United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2006 Decided July 7, 2006
No. 04-3174
UNITED STATES OF AMERICA,
APPELLEE
v.
MORRIS M. BROADIE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00218-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Florence Pan, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Kenneth L. Wainstein, U.S.
Attorney, and Roy W. McLeese, III and David B. Goodhand,
Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and HENDERSON and
RANDOLPH, Circuit Judges.
2
GINSBURG, Chief Judge: Morris Broadie challenges his
conviction and sentence for unlawful possession with intent to
distribute more than 50 grams of cocaine base, a violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(iii). He argues the drugs and
cash found in a hidden compartment in his van should have been
suppressed because police officers detained him without a
reasonable, articulable suspicion or, alternatively, because they
arrested him without probable cause, based solely upon seeing
he had an “ASP baton.” We reject Broadie’s claims and affirm
his conviction but, as agreed by the parties, remand the record
to the district court to make a sentencing determination pursuant
to United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005).
I. Background
The undisputed police testimony is as follows. At
approximately 11:40 one night three officers of the Metropolitan
Police Department were driving through a “high drug area,
known for the illicit sale of crack cocaine [and] marijuana” and
for the recovery of “numerous weapons,” when they got out of
their car to talk with some men they had stopped the previous
night for being drunk in public. Officer Derek Phillip noticed
that a conversion van, parked on the street two to three car
lengths away, was idling the whole time they spoke -- three to
four minutes. Believing the van was idling excessively, in
violation of D.C. Municipal Regulations title 18, § 2418.3
(idling limited to three minutes when vehicle is parked, except
for “private passenger vehicles”), the officers proceeded to
investigate.
Officer Phillip approached the passenger door of the van
and shone his flashlight through the window, which was
“heavily tinted.” He saw Broadie “slumped over the wheel,”
apparently sleeping. Phillip tapped the window 15 to 20 times
3
and tried to open the passenger door, but it was locked. When
Broadie finally woke up after about 30 seconds, he was
“disoriented,” looked “confused” and, in Officer Phillip’s
opinion, “could have been under the influence” of alcohol or
drugs. Officer Teel, standing by the driver’s side of the van,
directed Broadie to get out.
At this point the stories told by the police and civilian
witnesses diverge. Officer Phillip testified at the suppression
hearing that as Broadie got out of the van, Officer Teel observed
in plain view in the pocket of the driver’s side door an ASP
baton -- a “newer version of the nightstick” that, “by the use of
a little arm movement, ... protrudes out to 16 inches”; it is used
by law enforcement officers to “subdue combative subjects.”
Officer Teel then handcuffed Broadie and placed him under
arrest for “possession of a prohibited weapon,” see D.C. Code
§ 22-4514, after which he “thoroughly” searched the van.
Rondell Wills, one of the four men stopped by the police,
and Tarsha Washington, a neighbor who saw the encounter from
her porch, remembered the incident in a slightly different way.
They testified at the hearing that the officer on the driver’s side
of the van opened the door and “snatched” or “pulled” Broadie
out, took him to the back of the vehicle, and placed him in
handcuffs. Only then did an officer -- their testimony conflicts
as to which one -- return to the driver’s door where he leaned
down and appeared to be “searching for something.” When the
officer emerged from behind the door, he held up a “black
stick,” presumably the ASP baton.
In the course of their post-arrest search of the van, the
officers found beneath a beverage compartment at the rear of the
vehicle (1) a clear ziploc bag containing “51 small green-tinted
ziplocs with a white rock-like substance” as well as “loose
4
white-rock” wrapped in saran wrap, (2) a separate green-tinted
bag, and (3) $600. When Broadie was later indicted for
unlawful possession with intent to distribute more than 50 grams
of cocaine base, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), he
moved to suppress the physical evidence found in his van,
arguing the police had neither reasonable suspicion to detain nor
probable cause to arrest him.
The district court denied the motion, crediting Officer
Phillip’s version of events insofar as there were factual
discrepancies in the testimony. The court concluded the officers
reasonably could have believed that Broadie was “ill,”
“suffering from carbon monoxide poisoning,” or “intoxicated,”
and therefore they lawfully ordered him from his vehicle in
order to “find out if [he was] all right” and to “protect the
public” from a potentially drunk driver. The court also held the
search of Broadie’s car was a lawful search incident to arrest
because the officers had probable cause to believe Broadie’s
possession of the ASP baton violated D.C. law.
Broadie entered a conditional plea of guilty, thereby
preserving his right to appeal. The district court sentenced
Broadie to 121 months in prison, the low end of the Sentencing
Guidelines range, followed by five years of supervised release.
II. Analysis
Broadie argues again on appeal that the physical evidence
found in his van should have been suppressed as the product of
a seizure and an arrest made in violation of the Fourth
Amendment to the Constitution of the United States. We review
de novo the district court’s determinations of reasonable
suspicion and probable cause but review its findings of fact only
for clear error. See Ornelas v. United States, 517 U.S. 690, 699
5
(1996).
A. The Seizure
First, Broadie argues he was unlawfully seized when the
officers directed him to get out of his van without having a
reasonable, articulable suspicion that “criminal activity may be
afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968); see United States
v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) (“the issue is
whether a reasonably prudent man in the circumstances would
be warranted in his belief that the suspect is breaking, or is about
to break, the law”) (internal quotation marks and citation
omitted). The Government advances three rationales for the
seizure: the officers (1) could reasonably have suspected
Broadie had been driving or would drive while intoxicated, (2)
could reasonably have suspected the heavy tint on Broadie’s
windows violated D.C. law, and (3) in any event were acting
pursuant to their “community-caretaking” duties because they
had a “duty to determine whether [Broadie] was ill, injured or
intoxicated,” see Cady v. Dombrowski, 413 U.S. 433, 441
(1973). Because we agree with the first point, we do not address
the other two.
“Reasonable suspicion” is a “less demanding standard than
probable cause and requires a showing considerably less than
preponderance of the evidence.” Illinois v. Wardlow, 528 U.S.
119, 123 (2000). Therefore, a Terry stop “requires only a
minimal level of objective justification and an officer may
initiate one based not on certainty, but on the need to ‘check out’
a reasonable suspicion.” Edmonds, 240 F.3d at 59 (internal
quotation marks and citations omitted). The inquiry requires an
assessment of the “totality of the circumstances as the officer on
the scene experienced them.” Id.
6
Considering the totality of those circumstances, we
conclude the officers could reasonably have detained Broadie
based upon the reasonable suspicion that he had been or soon
would be driving while intoxicated. Broadie was found
“slumped over” his steering wheel, with his engine running, late
at night. As the district court reasoned, “generally people are
not [found in such a position] unless something is amiss.”
Broadie was slow to awake and his “disoriented” and
“confused” state when he did wake up would only have
heightened a reasonable observer’s suspicion he was intoxicated.
Broadie protests it is mere speculation that he might have
been intoxicated, for the circumstances suggested he was simply
asleep. “Our inquiry, however, ‘does not deal with hard
certainties, but with probabilities.’” United States v. Moore, 394
F.3d 925, 930 (D.C. Cir. 2005) (quoting United States v. Cortez,
449 U.S. 411, 418 (1981)). And that Broadie was intoxicated
“was among the most probable explanations for the peculiar
circumstances [Officer Phillip] observed.” Id. We conclude the
police had a reasonable, articulable suspicion upon which to
detain Broadie.
Having lawfully detained Broadie, it follows that the
officers reasonably could, in the interest of their own safety,
order him to get out of his van. See Pennsylvania v. Mimms,
434 U.S. 106, 111 (1977) (“We think this additional intrusion
can only be described as de minimis. ... The police have already
decided that the driver shall be briefly detained; the only
question is whether he shall spend that period sitting in the
driver’s seat of his car or standing alongside it.”). We turn,
therefore, to the question whether they had probable cause,
moments later, to arrest him.
7
B. The Arrest
As an initial matter, Broadie maintains the police lacked
probable cause because they found the ASP baton after, not
before, they arrested him. Specifically, he argues the district
court clearly erred in crediting the testimony of Officer Phillip
over that of Broadie’s civilian witnesses, whose testimony, he
claims, shows the baton was found after he had been pulled from
the car and handcuffed. Relatedly, Broadie says the police must
have “staged” the photograph in the record showing the ASP
baton sticking out of the pocket on the driver’s side door in plain
view.
We review the district court’s credibility determinations
only for clear error. United States v. Simpson, 992 F.2d 1224,
1226-27 (D.C. Cir. 1993). Indeed, such rulings “are entitled to
the greatest deference from this court on appeal.” United States
v. Hart, 324 F.3d 740, 747 (D.C. Cir. 2003) (citation omitted);
see also United States v. Anderson, 881 F.2d 1128, 1142 (D.C.
Cir. 1989) (“credibility determinations ... are not for us to
second guess”).
Broadie attacks Officer Phillip’s testimony on two fronts.
First, he argues the timing of events described in police
testimony and police reports conflicts with the dates on the
photographs taken at the scene with Officer Jonathan Teixeira’s
digital camera. The photograph of the drugs found in the van
was dated “4/13/2004,” but the photograph of the baton sticking
out of the pocket of the driver’s door was dated “4/14/2004.”
Officer Phillip explained the discrepancy, testifying it was “fair
to say” the photograph of the ASP baton was taken after
midnight. According to Broadie, however, the officers
described a different sequence of events in their own reports and
testimony, as follows: (1) they stopped to talk to four men at
8
11:40 p.m.; (2) they arrested Broadie at 11:43; (3) after the van
had been searched, they photographed the drugs and the baton,
which took a “few minutes”; and (4) they read Broadie his rights
at 11:45. Broadie argues this sequence is inconsistent with
Officer Phillip’s explanation that the photograph of the ASP
baton was taken after midnight; therefore the district court
should not have credited Officer Phillip’s testimony that the
baton was in plain view when he was arrested at 11:43.
The district court concluded that discrepancies of “a matter
of minutes” were not significant: They may have been the result
of faulty memories, lack of precision in the police reports, or a
camera with an internal clock running a little fast. In sum, the
court found that any inconsistency is not “so glaring that the
police officers’ testimony ‘must be a fabrication.’” United
States v. Streater, 70 F.3d 1314, 1318 (D.C. Cir. 1995) (quoting
United States v. Gilliard, 847 F.2d 21, 24 (1st Cir. 1988)). This
decision, though not compelled, is certainly not clearly
erroneous.
Broadie also challenges the district court’s reasons for
discrediting his witnesses. The court found Mr. Wills was
evasive and inconsistent about his relationship with Broadie and
that certain aspects of his testimony simply did not jibe. The
court also found Ms. Washington’s version of events
problematic (“I just don’t think that is reasonable”). Broadie
argues the court did not “hesitat[e] to conclude that [the defense
witnesses] had lied under oath based on the smallest of
perceived discrepancies.” But the court never suggested a
witness was lying; the judge merely concluded Officer Phillip
was more credible. As the Government points out, the
discrepancies could have been due to mere mistake or a failure
of recollection on the part of Broadie’s witnesses.
9
It is also likely Wills and Washington simply could not see
well enough to assess the order of events; Officer Phillip
testified that Teel saw the ASP baton before he arrested Broadie,
specifically, “As he [Broadie] exited the vehicle.” If, as seems
to be the case, the baton was in plain view immediately upon
Broadie’s opening the door, then Officer Teel’s quick reaction
may well have appeared to an observer as his simply pulling
Broadie from the car and arresting him. The witnesses could not
tell whether he spotted the baton before or after he laid a hand
on Broadie; nor did they claim to have done. Therefore, their
testimony gives us no basis upon which to disturb the district
court’s decision to credit Officer Phillip’s testimony that Teel
saw the ASP baton in plain view before he arrested Broadie.
Broadie’s challenge to his actual arrest is more weighty. He
argues the search of his van was not a lawful search incident to
arrest, pursuant to New York v. Belton, 453 U.S. 454 (1981),
because the police, assuming they had seen the baton, still did
not have probable cause to arrest him for possession of a
prohibited weapon under D.C. Code § 22-4514(b), one of the
crimes with which Broadie was actually charged. The
Government concedes this point, as it must. For we explained
in United States v. Christian, 187 F.3d 663 (1999), a violation
of § 22-4514(b) requires proof of intent “to use [the weapon]
unlawfully against another,” and there is at least one “perfectly
lawful purpose for keeping a [weapon] in a car, particularly in
a high-crime neighborhood: self-defense.” Christian, 187 F.3d
at 667.
The arrest was valid, however, if the officers had probable
cause to believe Broadie had committed any crime. See
Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (officer’s
“subjective reason for making the arrest need not be the criminal
offense as to which the known facts provide probable cause”).
10
And this they had.
The Government argued before the district court that the
facts provide probable cause to believe Broadie was carrying a
dangerous weapon (CDW) in violation of D.C. Code § 22-
4504(a), which does not require proof of intent to use the
weapon for an unlawful purpose. See Mitchell v. United States,
302 A.2d 216, 217 (D.C. 1973); see also Roper v. United States,
564 A.2d 726, 730 (D.C. 1989) (“It is essentially a crime of
possession, designed to keep such dangerous items off the
street”); Scott v. United States, 243 A.2d 54, 56 (D.C. 1968)
(noting congressional intent “to drastically tighten the ban on
carrying dangerous weapons”). Therefore, neither self-defense
nor any other “lawful purpose” is material to the offense or
sufficient to avoid liability. See Monroe v. United States, 598
A.2d 439, 440 (D.C. 1991).
In the District of Columbia, a “dangerous weapon” is
anything that is “likely to produce death or great bodily injury by
the use made of it.” Strong v. United States, 581 A.2d 383, 386
(D.C. 1990) (quoting Scott, 243 A.2d at 56). An object is “likely
to produce great bodily injury” if: (1) the design of the object is
such that in its ordinary use it is likely to cause great bodily
injury; or (2) the surrounding circumstances indicate that an
object capable of causing great bodily injury is likely in fact so
to be used. For example, some items, “such as particularly
menacing knives, have been held to be inherently dangerous,”
id., that is, “dangerous in its ordinary use as contemplated by its
design and construction,” Scott, 243 A.2d at 56. But “all knives
are not per se dangerous .... [because a] knife may be used as a
tool in certain trades or hobbies or it may be carried for
utilitarian reasons.” Id. An object that is not “inherently
dangerous can become dangerous by its use as a weapon.”
Strong, 581 A.2d at 386; see also Scott, 243 A.2d at 56 (an
11
instrument may be dangerous “where the purpose of carrying the
object, under the circumstances, is its use as a weapon”).
In order to determine whether the CDW statute outlaws the
carrying of “an otherwise useful object” we must examine “the
surrounding circumstances,” Scott, 243 A.2d at 56, including,
among others, “the design or construction of the instrument; the
conduct of the defendant prior to his arrest; any physical
alteration of the instrument; and the time and place the
defendant was found in possession.” Monroe, 598 A.2d at 441
(citations omitted). Note that the design of the instrument is
relevant to both inquiries: It may indicate an object is inherently
dangerous or, if not inherently dangerous, that the object is
likely to be used as a weapon.
The Government argues we need not consider the
alternative because Broadie conceded before the district court
that an ASP baton is an inherently dangerous weapon. Although
defense counsel did say, “An ASP baton is a dangerous
weapon,” he qualified his statement, adding “just as a knife, for
instance, is a dangerous weapon.” And, as just discussed, not all
knives are inherently dangerous weapons for the purpose of §
22-4504 because not all knives are designed to cause great
bodily injury in their normal use. In context, there is no reason
to believe Broadie’s counsel was, with this statement, conceding
away his entire defense. Therefore, we understand counsel to
have conceded only that an ASP baton, like a knife, is capable
of being used as a dangerous weapon. And just “as [with] a
knife,” the Government must establish probable cause to believe
the suspect intended to use the ASP baton to cause great bodily
injury.
Still seeking a short cut, the Government argues evidence
in the record establishes that the ASP baton is inherently
12
dangerous. The scant record evidence regarding the baton,
however, does not support this claim. Officer Phillip testified
that the baton is “primarily used to subdue combative subjects”
but, unsurprisingly, he not did not say or even imply that
officers ordinarily inflict great bodily injury when they use the
device. Indeed, what little authority there is on the matter
suggests an ASP baton is designed so it “can be used to control
suspects without inflicting serious injury.” Armament Sys. &
Procedures, Inc. v. Monadnock Lifetime Prods., Inc., 168 F.3d
1319, 1998 U.S. App. LEXIS 20818, at *1-2 (Fed. Cir. Aug. 7,
1998).
That said, it does not require authority to conclude that a
16-inch steel rod -- like the more commonplace lead pipe -- is
capable of inflicting great bodily injury when used for that
purpose. Therefore, the relevant inquiry is whether the
surrounding circumstances provide probable cause to believe
Broadie intended to use the ASP baton to cause great bodily
injury, whether in self-defense or otherwise. We believe they
do. See Brinegar v. United States, 338 U.S. 160, 175 (1949)
(“In dealing with probable cause ..., as the very name implies,
we deal with probabilities. These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.”).
Although many objects capable of causing great bodily
injury, such as a lead pipe, have legitimate uses other than as a
weapon, the normal and the only apparent use of an ASP baton
-- a steel rod that may be extended with a flick of the wrist -- is
to strike another. As Armament Systems attests, an ASP baton
“can be used to control suspects without inflicting serious
injury”; but a reasonable officer surely would believe that a
civilian, presumably without police training, would likely inflict
great bodily injury when using a steel rod in self-defense.
13
Indeed, of all people a police officer specially trained in the use
of an ASP baton is the most likely to know just how dangerous
the baton may be in the hands of an untrained person.
In sum, we hold the officers had probable cause to believe
that Broadie, encountered late at night in a high-crime area,
having within arm’s reach a weapon designed to be used against
another person, intended to use it so as to inflict great bodily
injury. Therefore, Broadie’s arrest was valid. It follows that the
search of Broadie’s van incident to that arrest was also valid and
the district court properly declined to suppress the evidence it
turned up.
III. Conclusion
For the foregoing reasons, Broadie’s conviction is affirmed.
As for his sentence, the parties agree a remand is required. In
United States v. Booker, 543 U.S. 220 (2005), the Supreme
Court held the United States Sentencing Guidelines are advisory
only. Broadie claims the district court plainly erred by applying
the Guidelines as though they were mandatory. Because the
record is unclear as to whether the district court “would have
imposed a different sentence, materially more favorable to the
defendant, had it been fully aware of the post-Booker sentencing
regime,” we remand the record for the district court to make this
determination. See Coles, 403 F.3d at 771.
So ordered.