Cases

United States v. Pope 8thCIR 10DEC2018

Armed and Therefore Dangerous

At 0400 police respond to a noise complaint at a Des Moines motel. When the police arrive they find 30 people in a motel room and no one claims to be the person who rented the room. The police also notice known gang members in the room. When ordered to leave with theirs hands up, the party-goers were filing out when an officer noticed a person in the back of the room (the defendant Pope) place a handgun in his waistband. Pope was the last to leave and when he exited the officer placed him in handcuffs, disarmed him, and arrested him when he admitted he had no permit. It is a crime in Iowa to carry concealed without a permit and the permit is only an affirmative defense. It was later discovered Pope was a convicted felon and he was prosecuted as a felon in possession of a firearm.

Pope sought to have the firearm excluded from evidence, arguing that the stop and removal of the firearm was done in violation of the Fourth Amendment. Specifically, Pope argued that, even if the officer had reasonable suspicion to stop him, the officer did not have reasonable suspicion to frisk him for weapons as well. The Eighth Circuit embraced the “armed and therefore dangerous” recently espoused by the Fourth Circuit in United States v. Robinson, 846 F.3d 694, 701 (4th Cir. 2017) and held:

“ … we think it remains reasonable to allow an officer to frisk someone whom the officer has lawfully stopped and whom the officer reasonably believes is armed.”

Editor’s Note:  There are now two circuits that have held that police may lawfully conduct a Terry Frisk with only a reasonable suspicion the person is armed and without specifically articulating how that person is dangerous. In Robinson, the Fourth Circuit attributed the danger to the dangerous situation inherent in a vehicular stop. In this case, it was enough for the Eighth Circuit that the person was armed without articulation of anything more.

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