United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2000 Decided May 30, 2000
No. 98-3122
United States of America,
Appellee
v.
Robert Lee Johnson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00145-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender. Neil H. Jaffee,
Assistant Federal Public Defender, entered an appearance.
Catherine Motz, Assistant United States Attorney, argued
the cause for appellee. On the brief were Wilma A. Lewis,
U.S. Attorney, John R. Fisher, Elizabeth Trosman, and
Florence Pan, Assistant U.S. Attorneys.
Before: Silberman, Sentelle, and Rogers, Circuit Judges.
Silberman, Circuit Judge: Robert Lee Johnson appeals his
conviction for possession, with intent to distribute, of crack
cocaine. He argues that the evidence against him was the
product of a stop and frisk that was not supported by
reasonable suspicion. We affirm.
I.
According to the evidence in the record, on the night of
Johnson's arrest, two officers of the Metropolitan Police
Department were driving in an unmarked car in an area of
Southeast Washington they characterized as "a high narcotics
area." They pulled into a parking lot and saw a parked car
with two people in it. Johnson was sitting on the passenger's
side, and another person was on the driver's side. The
officers saw a young woman leaning into the passenger's
window and handing Johnson an object, which they could not
identify. At this point they approached the car and the
woman began to walk away.
One of the officers, Michael Fulton, saw Johnson make
what Fulton described as a "shoving down" motion, leading
him to believe that Johnson might be armed. He drew his
gun, advised his partner to do the same, and shouted, "Let
me see your hands." Johnson did not immediately comply
but rather made "a couple of more shoving motions down"
before raising his hands. Fulton reached into the car and
touched a bulge in Johnson's left pants pocket. He felt large,
hard objects which he believed to be rocks of crack cocaine.
He then removed a plastic bag from the pocket. It contained
18 rocks of crack cocaine that, together with another rock
found in Johnson's clothing, totaled 72 grams. Johnson was
arrested, but the driver of the car and the woman standing
outside it were not.
Prior to trial, Johnson moved to suppress all of the evi-
dence recovered from him. He argued that the police did not
have a reasonable suspicion that he was engaged in criminal
activity, and that the stop and frisk were therefore illegal.
The government argued that the stop was permissible under
Terry v. Ohio, 392 U.S. 1 (1968), because the police reason-
ably suspected that a drug transaction was taking place, and
that the frisk was proper because Johnson's conduct led the
officers to believe that he was armed. At a hearing on the
suppression motion, the government presented the testimony
of Officer Fulton. Johnson called no witnesses. The district
court denied the motion without explanation. After a jury
trial, Johnson was convicted and was sentenced to 168 months
in prison.
On appeal, Johnson renews his argument that the stop was
unjustified and that the frisk exceeded the scope allowed by
Terry. He also contends that the district court erred in
failing to make factual findings on the record at the suppres-
sion hearing. In his brief, he suggested that the prosecutor
violated the Fifth Amendment by arguing to the jury that
Johnson's presence throughout the trial gave him an opportu-
nity to tailor his testimony in response to that of other
witnesses. We need not discuss this claim because as counsel
conceded at argument the theory underlying it was rejected
in the Supreme Court's recent decision in Portuondo v.
Agard, 120 S. Ct. 1119 (2000).
II.
We begin with Johnson's claim that, regardless of the
validity of the stop and frisk, the district court's ruling cannot
be affirmed because the trial judge failed to make factual
findings on the record. Federal Rule of Criminal Procedure
12(e) provides: "Where factual issues are involved in deter-
mining a motion, the court shall state its essential findings on
the record." The government agrees that the district court
failed to comply with the rule, but it contends that Johnson
waived his challenge to this omission because he did not
object to the lack of factual findings, nor did he ask the court
to explain its ruling.
In United States v. Harley, 990 F.2d 1340, 1341 (D.C. Cir.
1993), we held that Rule 12(e) can be waived and that when
the district court has not made findings, "any factual disputes
must be resolved in favor of admissibility and we must uphold
the denial of [the] motion if any reasonable view of the
evidence supports it." See also United States v. Caballero,
936 F.2d 1292 (D.C. Cir. 1991). To be sure, when the district
court has not made findings, and when it is not clear what
legal theory the court relied on, a remand may be required
even if the Rule 12(e) defect was waived. See United States
v. Williams, 951 F.2d 1287 (D.C. Cir. 1991). In Williams, the
district court not only did not make specific findings, it did
not indicate which arguments, of the three that were ad-
vanced by the government, it accepted to justify a search.
Noting that the "purpose of an appeal is to review the
judgment of the district court, a function we cannot properly
perform when we are left to guess at what it is we are
reviewing," we relied on our inherent supervisory power over
the district courts to order a remand. Id. at 1290; see also
United States v. Dale, 991 F.2d 819, 840 (D.C. Cir. 1993)
(reviewing the district court's findings after having remanded
"because we did not know which of three separate legal
theories advanced by the government the district court had
adopted and what facts, if any, it relied on to support its
chosen theory").
Notwithstanding Williams, when the validity of a search
can be upheld "based upon an argument made by the govern-
ment below and supported by evidence either uncontested or
found credible by the District Court," the denial of a suppres-
sion motion may be affirmed. United States v. Taylor, 997
F.2d 1551, 1555 (D.C. Cir. 1993). The situation in Williams
was "exceptional," Harley, 990 F.2d at 1341 n.1, and a re-
mand is not necessary unless there is genuine uncertainty
about what the district court did. There is no uncertainty
here. The government offered only one legal theory--i.e.,
that Officer Fulton was frisking Johnson for weapons after a
Terry stop--and it presented uncontroverted testimony from
Officer Fulton. The issue then is whether the government's
theory is supported by the facts that were presented at the
hearing.
The government identifies several factors that it says pro-
vide the "minimal level of objective justification" necessary
for a Terry stop. United States v. Sokolow, 490 U.S. 1, 7
(1989). First, Johnson's car was in a high-crime area. Offi-
cer Fulton described it as a "high narcotics area," adding "I
have been involved in numerous narcotics arrests there."
While obviously insufficient by itself to amount to reasonable
suspicion, this is "among the relevant contextual consider-
ations in a Terry analysis." Illinois v. Wardlow, 120 S. Ct.
673, 676 (2000). Second, Fulton saw a woman lean into the
car and hand Johnson an object, and third, when Fulton
approached in his unmarked car, the woman walked away and
Johnson made a "shoving down" motion.
If the seizure had taken place at that point, we doubt very
much whether it would have been valid. As Johnson points
out, simply receiving an object from another person--Fulton
did not see Johnson give the woman anything in exchange--is
a common occurrence for which there could be many innocent
explanations. And while Johnson's furtive gestures prior to
Fulton's command may be more suspicious, they are signifi-
cant only if they were undertaken in response to police
presence. It is not clear that Johnson was aware that Fulton
was a police officer; Fulton was after all in an unmarked car.
While Fulton did testify that his car was "one of those ones
that everybody knows it's a police cruiser" because it had "a
little dome light in it," that may not help much. The govern-
ment did not seek to qualify Fulton as an expert on public
identification of police vehicles, and Fulton did not establish a
factual foundation for opinion testimony as a lay witness. Cf.
Fed. R. Evid. 701, 702.
We need not focus on those questions, however, because we
do not think the seizure took place immediately after John-
son's first "shoving down" motion, when Fulton drew his gun
and ordered Johnson to raise his hands. Under California v.
Hodari D., 499 U.S. 621 (1991), a seizure requires the applica-
tion of physical force or submission to an assertion of authori-
ty. Before Johnson raised his hands, Fulton had made a
show of authority but Johnson had not submitted to it. On
the contrary, he continued to make "shoving down" motions,
gestures that were the very opposite of complying with
Fulton's order, and which a reasonable officer could have
thought were actually suggestive of hiding (or retrieving) a
gun. In sum, by the time the stop actually took place, it was
supported by Johnson's continued furtive gestures in re-
sponse to being confronted by a police officer, and that was
suspicious enough to support a reasonable belief that Johnson
may have been engaged in criminal activity.
Johnson argues that the stop actually took place much
earlier: as soon as the officers pulled into the parking lot,
because they blocked Johnson's car with their own. Brower
v. County of Inyo, 489 U.S. 593 (1989), suggests that blocking
a vehicle can be the kind of application of physical force that
constitutes a seizure. So if Johnson's car had been blocked,
he would have been stopped, and the stop would be invalid
because at that point Fulton had almost no reason to suspect
Johnson of wrongdoing. But Johnson can find little factual
support for this argument in the record. The testimony on
which he relies is ambiguous at best; such as Fulton's
statement that "I was in a parking lot almost in front of their
vehicle but off, a little off-centered to the vehicle." And the
rest of the testimony actually contradicts the theory. For
example, Fulton went on to say that he was about 25 feet
away from Johnson's car, hardly close enough to block it.
More importantly, Johnson did not present this argument to
the district court (and did not raise it here until his reply
brief). His suppression motion is flatly inconsistent with his
theory, arguing that "Mr. Johnson was seized for purposes of
implicating his Fourth Amendment rights when the police
officers forcibly detained and searched him." The district
court was not obligated to conclude that Johnson was seized
when Fulton pulled into the parking lot.
Since the stop was valid, the frisk was permissible, for
Fulton obviously had reason to suspect Johnson of being
armed. The government points out that the discovery of
crack during the frisk comes within the plain-feel doctrine of
Minnesota v. Dickerson, 508 U.S. 366 (1993). Johnson re-
sponds with the claim that "Terry does not permit officers to
frisk any and every bump or bulge. A bump or bulge that
could not reasonably be a weapon cannot justify a pat-down
frisk." That is inconsistent with Dickerson and with common
sense. A frisk may after all be conducted even when a
suspect's clothing exhibits no visible bulges. The limitation
imposed by Dickerson is that once the officer finds an object
on the person of a suspect, he may not palpate it more than is
necessary to determine whether it is a weapon. See, e.g.,
United States v. Ponce, 8 F.3d 989, 999 (5th Cir. 1993)
(removal of folded dollar bills from pocket was inappropriate
because the officer could not have thought they were a
weapon). Here, Fulton frisked Johnson and felt "a big
bulge" in which he "fe[lt] what I immediately recognize[d] to
be large, hard objects." He explained, "based on my experi-
ence ... I believe[d] what I [was] feeling to be crack co-
caine." Fulton did not exceed the permissible contours of a
Terry frisk.
* * * *
The judgment of the district court is
Affirmed.