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marked with no-trespassing signs around 3:30 a.m. Id. at 396. When the officer approached, the
defendant placed his hand underneath his shirt and ignored the officer’s repeated instructions to
keep his hands visible. Id. at 396-97. Instead, he continued moving his right hand in a
suspicious manner, and the officer later observed his hand outside the window, suggesting he
was attempting to discard something. Id. at 397. Under those circumstances, we affirmed the
trial court’s finding that the officer had reasonable suspicion to conduct a detention, pat-down,
and search. But here, in contrast, Chisholm was walking in broad daylight at approximately
6:00 p.m., did not place his hand under his shirt, complied with the officers’ instructions, did not
move his hands in a suspicious manner, and did not appear to be discarding any objects.17
Even under the totality of the circumstances and when viewed in the light most favorable
to the Commonwealth, the facts here do not rise to the level of reasonable suspicion required by
the Fourth Amendment to justify detaining Chisholm. The officers relied on lawful conduct
consistent with gun possession, a generalized high crime designation, commonplace
nervousness, and non-evasive backward movement that officers themselves acknowledged did
not constitute flight. In doing so, “the Government attempts to spin these largely mundane acts
into a web of deception.” United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011). None of
these factors, alone or in combination, however, provides the particularized and objective basis
necessary to justify detaining Chisholm.
17
At oral argument, the Commonwealth also stressed that the facts of this case are like
those in Terry. Once again, the Commonwealth’s reliance is misplaced. In Terry, an officer
observed the defendant and his companion, on multiple occasions, walk toward a store, look
through its window, walk away, and then return to look through the window again. Terry, 392
U.S. at 6. After each observation, the men would confer with one another down the street. Id.
They repeated this pattern five or six times each before the officer approached them. Id. Here,
by contrast, Chisholm was not pacing around a store, was not observed engaging in any
potentially criminal behavior, and had just purchased groceries from a corner store when Officer
McLaughlin first noticed him.
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