ON REHEARING EN BANC
PUBLISHEDUNITED STATES COURT OF APPEALSFOR 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, ChiefDistrict 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 themajority 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 andWriting Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Martinsburg,West
Virginia,
forAppellant.
WilliamJ.
Ihlenfeld, II, United States Attorney, Jarod J. Douglas,
Assistant United States Attorney, OFFICE OF THE UNITED STATESATTORNEY, Wheeling, West Virginia, for Appellee.

2

NIEMEYER, Circuit Judge:
This

appealpresents

thequestionofwhetheralaw

enforcement officer is justified in frisking a person whom theofficer has lawfully stopped and whom the officer reasonably
believestobearmed,

regardlessofwhether

legally be entitled to carry the firearm.

thepersonmay

Stated otherwise, thequestion is whether the risk of danger to a law enforcement
officer created by the forced stop of a person who is armed iseliminated

by

the

fact

that

state

law

authorizes

persons

toobtain a permit to carry a concealed firearm.
After receiving a tip that a man in a parking lot wellknown for drug-trafficking activity had just loaded a firearmand then concealed it in his pocket before getting into a car asa passenger, Ranson, West Virginia police stopped the car after
observing
Reasonably

that

its

believing

occupants
that

were

the

not

car’s

wearingseatbelts.

passenger,

Shaquille

Robinson, was armed, the police frisked him and uncovered thefirearm, leading to his arrest for the possession of a firearmby a felon.
During his prosecution, Robinson filed a motion to suppress
the evidence recovered as a result of the frisk, contending thatthe frisk violated his Fourth Amendment rights.

The officers,

he argued, had no articulable facts demonstrating that he wasdangerous since, as far as the officers knew, the State could3

have issued him a permit to carry a concealed firearm.
the

districtcourt

deniedthemotiontosuppress,

After

Robinsonpleaded guilty to the illegal possession of a firearm, reserving
the right to appeal the denial of his motion to suppress.
On

appeal,Robinsoncontends

again

that

the

informationthat 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 perfectlylegal activity, every citizen could be dangerous, and subject to
a Terry frisk and pat down.”
We reject Robinson’s argument and affirm, concluding thatanofficer

who

makes

a

lawfultraffic

stop

and

who

has

a

reasonable suspicion that one of the automobile’s occupants isarmed may frisk that individual for the officer’s protection andthe 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 unnecessaryrisks in the performance of their duties.”
U.S. 1, 23 (1968).

Terry v. Ohio, 392

And it is inconsequential that the person

thought to be armed was a passenger.
519 U.S. 408, 414 (1997).

See Maryland v. Wilson,

It is also inconsequential that thepassenger may have had a permit to carry the concealed firearm.
4

Thedangerjustifyingaprotective

frisk

arisesfromthecombination of a forced police encounter and the presence of aweapon, 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 theRanson, West Virginia Police Department and told Officer Crystal
Tharp that he had just “witnessed a black male in a bluishgreenish Toyota Camry load a firearm [and] conceal it in his
pocket”

while

Mildred Street.
was

being

in

the

parking

lot

of

the

7-Eleven

on

North

The caller advised Officer Tharp that the Camrydriven

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

GardenApartments,

andhighest crime area in Ranson.

the

area

constitutes

theOne 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”

atthe

7-Eleven

5

parkinglot

andobserved

“three other people waiting for drugs in that parking lot.”She

added that she had personally received “numerous complaints” ofpeoplerunning

betweentheparkingcomplex, making drug transactions.

lot

and

the

apartment

Another officer testified

that “[a]nytime you hear Apple Tree or 7-Eleven, your radar goesup a notch.”

Accordingly, when the Ranson Police Department

received the tip about someone loading a gun in the 7-Elevenparking lot, its officers’ “radar [went] up a notch,” and theofficers 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 respondto the call, and Roberts left soon thereafter to provide backup.
When

Officer

Hudsonturned

onto

North

MildredStreetashort time later, he observed a blue-green Toyota Camry being
driven by a white woman with a black male passenger.

Noticingthat they were not wearing seatbelts, Hudson effected a trafficstop 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 thedriver’s side of the vehicle with his weapon drawn but carried
below

his

waist

and

asked

the
6

driverforherlicense,registration, and proof of insurance.

He also asked the malepassenger, 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 thelook to mean, “I don’t want to lie to you, but I’m not going totell you anything [either].”At this point, Captain Roberts

directed

hands

Robinson

to

put

his

on

top

of

the

car

and

performed a frisk for weapons, recovering a loaded gun from thefront pocket of Robinson’s pants.
Roberts

recognizedRobinson,After conducting the frisk,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

motionammunition

toseizedsuppressduringthetheevidence

frisk,

violated his Fourth Amendment rights.

7ofarguingthefirearm

that

the

and

frisk

The district court denied the motion, concluding that theofficers 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 tocontribute 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.
Robinsonthereafter

pleadedguiltytothefirearm

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 thedenial 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.

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

By orderdated April 25, 2016, we granted the government’s petition forrehearing

en

banc,

which

vacatedopinion.

See 4th Cir. Local R. 35(c).
8thepanel’s

judgmentandII
Robinson’s appeal is defined as much by what he concedes asby 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 Whrenv. United States, 517 U.S. 806, 819 (1996), and also that they
had the authority to direct him to exit the vehicle during thevalid

traffic

stop,

see

Wilson,

519

U.S.

at

415.

He

also

correctly concedes that the anonymous tip received by the Ranson
PoliceDepartment

was

sufficiently

officers’ reliance on it.

reliabletojustifythe

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” inlarge part because, like here, the caller “claimed eyewitness
knowledgeofthe“contemporaneous

allegedreport”[conduct]”

that

was

“made

and

under

excitement caused by a startling event”).
importantly,

Robinson

does

not

contest

the

the

call
the

was

a

stressofFinally, and most
district

court’sconclusion that the police had reasonable suspicion to believethat he was armed.
Robinson’s argument focuses on whether the officers could
reasonably have suspected that he was dangerous.

He argues thatwhile the officers may well have had good reason to suspect thathewascarryingaloadedconcealed
9

firearm,theylackedobjective facts indicating that he was also dangerous, so as tojustify a frisk for weapons, since an officer must reasonably
suspectthatdangerous.

thepersonbeing

friskedSee Terry, 392 U.S. at 27.

is

both

armed

and

Robinson notes that at

the time of the frisk, West Virginia residents could lawfully
carry a concealed firearm if they had received a license fromthe State.

See W. Va. Code § 61-7-3 to -4 (2014).

And, because

the police did not know whether or not he possessed such alicense, the tip that a suspect matching his description wascarryingaloadedfirearm

concealedinhispocketwas,heargues, a report of innocent behavior that was not sufficient toindicate that he posed a danger to others.

Moreover, he argues,

his behavior during the stop did not create suspicion -- “he wascompliant,cooperative,

nervousness.”

In

these

[and]

not

displaying

circumstances,

he

signs

of

concludes,

theofficer’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 withtherequirementsfor

conductingafrisk.

It

thus

fails

at

several levels when considered under the Supreme Court’s “stopand-frisk” jurisprudence.

First, Robinson confuses the standard

for making stops -- which requires a reasonable suspicion that a10

crime or other infraction has been or is being committed -- withthe standard for conducting a frisk -- which requires both alawful investigatory stop and a reasonable suspicion that theperson stopped is armed and dangerous.

See Arizona v. Johnson,

555 U.S. 323, 326-27 (2009).

Second, he fails to recognize that

traffic

inherently

officers.

stops

alone

are

dangerousforpoliceThird, he also fails to recognize that traffic stopsof persons who are armed, whether legally or illegally, pose yeta greater safety risk to police officers.

And fourth, he argues

illogically that when a person forcefully stopped may be legallypermitted 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 toeffect a stop, they subject themselves to a risk of harm.

Thisholds true whether the temporary detention is a traditional,“on-the-street”

Terry

stop

to

investigate

anofficer’s

reasonable suspicion “that the person apprehended is committingor 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.
has

explained

that

“the

risk

of

a

The Supreme Court

violent

encounterinatraffic-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

434

Mimms,

U.S.

at

110

(rejecting“theargumentthat

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.

also

when

observed

that

the

stop

And the Court has

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 apassenger to employ violence . . . is every bit as great as thatof the driver,” id. at 414.
In Wilson, the Court observed that “[i]n 1994 alone, there
were

5,762

traffic

officer

pursuits

andassaults

and11

officers

killedstops,”

519

U.S.

at

prompting413,

duringthe

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,Of

unfortunately,

remain

as

grim.

the

51

law

enforcement officers feloniously killed in the line of duty in2014, 9 officers (or 18%) were fatally injured during traffic
pursuits or stops.
Crime Reports:

FBI, Officers Feloniously Killed, in Uniform

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 theautomobile’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
withaweapon

that

could

unexpectedly

andagainst” the officer in a matter of seconds.
23.

fatallybeused

Terry, 392 U.S. at

As such, when the officer reasonably suspects that theperson 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 andsubjected him to a “search” without probable cause to believethat he had committed or was committing a crime or that he wasarmed.

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

readilyconcludedthat

Terry’sseizure was “reasonable” under the Fourth Amendment because theofficer

reasonably

Id.

22-23.

atbelieved

The

Court

that

criminal

thenturnedconductits

wasattentionafoot.
tothelegality of the frisk, stating, “We are now concerned with more
13

than

the

governmental

interest

ininvestigating

crime;

inaddition, 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

weaponunexpectedly and fatally be used against him.”

that

could

Id. at 23.

The

concern -- i.e., the danger -- was thus found in the presence ofa 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 tothe officer’s safety.”

Id. at 28 (emphasis added).

In thismanner, the Court adopted the now well-known standard that an
officer

can

frisk

a

validly

stoppedpersonif

theofficer

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

at

27;

see

also

(explaining

that

becauseprotect

officer

the

id.
a

duringat

32“friskan(Harlan,isJ.,justifiedencounterwithaconcurring)
in

order

to

citizen,theofficer 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 aroutinetrafficstop,“noticedalarge

bulge”

defendant’s jacket and therefore conducted a frisk.
107.

under

the

434 U.S. at

Holding that the frisk was clearly justified, the Mimms
14

Court explained that “[t]he bulge in the jacket permitted theofficertoconclude

that

Mimms

was

armed

and

thus

posed

a

serious and present danger to the safety of the officer,” addingthat “[i]n these circumstances, any man of ‘reasonable caution’
would

likelyhave(emphasis added).

conducted

the

‘pat

down.’”

Id.

at

112

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

preciseprinciple.

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

(citing

1996)

Mimms,

434

U.S.

at

112)

(“Basedontheinordinate 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 thesuspectispotentially

dangerous,

even

if

the

suspectwaslaw

imposestwo

stopped only for a minor violation”).
Inshort,

establishedSupreme

Court

a

but

requirementsfor

conducting

first,

theofficerthatfrisk,

have

conducted

no

a

more

lawful

than

two:

stop,

which

includes both a traditional Terry stop as well as a traffic
stop; and second, that during the valid but forced encounter,theofficer

thereforereasonably

dangerous.

suspect
In

both
15

that

the

Terry

personandisMimms,

armed
the

and

Court

deliberately

linked“armed”

and“dangerous,”

recognizing

that

the frisks in those cases were lawful because the stops were
valid

and

the

officer

reasonably

believed

stopped “was armed and thus” dangerous.

that

the

personTerry, 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 createdsimply because the person, who was forcibly stopped, is armed.
In this case, both requirements -- a lawful stop and areasonable suspicion that Robinson was armed -- were satisfied,thus

justifying

CaptainRoberts’

frisk

under

the

FourthAmendment as a matter of law.
Robinson argues that Mimms is distinguishable because thefrisk there took place in a jurisdiction that made it a crime tocarry a concealed deadly weapon.

West Virginia, on the other

hand, generally permits its citizens to carry firearms.

Fromthis distinction, Robinson argues that when the person forcibly
stopped may be legally permitted to possess a firearm, the riskof danger posed by the firearm is eliminated.
however,

fails

under

the

SupremeCourt’s

This argument,

express

recognition

that the legality of the frisk does not depend on the illegalityofthefirearm’s

possession.

Indeed,

the

Court

has

twice

explained that “[t]he purpose of this limited search [i.e., thefrisk] is not to discover evidence of crime, but to allow theofficer to pursue his investigation without fear of violence,16

and thus the frisk for weapons might be equally necessary andreasonable, whether or not carrying a concealed weapon violated
any applicable state law.”
added);

see

also

Long,

Williams, 407 U.S. at 146 (emphasis
463

U.S.

at

1052

n.16

(“[W]ehave

expressly rejected the view that the validity of a Terry search[i.e., a frisk] depends on whether the weapon is possessed inaccordance

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 therisk 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 particularState does next to nothing to negate the reasonable concern anofficer has for his own safety when forcing an encounter with anindividual 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

areunknown”

andtherefore rejecting the defendant’s argument that the officer“had no reason to believe he was dangerous” even though theofficer had seen a handgun tucked into the waistband of his
pants).
17

Accordingly, we conclude that given Robinson’s concessionthat 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

lawfultraffic

stopofRobinsonandthereasonable suspicion that he was armed justified the frisk inthis case, the officers had knowledge of additional facts that
increased

the

level

of

their

suspicionthat

Robinsonwasdangerous.
First, the reliable tip in this case was not just that anindividual 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 theparking lot of the 7-Eleven on North Mildred Street, a locationthat 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

inthatparticularparking lot, prompting one to explain, “[a]nytime you hear . . .
7-Eleven, your radar goes up a notch.”

Knowing that the 7-

Eleven

used

as

could

legitimately

parking

trafficking,

a

lot

was

frequently

reasonableofficer

18

a

site

for

drug

suspect

that an individual who was seen both loading and concealing afirearm in that very parking lot may well have been doing so in
connection with drug-trafficking activity, making his possessionof 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

firearmmightfurtheroradvancedrug

trafficking”).
Second,when

CaptainRoberts

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].”heightened

Surely,CaptainRobinson’s

Roberts’evasivelegitimate

response

concernasfurthertothedangerousness of the situation.
While not necessary to the conclusion in this case, these
facts

can

only

confirm

CaptainRoberts’reasonablesuspicionthat Robinson was dangerous and therefore should be frisked forthe 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

lawfully

stoppedhim

anunrelated,

for

law

enforcement
albeitofficers

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 caseas a run-of-the-mill search-and-seizure case involving a trafficstop 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.

Tothat 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 isengaging in presumptively lawful activity should not constitutea “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

lawfulactivityofcarryingafirearm,

whichbecame the basis for making a pretextual, albeit lawful, stopfor not wearing a seatbelt.

From these remarkable facts, themajority opinion reduces the issue in this case to whether theofficers

justifiably

friskedDefendant,

after

a

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

ontheofficers’justification--rather

thanDefendant’s presumptively lawful decision to carry a firearm-the majority elides discussion of the two key issues in thiscase: (1) whether individuals who carry firearms--lawfully or
unlawfully--poseacategorical

risk

of

dangertoothersandpolice officers, in particular, and (2) whether individuals whochoosetocarryprotections

affordedfirearms.

As

firearms
toexplained

foregoindividuals
in

more

certainconstitutional

who

elect

not

to

carry

detailbelow,

themajority

opinion’s attempt to duck these questions is futile because its
conclusion necessarily answers “yes” to both questions.
I.

theFirst,

themajority

opinionfirst

issue--whether

altogether

individuals

who

avoidsaddressing

carryfirearms(lawfully or unlawfully) pose a categorical risk of danger to22others--by reinterpreting the Supreme Court’s long-establishedtest for determining whether law enforcement officers lawfully
performed a protective frisk.

Under that test, the question iswhether the officers had “reasonable suspicion that the person
subjected

to

the

frisk

Johnson,

555

U.S.

323,

is

armed

327

and

(1997).

dangerous.”
Insteadof

Arizonav.

according“dangerous” an independent meaning, the majority contends that“armed and dangerous” is a unitary concept--if law enforcement
officers

reasonably

suspectadetaineeis“armed,”theynecessarily 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.
Tobeindependent

sure,

from

meaningtheviolates

outset,thestrippinglong-standing“dangerous”
principle

of

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 “botharmed and a danger to the safety of officers or others” before
conducting a frisk. United States v. Leo, 792 F.3d 742, 748 (7thCir. 2015) (emphasis added); Northrup v. City of Toledo Police
23

Dep’t, 785 F.3d 1128, 1132 (6th Cir. 2015) (“Clearly establishedlawrequired[theofficer]

to

point

to

subject] may have been armed and dangerous.

evidence

that

[the

Yet all he ever saw

was that [the subject] was armed--and legally so.” (emphasis inoriginal) (citation and internal quotation marks omitted)).
The view of the other Circuits on according “dangerous” anindependent 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

inindividual

harmlessis“armed”

activity.
if

he

is

Indeed,by“[e]quipped

definition,
with

a

an

weapon.”Armed, Black’s Law Dictionary (9th ed. 2009).
To
unitary

illustratemeaningtheabsurdity

interpretation,

of

the

consider,majorityfor

opinion’s

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 heldthat a wine bottle can be a dangerous weapon.”).
majority’s

unitary

meaning

interpretation,

Under theofficers

informed

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

could,

afteralawful

stop,

frisk

that

individual because, in the majority’s words, “the risk of thedanger is created simply because the person, who was forcibly
stopped, is armed.” Ante at 16.

24

As Justice Brennan noted, numerous everyday objects turninto “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, apenknife, a fork, metal pipe, a stick, etc. The foregoing
only illustrate the variety of lawful objects which areoften 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).

Underinterpretation,possessed

any

of

the

majority

opinion’s

reasonablesuspicion

these

would

items

unitary

that

give

rise

an
to

meaning

individual
reasonablesuspicion to frisk the individual, after a lawful stop, evenabsent any evidence the individual intended to use the object asa weapon.

The Fourth Amendment does not contemplate giving law

enforcement officers such wide-ranging authority to engage inwarrantless 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 therule”); United States v. Wilson, 953 F.2d 116, 126 (4th Cir.
1991) (refusing to allow “limited Terry exception to swallow therule”).

25

The majority nonetheless contends that the Supreme Court“deliberately linked ‘armed’ and ‘dangerous’” in Terry v. Ohio,
392

U.S.

1

(1968),

andPennsylvaniav.

Mimms,

434

U.S.

106

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

believed

that

the

personstopped

‘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
theindependent

authorizes

a

role

of

“dangerousness,”“frisk”

ofanautomobile

holding

when

law

that

Terry

enforcement

officers reasonably suspect “that the suspect is dangerous andthe 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 languageof the test, which requires that officers reasonably suspect anindividual is both armed and dangerous?

The answer plainly liesin the type of “weapon” at issue.
In

Long,

the

officers

reasonably

defendant had a knife. 463 U.S. at 1050.

suspected

that

the

By contrast, in Terryand 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

suspectthatadetaineeinherently dangerous weapon.
“armed”

and“dangerous”

placesmeaningfulhasafirearmorotherSuch a reading ensures that theprongsdistincton

enforcement

restrictions

retainlaw

meaningandofficers’ability to frisk lawfully stopped individuals.
But

the

majority

opinionalso

contendsthat

weshouldcollapse 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 anarmed detainee poses a “risk of danger.” Ante at 16 (“[T]he riskof danger is created simply because the person, who was forcibly
stopped, is armed.”).

Yet committing a minor traffic violation--ahere--provides

seatbelt

violation

no

basis

to

believeanindividual poses any special danger warranting departure fromthe rule that law enforcement officers may not, as a generalmatter,frisk

lawfully

detained

individuals.

Likewise,asexplained above, given the numerous objects that can constitute“weapons,” being “armed” does not, by itself, establish that anindividual poses a danger.

Rather, what the majority opinion

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

from

the

officers’reasonablesuspicion

Defendant

wascarrying a firearm.
Confronting the inescapable reality that lawfully-stopped
individuals

armed

with

firearms
27

arecategoricallydangerous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 itismanufactured

reasonably

maydangerous.”(1986).

andsoldpresume

is

a

that

McLaughlinv.

dangerous
such

United

an

one,

and

articleStates,

476

the

is
U.S.

law

always16,

17This Court also has recognized “the substantial risk ofdanger and the inherently violent nature of firearms,” Pelisserov.

Thompson,omitted),

170

as

F.3d

have

442,

other

447

(4th

Circuits,

Cir.

e.g.,

1999)
United(quotation
Statesv.

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

gun

[as]

by

any

measurean

inherently

dangerous

weapon”); Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir. 1998)(recognizing “the inherently violent nature of firearms, and thedanger firearms pose to all members of society”); United Statesv.

Allah,

130

F.3d

33,

40

(2d

Cir.

1997)

(“[F]irearms

are

in

of

inherently dangerous devices.”).
Indeed,theSupremeCourt’sdecision

District

Columbia v. Heller--which first recognized the individual rightto 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”--forexample, to ward off “attacker[s]” or threaten “burglar[s].” 554
28

U.S.

570,

628-29(2008)(emphasis

added).

Ifalawfullypossessed firearm did not pose a danger to attackers, burglars,or other threatening individuals, there would be no need forindividuals to own and carry firearms for protection.
And

the

dangerousness

widespreadofjudicial

firearms

recognition

accords

with

the

of

the

inherent

evidence.

The

Department of Justice reported that in 2011, the most recent
year for which comprehensive statistics are available, a totalof 478,400 fatal and nonfatal violent crimes were committed withafirearm. Michael Planty & Jennifer L. Truman, U.S. Dep’t ofJustice,

BureauofJustice

Stats.,

Violence, 1993-2011, at 1 (May 2013).

SpecialReport:Firearm

Likewise, firearms are aleading cause of injury-related death in the United States andhave 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, 80102 (2011); see also Centers for Disease Control & Prevention,
Nat’l Ctr. for Health Stats., Underlying Cause of Death 19992014 on CDC WONDER Online Database, http://wonder.cdc.gov/ucdicd10.html (queried on Nov. 18, 2016) (reporting that there were497,632

intentional

Accordingly,
thereforeasafirearms
matterindividuals

whodeathsofbetween

1999

and2014).

law

and

fact,

firearms--andchoosetocarryfirearms--areinherently dangerous.
29

In

sum,

individuals

who

carry

firearms--lawfullyorunlawfully--pose a risk of danger to themselves, law enforcement
officers, and the public at large.
officers

may

frisk

lawfully

Accordingly, law enforcement

stoppedindividuals

whom

the

officers reasonably suspect are carrying a firearm because adetainee’s possession of a firearm poses a categorical “danger”
to the officers.
II.
Having determined that individuals who are armed with afirearm are categorically “dangerous,” we confront the second
issue--whether
sacrificeindividuals

certainwhochooseconstitutional

to

carry

protectionsindividuals who elect not to carry firearms.

firearms

affordedtoWe must confront

this issue because treating individuals armed with firearms-lawfullyorunlawfully--as

categoricallyspecial burdens on such individuals.

dangerous

placesToday we recognize one

such burden: individuals who carry firearms elect to subject
themselves

to

being

friskedwhen

lawfully

stoppedbylaw

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 totheconclusionthat

individuals
30

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. 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 andannouncing their presence, under the particular circumstances,would be dangerous or futile.” (emphasis added)).
isdifficulttoescapetheconclusion

that

Likewise, it

individuals

whochoose to carry firearms necessarily face greater restriction on
their concurrent exercise of other constitutional rights, likethose protected by the First Amendment. See Schenck v. UnitedStates, 249 U.S. 47, 52 (1919) (Holmes, J.) (“The question in
every [freedom of speech] case is whether the words used areused in such circumstances and are of such a nature as to create
a

clear

and

substantive

present
evils

dangerthat

that

Congress

they

will

has

a

bring

right

to

about

the

prevent.”(emphasis added)).
The Supreme Court has long recognized that “[t]he promotionof safety of persons and property is unquestionably at the coreof 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 tolegislate

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 mannerwhatsoever 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

languageoftheSecondAmendment--asHellerrecognized--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 theright recognized in Heller extends beyond the home,
UnitedStates v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), othercourts are divided on the question, compare Moore v. Madigan,
702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “rightto keep and bear arms for personal self-defense . . . implies aright to carry a loaded gun outside the home”); Palmer v. Dist.
of Columbia, 59 F. Supp. 3d 173, 181-82 (D.D.C. 2014) (holdingthat Second Amendment right recognized in Heller extends beyondhome), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9thCir. 2016) (“[T]he Second Amendment does not protect the rightof a member of the general public to carry concealed firearms inpublic.” (emphasis added)); Young v. Hawaii, 911 F. Supp. 2d,972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons inpublic 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 homeare “outside of the scope of the Second Amendment, as
articulated in Heller and McDonald”).
32

III.
In

sum,

categoricalbecausedangerofficers--the

law

to

the

carrying

others--in

enforcement

of

this

a

firearm

case,

law

officers

poses

aenforcement

lawfully

friskedDefendant, after lawfully detaining him, based on information
that

he

carriedafirearm.

Accordingly,Iconcurinmajority opinion’s decision to affirm Defendant’s convictions.

33

the

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 ortightly regulated, concealed firearms were hallmarks of criminal
activity, deadly weapons carried by law-breakers to facilitate
theircrimes.

Soitfollowed,

without

much

need

for

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

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 tothink 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 theauthorities.

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 thatany citizen availing him or herself of the legal right to carry34

arms in public is per se “dangerous” under the Terry formulation
andtherefore

subject

to

frisk

and

disarmament,atpolicediscretion, if stopped for a traffic violation or some otherminor

infraction.

It

may

be,

as

the

concurring

opinionsuggests, that this is where we will end up – that the price forexercising the right to bear arms will be the forfeiture ofcertain 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 bystate legislatures.

Nor would I adopt a rule that leaves tounbridled 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

publicpossession

anddisplayoffirearms

becomelawful 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).
Withintherecognized

last
new

decade,SecondfederalAmendment

constitutional

protections

for

law

has

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 gunssafely 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 casethat the public carry of guns is illegal or even unusual, courts
must take into account that changed circumstance in applying thefamiliar Terry standard.
We have recognized as much already when it comes to the“stop”

portion

of

a

Terry

“stop

and

reasonable suspicion of criminal activity.

frisk,”

justifiedon

See Terry, 392 U.S.

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

Injurisdictions

is

in

which

the

publiccarryoffirearms

prohibited or closely regulated, a concealed gun is indicativeof criminal activity and may give rise to “reasonable suspicion”
sufficient to justify an investigative stop.

But when a stateelects to legalize the public carry of firearms, we have held,
the Fourth Amendment equation changes, and public possession ofa gun is no longer “suspicious” in a way that would authorize a
Terry stop.

United States v. Black, 707 F.3d 531, 539-40 (4thCir. 2013).

“Permitting such a justification” for a Terry stop,36we explained, “would eviscerate Fourth Amendment protections forlawfully armed individuals in those states.”
We are not alone in this insight.

Id. at 540.

In Northrup v. City ofToledo Police Dep’t, 785 F.3d 1128, 1131-33 (6th Cir. 2015), forinstance, 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 “hasdecided its citizens may be entrusted with firearms on public
streets,” the court reasoned, the police have “no authority todisregard this decision” by subjecting law-abiding citizens to
Terry stops and frisks.

Id. at 1133; see also, e.g., UnitedStates 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

Amendment

law

togetherofwith“importantdevelopments

Wisconsin’sinSecond[concealed-carry]gunlaws”); United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.
2000)

(invalidating

Terry

stop

based

on

suspicionofgunpossession in open-carry jurisdiction).
In my view, the same reasoning compels the conclusion that
in

a

state

like

West

Virginia,

which

broadly

allowspublicpossession of firearms, reasonable suspicion that a person isarmed does not by itself give rise to reasonable suspicion thatthe 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 adanger 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 themselvesof these rights, I do not see how we can presume that every oneof those citizens necessarily poses a danger to the police.

See

Northrup, 785 F.3d at 1133 (absent reasonable suspicion that anarmed 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 theparking 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 thatappears innocuous in one setting but is unusual in another may
give rise to reasonable suspicion). 1

1

In terms of Robinson’s

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

exercise of his right to carry a concealed weapon.

lawfulSee Black,

707 F.3d at 540 (police may not proceed on assumption that gun
displayed in open-carry jurisdiction may be illegally possessedby convicted felon); see also Northrup, 785 F.3d at 1132 (same).
If that by itself is enough to make a person “dangerous” forTerry purposes, then the legal right to carry arms in public isperfectly self-defeating:

The moment a person exercises thatright – and has the misfortune to be stopped for a traffic
violation or other minor infraction – he opens himself up to
being

friskedanddisarmed,

at

least

temporarily,

by

law

enforcement officers.
The majority insists that this result, putting at crosspurposes

FourthAmendment

and

gun

possession

rights,iscompelled 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 establishthat if the police have reasonable suspicion that a suspect is“armed,” then they necessarily have reasonable suspicion that hereasonable suspicion for a Terry stop when a gun is publicly
displayed. See Black, 707 F.3d at 540. But even assuming thatsuch 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 andtherefore dangerous,” Maj. Op. at 13-16 – or, put more simply,“armed.”Buttheconjunctive

Supreme“armed

Court
and

for

decadesdangerous”

hasadheredformulation,

to

its

givingno

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 reasonablesuspicion “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
itselfunderstood“armed”

and“dangerous”

asindependent conditions of a lawful Terry frisk.
at 16-17.

separateand

See Gov’t Br.

And other courts applying Terry in precisely thiscontext – against a backdrop of state laws that routinely permit
thepublicposition,

possession
holdingoffirearms

a

Terry

that

–

have

frisk

taken

requires

the

same

reasonablesuspicion that a person is “both armed and a danger to thesafetyofofficersorothers.”

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 havebeen armed and dangerous.

Yet all he ever saw was that [the40

suspect] was armed – and legally so.”) (emphasis in original)(citation omitted).
It is true, as the majority argues, that the Court in Terryand Mimms was prepared to infer danger from the presence of aconcealed firearm.
112.

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

But that simply brings us back to our starting point:that in jurisdictions where public possession or concealed carryof 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 theassistance of the gun.

Nobody – including Robinson – doubtsthat as in Mimms and Terry, a presumptively illegal concealed
gun

gives

rise

to

a

reasonablesuspicionofdangerousness,allowing the police to conduct a protective frisk.

But thosecases simply do not speak to the very different circumstancespresented when public gun possession is presumptively legal, seeBlack, 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 tohave 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 1617, does Adams v. Williams, 407 U.S. 143 (1972), resolve thisissue.

Adams does make clear, as the majority emphasizes, thateven 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

unwillingtocooperate

with

the

police,everyone agrees that the circumstances give rise to a reasonablesuspicion of “dangerousness” regardless of the legal status of
the gun.

See 407 U.S. at 147-48.

is different:

But the question in this casenot whether a presumptively lawful gun may giverise 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 forthe proposition that a person in legal possession of a weapon –
42

The

problems

withtreating“armedanddangerous”

asa“unitary” concept, see Conc. Op. at 23, go beyond the mismatchwith precedent.

As the concurring opinion cogently explains,the logic of Terry frisk doctrine is premised on an independentrole 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 likescrewdrivers).
And though it purports to rely on a common-sense equationof guns with danger, the majority’s approach can embrace thatconnection only very selectively:

An armed citizen in an open-

carry jurisdiction necessarily poses a “danger” to the policein 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 tohave committed some offense, however trivial – like the seatbelt
violation here – leading to a valid stop.
16.

If,

on

the

other

hand,

the

See Maj. Op. at 15-

police

in

this

case

had

initiated a consensual encounter with Robinson in the 7-Elevenparking lot, then the gun Robinson was suspected of carrying
would

not

have

been

grounds

conceded at oral argument.

forafrisk,

asthegovernment

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”

forpurposesofallowinganotwithstanding the concealed gun in his pocket.

Terryfrisk,To be sure, as

the majority explains, Maj. Op. at 15, Terry doctrine requiresthat a frisk be attendant to a lawful stop.

But if “armed” may

be conflated with “dangerous” under Terry, then it is hard tosee why an officer’s right to protect him or herself would bemade to turn on whether a dangerous person carrying a gun has
remembered to fasten his seatbelt.
Most important, by equating “armed” with “dangerous” evenin states where the carrying of guns is widely permitted, themajority’s
abiding

rulehas

citizens

of

the
what

effectofotherwise

depriving

countless

would

their

Amendment and other constitutional rights.

be

law-

FourthAs the concurring

opinion explains, the upshot of the majority’s approach is that44

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.
Op.

at

30.

Certainly,

suchcitizens

may

be

Conc.

friskedandtemporarily 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 “knockand-announce” protections before entering their homes; and whenarmed and “therefore dangerous” citizens seek to assemble inpublic, their First Amendment rights may be restricted based on
the

risk

safety.

they

areconclusively

See id. at 30-31.

would add one more:presumed

to

pose

to

publicTo the concurring opinion’s list, I

If a police officer reasonably believes

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

deadlyforce

toprotect

himself,

see,

e.g.,

Cooperv.

Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (internal quotation
marks omitted), and while we have held in the past that thepresence 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 thatsurelyarewillfollow–

profound,45

bothpracticallyandconstitutionally, and I would not be so quick to invite themwithout 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

evenlyacrossthepopulation.

Allowing

policeofficers making stops to frisk anyone thought to be armed, in astate where the carrying of guns is widely permitted, “creates aseriousandrecurring

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

not

committing

searchaatrafficcar“wheneveroffense”).

anindividualiscaughtAnd,

critically,it“givespolice officers unbridled discretion” to decide which of thoselegally armed citizens will be targeted for frisks, implicating
concerns

about

the

abuse

of

policefundamental to the Fourth Amendment.
at 541.

discretion

that

are

See id.; Black, 707 F.3d

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 ofcolor 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 nofurther than the facts of this very case.

Robinson was not

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

As

a

legal

matter,hewasstoppedbecause

Officer Hudson observed a seatbelt violation – the kind of minor
androutinetraffic

infraction

that

does

next

to

nothingtonarrow 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.
ThoughRobinson’sgunpossession

waspresumptively

lawfulinlight 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 beunlawful.
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 to47

exploresomeproblem:

unsupported

hunch.

But

that

is

exactlythe

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 amoving 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

which

that

wide-ranging

and

S.

2069

argument – and then make a pretextual stop.
And

wepretextual
intrusive

should
stop

be

may

clear
be

investigation.

about

the

degreeintoaStrieff,

136

leveraged
Cf.

to

Ct.

at

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

few

may

realizehowdegrading a stop can be when the officer is looking for more.”)First, of course, is the frisk itself, euphemistically describedasa“pat-down”

butrecognized,

since

Terry,

asa“serious

intrusion upon the sanctity of the person” that may extend to athorough touching of sensitive and private areas of the body.
Id. at 2070; Terry, 392 U.S. at 17 & n. 14.
48

And under Michigan

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”

ofthepassenger

compartment

of

the

car.

So

with

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

stops

will

allow

policeowners

not

only

for

of

officers

intrusive

dangerousness,totargetfrisksbut

pretextual

law-abiding

also

limitedguncarsearches, at police discretion and on the basis of nothing morethan a minor infraction.

That is effectively the same resultthat the Supreme Court found unacceptable in Gant, 556 U.S. at
345(forbiddingcarsearches

incidenttoarrestforminor

traffic violations), and it should be no more acceptable here,
where a right of constitutional dimension – the right to beararms – 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’srule is not limited to the context of traffic stops.
not

doubt

that

recentlegaldevelopments

And I doregardinggunpossession have made the work of the police more dangerous aswell as more difficult.

See Williams, 731 F.3d at 694.
49

In

my

pressingview,

safetystates

have

every

right

concerns

withgenerallytoaddress

applicable

and

these
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 rightto public carry through “duty to inform” laws, requiring any
individual carrying a weapon to so inform the police whenever heor she is stopped, 4 or in response to police queries. 5

And if aperson fails to disclose a suspected weapon to the police as
required by state law, then that failure itself may give rise toa 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 reasonsdescribed

above,

I

may

deem

“dangerous”

any

West

stopped

for

do

not

believe

Virginia

citizenweinherentlyaroutinetraffic violation, on the sole ground that he is thought to haveavailedhimself

fully

of

those

state-lawrightstogun

4See, e.g., Alaska Stat. § 11.61.220; La. Stat. §40:1379.3; Neb. Rev. Stat. § 69-2440; N.C. Gen. Stat. § 14415.11; Okla. Stat. tit. 21, § 1290.8.
5See, e.g., Ariz. Rev. Stat. § 13-3112; Ark. Code § 5-73315; 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 ofdrivers for licenses and registrations in furtherance of roadway
safety).

Absentsome“specific,

articulable

suspicionofdanger” in a particular case, see United States v. Sakyi, 160
F.3d

164,

including168-69its(4th

policeCir.

1998),

officers,

West

must

Virginia’s
trust

citizens,

theirstate’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” andalso 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,andconcludes

that

they

dangerousness.

Id.

at

confirm
18-19.

51areasonable

Thoughthissuspicion

portion

of

of
the

majority’s

opinionappears

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

firearmcertaincircumstances,evenreasonable

can

give

rise

to

a

dangerousness.

See

Adams,

407

U.S.

a

at

lawfully146.

possessed

suspicion

of

And

is

so

it

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

in

light

not

only

of

reasonablesuspicionthat

Robinson was armed – insufficient by itself – but also of thesurrounding circumstances.

But like the magistrate judge who

conducted Robinson’s suppression hearing, I do not believe thateither of the factors cited by the government and the majority –Robinson’spresenceinahigh-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 thecircumstances together, I see no “particularized and objective
basis”

forbelievingthat

Robinsonwasdangerous

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 amagistrate judge, who heard testimony from all of the officers
involved

inrecommending

theeventsleading

suppression,

the

up

to

Robinson’s

magistrate

judge

frisk.

In

evaluatedthefull circumstances surrounding Robinson’s frisk, including both52

the “high-crime” status of the apartment complex next to the 7Eleven

at

which

Robinson

was

seen

loading

Robinson’s conduct during the traffic stop.

his

weaponandAccording to themagistrate 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 reachfor a weapon.

J.A. 131.

And based on all of the evidence

before him, the magistrate judge concluded that the government
had

failed[Robinson’s]to“articulate

possessionanyspecificafirearm

of

fact,
in

a

other

than

high

crime

neighborhood, a legal activity in the state of West Virginia,
which would justify the officer’s suspicion that [Robinson] wasdangerous.”The

Id. at 138.

districtandcourt,

ofcourse,recommendation

andrejectedthemagistratedeniedthesuppression

judge’sreportmotion.

But because the district court did not conduct a second

hearing, this case must be decided on the record created before
the magistrate judge.
second-guessing
government’s

the

And on that record, I see no reason formagistrate

witnesses

judge’s“testified

determination
to

no

that

objectivetheandparticularized 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

policeofficers

provided
53

testimony

that

an

apartment

complex adjacent to the 7-Eleven at issue is considered a high
crime

area,

and

that

crime

from

that

complexoften“spilled

over” into the 7-Eleven parking lot where Robinson was seen, “asevidencedbyactivities.”judge

shoplifting,Id. at 130.

recognized,

thattheftsanddrug

trafficking

And it is clear, as the magistratepresenceinahigh-crime

contribute to a finding of reasonable suspicion.

area

may

See Illinois

v. Wardlow, 528 U.S. 119, 124 (2000).
But as our cases have indicated, the relative significanceof a high-crime area, like other reasonable suspicion factors,
iscontext-specific.

In

some

cases,

forinstance,

we

have

sustained a Terry frisk because it occurred in a high-crime arealate at night.

See, e.g., George, 732 F.3d at 300.

In Black,

however, we rejected a position substantially the same as thegovernment’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.
Blackshouldgovernhere.

707 F.3d at 542.
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 onthelikelihood

that

an

individual’spresumptively

possession poses a danger to the police.
54

legal

gun

That is because where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.
McDonald,

561

U.S.

at

790

(“[T]heSecondAmendment

Cf.
right

protects the rights of minorities and other residents of highcrime 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 thedifference.
As

discussed

possessionofabove,

weapons,instatesauthorizingaallowing
Terry

the

publicpat-down

wheneverthere is reasonable suspicion that a person is armed, and inconnection with a stop for any minor violation, would give thepolice unchecked discretion in deciding which armed citizens tofrisk.

Allowing such automatic frisks only in high-crime areas

would do nothing to address that concern.
guarantee

that

the

costs

of

such

Instead, it would

intrusions

are

borne

disproportionately by the racial minorities and less affluent
individuals

who

today

are

most

likelyneighborhoods classified as high-crime.

to

live

and

work

in

See Black, 707 F.3d at

542.

Given the lack of probative value associated with a high-

crime

area

when

it

comes

to
55

gun

possession,

there

is

no

justification for adopting such a rule.

“The new constitutionaland statutory rights for individuals to bear arms at home and in
public apply to all,” and “[t]he courts have an obligation toprotect 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, likethegovernment,

puts

primaryrelianceon

Robinson’s“evasive

response” when asked by Captain Roberts whether he was carrying
a firearm.
testimony,
with

the

Maj. Op. at 19.
Robinsonpolice,indicating

was

and

But according to the officers’

cooperative

never

nervousness.

made

And

throughout

any

the

his

encounterinconsistentstatements

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

personas[Robinson]

was

exiting

thevehicle,”

and

upon

perceiving a “weird look,” ordered Robinson to place his hands
on top of the car and conducted the frisk.

J.A. 118.

construing

favorable

thisevidence

in

the

light

most

Even
to

the

government, there was a very limited time window during which
Robinson could have responded before the frisk made the questionmoot, and his failure to interject an answer immediately did not56

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 theirguns during traffic or other stops, even if asked.
50.

See supra at

Where a state has decided that gun owners have a right tocarry concealed weapons without so informing the police, gunowners should not be subjected to frisks because they stand on
their rights.
officer’s
publicCf. Northrup, 785 F.3d at 1132 (“impropriety” ofdemand

is

to

see

permitforgun“particularly

acute”

where

being
state

brandished
has

not

in

only

legalized open carry of firearms but also “does not require gunowners 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’squestion about a gun.

See supra at 50-11.

But I do not think

we may presume dangerousness from a failure to waive – quickly

6

The majority appears also to credit the “weirdness” ofRobinson’s look, as understood by Captain Roberts, as indicativeof 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 wassaying, “[O]h, crap,” “I don’t want to lie to you, but I’m notgoing to tell you anything,” J.A. 89, is sufficiently subjectivethat 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 orconceal 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 bearmed.
its

But where a sovereign state has made the judgment thatcitizenssafelymayarm

themselvesinpublic,

I

do

not

believe we may presume that public gun possession gives rise toareasonablesuspicionneighborhood.

And

of

dangerousness,because

the

rest

no

of

matter
the

what

the

circumstances

surrounding this otherwise unremarkable traffic stop do not add
appreciably

toconcludethat

Robinson

under

the
the

reasonable
policeTerry’s

suspicion

calculus,

were

without

authority“armedanddangerous”

Accordingly, I dissent.

58

I

must

to

frisk

standard.