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Chisholm v. Commonwealth — Court of Appeals opinion, Record 1830-24-1

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Instead, when viewing the facts in the light most favorable to the Commonwealth, we agree that the seizure began when Officer McLaughlin grabbed Chisholm’s wrist and informed him that he was being detained. When Officers Smith and John initially approached Chisholm, they did not display their weapons, use an aggressive tone, or make physical contact with him. Although Officers Smith and John began walking toward Chisholm while Officer McLaughlin approached from behind, any restraint on Chisholm’s freedom of movement occurred almost simultaneously with Officer McLaughlin grabbing his wrist. Reasonable suspicion must be assessed based on the facts known to the officers at the time of the seizure. See Florida v. J.L., 529 U.S. 266, 271 (2000). Thus, in either scenario, the relevant factors include the officers’ belief that Chisholm possessed a firearm, the character of the area where the encounter occurred, and Chisholm’s alleged nervousness and evasive, pre- flight behavior. Therefore, we evaluate reasonable suspicion based on the facts known when Officer McLaughlin grabbed Chisholm’s wrist. Because Chisholm did not challenge the pat-down below on appeal, we consider only whether officers had reasonable suspicion to detain him at the moment of seizure.5 In assessing reasonable suspicion under the totality of the circumstances, we recognize that officers may rely on objective facts informed by their training and experience. United States v. Smith, 263 F.3d 571, 593 (6th Cir. 2001). “However, some factors may be ‘outrightly dismissed,’ because they are ‘so innocent or susceptible to varying interpretations as to be innocuous.’” Id. (quoting 5 At the suppression hearing, Chisholm did not challenge whether officers had reasonable suspicion to conduct a pat-down and instead focused on whether they had reasonable suspicion to conduct an investigatory detention. Chisholm does not argue on appeal that the Commonwealth lacked reasonable suspicion to conduct a pat-down, but even if he had, we would not consider the argument. See Rule 5A:18. See also W. Alexandria Props., Inc. v. First Va. Mortg. & Real Est. Inv. Tr., 221 Va. 134, 138 (1980) (“On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court.”). - 12 -
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