CA10: Possession of a weapon in NM permits a frisk even though it’s a concealed carry state

Officers received a call that two men were showing each other handguns in a convenience store. When he got there, he could see one who worked there with a gun in his waistband. He took him outside for a frisk. It turned out the gun was stolen, and he was a felon in possession. The frisk was valid, and the New Mexico courts have held that possession of a loaded gun is at least reasonable suspicion. It is a concealed carry state, but the exceptions need not be negated before the frisk. United States v. Rodriguez, 739 F.3d 481 (10th Cir. 2013):

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.

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. …

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