Powell v. United States

PER CURIAM:

The judgment of the trial court is reversed for the reasons stated in the lead opinion of *1083Judge Sullivan and the concurring opinion of Judge Farrell. Judge King dissents from the opinion of the court for the reasons set forth in his dissenting opinion. Accordingly, this case is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

SULLIVAN, Associate Judge:

I write separately to express my own reasons for concluding that the trial court erred by denying appellant’s motion to suppress evidence.1

I.

Introduction

Simply, this case is about a District of Columbia citizen who, while operating an automobile, had the misfortune of being stopped by three police officers at three o’clock in the morning. The citizen did nothing more than to question the police officers about the reason for the stop. After turning over his driver’s license and motor vehicle registration, the citizen was asked to step from his car, which, as appellant concedes, was legitimate. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Thereafter, he was frisked by Officer Hernandez, which, in my view, was not warranted under the circumstances because Hernandez lacked sufficient grounds to form a reasonable belief that appellant was armed and dangerous. Although a pistol was recovered from the citizen, this court has previously held that the end result can never justify the constitutionality of the circumstances leading to a seizure of evidence. Brown v. United States, 590 A.2d 1008, 1013 (D.C.1991) (citation omitted).

Twenty-two years ago, Circuit Judge J. Skelly Wright wrote in a dissenting opinion:

This is a disarmingly simple ease, but the court’s disposition of it, in my judgment jeopardizes the privacy and the constitutional rights of every citizen who drives a car in the nation’s capital.

United States v. Green, 151 U.S.App.D.C. 35, 40, 465 F.2d 620, 625 (1972) (Wright, J., dissenting). Judge Wright’s statement is as timely today as it was in Green and it accurately reflects my concern with the trial court’s disposition of the suppression motion in this “disarmingly simple case.” On the record here, I cannot conclude that no constitutional violation occurred when appellant was frisked. Accordingly, the trial court’s judgment is reversed.

II.

The Motion Hearing

Officer Hernandez, an eleven-month veteran of the Metropolitan Police Department, at the time of appellant’s arrest, was the only officer who testified at the motion hearing. Essentially, Officer Hernandez testified that he and two other officers, while on routine patrol at three o’clock in the morning observed appellant make an abrupt left-hand turn into an alley. The officers followed appellant, and when appellant failed to observe a stop sign, the officers signaled for him to pull over. Officer Hernandez testified that prior to appellant stopping his vehicle, he observed appellant bend or duck towards the passenger seat. After appellant stopped his vehicle, Officer Papricka requested appellant’s driver’s license and registration. After a brief hesitation, appellant furnished the officers with the requested documents. Appellant was then ordered out of the ear, and upon exiting the car, Officer Hernandez took appellant to the rear of the car where the officer conducted a frisk of the appellant and recovered a pistol.

Appellant’s testimony was that he usually proceeded through the alley because the alley was a “well-known short-cut” to avoid traffic lights. Appellant was not discredited on this point. Further, appellant testified that he did not know the officers were behind him either in the alley, or when he exited out of the alley onto the street. Upon noticing the emergency lights activated on the police patrol car, appellant testified that he hesitated before stopping because he wanted to make sure that it was him they were pulling over. The appellant testified, and this testi*1084mony was credited by the trial court, that once the officers approached his vehicle, pursuant to Officer Papricka’s request, appellant reached for his motor vehicle registration from the glove compartment of his vehicle. Appellant testified that after he provided Officer Papricka with the requested documents, he was instructed to step from his vehicle, at which time Officer Hernandez took appellant to the rear of his ear and conducted the frisk.

III.

The Standard of Review

Our scope of review for an order denying a motion to suppress evidence is set forth in D.C.Code § 17-305(a) (1989).2 “We are bound by the trial court’s factual findings unless clearly erroneous or not supported by the evidence.” Holston v. United States, 633 A.2d 378, 386 n. 10 (D.C.1993) (citations omitted). Moreover, in reviewing the trial court’s denial or grant of a motion to suppress, this court’s review is de novo. Lewis v. United States, 632 A.2d 383, 385 (D.C.1993) (citations omitted). “Essentially, our role is to ensure that the trial court had a substantial basis for concluding that no constitutional violation occurred.” See Brown, supra, 590 A.2d at 1020. In this case, the trial court’s findings are clearly erroneous and not supported by the evidence.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer is authorized to conduct a “reasonable search for weapons for the protection of the officer where he has reason to believe that he is dealing with an armed and dangerous individual ... the officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 29, 88 S.Ct. at 1883. (citations omitted) (emphasis added). The officer must be “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer’s belief that he is in danger.” Id. at 21, 88 S.Ct. at 1880.

IV.

Discussion and Analysis

The trial court found that the unusual route of the motorist, the passage of time before appellant stopped his vehicle, appellant’s reaching movements toward the passenger side of the vehicle, the “hesitancy and nervousness” on his part, and the lateness of the hour, contributed to Hernandez’s3 belief that the appellant was armed and dangerous. I will address the shortcomings of those factors.

A. The Unusual Route

The record does not support the trial court’s finding that the “unusual route” 4 appellant had taken contributed to Hernandez’s belief that appellant was armed and dangerous. Appellant offered uncontroverted testimony that he turned into the alley “to avoid the lights at 3rd and Missouri.” Turning into the alley, according to appellant, was a “common practice,” and a “well-known shortcut.” Officer Hernandez, an eleven-month veteran of the Metropolitan Police Department at the time of appellant’s arrest, and the only one of three police officers involved in this incident to testify at the motion hearing, did not offer any testimony which char-*1085aeterizes appellant’s turn into the alley as unusual.

In ruling on appellant’s suppression motion, the trial court had an obligation to weigh the testimony of both witnesses concerning the route through the alley, and make an appropriate finding consistent with the evidence. Since the only evidence in the record concerning whether the route was usual vel non, comes from appellant, who was not discredited on this point, and his testimony was that the route was his usual route, the trial court’s finding that the route was “unusual” is clearly erroneous as it has not one shred of support in the record. Although we are required to draw all facts and inferences in favor of sustaining the trial court’s ruling, see Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc), our deference is not carte blanche and certainly not warranted where the record is devoid of any evidentiary basis for such a finding.

B. The Passage of Time Before Appellant Stopped His Vehicle

The government and my dissenting colleague attempt to create a dramatic situation of a high-speed chase based upon the trial court’s statement that “[s]ome time passed before the [Appellant] stopped_” Quite simply, while such a scenario makes great drama, and in other circumstances, may assist in establishing reasonable suspicion,5 no chase or flight occurred in this case, as recognized by the trial court in its finding that “there wasn’t actually any kind of flight, or chase, involved....” In making this finding, the trial court credited appellant’s testimony that “[h]e was really making sure that it was [him] that they [police] were pulling over.” Moreover, Officer Hernandez testified that “it didn’t seem that he was trying to get away ...,” which was consistent with Hernandez’s testimony that appellant was not ticketed for failure to respond to the emergency signals. Further, Hernandez testified that he had completed the PD-163 which stated that appellant took only approximately three quarters of a block to come to a stop. These are hardly the ingredients that comprise a flight or a chase scene — by any stretch of the imagination. Again, the trial court’s finding that “the passage of time” somehow contributed to a reasonable belief that appellant was armed, warranting appellant’s frisk, is not supported by the record.

C.Appellant’s Reaching Movements

The trial court ruled that “[t]here were reaching movements that everyone agrees to. And, certainly, the act of reaching back into one’s pocket may very well look like — may involve some leaning, or whatever, that is not totally inconsistent with a reaching toward the passenger side of the car.” First, there were only two witnesses at the suppression hearing, appellant and Officer Hernandez. Neither of these people testified about appellant reaching back into any pocket or towards the passenger side of the car. Second, although Officer Hernandez testified that he observed appellant bend or duck down towards his passenger seat, this testimony was likewise not addressed by the trial court.

The only testimony regarding any reaching by appellant was provided by appellant when he testified that, pursuant to Officer Papric-ka’s request, he reached into his glove compartment for his license and registration and *1086handed both documents to Officer Papricka. On this point, the trial court stated in its Supplemental Findings of Fact, “[t]he Court finds that Officer Hernandez [the only officer to testify at the suppression hearing] simply did not remember the details of whether [appellant] had searched his glove compartment or not, or had handed over any papers or not,” to Officer Papricka. Moreover, the trial court expressly credited appellant’s testimony that he did produce and give his driver’s license and registration to Officer Papricka.

Although the present case is not a “furtive movement” case, the government and Judge King rely on In re D.E.W., 612 A.2d 194, 198 (D.C.1992), a “furtive movement” case, as authority. The decision in D.E.W., however, reveals that the holding of that case requires a contrary result in this case. In D.E.W., two juveniles were stopped by a police officer for failing to observe several stop signs. Id. at 195. As the officers approached the car, Officer Cullen observed D.E.W. trying to “[s]hove something down the front part of his pants under his coat.” Id. D.E.W. stopped moving and “held his hands over the area where he was pushing.” Id. Observing D.E.W.’s actions, the officer believed D.E.W. was concealing a gun. Id. Hence, the officer drew his gun and ordered D.E.W. out of the ear. Id. The officer frisked D.E.W. and recovered a pistol from his pants. Id.

This court, in affirming the trial court’s judgment, stressed that the movement of D.E.W. “was more than a furtive gesture,” and “appeared to be an unambiguous effort to conceal a weapon.” Id. (emphasis added). Consequently, we held that the officer had a reasonable suspicion that D.E.W. was armed and dangerous, and a frisk of D.E.W. for the weapons was constitutional. See also United States v. Mitchell, 293 U.S.App.D.C. 24, 951 F.2d 1291 (1991) (officer’s observation of passenger through the window moving both his hands inside his coat as he leaned forward supported reasonable suspicion for a frisk).

In contrast to D.E.W. and Mitchell, this court in United States v. Page, 298 A.2d 233 (D.C.1972), affirmed the trial court’s ruling that the passenger’s furtive movement did not provide a reasonable suspicion to justify a frisk. In Page, two officers, sitting on their scooters at 5:00 p.m., observed a ear going east at a high rate of speed. Id. at 234. The officers followed the car and overtook it as the car stopped for a traffic light. Id. At that time, Page, seated in the right rear seat, “looked around at the officers and then moved his right arm and shoulder as if to hide something, or put something away, get something.”6 Id. Upon being questioned by the officer about his movement, Page answered that he was hiding a beer can. Id. Fearing for his and his partner’s safety, the officer ordered Page from the car. Id. Once outside the car, the officer did a quick pat-down and recovered a pistol and some white powder wrapped in tin foil from Page’s person. Id.

This court concluded that no reasonable suspicion existed to search the passenger after this routine traffic stop. We stated that “[f]urtive movements standing alone hardly warrant a search.... ” Id. at 237 (citations omitted). Finally, the court stated that “[a] vague suspicion based largely on ambiguous conduct ... where the only reason for the stop and investigation is a simple traffic offense without any indication of criminal activity either on the part of the driver or passengers ... [i]n our view do[es] not establish a reasonable basis for a frisk.” Id. at 237.

The cases of D.E.W., Mitchell, and Page show that the ambiguous character of the movement plays a crucial role in the determination of whether reasonable suspicion exists. In the present case, however, appellant’s unambiguous reaching movement into his glove compartment, pursuant to a directive from a police officer, to retrieve his license and registration is insufficient, even in combination with the other factors, to justify his frisk.

*1087D. Hesitancy and Nervousness

Next, the trial court found that appellant’s hesitancy and nervousness supported the officers’ concern for their safety. The trial court included within its calculation of the officers’ reasonable suspicion, appellant’s “hesitancy and nervousness” which was displayed only after the decision to frisk him had been made. A fundamental requirement under the Fourth Amendment is that the facts upon which a frisk is based must be in the officer’s possession before the frisk. See Brown, supra, 590 A.2d at 1013 (“A search is not made legal by what it turns up; it is good or bad when it starts and does not change character from its success ...”) (quoting United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948)).

In this regard, appellant was ordered to get out of the car by Officer Papricka, who had approached appellant’s vehicle from the driver’s side. At that point, as found by the trial court, appellant had already given his driver’s license and registration to Papricka. Once out of the car, Officer Hernandez ordered appellant to place his hands on the car. At this crucial point when Hernandez ordered appellant to assume the search position, Hernandez had already made the decision to frisk appellant. Hence, appellant’s “admitted hesitancy and nervousness” which, according to Hernandez’s unambiguous testimony, occurred after the frisk decision had been made, can not be — and should not have been — included in the trial court’s determination of reasonable suspicion.7 The inclusion of this after-the-fact information was clearly erroneous.

After removing from the deliberative process appellant’s hesitancy and nervousness which was observed after the decision to frisk was made, all that remains is appellant’s initial hesitancy in providing the officers with the requested documents. In this regard, the trial court acknowledged appropriately in its decision that “this hesitancy and nervousness may not be unusual when people are stopped.” See, e.g., Rogers v. State, 206 Ga.App. 654, 426 S.E.2d 209, 213 (1992) (driver’s nervousness and repetition when answering police officer’s questions did not provide reasonable suspicion that defendant was engaged in criminal activity and did not justify search of his person); People v. Kramer, 208 Ill.App.3d 818, 152 Ill.Dec. 879, 881, 566 N.E.2d 756, 758 (3 Dist.1991) (pat-down search of occupants of vehicle stopped for parking in no-parking zone, after officer cheeked identifications which were found satisfactory, was not justified, where officers observed no suspicious behavior on part of occupants, other than nervousness, that might indicate they were armed and dangerous). Thus, the best possible scenario is that appellant hesitated in giving Officer Papricka the requested documents, but only after asking the officer “why he was getting pulled over.” Under these circumstances, I fail to see how a request by a citizen of the District of Columbia to a uniformed police officer, and his two fellow officers, inquiring about the reason for being stopped, can be termed uncooperative and provide a basis for frisking that citizen, especially when the driver’s license and registration had already been produced by appellant. To me, such a request of the officer seems well within the bounds of reason.

E. The Lateness of the Hour

Appellant was stopped by the police at three o’clock in the morning. The lateness of the hour, however, should not, under the circumstances of this ease, suggest criminal conduct or form the basis for a belief in suspicious behavior. The fact that police officers encountered an individual in the early morning hours does not provide a basis for a seizure. See, e.g., Adams v. Williams, 407 U.S. 143, 153, 92 S.Ct. 1921, 1926, 32 L.Ed.2d 612 (1972) (Marshall, J., dissenting); Jones v. United States, 391 A.2d 1188, 1191 (D.C.1978); Crowder v. United States, 379 A.2d 1183 (D.C.1977); Stephenson v. United States, 296 A.2d 606 (D.C.1972), cert. denied, *1088411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973). As Judge Wright recognized in his dissenting opinion in Green, “it seems clear otherwise innocent conduct cannot be transformed into culpable behavior simply by virtue of the lateness of the hour. It is no crime for a citizen to be out after dark.” Green, supra, 151 U.S.App.D.C. at 41 n. 3, 465 F.2d at 626 n. 3.

In sum, the record in this case simply fails to amply support the trial court’s decision that the officers had a reasonable suspicion that appellant was armed and dangerous, thus warranting a frisk of his person. The Supreme Court’s decision in Mimms, supra, permits police officers to order a motorist out of a car pursuant to a lawful stop for a traffic violation. After being detained for a traffic violation, however, an individual may be frisked only if there arises either an “articulable suspicion of criminal activity,” Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1879; see also United States v. Bellamy, 619 A.2d 515 (D.C.1993), or, a sufficient basis for a reasonable belief that the individual is “armed and dangerous.” In re D.E.W., supra, 612 A.2d at 194. Mimms, in no way, authorizes an “automatic frisk” with every traffic violation.8 Hence, in consideration of the foregoing and the following, Officer Hernandez’s frisk of appellant was unconstitutional.

The officers’ fear for their safety is belied by the record testimony and by their own actions. Officer Hernandez testified that no reports of crime had been reported in the area. Further, he stated that he and the other officers were on a routine patrol. Moreover, no testimony was offered that the area of the stop was a high crime area; the officers had no prior knowledge of appellant, nor did appellant match any descriptions of persons suspected of any crimes; and, as expressly found by the trial court, appellant did not attempt to flee. Upon request, appellant furnished Officer Papricka with his license and registration.

Finally, if the officers feared for their safety, they certainly did not act in a manner suggesting apprehension of harm. Officers Hernandez and Papricka exited their car after stopping appellant’s vehicle with their guns holstered; without their hands on their holsters; without calling for backup; without ordering appellant out of his car via the public address system; and, without even checking WALES9 to determine if the car had been reported stolen or whether there were outstanding tickets or warrants for the vehicle or a look-out for this vehicle. Once they reached appellant’s car, the officers conversed with him through an open window; did not instruct him to place his hands where they could see them; and allowed him to reach into the glove compartment of his car to retrieve his license and registration.

Rather than suggesting officers in fear of their safety, these actions by the officers are consistent with actions of reasonable police officers who have just stopped a routine traffic violator, not someone whom they had reason to believe was armed and dangerous.10 Conversely, the Green court was per*1089suaded that a frisk was constitutional because “[t]he testimony of the officers and the precautionary action taken by them [as credited by the trial court ] clearly indicate[d] their apprehension of harm.”11 Green, supra, 151 U.S.App.D.C. at 38, 465 F.2d at 623. Also, in D.E.W., the officer, after observing D.E.W.’s furtive movements, drew his gun and ordered D.E.W. from the car. In contrast, in Page, supra, where this court found the frisk unconstitutional and the movement by the motorist was even less innocuous than the reaching movements in the present case, the police officers did not take any precautions before approaching the car.

Further, Officer Hernandez, at the time of the stop, was a rookie who had been on the police force for less than a year. Significantly, the more seasoned officer, Pa-pricka, who had requested and received appellant’s driver’s license and registration from him, did not instruct appellant to place his hands on the car when he asked him to step out of the car; rather, Hernandez made the request. We view the events surrounding the stop and frisk “through the eyes of a reasonable and cautious police officer on the scene, guided by his experience' and training.” Peay, supra, 597 A.2d at 1322 (citations omitted). Thus, in examining the totality of the circumstances, I hold that the trial court did not give due weight to Hernandez’s lack of experience. See United States v. Briggman, 931 F.2d 705, 709 (11th Cir.), cert. denied, 502 U.S. 938, 112 S.Ct. 370, 116 L.Ed.2d 322 (1991). In this regard, this court noted that the officer in Johnson v. United States, 350 A.2d 738, 739 (D.C.1976), had four-and-a-half years of experience and that his fear that the defendant may have been armed was reasonable given that he had “made arrests for finding weapons in bags before.” Id. at 739; see also United States v. Bull, 565 F.2d 869 (4th Cir.1977) (court noted that officer had long been engaged in investigating night-time burglaries and thus, stop and frisk was constitutional).

y.

Conclusion

In my view, a routine traffic violation, coupled with a slight hesitance on the part of the motorist does not establish reasonable suspicion that a person is armed and dangerous. Drawing all reasonable inferences in favor of sustaining the trial court’s ruling does not, and in fact, can not, require this court to ignore the teachings of Terry, which require that a police officer point to “specific and articulable” facts to establish a reasonable suspicion to justify the frisking of a person.

While the requirement of reasonable suspicion is not “an onerous one,” Gomez v. United States, 597 A.2d 884, 888 (D.C.1991), any decision sanctioning a frisk of appellant under the circumstances discussed herein would strike a serious blow to the body of the Fourth Amendment. As Judge Wright recognized in Green,

a police officer unquestionably has the right and indeed the duty to take reasonable precautions to protect himself against potential danger. But as important as this interest may be, it is not absolute, for the officer’s interest in self-protection must always be balanced against the often competing right of all persons to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment.

*1090Green, supra, 151 U.S.App.D.C. at 41, 465 F.2d at 626.

Balancing these considerations in this case, the judgment of conviction must be reversed.12

. I have no substantial disagreement with the opinion of my concurring colleague.

."[Wjhen the case was tried without a jury, the court may review both as to facts and law, but the judgment may not be set aside except for errors of law, unless it appears that the judgment is plainly wrong or without evidence to support it." D.C.Code § 17-305(a) (1989) (emphasis added). The scope of review pursuant to § 17-305(a) has been interpreted to be identical to the "clearly erroneous” standard under Super.Ct.Civ.R. 52(a). See Vereen v. Clayborne, 623 A.2d 1190, 1192 (D.C.1993) (citations omitted).

. Although three officers were present when appellant was pulled over, only one police officer testified at the suppression hearing. Thus, my opinion refers only to that police officer and his beliefs.

.

"One, is the unusual route that the driver had just taken, although it may be that the purpose of that route was to avoid lights ... that does not mean that the officers were unreasonable in seeing this as an unusual route to be taking at three in the morning.”

Findings of Fact.

. Cousart v. United States, 618 A.2d 96, 99 (D.C.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1878, 123 L.Ed.2d 496 (1993), discussed the significance of the flight factor. In Cousart, two on-duty officers, Massey and Zerega, received a call from a fellow officer, Braswell, at 3:30 a.m., to assist in the apprehension of a car which the latter was in the process of chasing. Braswell had observed the car make a reckless turn onto a street. Id. at 98. Braswell activated his emergency equipment, but the car refused to stop. Id. After Braswell determined the car was not going to stop, he called for assistance from Massey and Zerega. Id. Six blocks later, the car stopped. Id.

The trial court found, and this court affirmed, that
there is even a little bit more than just a traffic violation, because he [Officer Bras-well] said, and I think reasonably ... that the driver was attempt to avoid and flee from the presence of the officer, which adds more a little more to the case as compared with the officer just having seen a traffic violation.

Id. at 99; see also McGee v. United States, 270 A.2d 348, 349 (D.C.1970) (court found reasonable suspicion when police officer had to cut the defendant's car off to get him to stop).

. The officer testified that on the scene “[i]t was obvious he was trying to hide something.” During the suppression hearing, however, the officer testified that "it was possible that appellee could have been reaching for a handkerchief or putting a pack of matches in his pocket.” Page, supra, 298 A.2d at 234.

.

Q What happened when [appellant] got out of the vehicle?
A I asked [appellant] to place his hands on the car, and he didn’t want to do that.
Q When you say, he didn’t want to do that, it’s fair to say, he was surprised and said, why, what am I charged with?
A No, he wasn’t surprised, he was nervous.

Officer Hernandez and Defense Counsel.

. The frisk in Mimms was found to be constitutional because once the defendant exited his vehicle, the police officer observed a "large bulge under [the defendant’s] jacket.” Fearing that this bulge might be a weapon, the officer frisked the defendant and recovered a revolver. The Supreme Court in upholding the frisk stated that “[t]he bulge in the jacket permitted the officer to conclude that the defendant was armed and posed a danger to the safety of the officer. In these circumstances, any man of ‘reasonable caution' would likely have conducted a pat-down." Mimms, supra, 434 U.S. at 112, 98 S.Ct. at 334.

. See Carter v. United States, 614 A.2d 542, 543 n. 2 (D.C.1992) ("WALES, an acronym for Washington Area Law Enforcement System, is a computerized information network linking police departments and other law enforcement agencies throughout the Washington metropolitan area.”).

.The reader will recall that the trial court never addressed the “bending” or “ducking” testimony of Hernandez, either in the first instance or after remand. See page 1085, supra. At page 1094 of his opinion, Judge King states "[i]n my view, of the various factors considered by the trial court, the significance of [appellant’s] ducking toward the passenger seat is paramount. It is that act, and only that act, in the circumstances presented here, that could reasonably give rise to the conclusion on the part of the officers that [appellant] might have armed himself.” A fair reading of the transcript, over and over again, discloses no trial court findings— even after a remand of this case — of any "ducking" by appellant toward the passenger seat. Although this factor may be of paramount significance to Judge King, its paramount significance *1089cannot be addressed in the first instance on appeal.

. In Green, the officers observed the defendant run a stop sign. Before the car came to a halt, the officers observed the defendant make an arm movement in front of his body. Both officers believed the defendant was armed. As a result, the officers took the following precautions: (1) stopped the police vehicle one and one-half car lengths behind the defendant’s car; (2) ordered the defendant out of the car and away from his car via the public address system; and (3) while one officer approached the car, the officer remained standing beside the cruiser with one hand on the radio and the other on the on the butt of his revolver. Green, supra 151 U.S.App.D.C. at 36, 465 F.2d at 621. Thus, I strenuously disagree with Judge King’s characterization of the facts in Green at page 1095 of his dissenting opinion as "virtually indistinguishable" from those in the present case. In making this characterization, Judge King confuses “found facts” with sweeping testimony not credited by, or otherwise addressed, by the trial court.

. Finally, Judge King states at page 1094 of his opinion that "[t]he trial judge observed Officer Hernandez when he testified, and concluded, based on that observation, as well as other factors, that it was not unreasonable for the officers to conclude that the purpose of [appellant’s] 'ducking' was to obtain a weapon.” I mean no disrespect to my colleague, however, no such conclusion appears in the record. If indeed, the officers had concluded that the “ducking” was to obtain a weapon, their actions in approaching the car, which I have detailed meticulously, see pages 1088-1089, supra, were totally inconsistent with that conclusion.