Is Carrying a Concealed Weapon Reasonable Suspicion for Police to Search You?

Police need a reasonable, articulable suspicion that you are armed and dangerous before they can “stop and frisk” you or before they can do a “Terry frisk” of your vehicle. But is carrying a concealed weapon reasonable suspicion for police to search?

I mean, the whole point of a Terry frisk is for an officer to determine whether a person poses a threat to them. If an officer sees a gun, they will probably feel threatened – that’s the nature of guns.

On the other hand, carrying a concealed weapon is perfectly legal – can an officer’s observation of a thing that is legal also be reasonable suspicion that allows them to search you?

What is reasonable suspicion, and how is that different from probable cause? Should an officer’s observation of a concealed weapon be considered reasonable suspicion that allows them to pat you down and, incidentally, also search for narcotics or other contraband?

What is Reasonable Suspicion?

Reasonable suspicion is one of many standards of proof in the US legal system. It’s one of the lowest standards of proof – it’s more evidence than a “mere suspicion,” but somewhat less than “probable cause.”

It must also be more than a mere “hunch.” The officer must be able to state with some specificity what their reason is for conducting the search or pat down. Police can’t just stop any person they like and search them, or even pat them down for weapons unless they have an articulable, reasonable suspicion that a crime is occurring or is about to occur.

Reasonable suspicion requires less evidence than probable cause because a pat down or “Terry frisk” based on reasonable suspicion has less to do with finding evidence of a crime and more to do with officer safety – if the officer has a reason to suspect that you are armed and dangerous, they have the right to search for weapons to protect themselves.

Terry v. Ohio

The case that established the “Terry frisk” based on reasonable suspicion is Terry v. Ohio. In Terry, the officer observed three persons who appeared to be “casing” a store. After watching them repeatedly walk by the store, look into the store windows, and then meet on a nearby street corner, the officer approached the men, patted down one of them, and found a revolver in his coat pocket.

Although there was no probable cause to suspect that the men had committed a crime, the US Supreme Court found that it was reasonable for the officer to pat them down for weapons, under the circumstances, to ensure his own safety:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.

This requirement of an articulable, reasonable suspicion, something less than probable cause of a crime, to search for weapons, has become a staple of US Fourth Amendment law. It has been extended from the sidewalk scenario in Terry to other situations, including traffic stops. An officer has the right to look in your vehicle for weapons if they have a reasonable, articulable suspicion that “criminal activity may be afoot.”

What happens, of course, is that, during the search for weapons, police will find other things – drugs or other contraband – for which they then arrest the person. If the police have a right to frisk you or look in your car for weapons, and they come across a bag of cocaine in plain view (or “plain feel,” as the case may be), they can then seize the drugs and charge you.

What’s the Difference Between Reasonable Suspicion and Probable Cause?

Reasonable suspicion is not enough evidence to charge a person with a crime. It is, however, enough evidence for police to pat you down or conduct a limited search of your vehicle if they suspect you are armed and dangerous.

If, during the search, the police come across that bag of cocaine, then there is probable cause that you have committed a crime (possession of cocaine) and you can be arrested.

Another example would be if the police come to your home. They knock on your door, you answer, and they have reason to believe – based on circumstances including your history, other individuals who are present, or how you are acting – that you may be armed and dangerous. They can then pat you down – they can’t go into your pockets and search you, but they can pat you down for weapons.

Assuming they find nothing, they can’t then just walk into your house and search for drugs or other evidence of a crime. To enter your home, in the absence of a Fourth Amendment exception like “exigent circumstances,” they must go to a judge, demonstrate that there is probable cause that a crime has been committed and evidence will be found in your home, and return with a search warrant.

Commonwealth v. Hicks – Is a Concealed Weapon Reasonable Suspicion?

What if the police see that you have a concealed weapon – the impression of a pistol beneath your clothing or some other indication that you are carrying a weapon?

Although, as far as I know, SC has not addressed this question, Pennsylvania’s Supreme Court released an opinion last month finding that a concealed weapon alone is not reasonable suspicion that would justify a Terry frisk.

In Commonwealth v. Hicks, a remote camera operator observed a person walk into a convenience store after concealing a pistol under his shirt. They called the police, who rushed to the scene of the… non-crime.

Hicks went into the store, bought whatever he was buying, left the store, got into his car, and began to pull out of the parking lot when numerous police cars appeared around him, blocking him in. Cops ran to his car with guns drawn, one grabbing Hicks’ arm and restraining him as another officer took Hick’s firearm from his waistband.

After discovering that Hicks had a concealed weapon permit, the officers charged him with multiple charges including DUI, possession of marijuana (which was later dismissed), and disorderly conduct. The Court dismissed the disorderly conduct charge, and the jury acquitted him of everything else except one DUI charge.

Reasonable Suspicion of Something that is Legal is Not Reasonable Suspicion…

As the Court points out, it is legal to openly carry a firearm in Pennsylvania unless you are prohibited due to your criminal history or other statutory reasons. It is also legal to carry a concealed firearm with a permit.

Absent evidence that the officer knew Hicks was prohibited from carrying a firearm for some reason (he was not), there was no reasonable suspicion for the police to seize and search Hicks.

Assuming that the DUI, possession charge, and disorderly conduct charges were not fabricated by the officers to cover up their mistake, those charges should have been dismissed as fruit of the poisonous tree – but for the officers’ unconstitutional search and seizure, there would be no evidence of any crime whatsoever.

The tension here, obviously, is police don’t like it when citizens carry guns. To most police officers, anyone who is carrying a gun is “armed and dangerous.” If that is true, however, police would have carte blanche to seize and search any person they see with a firearm, even though possessing, carrying, and even concealing a firearm are perfectly lawful activities.

Police would say they should be able to do that to confirm that a person has a concealed weapon permit. Should police be able to approach a person and ask to see their concealed weapon permit? Whether or not that would be reasonable, that’s not what they did in Hicks. Rather, they assaulted him in his vehicle and forcibly removed his firearm for no apparent reason.

Should police be able to conduct a Terry search because they see a concealed weapon? No – having a concealed weapon is not reasonable suspicion of any crime. If the circumstances create a reasonable suspicion of an actual crime, in addition to the firearm, then it would be okay.

Allowing police to stop and search people solely because they are carrying a firearm – an activity not only authorized by law but also protected by the Second Amendment – would be like allowing police to stop random motorists just to confirm that they have a driver’s license. And then charge people based on any contraband or other crime they discover during the traffic stop.

But firearms are deadly weapons… But wait, so are cars. See where this is headed?

A reasonable resolution to this dilemma is simple. Seeing a weapon, absent an articulable, reasonable suspicion that the weapon is illegal or some other “criminal activity is afoot,” is not reasonable suspicion that would justify a Terry search.

Criminal Defense Lawyer in Myrtle Beach, Columbia, and Lexington, SC

Lacey Thompson only accepts criminal defense cases in the Myrtle Beach, Lexington, and Columbia, SC areas, including firearms and drug offenses.

If you have been charged with a crime or think that you are under investigation, call the Thompson Defense Firm now at 843-444-6122 or send us an email to set up a free consultation.

is a concealed weapon reasonable suspicion

One Response to “Is Carrying a Concealed Weapon Reasonable Suspicion for Police to Search You?

  • Respondent
    1 year ago

    In most regards, carrying a firearm on your person is an all around bad idea. Permit or not, you can’t enter the vast majority of businesses with it. And if you did encounter a cop while armed, it’s an even worse idea; just watch YouTube. For there are a number of videos there where the police shot first, further asked questions later. And in South Carolina, reasonable just doesn’t play into anything. For if they didn’t have the probable cause, or evidence, they’ll find some…

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