STREET CRIME POLICE UNITS
Traffic Stops, High Crime Areas, Furtive Movements and Vehicle Searches
by Brian S. Batterton, J.D.
On March 27, 2009, the Court of Appeals for the District of Columbia decided the United States v. Washingtoni which serves as an excellent criminal procedure review for “street crime” police units. In this case, the District of Columbia High Impact Tactical police team, a unit that operates in high crime areas, was on patrol in a neighborhood in southeast Washington, D.C. This neighborhood is known for narcotics trafficking, shootings, and homicides. The unit’s goal was to use traffic violations as a reason to initiate citizen contact and then investigate whether the vehicle occupants are involved in other criminal activity.
At 9:30 p.m. a member of the High Impact Tactical team observed Carroll Washington run a stop sign in violation of traffic code. This officer radioed to other officers and Officer’s Dailey and Teixeira conducted a traffic stop on Washington. Officer Dailey approached the driver’s side window and observed Washington talking on his cell phone. The officer told Washington to hang up and he did so, placing his phone in the passenger seat. Washington appeared extremely nervous, was sweating profusely and repeatedly looked over his right shoulder at Officer Teixeira, who was standing on the passenger side of the car.
Officer Dailey returned to his police vehicle to run a license and registration check on Washington and his vehicle. As Officer Dailey was in his police vehicle, Officer Teixeira observed Washington reach under his seat and make a motion by his feet in the floorboard. When Officer Dailey returned to Washington, he asked him what he was doing when he reached under the seat. Washington claimed that he had dropped his cell phone and bent over to pick it up. The officers believed this to be false because they had earlier seen him put the phone on the passenger seat.
At this point, the officers had Washington exit his vehicle and they conducted a limited search for weapons (a/k/a a “vehicle frisk”). They found a loaded gun under the driver’s seat. They then searched Washington’s person incident to his arrest for the concealed weapon and they discovered $ 6,840 in cash. A more extensive search of the car revealed 795 pills of Ecstasy.
Washington was convicted of possession of a firearm and ammunition by a convicted felon and possession with intent to distribute Ecstasy in violation of federal law. He appealed the District Court’s denial of his motion to suppress.
On appeal, Washington argued that (1) the officers violated the Fourth Amendment when they first searched his car, (2) the officer’s basis for the stop ended before the officers searched his car, and (3) the officers who stopped him conducted a constitutionally impermissible “pre-textual” stop. Any of these, Washington contends, should amount to a suppression of the evidence seized from his car and person.
Did officers violate the Fourth Amendment when they searched Washington’s car for weapons?
The Court of Appeals reviewed several United States Supreme Court cases regarding this issue. First, in Pennsylvania v. Mimms, the Supreme Court held that officers may order a driver out of his car on a traffic stop.ii Further, in Michigan v. Long, the Supreme Court held that police may frisk a driver and search his car when officers possess or develop a reasonable belief based on specific and articulable facts which, when 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.iii
The Supreme Court, in Michigan v. Long, further explained that the reasonableness of a frisk and car weapons search during a traffic stop hinges 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.”iv
The D.C. Court of Appeals then examined the factors that the officers articulated in justifying the initial weapons search of Washington’s vehicle. The relevant factors were as follows: (1) Officer Teixeira saw Washington reach under his seat, which could have meant he was either retrieving or hiding a weapon; (2) Washington’s apparently false explanation of his reaching movement, particularly that he dropped his cell phone; (3) Washington was extremely nervous during the stop, sweating profusely and looking around; and (4) the stop occurred in a high crime neighborhood, known for drugs, guns and violence.
In looking at the first factor, the court noted that a person’s furtive movements may rise to “reasonable suspicion” sufficient to justify a limited search intended to discover weapons.v As to the second factor, the false explanation for reaching under the seat, the court stated that this further increased the officer’s suspicion that Washington may have a weapon.vi Lastly, the third factor of extreme nervousness and the fourth factor, particular the high crime nature of the neighborhood, also weighed in favor of the reasonableness of the officer’s belief that Washington may be armed and dangerous.
Therefore, the court held that the totality of the circumstances, based on these factors, justified the limited search for weapons, thus, gun and ammunition were properly admissible. It is important to note that the court stated that all of these factors need not be present to rise to the level of reasonable suspicion sufficient to justify a limited weapons search of the vehicle; however, the court did not speculate what factor was not necessary.
Did the officers impermissibly detain Washington after they learned that his driver’s license and registration were valid?
Washington contended, on appeal, that because the officers searched his car after they learned that his license and registration were valid, the justification for the stop had ceased. Therefore, he was searched subject to an unlawful detention. To this, the court noted that recently, in Arizona v. Johnson, the United States Supreme Court stated “Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.”vii Here, Washington made the furtive movement while Officer Dailey conducted the driver’s license and registration check. The officers were allowed to inquire as to this movement for their safety because they developed reasonable suspicion to believe Washington was armed and dangerous. Therefore, this argument was without merit and the limited search for weapons was permissible. [Authors note: An officer should be careful not to exceed the scope of the traffic stop by impermissibly extending the duration of the stop longer than reasonably necessary to satisfy the officer’s reasonable suspicion. However, as noted by the Supreme Court in Arizona v. Johnson, an officer's inquiries into matters unrelated to the justification for the traffic stop...do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.viii]
Did the officer’s subjective intent of crime interdiction, rather than traffic enforcement, render the stop constitutionally impermissible?
Lastly, Washington contends that the officers made an impermissible “pre-textual” stop, meaning that although the officers stopped Washington for running a stop sign, they were really interested in investigating other crimes, such as drugs and guns. In fact, he notes that Officers Dailey and Teixeira were not even using ticket books to issue traffic tickets. In court, Officer Teixeira testified that they were performing an “aggressive traffic patrol” looking for “moving violations, tag violations, and reasons to pull vehicles over” because “that’s normally how we get a lot of our narcotics and gun arrests.”ix However, the D.C. Court of Appeals noted that, in Whren v. the United States, the Supreme Court held that an officer who possesses an objective basis to stop a motorist for a suspected traffic violation may do so even if the officer has a subjective motive.x Thus, a traffic stop is reasonable if any officer could have made the stop based on the traffic offense (an objective basis), even if the officer has an ulterior motive, such as crime interdiction. Thus, Washington’s final argument failed.
In conclusion, the Court of Appeals held that the stop and search of Washington’s vehicle was reasonable under the Fourth Amendment.
i No. 06-3093, 2009 U.S. App. LEXIS 6413 (D.C. Cir. 2009)
ii 434 U.S. 106, 111 n.6 (1977)(see also Maryland v. Wilson, 519 U.S. 408, 413 n.1 (1997) holding officers may order passengers out of a car during a traffic stop.)
iii Michigan v. Long, 463 U.S. 1032, 1049-50 (1983)
v Washington, No. 06-3093 at 7
vii 129 S. Ct. 781, 788 (2009)
ix Washington, No. 06-3093 at 11
x 517 U.S. 806, 810-13 (1996)