United States v. Brown, Rocky

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 10, 2003 Decided July 22, 2003

No. 02-3021

UNITED STATES OF AMERICA,

APPELLEE

v.

ROCKY LEE BROWN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00272-01)

A.J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant.

Lisa H. Schertler, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Roscoe C.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Howard, Jr., U.S. Attorney, and John R. Fisher and Eliza-

beth Trosman, Assistant U.S. Attorneys.

Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

Dissenting opinion filed by Circuit Judge ROGERS.

GARLAND, Circuit Judge: Defendant Rocky Lee Brown

submitted a conditional guilty plea to the charge of unlawful

possession of a firearm and ammunition by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). Police found guns and

ammunition in a parked car in which Brown was sitting. The

defendant now appeals from the district court’s denial of his

motion to suppress that evidence, contending that the police

twice violated his Fourth Amendment rights: first, by open-

ing the car’s door; and second, by searching its trunk. We

reject Brown’s arguments and affirm the judgment of the

district court.

I

At approximately 1:45 a.m. on April 14, 2001, Officers

Joshua Branson and Michael Bryant of the Metropolitan

Police Department arrived at an apartment building in Wash-

ington, D.C., in response to a citizen’s call to the police. The

citizen, Sharron Peterson, had reported that there had been a

fight in the adjacent parking lot, that shots had been fired,

and that a bullet had shattered the window of her child’s

bedroom while the child was sleeping. The officers knew the

neighborhood to be the site of ‘‘a lot of drug activity’’ as well

as ‘‘several shootings and several homicides’’ that year. Sup-

pression Hr’g Tr., App. at 42.

When the officers arrived at Peterson’s building, she point-

ed out a white Cadillac that was sitting in the parking lot.

She told the officers that after hearing the gunshots, her

sister — who, unlike Peterson herself, had been in the

apartment at the time — opened the blinds and saw the men

in the car looking up at her. The officers went to the parking

lot, which was partially illuminated by street lights, and asked

3

the two men inside the white car to step outside. They then

questioned the men for about half an hour.

While the officers were talking to the occupants of the

white Cadillac, they noticed a black Cadillac, which was the

only other occupied car in the lot, parked fifteen to twenty

feet away. Officer Bryant watched as a man got out of the

driver’s seat of the black car. The man approached the

officers and then stopped for a while, leaning on a fence and

‘‘observing [the officers], like it’s a game going on.’’ Id. at 54.

Thereafter, he retreated toward the black car, continued

watching for some time, and finally walked away down an

alley, never to return. Officer Branson later testified that he

regarded the man’s behavior as ‘‘peculiar,’’ id. at 39, noting

that he ‘‘seemed to be eyeing out my partner and myself,’’ id.

at 41, and ‘‘sizing us up,’’ id. at 44. Officer Bryant also

observed another occupant of the black Cadillac, subsequently

identified as defendant Brown, get out of the car and then get

back inside. Id. at 66.

After they finished questioning the men in the white car,

the officers decided to approach the black car and question its

occupants because, the officers believed, they might either

have ‘‘been involved with’’ or ‘‘observed’’ the earlier events in

the parking lot. Id. at 57. Bryant approached with a lit

flashlight. Although his vision of the interior of the car was

obscured by the car’s darkly tinted windows, Officer Branson

could see ‘‘images of people.’’ Id. at 41. As Branson ap-

proached the car, he saw ‘‘two people, one of [whom] got up

from the rear seat and jumped over into the front seat.’’ Id.

Branson testified that this made him ‘‘even more suspicious’’

and ‘‘very cautious.’’ Id.

Upon reaching the car, Officer Branson knocked on the

rear passenger-side window, where he could see that one of

the two occupants was sitting. When there was no response,

Branson ‘‘cracked the door open’’ because he ‘‘wanted to

make sure that [he and his] partner were safe.’’ Id. at 43–44.

Immediately upon opening the door, Branson observed a

pistol on the floor of the back seat next to Brown’s foot.

Brown’s hand was ‘‘right there TTT like it was tickling the

4

handle.’’ Id. Branson immediately pulled Brown out of the

car and handcuffed him. The other occupant, a female, was

taken from the front passenger seat and handcuffed as well.

After searching the passenger compartment of the car,

Officer Branson removed the keys from the ignition. He

then opened the car’s locked trunk. There, Branson found a

shotgun bag containing an AR-15 semi-automatic rifle, along

with several magazines filled with ammunition.

Brown was charged by a grand jury with one count of

unlawful possession of a firearm and ammunition by a convict-

ed felon, in violation of 18 U.S.C. § 922(g)(1), and one count of

unlawful possession of a semi-automatic assault weapon, in

violation of 18 U.S.C. § 922(v)(1). He filed a motion to

suppress the evidence found in the car as the fruit of an

unlawful search and seizure. Following an evidentiary hear-

ing, the district court denied the motion. Brown then en-

tered a conditional guilty plea to the first count of the

indictment, reserving his right to appeal the suppression

ruling. See FED. R. CRIM. P. 11(a)(2). The government

dropped the second count after concluding that the AR-15 did

not meet the statutory definition of an assault weapon. The

defendant now appeals the denial of his motion to suppress.

II

Brown contends that Officer Branson violated the Fourth

Amendment’s prohibition of unreasonable searches and sei-

zures when he opened the car door, thereby rendering the

subsequent seizure of the pistol unlawful. He further con-

tends that, even if the opening of the door was legitimate, the

police acted unconstitutionally when they searched the car’s

trunk and seized the rifle and ammunition they found inside.

Accordingly, he argues that both guns, as well as the ammu-

nition, should have been excluded from use as evidence at

trial.

In response, the government maintains that the opening of

the door was lawful under Terry v. Ohio, 392 U.S. 1 (1968),

which permits officers to undertake an investigatory stop if

they have a reasonable suspicion of criminal activity, and to

5

conduct a protective search for weapons if they have a

reasonable fear for their safety. The government further

argues that the search of the trunk was lawful under United

States v. Ross, 456 U.S. 798 (1982), because discovery of the

pistol in the passenger compartment provided probable cause

to believe that there were additional weapons, ammunition,

and/or other contraband in the trunk.

We decide de novo whether the police had reasonable

suspicion, reasonable fear, and probable cause. See Ornelas

v. United States, 517 U.S. 690, 699 (1996); United States v.

Christian, 187 F.3d 663, 666 (D.C. Cir. 1999). However, we

review the district court’s ‘‘findings of historical fact only for

clear error,’’ and give ‘‘due weight to inferences drawn from

those facts’’ and to the court’s determinations of witness

credibility. Ornelas, 517 U.S. at 699–700; see Christian, 187

F.3d at 666. Our analysis of the police conduct in question is

objective: ‘‘[t]he principal components of a determination of

reasonable suspicion or probable cause will be the events

which occurred leading up to the stop or search, and then the

decision whether these historical facts, viewed from the

standpoint of an objectively reasonable police officer, amount

to reasonable suspicion or to probable cause.’’ Ornelas, 517

U.S. at 696; see Terry, 392 U.S. at 21–22.

In Parts II.A and II.B, we consider the lawfulness of the

door-opening and the trunk search, respectively.

A

In Terry v. Ohio, the Supreme Court held that a police

officer needs neither probable cause nor a warrant to conduct

a brief investigatory stop of an individual if he has a reason-

able suspicion that ‘‘criminal activity may be afoot.’’ 392 U.S.

at 30; see United States v. Arvizu, 534 U.S. 266, 273 (2002);

United States v. Sokolow, 490 U.S. 1, 7 (1989). The Court

also held that, during such a stop, an officer may conduct a

protective search of the outer layers of the suspect’s clothing

if he has a ‘‘reasonable fear’’ that the suspect is armed and

dangerous. Terry, 392 U.S. at 30; see Michigan v. Long, 463

U.S. 1032, 1034 (1983). In order to justify such a stop and/or

6

search, the officer must be ‘‘able to point to specific and

articulable facts which, taken together with rational infer-

ences from these facts, reasonably warrant that intrusion.’’

Terry, 392 U.S. at 21. In Michigan v. Long, the Court

extended the scope of a Terry search beyond the person of

the suspect to the area ‘‘within his immediate control,’’ includ-

ing the passenger compartment of an automobile. 463 U.S.

at 1049; see Christian, 187 F.3d at 668.

The parties appear to assume that the opening of the car

door constituted both a stop and a search for Terry purposes,

and we do so as well. Because the stop and the search were

thus coincident, both the reasonable suspicion and reasonable

fear elements of the Terry standard must be satisfied. See

Christian, 187 F.3d at 668. In assessing those issues, we

examine the totality of the circumstances, not any one factor

individually. As we explained in United States v. Edmonds:

An officer on the beat does not encounter discrete,

hermetically sealed facts. Rather, as we repeatedly have

cautioned, the question of whether reasonable suspicion

existed can only be answered by considering the totality

of the circumstances as the officer on the scene experi-

enced themTTTT Hence, even though a single factor

might not itself be sufficiently probative of wrongdoing to

give rise to a reasonable suspicion, the combination of

several factors — especially when viewed through the

eyes of an experienced officer — may.

240 F.3d 55, 59–60 (D.C. Cir. 2001) (citations omitted); see

also Arvizu, 534 U.S. at 273; Terry, 392 U.S. at 22–23.

In this case, several circumstances support the reasonable-

ness both of the officers’ suspicion of criminal activity and of

their fear of danger. The first circumstance is the fact that

the incident took place in a neighborhood known for ‘‘a lot of

drug activity’’ and in which, earlier that same year, there had

been ‘‘several homicides’’ and ‘‘numerous calls for gunshots.’’

Suppression Hr’g Tr., App. at 42; see also Appellant’s Br. at

28 (describing the location as a ‘‘high crime neighborhood’’).

Although we agree with our dissenting colleague that an

individual’s presence in such an area, ‘‘standing alone, is not

7

enough to support reasonable, particularized suspicion that

the person is committing a crime,’’ Illinois v. Wardlow, 528

U.S. 119, 124 (2000), it is nonetheless true that ‘‘the fact that

the stop occurred in a ‘high crime area’ [is] among the

relevant contextual considerations in a Terry analysis,’’ id.

See Edmonds, 240 F.3d at 60 (‘‘[T]he probative value of a

neighborhood’s reputation as a high-crime area is firmly

established.’’); United States v. Johnson, 212 F.3d 1313, 1316

(D.C. Cir. 2000). The importance of this factor is further

compounded by the lateness of the hour. See Long, 463 U.S.

at 1050 (listing the fact that ‘‘the hour was late’’ as one

circumstance justifying officers’ ‘‘reasonable belief that [the

defendant] posed a danger’’); United States v. Roggeman,

279 F.3d 573, 578–79 (8th Cir. 2002) (same); United States v.

Moore, 235 F.3d 700, 704 (1st Cir. 2000) (same); United

States v. Ramires, 307 F.3d 713, 716 (8th Cir. 2002) (listing

the fact that ‘‘it was late at night’’ as one circumstance

justifying a Terry stop).

The second relevant factor is the event that brought the

officers to the parking lot in which Brown’s car was parked: a

report that gunshots had been fired from the lot into the

window of a child’s bedroom. That fact enhanced the proba-

bility that criminal activity had been committed, or was being

committed, by someone inside one of the only two occupied

cars in the lot. See United States v. Raino, 980 F.2d 1148,

1150 (8th Cir. 1992) (holding that a Terry stop was supported

by the fact that ‘‘the officers were responding to a late-night

call that shots had been fired in precisely the area appellant’s

car was parked’’). It also strengthened the grounds for the

officers’ fear that the occupants of the car might be armed

and dangerous. Cf. id. (holding that, where shots had been

fired nearby, a police officer ‘‘acted reasonably in using

extreme caution’’ as he approached a vehicle, since, if the

officer’s suspicion that the shots came from the vehicle proved

correct, its occupant ‘‘would certainly be armed’’).

Brown raises several objections to our consideration of this

factor. He argues that, because of the amount of time that

8

had passed since the shots had been fired,1 it was unreason-

able to connect the shots to the occupants of the black car.

Although we agree that the passage of time lessened the

shots’ significance, it did not eliminate it entirely; it was

certainly plausible that the person or persons who fired the

gunshots might not have departed the area. Brown also

objects on the basis of Sharron Peterson’s testimony that the

black car did not arrive in the lot until after the police began

questioning the men in the white car, suggesting that the

former was not there when the shots were fired. But the

district court credited Officer Branson’s statement that the

police did not see the black car arrive, and thus that ‘‘either

the car was present when [the officers] started to talk to the

people in the white Cadillac or they did not see the black

limousine come onto the parking lot and they made a reason-

able assumption that it had been there at the point that they

got to the parking lot.’’ Suppression Hr’g Tr., App. at 165.

We find no error in this analysis.2

1 The district court found that Peterson called the police de-

partment sometime between 10 and 12 p.m., and that the officers

arrived around 1:45 a.m.

2 Although reasonable suspicion is an objective standard, it is

nonetheless evaluated on the basis of ‘‘the totality of the circum-

stances as the officer on the scene experienced them.’’ Edmonds,

240 F.3d at 59 (emphasis added). For the same reason, this court

cannot take into account many of the facts recounted in the

dissenting opinion, as they were not known to the investigating

officers at the time of the search. For example, although complain-

ant Peterson subsequently testified that she was familiar with the

black car, that it was often parked in the lot behind her apartment,

that it was not in the parking lot at the time of the shooting, and

that the white car had twice left the parking lot before returning,

she did not tell the officers any of those facts. To the contrary, she

said nothing whatsoever about the black car to the officers. Sup-

pression Hr’g Tr., App. at 64, 92. Similarly, although Brown later

told another officer that the other person in the car was his

girlfriend, Officers Branson and Bryant did not know that at the

time they searched the car and trunk. Id. at 80.

9

Brown also objects to the relevance of the gunshots on the

ground that, when Peterson talked with the officers, she

pointed out the white car rather than the black. But neither

Peterson nor her sister had actually seen the gun being fired,

and indeed, Peterson herself had not even been home at the

time of the gunshots. Peterson told the police only that her

sister had opened the blinds and seen people looking up at

her from the white car after she heard the shots. Id. at 89–

90. Thus, what the police knew was not inconsistent with the

possibility that the shots had been fired from the black car.

And once the police finished questioning the men in the white

car, it was hardly unreasonable for them to turn their suspi-

cions to the only other people in the lot.

Finally, both Brown and the dissent object that there was

no evidence that the officers approached the black car be-

cause they believed that its occupants were participants in the

gunfire rather than innocent bystanders or mere witnesses.

This objection is wrong as a matter of fact and irrelevant as a

matter of law. In context, it is clear that Officer Branson’s

testimony that he approached the black car ‘‘as if TTT doing a

traffic stop,’’ id. at 42, referred to his tactics and not to any

assumption that the occupants were merely guilty of a ‘‘traffic

violation,’’ Dissenting Op. at 5. Branson testified that he was

suspicious, and further testified that the officers approached

the car because they believed its occupants might have either

‘‘observed’’ or ‘‘been involved’’ in the altercation. Suppres-

sion Hr’g Tr., App. at 41, 57. The officers were not required

to resolve the occupants’ status before stopping them, see

Wardlow, 528 U.S. at 126, and in any event, the officers’

actual motives do not bear on our objective assessment of

reasonable suspicion. See Whren v. United States, 517 U.S.

806, 813 (1996) (‘‘[T]he fact that the officer does not have the

state of mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action does not

invalidate the action taken as long as the circumstances,

viewed objectively, justify that action.’’ (internal quotation

marks omitted)); Christian, 187 F.3d at 670 (holding that an

officer’s ‘‘actual motives for conducting [a] search [are] not

relevant as long as his actions [are] objectively reasonable’’).

10

A third circumstance supporting the officers’ reasonable

suspicion and fear was the activity of the man who got out of

the black car, watched the officers for a while, and then

disappeared down the alley. While a general curiosity about

police activity would be insufficient to raise suspicion or

concern, there was more than that here. Officer Branson

described the behavior as ‘‘peculiar,’’ and testified that the

man ‘‘seemed to be eyeing out my partner and myself’’ and

‘‘sizing us up.’’ Suppression Hr’g Tr., App. at 41, 44. See

Arvizu, 534 U.S. at 275–76 (citing relevant factors including

the defendant’s stiffened posture and his children’s ‘‘methodi-

cal, mechanical, abnormal’’ waving to police, ‘‘certainly TTT a

fact that is odd’’ (quotation marks omitted)); Terry, 392 U.S.

at 23 (citing the fact that men repeatedly walked back and

forth between a street corner and store window); United

States v. Bravo, 295 F.3d 1002, 1008 (9th Cir. 2002) (citing the

defendant’s ‘‘overly-friendly’’ demeanor toward a U.S. Cus-

toms inspector); United States v. Mancillas, 183 F.3d 682,

686, 697 (7th Cir. 1999) (citing the fact that, when an officer

arrived, three occupants exited a car and walked away in

different directions).3

Brown objects that the officers could not have been particu-

larly concerned about this man since they did not follow him

down the alley to question him. But reasonable officers could

well have decided to focus their attention on the remaining

occupants of the cars, rather than to take off after the

pedestrian or to divide their forces. As ‘‘appellate judges we

do not second-guess a street officer’s assessment about the

order in which he should secure potential threats’’ or investi-

gate his suspicions. Christian, 187 F.3d at 669. Moreover,

3 Although the dissent correctly observes that the government

conceded at oral argument that the officers would not have had

reasonable suspicion based on this man’s behavior alone, the gov-

ernment was also careful to state that his behavior was nonetheless

one of several factors that in combination generated the necessary

level of suspicion. We may not reject the relevance of a factor

simply because viewed ‘‘in isolation’’ from the others it is insuffi-

cient. Arvizu, 534 U.S. at 274. As the Supreme Court only

recently reminded us, ‘‘Terry TTT precludes this sort of divide-and-

conquer analysis.’’ Id.

11

the subjective concerns of these particular officers are, once

again, irrelevant to the legal analysis. See Horton v. Califor-

nia, 496 U.S. 128, 137–38 (1990); Terry, 392 U.S. at 21–22.4

A fourth factor is the behavior of the remaining two

passengers in the black car, one of whom ‘‘got up from the

rear seat and jumped over into the front seat’’ as the officers

approached. Suppression Hr’g Tr., App. at 41. It is well

settled that an individual’s furtive movements may be

grounds for reasonable suspicion and fear, justifying a Terry

stop and search. See Wardlow, 528 U.S. at 124 (recognizing

that ‘‘nervous, evasive behavior is a pertinent factor in deter-

mining reasonable suspicion’’); Edmonds, 240 F.3d at 61;

Christian, 187 F.3d at 668; United States v. Green, 465 F.2d

620, 623 (D.C. Cir. 1972). It is true that ‘‘furtive gestures

‘are significant only if they were undertaken in response to

police presence,’ [a]nd a suspect can respond to the presence

of a police officer only if he has recognized him as an officer.’’

Edmonds, 240 F.3d at 61 (quoting Johnson, 212 F.3d at 1316).

But there was more than a sufficient basis for the officers to

believe that they had been recognized: they were in uniform;

their patrol car was marked; one of the passengers (later

identified as Brown) had previously gotten out of the black

car while the officers were questioning the men from the

white car not far away; and Officer Bryant carried a lit

flashlight as he approached the black car.

It is of course possible that it was merely a coincidence that

the passenger jumped from the back seat to the front at the

very moment the officers came near. But the possibility of

such a coincidence does not negate the officers’ reasonable

suspicion and fear, nor does the fact that the passenger’s

behavior did not necessarily indicate criminal activity or

prospective danger.5 As the Supreme Court has made clear,

4 For the same reasons, we reject Brown’s contention that,

because the officers spent so much time talking with the men in the

white car, there must not have been anything suspicious about the

black car or its occupants.

5 Brown’s brief intimates that all that was involved was amo-

rous activity that the couple did not wish the police to observe.

12

that an individual’s conduct is ‘‘ambiguous and susceptible of

an innocent explanation’’ does not mean that it may not be

grounds for suspicion: ‘‘Terry recognized that TTT officers

could detain [such] individuals to resolve the ambiguity.’’

Wardlow, 528 U.S. at 125–26; see also Arvizu, 534 U.S. at

277 (holding that a ‘‘determination that reasonable suspicion

exists TTT need not rule out the possibility of innocent con-

duct’’).

We cannot agree with the dissent’s suggestion that charac-

terizing the passenger’s behavior as ‘‘furtive’’ in this circum-

stance is equivalent to holding that ‘‘any reaction to seeing

the police is indicative of criminal complicity.’’ Dissenting

Op. at 5. Jumping over a car seat as an officer approaches is

not just ‘‘any reaction.’’ Moreover, although we again note

the Supreme Court’s instruction that the officers’ subjective

reactions to this behavior are not relevant to the analysis, see,

e.g., Horton, 496 U.S. at 137–38, we disagree that there was

no testimony that the officers considered ‘‘that conduct, or

other conduct by the occupants, to be aberrations TTT that

reinforced their suspicion.’’ Dissenting Op. at 5. In fact,

Officer Branson testified that the passenger’s jump from the

back seat made him ‘‘even more suspicious.’’ Suppression

Hr’g Tr., App. at 40.

In addition to these four circumstances, each of which

supports both the officers’ suspicion of criminal activity and

their fear of physical harm, two other factors dramatically

increased the risk that the encounter posed to the officers,

and hence provide additional grounds justifying that fear.6

First, the Terry stop that the officers were about to under-

take involved not a pedestrian but the occupants of an

automobile. As the Supreme Court noted in Long, ‘‘investi-

gative detentions involving suspects in vehicles are especially

6 We agree with our dissenting colleague that neither of these

two factors ‘‘excuse[s] Terry’s requirement that the police possess

adequate suspicion to conduct a stop in the first place.’’ Dissenting

Op. at 9–10. It is the preceding four factors that justify the stop;

the last two merely provide additional support for the reasonable

fear that justifies the search.

13

fraught with danger to police officers.’’ 463 U.S. at 1047; see

also Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (not-

ing the ‘‘inordinate risk confronting an officer as he ap-

proaches a person seated in an automobile’’). Recent cases

make clear that this danger continues to be significant. See

Maryland v. Wilson, 519 U.S. 408, 413 (1997); United States

v. Holt, 264 F.3d 1215, 1222–23 (10th Cir. 2001) (citing 1999

statistics).

Second, the windows of the black Cadillac were darkly

tinted, preventing the officers from having a clear view of the

car’s occupants. This fact magnified the danger of approach-

ing unknown individuals inside an automobile, because the

tinting made it impossible to know whether one of the occu-

pants was reaching for a weapon — as it appears Brown was

doing — or otherwise acting to endanger the officers’ safety.

As the Fourth Circuit said in United States v. Stanfield:

When, during already dangerous traffic stops, officers

must approach vehicles whose occupants and interiors

are blocked from view by tinted windows, the potential

harm to which the officers are exposed increases expo-

nentially, to the point, we believe, of unconscionability.

Indeed, we can conceive of almost nothing more danger-

ous to a law enforcement officer in the context of a traffic

stop than approaching an automobile whose passenger

compartment is entirely hidden from the officer’s view by

darkly tinted windows. [The officer] has no way of

knowing whether the vehicle’s driver is TTT reaching for

a gun; he does not know whether he is about to encoun-

ter a single law-abiding citizen or to be ambushed by a

car-full of armed assailants.

109 F.3d 976, 981 (4th Cir. 1997) (emphasis omitted).

In sum, the officers who stopped Brown and searched the

car in which he was sitting were faced with the following

circumstances: Late at night, in an area known for crime and

gunfire, and in a parking lot where shots had been fired that

very night, they came upon two occupied parked cars. While

they were questioning men in one of the cars, an individual

got out of the other and ‘‘sized them up’’ and ‘‘eyed them out’’

14

before disappearing down an alley. Thereafter, as the offi-

cers approached the second car to question its remaining

occupants, one of the rear passengers jumped over a seat into

the front. Any other activity by the occupants, as well as

their position and that of any weapons they might possess,

was obscured by tinted glass. We conclude that, based on

the totality of these circumstances, reasonable officers could

both suspect the possibility of illegal activity and be con-

cerned for their safety.7 And because our decision is based

on all of these circumstances, we do not suggest that ‘‘when-

ever the police approach a car in the course of investigating a

shooting late at night, TTT the police may intrude on the

personal security of the occupant of a car based on a person’s

mere presence in a high-crime neighborhood.’’ Dissenting

Op. at 9.

Faced with these circumstances, Officer Branson undertook

a stop and search of the most minimal kind: he merely

cracked open the car door and looked inside without breaking

the plane of the car’s surface. Cf. Wilson, 519 U.S. at 415

(holding that the ‘‘additional intrusion’’ imposed on passen-

gers by ordering them out of a car during a traffic stop ‘‘is

minimal’’); Mimms, 434 U.S. at 111 (same regarding drivers);

Stanfield, 109 F.3d at 982–83 (holding that the privacy intru-

sion effected by police opening a car door is ‘‘considerably

less’’ than that approved by the Supreme Court in Mimms).

Moreover, the stop ‘‘lasted a mere matter of moments TTT

before the discovery of the gun [in plain view] ripened what

had been merely reasonable suspicion into the full-scale prob-

able cause necessary for an arrest.’’ United States v. Hens-

ley, 469 U.S. 221, 236 (1985) (Brennan, J., concurring). Thus,

because ‘‘the officer’s action was justified at its inception, and

TTT was reasonably related in scope to the circumstances

which justified’’ it, Terry, 392 U.S. at 19–20, the stop and the

search were valid.

7 Because these factors are sufficient to establish reasonable

suspicion and reasonable fear, we need not consider whether the

occupants’ failure to respond to Officer Branson’s knock is yet

another factor in support of both.

15

Brown does not contest that, if the opening of the door was

lawful, Officer Branson was entitled to seize the gun that was

in plain view. See Long, 463 U.S. at 1050. Accordingly,

because we conclude that the opening of the door was lawful,

the seizure was as well, and the district court did not err in

denying the motion to suppress the gun. See Edmonds, 240

F.3d at 62–63.

B

After arresting Brown and seizing the pistol found in the

passenger compartment of the black Cadillac, Officer Branson

proceeded to open the car’s trunk. There, he discovered and

seized an AR-15 semi-automatic rifle and several magazines

filled with ammunition. Brown contends that the trunk

search violated the Fourth Amendment, and that the evidence

it yielded must be suppressed for that reason.

The government does not suggest that the opening of the

trunk was justified as a Terry search, as such searches are

limited to areas immediately accessible to the suspect — in

this case, to the passenger compartment of the car. See

Long, 463 U.S. at 1048–49; Christian, 187 F.3d at 668.

Rather, the government argues that, after finding a gun on

the floor of the passenger compartment, Branson had proba-

ble cause to search the trunk to see whether more guns,

ammunition, and/or other contraband were stored there. In

Carroll v. United States, 267 U.S. 132 (1925), the Supreme

Court upheld the validity of a warrantless automobile search

based on probable cause to believe that the vehicle contained

contraband. In United States v. Ross, the Court held that

the ‘‘scope of a warrantless search of an automobile TTT is

defined by the object of the search and the places in which

there is probable cause to believe that it may be found.’’ 456

U.S. 798, 824 (1982). ‘‘If probable cause justifies the search

of a lawfully stopped vehicle,’’ the Court said, ‘‘it justifies the

search of every part of the vehicle and its contents that may

conceal the object of the search.’’ Id. at 824–25. The ques-

tion before us, therefore, is whether the police had probable

cause to believe that contraband might be found in the trunk

16

of the black Cadillac or, as we put it in United States v.

Turner, ‘‘whether the trunk was one of several parts of the

vehicle that ‘might contain the object of the search.’ ’’ 119

F.3d 18, 20 (D.C. Cir. 1997) (quoting Ross, 456 U.S. at 821).

In Turner, we applied Ross in upholding the search of a

car’s trunk. The search in Turner followed a traffic stop,

during which the police officer had noticed three pieces of

evidence: a strong smell of marijuana emanating from the

car; pieces of torn cigar tobacco in the defendant’s lap, which

the officer testified were consistent with the use of a hol-

lowed-out cigar ‘‘blunt’’ to smoke marijuana; and a ziplock

bag containing a ‘‘green, weed-like material’’ that the officer

believed to be marijuana. Id. at 18–19. We concluded that

this evidence was sufficient to meet the requirements of

probable cause: that is, ‘‘ ‘a fair probability that contraband

or evidence of a crime’ ’’ would be found in the trunk. Id. at

20 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In so

holding, we rejected Turner’s argument that the evidence

indicated nothing more than personal use of marijuana and

that a person who uses rather than distributes drugs would

keep them within his immediate control rather than in a

luggage compartment. Id. at 20–21. While we agreed that

‘‘it may be true that evidence of narcotics distribution would

constitute even stronger cause to believe additional contra-

band had been secreted in the trunk,’’ we found the evidence

sufficient ‘‘to establish a ‘fair probability’ that Turner might

have hidden additional drugs not necessary for his current

consumption in areas out of plain sight, including the trunk of

the car.’’ Id. at 20.

We reach a similar conclusion here for several reasons.

First, the presence of a gun supported the possibility that the

car contained ammunition, additional weapons, and/or other

contraband. As we have held in the context of Terry

searches and in that of searches incident to arrest, ‘‘the

presence of one weapon may justifiably arouse concern that

there may be more in the vicinity.’’ Christian, 187 F.3d at

669; see United States v. Abdul-Saboor, 85 F.3d 664, 670

(D.C. Cir. 1996) (‘‘[H]aving already uncovered a loaded hand-

gun, a loaded semi-automatic pistol, and a magazine, the

17

arresting officers could well anticipate that other weapons

were stowed throughout the apartmentTTTT’’). Moreover, the

presence of the gun suggested that drugs may have been in

the vicinity as well. Cf. United States v. Conyers, 118 F.3d

755, 757 (D.C. Cir. 1997) (noting the connection between guns

and drugs); United States v. Dunn, 846 F.2d 761, 764 (D.C.

Cir. 1988) (describing a revolver as ‘‘a tool of the narcotics

trade’’ and holding that the defendant’s ‘‘connection to the

gun suggest[ed] he exercised control over the drugs in the

house’’). Second, multiple gunshots had reportedly been

fired that night from the lot in which the black car was

parked. This fact increased the likelihood that multiple guns

were present, as did the fact that there had been at least

three people in the car that night. Finally, the fact that

Brown’s hand was ‘‘drooping down’’ and ‘‘tickling the handle’’

of the gun as Officer Branson opened the door, Suppression

Hr’g Tr., App. at 44, suggested that Brown may have been

using the gun to protect other contraband. It was reasonable

to infer that the trunk was a likely hiding place.

We do not perceive any material difference between this

case and Turner. If anything, possession of a firearm under

these circumstances provides a stronger basis for a trunk

search than does evidence of personal use of marijuana. The

dissent suggests that one difference is that in Turner, the

government offered testimony concerning a missing trunk

key found in the defendant’s shoes. Dissenting Op. at 12.

But in Turner we expressly declined to consider the signifi-

cance of that testimony because there was a dispute over

whether the key had been lawfully seized. Turner, 119 F.3d

at 20 n.2. We ‘‘instead limit[ed] ourselves to considering only

the three pieces of evidence’’ that we have described above.

Id.

Brown suggests a different distinction, noting that in Tur-

ner we said that the police officer’s ‘‘testimony, based on his

experience in narcotics and traffic enforcement, supports’’ the

conclusion that there was probable cause to search the trunk,

Turner, 119 F.3d at 20 (emphasis added), and further notes

that in this case Officer Branson did not specifically testify

about the trunk search. But Turner did not hold that such

18

testimony is a necessary element of a probable cause determi-

nation, and we do not think such testimony was required

here. The presence of the gun, along with the other factors

identified in the previous paragraph, was sufficient to estab-

lish probable cause.8

Finding little to distinguish Brown’s case from Turner’s, we

are left with Brown’s argument that Turner was wrongly

decided. Turner, of course, is the law of the circuit and may

not be overturned by a subsequent panel. See, e.g., National

Mining Ass’n v. Fowler, 324 F.3d 752, 760 (D.C. Cir. 2003).

But even if that were not the case, we would not overturn it,

since we find Brown’s argument unpersuasive.

The defendant’s principal attack on Turner is his conten-

tion that this court misread Robbins v. California, 453 U.S.

420 (1981). Turner cited Robbins — a case in which marijua-

na and equipment for using it were found in a car’s passenger

compartment — because the Supreme Court stated in dictum

that the subsequent search of the car’s luggage compartment

was lawful. Relying on facts recited in the California appel-

late court decision that the Robbins Court reviewed, People v.

Robbins, 103 Cal. App. 3d 34, 38 (Cal. Ct. App. 1980), Brown

claims that the validity of the search was based not on the

marijuana but on an incriminating statement made by the

defendant. But as we have recently said in rejecting a

similar argument in another case, ‘‘one can examine the

Supreme Court’s opinion with a microscope without learning

that fact.’’ Rancho Viejo v. Norton, 323 F.3d 1062, 1072

(D.C. Cir. 2003). The Robbins Court did not mention the

8 Brown further contends, and the dissent suggests, that the

trunk search was unlawful because Officer Branson did not testify

that he opened the trunk in search of additional contraband; rather,

he testified that he did so to secure Brown’s belongings. Like the

test for reasonable suspicion under Terry, however, the test for

probable cause is objective. See Whren, 517 U.S. at 813 (‘‘Subjec-

tive intentions play no role in ordinary, probable-cause Fourth

Amendment analysis.’’). Thus, Branson’s ‘‘actual motives for con-

ducting the search were not relevant as long as his actions were

objectively reasonable.’’ Christian, 187 F.3d at 670.

19

incriminating statement, and we find the defendant’s resort to

the judicial equivalent of legislative history unconvincing.9

In any event, whether supportive or not, there is certainly

nothing in Robbins that is contrary to the holding of Turner.10

Moreover, Robbins was only one of several decisions upon

which Turner relied, and it remains true today — as it was

then — that our resolution of the lawfulness of the trunk

search in Turner is consistent with that of every other circuit

that has considered a similar question.11 As the cases cited in

9 Brown also argues that Turner is inconsistent with Michigan

v. Long, noting that although Long concluded that a hunting knife

and marijuana were lawfully discovered in the passenger compart-

ment of a car, it did not go on to reach the question of the legality

of the subsequent trunk search but instead remanded the issue to

the state court. The Court, however, made quite clear that the

reason for the remand had nothing to do with the merits of the

issue. See Long, 463 U.S. at 1053 (‘‘[W]e decline to address this

question because it was not passed upon by the Michigan Supreme

Court, whose decision we review in this case.’’).

10 Nor is there anything to the contrary in California v. Aceve-

do, 500 U.S. 565 (1991), upon which the dissent relies. In Acevedo,

in the course of upholding a trunk search, the Supreme Court

observed in dictum that a search of the rest of the car would have

been unreasonable. Id. at 580. As we explained in Turner, howev-

er, ‘‘[i]n Acevedo TTT the police had been following a particular

parcel of drugs — one the police actually had intercepted, exam-

ined, and resealed — and had watched as the suspect bag was

placed in the trunk.’’ Turner, 119 F.3d at 22–23. By contrast, in

Turner as well as in this case: ‘‘ ‘[S]uspicion was not directed at a

specific container.’ TTT Rather, TTT the police had probable cause

to search ‘every part of the vehicle and its contents that may

conceal the object of the search,’ ’’ and ‘‘[n]either logic nor case law

excludes [the] trunk from the list of such locations.’’ Id. at 23

(quoting Ross, 456 U.S. at 825).

11 See, e.g., United States v. Fladten, 230 F.3d 1083, 1086 (8th

Cir. 2000) (holding that drug paraphernalia on the backseat of a car

parked near a house where drug-related activity took place provid-

ed probable cause for a trunk search); United States v. Parker, 72

F.3d 1444, 1450 (10th Cir. 1995) (holding that drugs and a gun found

in a passenger compartment, in combination with the odor of

20

note 11 suggest, although probable cause determinations are

fact-specific and depend on the totality of the circumstances,

the discovery of contraband in the passenger compartment of

a car is a factor that strongly supports the lawfulness of a

trunk search. In this case, we conclude that the totality of

the circumstances provided probable cause to search the

black Cadillac for guns, ammunition, and/or narcotics, and

that the trunk was a part of the vehicle that ‘‘might contain

the object of the search.’’ Turner, 119 F.3d at 20 (quoting

Ross, 456 U.S. at 821).

III

We hold that Officer Branson did not violate the Fourth

Amendment, either when he opened the door to the car in

which appellant Brown was sitting or when he subsequently

opened and searched the car’s trunk. The district court’s

denial of Brown’s motion to suppress is therefore

Affirmed.

marijuana smoke, provided probable cause to search the trunk,

although the odor alone would have been insufficient); United

States v. Kelly, 961 F.2d 524, 527–28 (5th Cir. 1992) (holding that a

gun, drugs, and ammunition found in a passenger compartment, as

well as the smell of marijuana, conferred probable cause to search

the entire car, including the engine compartment); United States v.

McGuire, 957 F.2d 310, 314 (7th Cir. 1992) (holding that open

alcohol containers in the passenger compartment justified a trunk

search); United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986)

(holding that a small amount of marijuana found on a car’s floor

provided probable cause for a trunk search); United States v.

Rickus, 737 F.2d 360, 367 (3d Cir. 1984) (holding that a screwdriver,

pliers, and bulletproof vests found in a car’s passenger compart-

ment justified a trunk search); United States v. Haley, 669 F.2d

201, 204 (4th Cir. 1982) (holding that marijuana odor and a bag of

marijuana found in a car were sufficient to support a trunk search).

1

ROGERS, Circuit Judge, dissenting: Because the govern-

ment failed to offer evidence to show that, prior to opening

the door of the lawfully parked car in which Brown was

sitting, the police had articulable suspicion to believe that

Brown had been engaged in criminal wrongdoing, the stop

and frisk exception to the Fourth Amendment warrant re-

quirement adopted in Terry v. Ohio, 392 U.S. 1 (1968), is

inapplicable. In Terry, the Supreme Court cautioned that a

police officer’s ‘‘inchoate and unparticularized suspicion or

‘hunch,’ ’’ would not suffice to justify an intrusion into a

person’s security and privacy, id. at 27, but that is all the

evidence showed. Hence the seizure by the police after

opening the car door was unlawful. Moreover, even if there

had been a lawful Terry stop, because the search of the car

trunk was not limited in scope in order to protect the officers,

it could not be justified under Terry, id. at 29, and because

the government failed to show that the officers had probable

cause to believe the car trunk contained contraband or evi-

dence of a crime, the seizure from the trunk also was unlaw-

ful. Accordingly, the district court erred in denying the

motion to suppress the seized evidence.

I.

Under Terry, a police officer must have articulable suspi-

cion of individualized criminal wrongdoing before the officer

can conduct a brief investigatory stop of the individual and

subject him to a pat down. 392 U.S. at 23. The ‘‘criminal

activity [that] may be afoot’’, id. at 30, quoted Op. at 5, must

be tied to an individual before that individual can be stopped.

Terry operates on the assumption that individuals are law-

abiding which is why there must be a ‘‘particularized suspi-

cion TTT that the particular individual being stopped is en-

gaged in wrongdoing.’’ United States v. Cortez, 449 U.S. 411,

418 (1981). Consistent with ‘‘independent appellate review of

these ultimate determinations of reasonable suspicion and

probable cause,’’ Ornelas v. United States, 517 U.S. 690, 697

(1996), nothing in the record indicates that Brown or the

other occupants of the black car acted in a manner to provoke

police suspicion of criminal wrongdoing, see Illinois v. Ward-

2

low, 528 U.S. 119, 124–26 (2000), or that the police were

relying on their experience to conclude that the occupants of

a car other than the one identified by the complainant pre-

sented a threat to the officers’ safety. Cf. Texas v. Brown,

460 U.S. 730, 742–43 (1983). The government offered no

evidence to show that the police had reason to think that the

black car contained guns or other contraband but relies, in

justifying the Terry stop, solely on the police officers’ gener-

alized suspicions as a result of their surroundings. Reason-

able suspicion for Terry purposes is not created, as other

circuits have recognized, by the totality of the evidence when

each piece of evidence is, by itself, a weak indicator of

criminal activity or dangerousness. See, e.g., United States v.

Townsend, 305 F.3d 537, 542–45 (6th Cir. 2002); United

States v. Gray, 213 F.3d 998, 1000–01 (8th Cir. 2000); United

States v. Jones, 149 F.3d 364, 369–71 (5th Cir. 1998).

Brown’s mere presence in the parking lot late at night several

hours after a shooting does not meet the standard of articula-

ble suspicion of individualized criminal wrongdoing that Terry

requires. See Brown v. Texas, 443 U.S. 47, 52 (1979).

Looking at the ‘‘totality of the circumstances,’’ United

States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449

U.S. at 417–18), to determine whether the police conducted a

lawful Terry stop, the court ignores the consequences of the

fact that key evidence is undisputed. First, the police did not

arrive at the scene until at least two hours, and more likely,

three hours, after the shooting had occurred. The complain-

ant called the police for assistance around 10 p.m. Even

taking the latest time that the complainant testified she called

for assistance, at midnight, the police did not receive a call to

respond until 1:45 a.m. and did not arrive at her apartment

building until after 1:45 a.m. Only after conferring with the

complainant and her sister, and then going to the complain-

ant’s apartment, did the police enter the parking lot. Second,

the complainant and her sister directed the police only to the

men in a white car, and said nothing about the black car or its

occupants. At the suppression hearing, the complainant ex-

plained that the black car was not in the parking lot at the

time of the shooting, whereas (according to the complainant’s

3

sister) at the time of the shooting and also when the police

arrived in the complainant’s apartment, the men in the white

car were looking up at the window of the complainant’s

apartment into which shots had been fired. Third, Brown,

who was sitting in the black car when the police began

questioning the men in the white car, remained in or near the

black car throughout the thirty minutes that the police testi-

fied they questioned the men in the white car, and Brown did

not attempt to leave the parking lot thereafter when the

police approached. Although the occupants of the black car

were aware that the police were questioning men in the white

car, they never attempted to interfere with the police investi-

gation. These undisputed facts known to the officers demon-

strate that when the police first entered the parking lot, they

had articulable suspicion as to the occupants of the white car

but no reason to suspect the occupants of the black car of any

criminal activity. Nor did the subsequent conduct of the

occupants of the black car give the police any reason to

suspect any of the occupants of criminal activity.

The court relies on four circumstances to justify the Terry

stop of Brown. The first circumstance is the neighborhood:

it was known for ‘‘a lot of drug activity’’ and there had been

several homicides and numerous calls for gunshots earlier the

same year. Op. at 6. While conceding that mere presence is

insufficient, the court views the lateness of the hour as

somehow ‘‘compound[ing]’’ the relevance of this circumstance.

Op. at 7. High-crime areas abound in urban centers such as

Washington, D.C., and the fact that crime is often committed

at night does not help identify the likely perpetrator of a

particular crime. Neither the fact that the complainant lived

in a neighborhood where shootings had occurred in the past

year, nor the fact that it was late at night, gave the police

reason to suspect that Brown was involved in the earlier

shooting.

The second circumstance is that gunshots had been fired

into a child’s bedroom: the court states that this ‘‘enhanced

the probability’’ that the shots had been fired by someone

inside one of the only two occupied cars in the parking lot.

4

Op. at 7. This statement assumes that the shooter was in a

car in the parking lot. Even if this assumption is reasonable,

the court also assumes that if the shooter had been in a car in

a parking lot, he likely could be found in a car in the same

parking lot several hours later. The evidence suggests the

contrary. Not only did the police arrive several hours after

the shooting had occurred, the complainant testified at the

suppression hearing that after the shooting the white car had

twice left the parking lot before returning, thus further

indicating that sufficient time had elapsed for the shooter to

come and go. In addition, the complainant was familiar with

the black car in which Brown was sitting, as it often parked in

the lot and played loud music, and testified that the black car

was not present at the time of the shooting or when the police

responded to her 911 call. Given her familiarity with the car,

it is difficult to understand why she would not have told the

police about the black car if it had been in the parking lot at

the time of the shooting. The court discounts the complain-

ant’s testimony because she and her sister did not see the

actual shooter, Op. at 8–9, and yet they identified the suspect

car that was in the parking lot at the time of the shooting and

no other car.

The third circumstance is the activity of the man who

exited the alley. Op. at 10. The government conceded at

oral argument that the police did not have articulable suspi-

cion to stop the man who got out of the driver’s seat of the

black car, came closer to look at the police at the white car,

which was approximately fifteen feet away, walked back

towards the black car, and then before reaching it left the

parking lot through an alley. Given this concession and the

fact that after exiting the alley the driver never returned to

the black car or to the parking lot, it is difficult to understand

how his conduct contributes to the officers’ articulable suspi-

cion of criminal wrongdoing with respect to Brown and the

other occupant who remained in the car. The only testimony

indicated that the police thought that the driver was ‘‘sizing

[them] up’’ and ‘‘act[ed] quite peculiar TTT as if he wanted to

be involved in our conversation with these two gentlemen [in

5

the white car].’’ Yet the police acknowledged that the driver

said nothing to them and went on his way.

The fourth circumstance is the behavior of the remaining

occupants of the black car. Op. at 11. According to the

evidence, all that happened after the driver exited the black

car and left through the alley was that (1) Brown briefly

exited the car and got back in, and (2) as the police, upon

finishing their questioning of the men in the white car,

approached the black car, a person jumped from the back

seat to the front seat of the car. Characterizing these actions

as ‘‘furtive gestures’’ in response to seeing the police, Op. at

11, means, however, that any reaction to seeing the police is

indicative of criminal complicity and thus, as the Fifth Circuit

points out, destroys the inference. See Jones, 149 F.3d at

370–71. There was no testimony that when one of the

occupants jumped from the back to the front seat of the black

car, the officers considered that conduct, or other conduct by

the occupants, to be aberrations or a ‘‘furtive gesture’’ that

reinforced their suspicion of criminal involvement. See Unit-

ed States v. Edmonds, 240 F.3d 55, 61–62 (D.C. Cir. 2001).

Instead, Officer Branson testified that he ‘‘felt uneasy’’ and

‘‘was very cautious at that time.’’ He did not testify that the

police approached the black car because they thought the

occupants were involved in the earlier shooting. Rather,

Officer Branson testified that they sought to verify the com-

plainant’s story by asking whether the occupants of the black

car had seen or heard the prior shooting. He also testified in

speculative, vague language that he wanted to know ‘‘[w]heth-

er or not perhaps they might have been involved with what

was going on.’’ (emphasis added). And so he approached the

black car ‘‘as if TTT doing a traffic stop,’’ and opened the door

‘‘to make sure that [he] and [his] partner were safe.’’ In

other words, having nothing to go on that identified the

occupants of the black car as likely suspects in the prior

shooting or otherwise involved in criminal activity, the police

proceeded based on an assumed traffic violation although the

black car was lawfully parked in a residential parking lot.

Cobbling together innocent circumstances, and drawing

inferences in favor of the government that are unsupported

6

by the evidence, see United States v. Myers, 308 F.3d 251,

255 (3d Cir. 2002), the court concludes that because Brown

(who was in a different car than the one identified by the

complainant for the police) was in the wrong place (the

parking lot behind the complainant’s apartment building) at

the wrong time (late at night several hours after a shooting),

the police had articulable suspicion that he was engaged in

criminal wrongdoing. Op. at 13–14. The stop and frisk

exception under Terry is unrecognizable. While the police

may reasonably take into account the fact that they are

conducting an investigation in a high-crime area, see Ed-

monds, 240 F.3d at 60, late at night, see Townsend, 305 F.3d

at 542–43, and that they are investigating a crime involving a

gun, see United States v. Raino, 980 F.2d 1148, 1149 (8th Cir.

1992), these factors provide only generalized suspicions that

are insufficient to justify an intrusion on an individual’s

Fourth Amendment rights. See Edmonds, 240 F.3d at 60.

While relevant, the context of the police investigation, as this

court has noted, provides no ‘‘individualized suspicion of

wrongdoing.’’ United States v. Davis, 270 F.3d 977, 979

(D.C. Cir. 2001).

The government, relying on Officer Branson’s testimony,

failed to present a ‘‘ ‘particularized and objective basis’ for

suspecting legal wrongdoing,’’ Arvizu, 534 U.S. at 273 (quot-

ing Cortez, 449 U.S. at 417–18), by any occupant of the black

car. Officer Branson implicitly acknowledged the limited

effect of all four circumstances on which the court relies when

he testified before the grand jury and later at the preliminary

hearing that he and the other police officer only wanted to

question the occupants of the black car to determine whether

they had any information about the earlier shooting. Even

crediting Officer Branson’s changed testimony at the suppres-

sion hearing that he also wanted to determine whether the

occupants of the black car ‘‘perhaps TTT might have been

involved with what was going on,’’ he never explained what

facts led him to believe that the occupants of the black car, as

opposed to those in the white car, were connected to the

earlier shooting. For example, he did not testify that he had

any information from the men in the white car that linked the

7

occupants of the black car to the shooting. Under Terry,

being generally ‘‘suspicious’’ and feeling ‘‘uneasy’’ is not suffi-

cient.

Further, unlike the officer in Terry, 392 U.S. at 28, who

explained why, in his experience, the conduct he observed was

not innocent but was consistent with potential thievery from

stores, or the border patrol officer in Arvizu, 534 U.S. at 269–

71, who explained why a pattern of behavior by a minivan and

its occupants indicated likely smuggling of drugs or illegal

aliens, or the officer in Edmonds, 240 F.3d at 60–61, who

explained why the defendant’s actions were consistent with

someone trying to hide something under a car seat, Officer

Branson never explained how being ‘‘sized up’’ by the driver,

or how the ‘‘furtive gesture’’ of an occupant moving from the

back to the front seat, or how Brown’s conduct made him

suspect criminal activity by the occupants of the black car.

Moreover, with respect to the threat that Officer Branson

perceived, there is no testimony to explain why the conduct of

the occupants of the black car as opposed to the general

circumstances surrounding the police investigation created a

reasonable fear other than Officer Branson’s own subjective

perception of the situation. See Op. at 9.

The objective evidence supports the desire of the police to

question the occupants of the black car about the shooting,

but when the police are collecting information rather than

acting on articulable suspicion of criminal wrongdoing, there

are limits on the manner in which they may intrude upon an

individual’s Fourth Amendment rights. See Terry, 392 U.S.

at 34–35 (White, J., concurring); Gomez v. Turner, 672 F.2d

134, 140–41 (D.C. Cir. 1982) (citing United States v. Wylie,

569 F.2d 62, 66–67 (D.C. Cir. 1977)); United States v. Ward,

488 F.2d 162, 169–70 (9th Cir. 1973). Although the intrusion

on Brown’s personal security, see Michigan v. Long, 463 U.S.

1032, 1046–47 (1983); Terry, 392 U.S. at 9, may have been

minimal when compared to an intrusion into someone’s home,

the Supreme Court has established that in the absence of a

specific belief of criminal activity or dangerousness by the

person stopped, the intrusion is unlawful. See Long, 463 U.S.

at 1051; Terry, 392 U.S. at 27. Because the government

8

bears the burden of proof, see Mincey v. Arizona, 437 U.S.

385, 390–91 (1978); Davis, 270 F.3d at 982, in the absence of

any evidence of an articulable basis for the officers’ suspicion

of criminal wrongdoing or the reason they were concerned for

their safety, the court should not draw such inferences in the

government’s favor. See Myers, 308 F.3d at 255. The court

thus misses the point when it states that ‘‘[t]he officers were

not required to resolve the occupants’ status before stopping

themTTTT’’ Op. at 9. To conduct a Terry stop and search,

the officers were required to have an articulable suspicion

specific to the occupants of the black car before infringing on

Brown’s Fourth Amendment rights.

The court points to two factors as supportive of the officers’

‘‘additional grounds justifying [this] fear’’ of physical harm as

they approached the black car. Op. at 12–13. First, the

police were approaching an automobile. Second, the black

car’s tinted windows obscured the officers’ view inside the

car. The court acknowledges, however, that these factors

provide no support for the Terry stop itself. Op. at 12 n.6.

Although neither officer gave any specific reason, other than

the general circumstances surrounding the investigation of

the earlier shooting, that would cause them to fear for their

own safety from the occupants in the black car, see Long, 463

U.S. at 1049 n.14, the court considers these factors sufficient

to fill the evidentiary gap with respect to the search. Op. at

12 n.6.

For the first factor, however, the court relies on cases in

which the police already had a basis to conduct a Terry stop

and search. Op. at 12–13. For example, in Long, 463 U.S. at

1050–51, the defendant was speeding, swerved his car into a

ditch and appeared intoxicated when the police questioned

him, and during questioning, the police observed a large knife

in the interior of the defendant’s car; in Maryland v. Wilson,

519 U.S. 408 (1997), and Pennsylvania v. Mimms, 434 U.S.

106 (1977), the defendants were subjected to a Terry stop and

search after committing traffic violations. Officer Branson’s

testimony indicated that the police did not have grounds to

suspect Brown was involved in the earlier shooting or other

criminal activity; he testified that he approached the black

9

car ‘‘as if TTT doing a traffic stop.’’ Even if Officer Branson

only meant by that phrase to describe a police procedure, it is

nonetheless telling that at no point did he testify that he

suspected the occupants of the black car as being involved in

the earlier shooting. Rather, the police sought out the occu-

pants of the black car to question them as possible witnesses

or because the police were suspicious of them based on

‘‘inarticulate hunches,’’ Terry, 392 U.S. at 22, arising primari-

ly from the general context of the police investigation. Un-

der the court’s analysis, whenever the police approach a car

in the course of investigating a shooting late at night, even a

shooting that occurred several hours earlier, the police may

intrude on the personal security of the occupant of a car

based on a person’s mere presence in a high-crime neighbor-

hood. Terry requires more. The predicate to a ‘‘ ‘stop and

frisk’ ’’ under Terry is ‘‘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 articulable facts which, taken

together with rational inferences from these facts,’ give rise

to a reasonable suspicion of criminal activity’’ by that individ-

ual. United States v. Christian, 187 F.3d 663, 668 (D.C. Cir.

1999).

The second factor, obscured vision due to the black car’s

tinted windows, also does not relieve the police of their

obligations under Terry. The court quotes United States v.

Stanfield, 109 F.3d 976 (4th Cir. 1997), Op. at 13. However,

in that case the car with tinted windows was illegally parked

in the middle of the road, and the driver, a known drug-

dealer, was engaged in a conversation with another known

drug-dealer, who was leaning out of the window of a second-

floor apartment building. Id. at 978, 981–82. By contrast,

there was no evidence that the police had any grounds to

think the occupants of the black car, which was lawfully

parked in a residential parking lot, were guilty of a traffic

violation or engaged in any criminal activity. At best, the

tinted windows gave reason for the police to be more cautious

when conducting a permissible Terry stop and search based

on an articulable suspicion of individualized criminal activity,

but the obscured-vision circumstance did not excuse Terry’s

10

requirement that the police possess adequate suspicion to

conduct a stop in the first place. So far as the government’s

evidence indicated, the occupants of the black car were inno-

cent, uninvolved bystanders and no more. See Arvizu, 534

U.S. at 277.

Other cases relied upon by the court are not analogous to

the instant case. Almost nothing in Raino, 980 F.2d at 1150,

see Op. at 7, is similar. In Raino, there was no information

available to the police about the source of the second of three

shooting incidents, the defendant’s car was double parked,

and the defendant, who looked nervous, began to pull away.

Id. at 1149. Other cases relied on by the government are

distinguishable as Brown made no attempt to flee, see Ward-

low, 528 U.S. at 121–22; United States v. Smith, 217 F.3d

746, 749–50 (9th Cir. 2000), and in Smith, the police officer

had more than mere flight as grounds to suspect the individu-

al defendant of criminal wrongdoing.

Failing to distinguish between police questioning of wit-

nesses to a crime and questioning of likely criminal suspects,

the government relies on authority that allows the stop of a

potential witness when the crime ‘‘has just been committed.’’

4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE

FOURTH AMENDMENT § 9.2(b), at 24 (3d ed. 1996). In such

circumstances, the police must question potential witnesses

immediately or very soon after the crime has taken place, see

id. at 24–25, and in any event, in less time than the two to

three hours that elapsed here. Even under the district

court’s condensed view of the lapse of time between the

shooting and the arrival of the police at the scene, the ‘‘just

committed’’ exception has no bearing; hours had passed and,

as the complainant testified, there was sufficient time for the

white car to leave the parking lot twice after the shooting

before returning prior to the arrival of the police. The court

does not embrace this part of the government’s argument, for

Brown could ‘‘not be detained even momentarily without

reasonable, objective grounds for doing so; and his refusal to

listen or answer does not, without more, furnish those

grounds.’’ Florida v. Royer, 460 U.S. 491, 498 (1983) (citing

United States v. Mendenhall, 446 U.S. 544, 556 (1980)); see

11

Berkemer v. McCarty, 468 U.S. 420, 439 (1984). If, as the

government maintains, a Terry stop did not occur when the

police knocked on the car window, Brown was free to ignore a

consensual encounter. Cf. Berkemer, 468 U.S. at 439.

Hence, the court properly does not rely on the failure of the

occupants in the black car to respond to the officer’s knock on

the car window. See Op. at 14 n.7.

II.

Terry also is instructive about the scope of the search that

can be justified to protect an officer’s safety. See Op. at 12

n.6. ‘‘The sole justification of the search in the present

situation [of a Terry pat down] is the protection of the police

officer and others nearby, and it must therefore be confined

in scope to an intrusion reasonably designed to discover guns,

knives, clubs, or other hidden instruments for the assault of

the police officer.’’ Terry, 392 U.S. at 29. The police re-

moved Brown and the female occupant from the car and

handcuffed them before taking the keys out of the ignition

and opening the trunk of the car. Once the occupants were

handcuffed, and because the trunk was not in any event

immediately accessible to them, the rationale for a Terry

search beyond the immediate surroundings of the passenger

compartment evaporates. See Long, 463 U.S. at 1049; Chris-

tian, 187 F.3d at 670.

The government, consequently, does not rely on Terry for

the search of the trunk but instead argues that finding the

gun next to Brown in the passenger compartment of the black

car gave the officers probable cause to search the trunk for

other guns, ammunition, or other contraband. The court

agrees, relying principally on United States v. Turner, 119

F.3d 18 (D.C. Cir. 1997). Op. at 16–18. Its reliance on

Turner is misplaced.

In Turner, the police stopped the defendant’s car because it

did not have a front license plate. 119 F.3d at 18. As the

officer approached the car he noticed ‘‘a strong odor of burnt

marijuana’’ coming from the car. Id. After the defendant

was unable to produce his driver’s license, the officer saw

12

‘‘torn pieces of cigar tobacco’’ in the defendant’s lap, on the

seat between his legs, and on the floor at his feet. Id. The

government introduced evidence that in the officer’s experi-

ence these observations were consistent with marijuana use.

Id. The officer also saw, directly behind the defendant, ‘‘a

clear plastic bag of green, weed-like material,’’ which the

officer believed to be marijuana. Id. at 18–19. Moreover,

although this court did not rely on evidence that the defen-

dant had hidden the key to the trunk in his shoes, the

government offered evidence that in the officer’s experience a

missing trunk key is often concealed on a person’s body,

including his shoes. Id. at 19. On appeal, Turner did not

dispute there was probable cause for the police to search the

passenger compartment of his car, but contended that the

evidence was consistent only with his personal drug use and

hence there was no probable cause to believe there would be

additional drugs in the trunk. Id. at 20. The court rejected

the personal drug use distinction and upheld a warrantless

search of the trunk citing United States v. Ross, 456 U.S. 798,

824 (1982), and Robbins v. California, 453 U.S. 420, 428

(1981). See Turner, 119 F.3d at 21. Under the circum-

stances shown by the evidence, the court held there was

probable cause for the officer to search the trunk for drugs,

distinguishing cases where police suspicion was directed at a

specific container. Id. at 20, 23.

By contrast with the evidence in Turner, the evidence in

the instant case shows only that Brown was in possession of a

single handgun in a lawfully parked car late at night several

hours after a shooting in the same area. There was no

evidence that the police had reason to think that more than

one gun was involved in the earlier shooting or that the gun

seized was a different type of gun than the one that was used

in the shooting. This case is not like those in which there are

indicia of multiple firearms or other contraband. In United

States v. Abdul–Saboor, 85 F.3d 664, 666, 670 (D.C. Cir. 1996),

cited by the court, Op. at 16, while executing a bench warrant

the police observed the defendant pick up a loaded pistol and

saw a loaded semi-automatic pistol and magazine on a table.

In other cases on which the court relies, Op. at 17, the police

13

had information that the defendant was in possession of drugs

and thus had reason to think that the defendant also may

have a gun, as in United States v. Conyers, 118 F.3d 755, 757

(D.C. Cir. 1997), where a detailed tip from a confidential

informant alerted the police to the likelihood that the defen-

dant would be transporting drugs, or in United States v.

Dunn, 846 F.2d 761, 764 (D.C. Cir. 1988), where the defen-

dant was in a townhouse that served as a retail drug opera-

tion and a gun was on a couch. There also was no evidence

that the police had information to link Brown or the other

occupants of the black car to unlawful drug activity; nor was

there testimony that the police relied on their experience to

conclude that the occupants of the black car were likely

involved in unlawful drug or other criminal activity. Neither

was there evidence of flight. Brown and the other occupant

had remained in the immediate area knowing the police were

questioning men in another car; they were in a car that was

not the one that the complainant and her sister had told the

police was in the parking lot at the time of the shooting.

Furthermore, before the search of the trunk it appears that

the police knew that the black car was not registered to

Brown. Brown testified that he told the police he had been

given use of the car by a third man and was using the car to

be with his girlfriend, although Officer Branson testified that

he did not hear Brown’s explanation.

In any event, unlike Turner, the government failed to

present evidence showing that probable cause existed to

search the trunk of the black car. The court engages in pure

speculation – suggesting that Brown may have been using the

gun to protect other contraband such as drugs, and that there

may have been multiple guns, Op. at 16–17 – that has no

evidentiary basis, much less sufficient evidence to demon-

strate that the police had probable cause to search the trunk.

There was no evidence, as there was in Turner, that the

police relied on their experience in concluding there was a fair

probability that there was contraband in the trunk of the

black car. Indeed, the court ignores the evidence that Officer

Branson’s reason for searching the trunk had nothing to do

with contraband; he was concerned about protecting the

14

police department against civil liability for valuables that

might be in the trunk. While Officer Branson’s subjective

motive is not determinative, it is informative of the objective

circumstances in light of his testimony that it was because he

saw personal items in the passenger compartment of the car,

as though someone was living there, that he decided to open

the trunk to check for valuables. It was the appearance of the

passenger compartment, as distinct from finding a gun or

suspecting that the occupants of the black car were involved

in the prior shooting or unlawful drug activity, that resulted

in the opening of the trunk. Thus, to defend the correctness

of the holding in Turner, as the court does, Op. at 18–20, does

not also demonstrate that its rationale is properly extended

beyond its moorings.

In California v. Acevedo, 500 U.S. 565, 580 (1991), the

Supreme Court reaffirmed its long-standing principle regard-

ing the permissible scope of warrantless searches of automo-

biles based on probable cause to believe there is contraband

or evidence of a crime to be found in a car: the search can go

no further than is necessary to discover the object of the

search supported by probable cause. In Acevedo, the Court

upheld the search of a bag in the trunk of a car where the

police had probable cause to believe that the bag contained

marijuana, while observing that because ‘‘the police did not

have probable cause to believe that contraband was hidden in

any other part of the automobile TTT a search of the entire

vehicle would have been TTT unreasonable under the Fourth

Amendment.’’ Id. The Court reemphasized that ‘‘ ‘searches

conducted outside the judicial process TTT are per se unrea-

sonable under the Fourth Amendment – subject only to a few

specifically established and well-delineated exceptions.’ ’’ Id.

(quoting Mincey, 437 U.S. at 390); Ross, 456 U.S. at 824. It

remains true, as the Supreme Court instructed in Carroll v.

United States, 267 U.S. 132, 156 (1925), that ‘‘[i]n cases where

the securing of a warrant is reasonably practicable, it must be

usedTTTT’’

For these reasons the conclusion follows that the evidence

demonstrated why the police would want to question the

occupants in the black car as potential witnesses to the

15

shooting earlier that night. It was another occupied car in

the parking lot when the police were questioning the men in

the white car. The complainant testified that the black car

often parked in the lot behind her apartment house. Because

the police were investigating a shooting they had reason to

proceed cautiously, and did so, entering the parking lot with

their guns drawn. But the evidence did not show that the

police had more than ‘‘inarticulate hunches’’ that Brown or

the other occupants of the black car were involved in the

earlier shooting, much less in any other criminal activity.

Perhaps, consistent with ‘‘the central teaching of th[e Su-

preme] Court’s Fourth Amendment jurisprudence,’’ the gov-

ernment might have been able to present evidence that would

meet the ‘‘demand for specificity in the information upon

which police action is predicated,’’ Terry, 392 U.S. at 21 n.18,

to support the admission against Brown of the evidence

seized without a warrant from the lawfully parked car in

which he was sitting with his girlfriend. However, it is not

the role of the court to fill in the gaps by rejecting evidence

that was presented and speculating about evidence the gov-

ernment might have presented. See Myers, 308 F.3d at 255.

The government bears the burden of proof, and under Terry,

the government must present evidence that the police officer

was able to articulate the specific facts that caused him to

view Brown as a likely suspect in the earlier shooting. Oth-

erwise, as Mincey, Terry, and the Supreme Court’s jurispru-

dence on warrantless car searches make clear, there is no

principled limit on invasions by the police of a person’s

security and privacy if a mere ‘‘hunch’’ suffices. Accordingly,

because there was no evidence to show that the police had

articulable suspicion of criminal wrongdoing by Brown to

justify a stop and seizure under Terry, or that there was

probable cause for a warrantless search of the car trunk for

contraband or evidence of a crime, the district court erred in

denying the motion to suppress the evidence, and I respect-

fully dissent.