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

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committing a crime.”7 Johnson, slip op. at 10. Indeed, “the presence of a bulge under a shirt suggesting one is armed is not automatically indicative of criminal activity.” Id. at 9. Nevertheless, the trial court held that there was a presumption it was unlawful to carry a firearm in public. But as a matter of constitutional principle, “[b]eing a felon in possession of a firearm is not the default status.” United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013). Because carrying a concealed firearm may be lawful with a permit, the mere possibility that an individual lacks a permit does not create reasonable suspicion. Rather, officers must have some particularized basis to believe the possession is unlawful. Otherwise, “[p]ermitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”8 Id. As a result, “we do not presume that an individual carrying a concealed firearm must be in violation of the law in doing so.” Johnson, slip op. at 10. However, “[i]f there are other indicia of criminality present, the presence of a bulge consistent with a weapon can be considered under the totality of the circumstances in determining whether reasonable suspicion or probable cause exist.” Id. Therefore, if officers had other evidence of criminality besides a bulge appearing to be a weapon, they would have “[a] reasonable suspicion that a suspect is carrying a concealed weapon (without a permit to do 7 See United States v. Ubiles, 224 F.3d 213, 217 (3d Cir. 2000) (holding that a “mere allegation that a suspect possesses a firearm, as dangerous as firearms may be, [does not] justify an officer in stopping a suspect absent the reasonable suspicion required by Terry”); United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993) (holding that the presence of a firearm, without evidence of illegality or other criminal conduct, does not alone establish reasonable suspicion); Northrup, 785 F.3d at 1131-32 (holding that in an open-carry jurisdiction, the mere possession of a firearm cannot be the basis for a stop and that the exercise of a constitutional right cannot itself be suspicious); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (holding “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention”). 8 See Northrup, 785 F.3d at 1132 (“To allow stops in this setting would effectively eliminate Fourth Amendment protections for lawfully armed persons.” (quoting King, 990 F.2d at 1559)). - 14 -
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