Virginia Lawyers Weekly VA Lawyers Weekly
Where police searched a vehicle occupied by appellant and found a handgun in a backpack pouch that was zipped shut, the handgun was secured within the meaning of the concealed weapon statute. As a result, appellant’s conviction for carrying a concealed weapon is reversed.
Background
Appellant Myers was in the driver’s seat of an SUV with two passengers in an apartment complex parking lot. Police approached the vehicle to investigate because they had responded to a breaking and entering in the complex the previous evening.
The police smelled marijuana as they approached. Everyone was ordered from the SUV. A search revealed a BB gun in the door pocket on the driver’s side and a backpack on the passenger’s floorboard.
The back pouch was zipped shut. When an officer unzipped it, he found two more BB guns and a .40 caliber handgun. In the SUV’s console, there was a wallet with Myer’s identification and a cartridge for the handgun.
Myer claimed ownership of the gun and cartridge. He was arrested after police discovered prior conviction for carrying a concealed weapon. At his bench trial, he moved to strike on two grounds: that the weapon was not “about his person” as required by Code §18.2-308(A); and that he was entitled to the statutory exception in Code § 18.2-308(C)(8) because the handgun was secured in a container in the vehicle.
The trial court denied both motions and convicted Myers of carrying a concealed weapon, second offense. The Court of Appeals affirmed.
Discussion
“Myers contends that … the statutory exception to criminal liability recognized by Code § 18.2-308(C)(8) applies to the undisputed facts of this case. We agree … and reverse on that ground. …
“Code § 18.2-308(C)(8) provides an exception to Code § 18.2-308(A)’s prohibition on carrying a concealed weapon for ‘[a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.’ This statutory exception applies to this case. …
“The parties do not dispute that Myers was a person who could lawfully possess a firearm, that the firearm in question was a ‘handgun,’ and that the handgun was contained in a backpack qualifying as a ‘container’ in a ‘personal, private vehicle[.]’ …
“The dispute is … whether the handgun was ‘secured’ in that backpack … and is a mixed question of fact and law.
“The facts of this case are undisputed. The trial court, sitting as factfinder, and the parties all agree that Myers concealed the handgun in a backpack that had been fully zipped. The law, therefore, is the only dispute.
“That question requires us to determine if the General Assembly intended the statutory exception in Code § 18.2-308(C)(8) to apply to a fully zipped backpack.”
Locked vs. secured
The original version of subsection (C)(8) presented to the governor required a handgun to be in a locked container. At the governor’s request, the word “secured” was substituted for “locked.”
“We agree with the Court of Appeals that, ‘[i]n accepting the Governor’s proposed change, the legislature made it clear that in this amendment, “secured” does not mean “locked.”’ …
“The word ‘locked’ is a lesser-included concept within the meaning of the broader word ‘secured.’ It necessarily follows that a weapon in a locked container will be secured, but a secured weapon need not be in a locked container.
“We also agree with the Court of Appeals that ‘secured’ is not synonymous with ‘closed’ because ‘[t]o fall within the exception, the container within the vehicle must not only be closed, but also must be latched or otherwise fastened.’ …
“The latched-or-fastened standard adopted by the Court of Appeals is consistent with most dictionary definitions of ‘secure’ or ‘secured.’ … Within this range of dictionary definitions, the Court of Appeals correctly observed that a handgun can be securely placed in a latched gun case. … The same is true, the Court of Appeals has held, if a handgun is simply placed in a latched console or glove box. …
“In this case, however, the Commonwealth argues that the same cannot be true of a handgun contained in a zipped backpack because the backpack could be ‘opened with ease.’ … The Court of Appeals found this distinction convincing. We do not.” A latched console or glove box can be just as easily opened as a zippered backpack.
“That reality leads us to an inescapable conclusion: If ‘secured’ in Code § 18.2-308(C)(8) does not mean locked but does mean latched or well-fastened, the ordinary way that one fastens a backpack is to fully zip its opening so that no one can reach inside.
“To hold otherwise is to say that handguns transported in vehicles can be secured in unlocked plastic boxes with plastic latches (such as consoles, glove boxes, and plastic gun cases) but can never, as a matter of law, be secured in unlocked bags with zippers (such as backpacks or specially designed canvas gun cases).
“Given the undisputed facts of this case, we hold that Myers was entitled to the protection of subsection C(8)’s exception to criminal liability for carrying a concealed weapon because the handgun was secured in a container within his personal, private vehicle.
“The ordinary meaning of ‘secured’ (when it is not considered an exact synonym of ‘locked’) includes a fully latched rigid container as well as a fully zipped soft container, such as one made of cloth, canvas, or leather.”
Reversed. Indictment dismissed.
Myers v. Commonwealth, Record No. 200165 (Kelsey) May 13, 2021, COA. Sean E. Harris for appellant. Lauren C. Campbell for appellee. VLW 021-6-030, 10 pp.
