Lead Opinion
Appellant Tyrone Jackson entered a conditional guilty plea to one count of possession with intent to distribute cocaine after police stopped his van for an apparent window tinting violation, searched the van, and found cocaine concealed in the horn of the steering wheel. Mr. Jackson argues, among other things, that the cocaine and other items found in the van should have been suppressed because the police searched his van without reasonable articulable suspicion that he was armed and dangerous. We agree with Mr. Jackson that the police did not have reasonable suspicion to believe they were dealing with a dangerous person, and that their search of the van thus violated the Fourth Amendment. We therefore reverse the trial court’s denial of Mr. Jackson’s motion to suppress.
I. Background
At the suppression hearing in this case, United States Park Police Officer Lando Norris testified that on March 17, 2010, at around 10:48 p.m., he was driving a marked police cruiser south on Minnesota Avenue in the southeast quadrant of Washington, D.C., when he noticed a white Chevrolet van with what he suspected was illegal window tinting stopped at a stop sign on 18th Street waiting to turn left onto Minnesota Avenue.
After the van turned onto Minnesota Avenue, Officer Norris activated the lights on his cruiser and the van pulled over immediately. A streetlight illuminated the area and provided “pretty fair lighting.” When the van came to a stop Officer Norris noticed that it “began to rock” and “there was a lot of shaking,” so instead of running the registration, he immediately
As he approached the vehicle’s door with his flashlight, Officer Norris could see inside the van and immediately noticed that a man — Tyrone Jackson — was sitting in the driver’s seat, and that “obviously they had switched seats because the female was no longer in the driver’s seat, she was now in the passenger seat.” Officer Norris also saw “a lot of movement,” “a commotion going on in the front dash area,” and “hands moving in the dash area.” He said he “was able to see [Mr. Jackson’s] hands” and that he saw “movement along the dash area” — “there were just unnecessary movements.” According to Officer Norris, “it wasn’t anything normal that you see on a traffic stop” and it was “something [he] hadn’t seen before or that [he was] not used to seeing.” He also stated that “a lot of people when they do a lot of movement around usually they start to place weapons or try to retrieve weapons or what have you.”
Officer Norris immediately opened the driver’s door to find that Mr. Jackson’s hands were “visible” and “in plain view” at “the bottom part of the steering wheel” and “resting down by his lap.” Officer Norris twice asked Mr. Jackson what he had been doing, to which he twice replied “nothing,” though Mr. Jackson was also “pretty forthcoming” in acknowledging that he and the woman had switched places after the officer stopped them because she was not licensed to drive. Officer Norris ordered Mr. Jackson to step out of the van “because of all the movement.” When he asked Mr. Jackson whether he had any weapons on him, Mr. Jackson responded no, and the officer found no weapons after Mr. Jackson agreed to be patted down. Mr. Jackson “had [a] nervous approach about him” and Officer Norris could “feel how hard [Mr. Jackson’s] heart was beating.”
By this point Officer Alton had arrived and Officer Norris briefed him. Officer Alton handcuffed the female passenger and had her sit on the sidewalk while Officer Norris handcuffed Mr. Jackson, placed him in the back seat of the cruiser, and told him he was not under arrest. Officer Alton then searched the front passenger compartment of the van for weapons and found a one-eighth-full bottle of gin under the van’s rear floorboard, a small hatchet beside the driver’s seat, and a couple of empty Ziploc bags. Officer Alton also removed the cover of the horn on the steering wheel after noticing that it looked out of position. There, he discovered numerous Ziploc bags containing a rock-like substance that subsequent testing indicated to be cocaine.
After determining that the window tinting was much darker than the legal limit in both the District of Columbia and Maryland, and that it allowed only 20 percent of the ambient light to be transmitted through the windows, Officer Norris issued Mr. Jackson a verbal warning for the violation. He determined only after police searched the van that although Mr. Jackson had a valid driver’s license and the van was registered to him, the registration for the van had expired.
In its ruling on the suppression motion, the trial court noted that the police indisputably had probable cause to stop the van based upon the tinting violation, and that the key question therefore was whether they had reasonable articulable suspicion to search the vehicle. In the court’s view, while the driver and passenger switching places “could heighten and did heighten [Officer Norris’s] suspicion,” it was “this
The court then went on to consider whether the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), nevertheless invalidated the search. Gant held that a warrantless search of a suspect’s vehicle incident to a lawful arrest was unreasonable under the Fourth Amendment where the suspect was handcuffed and secured in a patrol car. Id. at 344, 129 S.Ct. 1710. The trial court concluded that Gant did not render the search invalid here because, although Officer Norris could have arrested Mr. Jackson for driving an unregistered automobile, he had not yet determined that the van was unregistered at the time of the search. Thus, as Mr. Jackson was not under arrest when he was in the back of the cruiser, and as there was “a very distinct possibility that [he] would return to the car after the investigatory stop and regain access to the weapon,” police had the right under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), to conduct what amounted to a “pat down of the passenger compartment or those places where a suspect may gain immediate control of weapons.” The court also found that removing the horn was not outside the scope of such a search for weapons as “it’s about as reachable proximity as you can possibly get.” It therefore denied Mr. Jackson’s motion to suppress the evidence that was discovered during the search.
At the conclusion of the suppression hearing, Mr. Jackson entered a conditional plea to possession with intent to distribute cocaine, reserving his right to appeal the trial court’s denial of the suppression motion. This appeal followed.
II. Analysis
Mr. Jackson argues on appeal that the trial court should have suppressed the physical evidence found in his van because the police lacked reasonable suspicion to believe Mr. Jackson was dangerous and because the search also exceeded the allowable scope of a vehicle search for weapons under Michigan v. Long, supra. Mr. Jackson also argues that the Supreme Court’s decision in Arizona v. Gant, supra, precluded the search as Mr. Jackson was handcuffed in the back of a police cruiser and not within reaching distance of the passenger compartment at the time of the search.
We apply a de novo standard of review to the trial court’s conclusion that the search of Mr. Jackson’s van was justified by reasonable articulable suspicion. Turner v. United States, 623 A.2d 1170, 1171 (D.C.1993). In Michigan v. Long, the Supreme Court authorized what amounts to a Terry frisk of a vehicle’s passenger compartment during a lawful traffic stop, allowing a search for weapons on something less than probable cause where “the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” 463 U.S. at 1049-50, 103 S.Ct. 3469 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). To determine whether the police officer had a “particularized and objective basis” for his suspicion, we look at the “totality of the circumstances.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
Officer Norris testified that when he approached the driver’s side of Mr. Jackson’s van, he saw “hands moving in the dash area,” “a lot of movement within the front dash compartment area,” and a “commotion going on in the front dash area.” The trial court specifically credited his testimony “that he did see this movement towards the front dash” and concluded “that based on the motion, that certainly gave him a reasonable articula-ble suspicion that the defendant might be hiding or trying to retrieve contraband.” In our view, this gesture was not sufficient to arouse a reasonable fear in Officer Nelson that Mr. Jackson was presently dangerous, as there was nothing particularized about the gesture indicating he was hiding or retrieving a weapon.
Our view is consistent with other decisions of this court that have wrestled with the extent to which certain gestures by people in vehicles supported police officers’ reasonable belief that an occupant was armed and dangerous. While the totality of circumstances differs in every case, and other factors may tip the balance regardless of the nature of the particular gesture in a given case, our decisions involving so-called furtive gestures have generally drawn a distinction between conspicuous reaches under the seat and less distinct bending motions or movements toward the dash, the console, or the passenger seat. We have found a gesture to give rise to reasonable suspicion when a suspect is seen reaching down and appearing to place something under the seat, McGee v. United States, 270 A.2d 348, 349 (D.C.1970), “pulling something out of his belt and placing it under his seat,” United States v. Green, 465 F.2d 620, 623 (D.C.Cir.1972),
On the other hand, gestures have not tended to engender reasonable suspicion when a driver was “bent over” and “making movements towards the middle of the car, towards the dashboard,” Watts v. United States, 297 A.2d 790, 791, 793 (D.C.1972), where an officer observed the driver “bend or duck towards the passenger seat,” Powell, 649 A.2d at 1085, where a man in the front passenger seat got nervous and “was fumbling with something ... in the area of his seat,” Tyler v. United States, 302 A.2d 748, 749 (D.C.1973), or when a rear seat passenger moved his
We are not unheedful of Officer Norris’s testimony that he may have been somewhat worried about his safety as he approached the driver’s door and saw the movement around the dashboard. The trial court credited the officer’s testimony that “this movement towards the dash area” was “inconsistent with anything that he had seen on a traffic stop”
The importance of identifying a link between the nature of a particular gesture and a likelihood that the person making the gesture is armed was at issue in a D.C. Circuit case with marked similarities to the present case. United States v. Spinner, 475 F.3d 356 (D.C.Cir.2007), presented the question whether the police had reasonable suspicion to believe a man in a vehicle was armed based primarily upon the combination of his nervousness and a movement he made in which his body dipped toward the center console of the vehicle as if he were trying to get something or conceal something.
Officer Norris’s observation that the van was rocking when he pulled it over was the other factor besides the movement of Mr. Jackson’s hands on the dash that the trial court mentioned as having heightened the officer’s suspicion. It was undoubtedly no everyday occurrence for the officer to see a van “begin to rock and shake” as he pulled his cruiser up behind it, and as the trial court found, these facts would have raised, and did raise, Officer Norris’s suspicions. Officer Norris testified, however, that it was “obvious” to him right when he approached the van that the two occupants had traded places, and that Tyrone Jackson was “pretty forthcoming” in admitting they had. See Anderson v. United States, 658 A.2d 1036, 1038 (D.C.1995) (stating that “a person’s reaction to questioning” is a consideration in the reasonable suspicion analysis); cf. Terry v. Ohio, 392 U.S. at 28, 88 S.Ct. 1868 (noting that nothing in the suspects’ responses to an officer’s asking them their name served to dispel the officers’ reasonable fear that they were armed). The officer did not claim that this particular conduct gave him reason to think the occupants were armed, and his quick grasp of what had actually happened resolved any lingering confusion and presumably defused his suspicion in that regard. While an evaluation of reasonable suspicion “need not rule out the possibility of innocent conduct,” Arvizu, 534 U.S. at 277, 122 S.Ct. 744 — or nondan-gerous conduct, if not wholly innocent — we cannot ignore the reality that Officer Norris’s concerns about the rocking van were largely dispelled when he immediately saw that the occupants had switched places and understood why the van had been rocking. Given these circumstances, and given that there is nothing about people switching places in a car that inherently suggests these people are armed and dangerous, we do not view this factor as meaningfully reinforcing the lawfulness of the search for weapons under Terry.
Having concluded that the two factors upon which the trial judge primarily relied did not give rise to the officers’ reasonable articulable suspicion, we next consider the
It is beyond question that police officers face untold dangers when they conduct traffic stops. Our task, however, is to evaluate the individualized articulable facts supporting reasonable suspicion in this case, and we would fail in that task if we were to quote Stanfield’s unbridled language and perfunctorily conclude that the van’s window tinting gave rise to reasonable suspicion in this case without checking that impulse against the facts of this case. As noted above, the testimony at the hearing suggested that Officer Norris’s suspicion was not exacerbated by the window tinting.
It is worth noting that even if the window tinting would have supported a reasonably prudent officer’s belief that he was dealing with an armed suspect, here Officer Norris did exactly what the Stanfield court authorized police to do to nullify the risk whenever officers approach a vehicle with “windows so heavily tinted that they are unable to view the interior of the stopped vehicle.” Stanfield, 109 F.3d at 981. That is, they may “open at least one of the vehicle’s doors and, without crossing the plane of the vehicle, visually inspect its interior,” id. — something the Stanfield court acknowledged “obviously ... interfered less with Stanfield’s privacy interest than would have a complete search of the vehicle’s interior permitted under Long," id. at 988. Though Officer Norris took this step and opened the driver’s door, the facts of this ease do not establish that the tinting was a meaningful factor justifying his decision not only to open the door, but to “cross[ ] the plane” of the van and conduct a Terry search of the vehicle’s interi- or.
That a stop occurred in a high crime neighborhood is “among the relevant contextual considerations in a Terry analysis.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). So is “nervous, evasive behavior,” id. at 124, 120 S.Ct. 673, and the lateness of the hour at which the stop occurred, Umanzor v. United States, 803 A.2d 983, 993-94 (D.C.2002). The trial court reiterated this evidence in its findings but did not specifically rely on these factors in ruling that the police had reasonable suspicion to believe Mr. Jackson was dangerous. Considered in light of “the whole picture” of this case, United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), we do not find these facts sufficiently remarkable to justify the search of the van. “Although furtive movements of a suspect when combined with other significant factors may warrant further investigation or even a search,” we discern “very few artic-ulable facts here” indicating that the occupants of the van might gain immediate control of weapons. See Tyler v. United States, 302 A.2d 748, 749 (D.C.1973) (citation and internal quotation marks omitted).
The stop in this case lacked many of the hallmarks of a particularly dangerous situation. The offense for which the officer stopped the van — illegal window tinting— was a minor one that prompted Officer Nelson to give Mr. Jackson only a verbal warning and to explain the law to him. See, e.g., Powell, 649 A.2d at 1089 (“[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.”); Powell, 649 A.2d at 1091 (Farrell, J., concurring) (the absence of evidence of “some graver offense” than a traffic violation undercut argument that appellant’s bending or reaching movement created reasonable suspicion). From the outset and throughout the incident, the occupants of the car cooperated with the police. The van pulled over promptly at the first indication of a stop. Cf. James, 829 A.2d at 969 (noting that “appellant further aroused suspicion by failing to stop and pull over immediately when the officer turned on his emergency lights.”). When Officer Norris opened the door Mr. Jackson held his hands in his lap, empty and visible to the officer.
III. Conclusion
We hold that the totality of the circumstances in this case does not establish reasonable articulable suspicion to believe Mr. Jackson was armed and dangerous.
. Officer Norris testified that he had made narcotics arrests in that area in the past.
. This court has stated with respect to the D.C. Circuit's opinion in Green that "it is fair to say that we adopted its holding as part of our case law” when we relied upon it in United States v. Thomas, 314 A.2d 464, 469 (D.C.1974). See James v. United States, 829 A.2d 963, 964, 967 (D.C.2003).
. Although the officer testified that the motion he observed was “something [he] hadn't seen before or that [he was] not used to seeing,” he also stated that "a lot of people when they do a lot of movement around usually they start to place weapons or try to retrieve weapons or what have you.”
. The fuller view of what happened in Spinner was that police officers pulled into an alley in an area where there had been several recent drug arrests and saw Spinner walking toward a parked Chevy Tahoe. Id. at 357. Spinner opened the back driver’s side door and got into the back seat, and when police told him he had to move the truck, "he kept eye contact but his body dipped, the right side of his body dipped towards the center of the back of the vehicle” and he appeared to be "struggling with something or trying to conceal something.” Id. Spinner, who appeared nervous, denied having a weapon on him, consented to a frisk of his person, but denied consent to search the vehicle. Id. Believing that Spinner had placed something in the center console, police searched the area and found a handgun. Id.
. The government also did not rely greatly upon the window tinting in support of its contention at the suppression hearing that the search was justified by reasonable suspicion. The "specific articulable facts” that the prosecutor highlighted as justifying a "limited protective search” of the vehicle were "mainly the rocking motions inside the vehicle, the sudden switched positions of people in the car and then this frantic moving of the hands around the area where the drugs were ultimately found.”
. The court in Stanfield also explicitly acknowledged that people can sometimes see through even heavily tinted windows depend
. See Powell, 649 A.2d at 1091 (Farrell, J., concurring) (according significance to the fact that by the time police ordered appellant out of the car to conduct a Terry frisk, "his hands were visible to them” as he handed over registration documents).
. Because we conclude that the search was invalid on the ground that police lacked reasonable suspicion to believe the vehicle's occupants were dangerous, we need not reach Mr. Jackson’s alternative challenges to the search — first, that it ran afoul of Arizona v. Gant because Mr. Jackson was handcuffed in the back of a police cruiser and presented no danger to police at the time of the search, and second, that it was invalid because it exceeded the allowable scope of a search for weapons.
Dissenting Opinion
dissenting:
This case raises troubling issues regarding measures a police officer may take to protect his or her life and safety during a traffic stop. We recognize in considering this issue that no matter how laudable the goal of any law enforcement effort may be, it must be conducted in a manner consistent with the liberties of our people guaranteed by the Constitution. I disagree with the majority opinion’s analysis of whether the officer’s conduct was “reasonable” because the analysis gives too little weight to the safety and life of the investigating officer.
A restatement of the facts will assist in understanding why appellant’s conviction should be affirmed. At approximately 10:48 p.m., Officer Norris observed appellant’s van turn in front of him in a “high-drug area” with which he was “[v]ery familiar.” Officer Norris saw, through the front windshield, a female in the driver’s seat and at the same time suspected that the van was operating with illegally tinted windows. The front driver’s side window, as distinguished from the front windshield, was later found to be heavily tinted, to a degree illegal under the laws of both the District of Columbia and Maryland. That tinted window admitted only 20 percent of the ambient light, while under the law of the District of Columbia, the windows were required to transmit 70 percent, and under the laws of Maryland 35 percent, of the ambient light. See D.C.Code § 50-2207.02 (2001) formerly D.C.Code § 40-718.1 (1981); M.D.Code Ann., Transp. § 22-406(i) (West 2012). The relative opacity of the vehicle’s windows significantly affected the ensuing investigation.
Officer Norris activated his emergency lights, the van stopped, and Officer Norris pulled up behind it. As Officer Norris began to run the van’s plates, “the van began to rock, [and] there was a lot of shaking with[in] the van.” Officer Norris could not see inside the van through its back window, and for that reason immediately approached to investigate. Officer
As he walked toward the van, Officer Norris was able to see a male in the driver’s seat, whom he identified at trial as appellant. Officer Norris used his flashlight to see inside the car and at that point it appeared “obvious” to Officer Norris that appellant had switched seats with the female driver. Officer Norris shined his flashlight through the driver’s side window, and saw “a lot of movement” within the front dashboard and console area. Because of the window’s tint, Officer Norris could only “see [appellant’s] hands moving in the dash area” and “a commotion going on.” “With the window tint being what they were,” he could not see the “exact spot” where appellant was placing his hands, nor could he see the “steering wheel area” well enough to determine whether appellant’s hands were in that area. Officer Norris testified that appellant’s movements in “the front driver’s compartment area was something [he] hadn’t seen before [and was] not us[ed] to seeing,” unlike the typical movements to obtain a driver’s license or registration. In Officer Norris’s experience, “a lot of people when they do a lot of movement around usually they start to place weapons or they retrieve weapons ...” Officer Norris said his “issue was weapon and get [appellant] out of his comfort zone for my safety.”
Concerned as he was that appellant might have a weapon, Officer Norris “immediately opened the [driver’s side] door” to find appellant’s hands were at “the bottom part of the steering wheel,” where Officer Norris had been unable to see through the tinted windows. Officer Norris twice asked appellant what he was doing, one time specifically asking “what did you just do, what did you just put right there?” Appellant responded, “nothing.” Officer Norris explained that he opened appellant’s door to “see what was going on” and to “see what [appellant had] in his hands.” Officer Norris reasoned that he “wasn’t gonna give [appellant] enough time to get out a weapon, load it and point it at [him].” Therefore, Officer Norris ordered appellant out of the van.
Officer Norris told appellant that he had seen the female driving, and asked him why they switched seats. It was only then that appellant admitted that the female had been driving, and told Officer Norris that she did not have a driver’s license. Appellant then consented to a pat-down of his body for weapons, and none were found. During the pat-down, Officer Norris observed appellant had a “nervous demeanor,” felt his heart beat quickly, and noticed his heavy breathing.
After the pat-down, Officer Norris handcuffed appellant and “detained” him in the police cruiser, but informed him that he was not under arrest. Officer Norris explained that he did so “for [his] safety, not knowing what they had or what was going on” and because he was initially the only officer at the scene. Officer William Alton then arrived at the scene to assist. He secured the female passenger by removing her from the van and having her sit, handcuffed, on the sidewalk. Officer Norris then stood with the female passenger, and directed Officer Alton to check the front passenger compartment “just to make sure there [were] no weapons there.” As Officer Alton was looking around the front part of the van, he noticed that the van’s horn cover appeared removable. It was “dispositioned” and looked like it had been “shifted.” Officer Alton removed the horn cover, which came up quite easily, and in the airbag compartment beneath it found three large Ziploc bags, two of which con
After Officer Norris placed appellant under arrest for, among other things, possession with intent to distribute cocaine, he measured the tint of the van’s front windows with a tint meter. As explained above, the reading was 20 percent. He also determined that the van’s registration had expired. Officer Norris gave appellant a verbal warning about the tint after he was arrested for the registration violation. Officer Norris explained at the hearing that, although appellant was subject to arrest, and in fact was arrested, for driving an unregistered vehicle, driving an automobile with illegally tinted windows did not furnish grounds to arrest. Therefore, until he ascertained that the registration had expired, he lacked a basis to arrest appellant.
Officer Norris was the only witness to testify. The trial court credited his testimony that he saw the van “shaking back and forth” when it stopped. The trial court further credited the officer’s testimony that, upon walking to the van, he noticed that appellant had switched seats with the female driver, which the trial court concluded “certainly could heighten [Officer Norris’] suspicion.” Additionally, the court credited Officer Norris’ testimony that he saw movement in the dash area. Finally, the trial court credited Officer Norris’ testimony that the movement was “inconsistent with anything that he had seen on a traffic stop,” and that the movement “gave him concern about his own safety and the fact that [appellant] might be trying to retrieve a weapon.”
The trial court determined that the controlling precedent for this case is Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and rejected appellant’s arguments that this case falls under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The trial court accordingly found that the officer “had the right to conduct a limited search [for weapons] of the areas that appellant could reach.” The trial court reasoned that there was “a very distinct possibility” that appellant would return to the car after the investigatory stop and regain access to a weapon. The court found, moreover, that the horn cover was “immediately in front of the dash” and “about as reachable [in proximity to appellant] as you can possibly get.” The trial court concluded that Officer Norris was “entitled to do the search,” and that the search was “reasonable” under Long.
I disagree with the majority that the foregoing facts, viewed in their totality, did not afford Officer Norris a reasonable and articulable basis to search (or “frisk”) the passenger compartment of appellant’s van for weapons. Therefore, appellant’s convictions should be affirmed.
A.
Appellant argues that “the only basis for finding that Mr. Jackson was dangerous was the so-called ‘furtive movements.’ The trial court thus erred in finding that Officer Norris had a reasonable suspicion to believe that Mr. Johnson was dangerous.” To the contrary, the record supports the trial court’s ruling that the totality of the circumstances gave Officer Norris a reasonable articulable suspicion
Instead of engaging in “library analysis by scholars,” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), we are charged with viewing the circumstances “through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.” Peay v. United States, 597 A.2d 1318, 1322 (D.C.1991) (en banc) (citation omitted). The Supreme Court’s “cases have recognized that a police officer may draw upon inferences based on his own experience in deciding whether probable cause exists.” Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (citation omitted). “[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id. at 699, 116 S.Ct. 1657. “The [trial] court’s legal conclusions on Fourth Amendment issues ... ‘are subject to de novo review.’ ” Joseph v. United States, 926 A.2d 1156, 1160 (D.C.2007) (quoting Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991)). In conducting our review, however, “[w]e must defer to the [trial] court’s findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling [of the trial court].” Id. Here we review a ruling that the officer had reasonable articulable suspicion, that is, “more than a mere ‘hunch’ or ‘gut feeling’ ” but “substantially less than probable cause” to believe that appellant was attempting to hide or retrieve a weapon. Bennett v. United States, 26 A.3d 745, 751 (2011) (quoting James v. United States, 829 A.2d 963, 966 (D.C.2003) (citation and internal quotation marks omitted)).
When Officer Norris stopped appellant’s van late at night, it was being operated with deeply and illegally tinted windows in a “high drug” area. When the van pulled over, Officer Norris immediately saw it rock and shake abnormally. As Officer Norris approached the van, he realized that appellant had switched seats with the female passenger, whom he had earlier observed driving the vehicle.
The majority concludes that, “notwithstanding the officer’s testimony, the movement he described — ‘hands moving in the dash area’ — did not give him particularized objective grounds for believing [appellant] was moving his hands on the dashboard to retrieve a gun.” The majority’s analysis is skewed. It does not give adequate weight to the perception of the experienced police officer that the unusual and continuous motion of the appellant’s hands could have indicated that he was trying to hide or retrieve something, possibly a weapon. Furthermore, it discounts the fact that the motion was partially obscured by the illegally tinted windows, does not consider the availability of various compartments, recesses, or alcoves commonly available to hide weapons in the front compartment of vehicles, and gives little weight to the lateness of the hour or the high drug area in which the events occurred. As developed here, a full consideration of the totality of the circumstances should result in affir-mance.
I also disagree with the approach taken by the majority opinion in analyzing appellant’s movements and role of tinted window in reasonable suspicion analysis. The majority’s analysis of the reasonableness of the officer’s actions is unduly restrictive. Although it recognizes, as it must, that the totality of the circumstances may differ in every case and other factors may tip the balance regardless of the nature of the particular gestures in a given case, the analysis relies heavily on the proposition that “our decisions involving so-called furtive gestures have generally drawn a distinction between conspicuous reaches under the seat and less distinct bending motions or movements toward the dash, the console or the passenger seat.” The opinion goes on to cite three cases in which this court (or the D.C. Circuit) has found a gesture to give rise to a reasonable suspicion, in all of which a suspect is seen reaching down and appearing to place something under the seat.
While the record does not set forth the size of the particular compartment appellant used, the photograph included in the record makes it appear sufficiently capacious to hold at least a small firearm. In a recent case, not involving suppression, decided by the D.C. Circuit, “the agents found a semi-automatic pistol loaded with fifteen rounds of ammunition hidden near the car’s steering wheel, as well as a bag containing $4,037 in cash.” United States v. Dozier, 162 F.3d 120, 121 (1998). Many other cases identify hiding places in the front of a vehicle other than the space beneath the front seat. Although most of these cases do not involve suppression issues, they illustrate the wide variety of locations within vehicles where weapons have been hidden. See e.g. United States v. Beard, 354 F.3d 691, 692 (7th Cir.2004) (during search of car, police found “a loaded derringer in the closed center console of the front seat, hidden under some papers”); United States v. Cherry, 8 Fed.Appx. 420, 421 (6th Cir.2001) (“Hidden under a plastic cover at approximately the point where the steering column emerged through the dash, officers uncovered a small semi-automatic pistol containing six rounds of .380 caliber ammunition.”); United States v. Taylor, 162 F.3d 12, 17 (1st Cir.1998) (with probable cause to search for narcotics, an officer “looked into the driver’s side area of the sunroof compartment and found a ski cap wrapped around a loaded .45 caliber automatic pistol with an extra ammunition clip”); United States v. Sample, 136 F.3d 562, 563 (8th Cir.1998) (handguns found behind detachable dashboard); United States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir.1989) (during inventory search, officer located a “.25 caliber handgun behind a potato chip bag in an open dashboard compartment on the driver’s side of the car; the open compartment was inches from the steering wheel, within an effortless reach of [the defendant]”); Delatorre v. State, 903 N.E.2d 506, 507 (Ind.Ct.App.2009) (gun in the compartment of the driver’s side door); People v. Sandoval, No. B198105, 2008 WL 638391, at *1 (Cal.Ct.App. Mar. 11, 2008) (unpublished), review denied May 21, 2008 (searching vehicle with the defendant’s consent, officers “discovered a compartment at the base of the steering column” which held, inter alia, drugs and “a loaded handgun”); Robinson v. State, 22 S.W.3d 631, 634 (Tex.App.2000) (after traffic stop, officer observed drugs in the car; later search of “the console of the car” which “had a compartment below the gearshift” revealed “two guns” and “crack cocaine”); State v. Nebbitt, 713 S.W.2d 49, 50 (Mo.Ct.App.1986) (after observing defendant appearing to hide something, officer pulled “a piece of felt with a cardboard backing hanging down from under the glove compartment” and “a loaded pistol fell to the floor.” Subsequent search, “which included removing a section of the dashboard, revealed two other loaded pistols”); Roy v. State, 552 S.W.2d 827, 829 (Tex.Crim.App.1977), partially overruled on non-search related grounds by Johnson v. State, 650 S.W.2d 414 (Tex.Crim.App.1983) (after ar
In addition, the majority opinion does not give adequate weight to the role that the illegally tinted windows played in this traffic stop. Illegally tinted windows obscure the occupants of a vehicle and their movements. Courts have taken notice of the fact that these windows conceal threats to officer safety and therefore can heighten an officer’s reasonable suspicion. For example, Judge Garland of the D.C. Circuit observed in a case before that court where “the windows of the black Cadillac were darkly tinted preventing the officers from having a clear view of the car’s occupants,” that “[t]his fact magnified the danger of approaching unknown individuals inside an automobile.” United States v. Brawn, 334 F.3d 1161, 1169 (D.C.Cir.2003). The court went on to note that “the tinting made it impossible to know whether one of the occupants was reaching for a weapon ... or otherwise acting to endanger the officers’ safety.” Id.
A recent Pennsylvania decision regarding facts remarkably similar to those before us also illustrates this point. In Commonwealth v. Murray, 936 A.2d 76 (Pa.Super.Ct.2007), the appellate court reviewed the denial of a motion to suppress a Glock .40 caliber handgun found in the armrest immediately to appellant’s right and seized after appellant’s vehicle was stopped at night in “a high narcotics area.” Id. at 79. “Due to the tinted windows, [the officer] could not ‘actually see what [appellant] was doing1 but was able to discern ‘a lot of movement in the vehicle.’ ” Id. (internal citation omitted). The court held that the officer had “articulated sufficient facts to lead him to properly conclude that [appellant] could have been armed and dangerous.” Id. at 80. “Specifically, the knowledge of the neighborhood being a well-known narcotics area, when coupled with the excessive movement inside the vehicle and hour of night, raised serious and obvious safety concerns that justified a search for weapons.” Id. (citations omitted). The foregoing language describes the case before us almost precisely — but for the additionally suspicious conduct element here of the unusual rocking of the van after Officer Norris pulled it over. The court should reach the same result in this case as did the Murray court on virtually identical facts.
As this court recognized in United States v. Mason, 450 A.2d 464, 466 (D.C.1982), “[t]he protection of the officer making the stop and of innocent bystanders, is of paramount importance. It has been called the rationale of Terry.” (citations omitted). The Supreme Court has recognized that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Michigan v. Long, supra, 463 U.S. at 1047, 103 S.Ct. 3469. While our opinions may deal in the abstract concerning danger to officers approaching a stopped vehicle, the realities on the street are harsh. From 2001 through 2010, 62 law enforcement officers were feloniously killed in this country during traffic stops. Thirty-three of these killings took the lives of officers as they were “approaching offenders,” 12 while the officers were still in the patrol unit, 8 while they were interviewing offenders at the offender’s vehicle, 3 outside the offender’s vehicle, and the balance during other aspects of the investigation at the scene of the stopped vehicle. Federal Bureau of Investigation, Uniform Crime
The majority opinion recognizes that “it is beyond question that police officers face untold dangers when they conduct traffic stops.” It goes on to warn against “perfunctorily concludfing] that the van’s window tinting gave rise to reasonable suspicion without checking that impulse against the facts of this case.” Precisely so. It is on the basis of all the relevant facts, realistically evaluated and seen through the eyes of the experienced officer on the scene, that the search of the appellant’s vehicle, and in particular the area near his unusual and continuous hand movement, should be evaluated. It is unrealistic to discount, to any degree, either the danger to an investigating officer, or the officer’s ability to perceive that what is going on behind the tinted windows is unusual and warrants great caution, merely because there is no “conspicuous reach under the seat.”
Upon considering the deference we should give to the officer’s appraisal of the significance of the unusual and continued movements of the appellant’s hands as the officer approached, the availability of hiding places for weapons in the dash area of a vehicle, the danger to the safety of the officer as he approached a vehicle with deeply and illegally tinted windows and the prescription that “[i]n reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling,” Peay, supra, 597 A.2d at 1320, the judgment on appeal should be affirmed.
B.
As I would affirm, I must address appellant’s argument that even if reasonable
Gant held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, supra, 556 U.S. at 351, 129 S.Ct. 1710. Gant, however, did not change the law applicable to protective searches under Terry and Long. Indeed, the court noted in Gant “[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.” Id. at 346, 129 S.Ct. 1710. The court specifically identified Long as an exception that “permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is dangerous and might access the vehicle to gain immediate control of weapons.” Id. at 346, 129 S.Ct. 1710 (quotation marks and citations omitted); see also id. at 352, 129 S.Ct. 1710 (Scalia, J., concurring) (“Where no arrest is made ... officers may search the car if they reasonably believe ‘the suspect is dangerous and ... may gain immediate control of weapons.’ ” (quoting Long, supra, 463 U.S. at 1049, 103 S.Ct. 3469)).
While appellant is correct that he was secured and “unable to access the van at the time of the search,” he would have eventually been allowed to return to the van, because the tint infraction was not an arrestable offense, and he could have then retrieved a weapon from the vehicle. Appellant nonetheless argues that focusing on the “detainee’s formal arrest status rather than his secured status, provides police an outright invitation to evade Gant’s limits on their search powers because they can exercise their discretion to not arrest an individual where probable cause exists, place him in custody so as to deny him immediate access to the vehicle and thereupon search his vehicle.” The point here is different. The police were not in a position to exercise discretion whether or not to arrest appellant. They had no basis on which to arrest him as of the time of the search: “[i]n the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.” Id. at 352, 129 S.Ct. 1710 (Scalia, J., concurring) (emphasis added).
This case remained a no-arrest case until the officer ran the vehicle’s tag numbers after the Terry search of the vehicle. For those reasons, “the officers did not act unreasonably in taking preventive measures to ensure that there were no ... weapons within [appellant’s] immediate grasp ...” Long, supra, 463 U.S. at 1051, 103 S.Ct. 3469; see also United States v. Vinton, 594 F.3d 14, 20 (D.C.Cir.2010) (declining to expand Gant to officer’s initial protective search and noting that Gant specifically limited its holding to the search-incident-to-arrest context; finding that officer’s safety concerns were not “abated by ordering [the defendant] out of the car and handcuffing him, because had [the defendant] ultimately not been arrested, he would have been ‘permitted to reen
Accordingly, I would affirm the trial court’s decision to deny appellant’s motion to suppress and affirm the judgment on appeal.
. I do not suggest that my colleagues intend to undervalue this factor, but I point out that such undervaluation inheres in the majority opinion's analysis.
. The trial court did not indicate that there was any aspect of the officer’s testimony that it discredited.
. The trial court initially said "contraband,” not "weapon,” but later stated that the officer was "clearly searching [for] a weapon.”
. The majority opinion states that appellant’s admission that he and the female passenger switched seats and the officer’s quick grasp of what happened "presumably defused his suspicion.” The testimony of Officer Norris concerning his suspicion about appellant’s behavior is entirely inconsistent with that presumption.
. Appellant cites Tyler v. United States, 302 A.2d 748 (D.C.1973) and United States v. Page, 298 A.2d 233 (D.C.1972) to support his proposition that his furtive gestures alone did not ”give[l] rise to a finding of reasonable suspicion justifying a search of a vehicle compartment.” While furtive gestures alone will not normally justify a search, Officer Norris's search was based on a reasonable articulable suspicion that appellant might be armed and dangerous based on not only furtive gestures but the totality of the circumstances.
. James v. United States, supra, 829 A.2d 963; McGee v. United States, 270 A.2d 348 (D.C.1970); United States v. Green, 465 F.2d 620 (D.C.Cir.1972). On this point the opinion also cites In re D.E.W., 612 A.2d 194, 195 (D.C.1992), a case that does not involve the search of a car, but rather the search of a person who acted suspiciously while seated in a car, and thus is not relevant to this case.
. The majority opinion places considerable reliance on United States v. Spinner, 475 F.3d 356 (D.C.Cir.2007), stating that it "presented the question whether the police had a reasonable suspicion to believe a man in a vehicle was armed based primarily upon the combination of his nervousness and a movement he made in which his body dipped toward the center console of the vehicle as if he were trying to get or conceal something.” . The facts in Spinner are so dissimilar to those before us that the opinion provides no guidance. Two officers, rather than one as here, approached a parked' vehicle after seeing Spinner walk up to it and sit in the back seat. There was no indication that the police were looking through tinted windows, or that the events occurred at night. Spinner’s motions were clearly visible to the two officers and gave at most an equivocal indication that he might be dangerous and might gain immediate control of a weapon.
. The Supreme Court has stated that de novo review by appellate courts of cases involving reasonable suspicion and probable cause “tends to unify precedent and will come closer to providing law enforcement officers with a defined ‘set of rules' ” to enable them to determine in advance whether an invasion of privacy is justified. Ornelas, supra, 517 U.S. at 697, 116 S.Ct. 1657 (quoting New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)). The majority opinion’s narrow view of what an officer may reasonably do in circumstances like those before us can be expected to influence police training and conduct in connection with situations where police officers making a traffic stop perceive that they are in danger, and to do so in a way that will cause officers to forgo searches that they consider reasonable.
. Appellant also argues that "the search exceeded the scope permitted by Long," because the investigating officer "spent several minutes searching [his] van before [the officer] found the cocaine” and the officer "effectively removed compartments from the interior of the van, including the steering wheel, before he found the cocaine.” Appellant’s argument is without merit. Here, the trial court credited the officer’s testimony that appellant’s steering-wheel horn cover appeared "disposi-tioned” and was easily removed. Moreover, the trial court received into evidence photographs showing the interior of appellant’s van, including the open and closed sizable horn cover and the substantial air-bag compartment beneath it where the drugs were found. Using those photographs, the trial court found that the steering wheel was "immediately in front of the dash” (where appellant was observed moving his hands in a manner that was consistent with placing or retrieving a weapon) and “about as reachable [in proximity to appellant] as you can possibly get.” It is of no consequence that the second officer on the scene did not focus immediately on the steering wheel area after Officer Norris told him to search the passenger area for weapons.