                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                             December 31, 2013
                                                             Elisabeth A. Shumaker
                                     PUBLISH                     Clerk of Court

                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 12-2203
 DANIEL MANUEL RODRIGUEZ,

          Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. 1:11-CR-02158-JB-1)
                          (836 F. Supp. 2d 1258)


Scott M. Davidson, The Appellate Law Office of Scott M. Davidson, Albuquerque,
New Mexico, for Defendant-Appellant.

James R. W. Braun, Assistant United States Attorney (Kenneth J. Gonzales, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-
Appellee.


Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District
Judge. *


BALDOCK, Circuit Judge.



      *
        Honorable R. Brooke Jackson, United States District Judge for the District
of Colorado, sitting by designation.
      Section 30-7-1 of the New Mexico Criminal Code defines “[c]arrying a deadly

weapon” as “being armed with a deadly weapon by having it on the person, or in

close proximity thereto, so that the weapon is readily accessible for use.” Section

30-7-2 of the Code is entitled “Unlawful carrying of a deadly weapon.” Subject

to five enumerated exceptions, subsection (A) proscribes “carrying a concealed

loaded firearm or any other type of deadly weapon anywhere[.]” N.M. Stat. Ann.

§ 30-7-2(A). The issue presented in this appeal is whether a police officer who

observes a handgun tucked in the waistband underneath the shirt of a convenience

store employee has reasonable suspicion that the employee is unlawfully carrying a

deadly weapon in violation of § 30-7-2(A), in turn justifying a “stop and frisk.” The

answer is yes.

                                         I.

      We succinctly state the relevant facts. Around 6:00 p.m. on July 27, 2011,

Albuquerque Police Officer Frank Munoz responded to a dispatch informing him that

two employees of the “Pit Stop” convenience store and gas station, located at 6102

Central Avenue SW in a reportedly “high crime” area, were showing each other

handguns. Tr. vol. 3, at 8, 44. Fellow Officer Steven Miller also responded to the

dispatch. Officer Munoz described the store as being “pretty small on the inside.”

Id. at 13. Upon entering the store, Officer Munoz, accompanied by Officer Miller,

observed Defendant Daniel Rodriguez a “couple feet away” stocking shelves. Id. at

14. As Defendant bent over, Officer Munoz noticed a silver handgun tucked in the

                                         2
back waistband of his pants. Defendant’s shirt concealed the handgun when he stood

upright. Officer Munoz told Defendant, “Let me see your hands, and let’s step

outside.” Id. at 51. At the suppression hearing, Officer Munoz testified:

      [Defendant] asked us what for, “What did I do?” And since we were in
      a pretty cramped area when we walked in, I didn’t want myself and
      Officer Miller or [Defendant], all of us, to be in that cramped area in
      case anything occurred, so I told him, “Let’s step outside,” and that I
      needed to ask him a question. He was a little upset and wanted to know
      what he had done. I told him to step outside. He then went past myself
      and Officer Miller to the door. As he pushed the door open once again
      his shirt came up, and I saw the gun, and it was at that time I pulled the
      gun out of the back of his waistband.

Id. at 16. When asked why he removed the gun from Defendant’s waistband, Officer

Munoz stated, “Just for officer safety, until we could figure out what was going on

and why he had a firearm.” Id.

      Outside the store, Officer Munoz promptly asked Defendant why he was

concealing a handgun. Defendant responded that “somebody had shot at him at

that same location at the gas station.” Id. at 25. Officer Munoz asked Defendant

whether he had a permit to carry the handgun. Defendant said he did not. Officer

Munoz instructed Defendant to turn around and place his hands in the frisk position

on a nearby truck. Visible tattoos on Defendant’s legs prompted Officer Munoz, a

former prison guard, to ask Defendant if he had been arrested. Defendant stated he

recently had been released from prison. Following an unremarkable “pat search” of

Defendant, Officer Munoz permitted him to sit on the curb and smoke a cigarette.

Id. at 19. Meanwhile, Officer Miller ran a check of the handgun removed from

                                          3
Defendant’s waistband—a Smith and Wesson model 66–4, .357 magnum revolver

loaded with five rounds of Winchester brand .357 ammunition. The check reported

the handgun was stolen. Officer Munoz handcuffed Defendant and placed him under

arrest. Further investigation confirmed Defendant was a convicted felon.

      A federal grand jury charged Defendant with one count of being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Defendant filed a motion to suppress evidence, claiming a number of

constitutional violations arising out of the foregoing incident. The district court

denied his motion in a lengthy opinion. United States v. Rodriquez, 836 F. Supp. 2d

1258 (D.N.M. 2011). Defendant subsequently entered a conditional plea of guilty

pursuant to Fed. R. Crim. P. 11(a)(2). After the court sentenced him to 30-months

imprisonment, Defendant appealed only his Fourth Amendment claims that Officer

Munoz unreasonably seized him and removed the handgun from his waistband. 1

According to Defendant, “[p]ossession of a concealed firearm in the State of New

Mexico, standing alone, cannot be the basis for the type of investigative detention

and weapons seizure that [he] was subjected to.” Def’s Op. Br. at 15. Notably,

Defendant does not dispute the district court’s findings, which are consistent with

our recitation of the facts. The only question for us is whether the law as applied to

those facts supports Defendant’s claim that Officer Munoz violated his Fourth


      1
         We note that Defendant has never challenged Officer Munoz’s actions, or
the state law applicable thereto, as contrary to the Second Amendment.

                                          4
Amendment rights. We review de novo the district court’s determination that the

officer’s actions were reasonable within the meaning of the Fourth Amendment. See

Ornelas v. United States, 517 U.S. 690, 699 (1996). Exercising jurisdiction pursuant

to 28 U.S.C. § 1291, we affirm.

                                         II.

      Prior to Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court had not decided

whether a sort of lawful police encounter exists “which does not depend solely upon

the voluntary cooperation of the citizen and yet which stops short of an arrest based

upon probable cause.” 2 Id. at 11. In Terry, the Supreme Court concluded a police

officer’s stop and brief detention of an individual and limited search of his person

for weapons—commonly referred to as a “stop and frisk”—does not necessarily

violate the Fourth Amendment’s reasonableness requirement in the absence of

probable cause. Id. at 27. That is to say, a police officer “may in appropriate

circumstances and in an appropriate manner” detain a person to investigate suspected

criminal behavior even though probable cause to arrest is lacking. Id. at 22.




      2
          When a defendant challenges the constitutional validity of a warrantless
arrest, the question is whether probable cause existed for the arrest. Devenpeck v.
Alford, 543 U.S. 146, 152 (2004). Probable cause exists where the facts and
circumstances known to the officer at the time of arrest, and of which the officer had
reasonably trustworthy information, were sufficient to warrant a prudent person in
believing defendant had committed or was committing a criminal offense. Beck v.
Ohio, 379 U.S. 89, 91 (1964). The Government in this case has never suggested
probable cause justified Defendant’s initial seizure.

                                          5
      To determine the reasonableness of a warrantless seizure and accompanying

search in the absence of probable cause, Terry instructs us to ask “whether the

officer’s action was justified at its inception, and whether it was reasonably related

in scope to the circumstances which justified the interference in the first place.” Id.

at 20. Consistent with Terry, a police officer may briefly detain an individual

suspected of criminal activity if the officer has reasonable suspicion based on

articulable facts, together with rational inferences to be drawn therefrom, that

criminal activity is afoot. See United States v. Harris, 313 F.3d 1228, 1234 (10th

Cir. 2002). Additionally, Terry permits the officer to conduct a protective frisk of

such individual if the officer reasonably believes he might be armed and dangerous.

Id. “The stop and the search are independent actions, and each requires its own

justification.” United States v. Gatlin, 613 F.3d 374, 378 (3d Cir. 2010) (citing

Arizona v. Johnson, 555 U.S. 323, 326–27 (2009)).

      “Reasonable suspicion is a particularized and objective basis for suspecting

the person stopped of criminal activity.” United States v. Treto-Haro, 287 F.3d

1000, 1004 (10th Cir. 2002) (internal quotation marks omitted). The circumstances

necessary to arouse reasonable suspicion fall “considerably short of satisfying a

preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266,

274 (2002). In United States v. Sokolow, 490 U.S. 1 (1989), the Supreme Court

explained “probable cause means ‘a fair probability that contraband or evidence of

a crime will be found,’ . . . and the level of suspicion required for a Terry stop is

                                          6
obviously less demanding than that for probable cause.” Id. at 7 (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)).

      The Supreme Court has recognized “there could . . . be circumstances in which

wholly lawful conduct might justify the suspicion that criminal activity was afoot.”

Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam). We too have explained that

“[r]easonable suspicion may exist even where it might be more likely than not that

the individual is not involved in any illegality.” United States v. Guardado, 699

F.3d 1220, 1224 (10th Cir. 2012) (internal quotation marks omitted). “The process

does not deal with hard certainties, but with probabilities. Long before the law of

probabilities was articulated as such, practical people formulated certain common

sense conclusions about human behavior; jurors as factfinders are permitted to do the

same—and so are law enforcement officers.” United States v. Cortez, 449 U.S. 411,

418 (1981).

                                        III.

      The Government does not contest Defendant’s assertion that he was seized

from the outset of his encounter with Officers Munoz and Miller. “[A] person is

seized for Fourth Amendment purposes when, considering all the surrounding

circumstances, the police conduct ‘would have communicated to a reasonable person

that the person was not free to decline the officers’ requests or otherwise terminate

the encounter.’” United States v. King, 990 F.2d 1552, 1556 (10th Cir. 1993)

(quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)). Officer Munoz testified that

                                         7
when he announced his presence by telling Defendant, “Let me see your hands,

and let’s step outside,” Defendant “clearly had no choice” but to do what was asked

of him. Tr. vol. 3, at 51, 54. That constitutes a seizure.

      To justify seizing Defendant at the inception of the encounter, Officer Munoz,

absent probable cause, had to possess reasonable suspicion, that is, some “‘minimal

level of objective justification’ to support the belief that criminal activity [was]

afoot.” Guardado, 699 F.3d at 1224 (quoting Sokolow, 490 U.S. at 7). Officer

Munoz had to be able to articulate, in an objective sense, “something more than

an ‘inchoate and unparticularized suspicion or hunch’” that Defendant was engaged

in criminal activity. Sokolow, 490 U.S. at 7 (quoting Terry, 392 U.S. at 27). So

what could a prudent officer cognizant of the facts and circumstances known to

Officer Munoz reasonably suspect? We find the answer in a sound construction of

§ 30-7-2 of the New Mexico Criminal Code, coupled with some “common sense

conclusions about human behavior” that an experienced officer reasonably could

draw from witnessing Defendant carrying a concealed handgun in an area accessible

to the public. Cortez, 449 U.S. at 418.

                                          A.

      Section 30-7-2 of the New Mexico Criminal Code provides in relevant part:

      A. Unlawful carrying of a deadly weapon consists of carrying a
      concealed loaded firearm or any other type of deadly weapon anywhere,
      except in the following cases:




                                          8
             (1) in a person’s residence or on real property belonging
             to him as owner, lessee, tenant or licensee;

             (2) in a private automobile or other private means of
             conveyance, for lawful protection of the person’s or
             another’s person or property;

                                       ***

             (5) by a person in possession of a valid concealed handgun
             license issued to him by the department of public safety
             pursuant to the provisions of the Concealed Handgun
             Carry Act.

      B. Nothing in this section shall be construed to prevent the carrying of
      any unloaded firearm.

      C. Whoever commits unlawful carrying of a deadly weapon is guilty
      of a petty misdemeanor.

N.M. Stat. Ann. § 30-7-2. 3

      Since the initial version of the statute’s passage in 1963 (then codified at

N.M. Stat. Ann. § 40A-7-2 (1953)), its prohibition against carrying a concealed

loaded firearm has read precisely the same: “Unlawful carrying of a deadly weapon

consists of carrying a concealed loaded firearm . . . anywhere[.]” N.M. Stat. Ann.

§ 30-7-2(A). Subsection (A) as applied to firearms states a clear, definite, and

general offense, and then excepts certain acts or classes of individuals from its

scope. The first two exceptions, subsections (A)(1) and (2), authorize individuals

to carry concealed loaded handguns on their property, and in private automobiles for


      3
        Subsections (A)(3) and (4) except qualified “peace” officers from subsection
(A)’s general prohibition.

                                         9
lawful protection. These two subsections have read substantially the same since

1963. Id. § 30-7-2(A)(1) & (2). In 2001, the New Mexico legislature added a

third exception also applicable to private individuals. Subsection (A)(5) authorizes

a person possessing a valid concealed handgun license from the State’s department

of public safety to carry a concealed loaded handgun in New Mexico.               Id.

§ 30-7-2(A)(5).

      But most assuredly, the Government need not negate these exceptions to N.M.

Stat. Ann § 30-7-2(A) to establish the crime of “carrying a concealed loaded firearm

. . . anywhere” in New Mexico. Id. § 30-7-2(A). In State v. Madsen, 5 P.3d 573

(N.M. Ct. App. 2000), the New Mexico Court of Appeals held that once a suspect

acknowledged he was carrying a concealed loaded handgun, officers had probable

cause to believe he was “committing the crime of unlawfully carrying a deadly

weapon” in violation of N.M. Stat. Ann. § 30-7-2, “and could arrest him.” Id. at 578.

In United States v. Henning, 906 F.2d 1392 (10th Cir. 1990), we held that “[o]nce

the patdown disclosed the presence of a loaded, concealed weapon, there was

probable cause to arrest [the suspect] for carrying a concealed weapon in violation

of N.M. Stat. Ann. § 30-7-2.” Id. at 1396. The manifest proposition for which both

Madsen and Henning stand is carrying a concealed loaded handgun on or about one’s

person in New Mexico is presumptively unlawful.

      This presumption based on the language and structure of § 30-7-2(A) is

well grounded in established principles of statutory construction.      The general

                                         10
rule—which we have no reason to think the New Mexico Supreme Court would

decline to recognize—is a defendant must establish “that he is within an exception

to a penal statute in order to take advantage of it.” State v. Roybal, 667 P.2d 462,

464 (N.M. Ct. App. 1983). Years ago we too recognized that where a general

provision defines the elements of an offense, the Government need not “negative

exceptions” to that provision to charge a crime and obtain a conviction. Nicoli v.

Briggs, 83 F.2d 375, 379 (10th Cir. 1936) (citing McKelvey v. United States, 260

U.S. 353 (1922)). “Nor is it a matter of importance whether the excepting clause is

in parenthesis, or set off by commas, at the beginning of the sentence, or follows a

proviso at the end.” Id.

      The Supreme Court has told us a statutory exception to a crime constitutes an

element of that crime only where the exception “is so incorporated with the language

defining the offence that the ingredients of the offence cannot be accurately and

clearly described if the exception is omitted.” United States v. Cook, 84 U.S.

168, 173 (1872). Accordingly, “where one can omit the exception from [a] statute

without doing violence to the definition of the offense,” United States v. McArthur,

108 F.3d 1350, 1353 (11th Cir. 1997), that exception is not an element of the offense

absent a discernible legislative intent to the contrary. And that means such exception

need not bear upon an investigating officer’s initial determination of reasonable

suspicion where the exception’s applicability would not be readily apparent to a

prudent officer prior to the suspect’s seizure. Cf. id. at 1355 (“Where defendants are

                                         11
better equipped to prove facts that would allow them to take advantage of a statutory

exception, we ordinarily view that exception as an affirmative defense.”).

                                          B.

      At the commencement of their encounter, Officer Munoz knew Defendant

was carrying a concealed handgun in his back waistband. Officer Munoz saw the

handgun because Defendant was bending over stocking shelves. The only express

element of the crime of unlawfully carrying a deadly weapon, as defined in N.M.

Stat. Ann. § 30-7-2(A), that Officer Munoz lacked personal knowledge of bore

upon the handgun’s condition. Was the gun loaded or unloaded? See N.M. Stat.

Ann. § 30-7-2(B) (carrying an unloaded firearm does not violate § 30-7-2(A)). But

Officer Munoz did not have to be certain the handgun was loaded to justify

Defendant’s seizure; he only had to reasonably suspect the gun was loaded. See

Terry, 392 U.S. at 27. “Probable cause does not require the same type of specific

evidence of each element of the offense as would be needed to support a conviction.”

Adams v. Williams, 407 U.S. 143, 149 (1972). Necessarily then, neither does the

less demanding standard of reasonable suspicion require such evidence.

      A prudent officer under the circumstances confronting Officer Munoz could

reasonably suspect Defendant’s handgun was loaded rather than waiting to find out,

thus providing the officer all the suspicion he needed to seize Defendant based on

a violation of § 30-7-2(A). One of the basic rules of gun safety promulgated

worldwide is to “[a]ssume every gun to be loaded . . . and treat it accordingly.” Int’l

                                          12
Hunter Educ. Ass’n, Firearm Safety: Basic Safety Rules, homestudy.ihea.com/

firearmssafety/01actt.htm (visited December 12, 2013). Moreover, that Defendant’s

handgun was probably loaded is simply a “common sense conclusion[] about human

behavior” that Officer Munoz reasonably could draw from the fact Defendant sought

to conceal the gun on his person. Cortez, 449 U.S. at 418. (Defendant has never

suggested he was openly carrying the handgun). The principal purpose of carrying

a concealed handgun is to assail another or defend oneself. An unloaded firearm

serves neither of these purposes well, making the fact that Defendant’s handgun was

loaded a distinct possibility. 4

       Defendant says that instead of seizing him, Officer Munoz simply should have

asked him some questions:

       [T]he officers would have had a sufficient basis to enter the store and
       engage [Defendant] in an inquiry as to whether he had permission or a


       4
          The New Mexico Administrative Code provides “a licensee carrying a
concealed handgun on or about his person in public shall, upon demand by a peace
officer, display his license to carry a concealed handgun.” N.M. Code R.
§ 10.8.2.16(D) (emphasis added). We note Defendant was not a “licensee” because
he had no license to carry a concealed loaded handgun. Even assuming, however,
that the term “licensee” encompasses any individual carrying a concealed handgun,
Officer Munoz, for what it’s worth, appears to have complied with that regulation.
We have held that although “compliance with state law may be relevant to the
court’s Fourth Amendment reasonableness analysis, we have never held it to be
determinative of the constitutionality of police conduct. Instead, compliance with
state law is highly determinative only when the constitutional test requires an
examination of the relevant state law . . . .” Swanson v. Town of Mountain View,
577 F.3d 1196, 1203 (10th Cir. 2009) (internal citation and quotation marks omitted).
Here, our “constitutional test” requires an examination of N.M. Stat. Ann.
§ 30–7–2(A) and its exceptions.

                                         13
      permit for the gun he was carrying. Had [he] either refused to produce
      a valid permit or admitted to wrongdoing, the officers at that point
      might have had reasonable suspicion to detain him to investigate the
      situation further. But in this case, the officers exceeded their authority
      under the law and seized [his] weapon with[out] a reasonable suspicion
      that he was engaging in criminal activity and without an articulable
      basis to believe he was dangerous in any way.

Def’s Op. Br. at 34. (internal citation omitted). We disagree. Although Officer

Munoz could have sought to engage Defendant in a consensual encounter, the law

did not require him to do so—and for good reason.

      Given the confined space in which the parties found themselves at the outset

of their encounter, Officer Munoz exercised sound judgment in declining to question

Defendant before detaining him. Officer Munoz explained, “I didn’t want myself

and Officer Miller or [Defendant], all of us, to be in that cramped area in case

anything occurred[.]” Tr. vol. 3, at 16. No officer reasonably suspecting criminal

activity—as Officer Munoz did here—“should have to ask one question and take the

risk that the answer might be a bullet.”       Terry, 392 U.S. at 33 (Harlan, J.,

concurring). “The reasonableness of [an] officer’s decision to stop a suspect does

not turn on the availability of less intrusive investigatory techniques.” Sokolow, 490

U.S. at 11. “Such a rule would unduly hamper the police’s ability to make swift, on-

the-spot decisions . . . and it would require courts to indulge in unrealistic second-

guessing.” Id. (internal quotation marks omitted).

      What Defendant effectively claims is that the law required Officer Munoz to

inquire into the applicability of § 30-7-2(A)’s exceptions before seizing him. Of

                                         14
course, Officer Munoz did not know at the outset of their encounter whether

Defendant was “in possession of a valid concealed handgun license.” N.M. Stat.

Ann. § 30-7-2(A)(5). Nor did Officer Munoz know whether Defendant was “an

owner, lessee, tenant or licensee” of the convenience store. Id. § 30-7-2(A)(1). That

New Mexico excepts certain acts or classes of individuals from a law that bans the

carrying of a concealed loaded firearm, however, did not negate Officer Munoz’s

reasonable suspicion that Defendant’s possession of a concealed handgun was

unlawful. See Reid, 448 U.S. at 441 (recognizing that “wholly lawful conduct” may

give rise to reasonable suspicion). Neither of these exceptions to § 30-7-2(A)’s

prohibition was readily apparent when Officer Munoz seized Defendant. Officer

Munoz had no affirmative obligation prior to seizing Defendant—at the risk of harm

to himself and others—to inquire of him whether his possession of the handgun fell

within the classes excepted by the statute. Cf. Gatlin, 613 F.3d at 378 (“[U]nder

Delaware law, carrying a concealed handgun is a crime to which possessing a valid

license is an affirmative defense, and an officer can presume a subject’s possession

is not lawful until proven otherwise.”).

      In the end, Defendant grasps at straws. He says the question of whether an

officer may conduct an investigative detention based “solely” on the presence of a

concealed firearm “is analogous to the question of whether an officer can pull over

any motor vehicle he chooses in order to determine whether the driver is properly

licensed and in lawful possession of the car.” Def’s Op. Br. at 27. We think not.

                                           15
To be sure, any construction of a motor vehicle statute permitting such random stops,

however the statute is worded, would be unconstitutional. In Delaware v. Prouse,

440 U.S. 648 (1979), the Supreme Court held the Fourth Amendment prohibits an

officer from stopping a vehicle for the sole purpose of checking the driver’s license

and registration, where neither probable cause nor reasonable suspicion exists to

believe the motorist is driving the vehicle contrary to the laws governing the

operation of motor vehicles. Id. at 650, 663. The Court reasoned:

      It seems common sense that the percentage of all drivers on the road
      who are driving without a license is very small and that the number of
      licensed drivers who will be stopped in order to find one unlicensed
      operator will be large indeed. The contribution to highway safety made
      by discretionary stops selected from among drivers generally will
      therefore be marginal at best. . . . In terms of actually discovering
      unlicensed drivers or deterring them from driving, the spot check does
      not appear sufficiently productive to qualify as a reasonable law
      enforcement practice under the Fourth Amendment.

Id. at 659–60.

      Driving a car, however, is not like carrying a concealed handgun. Driving a

vehicle is an open activity; concealing a handgun is a clandestine act. Because by

definition an officer cannot see a properly concealed handgun, he cannot randomly

stop those individuals carrying such weapon. Officer Munoz responded to a dispatch

reporting two employees of the convenience store were showing each other

handguns. Once at the store, he witnessed Defendant carrying the concealed weapon

only because Defendant was bending over and his shirt was untucked. Moreover,

unlike the random stop of a motorist, we may safely assume the contribution to

                                         16
public safety made by the stop of an individual known to be carrying a concealed

handgun will hardly be insignificant since “[c]oncealed weapons create an immediate

and severe danger to the public.” Terry, 392 U.S. at 31 (Harlan, J., concurring).

      Randomly stopping a vehicle to check the driver’s license and registration is

more comparable to randomly stopping an individual openly carrying a handgun

(which incidentally is lawful in New Mexico). The Supreme Court held the former

unconstitutional. Whether the latter is constitutionally suspect is a question for

another day. But where a police officer in New Mexico has personal knowledge that

an individual is carrying a concealed handgun, the officer has reasonable suspicion

that a violation of N.M. Stat. Ann. § 30-7-2(A) is occurring absent a readily apparent

exception to subsection (A)’s prohibition. Accordingly, Officer Munoz’s initial

seizure of Defendant was “justified at its inception” and therefore passes Fourth

Amendment scrutiny. Terry, 392 U.S. at 22.

                                         IV.

      This brings us to the manner in which Officer Munoz carried out Defendant’s

seizure.   Recall Officer Munoz pulled the gun from Defendant’s waistband as

Defendant was going out the door. Once Defendant promptly acknowledged he did

not have a license to carry the handgun, Officer Miller ran the check that reported

the handgun stolen. Defendant’s sole argument in this regard is that Officer Munoz

unlawfully dispossessed him of his handgun as he exited the convenience store

which, in turn, permitted Officer Miller to run a check of the gun. See Adams, 407

                                         17
U.S. at 145 (analyzing as a Terry search defendant’s contention that the initial

seizure of his pistol, upon which the subsequent search rested, was unlawful).

      “[T]o proceed from a stop to a frisk, the police officer must reasonably suspect

that the person stopped is armed and dangerous.” 5 Johnson, 555 U.S. at 326–27.

Defendant acknowledges he was armed, but claims Officer Munoz had no reason to

believe he was dangerous. We have already observed that a prudent officer could

reasonably suspect Defendant’s handgun was loaded. That alone is enough to justify

Officer Munoz’s action in removing the handgun from Defendant’s waistband for the

protection of himself and others. But even if Defendant’s handgun had not been

loaded, the Supreme Court’s decision in McLaughlin v. United States, 476 U.S. 16

(1986), forecloses his argument that the gun posed no immediate threat to the

officers. In McLaughlin, the Court explained an unloaded handgun is a “dangerous

weapon:”

      [A] gun is an article that is typically and characteristically dangerous;
      the use for which it is manufactured and sold is a dangerous one, and
      the law reasonably may presume that such an article is always
      dangerous even though it may not be armed at a particular time or
      place.


      5
          Oddly, to disarm a “licensee” consistent with N.M. Code R. § 10.8.2.20, a
police officer must have “probable cause to believe it is necessary for the protection
of the licensee, [police] officer or other individual.” (emphasis added). Defendant,
of course, was not a “licensee.” Moreover, whether probable cause to disarm an
individual for purposes of New Mexico state law equates to reasonable suspicion that
a person justly suspected of a crime is armed and dangerous for purposes of the
governing Fourth Amendment analysis has no bearing on the outcome here. See
supra n.4.

                                         18
Id. at 17.

       We will not deny an officer making a lawful investigatory stop the ability to

protect himself from an armed suspect whose propensities are unknown. See Adams,

407 U.S. at 146. Officer Munoz did no more than was required to retrieve the

gun. Officer Munoz was entitled to remove Defendant’s handgun, not to discover

evidence of a crime, but to permit him and Officer Miller to pursue their

investigation without fear of violence. See id. As the Supreme Court observed in

Adams,       “[T]he frisk for weapons might be equally necessary and reasonable,

whether or not carrying a concealed weapon violated any applicable state law.” Id.

Accordingly, Officer Munoz’s act of dispossessing Defendant of his handgun

subsequent to his seizure was “reasonably related in scope to the circumstances

which justified the interference in the first place.” Terry, 392 U.S. at 20.



       For the foregoing reasons, the order of the district court denying Defendant’s

motion to suppress is—

       AFFIRMED.




                                          19
