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


UNITED STATES

v.

JOHNSON, ROBERT LEE


98-3122a

D.C. Cir. 2000


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Silberman, Circuit Judge: Robert Lee Johnson appeals his  conviction
for possession, with intent to distribute, of crack  cocaine. He
argues that the evidence against him was the  product of a stop and
frisk that was not supported by  reasonable suspicion. We affirm.


I.


According to the evidence in the record, on the night of  Johnson's
arrest, two officers of the Metropolitan Police  Department were
driving in an unmarked car in an area of  Southeast Washington they
characterized as "a high narcotics  area." They pulled into a parking
lot and saw a parked car  with two people in it. Johnson was sitting
on the passenger's  side, and another person was on the driver's side.
The  officers saw a young woman leaning into the passenger's  window
and handing Johnson an object, which they could not  identify. At this
point they approached the car and the  woman began to walk away.


One of the officers, Michael Fulton, saw Johnson make  what Fulton
described as a "shoving down" motion, leading  him to believe that
Johnson might be armed. He drew his  gun, advised his partner to do
the same, and shouted, "Let  me see your hands." Johnson did not
immediately comply  but rather made "a couple of more shoving motions
down"  before raising his hands. Fulton reached into the car and 
touched a bulge in Johnson's left pants pocket. He felt large,  hard
objects which he believed to be rocks of crack cocaine.  He then
removed a plastic bag from the pocket. It contained  18 rocks of crack
cocaine that, together with another rock  found in Johnson's clothing,
totaled 72 grams. Johnson was  arrested, but the driver of the car and
the woman standing  outside it were not.


Prior to trial, Johnson moved to suppress all of the evi- dence
recovered from him. He argued that the police did not 


have a reasonable suspicion that he was engaged in criminal  activity,
and that the stop and frisk were therefore illegal.  The government
argued that the stop was permissible under  Terry v. Ohio, 392 U.S. 1
(1968), because the police reason- ably suspected that a drug
transaction was taking place, and  that the frisk was proper because
Johnson's conduct led the  officers to believe that he was armed. At a
hearing on the  suppression motion, the government presented the
testimony  of Officer Fulton. Johnson called no witnesses. The
district  court denied the motion without explanation. After a jury 
trial, Johnson was convicted and was sentenced to 168 months  in


On appeal, Johnson renews his argument that the stop was  unjustified
and that the frisk exceeded the scope allowed by  Terry. He also
contends that the district court erred in  failing to make factual
findings on the record at the suppres- sion hearing. In his brief, he
suggested that the prosecutor  violated the Fifth Amendment by arguing
to the jury that  Johnson's presence throughout the trial gave him an
opportu- nity to tailor his testimony in response to that of other 
witnesses. We need not discuss this claim because as counsel  conceded
at argument the theory underlying it was rejected  in the Supreme
Court's recent decision in Portuondo v.  Agard, 120 S. Ct. 1119


II.


We begin with Johnson's claim that, regardless of the  validity of the
stop and frisk, the district court's ruling cannot  be affirmed
because the trial judge failed to make factual  findings on the
record. Federal Rule of Criminal Procedure  12(e) provides: "Where
factual issues are involved in deter- mining a motion, the court shall
state its essential findings on  the record." The government agrees
that the district court  failed to comply with the rule, but it
contends that Johnson  waived his challenge to this omission because
he did not  object to the lack of factual findings, nor did he ask the
court  to explain its ruling.


In United States v. Harley, 990 F.2d 1340, 1341 (D.C. Cir.  1993), we
held that Rule 12(e) can be waived and that when  the district court
has not made findings, "any factual disputes  must be resolved in
favor of admissibility and we must uphold  the denial of [the] motion
if any reasonable view of the  evidence supports it." See also United
States v. Caballero,  936 F.2d 1292 (D.C. Cir. 1991). To be sure, when
the district  court has not made findings, and when it is not clear
what  legal theory the court relied on, a remand may be required  even
if the Rule 12(e) defect was waived. See United States  v. Williams,
951 F.2d 1287 (D.C. Cir. 1991). In Williams, the  district court not
only did not make specific findings, it did  not indicate which
arguments, of the three that were ad- vanced by the government, it
accepted to justify a search.  Noting that the "purpose of an appeal
is to review the  judgment of the district court, a function we cannot
properly  perform when we are left to guess at what it is we are 
reviewing," we relied on our inherent supervisory power over  the
district courts to order a remand. Id. at 1290; see also  United
States v. Dale, 991 F.2d 819, 840 (D.C. Cir. 1993)  (reviewing the
district court's findings after having remanded  "because we did not
know which of three separate legal  theories advanced by the
government the district court had  adopted and what facts, if any, it


Notwithstanding Williams, when the validity of a search  can be upheld
"based upon an argument made by the govern- ment below and supported
by evidence either uncontested or  found credible by the District
Court," the denial of a suppres- sion motion may be affirmed. United
States v. Taylor, 997  F.2d 1551, 1555 (D.C. Cir. 1993). The situation
in Williams  was "exceptional," Harley, 990 F.2d at 1341 n.1, and a
re- mand is not necessary unless there is genuine uncertainty  about
what the district court did. There is no uncertainty  here. The
government offered only one legal theory--i.e.,  that Officer Fulton
was frisking Johnson for weapons after a  Terry stop--and it presented
uncontroverted testimony from  Officer Fulton. The issue then is
whether the government's 


theory is supported by the facts that were presented at the  hearing.


The government identifies several factors that it says pro- vide the
"minimal level of objective justification" necessary  for a Terry
stop. United States v. Sokolow, 490 U.S. 1, 7  (1989). First,
Johnson's car was in a high-crime area. Offi- cer Fulton described it
as a "high narcotics area," adding "I  have been involved in numerous
narcotics arrests there."  While obviously insufficient by itself to
amount to reasonable  suspicion, this is "among the relevant
contextual consider- ations in a Terry analysis." Illinois v. Wardlow,
120 S. Ct.  673, 676 (2000). Second, Fulton saw a woman lean into the 
car and hand Johnson an object, and third, when Fulton  approached in
his unmarked car, the woman walked away and  Johnson made a "shoving


If the seizure had taken place at that point, we doubt very  much
whether it would have been valid. As Johnson points  out, simply
receiving an object from another person--Fulton  did not see Johnson
give the woman anything in exchange--is  a common occurrence for which
there could be many innocent  explanations. And while Johnson's
furtive gestures prior to  Fulton's command may be more suspicious,
they are signifi- cant only if they were undertaken in response to
police  presence. It is not clear that Johnson was aware that Fulton 
was a police officer; Fulton was after all in an unmarked car.  While
Fulton did testify that his car was "one of those ones  that everybody
knows it's a police cruiser" because it had "a  little dome light in
it," that may not help much. The govern- ment did not seek to qualify
Fulton as an expert on public  identification of police vehicles, and
Fulton did not establish a  factual foundation for opinion testimony
as a lay witness. Cf.  Fed. R. Evid. 701, 702.


We need not focus on those questions, however, because we  do not think
the seizure took place immediately after John- son's first "shoving
down" motion, when Fulton drew his gun  and ordered Johnson to raise
his hands. Under California v.  Hodari D., 499 U.S. 621 (1991), a
seizure requires the applica- tion of physical force or submission to
an assertion of authori-


ty. Before Johnson raised his hands, Fulton had made a  show of
authority but Johnson had not submitted to it. On  the contrary, he
continued to make "shoving down" motions,  gestures that were the very
opposite of complying with  Fulton's order, and which a reasonable
officer could have  thought were actually suggestive of hiding (or
retrieving) a  gun. In sum, by the time the stop actually took place,
it was  supported by Johnson's continued furtive gestures in re-
sponse to being confronted by a police officer, and that was 
suspicious enough to support a reasonable belief that Johnson  may
have been engaged in criminal activity.


Johnson argues that the stop actually took place much  earlier: as soon
as the officers pulled into the parking lot,  because they blocked
Johnson's car with their own. Brower  v. County of Inyo, 489 U.S. 593
(1989), suggests that blocking  a vehicle can be the kind of
application of physical force that  constitutes a seizure. So if
Johnson's car had been blocked,  he would have been stopped, and the
stop would be invalid  because at that point Fulton had almost no
reason to suspect  Johnson of wrongdoing. But Johnson can find little
factual  support for this argument in the record. The testimony on 
which he relies is ambiguous at best; such as Fulton's  statement that
"I was in a parking lot almost in front of their  vehicle but off, a
little off-centered to the vehicle." And the  rest of the testimony
actually contradicts the theory. For  example, Fulton went on to say
that he was about 25 feet  away from Johnson's car, hardly close
enough to block it.  More importantly, Johnson did not present this
argument to  the district court (and did not raise it here until his
reply  brief). His suppression motion is flatly inconsistent with his 
theory, arguing that "Mr. Johnson was seized for purposes of 
implicating his Fourth Amendment rights when the police  officers
forcibly detained and searched him." The district  court was not
obligated to conclude that Johnson was seized  when Fulton pulled into


Since the stop was valid, the frisk was permissible, for  Fulton
obviously had reason to suspect Johnson of being  armed. The
government points out that the discovery of  crack during the frisk
comes within the plain-feel doctrine of 


Minnesota v. Dickerson, 508 U.S. 366 (1993). Johnson re- sponds with
the claim that "Terry does not permit officers to  frisk any and every
bump or bulge. A bump or bulge that  could not reasonably be a weapon
cannot justify a pat-down  frisk." That is inconsistent with Dickerson
and with common  sense. A frisk may after all be conducted even when a
 suspect's clothing exhibits no visible bulges. The limitation 
imposed by Dickerson is that once the officer finds an object  on the
person of a suspect, he may not palpate it more than is  necessary to
determine whether it is a weapon. See, e.g.,  United States v. Ponce,
8 F.3d 989, 999 (5th Cir. 1993)  (removal of folded dollar bills from
pocket was inappropriate  because the officer could not have thought
they were a  weapon). Here, Fulton frisked Johnson and felt "a big 
bulge" in which he "fe[lt] what I immediately recognize[d] to  be
large, hard objects." He explained, "based on my experi- ence ... I
believe[d] what I [was] feeling to be crack co- caine." Fulton did not
exceed the permissible contours of a  Terry frisk.


* * * *


The judgment of the district court is


Affirmed.