Antione W. TUCKSON, Appellant,
UNITED STATES, Appellee.
Argued Dec. 19, 2012.
Justin Murray, Public Defender Service, with whom James Klein, Jaclyn Frankfurt, Shilpa S. Satoskar, and Premal Dharia, Public Defender Service, were on the brief, for appellant.
Trevor N. McFadden, Assistant United States Attorney with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Kimberley Nielsen, and Amanda Winchester, Assistant United States Attorneys, were on the brief, for appellee.
Before FISHER and THOMPSON, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge:
Antione Tuckson  appeals his convictions for carrying a pistol without a license, unlawful possession of a firearm, and unlawful possession of ammunition. Tuckson's convictions stem from the discovery of a loaded pistol and extra ammunition in his car. The search of Tuckson's car occurred after he was arrested for possession of a prohibited weapon and impersonating a police officer. On appeal, Tuckson argues that the police lacked probable cause to arrest him, and that the trial court erred when it denied his motion to suppress the gun and ammunition. We agree, and reverse Tuckson's convictions.
I. The Motion to Suppress
The following facts were presented at the hearing on Tuckson's motion to suppress. On March 18, 2009, Tuckson drove his 2001 Chevy Impala into a cul-de-sac on 37th Street, S.E. Tuckson's car was outfitted with dark windows, long antennas, a " police-style dash light," and other features that made it appear to be " an undercover or unmarked police vehicle." Unluckily for Tuckson, members of the Metropolitan Police Department's gun recovery unit happened to be leaving the
cul-de-sac as he drove by. Detective Kirk Delpo noticed Tuckson's car, and realized that the license plate was inconsistent with those used on police vehicles. Delpo ran Tuckson's plates, and determined that Tuckson, not the police department, owned the car. Based on this information, Delpo suggested to the other officers that they stop Tuckson and investigate.
Before the officers could stop Tuckson, he parked in front of a fire hydrant and got out of the car. He was wearing " nice" clothes— " a pair of slacks" and " a button-down shirt" — and a pair of " thin gloves." Delpo thought Tuckson's gloves looked like " the style that police officers would wear." Tuckson walked to a nearby doorway, where he gave someone a set of keys.
As Tuckson walked back to his car, he was stopped by Sergeant Sloan. Sloan asked Tuckson " if he was a police officer," and Tuckson answered that he was not. Sloan then informed Tuckson that " he was parked illegally and the tint on his window appeared to be illegal." Sloan requested Tuckson's driver's license, registration and insurance, which Tuckson produced. In response to further questioning by other officers, Tuckson denied that he had " any guns," refused to give consent for a search, and then handed over his keys so that the officers could conduct a window tint check.
In order to conduct the window tint check, Officer Malsona (another officer on the scene), opened Tuckson's driver's side door. After opening the door, Malsona noticed a collapsible baton, or " asp,"  in a holster in the door pocket. Malsona then alerted the other officers to the presence of the baton, and Tuckson was placed under arrest because he had a " prohibited weapon ... in the vehicle" and because he " appeared to be impersonating a police officer." At no point during this encounter with the police did Tuckson carry, reach for, make gestures toward, or use the baton. After Tuckson was placed under arrest, Delpo searched the car. Under a jacket in the front passenger seat, Delpo found a loaded semi-automatic pistol, " police handcuffs, and an extra magazine." After the search concluded, Tuckson's vehicle was seized.
The Trial Court's Findings
The trial court found that the officers had reasonable suspicion to detain appellant and investigate the illegal tinting on his windows and his illegally parked car. Further, the trial court determined that reasonable suspicion existed to investigate whether appellant was impersonating a police officer. The court ruled that, when he was detained, appellant voluntarily handed-over his keys, and the police permissibly opened the driver's side door, where the officer observed the baton.
At that point, the trial court held, " the police had probable cause to believe that [Tuckson] intended to use [the baton] unlawfully in that [Tuckson] intended to use it to in the future commit the crime of impersonating a police officer." The court elaborated, noting that the police " had all this information that suggested that he was going to do so in the future." Because the court " believe[d] that [impersonating a
police officer] would be an unlawful use of the [baton]," it concluded that the police " had probable cause" for the " unlawful use" element of possession of a prohibited weapon.
The trial court found that the officers had probable cause to believe that Tuckson possessed the baton with the intent to use it unlawfully, i.e., to use it in the future to commit the crime of impersonating a police officer. The trial court also concluded that, although appellant had not yet committed the crime of " impersonating a police officer," there was probable cause to believe that appellant " was about to commit" that crime. But the court believed that, unless the police could " show that a crime was committed," they did not have probable cause to arrest for that offense. After analyzing the Supreme Court's opinion in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the trial court concluded that officers could have searched the car only if they believed the car contained further evidence of the crime for which appellant had been lawfully arrested, i.e., possession of a prohibited weapon.  The court upheld the search at issue in this case on that basis, ruling that the officers had reason to believe the car would contain additional evidence of appellant's intent to commit the crime of impersonating a police officer, which the court had identified as the " unlawful use" appellant intended to make of the baton, making it a prohibited weapon.
" When reviewing the denial of a motion to suppress, we defer to the trial court's findings of fact, but we determine questions of law de novo. " Napper v. United States, 22 A.3d 758, 766 (D.C.2011) (citation omitted). Whether the facts found by the trial court— to which we defer— suffice to establish probable cause is a question of law. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, " [i]t is well settled that an appellate court may affirm a decision for reasons other than
those given by the trial court," provided there is a sufficient evidentiary basis and no procedural unfairness to the parties. Purce v. United States, 482 A.2d 772, 775 n. 6 (D.C.1984) (citation omitted). Thus, in order to ensure that there is no " substantial basis" for upholding the trial court's order, Dickerson v. United States, 677 A.2d 509, 512 (D.C.1996) (internal citation and quotation marks omitted), this opinion will analyze whether the search was valid under several theories— two presented to the trial court and a third presented in the government's brief on appeal as an alternative basis for affirmance. We decline to decide a fourth theory raised in response to the court's request for supplemental briefing after oral argument.
Possession of a Prohibited Weapon and Carrying a Dangerous Weapon
First we address whether, as the trial court concluded, the police had probable cause to arrest appellant for a violation of D.C.Code § 22-4514(b) (possession of a prohibited weapon) or, applying similar logic, the trial court could have permissibly concluded the arrest was valid under D.C.Code § 22-4504(a) (carrying a dangerous weapon). As we have stated before, " [t]he determination of probable cause is an inexact judgment." Price v. United States, 429 A.2d 514, 516 (D.C.1981). " The classic formulation is that probable cause exists where the facts and circumstances within ... the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Perkins v. United States, 936 A.2d 303, 306 (D.C.2007) (internal citations, alterations, and quotations omitted). Probable cause to effect an arrest must " be supported by more than mere suspicion but need not be based on evidence sufficient to sustain a conviction." Id. (internal quotation omitted).
Both § 22-4514(b) and § 22-4504(a) prohibit the possession of " dangerous weapons."  And although the trial court considered whether probable cause was established solely under § 22-4514(b), we note that the only relevant difference between the two statutes is § 22-4514(b)'s additional requirement of an " intent to use [the dangerous weapon] unlawfully against another," an element which does not appear in § 22-4504(a). Accordingly, as the government urges for the first time on appeal, if the baton was, in fact, a dangerous weapon within the meaning of § 22-4504(a), appellant could have been arrested for carrying a dangerous weapon regardless of whether he had the requisite intent to use it " unlawfully against another" under § 22-4514(b).
Our case law explains that a " dangerous weapon is one which is likely to produce death or great bodily injury by the use made of it. Such instrument may be dangerous in its ordinary use as contemplated by its design and construction, or where the purpose of carrying the object, under the circumstances, is its use as a weapon." Scott v. United States, 243 A.2d 54, 56 (D.C.1968). In other words, an instrument may either be " inherently dangerous" or, if not, " can become dangerous by its use as a weapon" or where there is evidence that " an individual intends to use
an object as a dangerous weapon." Strong v. United States, 581 A.2d 383, 386 (D.C.1990). Therefore, although D.C.Code § 22-4504(a) does not refer to any mental state in the statutory text, when the object is not a listed weapon or an " inherently dangerous" one, an individual's intent to use the object as a weapon is required before carrying the object is criminalized.
There is no dispute that the baton in this case is not listed as a per se prohibited weapon in either § 22-4514(b) or § 22-4504(a). Thus, we ask whether the baton is an " inherently dangerous" weapon. Our case law defines inherently dangerous weapons as those objects which are " dangerous in [their] ordinary use as contemplated by [their] design and construction." Scott, 243 A.2d at 56. There is " little authority" on the inherent dangerousness of police batons. Broadie, 452 F.3d at 882. However, we agree with the District of Columbia Circuit Court of Appeals' determination in Broadie, that the balance of the available authority suggests that " [police] officers [do not] ordinarily inflict great bodily injury when they use the device," and that a " baton is designed so it can be used to control suspects without inflicting serious injury." Id. (quoting Armament Sys. & Procedures, Inc. v. Monadnock Lifetime Prods., Inc., 168 F.3d 1319, 1998 WL 537746, at *1 (Fed.Cir. Aug. 7, 1998) (unpublished)). Accordingly, we conclude that a baton is not " inherently dangerous" by virtue of its " ordinary use" or " design and construction." Scott, 243 A.2d at 56.
Which is not to say that possession of a baton cannot ever be grounds for an arrest under § 22-4504(a). As the Broadie court observed, " a 16-inch steel rod— like the more commonplace lead pipe— is capable of inflicting great bodily injury when used for that purpose." 452 F.3d at 882. However, just as the dangerous potential of a lead pipe would not furnish probable cause to arrest, for example, a plumber who is found in possession of the tools and materials of his trade, the law requires further inquiry in this case into the surrounding circumstances of the discovery of the baton in Tuckson's car. As we have explained, " [s]ome factors to consider when determining whether an individual intends to use an object as a dangerous weapon are (1) the design of the instrument, (2) the conduct of the defendant prior to his arrest, (3) any physical alteration of the object, and (4) the time and place of its possession." Strong, 581 A.2d at 386 (citation omitted).
After evaluating these factors, we cannot conclude that a person " of reasonable caution," Perkins, 936 A.2d at 306, would have probable cause to believe that Tuckson intended to use the baton as a weapon. In this case, the design and purpose of the instrument, as we noted earlier, are not necessarily for offensive use as a weapon. Tuckson suggests that a baton could also be used merely as a prop to complete a hobbyist's police officer costume. Moreover, none of the attendant facts would give rise to a conclusion that Tuckson's intent was to use the baton as a weapon. Tuckson did not display, wield, or even hold the baton in the presence of the police officers. Cf. In re S.P., 465 A.2d 823, 827 (D.C.1983) (" It was undisputed at trial that
appellant both intended to and did carry and twirl around his body the nunchaku in the midst of a crowd of onlookers." ). There was no indication that Tuckson had altered the baton in any fashion. Further, the baton was discovered during daylight hours, holstered, and tucked into the car's door pocket. Cf. Broadie, 452 F.3d at 883 (noting intent to use baton as weapon supported by evidence that defendant was encountered " late at night in a high-crime area" and the baton was " within arm's reach" ).
The trial court essentially reached these same conclusions. The trial court was " a little loathe" to come to the conclusion that the baton was a " per se ... dangerous weapon," and never made a finding that Tuckson intended to use the baton as a weapon. Instead, the trial court found probable cause to believe Tuckson possessed the baton in order to assist him in the future commission of the crime of " impersonating a police officer." We cannot affirm the trial court's ruling on this basis. Intending to use the baton as a prop to complete a fraudulent act is not the same as intending to use the baton as a weapon " unlawfully against another" — that is, as a weapon. Nor is it enough to make the baton a dangerous weapon. We have held, for example, that an intent to use an inoperable air pistol " to frighten others" was not sufficient to establish an intent to use the air pistol as a dangerous weapon within the meaning of D.C.Code § 22-4504(a). Strong, 581 A.2d at 387 (citing previous codification of carrying a dangerous weapon statute at § 22-3204 (1981)). We explained that the purpose of the carrying a dangerous weapon statute was " protecting the safety of the public," and accordingly we declined to affirm a conviction under that statute " in cases such as this where there is no evidence that the defendant planned to harm anyone." Id. For the same ...