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so) [because it] establishes the reasonable suspicion of criminal activity required by Terry.”
Miles v. Commonwealth, No. 1412-12-2, slip op. at 6 (Va. Ct. App. Feb. 11, 2014).9 In contrast,
without evidence of criminality, “[o]fficers may not seize and search an individual based solely
on the presence of what appears to be a concealed firearm without establishing first that it is
concealed in violation of the law.” Johnson, slip op. at 11.
In the case now before the Court, we focus not on the suspicion of the possession of a
firearm but instead on the suspicion of criminal activity.10 When officers approached Chisholm,
they did not know him, were unaware of his criminal history, and did not observe any suspicious
or criminal behavior. Officers Smith and John did not ask whether he had a concealed carry
permit. Instead, they asked if he was carrying any weapons and then immediately informed him
that they were going to check him based on information they received from Officer McLaughlin.
Thus, the only reason Officers Smith and John approached Chisholm was because Officer
McLaughlin believed he may be in possession of a firearm. Nevertheless, that alone is not
enough to articulate reasonable suspicion to justify detention. Rather, there must be additional,
objective evidence of criminality.
In this case, the Commonwealth relies on other factors, including that the encounter
occurred in a purported high crime area, that Chisholm appeared nervous when officers
approached him, and that he engaged in alleged evasive, pre-flight behavior by slowly walking
9
See footnote 5, supra.
10
To be sure, the right to detain an individual based on the suspected presence of a
firearm should not be confused with the right to conduct a pat-down of an individual for weapons
when the individual is detained on the suspicion of some criminal activity afoot. For lawful
detentions, officers only need reasonable, articulable suspicion that criminal activity is occurring.
Terry, 392 U.S. at 21. In contrast, officers have the authority to conduct a pat-down for weapons
only if they have reasonable suspicion that criminal activity is occurring “and that the persons
with whom [they are] dealing may be armed and presently dangerous.” Id. (emphasis added).
Here, however, we will only examine whether officers had reasonable suspicion to conduct a
lawful detention.
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