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07/02/92 D.E.W.

July 2, 1992

IN RE D.E.W., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Jose M. Lopez, Trial Judge)

Before Rogers, Chief Judge, and Terry and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge : Appellant D.E.W., a passenger seated in a car which had been stopped by police after its driver committed a traffic violation, asserts that a police officer unlawfully seized him by ordering him from the car and frisking him for a weapon. He contends the trial court erred in failing to suppress the pistol as evidence and seeks reversal of the judgment against him for carrying a pistol without a license, D.C. Code § 22-3204(a) (1991 Supp.), possession of an unregistered firearm, D.C. Code § 6-2311(a) (1989), and possession of unregistered ammunition, D.C. Code § 6-2361 (1989). We affirm.

I.

Officer Vernon Dallas was patrolling in a marked cruiser when he observed two juveniles riding past him in a car. D.E.W. was the passenger; another juvenile was driving. Officer Dallas testified that as he passed the juveniles' car they looked at each other as if they were nervous about being seen by Dallas. Officer Dallas made a U-turn and followed the car. After the juveniles' car illegally passed through several stop signs, the officer radioed his dispatcher and requested assistance. When Officer Cullen arrived in a second patrol car, Officer Dallas activated his emergency equipment. In response, the driver of the car immediately pulled over.

Officers Dallas and Cullen exited their vehicles and approached the juveniles' car with Dallas on the driver's side and Cullen on the passenger's side. As Cullen approached, he observed D.E.W. trying to "shove something down the front part of his pants" under his coat. When Officer Cullen stepped up to the car, D.E.W. stopped moving and "held his hands over the area where he was pushing." Because of D.E.W.'s actions, Officer Cullen believed that D.E.W. was concealing a weapon. Consequently, he drew his gun and ordered D.E.W. out of the car. After D.E.W. complied, Officer Cullen patted D.E.W.'s waist, felt a hard object, and removed a pistol from D.E.W.'s pants. D.E.W. was then placed under arrest.

The trial court ruled that the traffic violations gave the police officers probable cause to stop the car in which D.E.W. was a passenger. The court also found that D.E.W.'s unusual movement in the car -- trying to shove something into his pants -- gave Cullen articulable suspicion that D.E.W. was concealing a weapon. Therefore, the trial court ruled, Cullen acted reasonably in ordering D.E.W. from the car to frisk him for a weapon.

II.

D.E.W. contends the trial court erred in refusing to suppress as evidence the pistol recovered from him. Specifically, he contends Officer Cullen illegally seized him by ordering him out of the car because Officer Cullen "had no 'specific and articulable facts' that D.E.W. was either armed and dangerous or engaged in criminal activity."

We begin with the well settled principle that "in the course of a lawful stop, a police officer may conduct a reasonable search for weapons for his own protection 'where he has reason to believe that he is dealing with an armed and dangerous individual . . . .'" United States v. Mitchell, 293 U.S. App. D.C. 24, 951 F.2d 1291, 1295 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968)). In reviewing the validity of such a Terry seizure, we apply an objective test of reasonableness: "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. 1, 27, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). We must consider the totality of the circumstances and not view each specific act or circumstance in isolation. Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc). Moreover, "the evidence of suspicion 'must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'" Id. at 1322 n.9 (quoting United States v. Cortez, 449 U.S. 411, 413, 66 L.Ed.2d 621, 101 S.Ct. 690 (1981)). "'In judging the reasonableness of the actions of the arresting officer,' the circumstances 'are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'" Id. at 1322 (citation omitted).

"In reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Id. at 1320 (citation omitted). In this case, Officer Cullen encountered D.E.W. as he sat in a car that had been lawfully stopped by another police officer. Contrary to D.E.W.'s characterization of the facts, the trial court found that his "'energetic' moving of hand" in the car was not simply a "gesture." Rather, Officer Cullen observed D.E.W. shoving something into the front of his pants while seated in a car as police officers were about to conduct an investigation. Based upon his experience, Officer Cullen believed D.E.W. was moving his hands under his coat in a manner suggesting that he was concealing a weapon. Viewed under the applicable standards, we find nothing unreasonable about Officer Cullen's actions. Rather, his actions constituted reasonable and prudent "steps to assure himself that the person with whom he dealing not armed with a weapon that could unexpectedly and fatally be used against him." Terry, supra, 392 U.S. at 23.

D.E.W. asserts that a routine traffic violation does not provide a police officer with sufficient justification for seizing a passenger riding in a car stopped for such a violation. A police officer, D.E.W. contends, may seize a passenger only if that officer has particularized suspicion that the passenger was involved in some criminal activity. We need not decide whether during a "routine" traffic stop a police officer may order a passenger out of a car in which he is riding, and thus effect a "seizure" beyond that which necessarily occurs when the car is stopped, because this case involves more than a "routine" traffic stop. Here, the police officer had reasonable articulable suspicion that D.E.W. was engaged in criminal activity -- the concealment of an illegal weapon. *fn1 Thus, the action taken by the police officer, ordering D.E.W. out of the car and frisking him for a weapon, was lawful.

In Mitchell, supra, the United States Court of Appeals for the District of Columbia Circuit affirmed the denial of a motion to suppress as evidence a gun recovered from a passenger under circumstances remarkably similar to those presented in this case. There a police officer stopped a car for speeding and for failing to signal before turning. A second officer, who had responded to the first officer's call for assistance, approached the passenger side of the car. He observed a passenger "moving both his hands inside his coat as he leaned forward." Because the passenger's action made the officer believe that the passenger had a weapon, the officer opened the door and ordered the passenger out. The officer, observing perspiration on the passenger, inquired why he was perspiring. When the passenger responded that it was hot, the officer said "if you're so hot why don't you take your coat off?" When the passenger complied, the officer observed a large bulge under the passenger's sweater above his waist. At that point, the officer frisked the passenger and discovered a pistol in his pants. The court concluded that the officer's actions were reasonable:

In this uncertain and potentially dangerous situation, [the officer] walked to the car and observed [the passenger] moving both his hands under his coat in a manner suggesting that he was hiding a gun. Based upon his experience, these facts led him to believe that [the ...


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