Gun admissible after stop and frisk in high-crime area

Where police saw defendant in a high-crime area and noticed a bulge under his jacket, they were justified in performing a Terry stop-and-frisk after he refused to remove his hands from his pockets. A firearm found during the search is admissible evidence.

The police were not first required to ask defendant if he had concealed weapon permit.

Background

Two police officers were patrolling Calvert Square, a housing project they described as a high-crime, high-drug area. They saw Baxter standing between two buildings. They noticed a bulge in his jacket. The officers left their patrol car, approached Baxter and ordered him to remove his hands from his pockets.

When Baxter refused to do so, one officer restrained him while the other officer performed a frisk. A handgun with an extended magazine was found. Baxter was charged with being a felon in possession of a weapon, carrying a concealed weapon and carrying a loaded firearm in a public area. Baxter has filed a motion to suppress.

Baxter argues that the police did not have a reasonable suspicion to perform the stop and search. He asserts that the bulge in his jacket was insufficient cause. He further argues that because in Virginia it is lawful to carry a concealed weapon, the police should have first asked whether he had a concealed weapon permit before stopping and searching him.

The commonwealth says that both the search and seizure were constitutional because the police had a reasonable suspicion that Baxter had a concealed weapon in a high-crime high-drug area and that he was a safety risk. The commonwealth notes that the officers knew that Calvert Square’s policy did not allow residents to carry concealed weapons without a permit. The bulge in Baxter’s jacket allowed a reasonable conclusion that he was carrying a concealed weapon, based on the totality of the circumstances, the commonwealth argues.

Analysis

The issue to be resolved is whether the police officers had a reasonable, articulable suspicion that criminal activity was afoot, and that Baxter was armed and dangerous. To resolve the issue, the court must consider the area’s characteristics, the officers’ training and experience, the suspect’s conduct and the nature of the offense being investigated.

Being in an area where crimes occur and drugs are present, in and of itself, is insufficient to conclude that criminal activity is afoot. The court acknowledges that if Baxter had a valid concealed weapon permit, walking in Calvert Square with a concealed weapon would not be a criminal activity.

As to the officers’ training and experience, they were familiar with the area and one of them had made previous arrests in the area for illegal weapons. Both officers knew the housing complex was the scene of prior shootings and other firearm crimes.

The officers suspected that Baxter had an illegally concealed weapon. They were in a high-crime area where shootings previously occurred. One officer saw an L-shaped bulge in Baxter’s jacket that he believed was a firearm. After the officers confronted him and ordered him to take his hands from his pockets, Baxter did not comply.

The court, relying on United States v. Burton, 228 F.3d 524 (4th Cir. 2000), and United States v. Mayo, 361 F.3d 802 (4th Cir. 2004), rules that the police reasonably concluded that Baxter was armed and dangerous. Therefore, the frisk was constitutional. It is significant that Baxter kept one of his concealed hands near where the weapon was found on his person.

The police tried a less intrusive way to ensure both their and the public’s safety before conducting the frisk. Baxter was told several times to remove his hands from his pockets and he did not do so. It was only after Baxter refused that the seizure took place at all.

“Although the officers could have inquired whether Baxter had a concealed weapon permit before seizing him, Baxter alternatively could have informed the officers of that fact, assuming that were the case.”

The motion to suppress is denied.

Commonwealth v. Baxter. Case No. CR18-1840, Dec. 28, 2018; Norfolk Cir. Ct. (Lanetti). Oksana LaBounty for the Commonwealth; Armon D. Pollack Jr. for Defendant. VLW 018-8-113, 10 pp.