CA9: Bulge in clothing from a firearm justifies a stop-and-frisk in California

A bulge that appears to be a firearm justifies a stop-and-frisk in jurisdictions where concealing a weapon is presumptively a crime, here, California. United States v. Bontemps, 2020 U.S. App. LEXIS 32227 (9th Cir. Oct. 13, 2020):

Precedent suggests—and common sense confirms—what we now hold here: a bulge that appears to be a concealed firearm can form the basis for a Terry stop in a jurisdiction where carrying a concealed weapon is presumptively unlawful. This holding accords not only with our past cases discussed above but also with the basic mode of analysis under Terry, in which courts “look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).

By contrast, Bontemps’s suggestion that a bulge could never provide reasonable suspicion for a Terry stop to investigate a potential concealed weapon is not justified under Terry. The reasonable suspicion standard “is not a particularly high threshold to reach” and reflects a “‘commonsense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (en banc) (alterations omitted) (quoting Ornelas, 517 U.S. at 695). One can easily imagine bulges that are likely indicative of concealed firearms, especially to a police officer’s trained eye. An ironclad rule precluding Terry stops in those circumstances absent further indicia of wrongdoing would improperly hamstring officers in their investigation of patently unlawful activity.

Such a rule would also run counter to our precedent involving Terry stops for concealed weapons. We have previously held, as explained above, that a reliable 911 tip “that a person is carrying a concealed firearm raises a reasonable suspicion of potential criminal activity” under Terry. Foster, 908 F.3d at 1215. Since that is the case, Terry’s reasonable suspicion standard should likewise permit this result based on an officer’s own observation, grounded in law enforcement experience, that a person is potentially carrying a concealed weapon under his clothing due to the bulge that a firearm creates. See Arvizu, 534 U.S. at 273.

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