Appeal from the Superior Court of the District of Columbia (CF2-4786-10) (Hon. Jennifer Anderson, Trial Judge)
The opinion of the court was delivered by: Beckwith, Associate Judge
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and BELSON, Senior Judge.
Opinion for the court by Associate Judge BECKWITH.
Dissenting opinion by Senior Judge BELSON at page 23.
Appellant Tyrone Jackson entered a conditional guilty plea to one count of possession with intent to distribute cocaine after police stopped his van for an apparent window tinting violation, searched the van, and found cocaine concealed in the horn of the steering wheel. Mr. Jackson argues, among other things, that the cocaine and other items found in the van should have been suppressed because the police searched his van without reasonable articulable suspicion that he was armed and dangerous. We agree with Mr. Jackson that the police did not have reasonable suspicion to believe they were dealing with a dangerous person, and that their search of the van thus violated the Fourth Amendment. We therefore reverse the trial court‟s denial of Mr. Jackson‟s motion to suppress.
At the suppression hearing in this case, United States Park Police Officer Lando Norris testified that on March 17, 2010, at around 10:48 p.m., he was driving a marked police cruiser south on Minnesota Avenue in the southeast quadrant of Washington, D.C., when he noticed a white Chevrolet van with what he suspected was illegal window tinting stopped at a stop sign on 18th Street waiting to turn left onto Minnesota Avenue.*fn1 From about 75 yards away, Officer Norris could discern through the front windshield that a woman was driving the van, which had Maryland plates. Having pulled over vehicles for suspected window tint violations between 1500 and 2000 times, Officer Norris estimated that the window tinting on the van was darker than what was allowed in either Maryland or the District of Columbia.
After the van turned onto Minnesota Avenue, Officer Norris activated the lights on his cruiser and the van pulled over immediately. A streetlight illuminated the area and provided "pretty fair lighting." When the van came to a stop Officer Norris noticed that it "began to rock" and "there was a lot of shaking," so instead of running the registration, he immediately got out of his cruiser and walked to the driver‟s side door. Officer Norris believed that Officer Alton, another police officer who was driving a cruiser just a car or two ahead of him, had seen him initiate the stop and was doubling back to assist, though he was alone at the outset.
As he approached the vehicle‟s door with his flashlight, Officer Norris could see inside the van and immediately noticed that a man-Tyrone Jackson-was sitting in the driver‟s seat, and that "obviously they had switched seats because the female was no longer in the driver‟s seat, she was now in the passenger seat." Officer Norris also saw "a lot of movement," "a commotion going on in the front dash area," and "hands moving in the dash area." He said he "was able to see [Mr. Jackson‟s] hands" and that he saw "movement along the dash area"-"there were just unnecessary movements." According to Officer Norris, "it wasn‟t anything normal that you see on a traffic stop" and it was "something [he] hadn‟t seen before or that [he was] not used to seeing." He also stated that "a lot of people when they do a lot of movement around usually they start to place weapons or try to retrieve weapons or what have you."
Officer Norris immediately opened the driver‟s door to find that Mr. Jackson‟s hands were "visible" and "in plain view" at "the bottom part of the steering wheel" and "resting down by his lap." Officer Norris twice asked Mr. Jackson what he had been doing, to which he twice replied "nothing," though Mr. Jackson was also "pretty forthcoming" in acknowledging that he and the woman had switched places after the officer stopped them because she was not licensed to drive. Officer Norris ordered Mr. Jackson to step out of the van "because of all the movement." When he asked Mr. Jackson whether he had any weapons on him, Mr. Jackson responded no, and the officer found no weapons after Mr. Jackson agreed to be patted down. Mr. Jackson "had [a] nervous approach about him" and Officer Norris could "feel how hard [Mr. Jackson‟s] heart was beating."
By this point Officer Alton had arrived and Officer Norris briefed him. Officer Alton handcuffed the female passenger and had her sit on the sidewalk while Officer Norris handcuffed Mr. Jackson, placed him in the back seat of the cruiser, and told him he was not under arrest. Officer Alton then searched the front passenger compartment of the van for weapons and found a one-eighth-full bottle of gin under the van‟s rear floorboard, a small hatchet beside the driver‟s seat, and a couple of empty Ziploc bags. Officer Alton also removed the cover of the horn on the steering wheel after noticing that it looked out of position. There, he discovered numerous Ziploc bags containing a rock-like substance that subsequent testing indicated to be cocaine.
After determining that the window tinting was much darker than the legal limit in both the District of Columbia and Maryland, and that it allowed only 20 percent of the ambient light to be transmitted through the windows, Officer Norris issued Mr. Jackson a verbal warning for the violation. He determined only after police searched the van that although Mr. Jackson had a valid driver‟s license and the van was registered to him, the registration for the van had expired.
In its ruling on the suppression motion, the trial court noted that the police indisputably had probable cause to stop the van based upon the tinting violation, and that the key question therefore was whether they had reasonable articulable suspicion to search the vehicle. In the court‟s view, while the driver and passenger switching places "could heighten and did heighten [Officer Norris‟s] suspicion," it was "this movement towards the dash area" that Officer Norris observed as he approached the driver that most supported the officer‟s concern "that the defendant might be trying to retrieve a weapon."
The court then went on to consider whether the Supreme Court‟s decision in Arizona v. Gant,556 U.S. 332 (2009), nevertheless invalidated the search. Gant held that a warrantless search of a suspect‟s vehicle incident to a lawful arrest was unreasonable under the Fourth Amendment where the suspect was handcuffed and secured in a patrol car. Id. at 344. The trial court concluded that Gant did not render the search invalid here because, although Officer Norris could have arrested Mr. Jackson for driving an unregistered automobile, he had not yet determined that the van was unregistered at the time of the search. Thus, as Mr. Jackson was not under arrest when he was in the back of the cruiser, and as there was "a very distinct possibility that [he] would return to the car after the investigatory stop and regain access to the weapon," police had the right under Michigan v. Long,463 U.S. 1032 (1983), to conduct what amounted to a "pat down of the passenger compartment or those places where a suspect may gain immediate control of weapons." The court also found that removing the horn was not outside the scope of such a search for weapons as "it‟s about as reachable proximity as you can possibly get." It therefore denied Mr. Jackson‟s motion to suppress the evidence that was discovered during the search.
At the conclusion of the suppression hearing, Mr. Jackson entered a conditional plea to possession with intent to distribute cocaine, reserving his right to appeal the trial court‟s denial of the suppression motion. This appeal followed.
Mr. Jackson argues on appeal that the trial court should have suppressed the physical evidence found in his van because the police lacked reasonable suspicion to believe Mr. Jackson was dangerous and because the search also exceeded the allowable scope of a vehicle search for weapons under Michigan v. Long, supra. Mr. Jackson also argues that the Supreme Court‟s decision in Arizona v. Gant, supra, precluded the search as Mr. Jackson was handcuffed in the back of a police cruiser and not within reaching distance of the passenger compartment at the time of the search.
We apply a de novo standard of review to the trial court‟s conclusion that the search of Mr. Jackson‟s van was justified by reasonable articulable suspicion.
Turner v. United States,623 A.2d 1170, 1171 (D.C. 1993). In Michigan v. Long, the Supreme Court authorized what amounts to a Terry frisk of a vehicle‟s passenger compartment during a lawful traffic stop, allowing a search for weapons on something less than probable cause where "the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant‟ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." 463 U.S. at 1049-50 (quoting Terry v. Ohio,392 U.S. 1, 21 (1968)). To determine whether the police officer had a "particularized and objective basis" for his suspicion, we look at the "totality of the circumstances." United States v. Arvizu,534 U.S. 266, 273 (2002) (quoting United States v. Cortez,449 U.S. 411, 417-18 (1981)).
The trial court in this case viewed Mr. Jackson‟s movement around the dashboard as the pivotal fact creating reasonable suspicion to justify the search of the van. Because we likewise view Mr. Jackson‟s gesture as "[t]he knife‟s edge of that decision," Powell v. United States,649 A.2d 1082, 1090 (D.C. 1994) (Farrell, J., concurring), and because the circumstances would likely fall short of constituting reasonable ...