers and when you're dealing with drug dealers you have to be able to frisk everyone i just think it's if this just seems like that kind of went toward maybe some danger and then they develop certain facts that during a traffic stop this is a seatbelt there's no danger at least to the community or the officers for not wearing a seatbelt so it does factor  he called it then the right to frisk must automatically follow no it doesn't automatically follow the if you have you are taking a lady i understand your point but you articulated in the wrong i'm sorry the stop is justified you you still have to have a suspicion to go further that he's armed and dangerous otherwise you can't risk this you can get him out of a car under wilson but you can't risk them until you have a suspicion armed and dangerous but armed and dangerous is different from criminal activity and you got the criminal activity satisfied under a terry stop because of the seatbelt violation and there were just two steps you got to have to go further after the stop you still have to have additional factors that he's armed suspicion that he's armed and dangerous right and we are the only point in green and part with you is that we ought not to be looking at whether he stand in there and you can just press go you have to have evidence of criminality before you even get into defendant is essentially conceded that if the armed is not a big issue dangerous is and i'll get to that second step now we believe that based on the anonymous tip there was a reasonable suspicion of danger and that's because it wasn't that he was observed possessing the firearm and putting it on assad when he came out of a local firing range and putting his concealed carry permit neatly in his wallet and into his pocket best not what was seen that's not what was reported but was reported and f permit or license to respond to the general question from law enforcement whether they are indeed presently armed i cannot answer that question can i presume that if that were the law of west virginia the u s attorney's office would be all over it right possibly but i suppose i think you know the answer but i think if the answer were yes but again we're talking about a suspicion of danger and and the one thing that's important there that he didn't respond is not whether he's required to do that but it's more about a concern that was not dispelled when i had the opportunity to be but how much of an opportunity that he had because the burden is on you of course to prove the basically was laying on hands or at least ordering him to turn around and put his hands on the car as he was getting out of the car so there was no time between get out of the car and are you are or do you have a permit this all happened simultaneous it happened very quickly and happens quickly in these in these type of case but there was a least enough time for him and to feel that he didn't receive a response and that he actually received a look whether that's weird or we want to attach some kind of long sentence that he tried to attach to it but what's objective about it is there was a time for response we don't know how many seconds it was it was a fluid situation but there was a least time for him to feel like the person should have responded and you know he did why couldn't the officer do exactly the same thing based on this tip if robinson had been standing in front of the seven eleven instead of going down the road in a car what's the difference if the officer can approach robinson based on the information that he had from the ten what how do you distinguish the interaction down the road a piece after the traffic stop from a similar interaction at the seven eleven given what the information that you also of the seven eleven you don't have criminal activity and you have to have criminal activity or reason suspicion there of to encounter and and i don't i don't want to i don't want to keep repeating but you're saying that because you can stop a car for failing to stop a stop sign or illegal left turn touching though that the white line you can stop a car for any reason at all so your theory is that once you stop a car everybody in that car becomes fair game for what for patdown t point out are cases that when you have a voluntary encounter there's no right to stop person and you don't even get into the frisk possibility until you have the right to stop a person and  allows you to stop person you have suspicion of criminality at that point there's a second step that the officer during that encounter can assure himself that he's not armed and dangerous and yes a reasonable suspicion at and in the terry katz was standing there with and this famous police officer walked up to him and immediately went hands on right that's one of the one of those but he observed them casing the joint understand that but it wasn't a stop it wasn't a stop that's why i'm suggesting to you if the guy standing in front of the seven eleven maybe not casing the seven eleven but the officers got a report that a guy standing in front of the seven eleven just unloaded his pistol and put it in his belt which is not there's not criminal activity there has to be reasonable suspicion of criminal activity the was in terry because he was casing the joint so it was a stop and frisk or wouldn't be called stop and frisk it's not frisk and frisk there has to be stop and then frisk that's why it's different when you're in a vehicle and this isn't the first time in the history of for circuit jurisprudence that the vehicle makes a difference i mean my criminal procedure pressers joking that don't take any contraband into a vehicle because vehicles are treated differently it's there's there's a wealth of statistics that that's the most dangerous situation for an officer when they're in that close proximity during faffed because and i am a no question i can totally see from a police perspective this is a really difficult situation they find themselves in but tell me what's wrong with the way the one one of my reactions to that is sort of i mean to me it does it can seem counter intuitive to think that every gun during a traffic stop any gun know it's just dangerous it's inherently dangerous to have a gun in the car when the police are trying to do a traffic stop but it just seems to me that that kind of runs into the state law of west virginia which you know i think piers to presuppose that guns are not inherently dangerous it's fine for people to drive around with concealed guns and so i mean i don't we just have to don't the police like everybody else in west virginia just have to kind of put their confidence in the legislature they've made this determination that guns are not inherently dangerous and in light of that i guess i'm just not seeing why the police are are allowed to focus this case isn't just that there was reason suspicion there's a gun in that vehicle is that two or three minutes defend themselves of course that's where you're going to have a gun i mean this is different from like you see someone doing a hand to hand exchange a high crime area you think well if it's not a high crime area maybe it's not drugs but in a high crime area we think that might be drugs but it's just as rational to assume that a law abiding safe person is carrying a gun in a high crime area as it is to think that a bad person is carrying a gun in a high crime area it's dangerous that's the whole point it just seems to cut absolutely at a minimum both ways in this in this context and that's how these laws are defended people live in dangerous neighborhoods they have to be able to defend themselves out on the streets not just in their homes when they're walking through seven eleven they're at risk this is a very dangerous on a lot and so i just i guess i'm just so my but i think that's where we get to the public policy behind this and if it's even we should go in the face in favor of officer safety and with regard to the results of sr suspicion standard  and criminality versus armed and dangerous thing judge king in his dissent in power stated it best when he talks about the two different interests he says when a police officer's wife is on the line common sense tells us that he should sooner be reasonable in his suspicion that a suspect may be armed and dangerous and in suspecting that a passer by is up to no good thank you mr and mr tom you honor i wanted to just i guess start by following up with judge harris is what i think the issue was that she was trying to raise and that gets back to what we what i was discussing i think initially is that  dangerousness where is the dangerousness here we have these laws in west virginia that say it is legal to carry a firearm something that's just yeah i think you're absolutely right and i think judge harris is exploring that as to what obligations do you have to disclose it and he and the officer asked whether your arm but i'm not sure that the tracks from the officers articulation  answer and doesn't say i've got a permit which would be the natural human reaction to say look yes i'm armed but i got a permit or just i've got a permit he doesn't say that in fact in fact he gives an  expression to the officer which the officer interprets to be contrary to that i don't have a permit and you've caught me that's where the officer sees it not sure there may be  objective about the question is we have the objective yet we have the expression that's given to now the question and how he took the expression now the question is would a reasonable officer receive in that type a response lou that a man with a gun is dangerous and this that's a legal issue and i don't think that we have any evidence from the government as to what other than this one officer this and i think a reasonable officer sir could interpret that as the man is exercising his right not to answer the officers question we don't get to dangerousness we don't get to dangerous fan that argument thought that to me is the is the crux of this case not only that not only do we not get there but i think the officer if they had just i think perhaps taken a step or taken a breath the guy's response was insane yes i am i got a permit or no i'm not armed and now the officer knows he's lying he comes up with something in between which creates this suspicion the officer interpreters i don't want to magistrate judge found that the activity here was nearly simultaneous it happened almost immediately that the officer was pulling mr robinson out of the vehicle getting ready to frisk him putting his hands on the car and at the same time asking him are you armed and i think it's unreasonable at that point when somebody has as a gun drawn on them by one officer is being pulled out of the car by another officer supposedly for a traffic stop  then get up and say wait let's all stop i've got my concealed carry permit in my back pocket if you'll just give me a chance to do it he made a look apparently maybe he didn't understand what the officer said maybe he is like i thought we were just being stopped for a traffic stop and his face contorted but at that point it doesn't matter because he's already getting frist and the officer has determined that there is a weapon there because these officers had already made the determination prior to them even in countering mr robinson that he was dangerous for the mere fact that he was found at the end he was reported to have been at the seven eleven in a high crime area apparently one of many in the city of branson doing a legal activity which is loading a firearm and concealing and assuming he had a permit so i have i understand the court's point in terms of the officer safety and we're certainly concerned that the officer doesn't get shot in the head but we cannot adopt a standard which i think is what the government's position would lead to where everyone in the city of who is legally in possession of a firearm is automatically deemed armed and dangerous if they happen to run a red light if they are going to the home depot in the city of branson and run the stop sign that's right up a pistol you do know you do not need to own a pistol you can just go to the store and buy one and open carol actually for an officer to know whether i mean and i mean i think we can use our common sense when offers of the know whether a weapon is concealed but a passenger in a car the officers got to get the person out of the car first right he would have to you're on if you can't tell if a person is concealing it on his or her person while the person is sitting in the passenger seat of a of a car right that's correct  was evidence that my understanding was of the evidence is that it it was concealed that the officers could not see it from the vehicle and that the person who was reporting the tip i believe reported that conceding that i understand you're not emphasizing but are you conceding that the tip in this case was reliable i think so your honor because i don't believe that we that i don't believe that the tip matters frankly the the government wants to test that matter without conceding that it's reliable but you're also conceding that it's reliable i think so i think if the court looks at the evidence that the the they gave the description of the vehicle the description of the individual what direction it was traveling the testimony was that the stop was made i think three or four minutes afterwards so i don't know that the tip is reliable is not reliable i think the government wants to say that the tip is goes to armed and dangerous where i think the on the tip only goes to armed and not the dangerous portion thank you thank you