Detentions for Investigation

Bulges in a Person's Clothing

A bulge in a person’s clothing that may in a police officer’s training and experience be a concealed firearm, is sufficient reasonable suspicion to believe that the person is in illegal possession of a firearm, justifying that person’s detention for investigation.

Vallejo Police Department Detectives Jarrett Tonn and Kevin Barreto were patrolling in an unmarked police SUV (presumably while in uniform) on the afternoon of April 18, 2018, when they observed defendant Tamaran Bontemps and three others walking down the street on Robles Way in Vallejo; a mixed residential-commercial area.  As they drove past the group, Detective Barreto noticed that one of the men (later identified as Quinton Mills) appeared to be carrying a concealed handgun in the pouch pocket of this sweatshirt.  The detectives hung a U-turn, going by them again to get a closer look.  As they did so, Detective Tonn—from the passenger seat—could “very clearly” see that defendant—walking in front of Mills—had what the detective described as a “very large and obvious bulge in Mr. Bontemps' sweatshirt on his left side above his waist” that the officer recognized from his “training and experience as a police officer” to be consistent with a firearm.  “In particular, (defendant), who was wearing a light gray sweatshirt that was partially zipped up, ‘had a very obvious bulge on his left side just above the waist area, kind of halfway maybe between his waist and his left armpit.’ Due to this ‘very large and obvious bulge in (defendant’s) sweatshirt on his left side above his waist,’ as well as Detective Tonn's training and his encounters with ‘numerous people with firearms,’ Tonn believed (defendant) was carrying a concealed gun.”  So, making another U-turn, the officers pulled up behind the four men, exited their vehicle, and, with their firearms unholstered but held at their sides, ordered the group to sit on the curb.  All four complied.  As Detective Barreto was dealing with Mills (who was in fact found to be in possession of a loaded 9mm Glock handgun), Detective Tonn turned his attention to defendant who, at that point, had become argumentative, yelling at the officers and at passing cars.  The detectives called for backup.  Detective Tonn “deployed his Taser” on defendant in order to subdue him while ordering everyone on their stomachs.  Defendant was handcuffed and searched.  The bulge was found to be a .40 caliber Glock 22 handgun concealed in a shoulder holster. Defendant was determined to be on felony probation for carrying a loaded firearm in pubic with an outstanding warrant for a probation violation.  He was charged federally with being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).  After the federal district court judge denied his motion to suppress the firearm, defendant pled guilty and was sentenced to 4 years and 9 months in prison.  He appealed.

The Ninth Circuit Court of Appeal, in a split (2-to-1) decision, affirmed.  It was conceded that from the point the officers got out of their vehicle and ordered everyone to sit, defendant was in fact detained.  The reason for the detention was Detective Tonn’s observation of the bulge in defendant’s sweatshirt that the officer believed—based upon his training and experience—was as an illegally possessed firearm.  Defendant argued on appeal that Detective Tonn’s observations were legally insufficient to justify his detention.  The applicable rules are well settled. “(A)n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot” (Terry v. Ohio (1968) 392 U.S. 1; Illinois v. Wardlow (2000) 528 U.S. 119, 123.); often referred to as a “Terry stop.”  In California (given the rarity of concealed weapons permits), evidence that a person is concealing a firearm provides an adequate basis for a reasonable suspicion for believing that the firearm is possessed illegally (a violation of Pen. Code § 25400).  The only issue in this case, therefore, was whether Detective Tonn’s observation of a visible bulge in defendant’s clothing was sufficient, by itself, to justify his belief that it might be a firearm, thus providing the necessary reasonable suspicion upon which to base defendant’s detention. A majority of the Court ruled here that “yes,” it can be, depending upon an evaluation of the “totality of the circumstances.”  The Court did not dispute that some bulges might be indicative of something other than a firearm, such as maybe a prosthetic device or a package of some sort.  It might even be illegal drugs which would require something more than a mere “reasonable suspicion” (i.e., “probable cause”) to recover from a suspect’s person.  (Note:  A “patdown” of a person’s outer clothing [a “limited search”] when it is a firearm or other offensive weapon that it is suspected the suspect may be concealing, as opposed to drugs or illegal paraphernalia, is lawful when based upon no more than a “reasonable suspicion,” due to the inherent danger involved.)  However in this case, the detective testified to seeing what he—with his prior training and experience—recognized to be a “very large and obvious bulge” in defendant’s sweatshirt “that likely indicated a concealed firearm.”  The case law gives “significant weight” to an officer’s expertize on this subject; i.e., his “observation of a visible bulge in an individual’s clothing that could indicate the presence of a weapon.”  The Court, therefore, held here that “a bulge that appears to be a concealed firearm can form the basis for a Terry stop in a jurisdiction where carrying a concealed weapon is presumptively unlawful” (such as California), and when the observation is made by an officer with the necessary training and experience giving some weight to such an observation.  In this case, all these elements were satisfied.  Defendant’s detention, therefore, was lawful.

A couple of things:  The search of Mills’ person and the recovery of his firearm was not discussed here.  This appeal dealt with Bontemps’ issues only.  Secondly, note that defendant was never patted down for weapons; the detective going straight to a full body search.  Whether or not the necessary “probable cause” to do a full search (as opposed to a more limited patdown for weapons) existed under these facts was never discussed.  But with a firearm already taken off of Mills, the distinctive bulge in defendant’s clothing that, with Detective Tonn’s training and experience, appeared to be a firearm, and defendant’s sudden loud and combative attitude to the point where Detective Tonn felt the need to Tase him, the existence of probable cause justifying the full body search doesn’t seem to have been an issue. That may be why defendant didn’t raise it.  Third; while you may not like having to use bodycams, the Court here commented on how Detective Tonn’s bodycam video substantiated his testimony that the bulge did in fact appear to be a firearm.  And lastly, the presumptive illegality of carrying a concealed firearm does not necessarily apply to other jurisdictions where CCW permits are easy to get, or maybe not required at all.  The Court cited Washington State as an example.  (Citing United States v. Brown (9th Cir. 2019) 925 F.3rd 1150, 1153-1154, holding that a tip that an individual “had a gun” in Washington did not support a reasonable suspicion of wrongdoing because carrying a concealed firearm is “presumptively lawful in Washington.”)  They could have also cited South Dakota (my current home state) where you don’t even need a permit to carry concealed.  But the bottom line in this new case is that whether or not an officer’s observation of a bulge in a person’s clothing supplies the necessary reasonable suspicion to stop and detain that person depends upon an evaluation of the totality of the circumstances, including (but certainly not limited to) the officer’s training and experience, the distinctiveness of the bulge, the recovery of a firearm from a co-suspect, and the combativeness of the suspect himself.  Going beyond the holding in this case, you might add to the list of relevant factors such things as the nature of the area (e.g., a “high crime” or an gang-controlled area), the time of the day or night, the suspect wearing warm, bulky clothing on a warm day, recent shootings in the area, an officer’s prior knowledge of the detainee’s criminal history, etc.  It comes down to a matter of using your training, experience, and just plain old-fashioned common sense.