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At that moment, Officer McLaughlin arrived on the scene and began approaching
Chisholm from behind. As Chisholm slowly backed away from Officers Smith and John, Officer
Smith told him that he was “backing up into [his] partner,” Officer McLaughlin. Officer
McLaughlin then grabbed Chisholm’s wrist and informed him that he was being detained.
However, both Officers Smith and McLaughlin testified that Chisholm never attempted to flee at
any point during the encounter or detention.
During the detention, Officer Smith used the back of his hand to touch Chisholm’s waist
in the area of the bulge where he believed the firearm was located. When tapping the bulge, he
felt a sharp, hard object that was consistent with a firearm. Afterwards, he lifted Chisholm’s
shirt, found the firearm, and removed it from his person. Officers arrested Chisholm, who
entered a conditional guilty plea to possession of a firearm by a violent felon, in violation of
Code § 18.2-308.2.
TRIAL COURT’S RULING
At the suppression hearing, Chisholm argued that the officers lacked reasonable suspicion
to conduct an investigative detention because, at the moment of seizure, they possessed no
specific and articulable facts indicating that he was engaged in criminal activity. Chisholm
contended that the seizure occurred when the officers approached him and asserted their
authority by announcing their intent to search him, not later when physical force was applied. As
a result, any alleged nervousness or evasive, pre-flight behavior that occurred after the officers’
show of authority could not be considered in the reasonable suspicion analysis. Thus, at the time
officers detained him, the only information they had was viewing a bulge that might be a firearm.
Furthermore, he argued that presence in a high crime area added little, if any, weight to
the analysis because it is a generalized factor that cannot substitute for individualized suspicion.
Moreover, the officers received no calls for service, observed no criminal conduct, did not
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