A Handgun Placed Inside a Zipped-Up Backpack is Not a Concealed Weapon

by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu

               On patrol one evening, two police officers were patrolling an apartment complex.  The previous evening, there had been a report of a breaking and entering in the complex.  The officers decided to approach a vehicle in which Dorain Myers was sitting in the driver’s seat.  When the officers smelled the odor of marijuana emanating from the vehicle, they searched it and found a backpack on the front passenger’s side floor, leaning against the passenger seat.  When they opened a side of the backpack that was completely zipped in the closed position, they discovered a 40-caliber handgun.  They arrested Myers for possession of a concealed weapon and subsequently Myers was convicted of that charge.[1]

               Virginia Code §18.2-308 prohibits the carrying of a concealed weapon “about” a person without a permit.  However, there are numerous exceptions to this prohibition.  Section 18.2-308(C)(8) establishes an exception for a handgun “secured in a container” that is in “a personal, private motor vehicle.”  On appeal, Myers contended that he was not carrying a handgun “about his person” and, even if he was, the handgun was in a secured container and therefore fell within the C(8) exception.  The Virginia Court of Appeals rejected both of these arguments.  Because the Virginia Supreme Court overruled the Court of Appeals ruling that the handgun was not in a secured container and decided the case on this basis, it did not address Myers’ argument that the handgun was not “about his person.”[2]

               The Virginia Supreme Court began its resolution of the secured container issue by clarifying that the contention by the defendant in a concealed weapon case that he was carrying the weapon in a secured container is an affirmative defense.  That means that once the defendant “present[s] more than a scintilla of evidence …. that, if believed by the factfinder, could create a reasonable doubt as to the defendant’s guilt,” the burden shifts to the prosecution to prove beyond a reasonable doubt that (in this case) the exception to the concealed weapon prohibition was not present.  

               In this case, though, there was no disagreement between the prosecution and the defense that Myers’ handgun was contained in a fully-zipped compartment in a backpack.  The defense and prosecution also agreed that Myers was “a person who could lawfully possess a firearm,” that the weapon in the backpack was a handgun, and that the backpack was in a container.  The only issue was the legal question as to whether the backpack was a “secured” container under the C(8) exception to §18.2-308.

               The court began its analysis by looking at the legislative history of the establishment of the C(8) exception in 2010.  The court noted that while the legislative history “does not make it clear what the word ‘secured’ means, … it does clarify what the word does not mean.”  The version of C(8) sent to the Governor by the General Assembly required that the container in which the handgun was found be a locked container.  The Governor apparently thought this restriction was too narrow.  Utilizing his authority under Article V, Section 6 of the Virginia Constitution, the Governor sent the bill back to the General Assembly with the suggestion that the word “secured” be substituted for the word “locked.”  The General Assembly approved the Governor’s suggestion.

               By approving the Governor’s substituted language, it is clear that “secured” does not mean “locked.”  “Secured” is a less stringent requirement.  In other words, all locked containers are secured, but not all secured containers are locked.  However, the Supreme Court agreed with the Court of Appeals that “secured” means something more than merely “closed.”  It agreed with the Court of Appeals language indicating that in addition to being closed, a secured container “also must be latched or otherwise fastened.” 

               However, it disagreed with the conclusion of the Court of Appeals that, because of the ease with which a zipped backpack can be opened, a totally zipped-up backpack is not secure.  In reaching this conclusion, the Court of Appeals distinguished a zipped backpack from a latched gun case or a closed console or glove box.  The Court of Appeals viewed the gun case, console, and glovebox as less readily accessible than a zipped backpack.  The Supreme Court disagreed.  “The second or two that it would take to open a latch on a console, glove box, or gun case is no different from the second or two that it would take to open a fully zipped backpack ...  Myers’ handgun was no less ‘secured’ in his zipped backpack than it would have been in a latched gun case.”

               Like most court cases, the Myers case does not resolve clearly all the possible scenarios that a law enforcement officer may encounter.  A latched briefcase would seem to be clearly comparable to a zipped backpack and therefore a “secured container.”  On the other hand, an open cloth or paper bag would clearly not be “latched or otherwise fastened” and therefore would not be a “secured container.”  What about a grocery bag or other paper bag that has been rolled up at the top?  On the one hand, the rolled-up top of the bag does not seem to constitute a latching or fastening.  On the other hand, it would seem to require about the same amount of work to open the paper bag as it would to unlatch a brief case.  The Myers case creates a high bar for the prosecution to satisfy in establishing that a closed container is not secure.


[1]Myers v. Commonwealth (May 13, 2021), https://www.vacourts.gov/opinions/opnscvwp/1200165.pdf. All quotes in this article are taken from the Virginia Supreme Court’s opinion.

[2] Curiously, the Supreme Court’s opinion included a short, but very interesting discussion of two cases interpreting an earlier version of §18.2-308.  A 1909 case (Sutherland v. Commonwealth, 65 S.E. 15) held that a weapon carried in saddlebags with the flap down was not readily accessible to the rider and therefore not “about the person,” and a more recent 1979 case (Schaaf v. Commonwealth, 220 Va. 429) held that a zippered handbag carried by a woman was “about the person.”  What makes the discussion curious is that, since the Myers case was decided on the basis that the zipped-up backpack was a “secured container,” the discussion of the “about the person” issue in Sutherland and Schaaf was completely unnecessary.