At 0400 one cold January morning, Des Moines police were dispatched to respond to noise complaints at a hotel.  Upon arriving at the door of the offending unit, the officers heard loud music and smelled marijuana. When the door was opened, the officer saw about 30 people in the motel room.  The officer inquired as to who had rented the room and no one answered. The officer recognized several of the people in the room as gang members. The officer ordered everyone out of the room with their hands up. The officer saw the defendant (Pope) place a handgun in his waistband and then cover it with his shirt.  As Pope left the room, the officer handcuffed him and retrieved the firearm. Pope, a convicted felon, was charged with being felon in possession of a firearm (18 U.S.C. 922).

Pope filed a motion to suppress the firearm arguing that the officer made an unlawful seizure of Pope because he did not have a reasonable suspicion he was involved in criminal activity. Pope then argued that the officer unlawfully searched Pope when he lifted his shirt and retrieved the firearm because although the officer knew Pope was armed, he didn’t have a reasonable suspicion that Pope was dangerous.  The Eighth Circuit disagreed with both arguments.  First, the court held the officer had a reasonable suspicion that criminal activity was afoot when he personally observed Pope place the gun in his waistband (which is a criminal offense in Iowa).  Therefore, the Terry Stop was lawful under the Fourth Amendment.  Second, the court held that that: “We believe that the Supreme Court has already authorized police officers to frisk a suspect reasonably believed to be armed even where it could be that the suspect possesses the arms legally.”  The court then affirmed the Terry Frisk and retrieval of the firearm based purely on the possession of the firearm.

Bruce’s Note:  Surprisingly, the court ignored the facts regarding the marijuana smoke and the presence of know gang members to justify the Terry Frisk of Pope.  Instead, they announced an “Armed and Therefore Dangerous” test for a Terry Frisk (fundamentally eliminating the second prong of the analysis).  This is the second case in as many years where a Circuit has seemingly developed an “Armed and Therefore Dangerous” test for a Terry Frisk.  In United States v. Robinson 846 F.3d 694, (4th Cir. 2017), which was cited by the Eighth Circuit in this case, the Fourth Circuit held that knowledge that a person in a vehicle was armed was enough for a Terry Frisk because of the inherent danger in traffic stops. Although this is great for law enforcement, I imagine sooner or later the Supreme Court is going to have to address this morphing of the Terry Frisk requirements. It is best to continue to articulate the facts to establish both that a suspect is armed AND dangerous, especially when those facts are patently obvious (as they were in this case).

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