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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2003 Decided July 22, 2003
No. 02-3021
UNITED STATES OF AMERICA,
APPELLEE
v.
ROCKY LEE BROWN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00272-01)
A.J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.
Lisa H. Schertler, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard, Jr., U.S. Attorney, and John R. Fisher and Eliza-
beth Trosman, Assistant U.S. Attorneys.
Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
Dissenting opinion filed by Circuit Judge ROGERS.
GARLAND, Circuit Judge: Defendant Rocky Lee Brown
submitted a conditional guilty plea to the charge of unlawful
possession of a firearm and ammunition by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). Police found guns and
ammunition in a parked car in which Brown was sitting. The
defendant now appeals from the district court’s denial of his
motion to suppress that evidence, contending that the police
twice violated his Fourth Amendment rights: first, by open-
ing the car’s door; and second, by searching its trunk. We
reject Brown’s arguments and affirm the judgment of the
district court.
I
At approximately 1:45 a.m. on April 14, 2001, Officers
Joshua Branson and Michael Bryant of the Metropolitan
Police Department arrived at an apartment building in Wash-
ington, D.C., in response to a citizen’s call to the police. The
citizen, Sharron Peterson, had reported that there had been a
fight in the adjacent parking lot, that shots had been fired,
and that a bullet had shattered the window of her child’s
bedroom while the child was sleeping. The officers knew the
neighborhood to be the site of ‘‘a lot of drug activity’’ as well
as ‘‘several shootings and several homicides’’ that year. Sup-
pression Hr’g Tr., App. at 42.
When the officers arrived at Peterson’s building, she point-
ed out a white Cadillac that was sitting in the parking lot.
She told the officers that after hearing the gunshots, her
sister — who, unlike Peterson herself, had been in the
apartment at the time — opened the blinds and saw the men
in the car looking up at her. The officers went to the parking
lot, which was partially illuminated by street lights, and asked
3
the two men inside the white car to step outside. They then
questioned the men for about half an hour.
While the officers were talking to the occupants of the
white Cadillac, they noticed a black Cadillac, which was the
only other occupied car in the lot, parked fifteen to twenty
feet away. Officer Bryant watched as a man got out of the
driver’s seat of the black car. The man approached the
officers and then stopped for a while, leaning on a fence and
‘‘observing [the officers], like it’s a game going on.’’ Id. at 54.
Thereafter, he retreated toward the black car, continued
watching for some time, and finally walked away down an
alley, never to return. Officer Branson later testified that he
regarded the man’s behavior as ‘‘peculiar,’’ id. at 39, noting
that he ‘‘seemed to be eyeing out my partner and myself,’’ id.
at 41, and ‘‘sizing us up,’’ id. at 44. Officer Bryant also
observed another occupant of the black Cadillac, subsequently
identified as defendant Brown, get out of the car and then get
back inside. Id. at 66.
After they finished questioning the men in the white car,
the officers decided to approach the black car and question its
occupants because, the officers believed, they might either
have ‘‘been involved with’’ or ‘‘observed’’ the earlier events in
the parking lot. Id. at 57. Bryant approached with a lit
flashlight. Although his vision of the interior of the car was
obscured by the car’s darkly tinted windows, Officer Branson
could see ‘‘images of people.’’ Id. at 41. As Branson ap-
proached the car, he saw ‘‘two people, one of [whom] got up
from the rear seat and jumped over into the front seat.’’ Id.
Branson testified that this made him ‘‘even more suspicious’’
and ‘‘very cautious.’’ Id.
Upon reaching the car, Officer Branson knocked on the
rear passenger-side window, where he could see that one of
the two occupants was sitting. When there was no response,
Branson ‘‘cracked the door open’’ because he ‘‘wanted to
make sure that [he and his] partner were safe.’’ Id. at 43–44.
Immediately upon opening the door, Branson observed a
pistol on the floor of the back seat next to Brown’s foot.
Brown’s hand was ‘‘right there TTT like it was tickling the
4
handle.’’ Id. Branson immediately pulled Brown out of the
car and handcuffed him. The other occupant, a female, was
taken from the front passenger seat and handcuffed as well.
After searching the passenger compartment of the car,
Officer Branson removed the keys from the ignition. He
then opened the car’s locked trunk. There, Branson found a
shotgun bag containing an AR-15 semi-automatic rifle, along
with several magazines filled with ammunition.
Brown was charged by a grand jury with one count of
unlawful possession of a firearm and ammunition by a convict-
ed felon, in violation of 18 U.S.C. § 922(g)(1), and one count of
unlawful possession of a semi-automatic assault weapon, in
violation of 18 U.S.C. § 922(v)(1). He filed a motion to
suppress the evidence found in the car as the fruit of an
unlawful search and seizure. Following an evidentiary hear-
ing, the district court denied the motion. Brown then en-
tered a conditional guilty plea to the first count of the
indictment, reserving his right to appeal the suppression
ruling. See FED. R. CRIM. P. 11(a)(2). The government
dropped the second count after concluding that the AR-15 did
not meet the statutory definition of an assault weapon. The
defendant now appeals the denial of his motion to suppress.
II
Brown contends that Officer Branson violated the Fourth
Amendment’s prohibition of unreasonable searches and sei-
zures when he opened the car door, thereby rendering the
subsequent seizure of the pistol unlawful. He further con-
tends that, even if the opening of the door was legitimate, the
police acted unconstitutionally when they searched the car’s
trunk and seized the rifle and ammunition they found inside.
Accordingly, he argues that both guns, as well as the ammu-
nition, should have been excluded from use as evidence at
trial.
In response, the government maintains that the opening of
the door was lawful under Terry v. Ohio, 392 U.S. 1 (1968),
which permits officers to undertake an investigatory stop if
they have a reasonable suspicion of criminal activity, and to
5
conduct a protective search for weapons if they have a
reasonable fear for their safety. The government further
argues that the search of the trunk was lawful under United
States v. Ross, 456 U.S. 798 (1982), because discovery of the
pistol in the passenger compartment provided probable cause
to believe that there were additional weapons, ammunition,
and/or other contraband in the trunk.
We decide de novo whether the police had reasonable
suspicion, reasonable fear, and probable cause. See Ornelas
v. United States, 517 U.S. 690, 699 (1996); United States v.
Christian, 187 F.3d 663, 666 (D.C. Cir. 1999). However, we
review the district court’s ‘‘findings of historical fact only for
clear error,’’ and give ‘‘due weight to inferences drawn from
those facts’’ and to the court’s determinations of witness
credibility. Ornelas, 517 U.S. at 699–700; see Christian, 187
F.3d at 666. Our analysis of the police conduct in question is
objective: ‘‘[t]he principal components of a determination of
reasonable suspicion or probable cause will be the events
which occurred leading up to the stop or search, and then the
decision whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount
to reasonable suspicion or to probable cause.’’ Ornelas, 517
U.S. at 696; see Terry, 392 U.S. at 21–22.
In Parts II.A and II.B, we consider the lawfulness of the
door-opening and the trunk search, respectively.
A
In Terry v. Ohio, the Supreme Court held that a police
officer needs neither probable cause nor a warrant to conduct
a brief investigatory stop of an individual if he has a reason-
able suspicion that ‘‘criminal activity may be afoot.’’ 392 U.S.
at 30; see United States v. Arvizu, 534 U.S. 266, 273 (2002);
United States v. Sokolow, 490 U.S. 1, 7 (1989). The Court
also held that, during such a stop, an officer may conduct a
protective search of the outer layers of the suspect’s clothing
if he has a ‘‘reasonable fear’’ that the suspect is armed and
dangerous. Terry, 392 U.S. at 30; see Michigan v. Long, 463
U.S. 1032, 1034 (1983). In order to justify such a stop and/or
6
search, the officer must be ‘‘able to point to specific and
articulable facts which, taken together with rational infer-
ences from these facts, reasonably warrant that intrusion.’’
Terry, 392 U.S. at 21. In Michigan v. Long, the Court
extended the scope of a Terry search beyond the person of
the suspect to the area ‘‘within his immediate control,’’ includ-
ing the passenger compartment of an automobile. 463 U.S.
at 1049; see Christian, 187 F.3d at 668.
The parties appear to assume that the opening of the car
door constituted both a stop and a search for Terry purposes,
and we do so as well. Because the stop and the search were
thus coincident, both the reasonable suspicion and reasonable
fear elements of the Terry standard must be satisfied. See
Christian, 187 F.3d at 668. In assessing those issues, we
examine the totality of the circumstances, not any one factor
individually. As we explained in United States v. Edmonds:
An officer on the beat does not encounter discrete,
hermetically sealed facts. Rather, as we repeatedly have
cautioned, the question of whether reasonable suspicion
existed can only be answered by considering the totality
of the circumstances as the officer on the scene experi-
enced themTTTT Hence, even though a single factor
might not itself be sufficiently probative of wrongdoing to
give rise to a reasonable suspicion, the combination of
several factors — especially when viewed through the
eyes of an experienced officer — may.
240 F.3d 55, 59–60 (D.C. Cir. 2001) (citations omitted); see
also Arvizu, 534 U.S. at 273; Terry, 392 U.S. at 22–23.
In this case, several circumstances support the reasonable-
ness both of the officers’ suspicion of criminal activity and of
their fear of danger. The first circumstance is the fact that
the incident took place in a neighborhood known for ‘‘a lot of
drug activity’’ and in which, earlier that same year, there had
been ‘‘several homicides’’ and ‘‘numerous calls for gunshots.’’
Suppression Hr’g Tr., App. at 42; see also Appellant’s Br. at
28 (describing the location as a ‘‘high crime neighborhood’’).
Although we agree with our dissenting colleague that an
individual’s presence in such an area, ‘‘standing alone, is not
7
enough to support reasonable, particularized suspicion that
the person is committing a crime,’’ Illinois v. Wardlow, 528
U.S. 119, 124 (2000), it is nonetheless true that ‘‘the fact that
the stop occurred in a ‘high crime area’ [is] among the
relevant contextual considerations in a Terry analysis,’’ id.
See Edmonds, 240 F.3d at 60 (‘‘[T]he probative value of a
neighborhood’s reputation as a high-crime area is firmly
established.’’); United States v. Johnson, 212 F.3d 1313, 1316
(D.C. Cir. 2000). The importance of this factor is further
compounded by the lateness of the hour. See Long, 463 U.S.
at 1050 (listing the fact that ‘‘the hour was late’’ as one
circumstance justifying officers’ ‘‘reasonable belief that [the
defendant] posed a danger’’); United States v. Roggeman,
279 F.3d 573, 578–79 (8th Cir. 2002) (same); United States v.
Moore, 235 F.3d 700, 704 (1st Cir. 2000) (same); United
States v. Ramires, 307 F.3d 713, 716 (8th Cir. 2002) (listing
the fact that ‘‘it was late at night’’ as one circumstance
justifying a Terry stop).
The second relevant factor is the event that brought the
officers to the parking lot in which Brown’s car was parked: a
report that gunshots had been fired from the lot into the
window of a child’s bedroom. That fact enhanced the proba-
bility that criminal activity had been committed, or was being
committed, by someone inside one of the only two occupied
cars in the lot. See United States v. Raino, 980 F.2d 1148,
1150 (8th Cir. 1992) (holding that a Terry stop was supported
by the fact that ‘‘the officers were responding to a late-night
call that shots had been fired in precisely the area appellant’s
car was parked’’). It also strengthened the grounds for the
officers’ fear that the occupants of the car might be armed
and dangerous. Cf. id. (holding that, where shots had been
fired nearby, a police officer ‘‘acted reasonably in using
extreme caution’’ as he approached a vehicle, since, if the
officer’s suspicion that the shots came from the vehicle proved
correct, its occupant ‘‘would certainly be armed’’).
Brown raises several objections to our consideration of this
factor. He argues that, because of the amount of time that
8
had passed since the shots had been fired,1 it was unreason-
able to connect the shots to the occupants of the black car.
Although we agree that the passage of time lessened the
shots’ significance, it did not eliminate it entirely; it was
certainly plausible that the person or persons who fired the
gunshots might not have departed the area. Brown also
objects on the basis of Sharron Peterson’s testimony that the
black car did not arrive in the lot until after the police began
questioning the men in the white car, suggesting that the
former was not there when the shots were fired. But the
district court credited Officer Branson’s statement that the
police did not see the black car arrive, and thus that ‘‘either
the car was present when [the officers] started to talk to the
people in the white Cadillac or they did not see the black
limousine come onto the parking lot and they made a reason-
able assumption that it had been there at the point that they
got to the parking lot.’’ Suppression Hr’g Tr., App. at 165.
We find no error in this analysis.2
1 The district court found that Peterson called the police de-
partment sometime between 10 and 12 p.m., and that the officers
arrived around 1:45 a.m.
2 Although reasonable suspicion is an objective standard, it is
nonetheless evaluated on the basis of ‘‘the totality of the circum-
stances as the officer on the scene experienced them.’’ Edmonds,
240 F.3d at 59 (emphasis added). For the same reason, this court
cannot take into account many of the facts recounted in the
dissenting opinion, as they were not known to the investigating
officers at the time of the search. For example, although complain-
ant Peterson subsequently testified that she was familiar with the
black car, that it was often parked in the lot behind her apartment,
that it was not in the parking lot at the time of the shooting, and
that the white car had twice left the parking lot before returning,
she did not tell the officers any of those facts. To the contrary, she
said nothing whatsoever about the black car to the officers. Sup-
pression Hr’g Tr., App. at 64, 92. Similarly, although Brown later
told another officer that the other person in the car was his
girlfriend, Officers Branson and Bryant did not know that at the
time they searched the car and trunk. Id. at 80.
9
Brown also objects to the relevance of the gunshots on the
ground that, when Peterson talked with the officers, she
pointed out the white car rather than the black. But neither
Peterson nor her sister had actually seen the gun being fired,
and indeed, Peterson herself had not even been home at the
time of the gunshots. Peterson told the police only that her
sister had opened the blinds and seen people looking up at
her from the white car after she heard the shots. Id. at 89–
90. Thus, what the police knew was not inconsistent with the
possibility that the shots had been fired from the black car.
And once the police finished questioning the men in the white
car, it was hardly unreasonable for them to turn their suspi-
cions to the only other people in the lot.
Finally, both Brown and the dissent object that there was
no evidence that the officers approached the black car be-
cause they believed that its occupants were participants in the
gunfire rather than innocent bystanders or mere witnesses.
This objection is wrong as a matter of fact and irrelevant as a
matter of law. In context, it is clear that Officer Branson’s
testimony that he approached the black car ‘‘as if TTT doing a
traffic stop,’’ id. at 42, referred to his tactics and not to any
assumption that the occupants were merely guilty of a ‘‘traffic
violation,’’ Dissenting Op. at 5. Branson testified that he was
suspicious, and further testified that the officers approached
the car because they believed its occupants might have either
‘‘observed’’ or ‘‘been involved’’ in the altercation. Suppres-
sion Hr’g Tr., App. at 41, 57. The officers were not required
to resolve the occupants’ status before stopping them, see
Wardlow, 528 U.S. at 126, and in any event, the officers’
actual motives do not bear on our objective assessment of
reasonable suspicion. See Whren v. United States, 517 U.S.
806, 813 (1996) (‘‘[T]he fact that the officer does not have the
state of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does not
invalidate the action taken as long as the circumstances,
viewed objectively, justify that action.’’ (internal quotation
marks omitted)); Christian, 187 F.3d at 670 (holding that an
officer’s ‘‘actual motives for conducting [a] search [are] not
relevant as long as his actions [are] objectively reasonable’’).
10
A third circumstance supporting the officers’ reasonable
suspicion and fear was the activity of the man who got out of
the black car, watched the officers for a while, and then
disappeared down the alley. While a general curiosity about
police activity would be insufficient to raise suspicion or
concern, there was more than that here. Officer Branson
described the behavior as ‘‘peculiar,’’ and testified that the
man ‘‘seemed to be eyeing out my partner and myself’’ and
‘‘sizing us up.’’ Suppression Hr’g Tr., App. at 41, 44. See
Arvizu, 534 U.S. at 275–76 (citing relevant factors including
the defendant’s stiffened posture and his children’s ‘‘methodi-
cal, mechanical, abnormal’’ waving to police, ‘‘certainly TTT a
fact that is odd’’ (quotation marks omitted)); Terry, 392 U.S.
at 23 (citing the fact that men repeatedly walked back and
forth between a street corner and store window); United
States v. Bravo, 295 F.3d 1002, 1008 (9th Cir. 2002) (citing the
defendant’s ‘‘overly-friendly’’ demeanor toward a U.S. Cus-
toms inspector); United States v. Mancillas, 183 F.3d 682,
686, 697 (7th Cir. 1999) (citing the fact that, when an officer
arrived, three occupants exited a car and walked away in
different directions).3
Brown objects that the officers could not have been particu-
larly concerned about this man since they did not follow him
down the alley to question him. But reasonable officers could
well have decided to focus their attention on the remaining
occupants of the cars, rather than to take off after the
pedestrian or to divide their forces. As ‘‘appellate judges we
do not second-guess a street officer’s assessment about the
order in which he should secure potential threats’’ or investi-
gate his suspicions. Christian, 187 F.3d at 669. Moreover,
3 Although the dissent correctly observes that the government
conceded at oral argument that the officers would not have had
reasonable suspicion based on this man’s behavior alone, the gov-
ernment was also careful to state that his behavior was nonetheless
one of several factors that in combination generated the necessary
level of suspicion. We may not reject the relevance of a factor
simply because viewed ‘‘in isolation’’ from the others it is insuffi-
cient. Arvizu, 534 U.S. at 274. As the Supreme Court only
recently reminded us, ‘‘Terry TTT precludes this sort of divide-and-
conquer analysis.’’ Id.
11
the subjective concerns of these particular officers are, once
again, irrelevant to the legal analysis. See Horton v. Califor-
nia, 496 U.S. 128, 137–38 (1990); Terry, 392 U.S. at 21–22.4
A fourth factor is the behavior of the remaining two
passengers in the black car, one of whom ‘‘got up from the
rear seat and jumped over into the front seat’’ as the officers
approached. Suppression Hr’g Tr., App. at 41. It is well
settled that an individual’s furtive movements may be
grounds for reasonable suspicion and fear, justifying a Terry
stop and search. See Wardlow, 528 U.S. at 124 (recognizing
that ‘‘nervous, evasive behavior is a pertinent factor in deter-
mining reasonable suspicion’’); Edmonds, 240 F.3d at 61;
Christian, 187 F.3d at 668; United States v. Green, 465 F.2d
620, 623 (D.C. Cir. 1972). It is true that ‘‘furtive gestures
‘are significant only if they were undertaken in response to
police presence,’ [a]nd a suspect can respond to the presence
of a police officer only if he has recognized him as an officer.’’
Edmonds, 240 F.3d at 61 (quoting Johnson, 212 F.3d at 1316).
But there was more than a sufficient basis for the officers to
believe that they had been recognized: they were in uniform;
their patrol car was marked; one of the passengers (later
identified as Brown) had previously gotten out of the black
car while the officers were questioning the men from the
white car not far away; and Officer Bryant carried a lit
flashlight as he approached the black car.
It is of course possible that it was merely a coincidence that
the passenger jumped from the back seat to the front at the
very moment the officers came near. But the possibility of
such a coincidence does not negate the officers’ reasonable
suspicion and fear, nor does the fact that the passenger’s
behavior did not necessarily indicate criminal activity or
prospective danger.5 As the Supreme Court has made clear,
4 For the same reasons, we reject Brown’s contention that,
because the officers spent so much time talking with the men in the
white car, there must not have been anything suspicious about the
black car or its occupants.
5 Brown’s brief intimates that all that was involved was amo-
rous activity that the couple did not wish the police to observe.
12
that an individual’s conduct is ‘‘ambiguous and susceptible of
an innocent explanation’’ does not mean that it may not be
grounds for suspicion: ‘‘Terry recognized that TTT officers
could detain [such] individuals to resolve the ambiguity.’’
Wardlow, 528 U.S. at 125–26; see also Arvizu, 534 U.S. at
277 (holding that a ‘‘determination that reasonable suspicion
exists TTT need not rule out the possibility of innocent con-
duct’’).
We cannot agree with the dissent’s suggestion that charac-
terizing the passenger’s behavior as ‘‘furtive’’ in this circum-
stance is equivalent to holding that ‘‘any reaction to seeing
the police is indicative of criminal complicity.’’ Dissenting
Op. at 5. Jumping over a car seat as an officer approaches is
not just ‘‘any reaction.’’ Moreover, although we again note
the Supreme Court’s instruction that the officers’ subjective
reactions to this behavior are not relevant to the analysis, see,
e.g., Horton, 496 U.S. at 137–38, we disagree that there was
no testimony that the officers considered ‘‘that conduct, or
other conduct by the occupants, to be aberrations TTT that
reinforced their suspicion.’’ Dissenting Op. at 5. In fact,
Officer Branson testified that the passenger’s jump from the
back seat made him ‘‘even more suspicious.’’ Suppression
Hr’g Tr., App. at 40.
In addition to these four circumstances, each of which
supports both the officers’ suspicion of criminal activity and
their fear of physical harm, two other factors dramatically
increased the risk that the encounter posed to the officers,
and hence provide additional grounds justifying that fear.6
First, the Terry stop that the officers were about to under-
take involved not a pedestrian but the occupants of an
automobile. As the Supreme Court noted in Long, ‘‘investi-
gative detentions involving suspects in vehicles are especially
6 We agree with our dissenting colleague that neither of these
two factors ‘‘excuse[s] Terry’s requirement that the police possess
adequate suspicion to conduct a stop in the first place.’’ Dissenting
Op. at 9–10. It is the preceding four factors that justify the stop;
the last two merely provide additional support for the reasonable
fear that justifies the search.
13
fraught with danger to police officers.’’ 463 U.S. at 1047; see
also Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (not-
ing the ‘‘inordinate risk confronting an officer as he ap-
proaches a person seated in an automobile’’). Recent cases
make clear that this danger continues to be significant. See
Maryland v. Wilson, 519 U.S. 408, 413 (1997); United States
v. Holt, 264 F.3d 1215, 1222–23 (10th Cir. 2001) (citing 1999
statistics).
Second, the windows of the black Cadillac were darkly
tinted, preventing the officers from having a clear view of the
car’s occupants. This fact magnified the danger of approach-
ing unknown individuals inside an automobile, because the
tinting made it impossible to know whether one of the occu-
pants was reaching for a weapon — as it appears Brown was
doing — or otherwise acting to endanger the officers’ safety.
As the Fourth Circuit said in United States v. Stanfield:
When, during already dangerous traffic stops, officers
must approach vehicles whose occupants and interiors
are blocked from view by tinted windows, the potential
harm to which the officers are exposed increases expo-
nentially, to the point, we believe, of unconscionability.
Indeed, we can conceive of almost nothing more danger-
ous to a law enforcement officer in the context of a traffic
stop than approaching an automobile whose passenger
compartment is entirely hidden from the officer’s view by
darkly tinted windows. [The officer] has no way of
knowing whether the vehicle’s driver is TTT reaching for
a gun; he does not know whether he is about to encoun-
ter a single law-abiding citizen or to be ambushed by a
car-full of armed assailants.
109 F.3d 976, 981 (4th Cir. 1997) (emphasis omitted).
In sum, the officers who stopped Brown and searched the
car in which he was sitting were faced with the following
circumstances: Late at night, in an area known for crime and
gunfire, and in a parking lot where shots had been fired that
very night, they came upon two occupied parked cars. While
they were questioning men in one of the cars, an individual
got out of the other and ‘‘sized them up’’ and ‘‘eyed them out’’
14
before disappearing down an alley. Thereafter, as the offi-
cers approached the second car to question its remaining
occupants, one of the rear passengers jumped over a seat into
the front. Any other activity by the occupants, as well as
their position and that of any weapons they might possess,
was obscured by tinted glass. We conclude that, based on
the totality of these circumstances, reasonable officers could
both suspect the possibility of illegal activity and be con-
cerned for their safety.7 And because our decision is based
on all of these circumstances, we do not suggest that ‘‘when-
ever the police approach a car in the course of investigating a
shooting late at night, TTT the police may intrude on the
personal security of the occupant of a car based on a person’s
mere presence in a high-crime neighborhood.’’ Dissenting
Op. at 9.
Faced with these circumstances, Officer Branson undertook
a stop and search of the most minimal kind: he merely
cracked open the car door and looked inside without breaking
the plane of the car’s surface. Cf. Wilson, 519 U.S. at 415
(holding that the ‘‘additional intrusion’’ imposed on passen-
gers by ordering them out of a car during a traffic stop ‘‘is
minimal’’); Mimms, 434 U.S. at 111 (same regarding drivers);
Stanfield, 109 F.3d at 982–83 (holding that the privacy intru-
sion effected by police opening a car door is ‘‘considerably
less’’ than that approved by the Supreme Court in Mimms).
Moreover, the stop ‘‘lasted a mere matter of moments TTT
before the discovery of the gun [in plain view] ripened what
had been merely reasonable suspicion into the full-scale prob-
able cause necessary for an arrest.’’ United States v. Hens-
ley, 469 U.S. 221, 236 (1985) (Brennan, J., concurring). Thus,
because ‘‘the officer’s action was justified at its inception, and
TTT was reasonably related in scope to the circumstances
which justified’’ it, Terry, 392 U.S. at 19–20, the stop and the
search were valid.
7 Because these factors are sufficient to establish reasonable
suspicion and reasonable fear, we need not consider whether the
occupants’ failure to respond to Officer Branson’s knock is yet
another factor in support of both.
15
Brown does not contest that, if the opening of the door was
lawful, Officer Branson was entitled to seize the gun that was
in plain view. See Long, 463 U.S. at 1050. Accordingly,
because we conclude that the opening of the door was lawful,
the seizure was as well, and the district court did not err in
denying the motion to suppress the gun. See Edmonds, 240
F.3d at 62–63.
B
After arresting Brown and seizing the pistol found in the
passenger compartment of the black Cadillac, Officer Branson
proceeded to open the car’s trunk. There, he discovered and
seized an AR-15 semi-automatic rifle and several magazines
filled with ammunition. Brown contends that the trunk
search violated the Fourth Amendment, and that the evidence
it yielded must be suppressed for that reason.
The government does not suggest that the opening of the
trunk was justified as a Terry search, as such searches are
limited to areas immediately accessible to the suspect — in
this case, to the passenger compartment of the car. See
Long, 463 U.S. at 1048–49; Christian, 187 F.3d at 668.
Rather, the government argues that, after finding a gun on
the floor of the passenger compartment, Branson had proba-
ble cause to search the trunk to see whether more guns,
ammunition, and/or other contraband were stored there. In
Carroll v. United States, 267 U.S. 132 (1925), the Supreme
Court upheld the validity of a warrantless automobile search
based on probable cause to believe that the vehicle contained
contraband. In United States v. Ross, the Court held that
the ‘‘scope of a warrantless search of an automobile TTT is
defined by the object of the search and the places in which
there is probable cause to believe that it may be found.’’ 456
U.S. 798, 824 (1982). ‘‘If probable cause justifies the search
of a lawfully stopped vehicle,’’ the Court said, ‘‘it justifies the
search of every part of the vehicle and its contents that may
conceal the object of the search.’’ Id. at 824–25. The ques-
tion before us, therefore, is whether the police had probable
cause to believe that contraband might be found in the trunk
16
of the black Cadillac or, as we put it in United States v.
Turner, ‘‘whether the trunk was one of several parts of the
vehicle that ‘might contain the object of the search.’ ’’ 119
F.3d 18, 20 (D.C. Cir. 1997) (quoting Ross, 456 U.S. at 821).
In Turner, we applied Ross in upholding the search of a
car’s trunk. The search in Turner followed a traffic stop,
during which the police officer had noticed three pieces of
evidence: a strong smell of marijuana emanating from the
car; pieces of torn cigar tobacco in the defendant’s lap, which
the officer testified were consistent with the use of a hol-
lowed-out cigar ‘‘blunt’’ to smoke marijuana; and a ziplock
bag containing a ‘‘green, weed-like material’’ that the officer
believed to be marijuana. Id. at 18–19. We concluded that
this evidence was sufficient to meet the requirements of
probable cause: that is, ‘‘ ‘a fair probability that contraband
or evidence of a crime’ ’’ would be found in the trunk. Id. at
20 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In so
holding, we rejected Turner’s argument that the evidence
indicated nothing more than personal use of marijuana and
that a person who uses rather than distributes drugs would
keep them within his immediate control rather than in a
luggage compartment. Id. at 20–21. While we agreed that
‘‘it may be true that evidence of narcotics distribution would
constitute even stronger cause to believe additional contra-
band had been secreted in the trunk,’’ we found the evidence
sufficient ‘‘to establish a ‘fair probability’ that Turner might
have hidden additional drugs not necessary for his current
consumption in areas out of plain sight, including the trunk of
the car.’’ Id. at 20.
We reach a similar conclusion here for several reasons.
First, the presence of a gun supported the possibility that the
car contained ammunition, additional weapons, and/or other
contraband. As we have held in the context of Terry
searches and in that of searches incident to arrest, ‘‘the
presence of one weapon may justifiably arouse concern that
there may be more in the vicinity.’’ Christian, 187 F.3d at
669; see United States v. Abdul-Saboor, 85 F.3d 664, 670
(D.C. Cir. 1996) (‘‘[H]aving already uncovered a loaded hand-
gun, a loaded semi-automatic pistol, and a magazine, the
17
arresting officers could well anticipate that other weapons
were stowed throughout the apartmentTTTT’’). Moreover, the
presence of the gun suggested that drugs may have been in
the vicinity as well. Cf. United States v. Conyers, 118 F.3d
755, 757 (D.C. Cir. 1997) (noting the connection between guns
and drugs); United States v. Dunn, 846 F.2d 761, 764 (D.C.
Cir. 1988) (describing a revolver as ‘‘a tool of the narcotics
trade’’ and holding that the defendant’s ‘‘connection to the
gun suggest[ed] he exercised control over the drugs in the
house’’). Second, multiple gunshots had reportedly been
fired that night from the lot in which the black car was
parked. This fact increased the likelihood that multiple guns
were present, as did the fact that there had been at least
three people in the car that night. Finally, the fact that
Brown’s hand was ‘‘drooping down’’ and ‘‘tickling the handle’’
of the gun as Officer Branson opened the door, Suppression
Hr’g Tr., App. at 44, suggested that Brown may have been
using the gun to protect other contraband. It was reasonable
to infer that the trunk was a likely hiding place.
We do not perceive any material difference between this
case and Turner. If anything, possession of a firearm under
these circumstances provides a stronger basis for a trunk
search than does evidence of personal use of marijuana. The
dissent suggests that one difference is that in Turner, the
government offered testimony concerning a missing trunk
key found in the defendant’s shoes. Dissenting Op. at 12.
But in Turner we expressly declined to consider the signifi-
cance of that testimony because there was a dispute over
whether the key had been lawfully seized. Turner, 119 F.3d
at 20 n.2. We ‘‘instead limit[ed] ourselves to considering only
the three pieces of evidence’’ that we have described above.
Id.
Brown suggests a different distinction, noting that in Tur-
ner we said that the police officer’s ‘‘testimony, based on his
experience in narcotics and traffic enforcement, supports’’ the
conclusion that there was probable cause to search the trunk,
Turner, 119 F.3d at 20 (emphasis added), and further notes
that in this case Officer Branson did not specifically testify
about the trunk search. But Turner did not hold that such
18
testimony is a necessary element of a probable cause determi-
nation, and we do not think such testimony was required
here. The presence of the gun, along with the other factors
identified in the previous paragraph, was sufficient to estab-
lish probable cause.8
Finding little to distinguish Brown’s case from Turner’s, we
are left with Brown’s argument that Turner was wrongly
decided. Turner, of course, is the law of the circuit and may
not be overturned by a subsequent panel. See, e.g., National
Mining Ass’n v. Fowler, 324 F.3d 752, 760 (D.C. Cir. 2003).
But even if that were not the case, we would not overturn it,
since we find Brown’s argument unpersuasive.
The defendant’s principal attack on Turner is his conten-
tion that this court misread Robbins v. California, 453 U.S.
420 (1981). Turner cited Robbins — a case in which marijua-
na and equipment for using it were found in a car’s passenger
compartment — because the Supreme Court stated in dictum
that the subsequent search of the car’s luggage compartment
was lawful. Relying on facts recited in the California appel-
late court decision that the Robbins Court reviewed, People v.
Robbins, 103 Cal. App. 3d 34, 38 (Cal. Ct. App. 1980), Brown
claims that the validity of the search was based not on the
marijuana but on an incriminating statement made by the
defendant. But as we have recently said in rejecting a
similar argument in another case, ‘‘one can examine the
Supreme Court’s opinion with a microscope without learning
that fact.’’ Rancho Viejo v. Norton, 323 F.3d 1062, 1072
(D.C. Cir. 2003). The Robbins Court did not mention the
8 Brown further contends, and the dissent suggests, that the
trunk search was unlawful because Officer Branson did not testify
that he opened the trunk in search of additional contraband; rather,
he testified that he did so to secure Brown’s belongings. Like the
test for reasonable suspicion under Terry, however, the test for
probable cause is objective. See Whren, 517 U.S. at 813 (‘‘Subjec-
tive intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.’’). Thus, Branson’s ‘‘actual motives for con-
ducting the search were not relevant as long as his actions were
objectively reasonable.’’ Christian, 187 F.3d at 670.
19
incriminating statement, and we find the defendant’s resort to
the judicial equivalent of legislative history unconvincing.9
In any event, whether supportive or not, there is certainly
nothing in Robbins that is contrary to the holding of Turner.10
Moreover, Robbins was only one of several decisions upon
which Turner relied, and it remains true today — as it was
then — that our resolution of the lawfulness of the trunk
search in Turner is consistent with that of every other circuit
that has considered a similar question.11 As the cases cited in
9 Brown also argues that Turner is inconsistent with Michigan
v. Long, noting that although Long concluded that a hunting knife
and marijuana were lawfully discovered in the passenger compart-
ment of a car, it did not go on to reach the question of the legality
of the subsequent trunk search but instead remanded the issue to
the state court. The Court, however, made quite clear that the
reason for the remand had nothing to do with the merits of the
issue. See Long, 463 U.S. at 1053 (‘‘[W]e decline to address this
question because it was not passed upon by the Michigan Supreme
Court, whose decision we review in this case.’’).
10 Nor is there anything to the contrary in California v. Aceve-
do, 500 U.S. 565 (1991), upon which the dissent relies. In Acevedo,
in the course of upholding a trunk search, the Supreme Court
observed in dictum that a search of the rest of the car would have
been unreasonable. Id. at 580. As we explained in Turner, howev-
er, ‘‘[i]n Acevedo TTT the police had been following a particular
parcel of drugs — one the police actually had intercepted, exam-
ined, and resealed — and had watched as the suspect bag was
placed in the trunk.’’ Turner, 119 F.3d at 22–23. By contrast, in
Turner as well as in this case: ‘‘ ‘[S]uspicion was not directed at a
specific container.’ TTT Rather, TTT the police had probable cause
to search ‘every part of the vehicle and its contents that may
conceal the object of the search,’ ’’ and ‘‘[n]either logic nor case law
excludes [the] trunk from the list of such locations.’’ Id. at 23
(quoting Ross, 456 U.S. at 825).
11 See, e.g., United States v. Fladten, 230 F.3d 1083, 1086 (8th
Cir. 2000) (holding that drug paraphernalia on the backseat of a car
parked near a house where drug-related activity took place provid-
ed probable cause for a trunk search); United States v. Parker, 72
F.3d 1444, 1450 (10th Cir. 1995) (holding that drugs and a gun found
in a passenger compartment, in combination with the odor of
20
note 11 suggest, although probable cause determinations are
fact-specific and depend on the totality of the circumstances,
the discovery of contraband in the passenger compartment of
a car is a factor that strongly supports the lawfulness of a
trunk search. In this case, we conclude that the totality of
the circumstances provided probable cause to search the
black Cadillac for guns, ammunition, and/or narcotics, and
that the trunk was a part of the vehicle that ‘‘might contain
the object of the search.’’ Turner, 119 F.3d at 20 (quoting
Ross, 456 U.S. at 821).
III
We hold that Officer Branson did not violate the Fourth
Amendment, either when he opened the door to the car in
which appellant Brown was sitting or when he subsequently
opened and searched the car’s trunk. The district court’s
denial of Brown’s motion to suppress is therefore
Affirmed.
marijuana smoke, provided probable cause to search the trunk,
although the odor alone would have been insufficient); United
States v. Kelly, 961 F.2d 524, 527–28 (5th Cir. 1992) (holding that a
gun, drugs, and ammunition found in a passenger compartment, as
well as the smell of marijuana, conferred probable cause to search
the entire car, including the engine compartment); United States v.
McGuire, 957 F.2d 310, 314 (7th Cir. 1992) (holding that open
alcohol containers in the passenger compartment justified a trunk
search); United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986)
(holding that a small amount of marijuana found on a car’s floor
provided probable cause for a trunk search); United States v.
Rickus, 737 F.2d 360, 367 (3d Cir. 1984) (holding that a screwdriver,
pliers, and bulletproof vests found in a car’s passenger compart-
ment justified a trunk search); United States v. Haley, 669 F.2d
201, 204 (4th Cir. 1982) (holding that marijuana odor and a bag of
marijuana found in a car were sufficient to support a trunk search).
1
ROGERS, Circuit Judge, dissenting: Because the govern-
ment failed to offer evidence to show that, prior to opening
the door of the lawfully parked car in which Brown was
sitting, the police had articulable suspicion to believe that
Brown had been engaged in criminal wrongdoing, the stop
and frisk exception to the Fourth Amendment warrant re-
quirement adopted in Terry v. Ohio, 392 U.S. 1 (1968), is
inapplicable. In Terry, the Supreme Court cautioned that a
police officer’s ‘‘inchoate and unparticularized suspicion or
‘hunch,’ ’’ would not suffice to justify an intrusion into a
person’s security and privacy, id. at 27, but that is all the
evidence showed. Hence the seizure by the police after
opening the car door was unlawful. Moreover, even if there
had been a lawful Terry stop, because the search of the car
trunk was not limited in scope in order to protect the officers,
it could not be justified under Terry, id. at 29, and because
the government failed to show that the officers had probable
cause to believe the car trunk contained contraband or evi-
dence of a crime, the seizure from the trunk also was unlaw-
ful. Accordingly, the district court erred in denying the
motion to suppress the seized evidence.
I.
Under Terry, a police officer must have articulable suspi-
cion of individualized criminal wrongdoing before the officer
can conduct a brief investigatory stop of the individual and
subject him to a pat down. 392 U.S. at 23. The ‘‘criminal
activity [that] may be afoot’’, id. at 30, quoted Op. at 5, must
be tied to an individual before that individual can be stopped.
Terry operates on the assumption that individuals are law-
abiding which is why there must be a ‘‘particularized suspi-
cion TTT that the particular individual being stopped is en-
gaged in wrongdoing.’’ United States v. Cortez, 449 U.S. 411,
418 (1981). Consistent with ‘‘independent appellate review of
these ultimate determinations of reasonable suspicion and
probable cause,’’ Ornelas v. United States, 517 U.S. 690, 697
(1996), nothing in the record indicates that Brown or the
other occupants of the black car acted in a manner to provoke
police suspicion of criminal wrongdoing, see Illinois v. Ward-
2
low, 528 U.S. 119, 124–26 (2000), or that the police were
relying on their experience to conclude that the occupants of
a car other than the one identified by the complainant pre-
sented a threat to the officers’ safety. Cf. Texas v. Brown,
460 U.S. 730, 742–43 (1983). The government offered no
evidence to show that the police had reason to think that the
black car contained guns or other contraband but relies, in
justifying the Terry stop, solely on the police officers’ gener-
alized suspicions as a result of their surroundings. Reason-
able suspicion for Terry purposes is not created, as other
circuits have recognized, by the totality of the evidence when
each piece of evidence is, by itself, a weak indicator of
criminal activity or dangerousness. See, e.g., United States v.
Townsend, 305 F.3d 537, 542–45 (6th Cir. 2002); United
States v. Gray, 213 F.3d 998, 1000–01 (8th Cir. 2000); United
States v. Jones, 149 F.3d 364, 369–71 (5th Cir. 1998).
Brown’s mere presence in the parking lot late at night several
hours after a shooting does not meet the standard of articula-
ble suspicion of individualized criminal wrongdoing that Terry
requires. See Brown v. Texas, 443 U.S. 47, 52 (1979).
Looking at the ‘‘totality of the circumstances,’’ United
States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449
U.S. at 417–18), to determine whether the police conducted a
lawful Terry stop, the court ignores the consequences of the
fact that key evidence is undisputed. First, the police did not
arrive at the scene until at least two hours, and more likely,
three hours, after the shooting had occurred. The complain-
ant called the police for assistance around 10 p.m. Even
taking the latest time that the complainant testified she called
for assistance, at midnight, the police did not receive a call to
respond until 1:45 a.m. and did not arrive at her apartment
building until after 1:45 a.m. Only after conferring with the
complainant and her sister, and then going to the complain-
ant’s apartment, did the police enter the parking lot. Second,
the complainant and her sister directed the police only to the
men in a white car, and said nothing about the black car or its
occupants. At the suppression hearing, the complainant ex-
plained that the black car was not in the parking lot at the
time of the shooting, whereas (according to the complainant’s
3
sister) at the time of the shooting and also when the police
arrived in the complainant’s apartment, the men in the white
car were looking up at the window of the complainant’s
apartment into which shots had been fired. Third, Brown,
who was sitting in the black car when the police began
questioning the men in the white car, remained in or near the
black car throughout the thirty minutes that the police testi-
fied they questioned the men in the white car, and Brown did
not attempt to leave the parking lot thereafter when the
police approached. Although the occupants of the black car
were aware that the police were questioning men in the white
car, they never attempted to interfere with the police investi-
gation. These undisputed facts known to the officers demon-
strate that when the police first entered the parking lot, they
had articulable suspicion as to the occupants of the white car
but no reason to suspect the occupants of the black car of any
criminal activity. Nor did the subsequent conduct of the
occupants of the black car give the police any reason to
suspect any of the occupants of criminal activity.
The court relies on four circumstances to justify the Terry
stop of Brown. The first circumstance is the neighborhood:
it was known for ‘‘a lot of drug activity’’ and there had been
several homicides and numerous calls for gunshots earlier the
same year. Op. at 6. While conceding that mere presence is
insufficient, the court views the lateness of the hour as
somehow ‘‘compound[ing]’’ the relevance of this circumstance.
Op. at 7. High-crime areas abound in urban centers such as
Washington, D.C., and the fact that crime is often committed
at night does not help identify the likely perpetrator of a
particular crime. Neither the fact that the complainant lived
in a neighborhood where shootings had occurred in the past
year, nor the fact that it was late at night, gave the police
reason to suspect that Brown was involved in the earlier
shooting.
The second circumstance is that gunshots had been fired
into a child’s bedroom: the court states that this ‘‘enhanced
the probability’’ that the shots had been fired by someone
inside one of the only two occupied cars in the parking lot.
4
Op. at 7. This statement assumes that the shooter was in a
car in the parking lot. Even if this assumption is reasonable,
the court also assumes that if the shooter had been in a car in
a parking lot, he likely could be found in a car in the same
parking lot several hours later. The evidence suggests the
contrary. Not only did the police arrive several hours after
the shooting had occurred, the complainant testified at the
suppression hearing that after the shooting the white car had
twice left the parking lot before returning, thus further
indicating that sufficient time had elapsed for the shooter to
come and go. In addition, the complainant was familiar with
the black car in which Brown was sitting, as it often parked in
the lot and played loud music, and testified that the black car
was not present at the time of the shooting or when the police
responded to her 911 call. Given her familiarity with the car,
it is difficult to understand why she would not have told the
police about the black car if it had been in the parking lot at
the time of the shooting. The court discounts the complain-
ant’s testimony because she and her sister did not see the
actual shooter, Op. at 8–9, and yet they identified the suspect
car that was in the parking lot at the time of the shooting and
no other car.
The third circumstance is the activity of the man who
exited the alley. Op. at 10. The government conceded at
oral argument that the police did not have articulable suspi-
cion to stop the man who got out of the driver’s seat of the
black car, came closer to look at the police at the white car,
which was approximately fifteen feet away, walked back
towards the black car, and then before reaching it left the
parking lot through an alley. Given this concession and the
fact that after exiting the alley the driver never returned to
the black car or to the parking lot, it is difficult to understand
how his conduct contributes to the officers’ articulable suspi-
cion of criminal wrongdoing with respect to Brown and the
other occupant who remained in the car. The only testimony
indicated that the police thought that the driver was ‘‘sizing
[them] up’’ and ‘‘act[ed] quite peculiar TTT as if he wanted to
be involved in our conversation with these two gentlemen [in
5
the white car].’’ Yet the police acknowledged that the driver
said nothing to them and went on his way.
The fourth circumstance is the behavior of the remaining
occupants of the black car. Op. at 11. According to the
evidence, all that happened after the driver exited the black
car and left through the alley was that (1) Brown briefly
exited the car and got back in, and (2) as the police, upon
finishing their questioning of the men in the white car,
approached the black car, a person jumped from the back
seat to the front seat of the car. Characterizing these actions
as ‘‘furtive gestures’’ in response to seeing the police, Op. at
11, means, however, that any reaction to seeing the police is
indicative of criminal complicity and thus, as the Fifth Circuit
points out, destroys the inference. See Jones, 149 F.3d at
370–71. There was no testimony that when one of the
occupants jumped from the back to the front seat of the black
car, the officers considered that conduct, or other conduct by
the occupants, to be aberrations or a ‘‘furtive gesture’’ that
reinforced their suspicion of criminal involvement. See Unit-
ed States v. Edmonds, 240 F.3d 55, 61–62 (D.C. Cir. 2001).
Instead, Officer Branson testified that he ‘‘felt uneasy’’ and
‘‘was very cautious at that time.’’ He did not testify that the
police approached the black car because they thought the
occupants were involved in the earlier shooting. Rather,
Officer Branson testified that they sought to verify the com-
plainant’s story by asking whether the occupants of the black
car had seen or heard the prior shooting. He also testified in
speculative, vague language that he wanted to know ‘‘[w]heth-
er or not perhaps they might have been involved with what
was going on.’’ (emphasis added). And so he approached the
black car ‘‘as if TTT doing a traffic stop,’’ and opened the door
‘‘to make sure that [he] and [his] partner were safe.’’ In
other words, having nothing to go on that identified the
occupants of the black car as likely suspects in the prior
shooting or otherwise involved in criminal activity, the police
proceeded based on an assumed traffic violation although the
black car was lawfully parked in a residential parking lot.
Cobbling together innocent circumstances, and drawing
inferences in favor of the government that are unsupported
6
by the evidence, see United States v. Myers, 308 F.3d 251,
255 (3d Cir. 2002), the court concludes that because Brown
(who was in a different car than the one identified by the
complainant for the police) was in the wrong place (the
parking lot behind the complainant’s apartment building) at
the wrong time (late at night several hours after a shooting),
the police had articulable suspicion that he was engaged in
criminal wrongdoing. Op. at 13–14. The stop and frisk
exception under Terry is unrecognizable. While the police
may reasonably take into account the fact that they are
conducting an investigation in a high-crime area, see Ed-
monds, 240 F.3d at 60, late at night, see Townsend, 305 F.3d
at 542–43, and that they are investigating a crime involving a
gun, see United States v. Raino, 980 F.2d 1148, 1149 (8th Cir.
1992), these factors provide only generalized suspicions that
are insufficient to justify an intrusion on an individual’s
Fourth Amendment rights. See Edmonds, 240 F.3d at 60.
While relevant, the context of the police investigation, as this
court has noted, provides no ‘‘individualized suspicion of
wrongdoing.’’ United States v. Davis, 270 F.3d 977, 979
(D.C. Cir. 2001).
The government, relying on Officer Branson’s testimony,
failed to present a ‘‘ ‘particularized and objective basis’ for
suspecting legal wrongdoing,’’ Arvizu, 534 U.S. at 273 (quot-
ing Cortez, 449 U.S. at 417–18), by any occupant of the black
car. Officer Branson implicitly acknowledged the limited
effect of all four circumstances on which the court relies when
he testified before the grand jury and later at the preliminary
hearing that he and the other police officer only wanted to
question the occupants of the black car to determine whether
they had any information about the earlier shooting. Even
crediting Officer Branson’s changed testimony at the suppres-
sion hearing that he also wanted to determine whether the
occupants of the black car ‘‘perhaps TTT might have been
involved with what was going on,’’ he never explained what
facts led him to believe that the occupants of the black car, as
opposed to those in the white car, were connected to the
earlier shooting. For example, he did not testify that he had
any information from the men in the white car that linked the
7
occupants of the black car to the shooting. Under Terry,
being generally ‘‘suspicious’’ and feeling ‘‘uneasy’’ is not suffi-
cient.
Further, unlike the officer in Terry, 392 U.S. at 28, who
explained why, in his experience, the conduct he observed was
not innocent but was consistent with potential thievery from
stores, or the border patrol officer in Arvizu, 534 U.S. at 269–
71, who explained why a pattern of behavior by a minivan and
its occupants indicated likely smuggling of drugs or illegal
aliens, or the officer in Edmonds, 240 F.3d at 60–61, who
explained why the defendant’s actions were consistent with
someone trying to hide something under a car seat, Officer
Branson never explained how being ‘‘sized up’’ by the driver,
or how the ‘‘furtive gesture’’ of an occupant moving from the
back to the front seat, or how Brown’s conduct made him
suspect criminal activity by the occupants of the black car.
Moreover, with respect to the threat that Officer Branson
perceived, there is no testimony to explain why the conduct of
the occupants of the black car as opposed to the general
circumstances surrounding the police investigation created a
reasonable fear other than Officer Branson’s own subjective
perception of the situation. See Op. at 9.
The objective evidence supports the desire of the police to
question the occupants of the black car about the shooting,
but when the police are collecting information rather than
acting on articulable suspicion of criminal wrongdoing, there
are limits on the manner in which they may intrude upon an
individual’s Fourth Amendment rights. See Terry, 392 U.S.
at 34–35 (White, J., concurring); Gomez v. Turner, 672 F.2d
134, 140–41 (D.C. Cir. 1982) (citing United States v. Wylie,
569 F.2d 62, 66–67 (D.C. Cir. 1977)); United States v. Ward,
488 F.2d 162, 169–70 (9th Cir. 1973). Although the intrusion
on Brown’s personal security, see Michigan v. Long, 463 U.S.
1032, 1046–47 (1983); Terry, 392 U.S. at 9, may have been
minimal when compared to an intrusion into someone’s home,
the Supreme Court has established that in the absence of a
specific belief of criminal activity or dangerousness by the
person stopped, the intrusion is unlawful. See Long, 463 U.S.
at 1051; Terry, 392 U.S. at 27. Because the government
8
bears the burden of proof, see Mincey v. Arizona, 437 U.S.
385, 390–91 (1978); Davis, 270 F.3d at 982, in the absence of
any evidence of an articulable basis for the officers’ suspicion
of criminal wrongdoing or the reason they were concerned for
their safety, the court should not draw such inferences in the
government’s favor. See Myers, 308 F.3d at 255. The court
thus misses the point when it states that ‘‘[t]he officers were
not required to resolve the occupants’ status before stopping
themTTTT’’ Op. at 9. To conduct a Terry stop and search,
the officers were required to have an articulable suspicion
specific to the occupants of the black car before infringing on
Brown’s Fourth Amendment rights.
The court points to two factors as supportive of the officers’
‘‘additional grounds justifying [this] fear’’ of physical harm as
they approached the black car. Op. at 12–13. First, the
police were approaching an automobile. Second, the black
car’s tinted windows obscured the officers’ view inside the
car. The court acknowledges, however, that these factors
provide no support for the Terry stop itself. Op. at 12 n.6.
Although neither officer gave any specific reason, other than
the general circumstances surrounding the investigation of
the earlier shooting, that would cause them to fear for their
own safety from the occupants in the black car, see Long, 463
U.S. at 1049 n.14, the court considers these factors sufficient
to fill the evidentiary gap with respect to the search. Op. at
12 n.6.
For the first factor, however, the court relies on cases in
which the police already had a basis to conduct a Terry stop
and search. Op. at 12–13. For example, in Long, 463 U.S. at
1050–51, the defendant was speeding, swerved his car into a
ditch and appeared intoxicated when the police questioned
him, and during questioning, the police observed a large knife
in the interior of the defendant’s car; in Maryland v. Wilson,
519 U.S. 408 (1997), and Pennsylvania v. Mimms, 434 U.S.
106 (1977), the defendants were subjected to a Terry stop and
search after committing traffic violations. Officer Branson’s
testimony indicated that the police did not have grounds to
suspect Brown was involved in the earlier shooting or other
criminal activity; he testified that he approached the black
9
car ‘‘as if TTT doing a traffic stop.’’ Even if Officer Branson
only meant by that phrase to describe a police procedure, it is
nonetheless telling that at no point did he testify that he
suspected the occupants of the black car as being involved in
the earlier shooting. Rather, the police sought out the occu-
pants of the black car to question them as possible witnesses
or because the police were suspicious of them based on
‘‘inarticulate hunches,’’ Terry, 392 U.S. at 22, arising primari-
ly from the general context of the police investigation. Un-
der the court’s analysis, whenever the police approach a car
in the course of investigating a shooting late at night, even a
shooting that occurred several hours earlier, the police may
intrude on the personal security of the occupant of a car
based on a person’s mere presence in a high-crime neighbor-
hood. Terry requires more. The predicate to a ‘‘ ‘stop and
frisk’ ’’ under Terry is ‘‘that police do not need probable cause
to conduct a brief, investigatory stop of an individual if they
are ‘able to point to specific and articulable facts which, taken
together with rational inferences from these facts,’ give rise
to a reasonable suspicion of criminal activity’’ by that individ-
ual. United States v. Christian, 187 F.3d 663, 668 (D.C. Cir.
1999).
The second factor, obscured vision due to the black car’s
tinted windows, also does not relieve the police of their
obligations under Terry. The court quotes United States v.
Stanfield, 109 F.3d 976 (4th Cir. 1997), Op. at 13. However,
in that case the car with tinted windows was illegally parked
in the middle of the road, and the driver, a known drug-
dealer, was engaged in a conversation with another known
drug-dealer, who was leaning out of the window of a second-
floor apartment building. Id. at 978, 981–82. By contrast,
there was no evidence that the police had any grounds to
think the occupants of the black car, which was lawfully
parked in a residential parking lot, were guilty of a traffic
violation or engaged in any criminal activity. At best, the
tinted windows gave reason for the police to be more cautious
when conducting a permissible Terry stop and search based
on an articulable suspicion of individualized criminal activity,
but the obscured-vision circumstance did not excuse Terry’s
10
requirement that the police possess adequate suspicion to
conduct a stop in the first place. So far as the government’s
evidence indicated, the occupants of the black car were inno-
cent, uninvolved bystanders and no more. See Arvizu, 534
U.S. at 277.
Other cases relied upon by the court are not analogous to
the instant case. Almost nothing in Raino, 980 F.2d at 1150,
see Op. at 7, is similar. In Raino, there was no information
available to the police about the source of the second of three
shooting incidents, the defendant’s car was double parked,
and the defendant, who looked nervous, began to pull away.
Id. at 1149. Other cases relied on by the government are
distinguishable as Brown made no attempt to flee, see Ward-
low, 528 U.S. at 121–22; United States v. Smith, 217 F.3d
746, 749–50 (9th Cir. 2000), and in Smith, the police officer
had more than mere flight as grounds to suspect the individu-
al defendant of criminal wrongdoing.
Failing to distinguish between police questioning of wit-
nesses to a crime and questioning of likely criminal suspects,
the government relies on authority that allows the stop of a
potential witness when the crime ‘‘has just been committed.’’
4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 9.2(b), at 24 (3d ed. 1996). In such
circumstances, the police must question potential witnesses
immediately or very soon after the crime has taken place, see
id. at 24–25, and in any event, in less time than the two to
three hours that elapsed here. Even under the district
court’s condensed view of the lapse of time between the
shooting and the arrival of the police at the scene, the ‘‘just
committed’’ exception has no bearing; hours had passed and,
as the complainant testified, there was sufficient time for the
white car to leave the parking lot twice after the shooting
before returning prior to the arrival of the police. The court
does not embrace this part of the government’s argument, for
Brown could ‘‘not be detained even momentarily without
reasonable, objective grounds for doing so; and his refusal to
listen or answer does not, without more, furnish those
grounds.’’ Florida v. Royer, 460 U.S. 491, 498 (1983) (citing
United States v. Mendenhall, 446 U.S. 544, 556 (1980)); see
11
Berkemer v. McCarty, 468 U.S. 420, 439 (1984). If, as the
government maintains, a Terry stop did not occur when the
police knocked on the car window, Brown was free to ignore a
consensual encounter. Cf. Berkemer, 468 U.S. at 439.
Hence, the court properly does not rely on the failure of the
occupants in the black car to respond to the officer’s knock on
the car window. See Op. at 14 n.7.
II.
Terry also is instructive about the scope of the search that
can be justified to protect an officer’s safety. See Op. at 12
n.6. ‘‘The sole justification of the search in the present
situation [of a Terry pat down] is the protection of the police
officer and others nearby, and it must therefore be confined
in scope to an intrusion reasonably designed to discover guns,
knives, clubs, or other hidden instruments for the assault of
the police officer.’’ Terry, 392 U.S. at 29. The police re-
moved Brown and the female occupant from the car and
handcuffed them before taking the keys out of the ignition
and opening the trunk of the car. Once the occupants were
handcuffed, and because the trunk was not in any event
immediately accessible to them, the rationale for a Terry
search beyond the immediate surroundings of the passenger
compartment evaporates. See Long, 463 U.S. at 1049; Chris-
tian, 187 F.3d at 670.
The government, consequently, does not rely on Terry for
the search of the trunk but instead argues that finding the
gun next to Brown in the passenger compartment of the black
car gave the officers probable cause to search the trunk for
other guns, ammunition, or other contraband. The court
agrees, relying principally on United States v. Turner, 119
F.3d 18 (D.C. Cir. 1997). Op. at 16–18. Its reliance on
Turner is misplaced.
In Turner, the police stopped the defendant’s car because it
did not have a front license plate. 119 F.3d at 18. As the
officer approached the car he noticed ‘‘a strong odor of burnt
marijuana’’ coming from the car. Id. After the defendant
was unable to produce his driver’s license, the officer saw
12
‘‘torn pieces of cigar tobacco’’ in the defendant’s lap, on the
seat between his legs, and on the floor at his feet. Id. The
government introduced evidence that in the officer’s experi-
ence these observations were consistent with marijuana use.
Id. The officer also saw, directly behind the defendant, ‘‘a
clear plastic bag of green, weed-like material,’’ which the
officer believed to be marijuana. Id. at 18–19. Moreover,
although this court did not rely on evidence that the defen-
dant had hidden the key to the trunk in his shoes, the
government offered evidence that in the officer’s experience a
missing trunk key is often concealed on a person’s body,
including his shoes. Id. at 19. On appeal, Turner did not
dispute there was probable cause for the police to search the
passenger compartment of his car, but contended that the
evidence was consistent only with his personal drug use and
hence there was no probable cause to believe there would be
additional drugs in the trunk. Id. at 20. The court rejected
the personal drug use distinction and upheld a warrantless
search of the trunk citing United States v. Ross, 456 U.S. 798,
824 (1982), and Robbins v. California, 453 U.S. 420, 428
(1981). See Turner, 119 F.3d at 21. Under the circum-
stances shown by the evidence, the court held there was
probable cause for the officer to search the trunk for drugs,
distinguishing cases where police suspicion was directed at a
specific container. Id. at 20, 23.
By contrast with the evidence in Turner, the evidence in
the instant case shows only that Brown was in possession of a
single handgun in a lawfully parked car late at night several
hours after a shooting in the same area. There was no
evidence that the police had reason to think that more than
one gun was involved in the earlier shooting or that the gun
seized was a different type of gun than the one that was used
in the shooting. This case is not like those in which there are
indicia of multiple firearms or other contraband. In United
States v. Abdul–Saboor, 85 F.3d 664, 666, 670 (D.C. Cir. 1996),
cited by the court, Op. at 16, while executing a bench warrant
the police observed the defendant pick up a loaded pistol and
saw a loaded semi-automatic pistol and magazine on a table.
In other cases on which the court relies, Op. at 17, the police
13
had information that the defendant was in possession of drugs
and thus had reason to think that the defendant also may
have a gun, as in United States v. Conyers, 118 F.3d 755, 757
(D.C. Cir. 1997), where a detailed tip from a confidential
informant alerted the police to the likelihood that the defen-
dant would be transporting drugs, or in United States v.
Dunn, 846 F.2d 761, 764 (D.C. Cir. 1988), where the defen-
dant was in a townhouse that served as a retail drug opera-
tion and a gun was on a couch. There also was no evidence
that the police had information to link Brown or the other
occupants of the black car to unlawful drug activity; nor was
there testimony that the police relied on their experience to
conclude that the occupants of the black car were likely
involved in unlawful drug or other criminal activity. Neither
was there evidence of flight. Brown and the other occupant
had remained in the immediate area knowing the police were
questioning men in another car; they were in a car that was
not the one that the complainant and her sister had told the
police was in the parking lot at the time of the shooting.
Furthermore, before the search of the trunk it appears that
the police knew that the black car was not registered to
Brown. Brown testified that he told the police he had been
given use of the car by a third man and was using the car to
be with his girlfriend, although Officer Branson testified that
he did not hear Brown’s explanation.
In any event, unlike Turner, the government failed to
present evidence showing that probable cause existed to
search the trunk of the black car. The court engages in pure
speculation – suggesting that Brown may have been using the
gun to protect other contraband such as drugs, and that there
may have been multiple guns, Op. at 16–17 – that has no
evidentiary basis, much less sufficient evidence to demon-
strate that the police had probable cause to search the trunk.
There was no evidence, as there was in Turner, that the
police relied on their experience in concluding there was a fair
probability that there was contraband in the trunk of the
black car. Indeed, the court ignores the evidence that Officer
Branson’s reason for searching the trunk had nothing to do
with contraband; he was concerned about protecting the
14
police department against civil liability for valuables that
might be in the trunk. While Officer Branson’s subjective
motive is not determinative, it is informative of the objective
circumstances in light of his testimony that it was because he
saw personal items in the passenger compartment of the car,
as though someone was living there, that he decided to open
the trunk to check for valuables. It was the appearance of the
passenger compartment, as distinct from finding a gun or
suspecting that the occupants of the black car were involved
in the prior shooting or unlawful drug activity, that resulted
in the opening of the trunk. Thus, to defend the correctness
of the holding in Turner, as the court does, Op. at 18–20, does
not also demonstrate that its rationale is properly extended
beyond its moorings.
In California v. Acevedo, 500 U.S. 565, 580 (1991), the
Supreme Court reaffirmed its long-standing principle regard-
ing the permissible scope of warrantless searches of automo-
biles based on probable cause to believe there is contraband
or evidence of a crime to be found in a car: the search can go
no further than is necessary to discover the object of the
search supported by probable cause. In Acevedo, the Court
upheld the search of a bag in the trunk of a car where the
police had probable cause to believe that the bag contained
marijuana, while observing that because ‘‘the police did not
have probable cause to believe that contraband was hidden in
any other part of the automobile TTT a search of the entire
vehicle would have been TTT unreasonable under the Fourth
Amendment.’’ Id. The Court reemphasized that ‘‘ ‘searches
conducted outside the judicial process TTT are per se unrea-
sonable under the Fourth Amendment – subject only to a few
specifically established and well-delineated exceptions.’ ’’ Id.
(quoting Mincey, 437 U.S. at 390); Ross, 456 U.S. at 824. It
remains true, as the Supreme Court instructed in Carroll v.
United States, 267 U.S. 132, 156 (1925), that ‘‘[i]n cases where
the securing of a warrant is reasonably practicable, it must be
usedTTTT’’
For these reasons the conclusion follows that the evidence
demonstrated why the police would want to question the
occupants in the black car as potential witnesses to the
15
shooting earlier that night. It was another occupied car in
the parking lot when the police were questioning the men in
the white car. The complainant testified that the black car
often parked in the lot behind her apartment house. Because
the police were investigating a shooting they had reason to
proceed cautiously, and did so, entering the parking lot with
their guns drawn. But the evidence did not show that the
police had more than ‘‘inarticulate hunches’’ that Brown or
the other occupants of the black car were involved in the
earlier shooting, much less in any other criminal activity.
Perhaps, consistent with ‘‘the central teaching of th[e Su-
preme] Court’s Fourth Amendment jurisprudence,’’ the gov-
ernment might have been able to present evidence that would
meet the ‘‘demand for specificity in the information upon
which police action is predicated,’’ Terry, 392 U.S. at 21 n.18,
to support the admission against Brown of the evidence
seized without a warrant from the lawfully parked car in
which he was sitting with his girlfriend. However, it is not
the role of the court to fill in the gaps by rejecting evidence
that was presented and speculating about evidence the gov-
ernment might have presented. See Myers, 308 F.3d at 255.
The government bears the burden of proof, and under Terry,
the government must present evidence that the police officer
was able to articulate the specific facts that caused him to
view Brown as a likely suspect in the earlier shooting. Oth-
erwise, as Mincey, Terry, and the Supreme Court’s jurispru-
dence on warrantless car searches make clear, there is no
principled limit on invasions by the police of a person’s
security and privacy if a mere ‘‘hunch’’ suffices. Accordingly,
because there was no evidence to show that the police had
articulable suspicion of criminal wrongdoing by Brown to
justify a stop and seizure under Terry, or that there was
probable cause for a warrantless search of the car trunk for
contraband or evidence of a crime, the district court erred in
denying the motion to suppress the evidence, and I respect-
fully dissent.