United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2008 Decided March 27, 2009
No. 06-3093
UNITED STATES OF AMERICA,
APPELLEE
v.
CARROLL WASHINGTON, ALSO KNOWN AS WAYNE WATSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00344-01)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III, Assistant
U.S. Attorney.
Before: GINSBURG, GARLAND and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: On a May night in 2004, a
District of Columbia High Impact Tactical police team
operated an “aggressive traffic patrol” in a crime-plagued
neighborhood in Southeast Washington. The officers sought
to detect illegal drug and gun crimes; to advance that goal,
they would stop cars when they observed traffic violations
and then look for suspicious behavior by the driver or
passengers.
When the police saw Carroll Washington run a stop sign,
they pulled over his vehicle. After noticing Washington reach
toward the floorboard, as well as other suspicious behavior,
the officers ordered him to get out and then searched the car.
See Michigan v. Long, 463 U.S. 1032 (1983); Pennsylvania v.
Mimms, 434 U.S. 106 (1977); Terry v. Ohio, 392 U.S. 1
(1968). The officers uncovered a loaded gun near where
Washington had moved his hand. After arresting
Washington, they also found $6840 on his person and 795
pills of ecstasy in the car. Washington was convicted and
sentenced to 16 years and 8 months in prison.
On appeal, the sole question presented is whether the
search of the car violated the Fourth Amendment. To begin
with, the Government correctly says the officers’ actual
subjective motives – detecting drug and gun crimes – are
irrelevant to the Fourth Amendment analysis of the traffic
stop and protective search of the car. See Whren v. United
States, 517 U.S. 806 (1996). The Fourth Amendment test is
objective. Therefore, when the police have an objectively
reasonable basis to conduct a traffic stop for a suspected
moving violation (as they concededly did here) and possess or
develop an objectively reasonable fear that the driver may be
armed, the officers may frisk the driver and search the car. In
3
this case, the Government contends that the officers possessed
an objectively reasonable fear that Washington might be
armed because Washington suspiciously reached toward the
floor of the car, he lied to police about why he had done so, he
appeared extremely nervous and was sweating profusely, he
repeatedly looked back over his shoulder at one of the
officers, and the neighborhood was a high-crime area. We
agree with the Government’s position, and we affirm the
judgment of the District Court.
I
According to testimony at the suppression hearing,
District of Columbia police sometimes conduct “aggressive
traffic patrols” and use routine traffic stops to try to detect and
prevent drug and gun crimes. Tr. of Mot. Hr’g 24:3-15, Jan.
21, 2005. On May 28, 2004, several officers from one of the
Police Department’s High Impact Tactical teams employed
that procedure in a Southeast Washington neighborhood
known for narcotics trafficking, shootings, and homicides.
At 9:30 p.m. that night, a member of the police team saw
Carroll Washington run a stop sign. The officer radioed
ahead to other officers to pull over Washington’s car.
Officers Teixeira and Dailey then did so.
When Officer Dailey approached the driver’s side
window, he observed Washington talking on his cell phone.
Officer Dailey told Washington to end his call. Complying
with Officer Dailey’s instruction, Washington placed the
phone on the passenger seat next to him. Washington
appeared extremely nervous and was sweating profusely. He
repeatedly glanced over his right shoulder at Officer Teixeira.
Officer Teixeira found that to be unusual because people
usually “focus most of their attention to the officer actually
conducting the traffic stop.” Id. at 17:2-5.
4
Officer Dailey returned to his police car to check the
status of Washington’s license and registration. While
Officer Dailey was in his cruiser, Officer Teixeira saw
Washington “reach underneath his driver’s seat” and “make
some type of motion up by his feet in the floorboard area.”
Id. at 18:6-9. Officer Teixeira so informed Officer Dailey.
After going back to Washington’s car, Officer Dailey asked
Washington why he had reached under the seat. Washington
claimed that he had dropped his phone to the floor and then
picked it up. The officers did not believe Washington
because they had earlier seen him put the phone on the
passenger seat.
The officers ordered Washington out of the car, as
permitted under Pennsylvania v. Mimms during any traffic
stop. 434 U.S. 106, 111 n.6 (1977); see also United States v.
Bullock, 510 F.3d 342, 344-45 (D.C. Cir. 2007). Officer
Dailey then searched the car to ensure that Washington did
not have a weapon. See Michigan v. Long, 463 U.S. 1032,
1049 (1983). Officer Dailey found a loaded gun under the
driver’s floor mat near where Officer Teixeira had seen
Washington move his hand. The officers arrested
Washington and searched his person, finding $6840 in cash.
Later, at the police station, the officers conducted a more
extensive search of the car and uncovered 795 pills of ecstasy.
A jury convicted Washington of one count of possession
of a firearm and ammunition by a convicted felon in violation
of 18 U.S.C. § 922(g)(1) and one count of possession with
intent to distribute ecstasy in violation of 21 U.S.C.
§ 841(a)(1). The District Court sentenced him to 16 years and
8 months of imprisonment.
On appeal, Washington contests the District Court’s
decision to admit the evidence seized from his car and from
5
his person. He argues that the police did not possess
sufficient justification under Fourth Amendment precedents to
search his car during the routine traffic stop. We review de
novo the District Court’s conclusion that the search was
reasonable.
II
The Supreme Court and this Court have repeatedly
recognized that a car stop is “one of the more perilous duties
imposed on law enforcement officers.” United States v.
Holmes, 385 F.3d 786, 791 (D.C. Cir. 2004). Because of that
inherent danger, police may order the driver and passengers
out of the car during a traffic stop. See Maryland v. Wilson,
519 U.S. 408, 413 n.1 (1997); Pennsylvania v. Mimms, 434
U.S. 106, 111 n.6 (1977); United States v. Bullock, 510 F.3d
342, 344-45 (D.C. Cir. 2007). In addition, the police may
frisk the driver and search the car when officers possess or
develop a “reasonable belief based on ‘specific and articulable
facts which, taken together with the rational inferences from
those facts, reasonably warrant’ the officer in believing that
the suspect is dangerous and the suspect may gain immediate
control of weapons.” Michigan v. Long, 463 U.S. 1032,
1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21
(1968)). The reasonableness of a frisk and car search during a
stop depends on “‘whether a reasonably prudent [officer] in
the circumstances would be warranted in the belief that his
safety or that of others was in danger.’” Id. at 1050 (quoting
Terry, 392 U.S. at 27).*
In this case, a number of factors would have led
reasonable officers to fear for their safety during the stop.
Officer Teixeira saw Washington move his hand and body as
*
Some suspected crimes, by their nature, justify police in
fearing that the suspect may be armed and dangerous. See Bullock,
510 F.3d at 347 (collecting cases).
6
if to reach under the seat – a movement reasonably
suggesting, given the circumstances, that Washington might
be concealing or retrieving a weapon. “It is well settled that
an individual’s furtive movements may be grounds for
reasonable suspicion and fear, justifying a Terry stop and
search.” United States v. Brown, 334 F.3d 1161, 1167 (D.C.
Cir. 2004); see also Bullock, 510 F.3d at 348; Holmes, 385
F.3d at 788-90; United States v. Edmonds, 240 F.3d 55, 61
(D.C. Cir. 2001); United States v. Mitchell, 951 F.2d 1291,
1296 (D.C. Cir. 1991); United States v. Moore, 554 F.2d
1086, 1088 (D.C. Cir. 1976); United States v. Green, 465 F.2d
620, 623-24 (D.C. Cir. 1972); 4 WAYNE R. LAFAVE, SEARCH
AND SEIZURE § 9.6(a) at 628-29 (4th ed. 2004). In addition,
when the officers asked Washington about his reaching
movement, they did not believe his answer because they had
earlier seen him place his cell phone on the passenger seat.
Washington’s statement – which the officers reasonably
believed was false – increased the officers’ fear that he might
have a weapon. See United States v. Smith, 614 F. Supp. 25,
28 (D.D.C. 1984) (Hogan, J.) (“furtive movements” together
with “the fabrication for the reason for being illegally parked”
provided reason for officers to fear for their safety). Officer
Teixeira testified, moreover, that Washington was extremely
nervous, sweating excessively, and behaving oddly during the
encounter – all of which suggested something was afoot. See,
e.g., Brown, 334 F.3d at 1167-68. Finally, the stop occurred
in a high-crime area – a fact that we have found significant in
previous car search cases. See, e.g., Bullock, 510 F.3d at 348;
United States v. Edwards, 424 F.3d 1106, 1108 (D.C. Cir.
2005).
The facts in this case – the totality of the circumstances –
are sufficient under our precedents to demonstrate the
reasonableness of the protective frisk and car search. In so
concluding, we of course do not mean to imply that any or all
7
of the above facts are necessary to justify a protective frisk
and car search during a traffic stop.
III
In response, Washington relies primarily on United States
v. Spinner, 475 F.3d 356 (D.C. Cir. 2007). In Spinner, the
police searched a car based on nothing other than the
suspect’s nervousness and a “fiddling” movement with his
hand. Id. at 359. Consistent with our prior decisions, we said
that “the suspicion that someone is armed – or, in this case,
might have a weapon available in his vehicle – must be based
upon something more than his mere nervousness.” Id. at 360.
We explained that a person “stopped by the police is entitled
to be nervous without thereby suggesting he is armed and
dangerous or, indeed, has anything to hide.” Id. We further
stated: “The officers suspected he put something in his truck
but they had no reason whatsoever to believe it was a
weapon.” Id. (emphasis added). Washington’s reliance on
Spinner is misplaced. Unlike in Spinner, Washington’s
suspicious movement of reaching toward the floorboard could
have been an act of retrieving or concealing a weapon; in
addition, as discussed above, a variety of other facts in this
case justified the officers’ reasonable fear for their safety.
On a different tack, Washington argues that the officers’
justification for the original stop ceased when they determined
that his license and registration were valid – in other words,
that the basis for the stop ended before the officers searched
the car. But we have stated that the police’s concern for
safety during a traffic stop ordinarily does not terminate until
the officers allow the driver to depart. See United States
Bullock, 510 F.3d 342, 348-49 n.1 (D.C. Cir. 2007). The
Supreme Court recently confirmed this commonsense
principle. See Arizona v. Johnson, 129 S. Ct. 781, 788 (2009)
(“Normally, the stop ends when the police have no further
8
need to control the scene, and inform the driver and
passengers they are free to leave.”).
Finally, Washington contends that “the officers’ motives,
and the fact that this [stop] was purely pretextual should give
this Court some pause in considering the officers’
explanations for what [they were] in fact doing.” Tr. of Oral
Arg. at 23:15-18, Dec. 11, 2008. As Washington correctly
points out, the officers here were not interested in enforcing
the traffic laws. Indeed, the officers involved in the stop
apparently were not even using traffic-ticket books to issue
tickets. Tr. of Mot. H’rg at 33:18-34:10, Jan. 21, 2005.
Rather, the police were performing an “aggressive traffic
patrol” – looking “for moving violations, tag violations,
reasons to pull vehicles over” – because, as Officer Teixeira
testified, “that’s normally how we get a lot of our narcotics
and gun arrests.” Id. at 24:3-14.
But Washington’s suggestion that we consider the
officers’ actual motives runs afoul of Whren v. United States.
There, the Supreme Court held that an officer who possesses
an objective basis to stop a motorist for a suspected traffic
violation may do so regardless of the officer’s subjective
motive. Whren v. United States, 517 U.S. 806, 810-13
(1996). Whren exemplifies the broader principle that courts
analyze searches and seizures based on what an objectively
reasonable officer could have believed and done, not what the
officers subjectively thought. In light of the Supreme Court’s
precedents, we cannot accept Washington’s invitation to
decide this case based on the officers’ actual subjective
motives. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (in
assessing validity of frisk, “it is imperative that the facts be
judged against an objective standard”); United States v.
Jackson, 415 F.3d 88, 91 (D.C. Cir. 2005) (“officers’ actual
motives for conducting the search are not relevant as long as
their actions were objectively reasonable”) (internal quotation
9
marks and alterations omitted); United States v. Holmes, 385
F.3d 786, 790 (D.C. Cir. 2004) (“The propriety of a search
under the Fourth Amendment depends on an objective
assessment of the officer’s actions in light of the facts and
circumstances confronting him at the time and not on the
officer’s own subjective intent in executing the search.”)
(internal quotation marks and citation omitted).
***
The police search of Washington’s car was reasonable
under the Fourth Amendment. We affirm the judgment of the
District Court.
So ordered.