D.C. Appeals Court Splits on When 'Furtive Gestures' Justify Car Searches

After pulling over a car on March 17, 2010, for tinted windows, U.S. Park Police Officer Lando Norris noticed something amiss as he approached on foot. According to an opinion (PDF) released today by the District of Columbia Court of Appeals, Norris saw that the driver and passenger had switched seats and the man now behind the wheel was making unusual movements with his hands around the dashboard.

The man in the driver's seat, Tyrone Jackson, was charged with possession of cocaine with intent to distribute after a search of the car yielded bags of the drug hidden inside the cover of the steering wheel. In a split decision, however, the appeals court ruled today that Norris lacked reasonable suspicion to do the search in the first place.

The court reversed a trial judge's denial of Jackson's motion to suppress the drug evidence, finding that the circumstances surrounding the arrest weren't enough for Norris to reasonably believe that Jackson was dangerous and might have easy access to a weapon. In a dissenting opinion, Senior Judge James Belson said the majority gave "too little weight to the safety and life of the investigating officer."

The majority opinion, written by Judge Corinne Beckwith, delved into what the court acknowledged was the difficult subject of what types of "furtive gestures" give police legal ground to do a search during a traffic stop. During an otherwise lawful stop, police can search a car on the spot if they have reasonable suspicion that a suspect is armed and dangerous.

Beckwith wrote that previous decisions seemed to draw a line between "conspicuous reaches under the seat" and "less distinct bending motions" around the dashboard, console or passenger seat. A suspect trying to shove something down the front of his pants would be a good indication that he's hiding a weapon, she wrote, while general movements around the dashboard most likely would not.

The court found that there was a "logical gap" between Jackson making ambiguous movements with his hands around the dashboard and the conclusion that he was dangerous. There weren't enough specific signs that Jackson's movements had something to do with trying to grab or hide a weapon, Beckwith wrote.

The court found that while other factors may have led Norris to think he could be in danger – the tinted windows and the fact that it was nighttime in a high-crime area, for example – they still didn't rise to the level of suspicion needed to do the search.

While recognizing that officers face "untold dangers" during traffic stops, Beckwith wrote that "[t]he stop in this case lacked many of the hallmarks of a particularly dangerous situation." She was joined in the decision by Judge Anna Blackburne-Rigsby.

In his dissent, Belson called the majority's analysis "unduly restrictive." Given the many hiding places in different types of cars, he wrote, "it would not be appropriate for us to substitute our judgment for that of an experienced police officer who sees hurried, continuous, and unnecessary hand motions in the dashboard area and believes that a suspect is doing precisely what the appellant here was almost certainly doing: hiding an object…where he hoped it would escape detection."

The U.S. attorney's office, through spokesman William Miller, declined to comment. Jackson's attorney, solo practitioner Ian Williams, could not immediately be reached.

Comments

[JW in TN]

They must be idiots! Are these judges soft or just soft in the head? They need to spend some time doing ride alongs before they make such ill-informed decisions. If the furtive movements had not resulted in finding some contraband, would we be having this case at all.

[Christopher A. Bailey, Paralegal]

Interesting case on the line between legal and illegal searches and seizures. But those of us legal scholars know that there is fine line in the first place and the hindge is on probable cause, which is a matter of perspective.

[Buckley]

This is not a sound decision and it sets the stage for uneven, inefficient law enforcement. A meandering analysis and ambiguous parameters for officers. The dissent hits the nail on the head. Ultimately, the majority opinion manages to make DC residents less safe.