Armed officers calling out to defendant “Yo, turn around, you live here?” was a seizure, he attempted to ignore until they caught up with him. He was patted down because of a telltale L-shaped bulge, and a gun removed. The search for the gun, however, violated the Second and Fourth Amendment because there was no indication whatsoever that defendant intended to use the gun unlawfully and no crime was afoot. Commonwealth v. Johnson, 2020 Va. App. LEXIS 124 (Apr. 28, 2020) (unpublished):
The Commonwealth argues that probable cause for Johnson’s seizure and search existed solely because it was apparent to Officer Harris that Johnson was likely armed with a firearm. The problem with the Commonwealth’s argument is that, even assuming without deciding that simply seeing a bulge in Johnson’s shirt prior to his seizure was enough to suggest that Johnson was carrying a firearm under his shirt, that would not, standing alone, justify Johnson’s warrantless seizure or a search of his person.
An individual has a fundamental constitutional right under the Second Amendment to bear arms, and the exercise of that right cannot, without more, establish probable cause for either a search or a seizure under the Fourth Amendment. Therefore, the presence of a bulge under a shirt suggesting one is armed is not automatically indicative of criminal activity. See McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (incorporating the Second Amendment’s individual right to bear arms in the Due Process Clause of the Fourteenth Amendment); District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
As the Supreme Court recognized in Heller, although the Second Amendment does not “protect the right of citizens to carry arms for any sort of confrontation” and states may impose limited restrictions on the possession of firearms, “the Second Amendment right is exercised individually and belongs to all Americans.” Heller, 554 U.S. at 581, 595. Of course, the Court’s holding in Heller did not displace the long-standing precedent that struck a balance between an individual’s Fourth Amendment right to be free from unreasonable searches and the risk to officer safety, particularly the increased risk inherent in traffic stops. See Pennsylvania v. Mimms, 434 U.S. 106, 111-12, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (recognizing the threat to officer safety during traffic stops and holding that an officer’s request that the defendant get out of the vehicle was reasonable under the Fourth Amendment); Bethea v. Commonwealth, 14 Va. App. 474, 419 S.E.2d 249, 8 Va. Law Rep. 3037 (1992) (en banc) (holding that an officer’s directive that a passenger step out of a vehicle was not an unreasonable seizure).
The Commonwealth, like many other states, authorizes individuals to carry a concealed firearm so long as he or she has “a valid concealed handgun permit.” Code § 18.2-308. But “[t]he very enumeration of the right [to bear arms] takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U.S. at 634. An individual’s choice to exercise his fundamental right to bear arms cannot, standing alone, serve as the basis for reasonable suspicion or probable cause that in doing so, he is committing a crime. Thus, we do not presume that an individual carrying a concealed firearm must be in violation of the law in doing so. If 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.
Any determination of probable cause is a totality of the circumstances evaluation. Here, the record before us equates to only one circumstance that the Commonwealth asserts establishes probable cause. At the time Johnson was seized, the only basis for doing so was that Officer Harris could see a bulge in Johnson’s waistband. Therefore, we must determine if Officer Harris’s suspicion that the bulge visible in Johnson’s shirt might be a gun, standing alone, constitutes probable cause to seize Johnson and conduct a search of his person.
After Johnson was seized and prior to when Johnson was searched, Officer Harris could tell that the bulge was “L-shaped” and suspected that the bulge was a concealed firearm. Johnson did not appear nervous or act furtively. He cooperated with Officer Harris’s command to turn around and answered the officers’ questions. Cf. Whitfield v. Commonwealth, 265 Va. 358, 362, 576 S.E.2d 463 (2003) (holding “[n]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion” and that “[h]eadlong flight, [although] … not necessarily indicative of wrongdoing, … is certainly suggestive of such” (quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000))). The officers were not aware of any complaints that a crime had just been committed by someone matching Johnson’s description. There was no evidence that the officers stopped Johnson for acting suspiciously in a “high crime” or drug market area. Cf. Hill v. Commonwealth, 68 Va. App. 610, 621, 812 S.E.2d 452 (2018) (recognizing defendant’s presence in a “high crime” area as a “relevant contextual consideration in a Terry analysis” (quoting Whitaker v. Commonwealth, 279 Va. 268, 276, 687 S.E.2d 733 (2010))).
In this case, the record reveals no attempt to determine through a database or other source if Johnson lacked or was ineligible for a concealed weapon permit prior to his seizure. No other circumstances are before us in this record that, in combination, establish probable cause that Johnson was committing a crime prior to his seizure and search. Officers 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. Accordingly, the mere presence of a bulge that is consistent with the concealed carry of a firearm, without more, does not create probable cause that a crime is being committed.
Under the totality of the circumstances limited by the record before us, Officer Harris had nothing more than a belief, however reasonable based on the circumstances, that Johnson was carrying a concealed firearm without any indication as to whether his doing so was illegal. There were no indicia of criminality perfected in this appeal besides a suspicion that Johnson was armed. Without more, there was no probable cause to believe that contraband or evidence of a crime would be uncovered by the search of Johnson’s person. Accordingly, the circuit court did not err in finding the officers lacked probable cause and granting the motion to suppress the evidence recovered in the unlawful search.
