Sometimes a legislature enacts a statute that has consequences beyond the direct impact of the statute’s provisions. West Virginia’s statute allowing the carrying of a concealed weapon with a permit may be such an example, based on the February 23, 2016, ruling of the Fourth Circuit Court of Appeals in United States v. Robinson. The court ruled that a West Virginia officer did not have reasonable suspicion to conduct a frisk because there was insufficient evidence of dangerousness, relying in part on a person’s right in West Virginia to carry a concealed weapon with a permit. And this ruling may impact cases in other states, such as North Carolina, that have a statute similar, although not identical, to West Virginia’s. This post discusses this ruling and its potential impact in North Carolina state courts.
Fourth Circuit cases as binding precedent in North Carolina state courts. Before discussing this case, a reminder that Fourth Circuit rulings on federal constitutional issues, such as the Fourth Amendment’s seizure and search provisions, are not binding on state courts. However, Fourth Circuit opinions are given some weight by North Carolina’s appellate courts in ruling on undecided issues. In addition, the opinions are of particular interest to law enforcement officers whose cases are prosecuted in federal district court (typically drug and firearm violations) and to North Carolina defense lawyers who practice in these courts.
Brief review of stop and frisk. The United States Supreme Court has ruled that officers may frisk a person when (1) they are confronting the person for a legitimate reason and (2) they have a reasonable suspicion that the person is armed and presents a threat to their safety or the safety of others. If these conditions are satisfied, a frisk may be conducted even if officers do not additionally have cause to believe that the person is involved in criminal activity.
Although a frisk often follows an investigative stop that is supported by reasonable suspicion that a person has committed, is committing, or is about to commit a crime, the grounds for a frisk must be considered independently of the grounds for a stop. Generally a frisk is not automatically justified solely by the right to stop someone.
A stop focuses on the apparent commission or imminent commission of a crime, and a frisk focuses on a person’s apparent dangerousness. However, courts permit officers automatically—that is, without reasonable suspicion or other justification—to frisk a person who they reasonably suspect has committed a violent crime (such as robbery, homicide, or assault) or a crime associated with violence and the possession of weapons (such as the sale of drugs).
For a fuller discussion of stop and frisk, including footnotes with supporting case law, see pages 229-31 of Arrest, Search, and Investigation (4th ed. 2011).
Facts in Robinson. An extensive summary of Robinson is available here. A somewhat abbreviated version is as follows. An anonymous caller saw the defendant in a vehicle in a parking lot loading a firearm and concealing it in his pocket. An officer responding to the dispatch of this information stopped the vehicle shortly after it left the parking lot because neither the driver nor the defendant, a passenger, were wearing seatbelts, a violation of West Virginia law. The officer frisked the defendant for weapons, discovering a firearm in the defendant’s pants pocket. The defendant, a convicted felon (which was not known by the officer until after the frisk), was prosecuted in federal district court for possessing the firearm. In the appeal of his conviction to the Fourth Circuit, the defendant did not contest the legality of the vehicle stop for the seat belt violations or that there was reasonable suspicion he was armed, but he did argue that there was not reasonable suspicion that he was dangerous.
Frisking for weapons when public display of weapons and concealed carry are broadly permitted in West Virginia. The court said that if a state’s law tightly regulated the concealed carry of firearms, permitting it only in rare cases, then a concealed gun remains a strong indication of criminal activity. In those circumstances, there is “precious little space” between armed and dangerous, and an officer may be justified in conducting a frisk with reasonable suspicion that a suspect is concealing a gun. But, the court noted, times have changed, and it decides this case against a different legal background. None of the conduct reported in the anonymous tip is currently illegal under West Virginia law, where it is legal to carry a gun in public and to carry a concealed weapon with a permit. And permits are relatively easy to obtain in West Virginia. So today in West Virginia there is no reason to think that public gun possession is unusual, or that a person carrying or concealing a weapon during a traffic stop is anything but a law-abiding citizen who poses no danger to law enforcement officers.
The court stated that as conduct once the province of lawbreakers becomes increasingly common place, courts must reevaluate what counts as suspicious or dangerous behavior concerning public possession of guns. In states like West Virginia, which broadly allow public possession of firearms, reasonable suspicion that a person is armed does not by itself support reasonable suspicion that the person is dangerous for frisking purposes.
Other states with somewhat different concealed carry statutes. The court noted that several states—though not West Virginia—have responded to the concern that recent developments concerning legal gun possession have made the work of law enforcement officers more dangerous as well as more difficult. These states have enacted “duty to inform” laws, which require those carrying concealed weapons to disclose that fact to law enforcement if they are stopped. The court listed statutes of five states, including North Carolina. N.C. G.S. 14-415.11, a violation of which is punishable as an infraction under G.S. 14-415.21(a), provides that a person must carry the concealed handgun permit with valid identification whenever the person is carrying a concealed handgun, and must disclose to an officer that the person holds a valid permit and is carrying a concealed handgun when approached or addressed by the officer, and must display both the permit and proper identification on an officer’s request. Of particular relevance to North Carolina and the other states, the court then stated: “And where the police have reasonable suspicion that a person is armed, that person’s failure to so inform the police, as required by law, may well give rise to a reasonable suspicion of dangerousness.” So for North Carolina officers, the court has indicated that with the same facts as in Robinson a person’s failure to inform an officer that he or she is armed may be sufficient to support a frisk for the weapon.
Court’s conclusion and dissenting opinion. The court stated that even a lawfully possessed firearm can pose a threat to officer safety, so the court must consider whether a frisk was authorized in light not only of reasonable suspicion that the defendant was armed but also of the surrounding circumstances. The court rejected as insufficient reasonable suspicion of dangerousness the government’s offer of two additional factors: (1) the defendant’s failure to answer when the officer asked him if he had a gun; and (2) the defendant’s presence in a high-crime area. As to factor (1), the court recognized under a different legal regime (i.e., the five states, including North Carolina, discussed above), different reasonable inferences could be drawn from a failure to answer an officer’s question about a gun. As to factor (2), the court stated when public gun possession is legal, high-crime areas are precisely the setting in which we should expect to see law-abiding citizens carrying guns who present no threat to officers; there is more, not less reason to arm oneself lawfully for self-defense in a high-crime area. The court concluded that Terry did not authorize the officers to conduct a frisk of the defendant.
There was a dissenting opinion, which would have upheld the district court’s denial of the suppression motion. It stated that the armed-and-dangerous appellation is a unitary concept, and no further evidence of dangerousness is required to justify a frisk once an officer reasonably suspects that a person who had been lawfully stopped for criminal activity or enforcement of traffic laws is armed.
What do we learn from Robinson? Given that this Fourth Circuit ruling is not binding on North Carolina state courts, we cannot be sure whether or how it will be applied in North Carolina state courts. And even if Robinson is completely adopted, the court’s apparent recognition of a significant difference between the West Virginia statute and the concealed carry statutes of five states, including North Carolina, further may diminish the force of the ruling in North Carolina. However, predicting future legal developments is difficult, so Robinson may lead to changes in North Carolina state case law on a frisk or simply not be accepted as persuasive authority.
It must be remembered as the issues were presented in Robinson, there was a stop of a vehicle for a seat belt violation when the officer already had reasonable suspicion that a vehicle occupant was armed. On the other hand, an officer may stop or confront a person without already having reasonable suspicion the person is armed or dangerous. So the officer in a typical case must develop reasonable suspicion during the stop or confrontation, except when an officer stops and frisks a person involving a violent crime or one associated with violence, as I discussed earlier in this post in my brief review of stop and frisk.