Thomas v. United States , 553 A.2d 1206 ( 1989 )

TERRY, Associate Judge:

Appellant Thomas was convicted of unlawful possession of a pistol after conviction of a felony¹ and bail jumping.² His only contention on this appeal is that the trial court erred in denying his motion to suppress the pistol, which was seized from the trunk of a car he was driving. We hold that the search of the trunk was based on probable cause, and accordingly we affirm the judgment of conviction.

I

In July 1984 Sergeant Francis L. Hinton, a sixteen-year veteran of the Metropolitan Police, was an automobile theft investigator assigned to the Third District. He testified that in looking for stolen cars, he focused particularly on “the appearance of the drivers ... the appearance of the vehicles, and the manner in which the vehicle was operated.” He also paid special attention to rental cars, which can be identified both by their license numbers and by window stickers bearing the name of the rental company. Rental cars are popular among car thieves, Hinton said, because they often are not reported stolen until they have been missing for at least thirty days. That summer the Hertz Corporation in particular had been experiencing thefts of its cars in Virginia, which the thieves would then sell, he said, to “unsuspecting” buyers in the District of Columbia.

On July 25, at about 3:00 p.m., Hinton and his partner, Officer Dale Hughes, were in Hughes’ car (not a police car) at the intersection of Fairmont Street and Sherman Avenue, N.W., when he saw a Hertz rental car drive over a large pothole or depression in the street without slowing down. Noticing that the driver — appellant —“appeared to be under twenty years of age,”³ Hinton and Hughes began to follow the Hertz car. At 11th and Fairmont Streets they saw it run a stop sign. It turned north on 11th Street and, taking a circuitous route (another suspicious circumstance, in the eyes of Sergeant Hinton), it sometimes exceeded the speed limit by as much as fifteen miles per hour. Hinton also noticed that the car, a white Mercury, had dirt on it, and he knew that rental cars are usually clean when rented.

Hinton and Hughes radioed for assistance in stopping the car,⁴ and in the 1600 block of Kalorama Road two police cruisers pulled it over. As appellant got out of the car of his own volition, Officer Charles Callis approached on the passenger side and asked the two passengers, Leon Bullock and Parker Farrow, to get out also. When Bullock alighted from the right front seat, Callis saw a ski mask, with the eye and mouth holes facing up, sticking out of a cloth bag in plain view on the floor next to the seat. Officer Callis thought it “very unusual” for anyone to have a ski mask on a hot day in July. Knowing that ski masks are commonly used by the perpetrators of holdups to conceal their identity, Callis reached down and picked up the ski mask to examine it more closely. As he did so, the bag fell over, and Callis heard the clank of metal against metal, “a heavy sound like ... you would get from guns.” Callis looked inside the bag and saw three revolvers. All the officers on the scene then conferred and decided to search the trunk of the car for possible robbery proceeds, additional weapons, or drugs. Their search yielded a .25 caliber pistol, which they found in a bag in the trunk along with various articles of clothing.

After hearing the testimony of Sergeant Hinton and Officer Callis (appellant offered no evidence) and the arguments of counsel, the trial court denied appellant’s motion to suppress the gun found in the trunk. The court ruled that Officer Callis, upon seeing the ski mask on a very hot day in July, and knowing “that ski masks are commonly used in holdups, which means that weapons would be involved,” acted reasonably in making “a limited protective [frisk] of the bag” in which the ski mask was found. The discovery of the guns in the bag, the court continued, gave the police probable cause to search the rest of the car. Relying on United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the court denied appellant’s motion to suppress the gun found in the trunk.⁵ It was that gun which appellant was convicted of unlawfully possessing.⁶

II

The critical event in this case was Officer Callis’ discovery of the three guns in the bag underneath the ski mask.⁷ That discovery led directly to the search of the trunk and the seizure of the pistol on which appellant’s conviction was based. We hold that, in the circumstances of this case, it was reasonable for Officer Callis to look in the bag for weapons after seeing the ski mask, and that when he found the three guns, he and his fellow officers had probable cause to arrest the occupants of the car and to search the trunk.⁸

When a police officer has a reasonable suspicion, based on specific and articulable facts, that a person may be armed, the officer may conduct a limited search or frisk for weapons, even without probable cause for a full-blown search or arrest. Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 1879-1883, 20 L.Ed.2d 889 (1968); see Michigan v. Long, supra note 8, 463 U.S. at 1045-1049, 103 S.Ct. at 3479-3481 (Terry frisk of car driver may include examination of car for weapons); Adams v. Williams, 407 U.S. 143, 145-147, 92 S.Ct. 1921, 1922-1924, 32 L.Ed.2d 612 (1972) (applying Terry to search of person in car); Marbury v. United States, supra, 540 A.2d at 116 (applying Terry to search of person ordered out of car). Whether the suspicion is reasonable will often depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of his or her experience. Terry v. Ohio, supra, 392 U.S. at 21-22, 27-30, 88 S.Ct. at 1879-1880, 1883-1884; see Offutt v. United States, 534 A.2d 936, 938 (D.C.1987). Applying these well-settled principles to the facts of this case, we are fully persuaded that Officer Callis was justified in conducting a Terry frisk of the bag with the ski mask in it.

The presence of a ski mask in a car in July does not absolutely show criminal activity afoot.⁹ The ski mask could have been in the car for several months, left there either intentionally or inadvertently. In this instance, however, that possibility was very remote because the car was a rental car, unlikely to contain an article of clothing not used for months. We are satisfied that the presence of a ski mask in a rental car in the hottest month of the year was sufficient to arouse the reasonable suspicion of Officer Callis, a police officer for eighteen years, that the mask was likely to be destined for use (or to have recently been used) by a non-skiing robber, very possibly an armed robber. Accordingly, Officer Callis was justified in looking in the bag under the ski mask for weapons. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883; see Michigan v. Long, supra note 8, 463 U.S. at 1046-1051, 103 S.Ct. at 3479-3482 (search for weapons in leather pouch under front seat armrest justified after officers saw a large knife on floor next to driver’s seat); Marbury v. United States, supra, 540 A.2d at 116 (frisk of driver permissible because, inter alia, police noticed large bulge in his waistband); United States v. Thomas, supra note 8 (furtive movement by passenger upon approach of police officers justified protective search of area surrounding passenger’s seat); United States v. Green, 151 U.S.App.D.C. 35, 465 F.2d 620 (1972) (furtive movement by driver upon approach of police officers justified protective search under driver’s seat); see also, e.g., State v. Thompson, 348 So.2d 618 (Fla.App.1977) (probable cause for arrest established by, inter alia, two ski masks in plain view on front seat of car in Florida in the month of June); City of St. Paul v. Johnson, 288 Minn. 519, 179 N.W. 2d 317 (1970) (two men entered store while wearing ski masks in relatively mild weather, left after a purchase, and were later found hiding in a car; arrest and search upheld as based on probable cause for officer, who followed them from the store, to believe that he had interrupted an attempted robbery).

The discovery of three guns in the bag with the ski mask gave Officer Callis and his colleagues probable cause to believe that the occupants of the car either were planning an armed robbery or had recently committed one. This justified not only the arrest of the three men but also the search of the trunk for robbery proceeds, more guns, or both.¹⁰ United States v. Ross, supra, 456 U.S. at 823-824, 102 S.Ct. at 2172-2173; Chambers v. Maroney, 399 U.S. 42, 46-48, 90 S.Ct. 1975, 1978-1980, 26 L.Ed.2d 419 (1970) (probable cause to arrest occupants of car for armed robbery included probable cause to search entire car for guns and stolen money); United States v. Burnett, 791 F.2d 64 (6th Cir. 1986) (discovery of contraband in passenger compartment of car provided probable cause to search container in trunk); United States v. Rickus, supra note 9, 737 F.2d at 366-367 (discovery of apparent burglar tools in back seat, coupled with fact that both suspects wore bullet-proof vests, provided probable cause to search trunk).

Thus we hold that the protective frisk of the bag containing the ski mask was permissible under Terry v. Ohio and its progeny, and that the ensuing search of the trunk and seizure of the pistol were supported by probable cause. There being no other ground for reversal advanced by appellant, and none apparent on the record, the judgment of conviction is

AFFIRMED.

1 . D.C.Code § 22-3203(a)(2) (1981).

2 . D.C.Code § 23-1327(a) (1981).

3 .Hinton's suspicions were aroused by appellant’s youthful appearance because he knew that rental companies do not usually rent their cars to persons under twenty-five years of age. He later acknowledged, however, that a person under twenty-five can rent a car if he or she has a valid credit card.

4 . Hinton testified that police regulations prohibited officers on plainclothes duty in an unmarked car from stopping another car.

5 . The court also referred to New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Belton, however, would not support the search of the trunk. See id. at 460-461 & n. 4, 101 S.Ct. at 2864-2865 & n. 4.

6 . Appellant was also charged with carrying without a license the three pistols concealed in the bag under the ski mask, in violation of D.C.Code § 22-3204 (1981), but the jury acquitted him of that charge.

7 .The police were justified in stopping the car because of the two traffic violations, running a stop sign and exceeding the speed limit. Marbury v. United States, 540 A.2d 114, 115 (D.C. 1985); Punch v. United States, 377 A.2d 1353, 1356-1357 (D.C. 1977), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978). Ordering the occupants of the car to get out, which enabled Officer Callis to see the bag with the ski mask in it, was likewise permissible. Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 333 n. 6, 54 L.Ed.2d 331 (1977) (driver); United States v. Ordway, 329 A.2d 776, 778 (D.C. 1974) (passenger); see King v. United States, 550 A.2d 348, 357 (D.C. 1988) (characterizing officer’s telling defendants to step out of car as “a very minor intrusion”).

8 . We note at the outset that, even though no one was in the car at that precise moment, Officer Callis was justified in examining the bag for weapons if he had a reasonable suspicion that weapons were there. Michigan v. Long, 463 U.S. 1032, 1051-1052, 103 S.Ct. 3469, 3481-3482, 77 L.Ed.2d 1201 (1983); United States v. Thomas, 314 A.2d 464, 467-469 (D.C.1974).

9 . We note that several federal circuits are in agreement that suspicious behavior can support police intervention even if some innocent explanations for it cannot be ruled out. See United States v. Rickus, 737 F.2d 360, 365-366 (3d Cir. 1984) (citing cases).

10 . Officer Callis testified that he and his fellow officers were looking for proceeds of a robbery, guns, or drugs. We need not consider whether the facts of this case would justify a search of the trunk for drugs, because there was clearly probable cause to search for guns or robbery proceeds, and because, in any event, we do not rely on police officers’ subjective reasons for taking action but on the objective reasonableness of that action. Marbury v. United States, supra, 540 A.2d at 115-116.