||EIGHTH CIRCUIT UPHOLDS STOP AND FRISK OF MAN SEEN CONCEALING A HANDGUN

EIGHTH CIRCUIT UPHOLDS STOP AND FRISK OF MAN SEEN CONCEALING A HANDGUN

On December 10, 2018, the Eighth Circuit Court of Appeals decided the United States v. Pope[i], in which the court examined whether officers violated the Fourth Amendment when they conducted a stop and frisk of a man that they observed conceal a handgun under his shirt.   The facts of Pope, taken directly from the case, are as follows:

Around 4:00 a.m. one January morning, Des Moines police responded to a complaint about noise at an area motel. Outside the motel room in question, a police officer heard loud music and smelled marijuana, so he knocked on the door. When someone answered, the officer could see about thirty people crowded into what he agreed was “a pretty standard motel room.” After receiving no answer to his question about who had rented the room, the officer, having recognized some of the partygoers as gang members, ordered all the occupants to leave with their hands up.

Someone in the back of the room caught the officer’s attention. The officer saw this man, later identified as Temarco Pope, Jr., place a black pistol in the waistband of his jeans and cover it with his shirt. The officer testified that, as Pope approached the officer to leave, he could see the outline of the gun through Pope’s shirt. He then stopped Pope, who was the last partygoer to leave, and placed him in handcuffs. At that point, the officer disarmed Pope, who afterward admitted he did not have a permit for the gun.[ii]

Ultimately, Pope was indicted under federal law for being a convicted felon in possession of a firearm.  He filed a motion to suppress and argued that the officer lacked reasonable suspicion to detain him since he could have possessed the gun legally.  The district court denied the motion to suppress and Pope pleaded guilty with a right to appeal the denial of his motion to suppress.  He filed a timely appeal with the Eighth Circuit Court of Appeals.

On appeal, Pope raised three arguments that the motion to suppress should have been granted.  First, he argued that the officers lacked sufficient reasonable suspicion of criminal activity to detain him.  Second, he argued that, even if the officers had reasonable suspicion to detain him, they did not have the legal basis to frisk him.  Third, he argued that since the officers handcuffed him prior to the frisk, the frisk was not justified because he was not a threat after he was handcuffed.

Regarding the first issue, whether the officers had reasonable suspicion to stop Pope, the court first stated the basic constitutional principles as follows:

Police officers may briefly detain a person if they have a reasonable articulable suspicion that criminal activity is afoot; a mere hunch will not suffice. United States v. Cotter, 701 F.3d 544, 547 (8th Cir. 2012). We consider “the totality of the circumstances” when determining whether reasonable suspicion supported an officer’s stop. Id.[iii] [emphasis added]

The court also noted that Iowa’s concealed weapon statute makes it a crime (an aggravated misdemeanor) for someone to go “armed with a dangerous weapon concealed on or about the person.”[iv]

Further, the court noted that, under Iowa Code § 724.4(1), having a concealed weapons permit is merely an affirmative defense to the violation of carrying a concealed weapon.  Thus, the court explained, under Iowa state law, “carrying a concealed weapon is presumptively criminal” until the suspect produces a permit to show that he or she is lawfully allowed to do so.[v]  The court also reasoned that, since the permit is an affirmative defense in court, they “see no reason” the suspect should have a different obligation “to produce a permit” when on the street.

The court further explained

[T]he Iowa Legislature seemingly contemplated the kind of stop that the officer performed here when it passed § 724.4(1) by providing that the prohibition against carrying a concealed weapon does not apply to one “who displays to a peace officer on demand a valid permit.” Iowa Code § 724.4(4)(i). That an officer may “demand” to see a permit would seem to assume that the officer may briefly seize the person to make such a demand. It would be odd to say that an officer may “demand” to see a permit during the course of a consensual encounter not amounting to a seizure.[vi]

In light of the above, the court then held that, when the officers observed Pope conceal the handgun, they possessed reasonable suspicion to detain Pope, and determine if he had permit to carry the weapon in that manner.

The court then addressed the second issue, whether officers were justified in frisking Pope.  Pope argued that even if he was armed, the standard to conduct a frisk is a “reasonable belief” that a suspect is “armed and dangerous.”  He argued that the officers had no facts to indicate that he was “dangerous,” in addition to be being “armed.”

The court disagreed with Pope’s argument and stated

We believe that the Supreme Court has already authorized police officers to frisk a suspect reasonably believed to be armed even where it could be that the suspect possesses the arms legally. In Adams v. Williams, the Court emphasized that the purpose of a Terry frisk is not to discover evidence of a crime “but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.” 407 U.S. 143, 146 (1972). The Supreme Court has also intimated at least twice that being armed with a gun necessarily means that the suspect poses a risk to an officer. In Terry, the Court said that a suspect’s being armed “thus presented a threat to the officer’s safety.” 392 U.S. at 28. In another case the Court observed that a bulge in a suspect’s jacket “permitted the officer to conclude that [the suspect] was armed and thus posed a serious and present danger.” Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977).[vii] [emphasis added]

Thus, the court held that the frisk was reasonable under the Fourth Amendment, as even lawfully possessed firearms can still pose a danger to officers.

The court then addressed the last issue, whether it was reasonable to frisk Pope after he was handcuffed.  Pope argued that he was no longer a threat to officers after they handcuffed him and therefore the frisk was unreasonable.  The court disagreed and stated

Handcuffs limit but do not eliminate a person’s ability to perform harmful acts. United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993). Though it is more difficult for him to do so, a person in handcuffs can still use a weapon to injure, and, of course, handcuffs can sometimes fail. Id. Further, unless Pope were to go home in the officer’s handcuffs, at some point the officer would have to remove them, at which point Pope would have unfettered access to his gun. See id. The Fourth Amendment does not require officers to submit themselves to such dangers.[viii] [emphasis added]

Therefore, the court of appeals affirmed the denial of the motion to suppress.

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Citations

[i] No. 18-1264 (8th Cir. Decided December 10, 2018)

[ii] Id. at 1-2

[iii] Id. at 2

[iv] Id. at 2-3 (citing Iowa Code § 724.4(1))

[v] Id. at 4

[vi] Id. at 5

[vii] Id. at 6

[viii] Id.

By |2019-07-02T15:00:52+00:00July 2nd, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.