Jackson v. United States

BELSON, Senior Judge,

dissenting:

This case raises troubling issues regarding measures a police officer may take to protect his or her life and safety during a traffic stop. We recognize in considering this issue that no matter how laudable the goal of any law enforcement effort may be, it must be conducted in a manner consistent with the liberties of our people guaranteed by the Constitution. I disagree with the majority opinion’s analysis of whether the officer’s conduct was “reasonable” because the analysis gives too little weight to the safety and life of the investigating officer.1

A restatement of the facts will assist in understanding why appellant’s conviction should be affirmed. At approximately 10:48 p.m., Officer Norris observed appellant’s van turn in front of him in a “high-drug area” with which he was “[v]ery familiar.” Officer Norris saw, through the front windshield, a female in the driver’s seat and at the same time suspected that the van was operating with illegally tinted windows. The front driver’s side window, as distinguished from the front windshield, was later found to be heavily tinted, to a degree illegal under the laws of both the District of Columbia and Maryland. That tinted window admitted only 20 percent of the ambient light, while under the law of the District of Columbia, the windows were required to transmit 70 percent, and under the laws of Maryland 35 percent, of the ambient light. See D.C.Code § 50-2207.02 (2001) formerly D.C.Code § 40-718.1 (1981); M.D.Code Ann., Transp. § 22-406(i) (West 2012). The relative opacity of the vehicle’s windows significantly affected the ensuing investigation.

Officer Norris activated his emergency lights, the van stopped, and Officer Norris pulled up behind it. As Officer Norris began to run the van’s plates, “the van began to rock, [and] there was a lot of shaking with[in] the van.” Officer Norris could not see inside the van through its back window, and for that reason immediately approached to investigate. Officer *1216Norris had been a United States Park Police Officer for three years and had made over 1500 traffic stops for tinted window violations alone.

As he walked toward the van, Officer Norris was able to see a male in the driver’s seat, whom he identified at trial as appellant. Officer Norris used his flashlight to see inside the car and at that point it appeared “obvious” to Officer Norris that appellant had switched seats with the female driver. Officer Norris shined his flashlight through the driver’s side window, and saw “a lot of movement” within the front dashboard and console area. Because of the window’s tint, Officer Norris could only “see [appellant’s] hands moving in the dash area” and “a commotion going on.” “With the window tint being what they were,” he could not see the “exact spot” where appellant was placing his hands, nor could he see the “steering wheel area” well enough to determine whether appellant’s hands were in that area. Officer Norris testified that appellant’s movements in “the front driver’s compartment area was something [he] hadn’t seen before [and was] not us[ed] to seeing,” unlike the typical movements to obtain a driver’s license or registration. In Officer Norris’s experience, “a lot of people when they do a lot of movement around usually they start to place weapons or they retrieve weapons ...” Officer Norris said his “issue was weapon and get [appellant] out of his comfort zone for my safety.”

Concerned as he was that appellant might have a weapon, Officer Norris “immediately opened the [driver’s side] door” to find appellant’s hands were at “the bottom part of the steering wheel,” where Officer Norris had been unable to see through the tinted windows. Officer Norris twice asked appellant what he was doing, one time specifically asking “what did you just do, what did you just put right there?” Appellant responded, “nothing.” Officer Norris explained that he opened appellant’s door to “see what was going on” and to “see what [appellant had] in his hands.” Officer Norris reasoned that he “wasn’t gonna give [appellant] enough time to get out a weapon, load it and point it at [him].” Therefore, Officer Norris ordered appellant out of the van.

Officer Norris told appellant that he had seen the female driving, and asked him why they switched seats. It was only then that appellant admitted that the female had been driving, and told Officer Norris that she did not have a driver’s license. Appellant then consented to a pat-down of his body for weapons, and none were found. During the pat-down, Officer Norris observed appellant had a “nervous demeanor,” felt his heart beat quickly, and noticed his heavy breathing.

After the pat-down, Officer Norris handcuffed appellant and “detained” him in the police cruiser, but informed him that he was not under arrest. Officer Norris explained that he did so “for [his] safety, not knowing what they had or what was going on” and because he was initially the only officer at the scene. Officer William Alton then arrived at the scene to assist. He secured the female passenger by removing her from the van and having her sit, handcuffed, on the sidewalk. Officer Norris then stood with the female passenger, and directed Officer Alton to check the front passenger compartment “just to make sure there [were] no weapons there.” As Officer Alton was looking around the front part of the van, he noticed that the van’s horn cover appeared removable. It was “dispositioned” and looked like it had been “shifted.” Officer Alton removed the horn cover, which came up quite easily, and in the airbag compartment beneath it found three large Ziploc bags, two of which con*1217tained a total of forty individually packaged ziploc bags of cocaine.

After Officer Norris placed appellant under arrest for, among other things, possession with intent to distribute cocaine, he measured the tint of the van’s front windows with a tint meter. As explained above, the reading was 20 percent. He also determined that the van’s registration had expired. Officer Norris gave appellant a verbal warning about the tint after he was arrested for the registration violation. Officer Norris explained at the hearing that, although appellant was subject to arrest, and in fact was arrested, for driving an unregistered vehicle, driving an automobile with illegally tinted windows did not furnish grounds to arrest. Therefore, until he ascertained that the registration had expired, he lacked a basis to arrest appellant.

Officer Norris was the only witness to testify. The trial court credited his testimony that he saw the van “shaking back and forth” when it stopped. The trial court further credited the officer’s testimony that, upon walking to the van, he noticed that appellant had switched seats with the female driver, which the trial court concluded “certainly could heighten [Officer Norris’] suspicion.” Additionally, the court credited Officer Norris’ testimony that he saw movement in the dash area. Finally, the trial court credited Officer Norris’ testimony that the movement was “inconsistent with anything that he had seen on a traffic stop,” and that the movement “gave him concern about his own safety and the fact that [appellant] might be trying to retrieve a weapon.”2 The trial court concluded that Officer Norris had a “reasonable articulable suspicion that [appellant] might be hiding or trying to retrieve [a weapon].”3

The trial court determined that the controlling precedent for this case is Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and rejected appellant’s arguments that this case falls under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The trial court accordingly found that the officer “had the right to conduct a limited search [for weapons] of the areas that appellant could reach.” The trial court reasoned that there was “a very distinct possibility” that appellant would return to the car after the investigatory stop and regain access to a weapon. The court found, moreover, that the horn cover was “immediately in front of the dash” and “about as reachable [in proximity to appellant] as you can possibly get.” The trial court concluded that Officer Norris was “entitled to do the search,” and that the search was “reasonable” under Long.

I disagree with the majority that the foregoing facts, viewed in their totality, did not afford Officer Norris a reasonable and articulable basis to search (or “frisk”) the passenger compartment of appellant’s van for weapons. Therefore, appellant’s convictions should be affirmed.

A.

Appellant argues that “the only basis for finding that Mr. Jackson was dangerous was the so-called ‘furtive movements.’ The trial court thus erred in finding that Officer Norris had a reasonable suspicion to believe that Mr. Johnson was dangerous.” To the contrary, the record supports the trial court’s ruling that the totality of the circumstances gave Officer Norris a reasonable articulable suspicion *1218that appellant was trying to hide or retrieve a weapon, and therefore gave him adequate reason to conduct a protective search of the van’s passenger compartment.

Instead of engaging in “library analysis by scholars,” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), we are charged with viewing the circumstances “through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.” Peay v. United States, 597 A.2d 1318, 1322 (D.C.1991) (en banc) (citation omitted). The Supreme Court’s “cases have recognized that a police officer may draw upon inferences based on his own experience in deciding whether probable cause exists.” Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (citation omitted). “[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id. at 699, 116 S.Ct. 1657. “The [trial] court’s legal conclusions on Fourth Amendment issues ... ‘are subject to de novo review.’ ” Joseph v. United States, 926 A.2d 1156, 1160 (D.C.2007) (quoting Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991)). In conducting our review, however, “[w]e must defer to the [trial] court’s findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling [of the trial court].” Id. Here we review a ruling that the officer had reasonable articulable suspicion, that is, “more than a mere ‘hunch’ or ‘gut feeling’ ” but “substantially less than probable cause” to believe that appellant was attempting to hide or retrieve a weapon. Bennett v. United States, 26 A.3d 745, 751 (2011) (quoting James v. United States, 829 A.2d 963, 966 (D.C.2003) (citation and internal quotation marks omitted)).

When Officer Norris stopped appellant’s van late at night, it was being operated with deeply and illegally tinted windows in a “high drug” area. When the van pulled over, Officer Norris immediately saw it rock and shake abnormally. As Officer Norris approached the van, he realized that appellant had switched seats with the female passenger, whom he had earlier observed driving the vehicle.4 With the help of a flashlight, Officer Norris was able to observe, through the van’s illegally tinted windows, appellant making a “commotion” and moving his hands around the dash area. “[T]he continuous motion that [Officer Norris] saw that was going on in ... the front driver’s compartment was something [he] had not seen before or that [he was] not us[ed] to seeing.” However, because of the window’s tint, Officer Norris could not see the “exact spot” where appellant was placing his hands, nor could he see the “steering wheel area” well enough to determine whether appellant’s hands were in that area. Officer Norris immediately opened the driver’s side door to find appellant’s hands near “the bottom part of the steering wheel,” where Officer Norris had been unable to see through the tinted windows. When Officer Norris twice asked appellant, “what did you just do, what did you just put there?”, appellant suspiciously and untruthfully responded, “nothing.” Throughout the stop, appellant exhibited a “nervous demeanor.” Officer Norris also noticed how hard appellant’s heart was beating and that appel*1219lant was breathing heavily during the pat-down. Based on the totality of these circumstances, it was reasonable for Officer Norris to order a protective search of the van’s passenger compartment before allowing appellant to return to the vehicle and be in a position to retrieve any weapon. See Long, supra, 463 U.S. at 1050, 103 S.Ct. 3469 (listing that “the hour was late” as one circumstance justifying officers’ “reasonable belief that [the defendant] posed a danger”); United States v. Glover, 851 A.2d 473, 477 (D.C.2004) (noting defendant’s “nervousness” as relevant factor, and remanding for clarification of whether defendant’s reaching motion, in addition to nervousness, justified search of defendant’s vehicle for weapons); James, supra, 829 A.2d at 968 (holding “high crime area” relevant to reasonable suspicion analysis); Anderson v. United States, 658 A.2d 1036, 1038 (D.C.1995) (stating that “a person’s reaction to questioning” is a consideration of the reasonable suspicion analysis).5

The majority concludes that, “notwithstanding the officer’s testimony, the movement he described — ‘hands moving in the dash area’ — did not give him particularized objective grounds for believing [appellant] was moving his hands on the dashboard to retrieve a gun.” The majority’s analysis is skewed. It does not give adequate weight to the perception of the experienced police officer that the unusual and continuous motion of the appellant’s hands could have indicated that he was trying to hide or retrieve something, possibly a weapon. Furthermore, it discounts the fact that the motion was partially obscured by the illegally tinted windows, does not consider the availability of various compartments, recesses, or alcoves commonly available to hide weapons in the front compartment of vehicles, and gives little weight to the lateness of the hour or the high drug area in which the events occurred. As developed here, a full consideration of the totality of the circumstances should result in affir-mance.

I also disagree with the approach taken by the majority opinion in analyzing appellant’s movements and role of tinted window in reasonable suspicion analysis. The majority’s analysis of the reasonableness of the officer’s actions is unduly restrictive. Although it recognizes, as it must, that the totality of the circumstances may differ in every case and other factors may tip the balance regardless of the nature of the particular gestures in a given case, the analysis relies heavily on the proposition that “our decisions involving so-called furtive gestures have generally drawn a distinction between conspicuous reaches under the seat and less distinct bending motions or movements toward the dash, the console or the passenger seat.” The opinion goes on to cite three cases in which this court (or the D.C. Circuit) has found a gesture to give rise to a reasonable suspicion, in all of which a suspect is seen reaching down and appearing to place something under the seat.6

*1220Given the wide variety of vehicles that travel our streets and the numerous hiding places that may be found in their passenger compartments, especially in the front area around the dashboard, it would not be appropriate for us to substitute our judgment for that of an experienced police officer who sees hurried, continuous, and unnecessary hand motions in the dashboard area and believes that a suspect is doing precisely what the appellant here was almost certainly doing: hiding an object in a compartment where he hoped it would escape detection. Appellant’s compartment of choice was the empty airbag space beneath the horn, an area large enough to hold three large Ziploc bags, two of which contained a total of 40 smaller Ziploc bags that contained cocaine.

While the record does not set forth the size of the particular compartment appellant used, the photograph included in the record makes it appear sufficiently capacious to hold at least a small firearm. In a recent case, not involving suppression, decided by the D.C. Circuit, “the agents found a semi-automatic pistol loaded with fifteen rounds of ammunition hidden near the car’s steering wheel, as well as a bag containing $4,037 in cash.” United States v. Dozier, 162 F.3d 120, 121 (1998). Many other cases identify hiding places in the front of a vehicle other than the space beneath the front seat. Although most of these cases do not involve suppression issues, they illustrate the wide variety of locations within vehicles where weapons have been hidden. See e.g. United States v. Beard, 354 F.3d 691, 692 (7th Cir.2004) (during search of car, police found “a loaded derringer in the closed center console of the front seat, hidden under some papers”); United States v. Cherry, 8 Fed.Appx. 420, 421 (6th Cir.2001) (“Hidden under a plastic cover at approximately the point where the steering column emerged through the dash, officers uncovered a small semi-automatic pistol containing six rounds of .380 caliber ammunition.”); United States v. Taylor, 162 F.3d 12, 17 (1st Cir.1998) (with probable cause to search for narcotics, an officer “looked into the driver’s side area of the sunroof compartment and found a ski cap wrapped around a loaded .45 caliber automatic pistol with an extra ammunition clip”); United States v. Sample, 136 F.3d 562, 563 (8th Cir.1998) (handguns found behind detachable dashboard); United States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir.1989) (during inventory search, officer located a “.25 caliber handgun behind a potato chip bag in an open dashboard compartment on the driver’s side of the car; the open compartment was inches from the steering wheel, within an effortless reach of [the defendant]”); Delatorre v. State, 903 N.E.2d 506, 507 (Ind.Ct.App.2009) (gun in the compartment of the driver’s side door); People v. Sandoval, No. B198105, 2008 WL 638391, at *1 (Cal.Ct.App. Mar. 11, 2008) (unpublished), review denied May 21, 2008 (searching vehicle with the defendant’s consent, officers “discovered a compartment at the base of the steering column” which held, inter alia, drugs and “a loaded handgun”); Robinson v. State, 22 S.W.3d 631, 634 (Tex.App.2000) (after traffic stop, officer observed drugs in the car; later search of “the console of the car” which “had a compartment below the gearshift” revealed “two guns” and “crack cocaine”); State v. Nebbitt, 713 S.W.2d 49, 50 (Mo.Ct.App.1986) (after observing defendant appearing to hide something, officer pulled “a piece of felt with a cardboard backing hanging down from under the glove compartment” and “a loaded pistol fell to the floor.” Subsequent search, “which included removing a section of the dashboard, revealed two other loaded pistols”); Roy v. State, 552 S.W.2d 827, 829 (Tex.Crim.App.1977), partially overruled on non-search related grounds by Johnson v. State, 650 S.W.2d 414 (Tex.Crim.App.1983) (after ar*1221resting man who falsely claimed to be a “deputy constable,” officer “conducted an inventory of the pickup and discovered a loaded .38 calibre [sic ] revolver in the side compartment of the left door”). A police officer approaching a stopped automobile late at night, especially where, as here, the vehicle has deeply tinted windows, is in as much danger from a gun hidden in an air bag compartment or another compartment in or near the dash as from a weapon hidden beneath the front seat.

In addition, the majority opinion does not give adequate weight to the role that the illegally tinted windows played in this traffic stop. Illegally tinted windows obscure the occupants of a vehicle and their movements. Courts have taken notice of the fact that these windows conceal threats to officer safety and therefore can heighten an officer’s reasonable suspicion. For example, Judge Garland of the D.C. Circuit observed in a case before that court where “the windows of the black Cadillac were darkly tinted preventing the officers from having a clear view of the car’s occupants,” that “[t]his fact magnified the danger of approaching unknown individuals inside an automobile.” United States v. Brawn, 334 F.3d 1161, 1169 (D.C.Cir.2003). The court went on to note that “the tinting made it impossible to know whether one of the occupants was reaching for a weapon ... or otherwise acting to endanger the officers’ safety.” Id.

A recent Pennsylvania decision regarding facts remarkably similar to those before us also illustrates this point. In Commonwealth v. Murray, 936 A.2d 76 (Pa.Super.Ct.2007), the appellate court reviewed the denial of a motion to suppress a Glock .40 caliber handgun found in the armrest immediately to appellant’s right and seized after appellant’s vehicle was stopped at night in “a high narcotics area.” Id. at 79. “Due to the tinted windows, [the officer] could not ‘actually see what [appellant] was doing1 but was able to discern ‘a lot of movement in the vehicle.’ ” Id. (internal citation omitted). The court held that the officer had “articulated sufficient facts to lead him to properly conclude that [appellant] could have been armed and dangerous.” Id. at 80. “Specifically, the knowledge of the neighborhood being a well-known narcotics area, when coupled with the excessive movement inside the vehicle and hour of night, raised serious and obvious safety concerns that justified a search for weapons.” Id. (citations omitted). The foregoing language describes the case before us almost precisely — but for the additionally suspicious conduct element here of the unusual rocking of the van after Officer Norris pulled it over. The court should reach the same result in this case as did the Murray court on virtually identical facts.

As this court recognized in United States v. Mason, 450 A.2d 464, 466 (D.C.1982), “[t]he protection of the officer making the stop and of innocent bystanders, is of paramount importance. It has been called the rationale of Terry.” (citations omitted). The Supreme Court has recognized that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Michigan v. Long, supra, 463 U.S. at 1047, 103 S.Ct. 3469. While our opinions may deal in the abstract concerning danger to officers approaching a stopped vehicle, the realities on the street are harsh. From 2001 through 2010, 62 law enforcement officers were feloniously killed in this country during traffic stops. Thirty-three of these killings took the lives of officers as they were “approaching offenders,” 12 while the officers were still in the patrol unit, 8 while they were interviewing offenders at the offender’s vehicle, 3 outside the offender’s vehicle, and the balance during other aspects of the investigation at the scene of the stopped vehicle. Federal Bureau of Investigation, Uniform Crime *1222Report, Law Enforcement Officers Killed or Assaulted 2010, Table 20 (released Oct. 2011). In the year 2010 alone, 4,752 officers were assaulted in connection with “traffic pursuits/stops” including 208 assaulted by firearm, 35 by knife or other cutting instrument, and 1,592 by other dangerous weapon. Id. at Table 73. Although danger to police officers does not give them the authority to disregard the Constitution, it can be a factor in an experienced officer’s judgment as to whether there is a reasonable basis to search a vehicle.

The majority opinion recognizes that “it is beyond question that police officers face untold dangers when they conduct traffic stops.” It goes on to warn against “perfunctorily concludfing] that the van’s window tinting gave rise to reasonable suspicion without checking that impulse against the facts of this case.” Precisely so. It is on the basis of all the relevant facts, realistically evaluated and seen through the eyes of the experienced officer on the scene, that the search of the appellant’s vehicle, and in particular the area near his unusual and continuous hand movement, should be evaluated. It is unrealistic to discount, to any degree, either the danger to an investigating officer, or the officer’s ability to perceive that what is going on behind the tinted windows is unusual and warrants great caution, merely because there is no “conspicuous reach under the seat.”7

Upon considering the deference we should give to the officer’s appraisal of the significance of the unusual and continued movements of the appellant’s hands as the officer approached, the availability of hiding places for weapons in the dash area of a vehicle, the danger to the safety of the officer as he approached a vehicle with deeply and illegally tinted windows and the prescription that “[i]n reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling,” Peay, supra, 597 A.2d at 1320, the judgment on appeal should be affirmed.8

B.

As I would affirm, I must address appellant’s argument that even if reasonable *1223articulable suspicion existed, the search was impermissible under Gant because appellant was secured and unable to access the van at the time of the search. Under the circumstances present here, however, appellant would eventually have been allowed to return to the van if he was not arrested. At the time of the “frisk” of the van the police did not have grounds for arrest. Upon his return to the car, he could have then retrieved a weapon from the vehicle, a circumstance that posed a serious threat to Officer Norris. For this reason, Norris was permitted to order a search of the van’s passenger compartment.

Gant held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, supra, 556 U.S. at 351, 129 S.Ct. 1710. Gant, however, did not change the law applicable to protective searches under Terry and Long. Indeed, the court noted in Gant “[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.” Id. at 346, 129 S.Ct. 1710. The court specifically identified Long as an exception that “permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is dangerous and might access the vehicle to gain immediate control of weapons.” Id. at 346, 129 S.Ct. 1710 (quotation marks and citations omitted); see also id. at 352, 129 S.Ct. 1710 (Scalia, J., concurring) (“Where no arrest is made ... officers may search the car if they reasonably believe ‘the suspect is dangerous and ... may gain immediate control of weapons.’ ” (quoting Long, supra, 463 U.S. at 1049, 103 S.Ct. 3469)).

While appellant is correct that he was secured and “unable to access the van at the time of the search,” he would have eventually been allowed to return to the van, because the tint infraction was not an arrestable offense, and he could have then retrieved a weapon from the vehicle. Appellant nonetheless argues that focusing on the “detainee’s formal arrest status rather than his secured status, provides police an outright invitation to evade Gant’s limits on their search powers because they can exercise their discretion to not arrest an individual where probable cause exists, place him in custody so as to deny him immediate access to the vehicle and thereupon search his vehicle.” The point here is different. The police were not in a position to exercise discretion whether or not to arrest appellant. They had no basis on which to arrest him as of the time of the search: “[i]n the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.” Id. at 352, 129 S.Ct. 1710 (Scalia, J., concurring) (emphasis added).

This case remained a no-arrest case until the officer ran the vehicle’s tag numbers after the Terry search of the vehicle. For those reasons, “the officers did not act unreasonably in taking preventive measures to ensure that there were no ... weapons within [appellant’s] immediate grasp ...” Long, supra, 463 U.S. at 1051, 103 S.Ct. 3469; see also United States v. Vinton, 594 F.3d 14, 20 (D.C.Cir.2010) (declining to expand Gant to officer’s initial protective search and noting that Gant specifically limited its holding to the search-incident-to-arrest context; finding that officer’s safety concerns were not “abated by ordering [the defendant] out of the car and handcuffing him, because had [the defendant] ultimately not been arrested, he would have been ‘permitted to reen*1224ter his automobile, and he w[ould] then have [had] access to any weapons inside.’ ” (quoting Long, supra, 463 U.S. at 1052, 103 S.Ct. 3469)). This case, therefore, is not controlled by Gant.9

Accordingly, I would affirm the trial court’s decision to deny appellant’s motion to suppress and affirm the judgment on appeal.

. I do not suggest that my colleagues intend to undervalue this factor, but I point out that such undervaluation inheres in the majority opinion's analysis.

. The trial court did not indicate that there was any aspect of the officer’s testimony that it discredited.

. The trial court initially said "contraband,” not "weapon,” but later stated that the officer was "clearly searching [for] a weapon.”

. The majority opinion states that appellant’s admission that he and the female passenger switched seats and the officer’s quick grasp of what happened "presumably defused his suspicion.” The testimony of Officer Norris concerning his suspicion about appellant’s behavior is entirely inconsistent with that presumption.

. Appellant cites Tyler v. United States, 302 A.2d 748 (D.C.1973) and United States v. Page, 298 A.2d 233 (D.C.1972) to support his proposition that his furtive gestures alone did not ”give[l] rise to a finding of reasonable suspicion justifying a search of a vehicle compartment.” While furtive gestures alone will not normally justify a search, Officer Norris's search was based on a reasonable articulable suspicion that appellant might be armed and dangerous based on not only furtive gestures but the totality of the circumstances.

. James v. United States, supra, 829 A.2d 963; McGee v. United States, 270 A.2d 348 (D.C.1970); United States v. Green, 465 F.2d 620 (D.C.Cir.1972). On this point the opinion also cites In re D.E.W., 612 A.2d 194, 195 (D.C.1992), a case that does not involve the search of a car, but rather the search of a person who acted suspiciously while seated in a car, and thus is not relevant to this case.

. The majority opinion places considerable reliance on United States v. Spinner, 475 F.3d 356 (D.C.Cir.2007), stating that it "presented the question whether the police had a reasonable suspicion to believe a man in a vehicle was armed based primarily upon the combination of his nervousness and a movement he made in which his body dipped toward the center console of the vehicle as if he were trying to get or conceal something.” . The facts in Spinner are so dissimilar to those before us that the opinion provides no guidance. Two officers, rather than one as here, approached a parked' vehicle after seeing Spinner walk up to it and sit in the back seat. There was no indication that the police were looking through tinted windows, or that the events occurred at night. Spinner’s motions were clearly visible to the two officers and gave at most an equivocal indication that he might be dangerous and might gain immediate control of a weapon.

. The Supreme Court has stated that de novo review by appellate courts of cases involving reasonable suspicion and probable cause “tends to unify precedent and will come closer to providing law enforcement officers with a defined ‘set of rules' ” to enable them to determine in advance whether an invasion of privacy is justified. Ornelas, supra, 517 U.S. at 697, 116 S.Ct. 1657 (quoting New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)). The majority opinion’s narrow view of what an officer may reasonably do in circumstances like those before us can be expected to influence police training and conduct in connection with situations where police officers making a traffic stop perceive that they are in danger, and to do so in a way that will cause officers to forgo searches that they consider reasonable.

. Appellant also argues that "the search exceeded the scope permitted by Long," because the investigating officer "spent several minutes searching [his] van before [the officer] found the cocaine” and the officer "effectively removed compartments from the interior of the van, including the steering wheel, before he found the cocaine.” Appellant’s argument is without merit. Here, the trial court credited the officer’s testimony that appellant’s steering-wheel horn cover appeared "disposi-tioned” and was easily removed. Moreover, the trial court received into evidence photographs showing the interior of appellant’s van, including the open and closed sizable horn cover and the substantial air-bag compartment beneath it where the drugs were found. Using those photographs, the trial court found that the steering wheel was "immediately in front of the dash” (where appellant was observed moving his hands in a manner that was consistent with placing or retrieving a weapon) and “about as reachable [in proximity to appellant] as you can possibly get.” It is of no consequence that the second officer on the scene did not focus immediately on the steering wheel area after Officer Norris told him to search the passenger area for weapons.