United States v. Shaquille Robinson

I never stated he was stopped for the sole reason of having a gun. He was stopped as a passenger in an automobile. Stop and search are not the same. He was searched for the reason of reasonably believed to be in possession of a firearm.

As I have stated, the words you use to agree with this stop are that you have assumed that being stopped for a traffic violation and being in possession of a firearm meet the requirement to be subjected to search without warrant. Are you suggesting that being armed in public (where legal) meets the requirement to no longer be free from search by the government without a warrant?

Being stopped for a traffic violation does not make one inherently dangerous.

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Z_Man said:

I never stated he was stopped for the sole reason of having a gun. He was stopped as a passenger in an automobile. Stop and search are not the same. He was searched for the reason of reasonably believed to be in possession of a firearm.

As I have stated, the words you use to agree with this stop are that you have assumed that being stopped for a traffic violation and being in possession of a firearm meet the requirement to be subjected to search without warrant. Are you suggesting that being armed in public (where legal) meets the requirement to no longer be free from search by the government without a warrant?

Being stopped for a traffic violation does not make one inherently dangerous.

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You still seem to have a problem with the 4th amendment. It only applies to unreasonable searches, reasonable searches are allowed without a warrant. In addition to unreasonable searches, it also prevents unreasonable seizures. When the police stop you they also seize you. They are not the same, but they are related.

I believe that an involuntary reasonable search requires that you be seized also. When you talk about involuntary reasonable searches you are also talking about an involuntary seizure, which brings additional requirements such as a traffic stop. Your example of having a gun requires some additional requirement for a seizure before the search. Whether it is reasonable to search someone with a gun depends on the circumstances. The circumstances associated with Robinson seem reasonable to me.

The requirements for a search in a Terry stop is that there is reasonable suspicion that they are armed and dangerous. There is no requirement to be inherently dangerous. I an not sure anyone can be considered inherently dangerous.

jcutonilli said:

You still seem to have a problem with the 4th amendment. It only applies to unreasonable searches, reasonable searches are allowed without a warrant. In addition to unreasonable searches, it also prevents unreasonable seizures. When the police stop you they also seize you. They are not the same, but they are related.

I believe that an involuntary reasonable search requires that you be seized also. When you talk about involuntary reasonable searches you are also talking about an involuntary seizure, which brings additional requirements such as a traffic stop. Your example of having a gun requires some additional requirement for a seizure before the search. Whether it is reasonable to search someone with a gun depends on the circumstances. The circumstances associated with Robinson seem reasonable to me.

The requirements for a search in a Terry stop is that there is reasonable suspicion that they are armed and dangerous. There is no requirement to be inherently dangerous. I an not sure anyone can be considered inherently dangerous.

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My point is, being armed does not make one dangerous. having a firearm upon your person, or to be known as armed is not reason enough to be searched.

Being stopped for a traffic violation, and being in possession of a firearm ( apparently legally) still does not justify a search, as the traffic stop on its own merrits does not justify a search, and a traffic stop does not make one dangerous. I don't see how being pulled over for a minor traffic violation, while armed can meet the requirement of reasonable search without warrant.

If officer in question knew that he was a prohibited person, and had reasonable suspicion the man was armed, it would be a different situation. If he were the driver a quick run of the drivers licence would indicate his prohibition from having a firearm. With suspicion of being in possession a search would be acceptable. but as the passenger in the vehicle you have not forfited your rights as you did not commit the driving infraction. You are currently stopped only as you are contained in the car, not individually being stopped. By simple being armed an LEO cannot simply suspect the man is a felon without other evidence.

Now can the Leo demand id from passengers in the vehicle while stopped for a minor driving infraction may be where the disagreement lies

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Z_Man said:

My point is, being armed does not make one dangerous. having a firearm upon your person, or to be known as armed is not reason enough to be searched.

Being stopped for a traffic violation, and being in possession of a firearm ( apparently legally) still does not justify a search, as the traffic stop on its own merrits does not justify a search, and a traffic stop does not make one dangerous. I don't see how being pulled over for a minor traffic violation, while armed can meet the requirement of reasonable search without warrant.

If officer in question knew that he was a prohibited person, and had reasonable suspicion the man was armed, it would be a different situation. If he were the driver a quick run of the drivers licence would indicate his prohibition from having a firearm. With suspicion of being in possession a search would be acceptable. but as the passenger in the vehicle you have not forfited your rights as you did not commit the driving infraction. You are currently stopped only as you are contained in the car, not individually being stopped. By simple being armed an LEO cannot simply suspect the man is a felon without other evidence.

Now can the Leo demand id from passengers in the vehicle while stopped for a minor driving infraction may be where the disagreement lies

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Right, and as per my comment long earlier in the thread, the cop can be mistaken , wrong in fact and it's still a good stop.

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jcutonilli said:

I believe that an involuntary reasonable search requires that you be seized also.

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If you're talking about a search of the person, you can't have the search without the seizure as well, since the ability to search in that case depends on the person not being able to voluntarily leave. So yes, the seizure is a requirement there.

But while a search may have seizure as a precondition, that does not bootstrap the reasonableness of the seizure into reasonableness of the search.

When you talk about involuntary reasonable searches you are also talking about an involuntary seizure, which brings additional requirements such as a traffic stop. Your example of having a gun requires some additional requirement for a seizure before the search. Whether it is reasonable to search someone with a gun depends on the circumstances. The circumstances associated with Robinson seem reasonable to me.

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Then to you it is "reasonable" to suspect that someone is "dangerous" if they happen to do something unusual but lawful in an area with heightened crime.

No, it's worse than that, actually. To you, it is "reasonable" to suspect that someone is "dangerous" merely on someone else's claim that someone happened to do something unusual but lawful in an area with heightened crime.

The requirements for a search in a Terry stop is that there is reasonable suspicion that they are armed and dangerous. There is no requirement to be inherently dangerous. I an not sure anyone can be considered inherently dangerous.

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Let's be clear. "Dangerousness" as regards a Terry stop is a trait of the person. Were that not the case, the "armed" portion would be superfluous.

Since "dangerousness" is a trait of the person, all that remains is whether that trait is something that is conferred or something that is inherent. Your claim is that it is not inherent, but that means it must be conferred. Conferred by whom or what, then?

Now, clearly it is only through observation that one can determine whether or not someone is "dangerous". Which is to say, "dangerousness" is exhibited through behavior, i.e. through actions taken by the individual in question which place others at substantial risk. To have reasonable suspicion that someone is dangerous requires that one have on hand observation of behavior on the part of that someone which is causally linked to actions which place others at substantial risk. Absent such observations, everyone is subject to "reasonable suspicion" of dangerousness.

But that is absent here. More precisely, it has not been proved to be present here. Robinson did nothing that has been causally linked to dangerous actions. His actions were unusual, yes. But "unusual" is insufficient of itself to establish "dangerousness".

This case falls squarely under Terry, Mimms, Johnson, and Whren. I think you guys are getting hung up over two things.


The first is that the observed activity (loading a gun and concealing it) is legal / can be legal.

In Re Terry:

We think, on the facts and circumstances Officer McFadden detailed before the trial judge, a reasonably prudent man would have been warranted in believing petitioner was armed, and thus presented a threat to the officer's safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden's hypothesis that these men were contemplating a daylight robbery -- which, it is reasonable to assume, would be likely to involve the use of weapons -- and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker's store, he had observed enough to make it quite reasonable to fear that they were armed, and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who, in the course of an investigation, had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so..........


.......The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had

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felt weapons, and then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons.

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WRT to Terry, Ofc. observed all legal activities. Nothing was illegal about what those men did prior to being stopped or frisked. Ofc, didn't even have any reason to believe that the men might be armed other than walking back and forth looking into a store may potentially be preface to a robbery, and that if they were going to do a robbery they might be armed.

Now, the legal activity observed in the parking lot was not the reason for the stop. So it doesn't matter if this activity is legal or not, it merely informs the police that this person is probably armed. At this point the Ofc's in Robinson have more than the Ofc in Terry.

Ofc's perform a traffic stop and under Mimms and Johnson order Robinson out of the vehicle.

The second thing I think people have a problem with is conceptualizing armed and dangerous. "Armed doesn't mean dangerous." is something that has been said a few times.

Terry again (concurring though):

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized

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So here we have the Ofc in Terry frisking people during a stop in which he (1)only observed legal activity, and (2) frisked people based only on suspicion that they may be armed because of said observed legal activity.

The court here has said that Ofc. had reasonable grounds.

What is different between Robinson and Terry?

The seizure itself is more strongly supported in Robinson. The suspicion that someone may be armed is stronger in Robinson as well.


TL;DR
As long as a legitimate stop has been effected, police can perform a pat down for officer safety if an officer can articulate that a person may have a weapon.
Terry sets the bar, and it's a low bar. It's been this way for 50 years.

Dogabutila said:

The second thing I think people have a problem with is conceptualizing armed and dangerous. "Armed doesn't mean dangerous." is something that has been said a few times.

Terry again (concurring though):


So here we have the Ofc in Terry frisking people during a stop in which he (1)only observed legal activity, and (2) frisked people based only on suspicion that they may be armed because of said observed legal activity.

The court here has said that Ofc. had reasonable grounds.

What is different between Robinson and Terry?

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Suppose that armed means dangerous.

That would mean that it is sufficient for a Terry stop if there is reasonable suspicion that someone is armed. The term "dangerous" becomes redundant if "armed" automatically means "dangerous".

The Supreme Court is not in the habit of using redundant wording, much less consistently doing so, and yet that is what you must insist the Supreme Court is doing here if armed means dangerous. Note that the Court said "armed and dangerous" and not "armed and thus dangerous". And the Court repeats this phrase in numerous cases (Terry v Ohio, Sibon v New York, Adams v Williams, Arizona v Johnson, Michigan v Long ... the list goes on and on).

Unless you can show that the Supreme Court is in the habit of repeatedly using redundant phrasing, the phrase "armed and dangerous" must means something more than merely "armed". But if that is so, then it follows that "dangerous" must be something that confers additional requirements as regards the search, since it is the prospect that the detainee is armed and dangerous, and not merely armed, that is the justification for the search.

Put another way, it is an error of law to insist that "armed and dangerous" is the same as "armed" in the context of a Terry search, precisely because of the above, and it will remain an error until the Supreme Court actually says that "armed" automatically means "dangerous". To insist otherwise is to insist that the Supreme Court does not say what it means, or does not mean what it says. But if you insist upon that, then all Supreme Court jurisprudence becomes irrelevant, as you can then arbitrarily pick and choose which things they "truly" meant. Lower courts are not authorized to nullify Supreme Court language, and yet that is precisely what the 4th Circuit did in Robinson.

kcbrown said:

Suppose that armed means dangerous.

That would mean that it is sufficient for a Terry stop if there is reasonable suspicion that someone is armed.

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In states where carrying firearms is illegal, RS that someone is armed with a firearm IS sufficient for a stop. Obviously. Because carrying a firearm is illegal.

In states where carrage of firearms is permitted, being armed is not cause for a stop (because being armed is not illegal.) However, you CAN be relieved of your weapon for the duration of the stop.

The Supreme Court is not in the habit of using redundant wording, much less consistently doing so, and yet that is what you must insist the Supreme Court is doing here if armed means dangerous. Note that the Court said "armed and dangerous" and not "armed and thus dangerous". And the Court repeats this phrase in numerous cases (Terry v Ohio, Sibon v New York, Adams v Williams, Arizona v Johnson, Michigan v Long ... the list goes on and on).

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Look at Terry again. It seems you either don't understand the facts of the case or ignore them in favor of argument based on semantics.

In Terry, the Officer observed legal activity and through this 1) deduced that crime was being planned and 2) because of the nature of the crime being planned that A) S1-S3 may possibly be armed. Terry never articulated that S1-S3 may be dangerous. Only armed. SCOTUS upheld the search and seizure. If it were true that dangerous MUST be a separate prong that is not fulfilled by armed, then Terry would have been overturned. The language employed and the facts of the case point to the fact that being armed is being dangerous.

SCOTUS obviously uses "armed and dangerous" as a term of art. It's obvious because of exactly those many cases you cited. They used it in Terry, and they continued to use the same wording they did in Terry. More than the verbage used, you need to look at the holding of all the cases you cited. NONE of the cases involved an officer

Unless you can show that the Supreme Court is in the habit of repeatedly using redundant phrasing, the phrase "armed and dangerous" must means something more than merely "armed". But if that is so, then it follows that "dangerous" must be something that confers additional requirements as regards the search, since it is the prospect that the detainee is armed and dangerous, and not merely armed, that is the justification for the search.

Put another way, it is an error of law to insist that "armed and dangerous" is the same as "armed" in the context of a Terry search, precisely because of the above, and it will remain an error until the Supreme Court actually says that "armed" automatically means "dangerous". To insist otherwise is to insist that the Supreme Court does not say what it means, or does not mean what it says. But if you insist upon that, then all Supreme Court jurisprudence becomes irrelevant, as you can then arbitrarily pick and choose which things they "truly" meant. Lower courts are not authorized to nullify Supreme Court language, and yet that is precisely what the 4th Circuit did in Robinson.

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SCOTUS has ample opportunity to express that dangerous must be severed from armed in exactly all those cases you cited, and upheld a pat down in all of them when none of them articulated anything but an observation that the subject searched may be armed. IF dangerous was a requirement, they would not have all been upheld.

(WRT to half of Sibon, the search was overturned because the Officer testified that he was not searching for weapons, and the search more involved than a patdown anyways.)

The 4th did nothing to nullify anything. They followed SCOTUS jurisprudence.

If you believe that armed does not mean dangerous then you need to articulate why you believe SCOTUS has not overturned any of those searches where only an articulation of "armed" and never an articulation of "dangerous" was made instead of playing at semantics.

In fact, it is SCOTUS themselves implying that armed is dangerous with the wording used and upholding every single case where an officer merely articulates that he suspects a subject stopped possess a weapon with no further articulation that the subject may be dangerous. If you actually read the decisions, SCOTUS articulates the danger DUE to subject being armed, particularly in Adams.

Dogabutila said:

In states where carrying firearms is illegal, RS that someone is armed with a firearm IS sufficient for a stop. Obviously. Because carrying a firearm is illegal.

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But that is not relevant to Robinson.

In states where carrage of firearms is permitted, being armed is not cause for a stop (because being armed is not illegal.) However, you CAN be relieved of your weapon for the duration of the stop.

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Yes. But that's not the question here. The question is whether or not you can be searched for a weapon, particularly since all fruits of the search would become evidence for later prosecution.

Look at Terry again. It seems you either don't understand the facts of the case or ignore them in favor of argument based on semantics.

In Terry, the Officer observed legal activity and through this 1) deduced that crime was being planned and 2) because of the nature of the crime being planned that A) S1-S3 may possibly be armed. Terry never articulated that S1-S3 may be dangerous. Only armed. SCOTUS upheld the search and seizure. If it were true that dangerous MUST be a separate prong that is not fulfilled by armed, then Terry would have been overturned. The language employed and the facts of the case point to the fact that being armed is being dangerous.

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Really?

Terry v Ohio said:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

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and

Terry v Ohio said:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

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The Court goes out of its way to add "dangerous" to the mix, not merely "armed".

SCOTUS obviously uses "armed and dangerous" as a term of art. It's obvious because of exactly those many cases you cited. They used it in Terry, and they continued to use the same wording they did in Terry. More than the verbage used, you need to look at the holding of all the cases you cited.

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It's clearly more than a mere "term of art", as it derives from "armed and presently dangerous".

In the case of Terry, there were two things that were true and which stand out as separating it from Robinson:

1. Being armed in public was illegal at the time, thus causing "armed" to automatically imply "dangerous" in that environment
2. Terry was directly observed by the officer as exhibiting behavior that directly led the officer to suspect criminal activity (and thus dangerousness)

Neither is true of Robinson. In Robinson, being armed in public was legal, and the "suspicious behavior" was a second hand report of legal activity in which the officers weren't even able to use their observational powers to determine any criminal intent.

If you believe that armed does not mean dangerous then you need to articulate why you believe SCOTUS has not overturned any of those searches where only an articulation of "armed" and never an articulation of "dangerous" was made instead of playing at semantics.

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I'll have to look at each one, but Terry doesn't give any reason to believe that there is such an implied link in an environment where carry in public is legal.

If such an implied link exists, then Terry searches can legally be performed automatically against every person who is stopped for a traffic violation in an area where the population can legally carry firearms, since the legality of carry alone would be sufficient to give reasonable suspicion that the person may be armed, with the result being that one must live in an area where carry is prohibited in order to have any 4th Amendment protection against Terry searches during traffic stops. What do you believe negates that line of reasoning in the face of the implied link? And if nothing does, then what protection does the 4th Amendment provide to anyone in public?

In fact, it is SCOTUS themselves implying that armed is dangerous with the wording used and upholding every single case where an officer merely articulates that he suspects a subject stopped possess a weapon with no further articulation that the subject may be dangerous. If you actually read the decisions, SCOTUS articulates the danger DUE to subject being armed, particularly in Adams.

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I'll look at them in more detail. Stay tuned.

kcbrown said:

I'll look at them in more detail. Stay tuned.

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Sibron actually says that the search was not justified on the basis of "armed and dangerous":

Sibron v New York said:

In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. Patrolman Martin's testimony reveals no such facts. The suspect's mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime. Nor did Patrolman Martin urge that when Sibron put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense. His opening statement to Sibron—"You know what I am after"—made it abundantly clear that he sought narcotics, and his testimony at the hearing left no doubt that he thought there were narcotics in Sibron's pocket.

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So that doesn't support the notion that armed means dangerous.

Nor does Adams v Williams:

Adams v Williams said:

Yet, we upheld the stop and frisk in Terry because we recognized that the realities of on-the-street law enforcement require an officer to act at times on the basis of strong evidence, short of probable cause, that criminal activity is taking place and that the criminal is armed and dangerous. Hence, Terry stands only for the proposition that police officers have a "narrowly drawn authority to . . . search for weapons" without a warrant. Id., at 27.

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(emphasis mine). Here, the Court is making it clear that "strong evidence, short of probable cause, that criminal activity is taking place" is a necessary element of a Terry search. Put another way, it is the strong prospect of criminality which establishes "dangerousness".

But Pennsylvania v Mimms seems to speak more clearly on the matter, and in favor of the "armed is the same as dangerous" view.


As such, it does indeed appear that the Supreme Court now treats armed as being identical to "dangerous". This, of course, means that the 4th Amendment is no longer operative at all during traffic stops in areas where carry of firearms is allowed, since a Terry search extends to a search of the car (see Michigan v Long), and a Terry search is automatically authorized under such circumstances.


Eventually, the same justification will be used to dispense with 4th Amendment protections as applied to homes, since police who interrogate someone at his home are subject to the same dangers as they are when facing someone they've pulled over for a traffic violation. So, thanks to Terry and the Supreme Court's insistence on using it as a bludgeon to eviscerate the 4th Amendment, the 4th Amendment will become a dead letter, a right in name only.

Lawyers and Judges have destroyed this country. Ctrl Alt Del.

Sent from the 3rd Rock

Does anyone have access to the response filed yesterday?

Brief in opposition:

http://blog.californiarighttocarry.org/wp-content/uploads/2016/09/Shaquille-Montel-Robinson-v-US-No-16-1532-Brief-in-Opposition.pdf

Cert denied

wow, that 4th Circuit is good. At destroying rights that is.... SC doesn't like Felons, even if their rights are violated.

GTOGUNNER said:

wow, that 4th Circuit is good. At destroying rights that is.... SC doesn't like Felons, even if their rights are violated.

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SCOTUS has not really said anything with respect to this case. There are lots of examples where the guilty party goes free due to a technicality.

There are limits to rights and the 4CA believes that what happened in this case is consistent with limits established by SCOTUS on the issue.

jcutonilli said:

SCOTUS has not really said anything with respect to this case. There are lots of examples where the guilty party goes free due to a technicality.

There are limits to rights and the 4CA believes that what happened in this case is consistent with limits established by SCOTUS on the issue.

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And, as much as I think the guy was up to no good and got what he deserved, I do disagree with past SCOTUS rulings that have brought us to this slippery slope. The slope is gone, it is now a cliff.

GTOGUNNER said:

And, as much as I think the guy was up to no good and got what he deserved, I do disagree with past SCOTUS rulings that have brought us to this slippery slope. The slope is gone, it is now a cliff.

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They may have gone too far, but the facts and circumstances indicate that this is not the case to change that.

As much as I agree that simply being armed isn't doesn't make one dangerous, I'm gonna have to agree with jcutonilli on this one. There is precedent that errs on the side of officer safety to justify this search in this particular case. Traffic stops are very dangerous and frisking occupants of a vehicle for weapons given furtive behavior on the part of the passenger is enough to justify a search for weapons.

ToneGrail said:

As much as I agree that simply being armed isn't doesn't make one dangerous, I'm gonna have to agree with jcutonilli on this one. There is precedent that errs on the side of officer safety to justify this search in this particular case. Traffic stops are very dangerous and frisking occupants of a vehicle for weapons given furtive behavior on the part of the passenger is enough to justify a search for weapons.

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Problem is that this is the norm. Shouldn't be. Plus, reading the case, I didn't see a red flag about the passenger during the stop. The red flag was reason that the stop was initiated based on a legal stop. Which, the SCOTUS said really doesn't have to be legal anyway. Full Circle.