suspected possession of loaded gun not grounds for search

[W.E.G.]

suspected possession of loaded gun not grounds for search

Fourth Circuit rules search of West Virginia man not a legal search simply because police received report that man was in possession of a loaded gun.

Conviction for possession of firearm by felon reversed and vacated.

http://www.ca4.uscourts.gov/Opinions/Published/144902.P.pdf

Per Judge Pamela Harris

"...we recognize that expanded rights to openly carry or
conceal guns in public may give rise to genuine safety concerns
on the part of police officers, as well as other citizens, who
more often will find themselves confronting individuals who may
be armed. But where a sovereign state has made the judgment
that its citizens may safely arm themselves in public, we cannot
presume that public gun possession gives rise to a reasonable
suspicion of dangerousness, no matter what the neighborhood.
And because the rest of the circumstances surrounding this
otherwise unremarkable traffic stop do not add appreciably to
the reasonable suspicion calculus, we must conclude that Terry
did not authorize the police to conduct a frisk of Robinson.
Accordingly, we reverse the decision of the district court
denying Robinson’s motion to suppress and vacate Robinson’s
conviction and sentence."

 

[MErl]

Hmmm, a limit on terry stops regarding weapons? Does WV not have a requirement in their CC laws to inform police if asked? Here in CO we are not required to volunteer the information but are compelled to answer a direct question. I'm unsure how being in a vehicle changes that in CO as no license is required in a car and that inform section is part of the CC statutes.

That just seems odd as that decision is completely opposite to my understanding of terry stops. I look forward to this discussion to clarify things.

 

[deadin]

This is all well and fine until an officer gets shot because he didn't secure the scene.

 

[Art Eatman]

The scene can be secured without filing criminal charges.

 

[Old Fuff]

Do keep in mind that at this time this decision only applies to those states within the Fourth Circuit's jurisdiction. It would for example have no direct affect on Colorado.

 

[Jenrick]

This goes back to what we've seen happening for a while now. Officers must articulate specific facts and circumstances that lead them to believe that there is danger. No longer will the simple "officer safety" statement allow for a frisk.

We're dealing with the same thing down here, thought we haven't had a case spell it out quite like this. If the law and courts allow for a citizen to go armed in a specific situation, then the mere fact that a member of the public exercises that right does not itself create grounds for detention, frisk, etc. Specific articulable facts relating to that specific encounter are required to engage in a detention, frisk, etc.

In this case the officers knew the subject was armed, but absent anything else that's not illegal and not grounds for a detention or frisk. If the officers had recognized the passenger as a felon from the get go that would have given them probable cause most likely to search him for the firearm. If the passenger had been argumentative, threatening, etc. then the officers might have been able to articulate the frisk based on the passengers statements and actions. A lot of the things discussed in the holding, such as the neighborhood the suspects were in, etc. could have gone into the officers articulation for a frisk or detention.

While from an officer safety stand point it is perfectly reasonable to remove the suspect from the vehicle, cuff them, and remove the gun from the equation; it is not reasonable in that a law abiding citizen with a CHL should be handcuffed and have their legally owned and carried weapon seized however briefly solely for exercising their right to carry. The trick is balancing the officer safety question against the public's rights. Many in LE will say to always error on the officer safety side, but my counter to that is we do a lot of things that aren't safe like clear buildings on alarm calls and respond to active shooters.

This is one of those areas that as an LE instructor there's no good answer. As an officer, it's all based on your experience on how to handle it. In the situation specifically given in the holding, I'd have done materially the same thing, but I'd have articulated the living day lights out of why I felt that need to secure that pistol. As the court held in their ruling the officers failed to show why the suspect was dangerous.

I can speak specifics to Texas law, but for other states I have to keep it generalities due to a lack of knowledge or their laws.

-Jenrick

 

[old lady new shooter]

Thanks for posting the link to the actual decision.

One statement caught my eye: "... 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 frisk of a person brandishing a gun in public" -- we have had so many discussions here of "brandishing", isn't that something different than just open carrying?

Further, "Other states — though again, it seems, not West Virginia — require those carrying or concealing firearms to disclose that fact to the police in response to a police question, but not otherwise." What would be the rationale for this?

Another point I am wondering about is, if both open and concealed carry are legal in West Virginia, why is it a "tip" for police that someone loaded his gun and concealed it in his pocket in public? Was Robinson doing something else that led the caller to believe police interaction was needed? If so, what, and why is this not mentioned?