United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2006 Decided January 16, 2007
No. 05-3160
UNITED STATES OF AMERICA,
APPELLEE
v.
RICHARD SPINNER, JR.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00556-01)
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.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, Assistant U.S. Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
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Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Richard Spinner, Jr. pleaded
guilty to one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). He argues the weapon
found in his truck should have been suppressed because police
officers detained him without a reasonable, articulable suspicion
of his being involved in a crime or, alternatively, because after
frisking him (with his consent) they searched his vehicle without
his consent and without a reasonable suspicion that it contained
a weapon. Assuming without deciding that Spinner’s parking
violation justified his initial detention, we agree with Spinner
that the police did not have the reasonable suspicion he was
armed and dangerous necessary to justify their search of his
vehicle. We therefore reverse the district court’s order denying
Spinner’s motion to suppress and remand the record to the
district court.
I. Background
The undisputed police testimony at the hearing held on
Spinner’s motion to suppress evidence is as follows. On
November 26, 2004 Metropolitan Police officers were driving
an unmarked police car through an area of Washington, D.C. in
which there had recently been “several narcotics arrests.” The
officers pulled into an alley and there saw Spinner walking
toward a parked Chevy Tahoe. As police approached, Spinner
opened the door behind the driver’s seat and got into the back
seat of the truck. The police pulled up in order to “advise him
that the vehicle needed to be moved because he couldn’t park
there” and motioned Spinner to roll down his window.
One of the officers testified:
At that point, [Spinner] looked at us. I guess he realized
3
who we were, and he kept eye contact but his body dipped,
the right side of his body dipped towards the center of the
back of the vehicle. He just kept looking at us and he was
going like this as if he was struggling with something or
trying to conceal something.
The officer explained his concern as follows: “We don’t know
if he’s trying to get something, we don’t know if there’s
something in there that could possibly harm us. So I go to exit
the vehicle.” Spinner then got out of the truck and “walk[ed] to
the back of the vehicle [leaving] the door wide open.”
An officer told Spinner he could not park there and Spinner
told him he had come to move the car, which the officers found
puzzling: “And we were just thinking, well, if you were going
to move it, why did you get in the back seat?” Spinner “was a
little nervous at that point,” so an officer asked if he had a
weapon on him. Spinner said no and consented to a frisk of his
person but, when asked if he had anything illegal in the truck
and for consent to search it, said no and denied consent.
Spinner was then “getting really nervous” and one of the
officers “felt that there was something that had been concealed
in the vehicle. We felt that it was something that possibly could
harm us.” One officer then shined a flashlight into the Tahoe,
the back door of which was still open, and “noticed that there
was a small drawer at the back of the center console all the way
at the bottom which was partially open, just a small bit, maybe
a quarter of an inch.” “[B]elieving that [Spinner] had stuck
something there, [an officer] went directly to that area and did
a limited search and just opened that drawer, and there was a
handgun in the drawer.” The police then arrested Spinner.
After Spinner was indicted for one count of being a felon in
possession of a firearm, he moved to suppress the physical
4
evidence found in his vehicle, arguing the police lacked a
reasonable suspicion upon which either to detain him or to
search his vehicle. The district court thought it a “very close
case” but ultimately denied the motion. The court first held the
stop was justified under Terry v. Ohio, 392 U.S. 1 (1968),
because “a traffic violation is a legitimate reason to stop
somebody.” The court then concluded the officers had a
reasonable suspicion, arising from the totality of the
circumstances — namely, Spinner’s “odd” explanation, his
“furtive movements,” and his nervousness — to justify frisking
Spinner and searching the truck.
Spinner entered a conditional plea of guilty, preserving his
right to appeal. The district court sentenced him to 33 months
in prison to be followed by three years of supervised release.
II. Analysis
Spinner argues again on appeal that the physical evidence
found in his vehicle should have been suppressed as the product
of a search made in violation of the Fourth Amendment to the
Constitution of the United States. We review de novo the
district court’s determination that the police had a reasonable,
articulable suspicion justifying the search. See United States v.
Broadie, 452 F.3d 875, 879 (D.C. Cir. 2006).
A. The Stop
Spinner argues first that the police did not have a
reasonable, articulable suspicion that criminal activity was
“afoot” when they stopped him. See Terry, 392 U.S. at 30. The
Government responds that under Whren v. United States, 517
U.S. 806, 810 (1996), the parking violation gave the officers
probable cause to stop Spinner, making an analysis under Terry
irrelevant. Spinner concedes that Whren authorizes the police
5
to stop a driver based upon “probable cause to believe that the
driver is committing a traffic violation,” but argues that Whren
is not applicable to a mere parking violation.
The circuits that have considered the question whether a
parking violation justifies a Terry stop have found no legally
meaningful distinction between a parking and a moving
violation. See United States v. Choudhry, 461 F.3d 1097, 1103-
04 (9th Cir. 2006) (concluding parking violation provided
reasonable suspicion for stop even in state where parking
violations are enforced through civil-administrative scheme);
Flores v. City of Palacios, 381 F.3d 391, 402-03 (5th Cir. 2004)
(parking violation gave officer authority to stop under Whren);
United States v. Copeland, 321 F.3d 582, 594 (6th Cir. 2003)
(same); United States v. Thornton, 197 F.3d 241, 248 (7th Cir.
1999) (same). We need not reach the issue, however, because,
as discussed below, we conclude the police did not have a
reasonable suspicion that Spinner was armed and dangerous so
as to authorize the search of his vehicle.
B. The Search
As we have recently explained, under Terry “a police
officer may perform a protective frisk if he has reason to
believe, based on ‘specific and articulable facts ... taken together
with rational inferences from those facts,’ that ‘he is dealing
with an armed and dangerous individual.’” United States v.
Holmes, 385 F.3d 786, 789 (D.C. Cir. 2004) (quoting Terry, 392
U.S. at 21, 27). Under the Terry ‘stop and frisk’ exception to
the fourth amendment requirement of probable cause, the police
may also search those areas of an automobile in which “a
weapon may be placed or hidden.” Michigan v. Long, 463 U.S.
1032, 1049 (1983). Spinner therefore argues that because “[c]ar
frisks under Long, like Terry frisks in general, are not automatic
but are justified only when the police have a reasonable fear that
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the individual being detained is ‘dangerous’ and ‘may gain
immediate control of weapons[,’ Long, 463 U.S. at 1049,]” in
this case “the facts did not establish grounds for opening the
closed console drawer.” More particularly, Spinner contends
there was no objectively reasonable basis for the officers to
believe he was armed and dangerous; he did not make any
movements that suggested he was either armed or dangerous,
and mere nervousness does not justify the inference that he was.
The Government responds that the totality of the circumstances
— namely, Spinner’s furtive movement in the truck, his
explanation that he was going to move the truck although he had
gotten into the back seat, and his leaving the door of the truck
open when he got out, together with his nervousness — created
an objectively reasonable fear that Spinner had secreted a
weapon in the Tahoe.
The district court concluded Spinner gave the police reason
to believe he was armed because he dipped his shoulder toward
the center console while he was in the truck, left the door of the
truck open when he got out and, while the police were searching
the truck, kept looking into it and asking the police why they
were searching it. Although the court recognized that Spinner’s
conduct was less suspicious than that of the defendant in Holmes
— who had admitted he had been drinking and, after the police
had specifically directed him not to, repeatedly reached for his
pocket, 385 F.3d at 790 — the court concluded there was
“enough here to justify the officers[’] reasonable concern for
their safety,” albeit “barely enough.”
We do not see how the officers’ safety was implicated at all
by Spinner’s conduct. By their own account Spinner, while in
the rear seat of the truck, looked as though he might have been
fiddling with the center console, after which he got out of the
vehicle leaving the door open and acted nervous when the police
asked for consent to search the vehicle. These are the
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cognizable facts.* And there is a logical gap between those facts
— which support only the inference that Spinner may have put
something (perhaps contraband) in his truck — and the
conclusion that the police were “dealing with an armed and
dangerous individual.” Holmes, 385 F.3d at 789 (internal
quotation marks and citation omitted).
Some additional fact is needed to get from the defendant’s
conduct (or his nervousness) to his likely being dangerous. In
Holmes the officers had twice observed the defendant put his
hand under his car seat, 385 F.3d at 787-88, so when Holmes,
once out of the car, reached for his pocket and, after having been
told not to do so, reached for his pocket again, a prudent officer
could reasonably infer that Holmes may have armed himself
when he had put his hand under the car seat. See Holmes, 385
F.3d at 787-88, 790 (concluding officer acted reasonably in
removing from Holmes’s jacket pocket a “hard, square object,”
which turned out to be a scale); see also Long, 463 U.S. at 1050
(hunting knife visible in interior of car, among other facts, gave
officers reasonable belief defendant was armed and dangerous).
*
To the extent (which is not clear from the record) the district
court may have relied upon Spinner’s nervous reaction when
asked for consent to search his truck or thereafter when the
search was taking place, we note that a search not justified when
it is begun cannot be used to elicit evidence with which to justify
the search after the fact. See United States v. Di Re, 332 U.S.
581, 595 (1948) (“[A] search is not to be made legal by what it
turns up. In law it is good or bad when it starts and does not
change character from its success.”) (footnote omitted); United
States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993)
(constitutional right to deny or withdraw consent to a search
“would be of little value if the very fact of choosing to exercise
that right could serve as any part of the basis for finding the
reasonable suspicion that makes consent unnecessary”).
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In this case, the police had already determined Spinner did
not have anything dangerous on his person when they frisked
him — with his consent. The officers suspected he put
something in his truck but they had no reason whatsoever to
believe it was a weapon. Therefore, when he denied them
further consent to search his vehicle, the encounter should have
ended.
We recognize that “traffic stops may be dangerous
encounters,” Maryland v. Wilson, 519 U.S. 408, 413 (1997), and
that “[a]pproaching a stopped car — particularly when there is
reason to believe the driver or occupants may be armed — is one
of the more perilous duties imposed on law enforcement
officers,” Holmes, 385 F.3d at 791. Still, the suspicion that
someone is armed — or, in this case, might have a weapon
available in his vehicle — must be based upon something more
than his mere nervousness. A person stopped by the police is
entitled to be nervous without thereby suggesting he is armed
and dangerous or, indeed, has anything to hide. Were nervous
behavior alone enough to justify the search of a vehicle, the
distinction between a stop and a search would lose all practical
significance, as the stop would routinely — perhaps invariably
— be followed by a search. We do not read Long to reach so
broadly into the rights of motorists to be free of searches based
upon less than probable cause.
III. Conclusion
We assume without deciding that Spinner’s parking
violation justified, as would a moving violation, the police in
stopping him pursuant to Terry. We then hold the facts of this
case do not reasonably suggest that Spinner was armed or
otherwise a threat to the safety of the officers who stopped him
and therefore their search of Spinner’s truck was unlawful even
if the stop was lawful. Spinner’s motion to suppress physical
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evidence therefore should have been granted. Accordingly, the
record is remanded to the district court and the judgment of that
court is
Reversed.