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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)).
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