USA. v. Christian, 98-3047

• Decision Date: 03 September 1999
• Docket Number: No. 98-3047,98-3047
• Citation: 187 F.3d 663,337 U.S. App. D.C. 402
• Parties: (D.C. Cir. 1999) United States of America, Appellee v. Morris B. Christian, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 663

187 F.3d 663 (D.C. Cir. 1999)

United States of America, Appellee v. Morris B. Christian, Appellant

No. 98-3047

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 1998

Decided September 3, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cr00446-01)

Gregory L. Poe, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A. J. Kramer, Federal Public Defender.

Susan B. Menzer, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: Silberman, Ginsburg and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland:

Garland, Circuit Judge:

Morris Christian, who was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), appeals the district court's denial of his motion to suppress the firearm. He argues that the police violated his Fourth Amendment rights by searching his car, next to which he was standing at the time of his arrest. We agree with Christian that the search, which yielded the firearm, cannot be justified as a search incident to arrest because at the time of the search the police did not have probable cause to believe he had committed a crime. We agree with the government, however, that the search was permissible as part of a valid investigatory stop and weapons search under the Supreme Court's decisions in Terry v. Ohio, 392 U.S. 1 (1968), and Michigan v. Long, 463 U.S. 1032 (1983). We therefore affirm the judgment of the district court.

I

On the afternoon of October 12, 1997, Officer Allee Ramadhan of the Metropolitan Police Department and his partner were stationed in an area of southeast Washington, D.C., that they characterized as "notorious for drug selling and stolen property." App. 22. From their squad car they observed Christian standing "right next to" an empty, two-door Chevrolet Camaro. He was with a woman who was holding a white plastic bag. Christian himself was holding three cans of deodorant under his arm, and two unidentifiable objects in his hand. According to Ramadhan, "as soon as he saw" the police, Christian threw the two objects through the Camaro's front window, which was open approximately five or six inches. Id. at 23.

The officers approached Christian and the woman to investigate. Through the car's partially open window, Ramadhan noticed a dagger with a six-inch blade wedged between the driver's seat and the front passenger's seat. Ramadhan asked whose vehicle it was, and Christian said it was his. Because the driver-side door was locked, Ramadhan asked for the car keys. After Christian handed them over, but without his consent to search, Ramadhan entered the car to secure the dagger.

While retrieving the dagger, the officer noticed two tubes of toothpaste on the floor, which Christian identified as the items he had tossed through the window. Ramadhan also noticed a bag lying on the front passenger's seat next to the dagger. He picked up the bag, felt what he thought was a weapon inside, and opened it to find a loaded, .45 caliber handgun and additional ammunition. After learning that Christian had a prior felony conviction, Ramadhan placed him under arrest. Thereafter, he "did a pat-down ... to make sure [Christian] didn't have any more guns on him." Id. at 39-40.

Christian was indicted for being a felon in possession of a firearm, and moved to suppress the gun on the ground that the warrantless search of his car violated the Fourth Amendment to the Constitution. Ramadhan was the only witness at the suppression hearing and testified as set forth above.Crediting the officer's testimony, the district court denied Christian's motion, stating:

The premise of ... the seizure of these items and the arrest of this defendant begins with what I think is appropriately categorized as a Terry stop.... [W]hen the defendant saw him, the defendant threw a couple of items into the car. That activity in that neighborhood gave rise to a reasonable articulable suspicion that some-thing was going on; and ... it was proper for the officer to follow up.... So that disposes of that question. When the officer then saw what he described as a large dagger sticking in between the seats, it gave rise to appropriate further action on the officer's part, including checking out that dagger [and] picking up the bag next to it, because under Terry the officer is permitted to [examine] by plain touch or plain feel that which might bear on the safety of the officer himself.

Id. at 44-46.

Christian subsequently entered a conditional plea of guilty, reserving his right to appeal the suppression ruling. See Fed. R. Crim. P. 11(a)(2). The court sentenced him to two years probation. This appeal followed.

II

The government advances two exceptions to the Fourth Amendment's warrant requirement that, it contends, validate the officers' warrantless search of Christian's car. It argues, first, that the police had probable cause to arrest Christian for possessing a dangerous weapon, and therefore had authority to conduct a search incident to that arrest. It argues, second, that the officers had reasonable suspicion to stop and question Christian, and that, given their equally reasonable fear that he was armed, they also had authority to conduct a protective search for weapons.

We decide de novo whether the police had probable cause, reasonable suspicion or reasonable fear. See Ornelas v. United States, 517 U.S. 690, 699 (1996). We review the district court's "findings of historical fact only for clear error and ... give due weight to inferences drawn from those facts" as well as to the court's determination of witness credibility. Id. at 699. After hearing the testimony of Officer Ramadhan, the district court accepted the government's second argument. We do so as well.

A

A search incident to arrest is a well recognized exception to the Fourth Amendment's warrant requirement. As the Supreme Court held in Chimel v. California, "[w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape." 395 U.S. 752, 762-63 (1969). "In addition," the Court held, "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person," as well as in "the area 'within [the arrestee's] immediate control.' " Id.

The government argues that the police officers had probable cause to place Christian under arrest once they detected the dagger in plain view in the car's front seat and confirmed that the car was his. Possession of the dagger, the government contends, is a violation of D.C. Code Ann. § 22-3214(b).The problem with the government's theory, however, is that the cited statute does not make possession of a dagger, without more, a crime.

Section 22-3214 is composed of two subsections. Subsection (a) makes it a crime to possess certain listed weapons, including machine guns, sawed-off shotguns, blackjacks, switchblades, and metal knuckles--none of which Christian had. That subsection has no specific intent requirement because, according to the District of Columbia Court of Appeals, the listed weapons are "so highly suspect and devoid of lawful use that their mere possession is forbidden." United States v. Brooks, 330 A.2d 245, 247 (D.C. 1974). The subsection at issue here, however, § 3214(b), makes it a crime to "possess, with intent to use unlawfully against another, an imitation pistol, or a dagger, dirk, razor, stiletto, or knife with a blade longer than 3 inches, or other dangerous weapon."Id. at 246 (emphasis added). The Court of Appeals has repeatedly held that mere possession of one of these items is not sufficient to violate the statute; there must also be evidence that the possessor intended to use it "in an assaultive or otherwise unlawful manner." Id. at 247.¹ Without such evidence, possession of a "dagger" is no more unlawful than possession of a kitchen knife or, for that matter, a furniture leg. See Jones v. United States, 401 A.2d 473, 475 (D.C. 1979) (holding that defendant may be convicted for possession of furniture leg if he had "specific intent to use the weapon unlawfully against another").

Lacking any direct evidence that Christian intended to use the dagger unlawfully, the government offers two pieces of circumstantial evidence. First, it contends that "[s]ince daggers, unlike kitchen knives, have no obvious utilitarian purpose, particularly in cars, this dagger's incriminating nature was self-evident." Gov't Br. at 8. Second, it asks us to infer a possible criminal intent from the fact that the dagger and the car were in a high-crime neighborhood. But as the government conceded at oral argument, there is at least one "utilitarian" and perfectly lawful purpose for keeping a dagger in a car, particularly in a high-crime neighborhood: selfdefense. See McBride v. United States, 441 A.2d 644, 649 & n.9 (D.C. 1982) (holding that self-defense is a lawful purpose for possession of a weapon listed in § 3214(b)). Given the possibility of a lawful purpose, and the absence of any evidence whatsoever that Christian possessed the knife for an unlawful one, the officers lacked probable cause to believe a crime had been committed.

Nor is the government assisted by the Supreme Court's statement, in Adams v. Williams, that "[p]robable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction."407 U.S. 143, 149 (1972). In Adams, although the police lacked direct evidence that the defendant unlawfully possessed the pistol in question, the circumstances surrounding his arrest supported the necessary inference. An informant had told the...