Tuckson v. United States

THOMPSON, Associate Judge,

dissenting;

For the reasons explained in the majority opinion, I agree that the police in this case lacked probable cause to arrest appellant for possession of a prohibited weapon.1 Whether they had probable cause to arrest him for carrying a dangerous weapon is a much closer question2 in my judg*368ment (and I likely would not have written in dissent if that had been the only issue). I believe the officers did have probable cause to arrest appellant for impersonation of a police officer.3 In my view, the facts that (1) the vehicle he was driving was outfitted to look like and was equipped like a police vehicle, (2) the vehicle had windows tinted to an illegal degree, and (3) appellant parked the vehicle in front of a fire hydrant, were a sufficient basis for a reasonable belief (albeit not certitude) that appellant sought to pass himself off as a police officer with fraudulent design (i.e., with an expectation that he could drive with illegally tinted windows and park next to a fire hydrant without penalty).4

“Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). But even if, as my colleagues in the majority conclude, the evidence of fraudulent design was lacking, there are additional reasons why we should affirm the trial court’s denial of the motion to suppress: (1) that the search of appellant’s vehicle was lawful under the so-called “automobile exception” to the Fourth Amendment warrant requirement, and (2) that, on the record before us, we should not hesitate to rely on that rationale even though the government did not rely on it in this court until we requested supplemental briefing on the issue.

I.

I briefly recap the pertinent facts. The officers involved in appellant’s arrest were patrolling in “an area of high violence” where they had made several arrests for firearms offenses. They observed appellant’s vehicle drive into a cul-de-sac. His vehicle had dark tinted windows (permitted for and, according to Detective Kirk Delpo, “often times ... see[n] [on] police vehicles”), a “police-style” dash light, two police-style long antennas on the back, a disk-like tracking device found on police vehicles, and a “Thin Blue Line sticker” that Detective Delpo testified is “often used by police officers” and is “supposed to be sold exclusively to police officers to show other police officers that ... it’s a police officer driving in that vehicle.” Detective Delpo explained that “a lot of police departments, including our police department,” use Chevy Impalas (which are “sold as fleet cars”) as police vehicles. He testified that “[a]ll of these things” made the car “look[] like an undercover or unmarked police vehicle” or “some sort of *369police vehicle.” On closer inspection, the officers also saw that the car had a siren, a “police radio type box,” and “little strobe lights” “right in front of the [vehicle] headlights” like those used on police vehicles.

Appellant parked his vehicle in front of a fire hydrant, exited the vehicle, and then walked up to a house. Detective Delpo observed that appellant was wearing dress slacks, a button-down shirt, and gloves that were the same “style that police officers would wear.” The detective’s check of the WALES (Washington Area Law Enforcement System) database revealed, however, that the car belonged to a private citizen “who’s just 25 years of age.” This information made the detective “more suspicious of ... why does this vehicle have all this police equipment on it and a police dash light.”

As appellant walked back to his car, a different officer approached appellant and asked him whether he was a police officer, and appellant replied that he was not. An officer advised appellant that he was illegally parked and that the tint on his vehicle windows appeared to be illegal. One of the officers asked appellant whether he had any guns in the car. He replied that he did not. When asked whether police could search his car, appellant responded that he would “rather [they] didn’t,” but he gave the officer his car keys to allow him to conduct a tint inspection. When the officer opened the car door, he saw in plain view, in the driver’s side door pocket, a so-called ASP baton (hereinafter, “asp baton”) — according to Detective Delpo, “something a police officer employs or uses.”5 At that point, the officers arrested appellant for possession of a prohibited weapon (the asp baton) and for impersonating a police officer. Incident to the arrest, officers searched the vehicle and found on the front passenger seat, under a jacket, a loaded 9mm pistol, additional ammunition, and a set of police handcuffs.

In ruling on appellant’s motion to suppress the gun and ammunition, the trial court credited Detective Delpo’s account of the officers’ encounter with appellant. The court found that appellant’s car “look[ed] exactly like” an off-duty or undercover police vehicle with a resembling antenna, strobe light, device for activating a police siren, and a “disk” that could have been used as a police GPS device.

II.

As we have frequently said, our role in reviewing a trial court’s ruling on a motion to suppress is to “ensure that the trial court ha[d] a substantial basis for concluding that no constitutional violation occurred.” Howard v. United States, 929 A.2d 839, 844-45 (D.C.2007) (internal quotation marked omitted). We must “determine if the denial of the motion to suppress is supportable under any reasonable view of the evidence.” Stanley v. United States, 6 A.3d 270, 277 (D.C.2010) (internal quotation marks omitted). “It is well settled that an appellate court may affirm a decision for reasons other than those given by the trial court.” Alston v. United States, 518 A.2d 439, 440 n. 2 (D.C.1986); Purce v. United States, 482 A.2d 772, 775 n. 6 (D.C.1984).

“[T]he Fourth Amendment inquiry is objective [and] an officer’s subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” United States v. Vinton, 594 F.3d 14, 22 (D.C.Cir.2010) (internal quotation marks omitted).

III.

Although police generally are required by the Fourth Amendment to obtain a *370warrant before conducting a search, the automobile exception allows them to search a vehicle so long as there is “probable cause to believe [the] vehicle contains evidence of criminal activity.” Arizona v. Gant, 556 U.S. 332, 347, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).6 Important for the case at hand, the automobile exception “allows searches for evidence relevant to offenses other than the offense of arrest.” Id. at 347, 129 S.Ct. 1710. Further, where there is probable cause to believe that an automobile contains contraband, officers’ authority to proceed with a search on the basis of the exception is not limited by whether they already have a basis for arresting a recent occupant of the vehicle. See Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”); cf. Purce v. United States, 482 A.2d 772, 778 (D.C.1984) (recognizing that probable cause to believe a vehicle contains contraband may precede probable cause to arrest: “Viewing all of these circumstances in combination, as we must, we hold that the officer had probable cause to believe that the envelope [lying on the vehicle console] contained marijua-na_When he looked inside the envelope and found that it did in fact contain marijuana, he then (at the very latest) had probable cause to arrest appellant for violation of the laws which prohibit its possession.” (citation omitted)).

“[P]robable cause is a fluid concept— turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause to search a particular place exists where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found there.” United States v. Scott, 987 A.2d 1180, 1191 (D.C.2010) (internal quotation marks omitted). “[S]omething more than a reasonable suspicion is required[,]” id.; “[p]erhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a fair probability, or a substantial chance, of discovering evidence of criminal activity.” Id. (internal quotation marks omitted); see also Gates, 462 U.S. at 238, 103 S.Ct. 2317 *371(stating that the test of probable cause is “whether, given all the circumstances ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place”). “[P]robable cause ... ‘does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands.’ ” Enders v. District of Columbia, 4 A.3d 457, 471 (D.C.2010) (quoting Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)); see also Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (describing probable cause as a “flexible, commonsense standard” that “does not demand any showing that such a belief [that contraband will be found] be correct or more likely true than false”); Clark v. Astrue, 602 F.3d 140, 147 (2d Cir.2010) (“[Probable cause is a lower standard than preponderance of the evidence.”) (internal quotation marks omitted).

IV.

In my view, once officers observed that appellant had numerous items of police paraphernalia both on the outside and the inside of his car, including a typical police weapon (the asp baton) inside the passenger compartment, they had reason to believe that he also possessed and had in his vehicle a firearm and ammunition — i.e., other standard police items that are necessary to complete the outfit — that generally are contraband in the hands of a civilian. I agree with the trial court that it is “logical to conclude” “that somebody who goes out, even if it’s not criminal in any way, to buy a car, the antenna, the dashboard light, the strobe light, the ... siren control, and the asp ... would also purchase a weapon....”

In a supplemental brief, appellant argues that the government “did not present any expert police testimony suggesting that a person conducting himself as Mr. Tuckson did would likely possess illicit contraband.” Supplemental Reply Brief at 7. That is so, but I believe it is an “ ‘entirely reasonable’ ”7 inference, which may be drawn without expert testimony, that a person with an abundance of other police-related paraphernalia on and in his car, including an asp baton, would likely also have a gun (perhaps the most typical police weapon). Objectively, the circumstances in this case furnished the officers with “more than bare suspicion”8 that appellant’s vehicle contained another, typical police weapon.9 Even on the assumption that appellant lawfully possessed the asp baton, “innocent behavior frequently will provide the basis for a showing of probable cause[.]” Gates, 462 U.S. at 244 n. 13, 103 S.Ct. 2317. “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Id.; see also Cheolas v. City of Harper Woods, 467 Fed.Appx. 374, 378 *372(6th Cir.2012) (“Probable cause is a ‘reasonable grounds for belief, supported by less than prima facie proof [of criminal activity] but more than mere suspicion.’ ”) (quoting United States v. McClain, 444 F.3d 556, 562 (6th Cir.2005)) (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993) (en banc)). Thus, it is of no moment that “none of the visible items in appellant’s car (other than the tint on the windows) was illegal for a civilian to possess,” ante, 366, and that the officers had not seen any contraband” before they searched appellant’s vehicle.

But it is not appropriate to minimize the fact of the illegally tinted windows, as the majority opinion does. The officers’ observation that appellant was driving a vehicle with unlawfully tinted windows and parked his vehicle in front of a fire hydrant gave them reason to believe that appellant did not always restrain his conduct so as to avoid breaking the law, and thus a reasonable basis for believing that the illegality of carrying a firearm would not deter him from completing his police outfit by possessing contraband. Moreover, the fair probability of appellant’s having a gun and ammunition in his vehicle was bolstered by the fact, testified to by Detective Delpo, that the encounter with appellant was in a high-violence area where police had made many arrests for firearm possession. That there might have been what appellant calls “plausible noncriminal explanations” for his possession of the asp baton and all of the other police paraphernalia on and in his vehicle — appellant suggests “a desire to project an image consistent with [his] aesthetic tastes or simply for recreational purposes” — did nothing to diminish the existence of probable cause, because, again, “the existence of probable cause does not depend on the elimination of all innocent explanations for a situation.”10

The majority opinion denigrates my conclusion that the officers had probable cause to believe that appellant’s car contained an illegal firearm as a “generalization that any person whose car is lawfully equipped ... with police-type equipment, is likely to also carry gun [plural] or evidence of fraudulent intent.” Ante, 366. I make no such generalization. What I maintain is “beyond serious debate” 11 is that officers had probable cause to believe that this appellant — whose vehicle was outfitted like a police vehicle, had illegally tinted windows, and had a police baton in its door pocket, who parked the vehicle in front of a fire hydrant, and whom police encountered in a high-violence area12— also had an illegal firearm in his car, because a firearm (like the handcuffs the officers also found in appellant’s vehicle) is part of standard police garb.

The facts surrounding the search in this case are not in dispute. Regardless of what subjective motivations the officers cited or might have had for the search for appellant’s vehicle,13 and despite appellant’s denial that he had a gun in the car, the officers had probable cause to believe that appellant’s vehicle contained a firearm *373(and ammunition), and the search therefore was justified by the automobile exception.14

V.

We may affirm the trial court’s denial of the motion to suppress “on any valid ground supported by the record”15 so long as “there has been no procedural unfairness.” 16 Appellant argues that we should not affirm on the basis of the automobile exception since (he asserts) the government did not assert this rationale for the search either in the trial court or in its brief on appeal. That assertion is not quite correct. Although, in its written opposition to appellant’s motion to suppress, the government did not use the phrase “automobile exception,” the government did quote the portion of Gant that discusses the exception: “If there is probable cause to believe a vehicle contains evidence of criminal activity, [Ross ] authorizes a search of any area of the vehicle in which the evidence might be found.” Government’s Opposition at 9 (quoting Gant, 556 U.S. at 347, 129 S.Ct. 1710). [R. 15] The government also cited settled law that a “warrantless search of a motor vehicle parked in a public place is permissible, with or without exigent circumstances, provided the searching authorities have probable cause to believe the vehicle contains contraband.” Government Opposition at 10 (quoting United States v. Wider, 951 F.2d 1283, 1286 (D.C.Cir.1991)).

The government’s initial brief on appeal did not specifically mention the automobile exception, but it did argue that the officers “could reasonably check ... [appellant’s] vehicle for additional weapons, even if he lawfully possessed the asp,” and it cited the trial court’s reasoning that “it’s logical to assume that if one who has engaged in all of the conduct that [appellant] engaged in ... there might be other evidence ..., such as another weapon or handcuffs or police badges or other things like that that would be found in the car.” The government’s brief also summarized the prosecutor’s argument that “[o]nce the officers discovered the asp,” having already noted the “vehicle’s appearance” (i.e., its features making it resemble a police vehicle), “the officers had probable cause to search the vehicle for additional weapons.” Thus, “[d]espite [the government’s] failure to style [its] claim under ... the specific [automobile exception],” the reasoning it cited “aligns with ... jurisprudence concerning [that exception].” Euceda v. United States, 66 A.3d 994, 1006 (D.C.2013). In short, appellant’s assertion that there has been no “prior articulation of the argument by the government” overstates the ease.

*374Further, to the extent that anyone would premise an argument against our reliance on the automobile exception on concern about unfair surprise, review of the record would erase any such concern. When the prosecutor made the statement to which the government’s brief refers in the passage discussed above (“[0]nce [officers] find that asp, they’ve got probable cause to believe that the vehicle contains [other weapons].”), appellant’s trial counsel responded that the evidence that appellant had a police radio and asp baton provided “nothing to indicate that there’s more evidence in the car” and “no indication there are going to be more batons.” The court responded:

I don’t think one would necessarily conclude at that point that he is likely to have another asp in the car[,] but [it] might be a logical conclusion, given everything else that is known at that point, that there would be a gun or something else that police officers would keep.

This retort by the trial court clearly was a prompt to appellant to set forth and develop his arguments about why the discovery of the asp in the car did not establish a basis for a reasonable belief that appellant’s vehicle would also contain a gun. The court repeatedly pressed the point:

[W]e’re talking about a certain level of logic here that somebody who is driving a car that looks quite like a police vehicle, has antennas that are used in a police vehicle, has this other item on the back that at least according to Officer Delpo is [a] device[ ] ... used by police. Has a device under the dashboard of the car that operates a siren, has strobe lights, has an asp which police officers carry, and is at least dressed consistently with the garb of officers. Why isn’t it a logical conclusion from that that somebody doing all of those things would be far more inclined to be possessing a gun[?]
[T]hat would not lead you logically to conclude that somebody who would do everything short of [using his police officer-like appearance to take advantage of someone else] would be more likely to have a gun?
And you’re saying it would be illogical to conclude ... that he would be ... likely to carry a gun ... ? [Y]ou’re saying that it’s illogical for them to conclude that having somebody who’s done all these other things [“acquisition of the radio ... acquisition of the siren device ... acquisition of the strobe light ... acquisition of the car, the antennas”] is more likely to have ... possessed a gun ... ?
I also just think that as a matter of just logical relevance, that somebody who goes out, even if it’s not criminal in any way, to buy a car, the antenna, the dashboard light, the strobe light, ... the siren control, and the asp, ... it’s logical to conclude that somebody like that would also purchase a weapon and handcuffs.

Similarly, in explaining its decision to deny the motion to suppress, the trial court reasoned as follows:

I think it’s logical to assume that if one who has engaged in all of the conduct that Mr. Tuckson engaged in, by that I mean all of the acquisition of all these various items that duplicate police vehicles, and then finding an asp, I think it’s logical to assume that there might be other evidence of that illegal use, such as another weapon or handcuffs or other things like that that would be found in the car.
*375[I]t was very logical to assume that somebody — that [had] all of these devices that are consistent with misrepresentation of a police officer and then had an asp, a weapon, used by police to subdue people on the streets, would also have other weapons and other matters, such as badges and so forth....

These various remarks by the trial court repeatedly apprised appellant of the court’s reasoning that it was logical for the officers to believe that because his vehicle displayed and contained police paraphernalia, including an asp baton, it was likely also to contain “another weapon,” such as a firearm. While none of court’s remarks was made in the context of a discussion of the automobile exception, the remarks squarely invited appellant to address the very issue presented here: whether the facts known to the officers gave them reason to believe that a gun would be found in appellant’s car.

In addition, this court gave the parties an opportunity to file supplemental briefs on the applicability of the automobile exception, and appellant submitted a supplemental brief and a supplemental reply brief. Thus, appellant was “afforded the opportunity to make an appropriate record in the trial court,” had reason to anticipate the argument as raised in the course of this appeal, and has had “a reasonable opportunity to be heard with respect to the reasoning on which the proposed affir-mance is to be based.” Randolph, 882 A.2d at 218. Therefore, there would be no procedural unfairness in deciding the appeal on the basis of the automobile exception.

VI.

Finally, I explain why I do not agree with appellant that affirming the trial court’s denial of the motion to suppress on the basis of the automobile exception would be inconsistent with judicial neutrality or with separation of powers, or that this court must hold “all litigants, including the government, ... to the arguments formulated by their counsel.”

I acknowledge that a “basic principle of [our] appellate jurisprudence” is that points not urged on appeal generally are deemed to be waived. Rose v. United States, 629 A.2d 526, 535 (D.C.1993) (italics added). That rule is not absolute, however. See id. at 537 (“This is not to say an appellate court is absolutely precluded from reaching an issue sua sponte; it is not.”) and at 538 (“[T]here may be occasions when an appellate court should ... rais[e] sua sponte an argument on appeal that the government has failed to raise.”). Here, because the trial court effectively raised and relied on the automobile exception (albeit not by name), this case presents an “occasion[ ] when [we as] an appellate court should ... rais[e] sua sponte an argument on appeal that the government has failed [squarely] to raise.” Id. at 538.

To do so is not inconsistent with neutrality or with separation of powers. “[T]he public is entitled to have valid judgments of conviction sustained,” and thus part of this court’s role is “to act as an institutional failsafe to make sure that the government has not compromised its prosecutorial responsibility.” Id. at 534, 537; see also Stewart v. United States, 37 A.3d 870, 878 (D.C.2012) (declining to reverse the motions judge’s decision, “which we believe to be fundamentally correct, on the basis of a government concession which, in our view, rests on a mistaken analysis of the issue before us”). Notably, we take on a similar role when defense counsel asserts an inability to find a non-frivolous issue to raise on appeal. In such cases, we “review counsel’s memorandum but make our own, independent examination of the record before affirming (or reversing) the convic*376tion.” Rose, 629 A.2d at 533-34 (citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)).

As this court emphasized in Randolph v. United States, 882 A.2d 210 (D.C.2005), “there is no double standard, nor can one be tolerated” with respect to whether we will resolve an appeal on the basis of an issue we have raised sua sponte. Id. at 226. Our case law amply demonstrates that we have resolved issues in criminal appeals on bases raised sua sponte by the court not only when the result favors .the government, but also when the result favors the appellant. In Ferrell v. United States, 990 A.2d 1015 (D.C.2010), for example, where the appellant’s initial brief focused only on the sufficiency of the evidence, we directed the parties to submit supplemental briefs addressing the impact of Super. Ct.Crim. R. 48(a)(1) on the resolution of the appeal. Id. at 1018. In resolving the appeal, we saw no need to discuss the sufficiency-of-the-evidence issue raised by appellant; we held instead that the trial court’s “failure to correct the prosecutor’s misapprehension that the government required leave of court to dismiss the case[,] as the prosecutor told the court he wanted to do before the court declared a recess in the trial ... was plain error” in light of Rule 48(a)(1), and we therefore reversed the conviction. Id. at 1016-17, 1022-23. In Walker v. United States, 982 A.2d 723 (D.C.2009), in which only appellant Boyd argued that only two (instead of all four of his) kidnapping convictions could stand, we remanded for the trial court to vacate two of Boyd’s convictions and did “the same [as] to appellant Walker (even though only Boyd raised this issue[ ]).” Id. at 742. In Martin v. United States, 952 A.2d 181 (D.C.2008), we reversed the defendant’s conviction upon concluding that the search in dispute followed an unlawful warrantless entry even though we “agreefd] with the government that ... appellate counsel failed to argue that the entry itself constituted an unlawful search either in his principal brief or at oral argument” and “even conceded that he was not making an unlawful entry claim at oral argument.” Id. at 189. We reasoned that with both parties having had an opportunity to brief the issue in supplemental briefs, it was “appropriate for us to decide the issue.” Id. (citing Outlaw v. United States, 632 A.2d 408, 410, 410 n. 7 (D.C.1993) (reversing a conviction based on an argument first raised by this court at oral argument, but after this court invited supplemental briefing)).17 And, “no matter whose ox is gored, this court has frequently requested post-argument briefing of issues not adequately raised by counsel, to the end that, after both parties have been fully heard, the court is in the best position to render a sound decision.” Randolph, 882 A.2d at 226.18

The bottom line is that, to exercise our de novo standard of review, when we review denials of motions to suppress brought on the ground that the search or seizure was unreasonable, we must con*377duct an independent review of whether a Fourth Amendment violation occurred. While the argument of counsel are “most certainly a valuable aid to the court in the decision-making process,” this court’s task is to “consider!] the briefs and the oral argument, and [to] test[ ] them against the record and the law.” Watson v. United States, 536 A.2d 1056, 1068 (D.C.1987) (en banc). “[I]n the final analysis the court must satisfy itself ... on the decision to reach, with the reasons supporting it.” Id. I agree with courts that have recognized that “[i]t is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be ‘diluted by counsel’s oversights....’”19

Finally, affirming the trial court’s denial of the motion to suppress by relying on the automobile exception would be consistent with the principle that we “ ‘do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them[.]’ ” Randolph, 882 A.2d at 223 (quoting Rose, 629 A.2d at 536-37). That is because we would remain focused on the question the parties have put before us: whether the trial court had a substantial basis for concluding that no constitutional violation occurred and for denying the motion to suppress.

To require more for probable cause than the undisputed facts of this case provide “would be to ... impose a drastically more rigorous definition of probable cause than the security of our citizens!] demands.” Gates, 462 U.S. at 244 n. 13, 103 S.Ct. 2317. For all the reasons discussed above, I would affirm the denial of the motion to suppress and the judgment of conviction.

. That is because they had no basis for believing that he intended to use the police baton they found in the door pocket of his vehicle "unlawfully against another.” D.C.Code § 22-4514(b) (2012 Repl.).

. “[A] required element of CDW,” see D.C.Code § 22-4504(a) (2012 Repl.), is that the defendant have "carried the [weapon] for the purpose of using it as a dangerous weapon[.]” In re M.L., 24 A.3d 63, 67 (D.C.2011); see also United States v. Broadie, 452 F.3d 875, 882 (D.C.Cir.2006) ("[W]hat 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.”) (internal quotation marks omitted); but see id. at 883 ("[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-de*368fense. 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.").

. See D.C.Code § 22-1406 (2012 Repl.) (providing in pertinent part that "[i]t shall be a misdemeanor ... for any person, not a member of the police force, to falsely represent himself as being such member, with a fraudulent design”); Gary v. United States, 955 A.2d 152, 155 (D.C.2008) ("[T]o prove the defendant’s fraudulent design, there must be evidence that the defendant impersonated a police officer to deceive another in order to gain some advantage thereby.”).

. The possibility that appellant’s parking of his vehicle in front of the hydrant may have been nothing "more sinister than ignorance of or indifference to the District’s parking laws,” ante 365, did not negate probable cause, because the parking infraction might also have been a deliberate act that appellant thought would not cause police to issue a citation, given that his vehicle looked like a police vehicle. "The test [for probable cause] is not whether the conduct under question is consistent with innocent behavior; law enforcement officers do not have to rule out the possibility of innocent behavior.” Sennett v. United States, 667 F.3d 531, 536 (4th Cir.2012) (internal quotation marks omitted).

. The asp baton was stored in a belt holster.

. See also California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) ("[T]he pervasive schemes of regulation [of motor vehicles], which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.”); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (‘‘[Ajutomobiles and other conveyances may be searched without a warrant ..., provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.”); United States v. Scott, 987 A.2d 1180, 1191 (D.C.2010) (" ‘If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.’ " (quoting Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996))); United States v. Polanco, 634 F.3d 39, 42 (1st Cir.2011) (explaining that Gant "did not scrap” the automobile exception, as concluded by "every circuit that has considered the issue to date"); Johnson v. United States, 7 A.3d 1030, 1037 n. 11 (D.C.2010) (noting that the automobile exception rule, "recalled in Gant, remains unchanged”) (internal quotation marks omitted).

. Jefferson v. United States, 906 A.2d 885, 889 (D.C.2006) (quoting Maryland v. Pringle, 540 U.S. 366, 372, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)).

. Vinton, 594 F.3d at 21 (internal quotation marks omitted).

. Cf. United States v. Christian, 187 F.3d 663, 669 (D.C.Circuit 1999) ("[T]he presence of one weapon may justifiably arouse concern that there may be more in the vicinity[.]”); Purce, 482 A.2d at 778 (holding that although this court has held that the " 'mere existence’ ” of such a manila envelope cannot create probable cause to believe that it contains illegal drugs " ‘merely because it is frequently used for that purpose,’ " where police found a "package of cigarette papers in close proximity to the envelope,” the "combination of the envelope and the cigarette papers, lying on the console only inches apart, made it reasonable for the officer to believe that the envelope contained marijuana” and established probable cause).

. United States v. Jackson, 415 F.3d 88, 94 (D.C.Cir.2005).

. Rose v. United States, 629 A.2d 526, 537 (D.C.1993).

. This was not, as posited by one of the questions at oral argument, Halloween in Georgetown.

. See Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (holding that an officer’s subjective motivations for a search do not invalidate an otherwise objectively justified search); see also United States v. Lyons, 687 F.3d 754, 770 (6th Cir.2012) ("The automobile exception applies even in nonexigent circumstances and even when the officer’s decision to stop the vehicle was pretextual.”).

.At least one court has similarly held that where officers find police-related equipment in a private vehicle, they have probable cause to search for other police-related paraphernalia (that would be contraband when possessed by a civilian). See United States v. Reis, 906 F.2d 284, 286-87, 291 (7th Cir.1990) (applying the automobile exception and reasoning that “probable cause to search the car existed, based on the detective’s observation of the fireball ["a rotating red light of the sort used by police officers”] and other police-related paraphernalia in the car,” including "a billy club with a side handle sticking out from between the seats and, in a holder on the door, a black 'mag' flashlight of a type typically used by police officers”).

The Reis court also found that police officers had probable cause to arrest Reis for impersonating a police officer. However, nothing in the Seventh Circuit's opinion suggests that an automobile-exception search would not have been justified absent probable cause to arrest Reis for that offense.

. Barnhardt v. United States, 954 A.2d 973, 977 n. 3 (D.C.2008).

. Randolph v. United States, 882 A.2d 210, 218 (D.C.2005).

. See also, e.g., Watkins v. United States, 846 A.2d 293, 296 (D.C.2004) (allowing post-argument briefing to permit defense counsel to address an issue the opening brief had addressed only in a conclusory footnote, and rejecting the government’s argument that the claim had been waived).

. In Randolph, the government was the beneficiary of our willingness to consider an issue not argued on appeal: we reached the issue of whether the trial court error was harmless notwithstanding the government’s failure to claim harmlessness. See Randolph, 882 A.2d at 223 (stating that where "the government has failed to claim in timely fashion that erroneous admission of hearsay evidence was harmless in the traditional sense, we should apply the harmless error doctrine only when harmlessness is obvious”).

. State v. Williams, 525 N.W.2d 538, 544 (Minn.1994) (quoting Albert Tate, Jr., Sua Sponte Consideration on Appeal, 9 Trial Judges J. 68 (1968), in Appellate Judicial Opinions 128 (Robert A. Leflar ed., 1974)); see also United States Nat’l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) ("[W]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law”) (quoting Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)); United States v. Harrison, 204 F.3d 236, 240 (D.C.Cir.2000) (reaching an issue because "it is squarely presented by this case and was relied upon by the trial court,” and explaining that "we do not deem it unfair to the appellant to rely on this unargued theory. The arguments made by the government, while not squarely addressing the [theory], fairly noticed the application of the theory, and the authorities cited by the two parties clearly evidence an awareness of it.”); United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.1997) ("We join several other circuit courts of appeals in holding that appellate courts have the discretion on direct appeal to overlook the government’s failure to argue that the admission of the challenged evidence, if error, was harmless, and that appellate courts may therefore consider the issue of harmlessness sua sponte.”) (collecting cases); United States v. Pryce, 938 F.2d 1343, 1348 (D.C.Cir.1991) ("Only if one adopts an absolutist approach to the adversary system can one contend that courts must never address unargued issues, no matter how obvious their proper resolution may be. Certainly the Supreme Court rejects such an approach.”); Estate of Girard v. Laird, 159 Vt. 508, 621 A.2d 1265, 1268 (1993) (citing the Tate article in explaining why the court may "reach[] results for reasons different than those argued by the parties”); State v. Weber, 163 Wis.2d 116, 471 N.W.2d 187, 199 n. 7, 200 (1991) (citing the Tate article in justifying its decision upholding the reasonableness of a search under the Fourth Amendment on grounds that, according to the dissenting justice, the State "was aware of ... but did not argue ... in this court”).