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The Law Office of Timothy P. Koller, PLLC > Uncategorized  > 4th Circuit Court of Appeals Makes Terrible Decision

4th Circuit Court of Appeals Makes Terrible Decision

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Another blow against gun rights from the so-called “most conservative circuit”. I guess they are “conservative” to the extent that they will allow suspected terrorists to be held without trial,charge or constitutional protections at Club Gitmo. But the 4th Circuit has just written the Fourth Amendment out of the Constitution for those of us who legally carry firearms for self defense. The decision was rendered in the appeal of a case in which a Maryland man was convicted under the federal “Felon in Possession” statute, which criminalizes the possession of firearms by persons convicted of felonies in either the state or federal courts. The Defendant in that case appealed on the ground that the police had improperly searched his person after stopping the car in which he was travelling for a minor traffic violation. The police had had a report of a person in the car being armed with a handgun.

The Defendant argued on appeal that the police had lacked reasonable suspicion to search the defendant under the authority granted by Terry v. Ohio to police to “stop and frisk” (that is to pat down the subject’s outer clothing to locate objects readily apparent to be weapons or contraband) an individual they believe to be armed and dangerous. The Government argued that the report of the Defendant being armed with a handgun was enough to satisfy the requirement that the police believed the subject to be “armed and dangerous”. The Defendant countered that there are thousands of citizens who are permitted by state authorities throughout the 4th Circuit to carry firearms for personal protection and the report of a person being armed does not necessarily justify the belief on the part of police that the person is in fact dangerous. The Court, unfortunately, agreed with the Government and has established a new, unprecedented and blatantly unconstitutional precedent.

The Court “reasoned” that since firearms are dangerous, anyone carrying one, lawfully or not is also dangerous and put lawfully armed citizens in the same category as dangerous criminals. The Court basically states that anyone carrying a firearm forfeits their Fourth Amendment right to be free from suspicionless search.

Judge James Wynn wrote a concurring opinion agreeing with the result but went even further than the majority, writing that persons who lawfully carry firearms are “categorically dangerous” and “sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms”. So now, under this decision, the police, with no indication that you are breaking the law, can search your person based on the mere fact that you have a carry permit, which will be apparent to them the minute they run your tags.

As to what this means for North Carolina, that is not apparent at this time. What it probably means is that the fruits of an otherwise illegal search may not be suppressed at trial if you were carrying a lawfully concealed firearm at the time of that search. Our current legislature is firearm friendly, but our current governor is most decidedly not and he has certain executive powers to promulgate regulations through the state agencies and could move to put this terrible decision into practice by law enforcement in this state. This could be resolved by a state law stating very simply that Fourth Amendment protections apply equally to all North Carolina citizens, regardless of whether they lawfully exercise their right to carry a firearm. I see that as unlikely, however, at least until the US Supreme Court has weighed in on the issue, which I predict will happen soon. I will keep you updated as developments in this area of the law unfold.

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