The opinion of the court was delivered by: Newman, Senior Judge
Before OBERLY, Associate Judge, and NEWMAN, Senior Judge,*fn1 and REID, Senior Judge.*fn2
A jury found Johnson guilty of murder of a law enforcement officer while armed, aggravated first-degree murder while armed, and related other offenses, all stemming from the shooting death of Metro Transit Police Officer Marlon Morales while on duty inside the U Street Metro station in Northwest D.C. on June 10, 2001. In these consolidated appeals, Johnson challenges, on Fourth Amendment grounds, the denial of his motion to suppress Officer Morales' service weapon (and his statements relating thereto), which police seized from Johnson during a traffic stop and frisk in Philadelphia four days after Morales was shot. He also contests the trial court's denial of his motion for a new trial based on newly discovered evidence in the form of an alleged recantation by a government witness. We hold that the trial court correctly analyzed the evidence and the law relating to the seizure and that the suppression motion was properly denied because the Philadelphia police acquired articulable reason to suspect that Johnson might be armed and pose a danger to their safety before the frisk occurred. Because we also find that the court did not erroneously exercise its discretion in denying the motion for a new trial, we affirm.
At the suppression hearing, the government presented the testimony of two Philadelphia police officers, Michael Harvey and Lisa Heil. While on motor patrol in Northwest Philadelphia, Officer Harvey observed Johnson driving an Oldsmobile with an expired inspection sticker. Using the overhead lights and siren on his marked police car, Officer Harvey signaled to the driver to stop, but saw that he appeared reluctant to comply and was "very nervous," looking "to his left, his right" and "over his shoulders," not "like he was going to stop." When two other police cars pulled into the street ahead of Johnson, however, he stopped the Oldsmobile and opened the driver's door. Officer Harvey ordered him to close the door and stay in the car, then approached and asked for his driver's license and registration. Johnson retrieved a registration from the glove box but stated that "he did not have a driver's license, that he was out running an errand to pick up diapers for ... his baby's mother." He appeared "hyper" to Officer Harvey, "moving around a lot in the vehicle" and saying that "he was on his way home from getting diapers and ... had to get these diapers home." Officer Harvey "saw no diapers within the vehicle." He radioed a stop report to the police dispatcher describing the car and tag number. While doing so he noticed Johnson again open the car door to exit, and he again ordered him to stay inside the vehicle.
At that point two backup officers, including Officer Heil, arrived on the scene, and simultaneously a report came over the police radio stating that the car was in a "try and locate status." Officers Harvey and Heil both testified what this meant and required of them under Philadelphia police practice. According to Officer Harvey, a "try and locate" vehicle is one that has been:
taken by somebody that the owner knows. It's not necessarily a stolen vehicle, but it's taken by someone that the owner knows and the owner wants the vehicle back. After so many days, the vehicle's supposed to be put in the system as stolen, but due to the volume of cars that are in "try and locate" status, a lot of times they're not updated as stolen cars.
Once a car is known to be in this status, Officer Harvey explained, the police "remove the driver from the vehicle and recover the vehicle for the owner.... We attempt to either contact the owner and have them pick it up at the location, or we have the vehicle towed to a secure location and then the owner can pick [it] up from there." When a car is in the "try and locate" status, Officer Harvey continued, both the car and the driver "get [ ] investigated." "[A]s far as vehicle investigations ... you ... run the tags, confirm valid registration, whether the car is in stolen status or not whether it's a felony vehicle.... [A]lso, the operator. You have to make sure there's no [']wants['] and that he has a good license." The need to investigate the driver was heightened, Officer Harvey added, "because of the totality of all the circumstances," the fact that he "didn't have an ID on him," his suspicious statement about the diapers, and "his movements throughout the ... car stop." Thus, when the report came back on the "try and locate" status of the car, Officer Harvey decided that he needed to clarify "who [Johnson] was at that point ... [a]nd until I was able to run him, either through BMV [Bureau of Motor Vehicles] to find out if he had a license or whatever or an ID card," he was going to be detained on the scene.*fn3 Officer Heil's similar understanding was that, given the combination of the "try and locate" report—a status akin to but not the same as "reporting [the vehicle] stolen"—and Johnson's failure to have a driver's license or "proof of who he [was]," the police were authorized to "detain him and even take him in for investigation."
The officers therefore ordered Johnson out of the car and attempted to position him against the rear of the Oldsmobile to create some space between the vehicle and the front of Johnson's body to be able to pat him down. Shortly thereafter, however, Johnson resisted placing his hands against the car and moved one of them down to his waist or thigh area, an action he immediately repeated. Attempting to restrain him, Officer Harvey looked down and saw that Johnson was grabbing the handle of a gun sticking out of his left pant leg. After an intense struggle involving Johnson and the three police officers (as well as an off duty officer who fortuitously arrived on the scene), the officers seized the gun, subdued and arrested Johnson.
Based upon these facts, Judge Keary found that, although Johnson had been stopped for a traffic violation, the circumstances gave them reason to suspect that his involvement with the Oldsmobile was criminal in nature and that he might be armed. Crediting Officer Harvey's testimony in particular, she found that when the car was reported missing and in the "try and locate" status, he had reason to suspect that "the car m[ight] be stolen," and thus that further detention of Johnson on the scene would be necessary:
[I]n such a scenario, [the judge found,] the record reflects that a driver must be investigated. He cannot leave the scene.... [I]n Mr. Johnson's case, the police ... had very little information on him.... [T]hey know he has no license, no identification to reflect a name. Clearly, they have grounds to detain him further to conduct some limited investigation.
And, Judge Keary reasoned, this need for continued immediate contact with Johnson during the investigation prompted a reasonable concern for the officer's safety, given Johnson's entire behavior:
First, [Johnson] was hesitant about pulling over, initially, and did not immediately pull over in response to the sirens and the lights.
Second, [Johnson] was looking around, behind and to the side of him, and showed signs of nervousness or hypervigilance.
Third, [Johnson] tried to exit his vehicle while Officer Harvey was still inside his, having just stopped; and had to be told by Officer Harvey not to get out, and to stay in the car, with the door closed.
Fourth, having been told once not to get out of the car, [Johnson] later tried again to exit the vehicle, and had to again be told to stay in the car; factors which the officer certainly found suspicious and of concern....
Fifth, when Officer Harvey talks to [Johnson], [Johnson] gives a name which is false—although Officer Harvey certainly does not know that at that point—and seems somewhat nervous, and like he did not want to be detained for very long, and did not wish to be delayed.
Sixth, [Johnson] had no license.
Seventh, [Johnson] gave an explanation of being on his way home from an errand to get diapers, but Officer Harvey saw none in the car.
Eighth, Officer Harvey describes [Johnson] as being hyper, and moving around a lot in the vehicle.
And lastly, the vehicle is reported to be in "tried to locate" status, which means that the car may be stolen[.]
Judge Keary then listed the following factors as justifying the officer's frisk due to safety concerns:
[Johnson] is behaving in a suspicious fashion: First, having not immediately stopped his vehicle in response to the police sirens; then two times having tried to exit the vehicle, even after having been told once not to; also driving without a license; also saying that he has bought diapers when none can be seen in the car; and then having in his possession a vehicle which ...