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United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997)). “Although the factors asserted by
the government are related, and must be considered as a whole, they also must be examined in
some orderly fashion, which typically involves a brief discussion of each factor and its weight in
the analysis.” Id. at 591.
We acknowledge in some cases “[i]t is possible for factors, although insufficient
individually, to add up to a reasonable suspicion—that is the nature of the totality of the
circumstances test.” Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir. 1995). Here, however, “we
think it impossible for a combination of wholly innocent factors to combine into a suspicious
conglomeration unless there are concrete reasons for such an interpretation.” Id. Therefore, “we
do not analyze each factor in isolation, [but rather] we will describe these factors separately in
order to explain why they were insufficient in the aggregate.” Id. at 495.
The mere presence of a firearm, or a bulge suggesting one, cannot by itself establish
reasonable suspicion for detention under the Fourth Amendment. “The Commonwealth, like
many other states, authorizes individuals to carry a concealed firearm so long as he or she has ‘a
valid concealed handgun permit.’” Commonwealth v. Johnson, No. 1799-19-2, slip op. at 10
(Va. Ct. App. Apr. 28, 2020)6 (interpreting Code § 18.2-308). Because the right to bear arms is a
fundamental right, “[t]he very enumeration of the right takes out of the hands of government—
even the Third Branch of Government—the power to decide on a case-by-case basis whether the
right is really worth insisting upon.” District of Columbia v. Heller, 554 U.S. 570, 634 (2008).
Therefore, when determining whether an officer has reasonable suspicion to detain a
person, “[a]n individual’s choice to exercise his fundamental right to bear arms cannot, standing
alone, serve as the basis for reasonable suspicion or probable cause that in doing so, he is
6
“Unpublished opinions of this Court, while having no precedential value, are
nevertheless persuasive authority.” Samartino v. Fairfax Cnty. Fire and Rescue, 64 Va. App.
499, 508 n.2 (2015).
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