Although the informant’s information provided Officer Ingram with reasonable suspicion to believe appellant possessed a firearm, nothing in the record provided reasonable suspicion for
the belief that this possession was illegal. “Absent some disqualifying status (being a felon, juvenile, or drug possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon.” Jackson v. Commonwealth, 41 Va. App. 211, 231, 583 S.E.2d 780, 790 (2003) (en banc), rev’d on other grounds, 267 Va. 666, 594 S.E.2d 595 (2004). Further, nothing in the record indicated appellant was carrying the firearm in a legally proscribed manner,
such as in a concealed fashion without a permit. See Code § 18.2-308. The Commonwealth also concedes that appellant’s attempts to sell the handgun were not illegal 2
and, thus, that information about his sales efforts, standing alone, was insufficient to justify a Terry stop.
2 Under Virginia law, it is unlawful for persons under specified disabilities to purchase or possess a firearm. See, e.g., Code § 18.2-308.1:1 (insane person); § 18.2-308.1:2 (person legally
incompetent or mentally incapacitated); § 18.2-308.1:4 (person subject to protective order); § 18.2-308.1:5 (person convicted of certain misdemeanor drug offenses); § 18.2-308.2 (convicted felon); § 18.2-308.7 (juvenile). It is also unlawful to knowingly sell a firearm, or to possess a firearm with the intent to sell it, to anyone prohibited from possessing it pursuant to some of these disabilities. See Code § 18.2-308.2:1. However, the only sellers required to
obtain background information or conduct records checks to determine the status of a particular buyer are those sellers classified as dealers licensed “pursuant to 18 U.S.C. § 921 et seq.” Code
§ 18.2-308.2:2(B), (G); see 18 U.S.C. § 921(a)(11), (21) (defining “‘dealer’” as, inter alia, “any person engaged in the business of selling firearms at wholesale or retail” and defining “‘engaged
in the business’” as including person regularly selling “with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms” but excluding person “who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms”). Neither state nor federal law requires that an individual seeking to sell a handgun be licensed as a dealer. Virginia law permits certain localities to require sellers of pistols and revolvers to report the name and address of the buyer within ten days after the transfer. See Code § 15.2-1207. It
specifically prohibits localities from adopting or enforcing any ordinance “governing the purchase, possession, transfer, [or] ownership . . . of firearms . . . other than those expressly
authorized by statute.” Code § 15.2-915. Thus, nothing about the informant’s tip that appellant was trying to sell a handgun in a
high-crime, high-drug area gave Officer Ingram reasonable suspicion to believe that appellant’s actions or intent violated any law or ordinance.
The Commonwealth contends, however, that the totality of the circumstances justified the stop and that, “since the informant was right about the car, location, and [appellant’s] physical attributes, it was not unreasonable for Officer Ingram to assume [the informant] was likely right about the firearm and the outstanding warrant as well.” The flaw in this argument is that the informant reported merely that appellant “possibly had an outstanding warrant” and provided no
explanation of the basis for that belief. (Emphasis added). For the reasons already discussed, knowledge that appellant possessed a handgun and was trying to sell it in a high-crime, high-drug area contributed nothing to the reasonable, articulable suspicion required for a Terry stop. Addition of the information that appellant “possibly had an outstanding warrant” was similarly insufficient to provide the officer with reasonable, articulable suspicion. Compare Washington v. Commonwealth, 29 Va. App. 5, 11-13, 509 S.E.2d 512, 515-16 (1999) (en banc) (upholding stop where police received anonymous tip that warrant for particular individual, Ford, was outstanding and that he was at specific location; police confirmed existence of warrant for Ford; and police detained person who exited rear of residence, in response to police knocking at front, in order to check identification). The reliability of the informant’s other prior information,
about both this individual and others, did nothing to compensate for the degree of his uncertainty about the existence of an outstanding warrant for appellant’s arrest or the lack of an articulated basis for his belief in that “possibility.” See Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 261 (2000) (in context of anonymous tip that person of particular description was carrying firearm, discussing distinction between “reliability as to identification”
and “reliability as to the likelihood of criminal activity” (citing 4 Wayne R. LaFave, Search and Seizure § 9.4(h), at 213 (3d ed. 1996))).
Although reasonable suspicion “need not rule out the possibility of innocent conduct,” Arvizu, 534 U.S. at 277, 122 S. Ct. at 753, 151 L. Ed. 2d at 753 (emphases added), more than a mere speculative possibility of criminal conduct is required to establish an articulated basis for an investigative detention. The Supreme Court reached just such a conclusion in Harris v. Commonwealth, 262 Va. 407, 551 S.E.2d 606 (2001), a unanimous decision involving a detention based on a suspicion that Harris was trespassing. Police received anonymous tip that a person named Mart Harris and matching a particular description was selling drugs on an identified corner in a public housing development and was armed. Id. at 410, 551 S.E.2d at 607.
The officers saw no behavior indicative of drug activity and no bulge that might indicate a weapon, observing only that Harris, who fit the description in the tip, was standing on the afternoon in question with two others near a bench that formerly had been used as a bus stop and that “[a] short distance away . . . was a ‘no trespassing’ sign posted on one of the buildings of the housing development.” Id.
The Court of Appeals held the anonymous tip and corroboration of only innocent details was insufficient to support Harris’s detention. Id. at 414, 551 S.E.2d at 609. The Commonwealth did not challenge that holding on appeal, and the Supreme Court considered only whether the officers’ observations once they began surveilling Harris provided them with reasonable suspicion to believe Harris was trespassing, a crime not mentioned by the anonymous tipster. Id. at 414, 551 S.E.2d at 609-10. One of the officers testified he had worked for two-and-a-half years in a drug elimination program in the housing development, was familiar with most of the residents and their regular visitors, and “had never before seen” Harris or his companions. Id. at 410, 551 S.E.2d at 607. As a result of this information, the officer testified “he formed the opinion that the three men were possibly trespassing,” and he approached Harris, who was wearing a loose fitting jacket, and immediately frisked him. Id. at 410-11, 551 S.E.2d at 607 (emphasis added). After finding a concealed handgun in the frisk, the officer questioned the man and learned that neither he nor his companions were residents of the housing development. Id. at 411, 551 S.E.2d at 607. The officer then arrested Harris for trespassing and possession of a concealed weapon and found marijuana in a search of Harris incident to arrest. Id. The Supreme Court held that the officer’s participation in the housing development’s drug elimination program and his testimony that he did not recognize Harris or his companions, who were “standing and conversing near a former and, by appearance, possibly still functioning bus stop adjoining a public street . . . at midday,” provided “no more than an ‘unparticularized suspicion or “hunch”’ that criminal activity was afoot.” Id. at 416, 551 S.E.2d at 610-11 (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). In short, the officer’s belief “that the three men were possibly trespassing,” a belief based on reasons the officer articulated in the record, was insufficient to justify an investigative detention. Id. at 410, 415-17, 551 S.E.2d at 607, 610-11 (emphasis added).
If a police officer’s articulated belief that an individual is “possibly” engaging in the crime of trespass is insufficient to provide reasonable suspicion for an investigative detention, so, too, is a reliable informant’s belief, for reasons not articulated in the record, that an individual is “possibly” wanted on an outstanding warrant. Thus, in appellant’s case, Officer Ingram’s information amounted to no more than a hunch—not rising to the level of reasonable, articulable suspicion—that a warrant for appellant’s arrest was outstanding. The reliable informant’s certainty that appellant possessed a firearm did nothing to compensate for his lack of certainty regarding the existence of an outstanding warrant. [T]he Commonwealth [may not] bootstrap the legitimate concern for law enforcement officers’ safety, which permits a protective search of a legitimately detained suspect, to serve as the basis for detaining the suspect. . . . [T]he issue before this Court is not whether [the officer] could, based on the information in the tip that [the suspect] was armed, conduct the protective patdown had [the suspect] been otherwise lawfully detained, but whether [the officer] had a reasonable, articulable suspicion to warrant detaining [the suspect] in the first place. Id. at 416, 551 S.E.2d at 611.
Absent reasonable, articulable suspicion for a detention, Officer Ingram’s only immediate basis upon which to approach appellant was to attempt to engage him in a consensual encounter in the hope of gaining additional information that might provide the requisite reasonable, articulable suspicion for a detention or probable cause for an arrest. If Officer Ingram felt attempting a consensual encounter was too dangerous under the circumstances, based on his knowledge that appellant likely was armed, he could have avoided appellant altogether, waited until additional officers had arrived, or conducted additional investigation in a way not involving direct contact with appellant in an effort to obtain more definitive information regarding the existence of an outstanding warrant.
Because Officer Ingram lacked reasonable, articulable suspicion to detain appellant, we hold the trial court erred in denying appellant’s motion to suppress the firearm and accompanying statements. Thus, we reverse appellant’s conviction and dismiss the indictment.
Reversed and dismissed.