Powell v. United States

FARRELL, Associate Judge,

concurring in the judgment:

This is not a “disarmingly simple case,” as Judge Sullivan opines, hut it is one requiring us to do our fallible best to decide whether the police, viewing events though their perspective, had objective reason to suspect that appellant was armed, and therefore to frisk him.1 The knife’s edge of that decision, for me (and I believe for Judge King), is appellant’s gesture while the police were pursuing him of “ducking” or “bending” toward the passenger side of the car. Without consideration of that fact, the evidence reveals that appellant breached several traffic regulations (not asserted, however, to be arrestable infractions) and was nervous and initially unresponsive (say even uncooperative) in furnishing his driver’s license and registration. In the aggregate, that conduct was enough to allow the officers to order him out of the car while they checked his vehicle documents, did a WALES check, and issued him citations. It was also enough for them to direct him to keep his hands in view while detained. See Cousart v. United States, 618 A.2d 96, 101 (D.C.1992) (en banc).

But the additional, significantly greater intrusion of ordering him to place his hands on the car and patting him down2 can be justified only if the sole additional fact present— appellant’s earlier body movement before stopping — was sufficient to arouse a reasonable fear in the officers that he was armed. Our decisions lead me to conclude that it was not. As Judge Sullivan points out, in United States v. Page, 298 A.2d 283 (D.C.1972), we held that “furtive movements” seemingly more sinister than appellant’s were insufficient to justify a frisk. As in this ease, the stop of the defendant’s vehicle was for traffic violations, “without any indication of criminal activity either on the part of the driver or passengers.” Id. at 237. While one officer was talking to the driver, another noticed that Page, a rear seat passenger, looked at the officers “and then moved his right arm and shoulder ‘as if to hide something’ or ‘put something away, get something.’” Id. at 234. As an officer approached the car, Page “ ‘still had his arm towards the back of his body.’ ” Id. Yet we held that these movements, illuminated by no other fact than the traffic violations resulting in the stop, did “not establish a reasonable basis for the frisk of [Page].” Id. at 237.

We distinguished Page in In re D.E.W., 612 A.2d 194 (D.C.1992), because unlike “the ambiguous furtive movement” at issue there, the action observed by the officer in D.E.W. “appeared to him to be an unambiguous effort to conceal a weapon.” Id. at 198. Specifically, the officer had seen the defendant “trying to ‘shov[e] something down the front part of his pants’ under his coat,” then “‘h[o]ld his hands over the area where he was pushing.’” Id. at 195. We held that action to be enough to tip the balance in favor of a lawful protective frisk.

The explicit movement in D.E.W. does not set a minimal standard for judging whether a particular bodily gesture could induce an officer’s reasonable fear for his safety. Indeed, *1091in the current era of ubiquitous semi-automatic pistols, I think the movement of reaching and positioning one’s arm near the rear of the body at issue in Page would arouse natural apprehension in a police officer, and probably allow a patting of the belt area of the person detained.3 But under Page and D.E.W., the ambiguous movement in this case cannot be the decisive fact justifying a frisk that was otherwise unwarranted. Although appellant looked in the rear view mirror at the pursuing police, the trial judge found that he was not attempting to evade them. He was then seen to duck or bend toward the passenger side of the car before stopping the vehicle a block or so later. By the time he was ordered out of the car, the police had let him search through the glove compartment for his registration,4 and his hands were visible to them as he surrendered the documents and exited the car. The government does not argue that he was suspected of any other offense than the traffic violations.5 I therefore agree that, without more, appellant’s earlier bending movement (even calling it a reaching) was too weak an indication that he had armed himself to permit the additional intrusion of a frisk.

. The Fourth Amendment permits an officer to “conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.” Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979) (emphasis added).

. Compare Cousart, 618 A.2d at 100 ("The officers did not touch the passengers_"). While in Cousart the police officers “confronted a car which had just been in flight from a fellow officer,” id., the judge in this case found "that there wasn't actually any kind of flight, or chase involved. ...”

.In the class of furtive movements permitting a frisk would also be included those in McGee v. United States, 270 A.2d 348, 349 (D.C.1970) (police saw defendant “reach down below the front seat ... toward the floorboard and apparently place something under the seat”), and United States v. Green, 151 U.S.App.D.C. 35, 38, 465 F.2d 620, 623 (1972) (police "observed the driver making furtive movements as though pulling something out of his belt and placing it under his seat”).

. The trial judge so found on remand.

. Had the judge found that appellant’s conduct in stopping only after several blocks exhibited "flight" from the pursuing police (and a corresponding "chase”), a reasonable inference might have been drawn of his awareness of guilt of some graver offense. But the judge did not find, nor does the government argue, that his actions bespoke someone, for example, engaged in possession of a stolen vehicle.