The Pennsylvania Supreme Court has ruled that police violate the Fourth Amendment when they stop people simply because they are carrying concealed guns.

The Friday ruling overturns a 1991 state decision that had held that carrying a concealed gun constitutes reasonable suspicion for police to stop the individual and investigate whether the person has the proper gun license, the Allentown Morning Call reports. How Appealing notes the story and links to the majority opinion and two concurrences (here and here).

The Pennsylvania Supreme Court ruled in the Allentown case of Michael Hicks, who was spotted on a surveillance camera either putting a gun into his waistband or adjusting his garments around it in the early-morning hours in June 2014. He walked into a convenience store in Allentown with the outline of the gun visible through his shirt. Hicks returned to his car, and police stopped him before he could exit the parking lot.

It turned out that Hicks had a valid license to carry a concealed firearm. But police detected an odor of alcohol, and when they searched Hicks, they said they found a small bag of marijuana in his pocket. Hicks was charged with driving under the influence and possession of marijuana. He was convicted only on the DUI count.

The Pennsylvania Supreme Court said the investigatory stop was not justified under the 1968 U.S. Supreme Court decision Terry v. Ohio. That case allows police to stop and frisk a person based on a reasonable suspicion that a person is involved in criminal activity and could be armed and dangerous.

In 1991, a Pennsylvania appeals court ruled in Commonwealth v. Robinson that possession of a concealed firearm in public is sufficient to create a reasonable suspicion that a person is dangerous, allowing police to briefly detain the individual to check for the proper license. The decision created what is known as the “Robinson rule” in the state.

In the Friday decision, the state supreme court overturned Robinson and said evidence from Hicks’ detention should have been suppressed. Robinson “contravenes the requirements of the Terry doctrine and thus subverts the fundamental protections of the Fourth Amendment,” the Pennsylvania Supreme Court said.

“We find no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public,” the state high court said. “Absent some other circumstances giving rise to a suspicion of criminality, a seizure upon that basis alone is unreasonable.”

Some people are barred from gun ownership, and a license is required for a concealed firearm, the court said. But “there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance.”

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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