APPEAL FROM THE SUPERIOR COURT, JOHN H. BAYLY, JR., J.
Before Farrell and Reid, Associate Judges, and Gallagher,
The opinion of the court was delivered by: Reid, Associate Judge:
Appellant R.M.C. challenges the trial court's denial of his motion to suppress tangible evidence. He entered a conditional plea of guilty to carrying a pistol without a license, in violation of D.C.Code § 22-3204 (1996); possession of an unregistered firearm, [719 A2d Page 492]
in violation of D.C.Code § 6-2311(a) (1995); and possession of unregistered ammunition, in violation of D.C.Code § 6-2361, but reserved his right to appeal. The trial court placed R.M.C. in the custody of the Department of Human Services, and ordered an eighteen months restricted commitment to the Oak Hill Youth Center. R.M.C. filed a timely appeal. The specific question we must decide is whether the legitimate stop of appellant for suspected violation of the Juvenile Curfew Act, without more, justified the additional intrusion of frisking him, placing him against a car, and handcuffing him. We hold that it did not, and that the gun seized as a result of the unlawful bodily intrusion should have been suppressed.
During the hearing on R.M.C.'s motion to suppress, the government presented the testimony of Officer Michael P. Ursiny of the United States Secret Service Uniformed Division. At approximately 1 a.m. on November 18, 1995, Officer Ursiny and his partner were on "perimeter security" duty at the parking lot in the rear of 1308 Clifton Street, N.W. Their mission was "to provide any kind of security procedures for the officers [who] were conducting a sweep inside of [the] Clifton Terrace [apartments]," in response to "a tip that an individual who was wanted by [the Secret Service Uniformed Division] and [the] Metropolitan Police Department [for armed assault on police officers] . . . was . . . in the [Clifton Terrace] complex." *fn1 Officer Ursiny's partner saw three persons walk into the parking lot. In response to a communication from his partner, Officer Ursiny looked up and saw R.M.C. and another male walking with a female. He testified that:
Both male subjects had the girl literally sandwiched in between them. That, alone, I found to be a suspicious behavior; it's not normal to walk down the street in a group and be smashed up against one another, it's just not normal.
As [R.M.C.] and his associates, his friends, when they were approaching my partner and I, I didn't consistently and constantly stare at the three people; I would look and look away, and look and look away. I noticed how [R.M.C.] and the adult gentleman . . . displayed a nervousness. A couple of times I made eye contact with [R.M.C.], and he would abruptly look away, which displayed nervousness to me.
When asked by the prosecutor whether "[he] notice[d] anything about [R.M.C.'s] age which drew [his] attention," Officer Ursiny said: "After I noticed his physical behavior — with it being dark outside, I wasn't able to establish the fact that he was a juvenile until he was approximately 10 feet away from me." Officer Ursiny "made a stop" on R.M.C. When asked the purpose of the stop, Officer Ursiny stated: "It was a combination of me being able to identify him as a juvenile and the fact that he was out pas[t] the time limit. It was a weekend, so it would have been midnight, and this incident occurred after 1 a.m. in the morning." In response to the question as to whether his intent in stopping R.M.C. was to confirm his juvenile status, the officer stated: "Based on the observations I had made as [R.M.C.] and his associates were approaching my partner and I, based on my experience as a police officer and participation with [the Metropolitan Police Department's] Gun Recovery Unit, I had suspicions already that [R.M.C.] was armed." Government counsel asked what the officer did, and Officer Ursiny replied: "After I established the fact that he was a juvenile, I immediately effected a stop on him." When asked how he made the stop, Officer Ursiny said: "I took one step forward in his direction, reached out with my left hand, I believe, and I grabbed him by his left jacket sleeve. . . . And spun him around."
Because he believed R.M.C. "was armed," Officer Ursiny "placed him up on top of a car." The officer "checked [R.M.C.'s] waistline on the right side, from the front where his navel would be, around to his right hip." He found nothing. While he was conducting his "brief check of [R.M.C.'s] waistband on [719 A2d Page 493]
the right side," Officer Ursiny's partner engaged in "a scuffle" with the other male. In order "[t]o keep control and to take custody of [R.M.C.] because of the fact that he was a juvenile . . .," Officer Ursiny handcuffed him "so [he could] . . . help [his] partner." As he placed R.M.C. on the ground, Officer Ursiny noticed he had a 9 millimeter gun because "the gun was dangling, and the butt of the pistol struck the pavement. . . ." *fn2 Officer Ursiny testified that if he had found no gun on R.M.C., he "would have enforced the Juvenile Curfew Act and taken him into custody." He acknowledged that "[he would] have performed a routine search incident to arrest" had he taken R.M.C. into custody for violation of the Juvenile Curfew Act.
On cross-examination, Officer Ursiny admitted that he made no attempt to determine whether R.M.C. was with a parent or legal guardian, and that he had received no "radio run" or police broadcast concerning R.M.C. He made no effort to determine R.M.C.'s actual age, saying only: "Based on his physical features, it was obvious that he was not [eighteen years of age]." Defense counsel used Officer Ursiny's November 18, 1995 testimony at the probable cause hearing to show that details given during his suppression motion testimony were different from those given during the probable cause hearing. In addition, he attempted to demonstrate that the narrative section of the PD-379 form, which Officer Ursiny completed. differed in detail from his trial testimony. When he was asked about his PD-379 narrative statement that R.M.C. "seemed to clutch his rib cage with his right arm," Officer Ursiny replied: "Clutch or be protective. I didn't — with him being sandwiched up against his female companion, there was no swinging of his right arm, there was no natural movements, which I would describe as clutching." In response to additional cross-examination questions, Officer Ursiny agreed that R.M.C. did not run away from him; the officer did not see R.M.C. put anything in or take anything out of his pocket; the officer did not see a bulge in R.M.C.'s waist, or view anything in his hands. The officer acknowledged that the female in R.M.C.'s company was not being threatened; and that R.M.C. made no threatening gestures to the officer or to anyone else.
After discussion between the trial judge and counsel, the court denied R.M.C.'s motion to suppress. The judge credited the testimony of Officer Ursiny and stated: "I think he stopped him lawfully for an apparent or suspected violation of the curfew law." He added: "I think . . . it was not wrong . . . for him to stop [R.M.C.] for violating the curfew law, even if he had it in mind that what was more important was that [R.M.C.] may have had a pistol on his person." He continued:
Well, I think the police here were legally permitted and objectively authorized to have stopped [R.M.C.] for an apparent violation of the curfew act. And even if they had another motive in mind, even an overwhelmingly more pressing motive, or a second motive, . . . I don't think that the stop was unlawful. I do not think it was unreasonable. And ...