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1998) (quoting Wood, 106 F.3d at 948). Therefore, “absent signs of nervousness beyond the
norm, we will discount the detaining officer’s reliance on the detainee’s nervousness as a basis
for reasonable suspicion.” Id.
Courts have defined “unusually nervous behavior” as “shaking hands, heavy breathing,
and providing inconsistent answers.” Massenburg, 654 F.3d at 490 (quoting United States v.
Mayo, 361 F.3d 802, 806 (4th Cir. 2004)). Here, the record reflects none of those hallmarks.
Chisholm did not exhibit shaking hands, heavy breathing, or provide inconsistent answers.
Although his breathing rate may have changed during the encounter, such a reaction is common
when interacting with police and does not suggest that a person has engaged in, or is about to
engage in, criminal activity. Accordingly, the generic signs of nervousness the Commonwealth
relied upon add little, if any, weight to the reasonable suspicion analysis.
When reviewing reasonable suspicion, we must evaluate based on common sense because
“[t]he touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S.
248, 250 (1991). Likewise, the Commonwealth’s reliance on categorizing Chisholm slowly
walking several steps backwards as indicative of evasive, pre-flight behavior, is not supported by
the record and rests on mere speculation. As such, the Commonwealth’s characterization of the
defendant’s conduct as “pre-flight” or “evasive” is unsupported by common sense inferences
required under Fourth Amendment analysis.
At the time of the encounter, the defendant was carrying a gallon of milk in one hand and
was facing two officers directly in front of him, with another officer positioned behind him.
Accordingly, Chisholm was surrounded by three armed officers and was not reasonably capable
of fleeing. Moreover, one of the officers informed Chisholm that he was “backing up into [his]
partner” and then was immediately grabbed and detained by Officer McLaughlin. Most
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