Being armed in Arizona is not reasonable suspicion for a frisk. There must also be reasonable suspicion that a crime might occur. Otherwise, law abiding armed citizens are always subject to a frisk without reasonable suspicion. State v. Serna, 2014 Ariz. LEXIS 140 (August 7, 2014):
P18 Nonetheless, the State argues that a frisk satisfies the Fourth Amendment when the officer has reason to believe that the individual to be frisked is armed and dangerous, even if the officer has no reasonable suspicion of criminal activity. But many of the cases on which the State relies for this proposition are unhelpful because the courts there found reasonable suspicion of criminal activity. See, e.g., United States v. Ellis, 501 F.3d 958, 962 (8th Cir. 2007) (finding “there was reasonable suspicion [of criminal activity] to justify a pat-down search”); United States v. Romain, 393 F.3d 63, 71-72 (1st Cir. 2004) (evaluating whether pat-down was appropriate “following a valid Terry stop” and determining that defendant’s behavior “gave rise to a reasonable suspicion … [of] criminal wrongdoing”); United States v. Davis, 202 F.3d 1060, 1062 (8th Cir. 2000) (stating that “[t]o be constitutionally reasonable, a protective frisk must also be based upon reasonable suspicion that criminal activity is afoot”); United States v. $84,000 U.S. Currency, 717 F.2d 1090, 1098-99 (7th Cir. 1983) (upholding pat down, but finding reasonable suspicion of criminal activity).
P19 Another case on which the State relies, United States v. Bonds, considered the frisk of a drug dealer who arrived at an associate’s apartment while police were executing a search warrant. 829 F.2d 1072, 1073-74 (11th Cir. 1987). The court found it unnecessary to establish reasonable suspicion of criminal activity by the defendant, instead focusing on the inherent dangerousness of the circumstances: the officer was executing a search warrant for drugs, knew Bonds dealt drugs, and “had reason to believe that Bonds was a person to be feared and … was carrying a gun.” See id. at 1074-75. Thus, while Bonds provides some support for the State’s argument, it is distinguishable from the case at hand.
P20 The State urges us to follow United States v. Orman, 486 F.3d 1170, 1173 (9th Cir. 2007), in which the Ninth Circuit determined that “Terry did not cabin the use of officer safety patdowns to lawful investigatory detentions.” In Orman, an off-duty officer, having heard that Orman was carrying a gun in the mall, stopped him and asked if he was armed. Id. at 1171-72. Orman acknowledged that he had a gun in his waistband. Id. at 1172. The officer retrieved the weapon, and Orman was later charged with unlawfully possessing the firearm. Id. The district court denied Orman’s motion to suppress the gun. Id. at 1173. The Ninth Circuit affirmed, reasoning that “a Terry stop-and-frisk ‘constitutes two independent actions.'” Id. at 1174 (quoting United States v. Flippin, 924 F.2d 163, 165 n.2 (9th Cir. 1991)). The court held that the encounter was consensual, but the seizure was nonetheless justified “for safety purposes.” Id. at 1176-77. It concluded that “reasonable suspicion that [a person is] carrying a gun … is all that is required for a protective search under Terry.” Id. at 1176.
P21 We disagree and conclude that Terry allows a frisk only if two conditions are met: officers must reasonably suspect both that criminal activity is afoot and that the suspect is armed and dangerous. See, e.g., Johnson, 555 U.S. at 326. Because the analysis in Orman ignores one prong of Terry, we disagree with the Ninth Circuit’s reasoning.
P22 We also disagree with the Ninth Circuit’s determination that mere knowledge or suspicion that a person is carrying a firearm satisfies the second prong of Terry, which itself involves a dual inquiry; it requires that a suspect be “armed and presently dangerous.” See Terry, 392 U.S. at 30 (emphasis added); see also Johnson, 555 U.S. at 326-27 (observing that “to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous”). In a state such as Arizona that freely permits citizens to carry weapons, both visible and concealed, the mere presence of a gun cannot provide reasonable and articulable suspicion that the gun carrier is presently dangerous.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)