United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 1998 Decided September 3, 1999
No. 98-3047
United States of America,
Appellee
v.
Morris B. Christian,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00446-01)
Gregory L. Poe, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Susan B. Menzer, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Elizabeth Tros-
man, Assistant U.S. Attorneys.
Before: Silberman, Ginsburg and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland:
Garland, Circuit Judge: Morris Christian, who was con-
victed of possession of a firearm by a convicted felon in
violation of 18 U.S.C. s 922(g)(1), appeals the district court's
denial of his motion to suppress the firearm. He argues that
the police violated his Fourth Amendment rights by searching
his car, next to which he was standing at the time of his
arrest. We agree with Christian that the search, which
yielded the firearm, cannot be justified as a search incident to
arrest because at the time of the search the police did not
have probable cause to believe he had committed a crime.
We agree with the government, however, that the search was
permissible as part of a valid investigatory stop and weapons
search under the Supreme Court's decisions in Terry v. Ohio,
392 U.S. 1 (1968), and Michigan v. Long, 463 U.S. 1032
(1983). We therefore affirm the judgment of the district
court.
I
On the afternoon of October 12, 1997, Officer Allee Rama-
dhan of the Metropolitan Police Department and his partner
were stationed in an area of southeast Washington, D.C., that
they characterized as "notorious for drug selling and stolen
property." App. 22. From their squad car they observed
Christian standing "right next to" an empty, two-door Chev-
rolet Camaro. He was with a woman who was holding a
white plastic bag. Christian himself was holding three cans
of deodorant under his arm, and two unidentifiable objects in
his hand. According to Ramadhan, "as soon as he saw" the
police, Christian threw the two objects through the Camaro's
front window, which was open approximately five or six
inches. Id. at 23.
The officers approached Christian and the woman to inves-
tigate. Through the car's partially open window, Ramadhan
noticed a dagger with a six-inch blade wedged between the
driver's seat and the front passenger's seat. Ramadhan
asked whose vehicle it was, and Christian said it was his.
Because the driver-side door was locked, Ramadhan asked for
the car keys. After Christian handed them over, but without
his consent to search, Ramadhan entered the car to secure
the dagger.
While retrieving the dagger, the officer noticed two tubes
of toothpaste on the floor, which Christian identified as the
items he had tossed through the window. Ramadhan also
noticed a bag lying on the front passenger's seat next to the
dagger. He picked up the bag, felt what he thought was a
weapon inside, and opened it to find a loaded, .45 caliber
handgun and additional ammunition. After learning that
Christian had a prior felony conviction, Ramadhan placed him
under arrest. Thereafter, he "did a pat-down ... to make
sure [Christian] didn't have any more guns on him." Id. at
39-40.
Christian was indicted for being a felon in possession of a
firearm, and moved to suppress the gun on the ground that
the warrantless search of his car violated the Fourth Amend-
ment to the Constitution. Ramadhan was the only witness at
the suppression hearing and testified as set forth above.
Crediting the officer's testimony, the district court denied
Christian's motion, stating:
The premise of ... the seizure of these items and the
arrest of this defendant begins with what I think is
appropriately categorized as a Terry stop.... [W]hen
the defendant saw him, the defendant threw a couple of
items into the car. That activity in that neighborhood
gave rise to a reasonable articulable suspicion that some-
thing was going on; and ... it was proper for the officer
to follow up.... So that disposes of that question.
When the officer then saw what he described as a large
dagger sticking in between the seats, it gave rise to
appropriate further action on the officer's part, including
checking out that dagger [and] picking up the bag next to
it, because under Terry the officer is permitted to [exam-
ine] by plain touch or plain feel that which might bear on
the safety of the officer himself.
Id. at 44-46.
Christian subsequently entered a conditional plea of guilty,
reserving his right to appeal the suppression ruling. See Fed.
R. Crim. P. 11(a)(2). The court sentenced him to two years
probation. This appeal followed.
II
The government advances two exceptions to the Fourth
Amendment's warrant requirement that, it contends, validate
the officers' warrantless search of Christian's car. It argues,
first, that the police had probable cause to arrest Christian
for possessing a dangerous weapon, and therefore had au-
thority to conduct a search incident to that arrest. It argues,
second, that the officers had reasonable suspicion to stop and
question Christian, and that, given their equally reasonable
fear that he was armed, they also had authority to conduct a
protective search for weapons.
We decide de novo whether the police had probable cause,
reasonable suspicion or reasonable fear. See Ornelas v.
United States, 517 U.S. 690, 699 (1996). We review the
district court's "findings of historical fact only for clear error
and ... give due weight to inferences drawn from those
facts" as well as to the court's determination of witness
credibility. Id. at 699. After hearing the testimony of Offi-
cer Ramadhan, the district court accepted the government's
second argument. We do so as well.
A
A search incident to arrest is a well recognized exception to
the Fourth Amendment's warrant requirement. As the Su-
preme Court held in Chimel v. California, "[w]hen an arrest
is made, it is reasonable for the arresting officer to search the
person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his
escape." 395 U.S. 752, 762-63 (1969). "In addition," the
Court held, "it is entirely reasonable for the arresting officer
to search for and seize any evidence on the arrestee's per-
son," as well as in "the area 'within [the arrestee's] immediate
control.' " Id.
The government argues that the police officers had proba-
ble cause to place Christian under arrest once they detected
the dagger in plain view in the car's front seat and confirmed
that the car was his. Possession of the dagger, the govern-
ment contends, is a violation of D.C. Code Ann. s 22-3214(b).
The problem with the government's theory, however, is that
the cited statute does not make possession of a dagger,
without more, a crime.
Section 22-3214 is composed of two subsections. Subsec-
tion (a) makes it a crime to possess certain listed weapons,
including machine guns, sawed-off shotguns, blackjacks,
switchblades, and metal knuckles--none of which Christian
had. That subsection has no specific intent requirement
because, according to the District of Columbia Court of
Appeals, the listed weapons are "so highly suspect and devoid
of lawful use that their mere possession is forbidden." Unit-
ed States v. Brooks, 330 A.2d 245, 247 (D.C. 1974). The
subsection at issue here, however, s 3214(b), makes it a crime
to "possess, with intent to use unlawfully against another, an
imitation pistol, or a dagger, dirk, razor, stiletto, or knife with
a blade longer than 3 inches, or other dangerous weapon."
Id. at 246 (emphasis added). The Court of Appeals has
repeatedly held that mere possession of one of these items is
not sufficient to violate the statute; there must also be
evidence that the possessor intended to use it "in an assaul-
tive or otherwise unlawful manner." Id. at 247.1 Without
such evidence, possession of a "dagger" is no more unlawful
than possession of a kitchen knife or, for that matter, a
__________
1 See McBride v. United States, 441 A.2d 644, 648-49 (D.C.
1982); Jones v. United States, 401 A.2d 473, 475-76 (D.C. 1979);
H.R. Rep. No. 82-538, at 8 (1951) ("The mere possession of these
weapons cannot, your committee realizes, be barred; but if the
possession, coupled with criminal intent, can be shown to exist, your
committee feels that appropriate punishment should follow.").
furniture leg. See Jones v. United States, 401 A.2d 473, 475
(D.C. 1979) (holding that defendant may be convicted for
possession of furniture leg if he had "specific intent to use the
weapon unlawfully against another").
Lacking any direct evidence that Christian intended to use
the dagger unlawfully, the government offers two pieces of
circumstantial evidence. First, it contends that "[s]ince dag-
gers, unlike kitchen knives, have no obvious utilitarian pur-
pose, particularly in cars, this dagger's incriminating nature
was self-evident." Gov't Br. at 8. Second, it asks us to infer
a possible criminal intent from the fact that the dagger and
the car were in a high-crime neighborhood. But as the
government conceded at oral argument, there is at least one
"utilitarian" and perfectly lawful purpose for keeping a dag-
ger in a car, particularly in a high-crime neighborhood: self-
defense. See McBride v. United States, 441 A.2d 644, 649 &
n.9 (D.C. 1982) (holding that self-defense is a lawful purpose
for possession of a weapon listed in s 3214(b)). Given the
possibility of a lawful purpose, and the absence of any evi-
dence whatsoever that Christian possessed the knife for an
unlawful one, the officers lacked probable cause to believe a
crime had been committed.
Nor is the government assisted by the Supreme Court's
statement, in Adams v. Williams, that "[p]robable cause does
not require the same type of specific evidence of each element
of the offense as would be needed to support a conviction."
407 U.S. 143, 149 (1972). In Adams, although the police
lacked direct evidence that the defendant unlawfully pos-
sessed the pistol in question, the circumstances surrounding
his arrest supported the necessary inference. An informant
had told the officers that the defendant, who was seated in a
nearby vehicle, was carrying narcotics and had a gun at his
waist. The Court held that the fact that "the policeman
found [defendant] in possession of a gun in precisely the place
predicted by the informant ... tended to corroborate the
reliability of the informant's further report of narcotics and,
together with the surrounding circumstances, certainly sug-
gested no lawful explanation for possession of the gun." Id.
at 148. Here, however, there was a "lawful explanation" for
Christian's possession of the dagger. Here the officers did
not simply lack the "type of specific evidence of" Christian's
intent "as would be needed to support conviction," id. at 149;
they lacked any evidence at all that Christian intended to use
the dagger unlawfully. Without such evidence, there was no
probable cause for arrest. See Gasho v. United States, 39
F.3d 1420, 1428 (9th Cir. 1994) (holding that although "an
officer need not have probable cause for every element of the
offense ... when specific intent is a required element of the
offense, the arresting officer must have probable cause for
the element in order to reasonably believe that a crime has
occurred."). And without a valid arrest, the warrantless
search cannot be justified by the "search incident to arrest"
exception.
B
The government's second justification for the seizure of the
gun is that it occurred during a valid protective search for
weapons under the "stop and frisk" doctrine of Terry v. Ohio,
392 U.S. 1 (1968). In Terry, the Court held that police do not
need probable cause to conduct a brief, investigatory stop of
an individual if they are "able to point to specific and articula-
ble facts which, taken together with rational inferences from
these facts," give rise to a reasonable suspicion of criminal
activity. Id. at 21; see United States v. Sokolow, 490 U.S. 1,
7 (1989); New York v. Class, 475 U.S. 106, 117 (1986). The
Court further upheld an officer's authority to search the
individual for weapons where he has a "reasonable fear for
his own and others' safety" based on an articulable suspicion
that the suspect is armed and dangerous. Terry, 392 U.S. at
30, 27; Long, 463 U.S. at 1034.
In Michigan v. Long, the Court, employing the same
standard applied in Chimel, held that the scope of a Terry
search may extend beyond the person of the suspect. 463
U.S. at 1035, 1049. The police, the Court said, may search
" 'the [suspect's] person and the area "within his immediate
control" ... mean[ing] the area from within which he might
gain possession of a weapon.' " Id. at 1048 (quoting Chimel,
395 U.S. at 763). In Long, the Court found that area to
include the passenger compartment of a car outside of which
the defendant was standing, after he had driven the vehicle
into a ditch and gotten out to meet the investigating officers.
Id. at 1049. The search of the compartment was "limited to
those areas in which a weapon may be placed or hidden." Id.
In the case at bar, the district court found that a police
officer who had regularly worked "an area notorious for drug
selling and stolen property" could reasonably be suspicious of
someone who, "when seeing the officer," immediately "throws
something into a car." App. 53. Defendant does not dispute
the court's assessment that there was sufficient basis for a
brief Terry stop,2 and we agree because the defendant's
actions raised a reasonable suspicion that he was trying to
hide contraband from the officers.3 See United States v.
__________
2 In a footnote, defendant does suggest that any justification for
the stop and subsequent weapons search dissipated once the officer
saw the tubes of toothpaste on the floor and heard Christian say
they were what he had tossed. Def. Br. at 15 n.9. But at that
point the officer did not know defendant was telling the truth (the
officer had not yet searched for any other objects that might have
been thrown), and hence he was not obligated to break off his effort
to secure the area on Christian's word alone.
3 The government contends that once Officer Ramadhan "ob-
served a dagger in plain view in the car, he had a reasonable
articulable suspicion to believe that appellant was committing a
weapons offense." Gov't Br. at 16. For the same reasons dis-
cussed in Part II(A), we do not agree that the presence of the
dagger in the car gave rise to reasonable suspicion that Christian
was in possession of a prohibited weapon, an offense which requires
specific intent. Nor do we understand why the government makes
this argument. The officer did not mention the dagger as a basis
for the suspicion that led to the stop. See App. 30-31. Although
the district court did rely on the dagger to establish the reasonable
fear required for the car search (as do we, see text infra), the court
did not rely on it for the reasonable suspicion required to justify the
initial Terry stop. See App. 45 ("[W]hen the defendant saw him,
the defendant threw a couple of items into the car. That activity in
that neighborhood gave rise to a reasonable articulable suspicion
that something was going on."). As noted in the text, Christian's
Smith, 614 F. Supp. 25, 26-27 (D.D.C. 1994) (upholding Terry
stop where, upon seeing police officers, defendant "immedi-
ately bent forward as if to hide something under the front
seat"); see also United States v. Laing, 889 F.2d 281, 283
(D.C. Cir. 1989); United States v. Williams, 822 F.2d 1174,
1176, 1179 (D.C. Cir. 1987). Nor does Christian dispute that
if the officer could lawfully search the area where the bag
was found, he was entitled to open the bag once he felt the
gun. See Williams, 822 F.2d at 1184 ("[N]o warrant is
needed for an opening of a container whose contents become
known through a lawful touching of the outside."); see also
Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993); United
States v. Russell, 655 F.2d 1261, 1264 (D.C. Cir. 1981).
Defendant does, however, dispute that the police had the
kind of "reasonable fear" necessary to justify a search for
weapons. He further contends that, even if the police did
have such reasonable fear, the car's passenger seat was not
an area within his "immediate control" from which weapons
could be obtained. Def. Br. at 14. We consider these two
arguments in turn.
First, we agree with the district court that Officer Rama-
dhan had sufficient indication Christian might be armed and
dangerous to justify a protective search for weapons. In
Long, the Court said that "danger may arise from the possi-
ble presence of weapons in the area surrounding a suspect."
463 U.S. at 1049. Here, the presence of a weapon was not
merely "possible"; when Ramadhan arrived at Christian's
car, he saw the dagger in plain view near the defendant.
Within moments, Christian confirmed that the car containing
the dagger was his. Moreover, as we have noted before, the
presence of one weapon may justifiably arouse concern that
there may be more in the vicinity, as turned out to be the
case here. See United States v. Abdul-Saboor, 85 F.3d 664,
670 (D.C. Cir. 1996).
__________
throw, which gave rise to the suspicion that he was trying to remove
something from the officer's view, was sufficient to validate the
stop.
Defendant protests that because his possession of the dag-
ger was lawful, it cannot supply the justification for a protec-
tive search. But the Supreme Court expressly rejected the
same argument regarding a defendant's hunting knife in
Long itself. 463 U.S. at 1052 n.16 ("Long also argues that
there cannot be a legitimate Terry search based on the
discovery of the hunting knife because Long possessed that
weapon legally.... [W]e have expressly rejected the view
that the validity of a Terry search depends on whether the
weapon is possessed in accordance with state law."). Even a
lawfully possessed weapon may pose a threat, and because
"[t]he purpose of [a Terry] search is not to discover evidence
of crime, but to allow the officer to pursue his investigation
without fear of violence," the lawfulness of defendant's pos-
session is irrelevant to this aspect of the Terry analysis.
Adams, 407 U.S. at 146.
Christian further contends that Officer Ramadhan's actions
belie the government's claim that he regarded Christian as a
threat. After all, he did not frisk Christian's person until
after he had found the gun and placed him under arrest.
Had the officer truly feared him, Christian argues, he would
have frisked him before turning to the car.
This argument misses the mark for two reasons. First, as
appellate judges we do not second-guess a street officer's
assessment about the order in which he should secure poten-
tial threats. To the contrary, we must defer to his "quick
decision as to how to protect himself and others from possible
danger." Terry, 392 U.S. at 28; see also United States v.
Wilkerson, 598 F.2d 621, 625 (D.C. Cir. 1978) (rejecting
defendant's claim "that the search of the car was not a
protective search because the driver ... [was] not frisked
until after the officer found the gun," since this was tanta-
mount to a request "to instruct the police on the priority of
search once reasonable suspicion of danger exists"). Second,
in assessing an officer's actions under Terry, we evaluate his
conduct objectively, not subjectively. See, e.g., Long, 463
U.S. at 1046 n.11 ("[T]he propriety of a Terry stop and frisk
is to be judged according to whether the officer acted as a
'reasonably prudent man' in deciding that the intrusion was
justified."); see also Ornelas, 517 U.S. at 696; Horton v.
California, 496 U.S. 128, 138 (1990) ("[E]venhanded law
enforcement is best achieved by the application of objective
standards of conduct, rather than standards that depend upon
the subjective state of mind of the officer."). Thus, Rama-
dhan's actual motives for conducting the search were not
relevant as long as his actions were objectively reasonable.4
Because we conclude that they were objectively reasonable,
we affirm the district court's finding that the police had a
reasonable basis for conducting a Terry search.
Christian's second argument is that, even if the police had a
sufficient foundation for a Terry search, the car's interior was
beyond its lawful scope. He correctly points out that unlike
the facts of Long, in which the defendant's car door was open,
the police knew Christian's driver-side door was closed and
locked, and the officer had taken the keys. Under those
circumstances, he contends, the car's interior was not "within
his immediate control."
We begin by noting that the fact that Ramadhan obtained
the keys is not relevant to the analysis. The officer request-
ed the keys to use them to open the door to secure the knife.
As in the related context of searches incident to arrest, we
assess a Terry search from the standpoint of the moment of
the stop--at which time Christian still had the keys--not
from the subsequent period in which the officer begins to take
protective measures. Otherwise, "we might create a perverse
incentive for an arresting officer to prolong the period during
which the arrestee is kept in an area where he could pose a
danger to the officer." Abdul-Saboor, 85 F.3d at 669; see In
re Sealed Case, 153 F.3d 759, 768 (D.C. Cir. 1998). Since, as
defendant concedes, Christian was "stopped" for Terry pur-
poses from the moment the officer requested his keys, we
evaluate the risk to the officer at that time.
__________
4 For the same reasons, defendant is not helped by Ramadhan's
testimony that he initially entered the car "to get the knife, get the
stuff out of the vehicle [that Christian] just threw inside," rather
than to check for additional weapons. App. 35.
Under these circumstances, the officers were "reasonably
warrant[ed] ... in believing that" Christian could have
"gain[ed] immediate control" of the weapon. It was not
unreasonable to fear he might lunge for the door, open it with
the keys, and grab the knife. As the Court stated in Long, it
is mistaken to discount police concern over an individual
simply "because he was effectively under their control during
the investigative stop." Long, 463 U.S. at 1051. To the
contrary, a Terry suspect might well "break away from police
control and retrieve a weapon from his automobile." Id.; see
Wilkerson, 598 F.2d at 625 ("[S]tanding next to the car
without handcuffs, either the driver or one of the passengers
could have bolted to it, seized a weapon and fired before the
officers could find cover."). Nor does it matter that the car
door was closed; as the Court said in Chimel, a "gun on a
table or in a drawer in front of one who is arrested can be as
dangerous to the arresting officer as one concealed in the
clothing of the person arrested." Chimel, 395 U.S. at 763
(quoted in Long, 463 U.S. at 1048) (emphasis added). And
while the time it would take to unlock the door would slow
Christian down, the police "cannot be expected to make
punctilious judgments regarding what is within and what is
just beyond the arrestee's grasp." United States v. Lyons,
706 F.2d 321, 330 (D.C. Cir. 1983).
Moreover, even if control were measured at the time the
officer had the keys, we would still conclude Christian had
sufficient control over the front seat of his car to satisfy the
Chimel standard. See United States v. Mancillas, No.
98-1001, 1999 WL 460976 (7th Cir. July 7, 1999) (holding that
dashboard of car was within the area into which defendant
"might reach in order to grab a weapon" where officer made
Terry stop of defendant outside of locked car, saw gun on
dashboard, and requested keys from defendant in order to
open door) (quoting Chimel). The window of the driver-side
door was open approximately five to six inches, large enough
for Christian to reach his arm through to unlock the door
manually. And there is no indication the officers knew or
could have known whether the passenger-side door was
locked. Christian or the woman with him might have mo-
mentarily broken away from police control, opened the pas-
senger door, and seized either the dagger or the gun--which
was in a bag on the passenger's seat. That these scenarios
may not be probable is not decisive. As we have said before,
the Chimel test is not whether an area was probably accessi-
ble to the suspect at the time of the search, but whether it
was "conceivably" accessible. Lyons, 706 F.2d at 330; see
Sealed Case, 153 F.3d at 768; Abdul-Saboor, 85 F.3d at 669
("Showing that the area searched was 'conceivably accessible
at the time of the search' was not meant to be difficult.").
Accordingly, we have upheld searches "even when hindsight
might suggest that the likelihood of the defendant reaching
the area in question was slight," Lyons, 706 F.2d at 330, and
when that likelihood was substantially lower than it was
here.5
Finally, as the Court instructed in Long, we must also
consider that "if the suspect is not placed under arrest, he
will be permitted to reenter his automobile, and he will then
have access to any weapons inside." Long, 463 U.S. at 1052.
Had no search been conducted here, and hence no gun found,
the police would eventually have permitted Christian to leave
and, presumably, to re-enter his car. At that point, Christian
would have had immediate access to both the knife and gun.
Under these circumstances, it was appropriate to conduct a
Terry search to ensure that such access would not endanger
the lives of the departing officers. See id.; United States v.
McClinnhan, 660 F.2d 500, 504 (D.C. Cir. 1981) (upholding
__________
5 See, e.g., United States v. Mason, 523 F.2d 1122, 1125-26
(sustaining search of closet three or four feet away from handcuffed
defendant). Compare Abdul-Saboor, 85 F.3d at 670-71 (upholding
search of room as "conceivably accessible" to defendant who was
"handcuffed, sitting on a chair" four feet outside the door with two
officers, at least one of whom was armed), with Lyons, 706 F.2d at
330 (finding it "inconceivable that [defendant] could have gained
access" to closet several yards away from where defendant, who had
briefly collapsed, was "sitting, handcuffed, on a chair ... [with] six
police officers, at least four of whom presumably were armed").
See generally Sealed Case, 153 F.3d at 768-69 (discussing Abdul-
Saboor and Lyons).
Terry search of briefcase because "[m]erely separating [de-
fendant] from his briefcase ... would obviate the danger only
for the length of the stop; at some point they would be
compelled to return the briefcase to appellant and thus place
themselves in the danger they sought to avoid"); see also
United States v. Woody, 55 F.3d 1257, 1269-70 (7th Cir. 1995)
(upholding search of defendant's locked glove compartment
while he sat handcuffed in patrol car because of officers'
anticipation that defendant and passengers would eventually
return to their car).6
III
We conclude that the seizure of Christian's gun did not
violate his rights under the Fourth Amendment. According-
ly, the district court properly denied defendant's motion to
suppress the evidence, and we affirm his conviction.
__________
6 Our decision in United States v. Fafowora, 865 F.2d 360 (D.C.
Cir. 1989), is not to the contrary. There we held that the "bright-
line rule" of New York v. Belton, 453 U.S. 454 (1981), "that the
passenger compartment lies within the reach of the arrested occu-
pant," does not apply "when the police come upon the arrestees
outside of the automobile." 865 F.2d at 362. "[I]nstead, the normal
framework of Chimel applies" and the area searched must be
"within the 'immediate surrounding area' into which [defendants]
might have reached at the time the [police] caught up with them."
Id. In the instant case, the government does not urge the applica-
tion of Belton, but rests instead on the normal framework of
Chimel. In Fafowora we found the car search to be outside the
immediate surrounding area of defendants since they were arrested
a car length away, walking in the opposite direction. Id. at 361-62.
Here, by contrast, the police confronted Christian when he was
standing directly next to the car.