Hunch seizures do not satisfy the Constitution’s Fourth Amendment, says Fairfax criminal lawyer

Hunch seizures do not satisfy the federal Constitution’s Fourth Amendment‘s prohibition against unreasonable searches and seizures. As a Fairfax criminal lawyer, I welcome the Virginia Court of Appeals’ opinion (albeit unpubl ished) reversing the conviction of Marquis Donte Chisholm, Jr., for possession of a firearm by a violent felon in violation of Virginia Code § 18.2-308.2(A). Chisholm v. Commonwealth of Virginia, Record No. 1830-24-1 (Va. App. June 16, 2026) (unpublished). The police officer’s hunch to seize and pat down Chisholm was based on seeing an “L-shaped outline near Chisholm’s waist” as he carried a gallon of milk out of a corner store, where the law enforcement officer (LEO) “recognized that the waistband is a common location for carrying firearms”; the incident happened in a high crime area; and Chisholm appeared nervous and started stepping back when encountered by police. To Chisholm’s benefit, this incident happened in broad daylight at 6:00 p.m. in late June, and “the record is devoid of any evidence that Chisholm engaged in or was suspected of engaging in criminal conduct linking him to any such crime.” Chisholm. In Virginia, concealed carry permits allow such permit holders to possess a concealed handgun, and police did not ask him if he had a concealed carry permit before seizing and patting him down. 

The Virginia Court of Appeals’ Chisholm decision reminds us the difference between a hunch seizures and stops for reasonable suspicion

Chisholm underlines about hunch seizures the “Fourth Amendment ‘does prevent the police from stopping and frisking individuals in the absence of “reasonable suspicion” that the individual has committed, or is about to commit, a crime.”… Indeed, ‘[m]ore than an “inchoate and unparticularized suspicion or ‘hunch”’ is needed to stop and frisk an individual.’ Rather, ‘the officer must identify “specific and articulable facts” of criminality.’… ‘Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for
probable cause.’… Instead, reasonable suspicion ‘requires only “some minimal level of objective justification.”‘ Chisholm (citations omitted).

What should I do if the police have possibly seized and/or frisked me for something less than reasonable suspicion?

As a Fairfax criminal lawyer, this is far from the first time I have read about police hunch seizures. Chisholm is important for underlining to police, judges and prosecutors the what constitutes an unconstitutional law enforcement officer (LEO) hunch stop and/or frisk. When you are being prosecuted, check with your Virginia criminal defense lawyer about the Constitutional Fourth Amendment challenges you can make to any seizures and searches in your case.

How can my Virginia criminal lawyer challenge the stop, frisk or search of me?

Your Virginia criminal lawyer can argue a motion under the Constitution’s Fourth Amendment that the stop, frisk or search of you was unconstitutional and fell  under the category of hunch seizures or other Fourth Amendment violation, and can seek to exclude the resulting evidence under the Exclusionary Rule applied under the Fourth Amendment. It is important that your criminal defense attorney fully develop that argument as to the evidence and the applicable law and court appellate decisions.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. For your free initial in-person confidential consultation with Jon Katz about your court-pending prosecution, contact us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.