United States v. Shaquille Robinson

[esqappellate]

The purpose of the search is to reduce the risk of death or bodily harm to the officer. The reason there is a standard for the search at all is because of the right to be free from "unreasonable" search and seizure.

The "criminality" of a traffic violation is sufficient to satisfy the "reasonableness" requirement for the seizure. If it were all that were necessary for a search then there would be no "armed and dangerous" standard in the first place as regards traffic stops. But there is.




That is true. I hadn't noticed that before. So much for that argument, then.

I do agree, that makes Mimms very troubling as regards Robinson.




So if you live in a dangerous neighborhood, then you're automatically subject to a Terry search in a region where carry of a firearm is lawful if you're pulled over?




Not quite. The justification for the search is the reasonable chance that the officer will come to grave harm if the person he's faced with is both armed and dangerous. If the person is dangerous, then the only remaining question is whether or not he's armed, and that is something that can be determined through a search. If the person is not dangerous, then whether or not he is armed is irrelevant. As such, the necessity of the search really hinges on whether or not the person is dangerous. The search is not justifiable if there is no good reason to suspect that the person is dangerous.

"Reasonable suspicion" comes into play because situations vary all over the map and the courts tend to err on the side of caution. Absent that, the standard would be "probable cause".




No, the 4th Circuit has eviscerated the 4th Amendment here, because now there is nothing at all that stands in the way of a Terry search during a traffic stop in an area where people may lawfully carry firearms, since the necessity for a reasonable suspicion that the person in question is "dangerous" is no longer required.

A report of a crime doesn't provide a demonstration of dangerousness, but it may, depending on the crime being reported, raise the reasonable suspicion of dangerousness, since while not all criminals are dangerous, all dangerous people (as regards law enforcement) are criminals.

But here in Robinson, absolutely no crime was reported whatsoever. No reported crime means no reasonable suspicion of dangerous criminality unless the reason for the stop is because of an observed dangerous crime or crime from which dangerousness can be inferred. A traffic infraction is not such a crime, because the vast majority of people who are pulled over for traffic infractions are not dangerous people. Some kind of causal link, even if only statistical, is necessary for such an inference and that simply doesn't exist here.




Because not all crimes are equal with respect to dangerousness. To argue otherwise is to argue that all who violate traffic laws are "dangerous" for the purpose of a Terry search. And that is nearly everybody in the adult population, for some 41 million people a year get speeding tickets alone (http://www.statisticbrain.com/driving-citation-statistics/), which sets a very high floor on the number who get pulled over for traffic violations (as not all stops result in tickets, and not all stops are for speeding). But it must be remembered that the entire point of the search is to reduce the risk of grave bodily injury to the officer, so that risk is raised only (or, at least, primarily) by people who engage in criminal activity which goes well beyond mere traffic violations.

If all crimes raised equal levels of suspicion of dangerousness on the part of the person engaging in them, then all traffic stops would be made by SWAT teams. There has to be some level of seriousness of the suspected crime below which "reasonable suspicion" of dangerousness is no longer present. Otherwise, the 4th Amendment gives no protection whatsoever against a Terry search conducted by law enforcement under any circumstance where any violation of any law, no matter how innocuous, may have occurred. And yet, that is precisely what Robinson is ultimately saying.

I agree with KC on this. The 4th Circuit's ruling is awful. I hope the Court grants cert.

 

[jcutonilli]

I agree that the purpose of the search is to reduce the risk of death or bodily harm to the officer. The requirement is specific articulable facts that they are both armed and dangerous. If you simply live in a dangerous neighborhood, and you live a region where carry of a firearm is lawful, then neither requirement is met with with specific articulable facts. Living in a dangerous neighborhood is too general, but may play a role in a series of facts. In Robinson's case the criminal activity around the store he was leaving represents a specific articulable fact that a reasonable person may conclude that he is more dangerous than the average law abiding citizen. The report of the gun is another specific articulable fact to demonstrate that he is armed. Both criteria are met with specific articulable facts.

One problem with your argument is that you don't seem to need specific articulable facts for both being armed and dangerous. You seem to believe is that if the danger is high enough, the fact of the dangerousness is sufficient to demonstrate that there is an arm. While there may be additional facts that leads one to conclude that dangerous leads to the conclusion that one is armed, facts that only demonstrate dangerousness, do not demonstrate that one is armed. This is why there are two criteria, armed AND dangerous.

Another problem with your argument is that you cannot prove an average citizen presents the same amount of danger as a law abiding one. (ie no danger) The problem is that there are a small number criminals that elevate the danger of the average above that of the typical law abiding citizen. Since both criteria are fulfilled if a gun is reasonably suspected, the search would be considered valid. (This seems to be the 4CA argument) While I don't believe that rationale is specific enough to justify a search, it is not much different from your reasoning about more dangerous individuals. In both cases one criteria is fairly well certain, while the other is not. The certainty of one seems to justify the other.

 

[whistlersmother]

The agrument as I see it, is not that dangerous implies armed, but exactly the opposite. 4CA is saying armed always automatically implies dangerous, and thus 4A protections are no longer available in any instance.

So, according to 4CA, everyone in WV is automatically presumed dangerous simply because the state allows permitless carry.

I am not a lawyer so I simply don't understand your arguments to the contrary. To my lay thinking, 4CA got it wrong.

My suspicion is that 4CA is so anti-gun, that any decision, even those trodding upon other protections, is correct as long as the 2A is infringed.

 

[jcutonilli]

The agrument as I see it, is not that dangerous implies armed, but exactly the opposite. 4CA is saying armed always automatically implies dangerous, and thus 4A protections are no longer available in any instance.

So, according to 4CA, everyone in WV is automatically presumed dangerous simply because the state allows permitless carry.

I am not a lawyer so I simply don't understand your arguments to the contrary. To my lay thinking, 4CA got it wrong.

My suspicion is that 4CA is so anti-gun, that any decision, even those trodding upon other protections, is correct as long as the 2A is infringed.

I believe that dangerous implies armed is just as wrong as armed implies dangerous because one should not imply the other.

The 4CA has not explicitly stated that armed always automatically implies dangerous or that 4A protections are no longer available in any instance. The concurring opinion by one judge does say the armed always automatically implies dangerous, but the concurring opinion does not hold any weight.

What they have said is that 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. Part of problem comes from past SCOTUS precedent (PA v Mimms), which seems to suggest that the combination of a police encounter and the slightest possibility that something might be a firearm means that a limited search is acceptable. This ruling is simply an extension of that ruling.

The 4A protections are still available. The only permissible search is limited to arms and only when there is reasonable suspicion that one is possessed.

I am not sure it is that appropriate to say this case demonstrates that the 4CA is anti gun. All of the judges that voted against the Kolbe en banc voted for this ruling and all of the judges that voted against this ruling voted for the Kolbe en banc.

 

[GTOGUNNER]

SCOTUS won't take the case, the 4th is dead wrong, we are in a death spiral. Judges stay employed, lawyers stay employed, it's a clear case of Racketeering.

Sent from the 3rd Rock

 

[kcbrown]

I agree that the purpose of the search is to reduce the risk of death or bodily harm to the officer.

Then clearly, someone of whom there is no reasonable suspicion of dangerousness (i.e. no good reason to believe the person in question is someone who is willing and able to inflict grave bodily harm upon the officer) is not someone who should be subject to a search.

The requirement is specific articulable facts that they are both armed and dangerous.

More precisely, specific articulable facts that there is good reason to be suspicious that the person is both armed and dangerous.

Each of those facets has to be evaluated separately.

If you simply live in a dangerous neighborhood, and you live a region where carry of a firearm is lawful, then neither requirement is met with with specific articulable facts.

Of course they are. The articulable fact in that case is that you live in a dangerous neighborhood and, therefore, in an area where crime is heightened and people are more likely to be armed.

Living in a dangerous neighborhood is too general,

No more general than being present at a store where crime is known to happen. After all, what makes a dangerous neighborhood dangerous is that crime is known to happen there.

but may play a role in a series of facts. In Robinson's case the criminal activity around the store he was leaving represents a specific articulable fact that a reasonable person may conclude that he is more dangerous than the average law abiding citizen.

Is that so? So the store clerk who works there is just as suspect of being "dangerous"? After all, he's at the store too. What of the store's customers? Are they just as "dangerous"? No, claiming that a person's presence at that store gives rise to "reasonable suspicion" that someone is dangerous is no different than the claim that living in a dangerous neighborhood gives rise to same. Both carry the same stigma.

The report of the gun is another specific articulable fact to demonstrate that he is armed. Both criteria are met with specific articulable facts.

I agree with you as regards the suspicion of being armed, but as I said, being armed there is legal. Even so, the question is really on the question of dangerousness, since being armed is irrelevant if one is not dangerous, while it's relevant to the point of potentially justifying even the lax standards that are in play today if one is truly dangerous.

One problem with your argument is that you don't seem to need specific articulable facts for both being armed and dangerous.

I was simply going with what I thought your conclusion was based on AZ v Johnson. I presumed that the police scanner was clearly seen from the outset. If it was merely a bulge then that would raise reasonable suspicion of the possibility of Johnson being armed.

The search of Robinson began before anything was seen. He was asked whether or not he was armed and he didn't answer. Perhaps the look he gave the officers was sufficient to raise reasonable suspicion of the possibility that he was armed, in which case the "armed" portion of "armed and dangerous" would be satisfied.

You seem to believe is that if the danger is high enough, the fact of the dangerousness is sufficient to demonstrate that there is an arm. While there may be additional facts that leads one to conclude that dangerous leads to the conclusion that one is armed, facts that only demonstrate dangerousness, do not demonstrate that one is armed. This is why there are two criteria, armed AND dangerous.

Right. I was presuming that AZ v Johnson demonstrated that the "armed" portion was automatically satisfied if the "dangerous" portion was satisfied. But apparently that's not the case.

So the "reasonableness" of the "armed" portion for Robinson is debatable. Maybe the situation was sufficient to give rise to reasonable suspicion that he was armed, and maybe it wasn't.

But what I believe cannot be reasonably disputed is that there was no reasonable basis upon which to conclude that Robinson was dangerous in a way that significantly elevates him above the average person, to the point that the officers had reason to fear for their safety.

Another problem with your argument is that you cannot prove an average citizen presents the same amount of danger as a law abiding one. (ie no danger)

Clearly the danger presented by the average citizen must be higher than the danger presented by the law abiding one, but that's not relevant. Either it's reasonable to believe the average citizen is sufficiently dangerous (i.e. willing and able to inflict grave bodily harm upon law enforcement officers) that officers should be in fear of their lives around him, or the average citizen isn't. Which is it? If the former then the officer should clearly approach with his weapon drawn and trained on the average citizen.

In any case, if the average citizen is sufficiently dangerous to justify "reasonable suspicion" of any and every specific citizen's dangerousness, then the "dangerous" portion of the test becomes superfluous and that portion of the test's language is rendered null, something that is not allowable. Moreover, if that logic is allowable, then it follows that in areas where the average citizen is armed, that fact alone would also be sufficient to trigger the "armed" portion of the test. If you combine the two together, then in any area where there is a reasonable chance that a given person is armed, the 4th Amendment protection becomes worthless even if the vast majority of citizens are law abiding as regards crimes which demonstrate willingness to harm.


No, such a construct renders the 4th Amendment guarantee worthless, and is impermissible.

 

[jcutonilli]

There are a number of problems with your current argument. First, your premise that being armed is legal in WV is false. Felons cannot possess arms in WV. That is why Robinson was arrested, he was a felon in possession of a firearm. You completely ignore the possibility. Secondly the standard you are using to judge dangerous is too high. If the officer truly feared for his life, then deadly force is authorized. The Terry stop criteria is meant to be lower than the probable cause necessary to arrest someone. Third, the reasonableness for determining if Robinson was armed is not debatable because Robinson himself conceded the point. The only issue he was debating was the dangerous determination. The last point relates to the first one. As you point out not all crimes justify being considered dangerous. Crimes that are committed with a firearm are dangerous, which is why we prohibit criminals from owning guns. When you load a firearm in a public location known for criminal activity, that makes me reasonably suspicious that he is armed and dangerous. If the clerk or another customer loaded a firearm in the same location, I would want the police to investigate to determine if they are a criminal or a good guy.

 

[kcbrown]

There are a number of problems with your current argument. First, your premise that being armed is legal in WV is false. Felons cannot possess arms in WV.

Felons cannot legally possess arms anywhere in the country. But that is not a valid reason for a search unless it has been pre-established that the person is a felon. Such is not the case here.

That is why Robinson was arrested, he was a felon in possession of a firearm.

That is the reason for the arrest, not the search.

You completely ignore the possibility. Secondly the standard you are using to judge dangerous is too high. If the officer truly feared for his life, then deadly force is authorized.

Then I think it's worth articulating exactly what the fear is. It's fear of something, no?

The Terry stop criteria is meant to be lower than the probable cause necessary to arrest someone.

Correct. But it is not probable cause that I argue for here. "Reasonable suspicion" is sufficient, but it has to be truly reasonable.

Third, the reasonableness for determining if Robinson was armed is not debatable because Robinson himself conceded the point.

I was referring to it being debatable here in the "court of public opinion", as it were.

The only issue he was debating was the dangerous determination. The last point relates to the first one. As you point out not all crimes justify being considered dangerous. Crimes that are committed with a firearm are dangerous, which is why we prohibit criminals from owning guns. When you load a firearm in a public location known for criminal activity, that makes me reasonably suspicious that he is armed and dangerous.

Ah. I wasn't aware that he had explicitly loaded the firearm in public like that. Interesting.

While I don't know that it raises suspicion of criminal activity (which is logically a necessary component to the "dangerousness" question) to the point of "reasonableness" for the purpose of a Terry search, it most certainly raises some suspicion in that it is unusual.

Even so, loading a firearm in public is not a criminal act, either, so it cannot be treated as an indicator of criminality unless it is observed in conjunction with some other action such that the combination would be an indicator of criminality. But that's not the case here, either, since merely being at a public place (a store, in this case) is not such an action, even if there is more criminal activity at that store than at other stores.

If the clerk or another customer loaded a firearm in the same location, I would want the police to investigate to determine if they are a criminal or a good guy.

Why would you want that? Are you going to demand that the police investigate anyone who does anything you believe to be out of the ordinary when it is at a store such as the one in question? On what logical grounds?

 

[jcutonilli]

I was reading the Scotusblog and realized there was a different way to look at this case. The 4A is ultimately about the right to privacy. In order to maintain that right you need to make sure anything you intend to be private is actually kept private. A private conversation in public is not really a private conversation because you are in the public and give up any expectation of privacy/4A protection. Robinson gave up his right to privacy over the firearm when he loaded the firearm in public. He likely gave up his right again because the firearm was "protruding" from his pocket.

 

[kcbrown]

I was reading the Scotusblog and realized there was a different way to look at this case. The 4A is ultimately about the right to privacy. In order to maintain that right you need to make sure anything you intend to be private is actually kept private. A private conversation in public is not really a private conversation because you are in the public and give up any expectation of privacy/4A protection. Robinson gave up his right to privacy over the firearm when he loaded the firearm in public. He likely gave up his right again because the firearm was "protruding" from his pocket.

Where does the 4A protection of the contents of your cellphone fit into that if you use your cellphone in public?

 

[jcutonilli]

Where does the 4A protection of the contents of your cellphone fit into that if you use your cellphone in public?

I don't believe the contents of your cellphone are public, but you can make them public by displaying them on the screen in public or by telling other people.

4A protection of cellphone records of the phone company are the what a new SCOTUS case will decide. http://www.scotusblog.com/2017/08/symposium-carpenter-eyewitness-rule/#more-259093

 

[kcbrown]

I don't believe the contents of your cellphone are public, but you can make them public by displaying them on the screen in public or by telling other people.

Of course. But that doesn't bootstrap your cellphone into something for which its contents are searchable by law enforcement. At least, not yet.

4A protection of cellphone records of the phone company are the what a new SCOTUS case will decide. http://www.scotusblog.com/2017/08/symposium-carpenter-eyewitness-rule/#more-259093

That's records of the phone company. I'm talking about the data on the phone itself.

Admittedly, this has a somewhat tenuous relationship with a firearm. A modern phone is a container for data. A firearm is, at most, a container for ammunition. The only case I can think of in which the parallels would matter would be if there were a question of what kind of ammunition one had loaded.

 

[Biggfoot44]

So what he had the pistol visable in public ? WV is Open Carry . Still not an indication of a crime, thousands of people routinely OC in WV on a regular basis .

 

[jcutonilli]

So what he had the pistol visable in public ? WV is Open Carry . Still not an indication of a crime, thousands of people routinely OC in WV on a regular basis .

It does not appear that you have been following this thread. This case is about a criminal in possession of a firearm and whether the search to find that firearm was legal. One way it was legal is if it met the Terry stop criteria. One of the criterion is reasonable suspicion of being armed and dangerous. Robinson is claiming that it was unreasonable to suspect he was dangerous because WV allows carry. The 4CA has said that someone is "armed and therefore dangerous".

Another way that the search is legal is if he gave up his 4A rights over the firearm by making the firearm public. This was not argued in court, but since he did make it public, he likely lost 4A protection for his firearm and the issue of dangerousness or a crime becomes irrelevant. I recently realized this.

 

[press1280]

So what he had the pistol visable in public ? WV is Open Carry . Still not an indication of a crime, thousands of people routinely OC in WV on a regular basis .

I suppose it was because he was fumbling around with it at a 7 Eleven and then shoved it down his pants. Although in and of itself not a crime, one could make the case that a law abiding carrier would simply carry concealed or openly and not in the way Robinson did.

 

[Biggfoot44]

No, I've been following this .

My point is there was zero justification for the initial stop/ search . Yes , he was ultimately a felon , and busting felons in possession is a good thing . BUT since he was not personally known to the officer as such , or wearing a tee shirt proclaiming his membership in Convicted Felons Benevolent Assn , not relevent in initiating the stop.

Never accused of doing anything illegal, just being armed where carry is legal and very common, and patronizing a convience store.

Fundamental Rights not existing if the exercise is publically known ? So no more Free Speach in public, only by yourself indoors ? Freedom of Religion, only so long as you are not observed entering a place of worship, or observed in posession of Religous text or literature ? Seek peaceful redress of grievences, only so long as you keep silent, and don't make grievences known ?

 

[jcutonilli]

I suppose it was because he was fumbling around with it at a 7 Eleven and then shoved it down his pants. Although in and of itself not a crime, one could make the case that a law abiding carrier would simply carry concealed or openly and not in the way Robinson did.

The en banc opinion stated that he was loading it in a 7 Eleven parking lot that was well known for drug activity.

 

[jcutonilli]

No, I've been following this .

My point is there was zero justification for the initial stop/ search . Yes , he was ultimately a felon , and busting felons in possession is a good thing . BUT since he was not personally known to the officer as such , or wearing a tee shirt proclaiming his membership in Convicted Felons Benevolent Assn , not relevent in initiating the stop.

Never accused of doing anything illegal, just being armed where carry is legal and very common, and patronizing a convience store.

Fundamental Rights not existing if the exercise is publically known ? So no more Free Speach in public, only by yourself indoors ? Freedom of Religion, only so long as you are not observed entering a place of worship, or observed in posession of Religous text or literature ? Seek peaceful redress of grievences, only so long as you keep silent, and don't make grievences known ?

The justification for the stop was not wearing a seat belt. That is sufficient justification for a stop. The issue is the justification for the search. In the case the justification for the search depended on whether he could be considered dangerous. I am simply suggesting that there are other ways to justify the search.

This is a 4A case and not a 1A case. The 4A is about privacy and being free from unreasonable search and seizure. One general rule about privacy is that you can lose your right if you don't protect it. In order to do this, you need to keep whatever you want protected to yourself by not exposing what you want protected to the plain view of outsiders. (ie a private conversation in public is not really considered private) In this case Robinson made the firearm public because he chose to load it in a public space.

 

[Z_Man]

The justification for the stop was not wearing a seat belt. That is sufficient justification for a stop. The issue is the justification for the search. In the case the justification for the search depended on whether he could be considered dangerous. I am simply suggesting that there are other ways to justify the search.

This is a 4A case and not a 1A case. The 4A is about privacy and being free from unreasonable search and seizure. One general rule about privacy is that you can lose your right if you don't protect it. In order to do this, you need to keep whatever you want protected to yourself by not exposing what you want protected to the plain view of outsiders. (ie a private conversation in public is not really considered private) In this case Robinson made the firearm public because he chose to load it in a public space.

why is it manditory for possession of a gun to be private? your privacy logical reach around is suggesting that possession of a firearm in public is justification for a search, which quite frankly is the antithesis of the 2nd and 4th amendment. having a firearm on you in a place where permit less carry is legal does not suspend your right to be free from search. your logic asserts that if i go to VA and open carry a holstered handgun on my belt, i am subject to search on the basis of being in possession of a firearm, legal or not. That belief is fundamentally incorrect.

 

[jcutonilli]

why is it manditory for possession of a gun to be private? your privacy logical reach around is suggesting that possession of a firearm in public is justification for a search, which quite frankly is the antithesis of the 2nd and 4th amendment. having a firearm on you in a place where permit less carry is legal does not suspend your right to be free from search. your logic asserts that if i go to VA and open carry a holstered handgun on my belt, i am subject to search on the basis of being in possession of a firearm, legal or not. That belief is fundamentally incorrect.

The 4th amendment does not prescribe a freedom from search, it prevents unreasonable searches. Given that a search is the act of looking, seeing something in plain sight does not seem to me or the courts to be unreasonable. Do the police need to keep their eyes shut when talking, because that seems to be the only way to prevent them from looking (searching) for things in plain sight.

The second amendment has never been absolute by evidence that concealed carry was not considered something legal for the longest time. My understanding it that this was because it was considered something only criminals would do. Honorable people would open carry. Prohibiting criminals from having firearms is consistent with this practice.

Your premise is false, Robinson was not stop simply because he had a gun, he was stopped because of a traffic violation. The police reasonably suspected that he had a gun because he showed it in public. He was not arrested simply because he had a gun. He arrested because was a felon in possession. I fail to see how any of this is unreasonable let alone fundamentally incorrect.