United States v. Shaquille Robinson

Inigoes · Jul 30, 2017

jcutonilli said:
Pg 2 of the cert petition.

"As is relevant here, Terry
also permits officers, after a lawful stop, to conduct a
limited search when officers have a “specific and
articulable” reason to believe that the person they
have stopped is “armed and presently dangerous to the
officer or to others.” [Terry v Ohio] at 21, 30."

The court found that the tip provided a specific and articulable reason.

Felons cannot posses guns even in WV.

That is the issue.

Reporting a lawful activity of openly carrying a firearm.

It was discovered at the time of the stop, after a tip of a lawful activity, that Robinson was a felon.

jcutonilli · Jul 30, 2017

Inigoes said:
That is the issue.

Reporting a lawful activity of openly carrying a firearm.

It was discovered at the time of the stop, after a tip of a lawful activity, that Robinson was a felon.

Openly carrying a firearm by a felon is not lawful. Robinson would not have been arrested if his carrying of a firearm was legal. They have already demonstrated that they are dangerous. That is why they are a felon. I believe the facts and circumstances demonstrated that there was reasonable suspicion that the person in the car was not law abiding and dangerous.

Inigoes · Jul 30, 2017

jcutonilli said:
Openly carrying a firearm by a felon is not lawful. Robinson would not have been arrested if his carrying of a firearm was legal. They have already demonstrated that they are dangerous. That is why they are a felon. I believe the facts and circumstances demonstrated that there was reasonable suspicion that the person in the car was not law abiding and dangerous.

So you are siding with the CA4, you can be stopped at anytime because you are carrying a gun, to see if you are legally carrying.

pilotguy · Jul 30, 2017

MDvet said:
This case reminds of New York City's stop and frisk, which was deemed unconstitutional. But somehow, when there might be a gun, it's okay.

The court did not rule stop and frisk unconstitutional. They ruled the way that it was applied in that particular case was unconstitutional.

lazarus · Jul 30, 2017

Inigoes said:
So you are siding with the CA4, you can be stopped at anytime because you are carrying a gun, to see if you are legally carrying.

And that is my problem. I know I threw out hunting as an example and that is somewhat different as you are agreeing for DNR to check your license at anytime while hunting (which means they could also run your ID to see if you are a felon or you have warrants for example).

But my issue is that I could be openly carrying for some other reason. Maybe I am waking my property and an officer sees me carrying. Under the decision (granted, trespass was not part of the decision, but I bet I know how some of the liberal courts would find) an officer could then demand my ID and search me because I am carrying a firearm.

"Suspicion of illegal activity" is an extremely low bar and a cop's "he looked suspicious" is almost always good enough unless you can show that a department has a pattern of bias against a particular protected class, suspicion is going to be extremely hard to get tossed out in court.

I am not a felon, but I also don't want to be harassed because some cop is having a bad day or decides he doesn't like me. I have had a state trooper ream me out and yell in my face because I questioned (politely!) a traffic ticket where I knew I had been traveling ~50mph in a 40mph zone and he wrote me a 78mph ticket.

He blew up at me and threatened to arrest me if I asked one more question or did anything other than immediate sign the ticket and leave.

The bulk of cops I've dealt with, know or have worked with have been decent guys (and gals), but I have know a couple of bad ones and of course that case too. I am always reminded that cops are generally above most of the laws they enforce, especially while the uniform is on and they can make my day really, really bad if they choose.

Which wouldn't be an issue for me if they were all great people, except for that bit about knowing there ARE some bad ones wearing a uniform. So any extra legal cover that the bads ones get is a BAD thing in my mind.

press1280 · Jul 30, 2017

esqappellate said:
Here is the cert petition. It is very well done. But, I don't have much hope that the petitioner will win. But, I am hoping that I am wrong.

Win or simply get cert? This seems to be a VERY deep split.

Not_an_outlaw · Jul 30, 2017

jcutonilli said:
Openly carrying a firearm by a felon is not lawful. Robinson would not have been arrested if his carrying of a firearm was legal. They have already demonstrated that they are dangerous. That is why they are a felon. I believe the facts and circumstances demonstrated that there was reasonable suspicion that the person in the car was not law abiding and dangerous.

Totally disagree with you. I think you are missing the point. If you want to be stopped for no reason, other than someone doesn't like firearms, it doesn't really look like a right.

So, if you purchase a firearm, and someone sees you walking to your car with a gun, you're OK with the police stopping you?

If you are carrying open or concealed, and someone sees a gun, you're OK with a search?

Are you a troll from the left?

Biggfoot44 · Jul 30, 2017

Did Robenson LOOK like a Felon to the necessary degree of certainty? Did his shirt say Property of State Pen on the front, and discharge papers tucked into his hatband ?

jcutonilli · Jul 30, 2017

I am quoting my previous posts because people don't seem to have read it.

jcutonilli said:
This is what is known as a Terry stop https://en.wikipedia.org/wiki/Terry_stop it is known as stop and frisk in NYC https://en.wikipedia.org/wiki/Stop-and-frisk_in_New_York_City The practice (not the law) was found unconstitutional due to racial profiling. It is still done in NYC, just not to the extent that it was done before the lawsuit.

A Terry stop requires two things reasonable suspicion of some type of criminal activity and a reasonable suspicion of being armed.

If you are hunting, the arm would likely be open carried, so there would need reasonable suspicion of another concealed weapon in order to justify a frisk.

They cannot just frisk you if you have a gun, you need both requirements (reasonable suspicion of criminal activity and reasonable suspicion of being armed)

jcutonilli said:
He was stopped because of a traffic violation and he fit a description of someone with a gun. That fulfills both criteria for a Terry stop according to the court. The report of the gun does not appear to be sufficient to stop him, but the traffic violation does. The report of the gun provides the reasonable suspicion of being armed. He was arrested because he is a felon in possession of a gun. That is the crime he was committing and arrested for.

While I don't like the search, it does not seem to be totally unreasonable given the circumstances. There is more to the circumstances then he simply had a gun.

Inigoes said:
So you are siding with the CA4, you can be stopped at anytime because you are carrying a gun, to see if you are legally carrying.

jcutonilli said:
They cannot just frisk you if you have a gun, you need both requirements (reasonable suspicion of criminal activity and reasonable suspicion of being armed)

lazarus said:
And that is my problem. I know I threw out hunting as an example and that is somewhat different as you are agreeing for DNR to check your license at anytime while hunting (which means they could also run your ID to see if you are a felon or you have warrants for example).

But my issue is that I could be openly carrying for some other reason. Maybe I am waking my property and an officer sees me carrying. Under the decision (granted, trespass was not part of the decision, but I bet I know how some of the liberal courts would find) an officer could then demand my ID and search me because I am carrying a firearm.

"Suspicion of illegal activity" is an extremely low bar and a cop's "he looked suspicious" is almost always good enough unless you can show that a department has a pattern of bias against a particular protected class, suspicion is going to be extremely hard to get tossed out in court.

I am not a felon, but I also don't want to be harassed because some cop is having a bad day or decides he doesn't like me. I have had a state trooper ream me out and yell in my face because I questioned (politely!) a traffic ticket where I knew I had been traveling ~50mph in a 40mph zone and he wrote me a 78mph ticket.

He blew up at me and threatened to arrest me if I asked one more question or did anything other than immediate sign the ticket and leave.

The bulk of cops I've dealt with, know or have worked with have been decent guys (and gals), but I have know a couple of bad ones and of course that case too. I am always reminded that cops are generally above most of the laws they enforce, especially while the uniform is on and they can make my day really, really bad if they choose.

Which wouldn't be an issue for me if they were all great people, except for that bit about knowing there ARE some bad ones wearing a uniform. So any extra legal cover that the bads ones get is a BAD thing in my mind.

jcutonilli said:
If you are hunting, the arm would likely be open carried, so there would need reasonable suspicion of another concealed weapon in order to justify a frisk.

They cannot just frisk you if you have a gun, you need both requirements (reasonable suspicion of criminal activity and reasonable suspicion of being armed)

Not_an_outlaw said:
Totally disagree with you. I think you are missing the point. If you want to be stopped for no reason, other than someone doesn't like firearms, it doesn't really look like a right.

So, if you purchase a firearm, and someone sees you walking to your car with a gun, you're OK with the police stopping you?

If you are carrying open or concealed, and someone sees a gun, you're OK with a search?

Are you a troll from the left?

jcutonilli said:
They cannot just frisk you if you have a gun, you need both requirements (reasonable suspicion of criminal activity and reasonable suspicion of being armed)

Can you read past posts?

Biggfoot44 said:
Did Robenson LOOK like a Felon to the necessary degree of certainty? Did his shirt say Property of State Pen on the front, and discharge papers tucked into his hatband ?

The fourth amendment does not prohibit all searches, just unreasonable ones. While they did not know if he was not a felon before the search, it does not seem unreasonable to think that that may be the case based on facts and circumstances.

Biggfoot44 · Jul 30, 2017

I understand Terry.

The point of contention is that being Armed versus being Armed AND Dangerous are different things. At any givin moment more than 10% of the population of West By God Virginia is armed , and not not commiting crimes or being dangerous. In West By God, not being armed is suspicious. In West By God, being a Man with Clean Socks is more noteworthy than having a firearm at hand.

Was Robenson personally known to the local Sheriff as a Felon ? Was Robenson loitering in vicinity of commercial buildings with burglar tools over his shoulder ? Holding a plastic 1 gal jug filled clear liquid and emmiting strong odor of alcohol ? Dragging a field dressed deer carcas in July ? Standing in front of graffiti while holding a paint can ? Or any other circumstances with strong likelyhood of activities predominately illegal in themselves ?

jcutonilli · Jul 30, 2017

Biggfoot44 said:
I understand Terry.

The point of contention is that being Armed versus being Armed AND Dangerous are different things. At any givin moment more than 10% of the population of West By God Virginia is armed , and not not commiting crimes or being dangerous. In West By God, not being armed is suspicious. In West By God, being a Man with Clean Socks is more noteworthy than having a firearm at hand.

I understand the point of contention. I agree that being armed does not always mean you are dangerous. I do think the explanation given by the en banc panel seems to imply that armed means you are dangerous. I disagree with the en banc panel about that aspect and would have written the opinion differently.

What I agree with is that there are facts and circumstances that justify the search. Just because someone is armed does not mean you should always assume they are not dangerous. I think this case presents a grey area about when you should consider someone armed and dangerous.

Robinson definitely does not meet a high standard. The Terry stop criteria is not very high though. It presents a very low standard. I think the facts and circumstances of this case meet this very low standard.

While there is a very low standard with Terry, it is not nothing. I don't believe most law abiding citizens will be subject to Terry because the reasonable suspicion of a concealed weapon seems less likely with a law abiding citizen. Even if there is a Terry stop, it would seem to me to be like a traffic stop. They take the gun, check your record, and give your gun back when your record comes back clean.

MigraineMan · Jul 30, 2017

jcutonilli said:
Even if there is a Terry stop, it would seem to me to be like a traffic stop. They take the gun, check your record, and give your gun back when your record comes back clean.

At what point does lawful behavior justify asset seizure by the State? "Hey, you have money in a bank account. We're just going to take the money and hold on to it for a while until we have checked your record and verified that you're not an embezzler/money-launderer."

Getting an anonymous tip that "I saw a guy in a car with a gun" in a state that allows constitutional carry should have prompted the tip receiver to ask either "so what?" or "was the individual displaying the firearm in a threatening manner?"

kcbrown · Jul 31, 2017

jcutonilli said:
Robinson definitely does not meet a high standard. The Terry stop criteria is not very high though. It presents a very low standard. I think the facts and circumstances of this case meet this very low standard.

How? This is what you said about the standard:

A Terry stop requires two things reasonable suspicion of some type of criminal activity and a reasonable suspicion of being armed.

Robinson was the passenger. As such, where's the reasonable suspicion of criminal activity?

Being armed in a dangerous neighborhood is the justification that was given for this case, but if that really is the "reasonable suspicion" of criminal activity, then anyone who arms themselves when in a dangerous neighborhood, which is exactly where an ordinary citizen would have the most incentive to be armed in public, would be subject to this "reasonable" suspicion. The "reasonable"-ness gets even worse if you drop the requirement for being armed and said suspicion is "justified" if one is merely present in a dangerous neighborhood.

A suspicion which has as its basis something that cannot be used to distinguish between criminal and lawful activity cannot be "reasonable". So where, in all this, is the "reasonable" in "reasonable suspicion"? It looks to me like you've failed to articulate it here, but articulability of that is a necessity for a lawful Terry stop, is it not?

While there is a very low standard with Terry, it is not nothing.

Really? When the "standard" is that one is present in a "dangerous neighborhood", or even armed in said neighborhood, how is that "not nothing"? It clearly is nothing if the standard does not make it possible for you to distinguish between lawful activity and criminal activity.

I don't believe most law abiding citizens will be subject to Terry because the reasonable suspicion of a concealed weapon seems less likely with a law abiding citizen.

Except that there was no indication that Robinson was not a law abiding citizen. Possession of a firearm by a law abiding citizen is not a crime in WV. Possession by a felon is, of course, but you can't articulate suspicion of that without first having an articulable suspicion that the person is a felon in the first place. And that is precisely the problem here: there was no basis for such a suspicion, and not even a basis to suspect that Robinson was had committed a crime of any kind. Because he was the passenger, and the traffic stop was made because the driver wasn't wearing a seatbelt, the traffic violation cannot apply to him with respect to establishing the elements of a crime.

jcutonilli · Jul 31, 2017

MigraineMan said:
At what point does lawful behavior justify asset seizure by the State? "Hey, you have money in a bank account. We're just going to take the money and hold on to it for a while until we have checked your record and verified that you're not an embezzler/money-launderer."

Getting an anonymous tip that "I saw a guy in a car with a gun" in a state that allows constitutional carry should have prompted the tip receiver to ask either "so what?" or "was the individual displaying the firearm in a threatening manner?"

Your traffic stops seem to differ a lot compared to mine. My limited experience puts a traffic stop in the 5-10 minute time frame.

You also seem to forget that felons cannot possess firearms so the situation is dependent on that also.

jcutonilli · Jul 31, 2017

kcbrown said:
How? This is what you said about the standard:

Robinson was the passenger. As such, where's the reasonable suspicion of criminal activity?

Being armed in a dangerous neighborhood is the justification that was given for this case, but if that really is the "reasonable suspicion" of criminal activity, then anyone who arms themselves when in a dangerous neighborhood, which is exactly where an ordinary citizen would have the most incentive to be armed in public, would be subject to this "reasonable" suspicion. The "reasonable"-ness gets even worse if you drop the requirement for being armed and said suspicion is "justified" if one is merely present in a dangerous neighborhood.

A suspicion which has as its basis something that cannot be used to distinguish between criminal and lawful activity cannot be "reasonable". So where, in all this, is the "reasonable" in "reasonable suspicion"? It looks to me like you've failed to articulate it here, but articulability of that is a necessity for a lawful Terry stop, is it not?

Really? When the "standard" is that one is present in a "dangerous neighborhood", or even armed in said neighborhood, how is that "not nothing"? It clearly is nothing if the standard does not make it possible for you to distinguish between lawful activity and criminal activity.

Except that there was no indication that Robinson was not a law abiding citizen. Possession of a firearm by a law abiding citizen is not a crime in WV. Possession by a felon is, of course, but you can't articulate suspicion of that without first having an articulable suspicion that the person is a felon in the first place. And that is precisely the problem here: there was no basis for such a suspicion, and not even a basis to suspect that Robinson was had committed a crime of any kind. Because he was the passenger, and the traffic stop was made because the driver wasn't wearing a seatbelt, the traffic violation cannot apply to him with respect to establishing the elements of a crime.

Maybe you are not aware of this, but when a car stops, the passengers stop with it. As such they are part of the lawful stop. These passengers present the same potential hazard to the officer as the driver.

The take away lesson is if you are a felon in possession make sure your buddy wears their seatbelt.

pcfixer · Jul 31, 2017

http://www.breitbart.com/big-government/2017/07/27/state-ags-armed-not-dangerous/

State Attorney Generals (AG) from Michigan, Texas, Utah, and West Virginia are asking the Supreme Court of the United States to review a 4th U.S. Circuit Court ruling and reaffirm that being armed is not the same thing as being dangerous.
The AGs — Bill Schuette (MI), Ken Paxton (TX), Sean D. Rayes (UT), and Patrick Morrisey (WV) — are convinced the 4th Circuit made a mistake in ruling that individuals who carry guns can constitutionally be searched, simply for having a gun.
According to the Associated Press, in January, the 4th Circuit ruled that “an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.”*Judge Paul Niemeyer wrote the majority opinion, saying, “The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession.”
AG Morrisey responded to the ruling, saying, “It is wrong to deem an individual dangerous solely because they are armed.” And AG Paxton contends the ruling “places a burden on the Second Amendment right to carry a firearm.”

Paxton said, “The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry. We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”
Central to the AGs’ contention is*Terry v Ohio (1968), wherein SCOTUS ruled that police officers may both stop and frisk individuals when “specific and articulable facts” lead to the assumption of criminal activity. The AGs contend that exercising a Second Amendment right does not equate to criminal activity and ought not lead to the presumption of criminality.

pcfixer · Jul 31, 2017

ops double post...

kcbrown · Jul 31, 2017

jcutonilli said:
Maybe you are not aware of this, but when a car stops, the passengers stop with it. As such they are part of the lawful stop. These passengers present the same potential hazard to the officer as the driver.

That is true but it's also irrelevant. The passenger isn't the person who triggered the stop and therefore is not the person to whom any suspicion of criminal activity would apply even if failure to wear a seatbelt raised such suspicion in the first place.

The failure of the driver to wear a seatbelt was the justification for the stop but that was not the reason for the interest of law enforcement in the first place. That interest came as a result of the vehicle and its occupants matching the description of the report of, based on what was reported to law enforcement at the time, lawful activity on the part of the occupants that was called in by someone who didn't recognize the activity as lawful. There was no possible way that suspicion of criminal activity on the part of the passenger was "reasonable" under the circumstances of the stop, especially because what was reported to law enforcement was not criminal activity in the first place (the report was not of a felon with a gun, but of a person with a gun).

This is no different from being searched by law enforcement, during a traffic stop, for material indicating that you intended to incite riot on the basis of someone reporting to the police that you were talking to someone.

Sent from my iPhone using Tapatalk

GTOGUNNER · Jul 31, 2017

Slippery slope. Better the felon go free than cast a net over the innocent.

Sent from the 3rd Rock

jcutonilli · Jul 31, 2017

kcbrown said:
That is true but it's also irrelevant. The passenger isn't the person who triggered the stop and therefore is not the person to whom any suspicion of criminal activity would apply even if failure to wear a seatbelt raised such suspicion in the first place.

The failure of the driver to wear a seatbelt was the justification for the stop but that was not the reason for the interest of law enforcement in the first place. That interest came as a result of the vehicle and its occupants matching the description of the report of, based on what was reported to law enforcement at the time, lawful activity on the part of the occupants that was called in by someone who didn't recognize the activity as lawful. There was no possible way that suspicion of criminal activity on the part of the passenger was "reasonable" under the circumstances of the stop, especially because what was reported to law enforcement was not criminal activity in the first place (the report was not of a felon with a gun, but of a person with a gun).

This is no different from being searched by law enforcement, during a traffic stop, for material indicating that you intended to incite riot on the basis of someone reporting to the police that you were talking to someone.

The justification for stopping someone only requires one valid reason. Any other reasoning is not relevant. In this case the traffic stop is the valid reason. It does not appear that the tip would have been a sufficient reason hence the traffic stop reason. The fact that Robinson was a passenger makes the reason valid for him also. Most people here want to ignore the fact that the valid reason for the stop was the traffic stop and not the tip.

The danger to the police officer (armed and dangerous: second criteria for a Terry stop) is not connected to the reason for the stop and there does not need to be any connection.

I fail to see how someone can riot in their car. I fail to see how this makes someone armed or even dangerous to the police officer. The Terry stop criteria tries to balance an immediate threat to police and others with the need to prevent arbitrary searches. While it is skewed toward protection it still provides protection against arbitrary searches.

United States v. Shaquille Robinson

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