Appeal from the Superior Court of the District of Columbia (F-7841-95) (Hon. Rafael Díaz, Trial Judge)
Before Terry, Schwelb, and Glickman, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appellant was charged with carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition. He filed a motion to suppress evidence, but it was denied after a hearing. Appellant then entered a plea of guilty, but reserved his right to challenge on appeal the denial of his m otion to suppress. See Super. Ct. Crim . R. 11 (a)(2). He now argues that the police did not have specific and articulable facts which would allow them to conduct a protective search of his car. We affirm.
At about 9:00 p.m. on September 15, 1995, Officer Darrell Green was driving southbound on Georgia Avenue with his partner, headed toward Howard University Hospital. As he was proceeding in the right lane, a blue Ford Tempo which was slightly ahead of him in the left lane suddenly began to veer into his lane. Officer Green honked the horn, but the other car continued into his lane. Officer Green then slammed on the brakes, "hit the air horn and . . . turned on [his] emergency lights to conduct a traffic stop."
The blue Tempo slowed down, but did not stop. Officer Green said that there were several places to stop, and that every time the car passed one, he would hit the siren again. The officer, however, did not believe that the driver was attempting to flee. After about one block, the Tempo pulled into the parking lot of a fast food restaurant. Officer Green followed it into the lot, parking his car about fifteen feet away and nearly perpendicular to it so that his car was facing the driver's side of the Tempo.
While Officer Green was still seated in his car, he saw the driver of the Tempo -- later identified as appellant -- begin to move around. As he got out of his police car and approached the Tempo, Officer Green continued to watch appellant. Green described appellant's movements as follows:
I could pretty m uch only see . . . sh oulder high. It appeared to me -- his arms were down by his side. It appeared to me that his body kind of lifted up a little bit, and then, while looking at me, bent way down and kind of appeared to be either putting som ething underneath the seat, underneath the driver's seat, but definitely didn't take his eyes off me at all. Looked at me when I pulled my vehicle up, kind of raised his body up a little bit, and then bent all the way down. When he got all the way down, I could pretty much just see his head, and . . . just o ne eye, maybe two, and then he sat back up.
Officer Green also noticed that appellant's eyes were "wide" and that he "looked kind of scared."
"Based on experience, the movement, [and] gestures," Officer Green believed appellant was pulling a gun from his waist and putting it under the seat. Green testified that he had been a police officer for five years and had worked in the Fourth District, where these events took place, for four of those years. He described the Georgia Avenue corridor as "high crime, violent crime, it's high narcotics, it's high everything -- burglaries, robberies." He also said that he had had previous experience with people engaging in similar movements after being pulled over, resulting in the discovery of weapons beneath their seats.
Officer Green approached the car with his hand on his gun, but he did not pull it out of its holster. When he reached the car, he told appellant to put his hands on the steering wheel and told the other passengers to put their hands up where he could see them. He then asked appellant for his license and registration. Appellant retrieved his registration from the glove compartment and handed it to the officer, along with his driver's license. Officer Green then asked appellant to step out of the car and signaled to his partner to pull the front seat passenger out of the car while the back seat passengers "kept their hands on the backs of the [fron t] seats." Officer Green then directed appellant to move to the rear of the car and said, "Look, I know you put something underneath the seat." When appellant denied that he had done so, Green responded, "I'm going to check," and appellant said, "Go ahead." *fn1
Officer Green then shined his flashlight under the seat and discovered a gun there, which he seized.
Appellant corroborated much of Officer Green's testimony, but he denied that he was putting a gun under the seat, stating instead that he had merely bent over to turn down the radio. He explained that he usually reclined his seat in his car, so that he had to sit up and lean forward to reach the radio dial. He admitted owning the gun, but he said he had put it ...