Recently, a Federal District Court in New Mexico addressed the interesting 4th Amendment issue of whether "reasonable suspicion" exists to justify an investigative stop of an individual in a "right to carry" state, based on an officer's observation that an individual is carrying a concealed firearm. Sounds complicated? Well, let's break down the issues.
First, according to the NRA, 40 states allow individuals to legally carry concealed firearms. Of those 40 states, Alaska, Arizona, Wyoming, and Vermont do not even require permits to carry concealed firearms. In the remaining 36 "right to carry" states, including Florida, there is a process through which individuals may apply and receive permits from the state, which allow for the lawful carrying of concealed firearms. However, Florida and most other states, including New Mexico, prohibit the carrying of concealed firearms without a permit.
Second, under the 4th Amendment of the United States Constitution, law enforcement officers are limited in their ability to detain individuals, even for a brief matter of time. Essentially, there are three types of encounters between law enforcement officers and civilians: consensual encounters, investigative stops, and arrests. During a consensual encounter, an officer and a civilian interact consensually, with the civilian enjoying the freedom to leave at any time. During an arrest, an officer must either have probable cause to believe that a crime has occurred or be in possession of a valid arrest warrant.
For an officer to justifiably detain a citizen for an investigative stop, the officer must have reasonable suspicion to believe that the individual is involved in criminal activity. In order for an officer's suspicion to be "reasonable," the officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." What is more, if the stop is based upon reasonable suspicion, the stop must be "reasonably related in scope to the circumstances" that justified the reasonable suspicion. In other words, if an officer has a particularized and objective basis for suspecting that a person is involved in trafficking drugs through his suitcase at an airport, the officer cannot detain the person and his/her luggage for an hour and a half before conducting an investigation, because the length of the detention would not be reasonable given the circumstances.
Which brings us to the heart of the matter. In Florida and other "right to carry" states, it is perfectly legal for an individual to carry a concealed firearm so long as the individual possesses a valid permit to do so. Conversely, it is unlawful in Florida for an individual to carry a concealed firearm if the individual does not have a valid permit to do so. Thus, the question presented to the New Mexico court was whether it was possible for a law enforcement officer, based on the observation of a concealed firearm, to generate a particularized and objective basis for suspecting a particular person of criminal activity.
The New Mexico court held that an officer may generate reasonable suspicion on the basis of an observation of a concealed firearm, depending on the circumstances. The court held that under a "totality of the circumstances" analysis, an officer's observation of a concealed firearm in a high crime area does justify an investigative stop. What is more, the court reasoned that just because an activity is potentially lawful, does not mean that the activity cannot give rise to reasonable suspicion.
This leads to an interesting thought: how does this holding apply to stopping motorists who may be driving without a driver's license? In Florida, just as it is only lawful to carry a concealed firearm with a permit, it is also only lawful to drive an automobile with a driver's license. If a law enforcement officer may stop someone for carrying a concealed firearm on the suspicion that the person does not have a permit, why can't a law enforcement officer stop someone who is driving a car on the suspicion that the person does not have a license?
Clearly, otherwise lawful activity can give rise to a reasonable suspicion of wrongdoing. Indeed, the defendant in the seminal case of Terry v. Ohio was doing nothing unlawful before he was detained by law enforcement; but given the totality of the circumstances, his behavior was objectively suspicious. In the case addressed by the New Mexico court, the defendant was at work at a convenience store in a high crime area. Not only is it not suspicious that an employee in a convenience store in a high crime area carries a concealed weapon, but it is arguably unreasonable not to carry a concealed firearm in such an environment.
Unquestionably, any interaction between law enforcement and an armed citizen carries with it an increased level of danger for law enforcement. Balancing the second amendment rights of Americans with the safety of those who enforce the laws of society is a difficult task. However, decisions that broaden the scope of "reasonable suspicion" have the potential to go well beyond the issue of concealed weapons; they may further tip the balance away from the individual liberties of Americans.
