                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4902


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

SHAQUILLE MONTEL ROBINSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:14-cr-00028-GMG-RWT-1)


Argued:   October 29, 2015                Decided:   February 23, 2016


Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Reversed and vacated by published opinion.    Judge Harris wrote
the opinion, in which Senior Judge Davis joined. Judge Niemeyer
wrote a dissenting opinion.


ARGUED:   Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Martinsburg, West Virginia, for Appellant.       Jarod
James Douglas, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.      ON BRIEF:    Kristen M. Leddy,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Martinsburg, West Virginia, for Appellant. William J.
Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:

     On an afternoon in 2014, the Ranson, West Virginia police

department received an anonymous tip that a black man had loaded

a gun in a 7-Eleven parking lot and then concealed it in his

pocket before leaving in a car.             A few minutes later, the police

stopped   a    car    matching   the   description      they   had    been   given,

citing a traffic violation.            Shaquille Montel Robinson, a black

man, was a passenger in the car.                 After Robinson exited the

vehicle   at    police    request,     an    officer    frisked      Robinson   and

discovered a firearm in the pocket of Robinson’s pants.

     Under Terry v. Ohio, 392 U.S. 1 (1968), the police may

conduct a limited pat-down for weapons when there is reasonable

suspicion that a suspect is both armed and dangerous.                        “Armed”

is not a problem in this case:              Assuming the credibility of the

anonymous tip, which we may for purposes of this appeal, the

police had reason to believe that Robinson was armed when they

stopped him.         But “dangerous” is more difficult, and what makes

it difficult is that West Virginia law authorizes citizens to

arm themselves with concealed guns.              Because the carrying of a

concealed firearm is not itself illegal in West Virginia, and

because the circumstances did not otherwise provide an objective

basis for inferring danger, we must conclude that the officer

who frisked Robinson lacked reasonable suspicion that Robinson

was not only armed but also dangerous.                 Accordingly, we reverse

                                        2
the    district        court    decision          denying       Robinson’s      motion   to

suppress the evidence uncovered by this unlawful search.



                                              I.

                                              A.

       At    3:55      p.m.    on     March       24,     2014,    the    Ranson     police

department forwarded an anonymous call to Officer Crystal Tharp.

At a hearing conducted by the magistrate judge, Tharp testified

that the caller “advised that he had witnessed a black male in a

bluish greenish Toyota Camry load a firearm, conceal it in his

pocket, and there was a white female driver.”                             J.A. 43.       The

caller indicated that the car had just left the location, which

he identified as the parking lot of a 7-Eleven on North Mildred

Street.      Immediately adjacent to that 7-Eleven is the Apple Tree

Gardens apartment complex, regarded by the officers in this case

as the highest-crime area in Ranson.

       The caller advised that the Camry had headed south on North

Mildred      Street.          Two    officers,       Captain       Robbie      Roberts   and

Officer Kendall Hudson, separately left the station to find the

car.        Officer    Hudson       spotted    a    car    matching      the    description

traveling      on     North    Mildred    Street,         and   noticed     that   the   two

occupants were not wearing seatbelts, a traffic violation under

West Virginia law.            Relying on the seatbelt violation, he pulled

over   the     car,     approximately         two   to     three    minutes      after   the

                                              3
anonymous call had been received and roughly three-quarters of a

mile from the 7-Eleven.

     Officer Hudson approached the driver’s side of the car with

his weapon drawn and asked the female driver for her license and

registration.          She     complied.         At    the   hearing          before      the

magistrate judge, Hudson testified that he also initially asked

Robinson for his identification, but then realized that asking

him to reach into his pocket was “probably not a good idea”

because “[t]his guy might have a gun.”                          J.A. 66.           Instead,

Hudson asked Robinson to step out of the car.

     At this point, Captain Roberts had arrived at the scene as

backup.        Roberts    testified       that    he    approached           Robinson     and

opened the passenger-side door.                  As Robinson was exiting the

car, Roberts asked Robinson if he had any weapons.                           In response,

Roberts    testified,        Robinson   gave      a    “weird     look.”           J.A.   88.

Roberts ordered Robinson to put his hands on top of the car and

began     to   frisk     him   for   weapons,         discovering        a    firearm      in

Robinson’s pants pocket.

     Captain        Roberts    whispered       “gun”    to   Officer          Hudson,     and

Hudson     handcuffed     Robinson      and      ordered     him    to       sit    on    the

sidewalk.       According to the officers’ testimony, Robinson was

cooperative throughout his encounter with the police, and made

no furtive gestures or movements suggesting that he intended to

reach    for    a   weapon.       After    frisking        him,    however,         Roberts

                                           4
recognized      Robinson       from     prior     criminal      proceedings       and

confirmed that Robinson was a convicted felon.

                                          B.

      A grand     jury   in    the     Northern   District     of    West   Virginia

indicted Robinson on 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).      Robinson moved to suppress the evidence against

him — the gun recovered during the traffic stop of March 24 — on

the ground that the frisk was unlawful.                      The district court

referred   the    motion      to   a   magistrate   judge      for   a   report   and

recommendation.

      The magistrate judge conducted a hearing, taking testimony

from all of the officers involved in the events of March 24:

Officer Tharp, Officer Hudson, and Captain Roberts.                         A fourth

officer, Trooper D.R. Walker, testified as to the high level of

criminal activity at the Apple Tree Garden apartment complex

next to the 7-Eleven at which Robinson had been seen loading his

weapon.    Following the hearing, the magistrate judge issued a

report that recommended granting Robinson’s motion to suppress.

      The magistrate judge agreed with the government that the

initial stop of the car was justified by the observed seatbelt

violation.      But the frisk, the magistrate judge concluded, was

not   supported    by    a    “reasonable      belief   that    [Robinson]     [was]

armed and presently dangerous,” as required to justify a pat-

                                          5
down    for     weapons    under     Terry.        J.A.    124     (quoting     Ybarra    v.

Illinois, 444 U.S. 85, 86 (1979)).                      The problem, the magistrate

judge explained, was that in light of West Virginia law allowing

for    both     open    and    concealed      carrying       of    loaded      guns,    “the

content of the tip provided to the police, while reporting the

individual        was     armed,     does         not    contain     any      information

demonstrating that the individual was engaging in any objective

or     particularized         dangerous     behavior.”            J.A.   136    (emphasis

added) (internal quotation marks omitted).

       The magistrate judge also considered the facts surrounding

the    officers’        encounter    with     Robinson,       including        the    “high-

crime” status of the apartment complex next to the 7-Eleven.

Based on the officers’ testimony, the magistrate judge concluded

that     both    the     car’s     driver     and       Robinson     were     cooperative

throughout, and that Robinson had made no “furtive gestures,

movements or inconsistent statements” suggesting nervousness or

an intent to reach for a weapon.                   J.A. 131.       Apart from what one

officer perceived as a “weird look” — which the magistrate judge

deemed    a     “subjective       impression”           insufficient     to    justify    a

frisk,    J.A.     137    —    the   magistrate          judge    concluded      that    the

government had failed to “articulate any specific fact, other

than    [Robinson’s]          possession    of      a    firearm    in   a     high    crime

neighborhood, a legal activity in the state of West Virginia,



                                              6
which would justify the officer’s suspicion that [Robinson] was

dangerous.”       J.A. 138.

     After    the          government   submitted        objections,     the   district

court rejected the magistrate judge’s report and recommendation

in relevant part and denied the suppression motion.                          Because it

did not conduct a second hearing, the district court relied on

the record created before the magistrate judge.                              And in the

district court’s view, a reasonable suspicion that Robinson was

armed   in    a    high-crime         area,       when   combined     with    Robinson’s

failure to answer when asked by an officer if he was armed,

translated        to       a    reasonable        suspicion    that     Robinson      was

dangerous.

     Robinson conditionally pleaded guilty to being a felon in

possession    of       a    firearm,    preserving       his   right   to    appeal   the

denial of his suppression motion, and was sentenced to 37 months

of incarceration.              This timely appeal followed.



                                              II.

     In reviewing the denial of a motion to suppress, we examine

the district court’s factual findings for clear error and its

legal conclusions de novo.                United States v. Elston, 479 F.3d

314, 317 (4th Cir. 2007).                We view the evidence in the light

most favorable to the government, as the prevailing party before



                                              7
the district court.             United States v. Black, 707 F.3d 531, 534

(4th Cir. 2013).

                                             A.

       This case is governed by the familiar two-part standard of

Terry    v.    Ohio,    which    considered        the      lawfulness       of   “stop    and

frisk”    procedures      under       the    Fourth      Amendment.          392    U.S.    1.

Under Terry, an officer may conduct a brief investigatory “stop”

— including a traffic stop, see Arizona v. Johnson, 555 U.S.

323, 330–32 (2009) — based on reasonable suspicion of criminal

activity,      without    the    need       for   a   warrant     or     probable     cause.

Terry, 392 U.S. at 30; see, e.g., United States v. Holmes, 376

F.3d    270,    275    (4th   Cir.    2004).          But    a   valid    stop     does    not

automatically         entitle    an    officer        to    conduct      a    “frisk,”     or

protective pat-down of outer clothing for weapons.                                See United

States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998) (officer

“must have justification for a frisk or a ‘pat-down’ beyond the

mere justification for [a] traffic stop”).                          Rather, because a

frisk is a “serious intrusion upon the sanctity of the person,”

Terry, 392 U.S. at 17, it is subject to a separate standard:

The police may frisk a person who has been legally stopped only

if the officer has a reasonable and articulable suspicion that

the person is “armed and presently dangerous to the officer or

to others.”      Id. at 24; Holmes, 376 F.3d at 275.



                                              8
       In deciding whether a frisk is justified, we “examine the

‘totality of the circumstances’ to determine if the officer had

a ‘particularized and objective basis’ for believing that the

detained suspect might be armed and dangerous.”                     United States

v. George, 732 F.3d 296, 299 (4th Cir. 2013) (quoting United

States v. Arvizu, 534 U.S. 266, 273 (2002)).                     As the district

court   noted,       multiple   factors    may   together      create     reasonable

suspicion that a suspect is armed and dangerous even if none of

them would be sufficient taken alone.              Id. at 300.       The standard

is objective, so a frisking officer’s subjective impressions are

not relevant to our analysis.                 Id. at 299; United States v.

Hernandez-Mendez, 626 F.3d 203, 212 (4th Cir. 2010).

       Here, Robinson does not contest the validity of the initial

traffic       stop    by   Officer   Hudson.      Nor    could      he.     As   the

magistrate judge explained, under Whren v. United States, 517

U.S. 806 (1996), approving “pretextual” stops under the Fourth

Amendment, evidence of a seatbelt violation justified the stop

regardless of whether the officer actually was motivated by the

anonymous tip.         Accordingly, the only question we must decide is

whether the subsequent frisk was lawful — that is, whether the

officers had reasonable suspicion that Robinson was “armed and

dangerous.”          And our inquiry is narrower still because Robinson

does    not    dispute     reasonable     suspicion     that   he    was   “armed,”

choosing not to contest the reliability of the anonymous tip to

                                          9
the police. 1   All that remains for us to decide is whether there

was reasonable suspicion that Robinson was “dangerous.” 2   For the

reasons set out below, we conclude that there was not.




     1 Though Robinson addressed the issue in his brief, at oral
argument he expressly declined to rely on any challenge to the
reliability of the anonymous tip. Accordingly, for purposes of
this appeal, we will assume without deciding that the tip was
reliable.

     2 Our dissenting colleague suggests that we may dispense
with this inquiry entirely, because when the Supreme Court says
“armed and dangerous” what it really means is “armed and thus
dangerous” — or, put more simply, “armed.”       See post at 9-14.
But the government does not dispute that “armed” and “dangerous”
are separate and independent conditions of a lawful Terry frisk.
See Gov’t Br. at 16-17 (given reasonable suspicion that Robinson
was armed, “the dispositive issue becomes whether a reasonable
prudent . . . officer would be warranted in the belief that his
safety . . . was in danger”).        We think that is a wise
concession.   The Supreme Court for decades has adhered to its
conjunctive   “armed   and   dangerous”   formulation,   giving  no
indication that “dangerous” may be read out of the equation as
an expendable redundancy.         Indeed, where the Court has
elaborated,   it   has   highlighted   the   independent   role  of
“dangerousness,” holding in Michigan v. Long, 463 U.S. 1032
(1983), that Terry authorizes a “frisk” of an automobile when a
police officer possesses reasonable suspicion “that the suspect
is dangerous and the suspect may gain immediate control of
weapons,” id. at 1049.      Like other courts applying Terry in
jurisdictions that routinely permit the public possession of
firearms, we take the Supreme Court at its word: A Terry frisk
requires reasonable suspicion that a person is “both armed and a
danger to the safety of officers or others.”       United States v.
Leo, 792 F.3d 742, 748 (7th Cir. 2015); see Northrup v. City of
Toledo Police Dep’t, 785 F.3d 1128, 1132 (6th Cir. 2015)
(“Clearly established law required [the officer] to point to
evidence that [the subject] may have been armed and dangerous.
Yet all he ever saw was that [the subject] was armed — and
legally so.”) (emphasis in original) (internal citation and
quotation marks omitted).


                                 10
                                                  B.

       All parties agree that the anonymous tip to the police,

giving rise to a reasonable suspicion that Robinson was carrying

a loaded and concealed firearm, is critical to the government’s

case on dangerousness.                   Accordingly, we start with the tip, and

consider first whether reasonable suspicion that Robinson was

armed,       in       and   of    itself,       generated         reasonable      suspicion      of

dangerousness sufficient to justify a Terry frisk.

       In a different time or jurisdiction, it might well have.

If carrying a concealed firearm were prohibited by local law,

then a suspect concealing a gun in his pocket by definition

would       be    presently         engaged      in       criminal    activity     involving      a

deadly       weapon.             And    where    local       law     tightly     regulates      the

concealed carry of firearms, permitting it only in rare cases,

then a concealed gun may remain a strong indication of criminal

activity.             In    those      circumstances,         there       is   precious    little

space between “armed” and “dangerous,” and a police officer may

be justified in conducting a Terry frisk on reasonable suspicion

that    a    suspect         is    concealing         a    gun.      Indeed,     Terry    itself,

approving         a    protective        frisk    where       an     officer     had   reason   to

believe a robbery suspect was armed with a concealed handgun,

see    392        U.S.      at    24,    was     decided       at     a   time    when    handgun




                                                  11
possession was illegal.           See Northrup v. City of Toledo Police

Dep’t, 785 F.3d 1128, 1131 (6th Cir. 2015) (Sutton, J.). 3

     But times have changed, and we decide this case against a

different legal background.            As Officer Tharp testified, none of

the conduct reported in the anonymous tip she received — that a

man had loaded a gun in the parking lot of a 7-Eleven and then

concealed     it   in    his   pocket     before   leaving      in   a   car       —    is

currently illegal under West Virginia law.                 On the contrary, in

West Virginia it is legal to carry a gun in public, see W. Va.

Code § 61-7-3; United States v. Perkins, 363 F.3d 317, 327 (4th

Cir. 2004), and it is legal to carry a concealed firearm with a

permit, see W. Va. Code §§ 61-7-3, 61-7-4.                      And permits are

relatively    easy      to   obtain;    West   Virginia    is   a    “shall    issue”

state,   in    which     the    sheriff    must    issue    a   license       to       any

applicant who submits a complete and accurate application, pays

the $75 fee, and certifies that he or she meets certain basic

requirements, such as age and training.              Id. § 61-7-4.        Today in

West Virginia, in other words, there is no reason to think that

public gun possession is unusual, or that a person carrying or




     3 Similarly, Pennsylvania v. Mimms, 434 U.S. 106 (1977), a
per curiam opinion on which the dissent relies, arose from an
arrest at a time when local law appears to have strictly limited
the public possession of firearms, allowing it only in narrow
circumstances. See 1943 Pa. Laws 487; 1972 Pa. Laws 1577.


                                          12
concealing a weapon during a traffic stop is anything but a law-

abiding citizen who poses no danger to the authorities.

     “[A]s      public   possession     and     display      of   firearms    become

lawful under more circumstances, Fourth Amendment jurisprudence

and police practices must adapt.”             United    States      v.    Williams,

731 F.3d 678, 691 (7th Cir. 2013) (Hamilton, J., concurring).

Within    the     last    decade,      federal     constitutional          law    has

recognized      new   Second    Amendment       protections       for    individual

possession of firearms, see McDonald v. City of Chicago, 561

U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570

(2008), and state law has followed, providing expanded rights to

carry guns in public, see Williams, 731 F.3d at 691.                          And as

conduct once the province of law-breakers becomes increasingly

commonplace, courts must reevaluate what counts as suspicious or

dangerous     behavior       under    Terry     when    it     comes     to   public

possession of guns.       See Northrup, 785 F.3d at 1132–33.

     We   have    recognized     as    much    already,       holding    in   United

States v. Black that when a state authorizes the open display of

firearms, public possession of a gun is no longer suspicious in

a way that would authorize a Terry stop.                     707 F.3d at 539–40.

“Permitting      such    a     justification,”         we     explained,      “would

eviscerate      Fourth   Amendment      protections         for   lawfully       armed

individuals in those states.”                 Id. at 540.         Several of our

sister circuits have reached similar conclusions.                      In Northrup,

                                        13
for    instance,     the   Sixth   Circuit      held     that    where    state   law

permits     the     open   carry    of    firearms,       the    police     are   not

authorized by Terry to conduct a stop or frisk of a person

brandishing a gun in public.             785 F.3d at 1131–33.           Likewise, in

United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000), the

Third Circuit invalidated a Terry stop based on the suspicion of

gun possession at a street festival because local law permitted

public possession of firearms:            “For all the officers knew, even

assuming     the    reliability     of    the     tip    that    [the     defendant]

possessed a gun, [the defendant] was another celebrant lawfully

exercising his right under Virgin Islands law to possess a gun

in public.”        Id. at 218.     And in United States v. Leo, 792 F.3d

742 (7th Cir. 2015), the Seventh Circuit quoted approvingly from

Judge Hamilton’s concurrence in Williams, id. at 752, and held

that   in   a     “concealed-carry”      state,    the    police    could    neither

Terry “frisk” nor search a backpack in a preschool parking lot

on the suspicion that it contained a gun, id. at 749–50, 751–52

(rejecting        search    of     backpack       in     light     of     “important

developments in Second Amendment law together with Wisconsin’s

[concealed-carry] gun laws”).

       Applying the same reasoning, we conclude that in states

like West Virginia, which broadly allow public possession of

firearms, reasonable suspicion that a person is armed does not

by itself give rise to reasonable suspicion that the person is

                                         14
dangerous for Terry purposes.                    Where the state legislature has

decided that its citizens may be entrusted to carry firearms on

public streets, we may not make the contrary assumption that

those firearms inherently pose a danger justifying their seizure

by law enforcement officers without consent.                       Cf. Northrup, 785

F.3d    at    1133      (police     have    “no      authority    to   disregard”      the

decision of the legislature to allow public possession of guns

by using such possession to justify Terry stops and frisks).

Nor    will   we     adopt     a   rule    that      “would    effectively       eliminate

Fourth Amendment protections for lawfully armed persons,” id. at

1132    (citation        and    quotation        marks    omitted),    authorizing       a

personally intrusive frisk whenever a citizen stopped by the

police is exercising the constitutional right to bear arms.                           See

id.; Black, 707 F.3d at 540.

       Allowing police officers making stops to frisk anyone who

is thought to be armed, in a state where the carrying of guns is

widely permitted, would “create[] a serious and recurring threat

to the privacy of countless individuals,” Arizona v. Gant, 556

U.S. 332, 345 (2009) (holding that police may not search a car

“whenever      an       individual         is    caught       committing     a     traffic

offense”).         It    also      would    “giv[e]      police   officers       unbridled

discretion” to decide which of those legally armed citizens to

target for frisks, implicating concerns about abuse of police

discretion that are central to the Fourth Amendment.                             See id.;

                                                15
Black, 707 F.3d at 541.                 As Judge Hamilton warned in Williams,

once    a    state     legalizes        the    public        possession          of    firearms,

unchecked police discretion to single out anyone carrying a gun

gives rise to “the potential for intentional or unintentional

discrimination             based       on     neighborhood,             class,        race,     or

ethnicity.”         731 F.3d at 694.

       Those concerns are especially pressing in the context of

traffic stops like the one in this case.                              Under Whren, on which

the government relies here, the police may conduct a pretextual

stop for a routine traffic violation — like Robinson’s seatbelt

violation — when their real motive is to investigate some other

unsupported hunch.              517 U.S. at 813.                  And under Michigan v.

Long,    463      U.S.      1032   (1983),       reasonable            suspicion       that    the

subject      of     such    a   traffic       stop    is    armed       and     dangerous      may

authorize not only a frisk of the suspect’s person but also a

“frisk” of the passenger compartment of the car.                                 Id. at 1049–

50.     So     if    public     possession       of    a        firearm    in    an    open-    or

concealed-carry            state   were     enough         to    generate        a    reasonable

suspicion of dangerousness, then pretextual traffic stops would

allow police officers to target perfectly law-abiding gun owners

for frisks and also limited car searches, at police discretion

and on the basis of nothing more than a traffic violation.                                    That

is    effectively        the    same    result       that       the    Supreme       Court   found

unacceptable in Gant, 556 U.S. at 345 (forbidding car searches

                                               16
incident to arrest for minor traffic violations), and it is no

more acceptable here.

      We recognize that in this case, Robinson’s possession of a

gun   was    not    in    fact    legal      because   Robinson    was    a    convicted

felon.      But a frisk must be justified on the basis of “what the

officers knew before they conducted their search,” see Florida

v. J.L., 529 U.S. 266, 271 (2000) (emphasis added), and at the

time of the frisk, Captain Roberts had no reason to suspect

Robinson of a prior felony conviction.                    Nor, we have made clear,

does the mere chance that a gun may be possessed in violation of

some legal restriction satisfy Terry:                        Where it is lawful to

possess a gun, unlawful possession “is not the default status.”

Black,      707    F.3d   at     540;    accord    Northrup,     785    F.3d    at   1132

(quoting Black, 707 F.3d at 540); Ubiles, 224 F.3d at 217–18.

      We    also     recognize,         of   course,   the    serious    concerns     for

officer safety that underlie the Terry frisk doctrine and may be

especially         pronounced      during       traffic      stops.       See,       e.g.,

Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977) (per curiam)

(police may order driver out of vehicle during traffic stop to

protect officer safety).                And we do not doubt that recent legal

developments regarding gun possession have made the work of the

police more dangerous as well as more difficult.                         See Williams,

731 F.3d at 694.           Several states — though not West Virginia —

have responded to this concern with “duty to inform” laws, which

                                              17
require individuals carrying concealed weapons to disclose that

fact to the police if they are stopped.                            See, e.g., Alaska Stat.

§ 11.61.220; La. Stat. § 40:1379.3; Neb. Rev. Stat. § 69-2440;

N.C. Gen. Stat. § 14-415.11; Okla. Stat. tit. 21, § 1290.8. 4                                     And

where      the     police      have   reasonable           suspicion      that    a    person       is

armed,          that    person’s      failure     to       so    inform     the       police,       as

required by law, may well give rise to a reasonable suspicion of

dangerousness.

       But as we have explained, under Supreme Court precedent, a

more “generalized risk to officer safety” during traffic stops

is   not        enough    to    justify    the        intrusion         worked    by    a     frisk.

Sakyi, 160 F.3d at 168–69.                       The Supreme Court has struck a

different         balance,      authorizing       a        protective      frisk       only    on    a

“specific,         articulable        suspicion        of       danger”    in     a    particular

case.       Id. at 168.         And for the reasons given above, once state

law routinely permits the public possession of weapons, the fact

that       an    individual      is     armed,    in       and     of   itself,       is    not     an

objective indication of danger.                            Absent some other basis for

suspecting danger — a question to which we turn next — police

officers         must    put    their    trust        in    West    Virginia’s         considered


       4
       Other states — though again, it seems, not West Virginia —
require those carrying or concealing firearms to disclose that
fact to the police in response to a police question, but not
otherwise.   See, e.g., Ariz. Rev. Stat. § 13-3112; Ark. Code
§ 5-73-315; 430 Ill. Comp. Stat. 66/10; S.C. Code § 23-31-215.


                                                 18
judgment that its citizens may safely carry concealed weapons in

public and during traffic stops.           See Northrup, 785 F.3d at 1133

(responding    to   government     argument   that   prohibiting   stop    and

frisk of individual carrying a gun would leave officer with no

recourse but to “hope that [the suspect] was not about to start

shooting”:       “[This] hope . . . remains another word for the

trust that Ohioans have placed in their State’s approach to gun

licensure and gun possession.”).

                                    C.

     Because     West   Virginia   authorizes    the   public   carrying   of

weapons, reasonable suspicion that Robinson was armed did not by

itself justify a Terry frisk.              But even a lawfully possessed

firearm can pose a threat to officer safety, and so we also must

consider whether a frisk was authorized in light not only of

reasonable suspicion that Robinson was armed but also of the

surrounding circumstances.         See Adams v. Williams, 407 U.S. 143,

146 (1972) (Terry frisk may be conducted on reasonable suspicion

that a suspect is “armed and presently dangerous,” regardless of

whether “carrying a concealed weapon violate[s] any applicable

state law”). 5      The government relies on two additional factors:


     5 We have no quarrel with the dissent’s observation that a
gun may be dangerous to a police officer whether or not it is
legally possessed. See post at 15. Where, for instance, there
is not only reasonable suspicion that a person is armed but also
reasonable suspicion that he is engaged in a drug offense or


                                      19
Robinson’s failure to answer when asked by Captain Roberts if he

had a gun, and Robinson’s presence in a high-crime area.                  We

conclude that in the context of this case, neither is probative

of dangerousness, and that the totality of the circumstances,

taken    together,    see   George,    732      F.3d   at   300   (reasonable

suspicion   depends    on   totality       of   the    circumstances,   taken

together), did not authorize the frisk of Robinson. 6




some other serious crime, or there are other objective indicia
of danger, then a Terry frisk may be justified whatever the
legal status of the gun in question, consistent with Adams. See
407 U.S. at 147-48 (armed subject of frisk suspected of drug
offenses, sitting alone in car at 2:15 a.m., and unwilling to
cooperate with police).    So in the many cases in which the
police stop individuals they believe to be armed on reasonable
suspicion of an actual crime, there may well be enough to show
reasonable suspicion that the suspect is dangerous as well as
armed.   What makes this case different, however, is that the
only “crime” of which the police reasonably suspected Robinson
was a seatbelt violation; the government has never argued that
there was reasonable suspicion of any other crime, nor that
danger to the police may be inferred from a person’s failure to
wear a seatbelt.

     6  The   government  contends   that  our   totality-of-the-
circumstances analysis must take account of the actual reason
for the stop — investigation of a tip regarding gun possession —
and not the pretextual reason on which the government relies to
justify the stop — a seatbelt violation.     For the proposition
that it can have it both ways under Whren, the government can
cite only an unpublished decision from our circuit that does not
address the issue directly. Without deciding the question here,
we may assume that the government is correct for purposes of
this appeal, and we will consider the anonymous tip along with
the other circumstances surrounding the traffic stop.



                                      20
      The government first argues — and the district court agreed

— that Robinson’s non-answer when asked by Captain Roberts if he

was   carrying    a   gun     contributed      to    reasonable    suspicion      that

Robinson was dangerous.            Taking the full context into account,

as we must, and in light of both the rapidity with which events

unfolded    and   the       fact   that     Robinson     was      under    no   legal

obligation to inform the police of his weapon, we think that the

government’s      contention        gives      too     much    significance        to

Robinson’s failure to tell the officers that he was armed.

      According to the officers’ testimony before the magistrate

judge,     Robinson was cooperative throughout his encounter with

the police, and he never made any gesture that they construed as

reaching for a weapon.          And the magistrate judge found — without

dispute by the district court — that Captain Roberts’s inquiry

to Robinson came virtually simultaneously with the frisk itself:

Roberts “asked [Robinson] if he had any firearms on his person

as [Robinson] was exiting the vehicle,” and upon perceiving a

“weird look,” ordered Robinson to place his hands on top of the

car and conducted the frisk.              J.A. 118.       Even construing this

evidence in the light most favorable to the government, there

was a very limited time window during which Robinson could have

responded   before      the    frisk   made     the    question    moot,    and    his

failure to interject an answer quickly enough did not provide an



                                          21
objective      indication        that      he     was     about        to    abandon     his

cooperative posture and become dangerous. 7

     That is particularly so given that West Virginia does not

appear    to   require    that       people      carrying      firearms       inform     the

police of their guns during traffic or other stops.                               Where a

state    has   decided    that       gun   owners       have     the    right    to    carry

concealed weapons without so informing the police, it would be

inconsistent      with    that       legislative        judgment       to    subject     gun

owners    to   frisks    because        they     stand    on     their      rights.      Cf.

Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to

see permit for gun being brandished in public is “particularly

acute”    where   state    has       not   only    legalized        open      carry    of   a

firearm but also “does not require gun owners to produce or even

carry    their    licenses    for       inquiring        officers”).            Again,      we

recognize      that   under      a      different        legal     regime,      different

reasonable inferences could be drawn from a failure to answer an

officer’s question about a gun.                   See supra at 17–18.                 But in

light of West Virginia law, and under all of the circumstances

     7 We note that the government does not emphasize the “weird
look” in its argument. Nor do we understand the district court
to have given significant weight to the “weird look” in its
analysis.     In our view, Captain Roberts’s perception that
through his look Robinson was saying, “[O]h, crap,” “I don’t
want to lie to you, but I’m not going to tell you anything,”
J.A. 89, was sufficiently subjective that it cannot constitute
an   objective  or   articulable  factor  supporting  reasonable
suspicion of dangerousness.



                                            22
of   this    case,       Robinson’s         failure     to      respond       immediately       to

Captain     Roberts’s       question         does    not     add       appreciably       to    the

reasonable suspicion calculus.

       The government also relies on the fact that the relevant

conduct     in    this    case     —   the     loading       of    a    gun   in    a   7-Eleven

parking lot and the stop of the car approximately three-quarters

of a mile away — happened in or near a “high-crime area.”                                      And

the Supreme Court indeed has held that presence in a high-crime

area   may       contribute      to     a     finding      of      reasonable       suspicion.

Illinois     v.    Wardlow,      528        U.S.    119,     124       (2000).      Under     the

circumstances here, however, we conclude that this factor does

not lend support to an inference that Robinson was a danger to

the police.

       As our cases have indicated, the relative significance of a

high-crime       area,    like     other      reasonable          suspicion        factors,     is

context-specific.             In       some     cases,       for       instance,        we    have

sustained a Terry frisk in part because it occurred in a high-

crime area late at night.                   See, e.g., George, 732 F.3d at 300.

In Black, however, we rejected a position substantially the same

as the government’s here: that even if public gun possession

alone does not justify a Terry stop where the law permits the




                                               23
open carrying of firearms, gun possession in a high-crime area

at night would be sufficient.         707 F.3d at 542. 8

     We think that Black applies here.                Whether or not a high-

crime    environment   might   make    other    ambiguous       conduct       —   for

instance, fleeing from a police officer, see Wardlow, 528 U.S.

at 124 — more likely to be criminal or dangerous, we conclude

that it sheds no light on the likelihood that an individual’s

gun possession poses a danger to the police.                   Where public gun

possession is legal, high-crime areas are precisely the setting

in which we should most expect to see law-abiding citizens who

present no threat to officers carrying guns; there is more, not

less, reason to arm oneself lawfully for self-defense in a high-

crime    area.   Cf.   McDonald,      561   U.S.   at    790    (“[T]he       Second

Amendment   right   protects    the    rights    of    minorities       and    other

residents   of   high-crime    areas.”).        Presence       in   a   high-crime

area, in other words, is as likely an explanation for innocent

and non-dangerous gun possession as it is an indication that gun

possession is illegal or dangerous, and it does nothing to help

police tell the difference.




     8 We note that most of our cases assessing the relevance of
a high-crime area involve nighttime police encounters, whereas
the events at issue here transpired during the afternoon. Given
our holding, we need not consider the effect of a daylight
setting on any inferences that otherwise might be drawn from a
high-crime location.


                                      24
     As     discussed      above,      in    states       allowing        the     public

possession     of     weapons,       authorizing      a     Terry     pat-down        in

connection    with    a    traffic    stop   whenever       there    is    reasonable

suspicion that a person is armed would give the police unchecked

discretion in deciding which armed citizens to frisk.                           Allowing

such automatic frisks only in high-crime areas would do nothing

to address that concern; instead, it would guarantee that the

costs of such intrusions would be borne disproportionately by

the racial minorities and less affluent individuals who today

are most likely to live and work in neighborhoods classified as

high-crime.        See Black, 707 F.3d at 542.                Given the lack of

probative value associated with a high-crime area when it comes

to gun possession, there is no justification for adopting such a

rule.       “The     new   constitutional      and        statutory       rights    for

individuals to bear arms at home and in public apply to all,”

and “[t]he courts have an obligation to protect those rights” in

neighborhoods labeled “bad” as well as “good.”                        Williams, 731

F.3d at 694.

     Again, we recognize that expanded rights to openly carry or

conceal guns in public may give rise to genuine safety concerns

on the part of police officers, as well as other citizens, who

more often will find themselves confronting individuals who may

be armed.      But where a sovereign state has made the judgment

that its citizens may safely arm themselves in public, we cannot

                                        25
presume that public gun possession gives rise to a reasonable

suspicion    of   dangerousness,          no    matter    what    the      neighborhood.

And   because     the   rest   of    the       circumstances       surrounding      this

otherwise unremarkable traffic stop do not add appreciably to

the reasonable suspicion calculus, we must conclude that Terry

did not authorize the police to conduct a frisk of Robinson.

Accordingly,      we    reverse     the    decision       of    the    district     court

denying     Robinson’s    motion     to        suppress   and     vacate     Robinson’s

conviction and sentence.



                                          III.

      For   the   foregoing       reasons       the   judgment        of   the   district

court is

                                                               REVERSED AND VACATED.




                                           26
NIEMEYER, Circuit Judge, dissenting:

      The majority acknowledges that when Captain Robbie Roberts

confronted Shaquille Robinson following a lawful traffic stop,

Roberts had reasonable suspicion to believe that Robinson was

armed with a loaded gun concealed in his pocket.                 Nonetheless,

it   concludes   that   Captain   Roberts    could    not   have    reasonably

believed that he was in danger because, for all Roberts knew,

Robinson could have been carrying a concealed weapon pursuant to

a license issued by West Virginia.               The majority reasons that

Roberts was required to presume that Robinson was “a law-abiding

citizen who pose[d] no danger to the authorities.”                 Ante at 13.

Therefore, it holds, the frisk, which Roberts conducted for his

safety and the safety of a fellow officer, violated the Fourth

Amendment.

      This   remarkable   holding    establishes      a   new   approach   that

will make traffic stops substantially more dangerous to police

officers and that is based, I respectfully submit, on several

basic flaws of law and logic.             First, the majority’s approach

modifies the Supreme Court’s existing criteria for frisks by

requiring indicia of dangerousness distinct from and in addition

to the danger posed by an individual’s possession of a firearm

during the course of a forced police encounter.                  The majority

fails   to    accept    the   Supreme      Court’s    explanation     that    a

reasonable    officer     need    have    only    a   suspicion     that     the

                                     27
individual            who    has    been     lawfully       stopped       is    armed     and    thus

dangerous.            See Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977)

(per curiam); Terry v. Ohio, 392 U.S. 1, 28 (1968).

      Second, the fact that Robinson could have been licensed to

carry       a    concealed         weapon     does    not    minimize          the    danger     that

prompted         the     Supreme      Court     in    Terry    to     authorize          protective

frisks          under    the       Fourth    Amendment.         The       Supreme        Court   has

explained         that       the    dangerousness       justifying         the        frisk   arises

from the combination of the police forcing an encounter with a

person          and    that     person’s      possession       of     a    gun,       whether    the

possession of a gun was legal or not.                            See Adams v. Williams,

407 U.S. 143, 146 (1972).                       The frisk authorized by Terry is

justified by dangerousness, not by criminal conduct.

      Third,            in    hypothesizing          innocence      to         various     isolated

aspects of Robinson’s conduct -- for instance, that he could

have possessed the gun legally and that its possession in a high

crime area is consistent with “innocent and non-dangerous gun

possession,” ante at 24 -- the majority overlooks the Supreme

Court’s guidance that “reasonable suspicion need not rule out

the possibility of innocent conduct.”                          Navarette v. California,

134   S.        Ct.     1683,      1691     (2014)    (internal       quotation          marks   and

citation omitted).                  It also overlooks the totality of the real

world circumstances that leaves no doubt that Captain Roberts

had     a       reasonable          suspicion        that     Robinson          was     armed    and

                                                 28
dangerous.      Not only did Roberts have good reason to believe

that Robinson possessed a loaded gun in his pocket, he also had

information     indicating         that     Robinson        had    both       loaded    and

concealed    the    gun    while    in     a    well-known        drug    market.       And

Captain Roberts’ suspicion was only heightened when, prior to

the frisk, he asked Robinson whether he had a gun and Robinson

responded    with   an     “‘oh,    crap’        look[],”    taken       by   Roberts    as

indicating that Robinson did not want to deny possession of a

gun and thus lie, but also did not want to confess to possessing

one.

       With the majority’s new approach to what justifies a frisk

during a lawful stop, police officers will be confused and their

efforts in protecting themselves impaired.                    Traffic stops, which

the Supreme Court has noted are already “especially fraught with

danger,” Michigan         v.   Long,      463    U.S.   1032,      1047   (1983),      will

become yet more dangerous as a result.                          The majority, I am

afraid,   has   forgotten       Terry’s         fundamental       principle     that    the

Fourth Amendment does not “require . . . police officers [to]

take unnecessary risks in the performance of their duties.”                             392

U.S. at 23.

       I respectfully dissent.




                                           29
                                      I

      The facts are not disputed.              At about 3:55 p.m. on March

24, 2014, an unidentified man called the Ranson, West Virginia

Police Department and told Officer Crystal Tharp that he had

just “witnessed a black male in a bluish greenish Toyota Camry

load a firearm [and] conceal it in his pocket” while in the

parking lot of the 7-Eleven on North Mildred Street.                    He advised

Officer Tharp that the Camry was being driven by a white woman

and had “just left” the parking lot, traveling south on North

Mildred Street.

      The 7-Eleven on North Mildred Street is adjacent to the

Apple   Tree   Garden   Apartments,       and    the     area   constitutes     the

highest crime area in Ranson, which itself is a high crime city.

One officer who testified said that in his short one and a half

years as a state trooper, he experienced at least 20 incidents

of   drug   trafficking   in   the    7-Eleven      parking      lot.      Another

officer testified that “when [she] was doing drug work[,] . . .

[she] dropped an informant off to buy drugs” at the 7-Eleven

parking lot and observed “three other people waiting for drugs

in   that   parking   lot.”    She    added       that    she   had     personally

received    “numerous   complaints”       of    people    running     between   the

parking lot and the apartment complex, making drug transactions.

Another officer testified that “[a]nytime you hear Apple Tree or

7-Eleven, your radar goes up a notch.”                   Accordingly, when the

                                      30
Ranson Police Department received the tip about someone loading

a gun in the 7-Eleven parking lot, its officers’ “radar [went]

up a notch,” and the officers went “on heightened alert.”

      While still on the telephone with the caller, Officer Tharp

relayed the information to Officer Kendall Hudson and Captain

Roberts.      Hudson immediately left the station to respond to the

call, and Roberts left soon thereafter to provide backup.

      When    Officer    Hudson    turned     onto   North   Mildred   Street   a

short time later, he observed a blue-green Toyota Camry being

driven by a white female with a black male passenger.                   Noticing

that they were not wearing seatbelts, Hudson effected a traffic

stop at a location approximately seven blocks, or three-quarters

of a mile, south of the 7-Eleven.             He estimated that the traffic

stop took place two to three minutes after the call had been

received at the station.

      After calling in the stop, Officer Hudson approached the

driver’s     side   of   the   vehicle    and   asked   the   driver    for   her

license, registration, and proof of insurance.                  He also asked

the    male     passenger,        the    defendant      Robinson,      for    his

identification before realizing that that was “probably not a

good idea” because “[t]his guy might have a gun[,] [and] I’m

asking him to get into his pocket to get his I.D.”                     Instead,

Officer Hudson asked Robinson to step out of the vehicle.



                                         31
     At this point, Captain Roberts arrived and opened the front

passenger door.        As Robinson was exiting the vehicle, Captain

Roberts asked him if he had any weapons on him.                           Instead of

responding verbally, Robinson “gave [Roberts] a weird look” or,

more specifically, an “‘oh, crap’ look[].”                       Roberts took the

look to mean, “I don’t want to lie to you, but I’m not going to

tell you anything [either].”                At this point, Captain Roberts

directed    Robinson      to   put   his    hands   on     top   of    the   car   and

performed a frisk for weapons, recovering a loaded gun from the

front pocket of Robinson’s pants.                After conducting the frisk,

Captain Roberts recognized Robinson and recalled that he had

previously been convicted of a felony.

     After Robinson was charged with the illegal possession of a

firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), he

filed   a   motion   to    suppress    the      evidence    of   the     firearm   and

ammunition    seized      during     the   frisk,    arguing      that    the     frisk

violated his Fourth Amendment rights.

     The district court denied the motion, concluding that the

officers possessed reasonable suspicion to believe that Robinson

was armed and dangerous.           Relying on Navarette, 134 S. Ct. at

1688-89, the court concluded that the anonymous caller’s

eyewitness knowledge and the contemporaneous nature of the

report indicated that the tip was sufficiently reliable to

contribute to the officers’ reasonable suspicion.                     The court

                                           32
explained that the “anonymous tip that [Robinson] [had] recently

loaded a firearm and concealed it on his person in a public

parking lot in a high-crime area,” when combined with Robinson’s

“weird look and failure to verbally respond to the inquiry

whether he was armed,” gave rise to a reasonable suspicion that

Robinson was armed and dangerous.

     Robinson thereafter pleaded guilty to the gun possession

charge, reserving his right to appeal the district court’s

denial of his suppression motion, and the district court

sentenced him to 37 months’ imprisonment.          Robinson filed this

appeal, challenging Captain Roberts’ frisk under the Fourth

Amendment.


                                      II

     Robinson’s appeal is defined as much by what he concedes as

by what he challenges.            Robinson rightfully acknowledges that

the Ranson police had the right to stop the vehicle in which he

was a passenger after observing a traffic infraction, see Whren

v. United States, 517 U.S. 806, 819 (1996), and also that they

had the authority to direct him to exit the vehicle during the

valid traffic stop, see Maryland v. Wilson, 519 U.S. 408, 415

(1997).      He   also   correctly    concedes   that    the    anonymous   tip

received     by   the    Ranson    Police   Department    was       sufficiently

reliable     to   justify    the    officers’    reliance      on    it.    See


                                      33
Navarette, 134 S. Ct. at 1688-89 (concluding that an anonymous

911 call “bore adequate indicia of reliability for the officer

to   credit     the   caller’s    account”       in   large   part     because,     like

here, the caller “claimed eyewitness knowledge of the alleged

[conduct]” and the call was a “contemporaneous report” that was

“made    under    the    stress    of   excitement      caused    by       a   startling

event”).       Finally, and most importantly, he does not contest the

district       court’s   conclusion       that    the    police      had       reasonable

suspicion to believe that he was armed, surely recognizing that

he perfectly matched the caller’s specific description of the

individual whom the caller claimed to have just seen with a gun.

       Robinson’s argument is that while the officers may well

have had good reason to suspect that he was carrying a loaded

concealed weapon, they lacked objective facts indicating that he

was also dangerous, so as to justify a frisk for weapons, since

an officer must reasonably suspect that the person being frisked

is both armed and dangerous.               Robinson notes, in this regard,

that    West    Virginia    residents      may    lawfully     carry       a    concealed

firearm if they have received a license from the State.                           See W.

Va. Code § 61-7-4.          Because the police did not know whether or

not Robinson possessed such a license, he contends that the tip

that a suspect matching his description was carrying a loaded

firearm    concealed       in    his    pocket    was    a    report    of      innocent



                                          34
behavior that was not sufficient to indicate that he posed a

danger to others.

       The majority accepts this argument and, in doing so, adopts

its several flaws, both as a matter of law and as a matter of

logic.       Thus, it establishes a new principle in tension with

basic Supreme Court jurisprudence, holding that, “in states like

West     Virginia,    which     broadly      allow      public      possession        of

firearms, reasonable suspicion that a person [lawfully stopped]

is armed does not by itself give rise to reasonable suspicion

that the person is dangerous for Terry purposes.”                      Ante at 14-

15.    Under the majority’s new standard, a frisk during a traffic

stop must be justified by more than suspicion that the person

who has been stopped is armed.

       The    majority     achieves   this     position    by       dissecting     the

armed-and-dangerous requirement into two distinct requirements,

holding      that   dangerousness     must     exist    separately         and   to   a

greater      extent   than     the    danger    created        by    the    person’s

possession of a gun during a lawful but forced police encounter.

Respectfully,       this    fundamentally      twists    the     Supreme      Court’s

armed-and-dangerous standard and, in any event, defies common

sense.

       In Terry, where the Court first authorized a stop and frisk

under the Fourth Amendment without probable cause, the Court was

confronted with two distinct issues:                 first, whether a person

                                        35
could   be   stopped      on    suspicion         of   criminal      conduct      that    fell

short of probable cause; and second, whether the officer could

conduct a protective frisk or “pat down” during the stop.                                   As

the Court posed the second issue, “We are now concerned with

more than the governmental interest in investigating crime; in

addition, there is the more immediate interest of the police

officer in taking steps to assure himself that the person with

whom    he   is    dealing     is     not    armed      with    a    weapon      that    could

unexpectedly and fatally be used against him.”                             Terry, 392 U.S.

at 23 (emphasis added).               Accordingly, the frisk that the Court

ultimately        authorized     had    to    be       “limited      to    that    which    is

necessary for the discovery of weapons which might be used to

harm the officer.”             Id. at 26.          In approving the frisk before

it,    the   Court    observed        that    “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

weapons.”       Id. at 30.      The concern -- the danger -- was thus the

presence of a weapon during a forced police encounter.                                     The

Court    said      this   explicitly         in    approving        Officer       McFadden’s

frisk, noting that “a reasonably prudent man would have been

warranted in believing petitioner was armed and thus presented a

threat to the officer’s safety.”                       Id. at 28 (emphasis added).

In this fashion, the Court approved the well-known standard that

during a Terry stop, an officer can frisk a suspect if the

                                             36
officer reasonably believes that the suspect is armed and thus

dangerous, or, in short, “armed and dangerous.”

     The      Court     again    relied       on    this   exact     understanding        in

Mimms, where an officer, after making a routine traffic stop,

“noticed      a    large      bulge”    under       the    defendant’s        jacket    and

therefore conducted a frisk.               434 U.S. at 107.           Holding that the

frisk   was       clearly     justified,      the    Mimms   Court     explained        that

“[t]he bulge in the jacket permitted the officer to conclude

that Mimms was armed and thus posed a serious and present danger

to   the   safety        of     the    officer,”      adding        that     “[i]n     these

circumstances, any man of ‘reasonable caution’ would likely have

conducted the ‘pat down.’”                Id. at 112 (emphasis added).                   The

only evidence of Mimms’ dangerousness on which the Court relied

was the bulge indicating that Mimms was armed.                               It was thus

Mimms’ status of being armed during a forced police encounter

(the traffic stop) that posed the danger justifying the frisk.

     The      armed-and-dangerous          appellation         is     thus     a     unitary

concept, and no further evidence of dangerousness is required to

justify a frisk once a police officer reasonably suspects that

an individual who has been lawfully stopped is armed.                                   This

approach rests on the well-recognized background level of risk

attendant whenever police use their authority to effect a stop.

This holds true whether the temporary detention is a traditional

Terry   stop       to   investigate      an    officer’s      reasonable           suspicion

                                              37
“that the person apprehended is committing or has committed a

criminal offense,” Arizona v. Johnson, 555 U.S. 323, 326 (2009),

or a stop to enforce a jurisdiction’s traffic laws, see id. at

331    (“[T]he       risk       of    a    violent       encounter        in       a     traffic-stop

setting      ‘stems       not    from      the     ordinary          reaction       of    a   motorist

stopped      for     a    speeding          violation,          but    from        the    fact       that

evidence of a more serious crime might be uncovered during the

stop’” (quoting Wilson, 519 U.S. at 414)); see also Mimms, 434

U.S.    at     110       (emphasizing            that        the      Court        had    previously

“expressly         declined           to     accept       the        argument          that    traffic

violations      necessarily               involve       less    danger        to       officers      than

other types of confrontations”).                         To be sure, this general risk

does not, by itself, justify a frisk, but it is a component

background      risk       such       that    when      an     officer    suspects            that    the

person he has stopped -- a person whose propensities are unknown

-- is “armed with a weapon,” Terry, 392 U.S. at 23, the officer

is    “warranted         in     the    belief       that       his    safety       . . .      [is]     in

danger,” id. at 27.                    A Terry frisk is then lawful, with or

without any additional signs indicating that the individual may

be dangerous.            See United States v. Rodriguez, 739 F.3d 481, 491

(10th Cir. 2013) (concluding that “an officer making a lawful

investigatory stop [must have] the ability to protect himself

from    an    armed       suspect          whose     propensities         are          unknown”       and

therefore rejecting the defendant’s argument that the officer

                                                   38
“had no reason to believe he was dangerous” even though the

officer had seen a handgun tucked into the waistband of his

pants).

        The cases relied on by the majority miss the mark.                       They do

not concern what justifies a frisk after a lawful stop is made.

Their holdings instead relate to whether possession of a gun

gives    rise    to     a    reasonable      suspicion       of   criminal    activity,

therefore justifying a Terry stop in the first instance.                               See

United    States      v.     Black,   707     F.3d    531,    540    (4th    Cir.   2013)

(“[W]here a state permits individuals to openly carry firearms,

the   exercise     of       this   right,    without    more,       cannot   justify   an

investigatory detention” (emphasis added)); Northrup v. City of

Toledo Police Dep’t, 785 F.3d 1128, 1133 (6th Cir. 2015) (“[T]he

Ohio legislature has decided its citizens may be entrusted with

firearms on public streets.              The Toledo Police Department has no

authority to disregard this decision . . . by detaining every

‘gunman’    who    lawfully        possesses      a   firearm”       (emphasis      added)

(citation omitted)); United States v. Williams, 731 F.3d 678,

692-93 (7th Cir. 2013) (Hamilton, J., concurring) (“A Terry stop

does not require probable cause for an arrest, of course, but it

still     requires          reasonable      suspicion    of       genuinely    criminal

conduct.     Based on the new Wisconsin law, that is hard to find

on this record”); United States v. Ubiles, 224 F.3d 213, 214 (3d

Cir. 2000) (“[T]he stop and subsequent search were unjustified

                                             39
because the precondition for a ‘Terry’ stop was not present in

this   case”).            These    cases       thus       have    little    bearing     on    the

present case, where both Robinson and the majority acknowledge

that the police had the right to detain Robinson and the only

issue is whether Captain Roberts acted reasonably to protect his

safety      and     the     safety       of     his       fellow     officer    during       that

encounter.          The     majority          has   thus       conflated     the     nature    of

suspicion     for        making    a    stop       in    the     first    instance    with    the

nature of suspicion for conducting a frisk during a lawful stop.

The first requires a suspicion of criminal conduct, while the

latter requires suspicion of weapons possession.                                It is clear

that if the officer has a reasonable suspicion that the person

he has stopped is armed, the officer may conduct a frisk.

       In    sum,        established         law        imposes     two    requirements       for

conducting a frisk:                first, that the officer have conducted a

lawful investigatory stop, which includes both traditional Terry

stops as well as traffic stops; and second, that during the

valid but forced encounter, the officer reasonably suspect that

the    person       is     armed       and     therefore          dangerous.         Both    were

satisfied in this case, thus justifying Captain Roberts’ frisk

under the Fourth Amendment as a matter of law.

       Also, as a matter of logic, the majority’s position -- that

because Robinson could have been licensed under West Virginia

law to carry a concealed weapon, Captain Roberts could not have

                                                   40
reasonably believed that he was dangerous -- is flawed.                        It does

not follow that because an individual has a license to carry a

concealed weapon, he does not pose a threat to officers’ safety

during a lawful but forced police encounter.                       Indeed, when a

person is stopped on the highway for a traffic infraction, that

person poses a heightened risk of danger simply by possessing a

firearm during the encounter, whether the weapon is possessed

legally    or   not.      As    the    Supreme      Court    has   explained,     “The

purpose    of   this    limited   search        [i.e.,   the    frisk]    is   not   to

discover evidence of 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.”     Adams, 407 U.S. at 146 (emphasis added).                  The majority’s

position directly conflicts with this, concluding that . . .

when gun possession is legal, “there is no reason to think that

a person carrying or concealing a weapon during a traffic stop

is anything but a law-abiding citizen who poses no danger to the

authorities.”     Ante at 12-13.

     Contrary      to     the   majority’s         thesis,     nothing    about      the

assumed recent liberalization of gun laws changes the proper

analysis.       The majority’s analysis rests on the premise that,

without some other basis for suspecting danger, an officer can

reasonably      suspect    that       an   armed     individual     who    has    been

                                           41
detained during a traffic stop only presents a threat to the

officer’s safety if the stop takes place in a jurisdiction where

gun possession is generally illegal.                        See ante at 18 (“[O]nce

state law routinely permits the public possession of weapons,

the fact that an individual is armed, in and of itself, is not

an    objective     indication         of   danger”).             But    the    presumptive

lawfulness of an individual’s gun possession in a particular

state does nothing to negate the reasonable concern an officer

would almost invariably feel for his own safety when forcing an

encounter with an unknown individual who is armed with a gun and

whose propensities are unknown.                See Rodriguez, 739 F.3d at 491.

       The final flaw in the majority’s approach is attributable

to its focus on isolated, innocent possibilities of Robinson’s

conduct -- that he could be an innocent citizen carrying a gun

as     authorized      by     a    lawfully        issued    license;         that    he    was

coincidentally in a high-drug zone; and that he had no legal

duty to tell Captain Roberts of any license to carry a gun --

and     its    failure      to      consider       the    totality       of     the     actual

circumstances presented.              To be sure, the observations that the

majority makes about the possibilities of innocent conduct in

isolated circumstances may be valid, but in the context of the

real    world     circumstances,         considered          as    a    whole,       they   are

neither       likely    nor       relevant.          As     an    initial      matter,      the

majority’s      analysis          completely   overlooks          the    Supreme       Court’s

                                              42
recognition that “reasonable suspicion need not rule out the

possibility of innocent conduct.”                     Navarette, 134 S. Ct. at 1691

(emphasis       added)           (internal      quotation          marks    and     citation

omitted).        Rather, the inquiry must, as the Supreme Court has

repeatedly instructed, be based on common sense, see Navarette,

134 S. Ct. at 1690; Illinois v. Wardlow, 528 U.S. 119, 125

(2000); Ornelas v. United States, 517 U.S. 690, 695 (1996), and

must be focused on what a reasonable officer would believe in

light    of    the     totality      of   the    circumstances.            The    majority’s

innocent possibilities analysis, by contrast, fails to give due

weight    to     two       key    facts   known       to   Captain       Roberts    and    the

“commonsense judgments and inferences” that Roberts could draw

from those facts when taken together.                      Wardlow, 528 U.S. at 125.

     First, the reliable tip in this case was not just that an

individual       matching         Robinson’s         description        possessed   a     gun.

Rather, the caller reported that he had observed an individual

“load a firearm [and] conceal it in his pocket” while in the

parking lot of the 7-Eleven on North Mildred Street, a location

that the officers knew to be a popular spot for drug-trafficking

activity.       Indeed, at the evidentiary hearing, a state trooper

who had been on the force only a year and a half estimated that

he had experience with at least 20 incidents of drug trafficking

in that particular parking lot.                      Another officer testified that

“when    [she]       was    doing    drug    work[,]       .   .    .   [she]    dropped    an

                                                43
informant     off     to    buy   drugs    there”    and    observed    “three       other

people waiting for drugs in that parking lot.”                       A third officer

explained, “[a]nytime you hear . . . 7-Eleven, your radar goes

up   a     notch.”         Knowing    that    the   7-Eleven       parking     lot    was

frequently used as a site for drug trafficking, a reasonable

officer could legitimately suspect that an individual who was

seen both loading and concealing a gun in that very parking lot

may well have been doing so in connection with drug-trafficking

activity.      See United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002) (recognizing the “numerous ways in which a firearm

might     further     or    advance    drug    trafficking”).         Thus,    that    an

individual matching Robinson’s description was reported to have

recently loaded and concealed a firearm while in a parking lot

so   well    known     for    its     connection     to     drug   activity     greatly

reinforces the reasonableness of Captain Roberts’ suspicion that

Robinson was both armed and dangerous.

         Second,    when    Captain      Roberts    asked    Robinson,    as    he    was

getting out of the car, whether he was carrying any firearms,

Robinson gave the officer an “‘oh, crap’ look[],” which Roberts

took to mean, “I don’t want to lie to you, but I’m not going to

tell you anything [either].”                 Surely, this was not the reaction

of   a    person     who    legally    possessed     a    concealed    weapon    for    a

benign purpose.            In other words, Robinson’s response to Captain

Roberts’     question       not   only    confirmed       Roberts’    suspicion       that

                                             44
Robinson     had     a    concealed       weapon,        it    also       made    it    eminently

reasonable       for      Captain       Roberts         to     suspect         that     Robinson’s

possession of a concealed weapon was illegal and dangerous.                                     See

W. Va. Code § 61-7-3 (making it a crime to carry a concealed

deadly weapon without a license or other lawful authorization).

That    West    Virginia         does    not      impose       a    legal       duty     on    those

licensed       to    carry       concealed         weapons         to     report       their    gun

possession      when       stopped      by    police         does       not    obviate     Captain

Roberts’       suspicion,        based       on    common       sense,         that    Robinson’s

silence was telling.

       At    bottom,       the     fact       that      Captain          Roberts       reasonably

suspected that Robinson, who had been detained pursuant to a

valid traffic stop, was armed and thus dangerous fully supports

the legality of the frisk.                        But even beyond that, a proper

consideration        of    the     totality        of    the    circumstances            presented

here    --   the     information         provided        by     the      reliable        tip,   the

lawlessness prevalent at the relevant location, and Robinson’s

incriminating reaction during the traffic stop                                 -- establishes,

beyond doubt, that Captain Roberts’ belief that Robinson was

armed and dangerous was reasonable and that a protective frisk

of     Robinson’s         person     during        a     valid        stop       was    therefore

warranted.          “In    these     circumstances,             any      man    of     ‘reasonable

caution’ would likely have conducted the ‘pat down.’”                                         Mimms,

434 U.S. at 112.

                                                  45
        With an analysis that finesses the context that supported

the officers’ suspicions, the majority reaches a highly abstract

result because “times have changed,” ante at 12, and officers

must allow that everyone can possess a gun during a traffic stop

absent other indicators of dangerousness.          But, in light of all

the   circumstances    known   to   Captain   Roberts,      I    submit   that

Roberts would unquestionably have been criticized for not having

taken   reasonable    precautions   if,   after   failing       to   conduct   a

frisk, something untoward had happened.

      I would affirm the district court’s denial of Robinson’s

motion to suppress, which was undoubtedly correct.




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