                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Huff and Malveaux
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1799-19-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                                  APRIL 28, 2020
              TYRON J. JOHNSON


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                             Beverly W. Snukals, Judge

                               A. Anne Lloyd, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on briefs), for appellant.

                               Abigail L. Paules (David Whaley LLC, on brief), for appellee.


                     On August 5, 2019, a grand jury indicted appellant Tyron Johnson (“Johnson”) in the

              Circuit Court of the City of Richmond (“circuit court”) on one count of possession of a firearm

              after having been convicted of a violent felony, in violation of Code § 18.2-308.2. Prior to trial,

              Johnson filed a motion to suppress evidence derived from his encounter with police on May 21,

              2019. The circuit court granted the motion to suppress, holding that Johnson was seized without

              probable cause or reasonable suspicion that a crime was afoot, in violation of the Fourth

              Amendment. The Commonwealth appeals pursuant to Code § 19.2-398(A)(2).

                     On appeal, the Commonwealth argues that the circuit court erred in suppressing the

              physical evidence recovered and evidence derived therefrom because (1) the police were

              engaged in a consensual encounter with Johnson; (2) the police had “reasonable, articulable

              suspicion to believe that the bulge in Johnson’s shirt contained a firearm;” and (3) the police had



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“probable cause to believe that the bulge in Johnson’s shirt contained an illegally concealed

firearm.”

                                       I. BACKGROUND

       On May 21, 2019 around 10:00 or 11:00 a.m., Officer Khalid Harris (“Officer Harris”)

patrolled his regularly assigned area near Creighton Court in the City of Richmond, along with

Officer Ball and Sergeant Williams. Officer Harris had been assigned to patrol this area for his

entire five-year police career. Creighton Court is a public housing community with posted “no

trespassing” signs where anyone on the property who is not a leaseholder or accompanied by a

leaseholder is trespassing. While driving past Creighton Court, Officer Harris noticed Johnson

walking through the courtyard of the property and did not recognize Johnson as a person

authorized to be on the property. However, Officer Harris “had no way of knowing [Johnson

was trespassing] until [he] talked to [Johnson].”

       After seeing Johnson walk through the courtyard, Officer Harris, in a marked police

vehicle, made a U-turn and parked the vehicle along the road outside Creighton Court. By the

time Officer Harris parked the vehicle, Johnson was walking down the sidewalk outside of

Creighton Court. Officer Harris got out of the vehicle and, while approximately five-to-ten feet

away from Johnson, called out to Johnson “Yo bossman.” Johnson turned to look toward Officer

Harris, dropped his jacket, picked up his jacket, and kept walking down the sidewalk outside

Creighton Court. When Johnson bent down to pick up his jacket, Officer Harris saw a bulge in

Johnson’s front, left waistband that was completely covered by Johnson’s shirt.

       Officer Harris then said, “Yo, turn around, you live here?” Johnson stopped walking and

turned as Officer Harris, Officer Ball, and Sergeant Williams approached him. Johnson

responded “Yes.” Officer Harris stood directly in front of Johnson, Officer Ball stood directly

behind Johnson, and Sergeant Williams stood on Johnson’s side. All three officers were in

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uniform, with badges displayed and their firearms on their waists. None of the officers ever told

Johnson he was free to leave.

       Officer Harris then asked Johnson for his name, social security number, and date of birth.

As he was talking to the officers, Johnson was “fidgeting with his jacket,” attempting to turn the

left sleeve right-side out and put it on his left arm. Johnson told the officers that his right arm

was covered in bandages because he had been shot in that arm.

       Officer Harris asked Johnson if Johnson had any weapons on him. Johnson responded

that he did not. Officer Harris then told Johnson, “My partner is going to pat you down.” Before

Officer Ball could conduct a pat-down search, however, Officer Harris lifted Johnson’s shirt and

revealed a firearm in Johnson’s waistband. The officers then placed Johnson in handcuffs.

Officer Harris ran Johnson’s identification information through the police dispatcher and

discovered that Johnson was a convicted felon whose official address was listed as outside

Creighton Court.

       Johnson was arrested and indicted on one count of possession of a firearm by a person

having previously been convicted of a violent felony, in violation of Code § 18.2-308.2. On

October 25, 2019, Johnson filed a motion to suppress “all physical evidence recovered and all

evidence derived therefrom . . . which were seized as a result of the warrantless seizure and

search of [Johnson’s] person.”

       On November 1, 2019, the circuit court held a suppression hearing on the motion. There,

Officer Harris testified that he could see a bulge in Johnson’s pants when he got out of the

vehicle but could only see that it was an “L-shaped” bulge after Johnson turned around and when

he was less than three feet away from Johnson. Based on his training and experience in dealing

with firearms, Officer Harris testified that the “L-shaped” bulge looked consistent with a firearm

and that he believed Johnson was armed. However, Officer Harris also testified that he could not

                                                 -3-
tell what the bulge was until he lifted Johnson’s shirt. The Commonwealth conceded that no pat

down occurred.1

        The circuit court held that Johnson was seized without reasonable articulable suspicion

that criminal activity was afoot either because of a trespassing violation or “a concealed weapon

or [visible] weapon.” The circuit court held, “there has to be some indication that criminal

activity is afoot, that he’s dangerous in someway. . . . [E]ven if there was reasonable, articulable

suspicion for a pat down that’s not what occurred here.” The circuit court granted the motion to

suppress.2 This appeal follows.

                                           II. ANALYSIS

                                       A. Standard of Review

        We view the evidence in the light most favorable to Johnson, the prevailing party below,

and grant him all reasonable inferences fairly deducible from that evidence. See Commonwealth

v. Grimstead, 12 Va. App. 1066, 1067 (1991) (citing Commonwealth v. Holloway, 9 Va. App.

11, 20 (1989)). We will not reverse the circuit court’s decision unless it is plainly wrong. Id.

(citing Code § 8.01-680). However, whether police action amounts to a violation of the Fourth



        1
            During argument at the suppression hearing, the following conversation occurred:
                 THE COURT: I guess we’re down to whether or not a bulge,
                 L-shaped object with nothing protruding, not the butt of the gun or
                 anything else, is there a case that says that that’s enough and then
                 are you saying that was probable cause or reasonable, articulable
                 suspicion for a pat down?

                 [Commonwealth Attorney]: I’m saying it was probable cause.

                 THE COURT: Okay. So, you’re jumping to probable cause
                 because you know that there was no pat down.

                 [Commonwealth Attorney]: Agreed.
        2
            The circuit court subsequently issued an order suppressing the evidence on November 5,
2019.
                                                 -4-
Amendment is “a mixed question of law and fact” that we review de novo. Hairston v.

Commonwealth, 67 Va. App. 552, 560 (2017) (quoting Harris v. Commonwealth, 276 Va. 689,

695 (2008)).

                       B. Johnson’s Seizure Under the Fourth Amendment

         The Fourth Amendment “secures citizens in their persons and property against

unreasonable seizures.” Greene v. Commonwealth, 17 Va. App. 606, 610 (1994) (citing

Baldwin v. Commonwealth, 243 Va. 191, 195 (1992)). “The purpose of the Fourth Amendment

is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and

oppressive interference by enforcement officials with the privacy and personal security of

individuals.’” United States v. Mendenhall, 446 U.S. 544, 553-54 (1980) (quoting United States

v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)). “Fourth Amendment jurisprudence recognizes

three categories of police-citizen [contacts]: (1) consensual encounters, (2) brief, minimally

intrusive investigatory detentions based upon specific, articulable facts, commonly referred to as

Terry stops, and (3) highly intrusive arrests and searches founded on probable cause.”

Middlebrooks v. Commonwealth, 52 Va. App. 469, 476 (2008) (quoting Blevins v.

Commonwealth, 40 Va. App. 412, 420-21 (2003)). While consensual encounters do not

implicate the Fourth Amendment, “Terry stops,” made pursuant to Terry v. Ohio, 392 U.S. 1

(1968), and more intrusive arrests and searches constitute seizures, requiring compliance with the

Fourth Amendment’s mandates. McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en

banc).

         Within the meaning of the Fourth Amendment, a person is seized when he “is either

physically restrained or has submitted to a show of authority.” Brown v. City of Danville, 44

Va. App. 586, 603 (2004) (quoting McGee, 25 Va. App. at 199). “In essence, ‘[w]hether a

seizure has occurred for Fourth Amendment purposes depends upon whether, under a totality of

                                                -5-
the circumstances, a reasonable person would have believed that he or she was not free to

leave.’” Id. (quoting McGee, 25 Va. App. at 199-200). Some of the circumstances relevant to

determining whether a person has been seized include

               the threatening presence of a number of police officers, the display
               of weapons by officers, physical contact between an officer and a
               citizen, an officer’s language or tone of voice compelling
               compliance, the retention of documents requested by an officer,
               and whether a citizen was told that he or she was free to leave.

Id. (quoting Harris v. Commonwealth, 266 Va. 28, 32 (2003)).

       The Commonwealth argues that the initial encounter between Johnson and the police was

consensual and that, for purposes of the Fourth Amendment, a seizure only occurred when

Officer Harris told Johnson he would be patted down. We disagree and conclude, as the circuit

court did, that Johnson’s encounter with the police was not consensual. After seeing Johnson

walk through the courtyard, Officer Harris made a U-turn in his marked police vehicle and

parked on the road outside Creighton Court, close to where Johnson was walking. He exited the

vehicle and yelled to Johnson “Yo bossman.” Johnson briefly turned, dropped his jacket, picked

his jacket back up, and kept walking—an indication that he did not willingly choose to speak

with the officers.

       Officer Harris then, while only five-to-ten feet away and walking toward Johnson with

Officer Ball and Sergeant Williams, said to Johnson, “Yo, turn around, you live here?” Because

Officer Harris first called out to Johnson, but Johnson ignored him, the fact that Officer Harris

immediately responded, “Yo, turn around, you live here?” could be reasonably interpreted as a

demand compelling compliance. A reasonable person could conclude, as the circuit court did,

that Johnson initially attempted to ignore Officer Harris and a reasonable person would not have

felt he or she could have continued to ignore Officer Harris’s subsequent demand that Johnson

stop and turn around under these circumstances. At that point, there were three uniformed police


                                               -6-
officers, with guns displayed at their waists, surrounding Johnson, and Johnson submitted to their

show of authority by stopping and turning toward the officers. The officers never told Johnson

he was free to leave. Considering the totality of these circumstances, no reasonable person

would have believed he or she was free to leave. Accordingly, we hold that Johnson was seized

for the purposes of the application of the Fourth Amendment when Johnson complied after

Officer Harris called out, “Yo, turn around, you live here?” as three uniformed police officers

exited their marked police vehicle and walked toward him.

                                C. Search and Seizure of the Firearm

          Concluding that Johnson was seized, we turn now to whether the search of his person,

and the subsequent seizure of the gun, complied with the Fourth Amendment. The

Commonwealth conceded at the suppression hearing that no pat down occurred and, thus,

impliedly conceded, as the circuit court concluded, that no Terry-authorized frisk occurred. On

appeal, however, the Commonwealth argues that Officer Harris possessed reasonable suspicion,

permitting the officers to conduct a limited Terry pat down and that the lifting of Johnson’s shirt

was a proper frisk pursuant to Terry. We need not decide whether lifting Johnson’s shirt was a

search or merely a frisk pursuant to Terry because, under familiar appellate standards, “[a] party

may not approbate and reprobate by taking successive positions in the course of litigation that

are either inconsistent with each other or mutually contradictory.” Cangiano v. LSH Bldg. Co.,

L.L.C., 271 Va. 171, 181 (2006). Accordingly, we consider the lifting of Johnson’s shirt by

Officer Harris to be a search and the only question we need to resolve in this appeal is whether

the officers had probable cause to justify Johnson’s seizure and the subsequent search of his

person.

          “Probable cause exists when ‘there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’” United States v. Grubbs, 547 U.S. 90, 95 (2006)

                                                 -7-
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Probable cause may exist to search an

individual where an officer, under the totality of the circumstances, has reason to believe that the

individual is in possession of contraband or evidence of criminal activity. See, e.g., Bunch v.

Commonwealth, 51 Va. App. 491, 496 (2008) (“[I]f an officer smells the odor of marijuana in

circumstances where the officer can localize its source to a person, the officer has probable cause

to believe that the person has committed or is committing the crime of possession of marijuana.”

(quoting United States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004))). However, in the

absence of additional evidence of criminality, probable cause to seize and search an individual

does not exist based solely on an officer’s experience and suspicion that an objectively legitimate

item may also be evidence of a crime. Harris v. Commonwealth, 241 Va. 146, 155 (1991)

(holding the officer lacked probable cause to believe a film canister contained contraband

because “law-abiding citizens, on a daily basis, also use film canisters to store film, which is a

legitimate use”); Matthews v. Commonwealth, 218 Va. 1, 3 (1977) (holding the officer lacked

probable cause to look inside a folded brown paper bag located next to a pack of cigarette

wrapping papers because the connection made between the wrapping papers and bag “was not

combined with any other circumstance which might have justified a rational belief that the bag

contained contraband drugs”). Our Supreme Court

               has consistently declined to find that probable cause can be
               established solely on the observation of material which can be used
               for legitimate purposes, even though the experience of an officer
               indicates that such material is often used for illegitimate purposes.
               To support a finding of probable cause, such observations must be
               combined with some other circumstance indicating criminal
               activity.

Brown v. Commonwealth, 270 Va. 414, 420-21 (2005). Unless the “incriminating character of

the object” is immediately apparent to an officer, the officer is not authorized by Terry or any




                                                -8-
other exception to the warrant requirement to conduct a further search without additional

information to establish probable cause. Minnesota v. Dickerson, 508 U.S. 366, 379 (1993).

       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.3

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 (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 (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



       3
         Because the Commonwealth did not appeal the circuit court’s ruling that the officers did
not have reasonable suspicion or probable cause based on trespassing, we may not consider
whether probable cause for trespassing might provide additional support for Johnson’s seizure or
search.
                                              -9-
officer safety, particularly the increased risk inherent in traffic stops. See Pennsylvania v.

Mimms, 434 U.S. 106, 111-12 (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 (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.




                                                - 10 -
       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.4 He cooperated with Officer Harris’s command

to turn around and answered the officers’ questions. Cf. Whitfield v. Commonwealth, 265 Va.

358, 362 (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

(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 (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 (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.


       4
          The Commonwealth argues that Johnson’s attempt to turn his jacket sleeve right-side
out and place his left arm through the sleeve was an attempt to conceal the bulge. However, the
circuit court implicitly rejected that factual finding and viewing the evidence in the light most
favorable to Johnson, it is a fair inference that he put his jacket on his left arm first because he
had bandages from a gunshot wound on his right arm.
                                                  - 11 -
       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.

                                                                                         Affirmed.




                                              - 12 -
