U.S. v. Spinner

Citation475 F.3d 356
Decision Date16 January 2007
Docket NumberNo. 05-3160.,05-3160.
PartiesUNITED STATES of America, Appellee v. Richard SPINNER, Jr., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 04cr00556-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

John P. Mannarino, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

Richard Spinner, Jr. pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argues the weapon found in his truck should have been suppressed because police officers detained him without a reasonable, articulable suspicion of his being involved in a crime or, alternatively, because after frisking him (with his consent) they searched his vehicle without his consent and without a reasonable suspicion that it contained a weapon. Assuming without deciding that Spinner's parking violation justified his initial detention, we agree with Spinner that the police did not have the reasonable suspicion he was armed and dangerous necessary to justify their search of his vehicle. We therefore reverse the district court's order denying Spinner's motion to suppress and remand the record to the district court.

I. Background

The undisputed police testimony at the hearing held on Spinner's motion to suppress evidence is as follows. On November 26, 2004 Metropolitan Police officers were driving an unmarked police car through an area of Washington, D.C. in which there had recently been "several narcotics arrests." The officers pulled into an alley and there saw Spinner walking toward a parked Chevy Tahoe. As police approached, Spinner opened the door behind the driver's seat and got into the back seat of the truck. The police pulled up in order to "advise him that the vehicle needed to be moved because he couldn't park there" and motioned Spinner to roll down his window.

One of the officers testified:

At that point, [Spinner] looked at us. I guess he realized who we were, and he kept eye contact but his body dipped, the right side of his body dipped towards the center of the back of the vehicle. He just kept looking at us and he was going like this as if he was struggling with something or trying to conceal something.

The officer explained his concern as follows: "We don't know if he's trying to get something, we don't know if there's something in there that could possibly harm us. So I go to exit the vehicle." Spinner then got out of the truck and "walk[ed] to the back of the vehicle [leaving] the door wide open."

An officer told Spinner he could not park there and Spinner told him he had come to move the car, which the officers found puzzling: "And we were just thinking, well, if you were going to move it, why did you get in the back seat?" Spinner "was a little nervous at that point," so an officer asked if he had a weapon on him. Spinner said no and consented to a frisk of his person but, when asked if he had anything illegal in the truck and for consent to search it, said no and denied consent.

Spinner was then "getting really nervous" and one of the officers "felt that there was something that had been concealed in the vehicle. We felt that it was something that possibly could harm us." One officer then shined a flashlight into the Tahoe, the back door of which was still open, and "noticed that there was a small drawer at the back of the center console all the way at the bottom which was partially open, just a small bit, maybe a quarter of an inch." "[B]elieving that [Spinner] had stuck something there, [an officer] went directly to that area and did a limited search and just opened that drawer, and there was a handgun in the drawer." The police then arrested Spinner.

After Spinner was indicted for one count of being a felon in possession of a firearm he moved to suppress the physical evidence found in his vehicle, arguing the police lacked a reasonable suspicion upon which either to detain him or to search his vehicle. The district court thought it a "very close case" but ultimately denied the motion. The court first held the stop was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because "a traffic violation is a legitimate reason to stop somebody." The court then concluded the officers had a reasonable suspicion, arising from the totality of the circumstances — namely, Spinner's "odd" explanation, his "furtive movements," and his nervousness — to justify frisking Spinner and searching the truck.

Spinner entered a conditional plea of guilty, preserving his right to appeal. The district court sentenced him to 33 months in prison to be followed by three years of supervised release.

II. Analysis

Spinner argues again on appeal that the physical evidence found in his vehicle should have been suppressed as the product of a search made in violation of the Fourth Amendment to the Constitution of the United States. We review de novo the district court's determination that the police had a reasonable, articulable suspicion justifying the search. See United States v. Broadie, 452 F.3d 875, 879 (D.C.Cir.2006).

A. The Stop

Spinner argues first that the police did not have a reasonable, articulable suspicion that criminal activity was "afoot" when they stopped him. See Terry, 392 U.S. at 30, 88 S.Ct. 1868. The Government responds that under Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the parking violation gave the officers probable cause to stop Spinner, making an analysis under Terry irrelevant. Spinner concedes that Whren authorizes the police to stop a driver based upon "probable cause to believe that the driver is committing a traffic violation," but argues that Whren is not applicable to a mere parking violation.

The circuits that have considered the question whether a parking violation justifies a Terry stop have found no legally meaningful distinction between a parking and a moving violation. See United States v. Choudhry, 461 F.3d 1097, 1103-04 (9th Cir.2006) (concluding parking violation provided reasonable suspicion for stop even in state where parking violations are enforced through civil-administrative scheme); Flores v. City of Palacios, 381 F.3d 391, 402-03 (5th Cir.2004) (parking violation gave officer authority to stop under Whren); United States v. Copeland, 321 F.3d 582, 594 (6th Cir.2003) (same); United States v. Thornton, 197 F.3d 241, 248 (7th Cir.1999) (same). We need not reach the issue, however, because, as discussed below, we conclude the police did not have a reasonable suspicion that Spinner was armed and dangerous so as to authorize the search of his vehicle.

B. The Search

As we have recently explained, under Terry "a police officer may perform a protective frisk if he has reason to believe, based on `specific and articulable facts ... taken together with rational inferences from those facts,' that `he is dealing with an armed and dangerous individual.'" United States v. Holmes, 385 F.3d 786, 789 (D.C.Cir.2004) (quoting Terry, 392 U.S. at 21, 27, 88 S.Ct. 1868). Under the Terry `stop and frisk' exception to the fourth amendment requirement of probable cause, the police may also search those areas of an automobile in which "a weapon may be placed or hidden." Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469 77 L.Ed.2d 1201 (1983). Spinner therefore argues that because "[c]ar frisks under Long, like Terry frisks in general, are not automatic but are justified only when the police have a reasonable fear that the individual being detained is `dangerous' and `may gain immediate control of weapons[,' Long, 463 U.S. at 1049, 103 S.Ct. 3469,]" in this case "the facts did not establish grounds for opening the closed console drawer." More particularly, Spinner contends there was no objectively reasonable basis for the officers to believe he was armed and dangerous; he did not make any movements that suggested he was either armed or dangerous, and mere nervousness does not justify the inference that he was. The Government responds that the totality of the circumstances — namely, Spinner's furtive movement in the truck, his explanation that he was going to move the truck although he had gotten into the back seat, and his leaving the door of the truck open when he got out, together with his nervousness — created an objectively reasonable fear that Spinner had secreted a weapon in the Tahoe.

The district court concluded Spinner gave the police reason...

To continue reading

Request your trial
17 cases
  • U.S. v. Johnson, 06-3167.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 11, 2008
    ...United States v. Copeland, 321 F.3d 582, 594 (6th Cir.2003), this circuit has not yet decided the question, see United States v. Spinner, 475 F.3d 356, 358 (D.C.Cir. 2007) (assuming without deciding that the defendant's parking violation justified his initial Nor need we decide that questio......
  • U.S. v. Powell
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 17, 2007
    ...search not justified when it is begun cannot be used to elicit evidence with which to justify the search after the fact." United States v. Spinner, 475 F.3d 356, 359 n. * (D.C.Cir.2007) (citations omitted). The search of the car can be justified, if at all, only if it was incident to the ar......
  • State v. Warren
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 2021
    ...can effect a stop based upon a driver's failure to comply with Michigan's parking regulations ...."); see also United States v. Spinner , 475 F.3d 356, 358 (D.C. Cir. 2007) (acknowledging federal circuits "have found no legally meaningful distinction between a parking and a moving violation......
  • Jackson v. United States, No. 10–CF–1433.
    • United States
    • Court of Appeals of Columbia District
    • December 13, 2012
    ...person making the gesture is armed was at issue in a D.C. Circuit case with marked similarities to the present case. United States v. Spinner, 475 F.3d 356 (D.C.Cir.2007), presented the question whether the police had reasonable suspicion to believe a man in a vehicle was armed based primar......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT