U.S. v. Wilkerson, 77-1932

• Decision Date: 28 July 1978
• Docket Number: No. 77-1932,77-1932
• Citation: 194 U.S.App.D.C. 393,598 F.2d 621
• Parties: UNITED STATES of America v. Larry J. WILKERSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 621

598 F.2d 621

194 U.S.App.D.C. 393

UNITED STATES of America v. Larry J. WILKERSON, Appellant.

No. 77-1932.

United States Court of Appeals District of Columbia Circuit.

Argued March 24, 1978.

Decided July 26, 1978.

As Amended July 28, 1978.

David J. Cynamon, Washington, D. C. (appointed by this Court), for appellant.

Charles L. Hall, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.

Before TAMM and ROBINSON, Circuit Judges, and OBERDORFER, ^* United States District Judge for the United States District Court for the District of Columbia.

Opinion for the Court filed by OBERDOFER, District Judge.

OBERDORFER, District Judge:

In a stipulated trial without a jury, the District Court found appellant guilty of unlawfully possessing an unregistered sawed-off shotgun. Before the trial, the District Court denied appellant's motion to suppress the introduction of a pistol and sawed-off shotgun into evidence, holding that they were lawfully taken by police in a protective search of an automobile in which the appellant was riding as a passenger when he was arrested. This appeal tests that ruling.

We approve the ruling and affirm the conviction because the particular events which culminated in police discovery of the weapons provided reasonable, articulable suspicion that the self-protective, limited search of the car for weapons conducted here was necessary for the safety of the police.

Events preceding the weapons discovery transpired as follows: At about 6:00 a. m., May 13, 1977, Officer Harold Wooten of the District of Columbia Metropolitan Police Department was dispatched by radio to answer a traffic complaint about an automobile blocking a driveway at 1234 Massachusetts Avenue, N.W. in Washington. Officer Wooten was aware that the address and its neighborhood had been the source of numerous complaints involving prostitutes and juvenile robberies, among other things. As Wooten's police cruiser approached the address, he saw a 1977 automobile with out-of-state tags just starting to move from the driveway in front of the high-rise apartment building at the address. When Wooten pulled up to the building entrance, the receptionist came out and told the officer that the offending automobile had been parked at a prohibited place in the driveway with its motor running for about 30 minutes; three people were in the automobile, none of whom lived in the building, and that the automobile had just left with its lights out and the three in it. The officer then drove off in search of the automobile. A few minutes later he saw it near the highrise. It was traveling in excess of the speed limit without keeping within lanes and generally operating in a manner that would cause him to stop an automobile. After following it for a few blocks, he turned on his red signal. Traveling another 100 yards, the automobile stopped and the officer routinely radioed its license number to headquarters to learn whether the car was stolen.

The driver got out and walked back toward the officer. The driver, a male, was wearing a dress and a wig; a brassiere was exposed. When the officer asked for registration and permit, the driver replied that they were at home, and produced an auto rental agreement, but no personal identification. During this conversation, Officer Wooten questioned the driver about what appeared to be a credit card sticking out of the driver's brassiere. In response, he turned away, placed a hand in the area where the officer had seen a card, then turned back and said "What card?". Realizing that "something was kind of shaky," Officer Wooten requested the driver to step back into the car while he radioed for police assistance so that he could further "check out" the driver.

When assisting officers arrived, Officer Wooten, without waiting for a response to his initial radio inquiry as to the ownership of the car, stepped to the driver's side of the stopped car. He then asked the driver to step out again to explain the missing driver's license and the concealed credit card. The officer did not understand the driver's response; it made the officer realize for the first time, however, that the driver was a man, masquerading as a woman. The officer also observed the two passengers, one of whom was on the front seat with the driver and the other on the back seat, immediately behind the first. As the officer was questioning the driver, he noticed that the two passengers "were sort of, like uneasy, moving around a lot in the car."

Thereupon, Officer Wooten broke off further questioning and asked one of the assisting officers to stand next to the driver. Wooten then stepped around the front of the stopped automobile to the front passenger's door, where the appellant was seated. At Wooten's request the appellant and the rear seat passenger got out of the car. Without drawing his service weapon, Wooten looked into the front passenger compartment. There he noticed "this green coat in the front seat (which) appeared to be wrapped around something." Wooten reached into the front seat and placed his hand on the green coat, pressed it, and felt something like a shotgun; he then unwrapped it and saw a sawed-off shotgun. On checking, he found a shell in the chamber.

While Wooten was going through this process, there were at least four assisting officers present; the two automobile passengers and three or more of the assisting officers were standing, intermingled, beside the car. Prior to the discovery of the shotgun, none of the officers had frisked or handcuffed anyone. They had not made or threatened any arrest.

Upon discovering the shotgun, Officer Wooten alerted the other officers that he had found a shotgun and that there might be other weapons or contraband. In short order, Wooten unloaded the shotgun, and with the other officers, frisked the suspects, placed them under arrest, and warned them of their rights. One of the assisting officers, meanwhile, leaned into the right hand door to the rear passenger compartment and looked. Just beneath the front seat, he discovered the ".38" with six live rounds in it. The loaded revolver was visible and accessible to a person sitting in the back seat with about 3/4 of it under the seat and 1/4 protruding onto the floor of the rear passenger compartment.

In the course of the hearing on the motion to suppress the Court observed that Officer Wooten's police work which produced the contested evidence began when he went to the Massachusetts Avenue apartment house on the report of suspicious activity. The Court noted that "it is standard procedure for a police officer, who is going to arrest someone, to make sure he may do so without danger to his own life and limb." The Court considered the alternative available to the officer when he ordered the people out of the car: "(t)here is no reason to assume that he could not have been shot upon the arrest of the driver without the permit." Accordingly, the Court denied the motion to suppress.

Appellant's challenge of the stop and the removal of the driver and his passengers from the car require little discussion in light of prior decisions by this Court and by the Supreme Court. The driveway parking complaint and the traffic violations gave reasonable cause for a stop, quite apart from Officer Wooten's other suspicions. E. g., Pennsylvania v. Mimms,434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Montgomery, 182 U.S.App.D.C. 426, 561 F.2d 875 (1977). Weird and unsettling developments before and during the stop gave the officers the additional cause to order the driver and his passengers out of the car. United States v. Pelley, 572 F.2d 264 (10th Cir. 1978).

The only possibly serious question arises with respect to Officer Wooten's reaching into...