UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

CHRISTIAN, MORRIS


98-3047a

D.C. Cir. 1999


*	*	*


Garland, Circuit Judge: Morris Christian, who was con- victed of
possession of a firearm by a convicted felon in  violation of 18
U.S.C. s 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


I


On the afternoon of October 12, 1997, Officer Allee Rama- dhan 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 Chev- rolet 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 inves- tigate.
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 Amend- ment 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 [exam-


ine] 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 au- thority 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 Offi- cer 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 Su- preme 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 per- son," as well
as in "the area 'within [the arrestee's] immediate  control.' " Id.


The government argues that the police officers had proba- ble 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 govern- ment contends, is a violation of
D.C. Code Ann. s 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. Subsec- tion (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."
Unit- ed States v. Brooks, 330 A.2d 245, 247 (D.C. 1974). The 
subsection at issue here, however, s 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 assaul- tive 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 




__________

n 1 See McBride v. United States, 441 A.2d 644, 648-49 (D.C.  1982);
Jones v. United States, 401 A.2d 473, 475-76 (D.C. 1979);  H.R. Rep.
No. 82-538, at 8 (1951) ("The mere possession of these  weapons
cannot, your committee realizes, be barred; but if the  possession,
coupled with criminal intent, can be shown to exist, your  committee
feels that appropriate punishment should follow.").


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 dag- gers, unlike kitchen
knives, have no obvious utilitarian pur- pose, 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 dag- ger in a
car, particularly in a high-crime neighborhood: self- defense. 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 s 3214(b)). Given the  possibility of a lawful
purpose, and the absence of any evi- dence 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 pos- sessed the pistol in question, the circumstances
surrounding  his arrest supported the necessary inference. An
informant  had told the officers that the defendant, who was seated in
a  nearby vehicle, was carrying narcotics and had a gun at his  waist.
The Court held that the fact that "the policeman  found [defendant] in
possession of a gun in precisely the place  predicted by the informant
... tended to corroborate the  reliability of the informant's further
report of narcotics and,  together with the surrounding circumstances,
certainly sug- gested no lawful explanation for possession of the
gun." Id.  at 148. Here, however, there was a "lawful explanation" for


Christian's possession of the dagger. Here the officers did  not simply
lack the "type of specific evidence of" Christian's  intent "as would
be needed to support conviction," id. at 149;  they lacked any
evidence at all that Christian intended to use  the dagger unlawfully.
Without such evidence, there was no  probable cause for arrest. See
Gasho v. United States, 39  F.3d 1420, 1428 (9th Cir. 1994) (holding
that although "an  officer need not have probable cause for every
element of the  offense ... when specific intent is a required element
of the  offense, the arresting officer must have probable cause for 
the element in order to reasonably believe that a crime has 
occurred."). And without a valid arrest, the warrantless  search
cannot be justified by the "search incident to arrest"  exception.


B


The government's second justification for the seizure of the  gun is
that it occurred during a valid protective search for  weapons under
the "stop and frisk" doctrine of Terry v. Ohio,  392 U.S. 1 (1968). In
Terry, the Court held 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 articula- ble facts which, taken
together with rational inferences from  these facts," give rise to a
reasonable suspicion of criminal  activity. Id. at 21; see United
States v. Sokolow, 490 U.S. 1,  7 (1989); New York v. Class, 475 U.S.
106, 117 (1986). The  Court further upheld an officer's authority to
search the  individual for weapons where he has a "reasonable fear for
 his own and others' safety" based on an articulable suspicion  that
the suspect is armed and dangerous. Terry, 392 U.S. at  30, 27; Long,


In Michigan v. Long, the Court, employing the same  standard applied in
Chimel, held that the scope of a Terry  search may extend beyond the
person of the suspect. 463  U.S. at 1035, 1049. The police, the Court
said, may search  " 'the [suspect's] person and the area "within his
immediate  control" ... mean[ing] the area from within which he might 
gain possession of a weapon.' " Id. at 1048 (quoting Chimel,  395 U.S.
at 763). In Long, the Court found that area to 


include the passenger compartment of a car outside of which  the
defendant was standing, after he had driven the vehicle  into a ditch
and gotten out to meet the investigating officers.  Id. at 1049. The
search of the compartment was "limited to  those areas in which a
weapon may be placed or hidden." Id.


In the case at bar, the district court found that a police  officer who
had regularly worked "an area notorious for drug  selling and stolen
property" could reasonably be suspicious of  someone who, "when seeing
the officer," immediately "throws  something into a car." App. 53.
Defendant does not dispute  the court's assessment that there was
sufficient basis for a  brief Terry stop,2 and we agree because the
defendant's  actions raised a reasonable suspicion that he was trying
to  hide contraband from the officers.3 See United States v. 




__________

n 2 In a footnote, defendant does suggest that any justification for 
the stop and subsequent weapons search dissipated once the officer 
saw the tubes of toothpaste on the floor and heard Christian say  they
were what he had tossed. Def. Br. at 15 n.9. But at that  point the
officer did not know defendant was telling the truth (the  officer had
not yet searched for any other objects that might have  been thrown),
and hence he was not obligated to break off his effort  to secure the
area on Christian's word alone.


3 The government contends that once Officer Ramadhan "ob- served a
dagger in plain view in the car, he had a reasonable  articulable
suspicion to believe that appellant was committing a  weapons
offense." Gov't Br. at 16. For the same reasons dis- cussed in Part
II(A), we do not agree that the presence of the  dagger in the car
gave rise to reasonable suspicion that Christian  was in possession of
a prohibited weapon, an offense which requires  specific intent. Nor
do we understand why the government makes  this argument. The officer
did not mention the dagger as a basis  for the suspicion that led to
the stop. See App. 30-31. Although  the district court did rely on the
dagger to establish the reasonable  fear required for the car search
(as do we, see text infra), the court  did not rely on it for the
reasonable suspicion required to justify the  initial Terry stop. See
App. 45 ("[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 something was going on.").
As noted in the text, Christian's 


Smith, 614 F. Supp. 25, 26-27 (D.D.C. 1994) (upholding Terry  stop
where, upon seeing police officers, defendant "immedi- ately bent
forward as if to hide something under the front  seat"); see also
United States v. Laing, 889 F.2d 281, 283  (D.C. Cir. 1989); United
States v. Williams, 822 F.2d 1174,  1176, 1179 (D.C. Cir. 1987). Nor
does Christian dispute that  if the officer could lawfully search the
area where the bag  was found, he was entitled to open the bag once he
felt the  gun. See Williams, 822 F.2d at 1184 ("[N]o warrant is 
needed for an opening of a container whose contents become  known
through a lawful touching of the outside."); see also  Minnesota v.
Dickerson, 508 U.S. 366, 375-76 (1993); United  States v. Russell, 655
F.2d 1261, 1264 (D.C. Cir. 1981).


Defendant does, however, dispute that the police had the  kind of
"reasonable fear" necessary to justify a search for  weapons. He
further contends that, even if the police did  have such reasonable
fear, the car's passenger seat was not  an area within his "immediate
control" from which weapons  could be obtained. Def. Br. at 14. We
consider these two  arguments in turn.


First, we agree with the district court that Officer Rama- dhan had
sufficient indication Christian might be armed and  dangerous to
justify a protective search for weapons. In  Long, the Court said that
"danger may arise from the possi- ble presence of weapons in the area
surrounding a suspect."  463 U.S. at 1049. Here, the presence of a
weapon was not  merely "possible"; when Ramadhan arrived at
Christian's  car, he saw the dagger in plain view near the defendant. 
Within moments, Christian confirmed that the car containing  the
dagger was his. Moreover, as we have noted before, the  presence of
one weapon may justifiably arouse concern that  there may be more in
the vicinity, as turned out to be the  case here. See United States v.
Abdul-Saboor, 85 F.3d 664,  670 (D.C. Cir. 1996).




__________

n throw, which gave rise to the suspicion that he was trying to remove 
something from the officer's view, was sufficient to validate the 
stop.


Defendant protests that because his possession of the dag- ger was
lawful, it cannot supply the justification for a protec- tive search.
But the Supreme Court expressly rejected the  same argument regarding
a defendant's hunting knife in  Long itself. 463 U.S. at 1052 n.16
("Long also argues that  there cannot be a legitimate Terry search
based on the  discovery of the hunting knife because Long possessed
that  weapon legally.... [W]e have expressly rejected the view  that
the validity of a Terry search depends on whether the  weapon is
possessed in accordance with state law."). Even a  lawfully possessed
weapon may pose a threat, and because  "[t]he purpose of [a Terry]
search is not to discover evidence  of crime, but to allow the officer
to pursue his investigation  without fear of violence," the lawfulness
of defendant's pos- session is irrelevant to this aspect of the Terry
analysis.  Adams, 407 U.S. at 146.


Christian further contends that Officer Ramadhan's actions  belie the
government's claim that he regarded Christian as a  threat. After all,
he did not frisk Christian's person until  after he had found the gun
and placed him under arrest.  Had the officer truly feared him,
Christian argues, he would  have frisked him before turning to the


This argument misses the mark for two reasons. First, as  appellate
judges we do not second-guess a street officer's  assessment about the
order in which he should secure poten- tial threats. To the contrary,
we must defer to his "quick  decision as to how to protect himself and
others from possible  danger." Terry, 392 U.S. at 28; see also United
States v.  Wilkerson, 598 F.2d 621, 625 (D.C. Cir. 1978) (rejecting 
defendant's claim "that the search of the car was not a  protective
search because the driver ... [was] not frisked  until after the
officer found the gun," since this was tanta- mount to a request "to
instruct the police on the priority of  search once reasonable
suspicion of danger exists"). Second,  in assessing an officer's
actions under Terry, we evaluate his  conduct objectively, not
subjectively. See, e.g., Long, 463  U.S. at 1046 n.11 ("[T]he
propriety of a Terry stop and frisk  is to be judged according to
whether the officer acted as a  'reasonably prudent man' in deciding


justified."); see also Ornelas, 517 U.S. at 696; Horton v.  California,
496 U.S. 128, 138 (1990) ("[E]venhanded law  enforcement is best
achieved by the application of objective  standards of conduct, rather
than standards that depend upon  the subjective state of mind of the
officer."). Thus, Rama- dhan's actual motives for conducting the
search were not  relevant as long as his actions were objectively
reasonable.4  Because we conclude that they were objectively
reasonable,  we affirm the district court's finding that the police
had a  reasonable basis for conducting a Terry search.


Christian's second argument is that, even if the police had a 
sufficient foundation for a Terry search, the car's interior was 
beyond its lawful scope. He correctly points out that unlike  the
facts of Long, in which the defendant's car door was open,  the police
knew Christian's driver-side door was closed and  locked, and the
officer had taken the keys. Under those  circumstances, he contends,
the car's interior was not "within  his immediate control."


We begin by noting that the fact that Ramadhan obtained  the keys is
not relevant to the analysis. The officer request- ed the keys to use
them to open the door to secure the knife.  As in the related context
of searches incident to arrest, we  assess a Terry search from the
standpoint of the moment of  the stop--at which time Christian still
had the keys--not  from the subsequent period in which the officer
begins to take  protective measures. Otherwise, "we might create a
perverse  incentive for an arresting officer to prolong the period
during  which the arrestee is kept in an area where he could pose a 
danger to the officer." Abdul-Saboor, 85 F.3d at 669; see In  re
Sealed Case, 153 F.3d 759, 768 (D.C. Cir. 1998). Since, as  defendant
concedes, Christian was "stopped" for Terry pur- poses from the moment
the officer requested his keys, we  evaluate the risk to the officer




__________

n 4 For the same reasons, defendant is not helped by Ramadhan's 
testimony that he initially entered the car "to get the knife, get the
 stuff out of the vehicle [that Christian] just threw inside," rather 
than to check for additional weapons. App. 35.


Under these circumstances, the officers were "reasonably  warrant[ed]
... in believing that" Christian could have  "gain[ed] immediate
control" of the weapon. It was not  unreasonable to fear he might
lunge for the door, open it with  the keys, and grab the knife. As the
Court stated in Long, it  is mistaken to discount police concern over
an individual  simply "because he was effectively under their control
during  the investigative stop." Long, 463 U.S. at 1051. To the 
contrary, a Terry suspect might well "break away from police  control
and retrieve a weapon from his automobile." Id.; see  Wilkerson, 598
F.2d at 625 ("[S]tanding next to the car  without handcuffs, either
the driver or one of the passengers  could have bolted to it, seized a
weapon and fired before the  officers could find cover."). Nor does it
matter that the car  door was closed; as the Court said in Chimel, a
"gun on a  table or in a drawer in front of one who is arrested can be
as  dangerous to the arresting officer as one concealed in the 
clothing of the person arrested." Chimel, 395 U.S. at 763  (quoted in
Long, 463 U.S. at 1048) (emphasis added). And  while the time it would
take to unlock the door would slow  Christian down, the police "cannot
be expected to make  punctilious judgments regarding what is within
and what is  just beyond the arrestee's grasp." United States v.
Lyons,  706 F.2d 321, 330 (D.C. Cir. 1983).


Moreover, even if control were measured at the time the  officer had
the keys, we would still conclude Christian had  sufficient control
over the front seat of his car to satisfy the  Chimel standard. See
United States v. Mancillas, No.  98-1001, 1999 WL 460976 (7th Cir.
July 7, 1999) (holding that  dashboard of car was within the area into
which defendant  "might reach in order to grab a weapon" where officer
made  Terry stop of defendant outside of locked car, saw gun on 
dashboard, and requested keys from defendant in order to  open door)
(quoting Chimel). The window of the driver-side  door was open
approximately five to six inches, large enough  for Christian to reach
his arm through to unlock the door  manually. And there is no
indication the officers knew or  could have known whether the
passenger-side door was  locked. Christian or the woman with him might


mentarily broken away from police control, opened the pas- senger door,
and seized either the dagger or the gun--which  was in a bag on the
passenger's seat. That these scenarios  may not be probable is not
decisive. As we have said before,  the Chimel test is not whether an
area was probably accessi- ble to the suspect at the time of the
search, but whether it  was "conceivably" accessible. Lyons, 706 F.2d
at 330; see  Sealed Case, 153 F.3d at 768; Abdul-Saboor, 85 F.3d at
669  ("Showing that the area searched was 'conceivably accessible  at
the time of the search' was not meant to be difficult."). 
Accordingly, we have upheld searches "even when hindsight  might
suggest that the likelihood of the defendant reaching  the area in
question was slight," Lyons, 706 F.2d at 330, and  when that
likelihood was substantially lower than it was  here.5


Finally, as the Court instructed in Long, we must also  consider that
"if the suspect is not placed under arrest, he  will be permitted to
reenter his automobile, and he will then  have access to any weapons
inside." Long, 463 U.S. at 1052.  Had no search been conducted here,
and hence no gun found,  the police would eventually have permitted
Christian to leave  and, presumably, to re-enter his car. At that
point, Christian  would have had immediate access to both the knife
and gun.  Under these circumstances, it was appropriate to conduct a 
Terry search to ensure that such access would not endanger  the lives
of the departing officers. See id.; United States v.  McClinnhan, 660
F.2d 500, 504 (D.C. Cir. 1981) (upholding 




__________

n 5 See, e.g., United States v. Mason, 523 F.2d 1122, 1125-26 
(sustaining search of closet three or four feet away from handcuffed 
defendant). Compare Abdul-Saboor, 85 F.3d at 670-71 (upholding  search
of room as "conceivably accessible" to defendant who was  "handcuffed,
sitting on a chair" four feet outside the door with two  officers, at
least one of whom was armed), with Lyons, 706 F.2d at  330 (finding it
"inconceivable that [defendant] could have gained  access" to closet
several yards away from where defendant, who had  briefly collapsed,
was "sitting, handcuffed, on a chair ... [with] six  police officers,
at least four of whom presumably were armed").  See generally Sealed
Case, 153 F.3d at 768-69 (discussing Abdul- Saboor and Lyons).


Terry search of briefcase because "[m]erely separating [de- fendant]
from his briefcase ... would obviate the danger only  for the length
of the stop; at some point they would be  compelled to return the
briefcase to appellant and thus place  themselves in the danger they
sought to avoid"); see also  United States v. Woody, 55 F.3d 1257,
1269-70 (7th Cir. 1995)  (upholding search of defendant's locked glove
compartment  while he sat handcuffed in patrol car because of
officers'  anticipation that defendant and passengers would eventually
 return to their car).6


III


We conclude that the seizure of Christian's gun did not  violate his
rights under the Fourth Amendment. According- ly, the district court
properly denied defendant's motion to  suppress the evidence, and we
affirm his conviction.




__________

n 6 Our decision in United States v. Fafowora, 865 F.2d 360 (D.C.  Cir.
1989), is not to the contrary. There we held that the "bright- line
rule" of New York v. Belton, 453 U.S. 454 (1981), "that the  passenger
compartment lies within the reach of the arrested occu- pant," does
not apply "when the police come upon the arrestees  outside of the
automobile." 865 F.2d at 362. "[I]nstead, the normal  framework of
Chimel applies" and the area searched must be  "within the 'immediate
surrounding area' into which [defendants]  might have reached at the
time the [police] caught up with them."  Id. In the instant case, the
government does not urge the applica- tion of Belton, but rests
instead on the normal framework of  Chimel. In Fafowora we found the
car search to be outside the  immediate surrounding area of defendants
since they were arrested  a car length away, walking in the opposite
direction. Id. at 361-62.  Here, by contrast, the police confronted
Christian when he was  standing directly next to the car.