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August 12, 1997

LARRY D. COLEY, JR., Defendant.

The opinion of the court was delivered by: ROBERTSON

 On June 30, 1997, I granted defendant's motion to suppress guns, drugs and ammunition seized by the police from a motor vehicle driven by defendant and to suppress a statement made by defendant. The government has moved for reconsideration. The motion for reconsideration presents a legal theory different from, and inconsistent with, the government's original submission. The facts have not changed, however, and they are serious enough facts to compel reconsideration even if the government's legal theory has changed.


 On January 29, 1997, Officer Dennis Bosak initiated a traffic stop of a Chevrolet Citation hatchback after he noticed that the vehicle had an expired Virginia inspection sticker. Bosak learned through police radio communications that the tags on the vehicle were issued for a Toyota, and not for the car he had stopped. Bosak approached the car and asked defendant, who was driving, for his vehicle registration. Defendant failed to produce it, telling Bosak that he and his brother had bought the car at an auction. Bosak asked defendant whose tags were on the car. Defendant admitted that the tags were issued for his brother's Toyota.

 Bosak then asked defendant to step out of the car, intending "to place him under arrest for operating an unregistered vehicle." Tr. 9. *fn1" The officer told defendant to put his hands on the car and, as he began to search him, asked defendant whether he had any weapons or drugs on his person. Tr. 9-10. Defendant nodded his head toward the trunk of the car and said that he and his passenger had just come from the pistol range in Maryland. Tr. 10. At that point, Bosak stepped defendant to the rear of the car, handcuffed him, and searched the car. He opened the trunk of the hatchback with the trunk key. There he found one pistol in a green knapsack, another in a box next to the green knapsack, and -- inside a jacket thrown over the knapsack and the other pistol -- 24.3 grams of crack cocaine. He also found ammunition. As Bosak was opening the knapsack and looking inside, defendant said, "That's mine." When Bosak began to search the jacket, defendant said, "Oh, fuck."

 Defendant moved to suppress the physical evidence and all of the statements. The government's first opposition maintained that the rear of the hatchback was part of the interior compartment of the vehicle and subject to search incident to defendant's lawful arrest. New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981). *fn2" At the first evidentiary hearing, both sides focused on the question whether driving an unregistered vehicle was an "arrestable offense" for purposes of Belton. A second evidentiary hearing was conducted to establish the precise configuration of the hatchback vehicle, the position and condition of the rear seats, and whether access to the rear compartment was available without using the trunk key.

 A few days before the second evidentiary hearing, the government filed a second opposition to defendant's motion. In that submission, the government suggested for the first time that defendant was not arrested until after the search of the vehicle. I did not hear argument at the second evidentiary hearing, and, in my June 30 order granting the motion to suppress, I made only passing reference to the government's new position, concluding that it conflicted with Bosak's testimony. Order of June 30, 1997 at 3 n.3.


 The government's motion to reconsider argues that Bosak's actions and questions were lawful in the context of the investigatory stop he had initiated and that defendant was not in custody when he made the incriminating statement that gave Bosak probable cause to search the automobile. Upon reconsideration of the entire record, and for the reasons set forth below, the motion will be denied as to defendant's responses to Bosak's question about weapons and drugs but granted as to the physical evidence. The drugs, guns and ammunition appear to be admissible.

 1. The Terry stop

 In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the Supreme Court rejected a Fourth Amendment challenge to investigative detention by law enforcement officers. Subsequent decisions have established that a police officer who lacks probable cause but whose "'observations lead him reasonably to suspect' that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to 'investigate the circumstances that provoke suspicion.'" Berkemer v. McCarty, 468 U.S. 420, 439, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975)). Such a "stop and inquiry must be reasonably related in scope to the justification for their initiation." Id. (internal cites and quotes omitted). An officer "may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Id. Our Court of Appeals applied the Berkemer analysis in U.S. v. Gale, 293 U.S. App. D.C. 218, 952 F.2d 1412 (D.C. Cir. 1992), and the government now argues that Gale controls my decision in the case at bar.

 In Gale, law enforcement officers received a tip from a reliable informant that the driver of a particular vehicle possessed drugs. Acting on the tip, the officers pulled the vehicle over and blocked its movement. Two officers then approached the car, one on each side. The officer on the driver's side asked for the suspect's license. The name on the license corresponded with the informant's identification of the suspect. The officer told the suspect to step out of the car and, while the suspect was still in the car, asked if he had any drugs. The suspect said he had drugs and removed bags of crack cocaine from an area between the front seats of the car. The officer then ordered the suspect out of the car and arrested him.

 The District Court denied defendant's motion to suppress, and the Court of Appeals affirmed, holding that pulling the suspect over, blocking his car, and approaching the car to question him did not amount to an arrest. 952 F.2d at 1415. The court held further that the officer's request for a driver's license and his questions about drugs were "reasonably related in scope . . . to determine [the suspect's] identity and to try to obtain information confirming or dispelling [their] suspicions that he was in possession of illegal drugs." Id. (internal quotes and citations omitted).

 In the instant case, as in Gale, the officer's questions about defendant's registration, about who owned the vehicle, and about whose tags were on the car were reasonably related in scope to Bosak's reasonable and articulable suspicion that he had stopped the driver of an unregistered car. *fn3" But because Officer Bosak did not fear for his safety at any time during the incident, Tr. 36, his pat down search of defendant was not "reasonably related in scope" to his reasonable and articulable suspicion. *fn4" Furthermore, because Officer Bosak had no reason to believe that defendant ...

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