Tuckson v. United States , 77 A.3d 357 ( 2013 )

RUIZ, Senior Judge:

Antione Tuckson¹ appeals his convictions for carrying a pistol without a license, unlawful possession of a firearm, and unlawful possession of ammunition.² Tuckson’s convictions stem from the discovery of a loaded pistol and extra ammunition in his car. The search of Tuckson’s car occurred after he was arrested for possession of a prohibited weapon and impersonating a police officer. On appeal, Tuckson argues that the police lacked probable cause to arrest him, and that the trial court erred when it denied his motion to suppress the gun and ammunition. We agree, and reverse Tuckson’s convictions.

I. The Motion to Suppress

Tuckson’s Arrest

The following facts were presented at the hearing on Tuckson’s motion to suppress. On March 18, 2009, Tuckson drove his 2001 Chevy Impala into a cul-de-sac on 37th Street, S.E. Tuckson’s car was outfitted with dark windows, long antennas, a “police-style dash light,” and other features that made it appear to be “an undercover or unmarked police vehicle.” Unluckily for Tuckson, members of the Metropolitan Police Department’s gun recovery unit happened to be leaving the cul-de-sac as he drove by. Detective Kirk Delpo noticed Tuckson’s car, and realized that the license plate was inconsistent with those used on police vehicles. Delpo ran Tuckson’s plates, and determined that Tuckson, not the police department, owned the car. Based on this information, Delpo suggested to the other officers that they stop Tuckson and investigate.

Before the officers could stop Tuckson, he parked in front of a fire hydrant and got out of the car. He was wearing “nice” clothes — “a pair of slacks” and “a button-down shirt” — and a pair of “thin gloves.” Delpo thought Tuckson’s gloves looked like “the style that police officers would wear.” Tuckson walked to a nearby doorway, where he gave someone a set of keys.

As Tuckson walked back to his car, he was stopped by Sergeant Sloan. Sloan asked Tuckson “if he was a police officer,” and Tuckson answered that he was not. Sloan then informed Tuckson that “he was parked illegally and the tint on his window appeared to be illegal.” Sloan requested Tuckson’s driver’s license, registration and insurance, which Tuckson produced.³ In response to further questioning by other officers, Tuckson denied that he had “any guns,” refused to give consent for a search, and then handed over his keys so that the officers could conduct a window tint check.

In order to conduct the window tint check, Officer Malsona (another officer on the scene), opened Tuckson’s driver’s side door. After opening the door, Malsona noticed a collapsible baton, or “asp,”⁴ in a holster in the door pocket. Malsona then alerted the other officers to the presence of the baton, and Tuckson was placed under arrest because he had a “prohibited weapon ... in the vehicle” and because he “appeared to be impersonating a police officer.” At no point during this encounter with the police did Tuckson carry, reach for, make gestures toward, or use the baton. After Tuckson was placed under arrest, Delpo searched the car. Under a jacket in the front passenger seat, Delpo found a loaded semi-automatic pistol, “police handcuffs, and an extra magazine.” After the search concluded, Tuckson’s vehicle was seized.

The Trial Court’s Findings

The trial court found that the officers had reasonable suspicion to detain appellant and investigate the illegal tinting on his windows and his illegally parked car. Further, the trial court determined that reasonable suspicion existed to investigate whether appellant was impersonating a police officer. The court ruled that, when he was detained, appellant voluntarily handed-over his keys, and the police permissibly opened the driver’s side door, where the officer observed the baton.

At that point, the trial court held, “the police had probable cause to believe that [Tuckson] intended to use [the baton] unlawfully in that [Tuckson] intended to use it to in the future commit the crime of impersonating a police officer.” The court elaborated, noting that the police “had all this information that suggested that he was going to do so in the future.” Because the court “believe[d] that [impersonating a police officer] would be an unlawful use of the [baton],” it concluded that the police “had probable cause” for the “unlawful use” element of possession of a prohibited weapon.⁵

The trial court found that the officers had probable cause to believe that Tuckson possessed the baton with the intent to use it unlawfully, i.e., to use it in the future to commit the crime of impersonating a police officer. The trial court also concluded that, although appellant had not yet committed the crime of “impersonating a police officer,” there was probable cause to believe that appellant “was about to commit” that crime. But the court believed that, unless the police could “show that a crime was committed,” they did not have probable cause to arrest for that offense. After analyzing the Supreme Court’s opinion in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the trial court concluded that officers could have searched the car only if they believed the car contained further evidence of the crime for which appellant had been lawfully arrested, i.e., possession of a prohibited weapon.⁶ The court upheld the search at issue in this case on that basis, ruling that the officers had reason to believe the car would contain additional evidence of appellant’s intent to commit the crime of impersonating a police officer, which the court had identified as the “unlawful use” appellant intended to make of the baton, making it a prohibited weapon.

II. Analysis

“When reviewing the denial of a motion to suppress, we defer to the trial court’s findings of fact, but we determine questions of law de novo.” Napper v. United States, 22 A.3d 758, 766 (D.C.2011) (citation omitted). Whether the facts found by the trial court — to which we defer — suffice to establish probable cause is a question of law. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, “[i]t is well settled that an appellate court may affirm a decision for reasons other than those given by the trial court,” provided there is a sufficient evidentiary basis and no procedural unfairness to the parties. Purce v. United States, 482 A.2d 772, 775 n. 6 (D.C.1984) (citation omitted). Thus, in order to ensure that there is no “substantial basis” for upholding the trial court’s order, Dickerson v. United States, 677 A.2d 509, 512 (D.C.1996) (internal citation and quotation marks omitted), this opinion will analyze whether the search was valid under several theories — two presented to the trial court and a third presented in the government’s brief on appeal as an alternative basis for affirmance. We decline to decide a fourth theory raised in response to the court’s request for supplemental briefing after oral argument.

Possession of a Prohibited Weapon and Carrying a Dangerous Weapon

First we address whether, as the trial court concluded, the police had probable cause to arrest appellant for a violation of D.C.Code § 22-4514(b) (possession of a prohibited weapon) or, applying similar logic, the trial court could have permissibly concluded the arrest was valid under D.C.Code § 22-4504(a) (carrying a dangerous weapon). As we have stated before, “[t]he determination of probable cause is an inexact judgment.” Price v. United States, 429 A.2d 514, 516 (D.C.1981). “The classic formulation is that probable cause exists where the facts and circumstances within ... the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Perkins v. United States, 936 A.2d 303, 306 (D.C.2007) (internal citations, alterations, and quotations omitted). Probable cause to effect an arrest must “be supported by more than mere suspicion but need not be based on evidence sufficient to sustain a conviction.” Id. (internal quotation omitted).

Both § 22-4514(b) and § 22-4504(a) prohibit the possession of “dangerous weapons.”⁷ And although the trial court considered whether probable cause was established solely under § 22-4514(b), we note that the only relevant difference between the two statutes is § 22 — 4514(b)’s additional requirement of an “intent to use [the dangerous weapon] unlawfully against another,” an element which does not appear in § 22 — 4504(a). Accordingly, as the government urges for the first time on appeal, if the baton was, in fact, a dangerous weapon within the meaning of § 22-4504(a), appellant could have been arrested for carrying a dangerous weapon regardless of whether he had the requisite intent to use it “unlawfully against another” under § 22-4514(b).

Our case law explains that a “dangerous weapon is one which is likely to produce death or great bodily injury by the use made of it. Such instrument may be dangerous in its ordinary use as contemplated by its design and construction, or where the purpose of carrying the object, under the circumstances, is its use as a weapon.” Scott v. United States, 243 A.2d 54, 56 (D.C.1968). In other words, an instrument may either be “inherently dangerous” or, if not, “can become dangerous by its use as a weapon” or where there is evidence that “an individual intends to use an object as a dangerous weapon.” Strong v. United States, 581 A.2d 383, 386 (D.C.1990). Therefore, although D.C.Code § 22-4504(a) does not refer to any mental state in the statutory text, when the object is not a listed weapon or an “inherently dangerous” one, an individual’s intent to use the object as a weapon is required before carrying the object is criminalized.⁸

There is no dispute that the baton in this case is not listed as a per se prohibited weapon in either § 22-4514(b) or § 22-4504(a). Thus, we ask whether the baton is an “inherently dangerous” weapon. Our case law defines inherently dangerous weapons as those objects which are “dangerous in [their] ordinary use as contemplated by [their] design and construction.” Scott, 243 A.2d at 56. There is “little authority” on the inherent dangerousness of police batons. Broadie, 452 F.3d at 882. However, we agree with the District of Columbia Circuit Court of Appeals’ determination in Broadie, that the balance of the available authority suggests that “[police] officers [do not] ordinarily inflict great bodily injury when they use the device,” and that a “baton is designed so it can be used to control suspects without inflicting serious injury.” Id. (quoting Armament Sys. & Procedures, Inc. v. Monadnock Lifetime Prods., Inc., 168 F.3d 1319, 1998 WL 537746, at *1 (Fed.Cir. Aug. 7, 1998) (unpublished)). Accordingly, we conclude that a baton is not “inherently dangerous” by virtue of its “ordinary use” or “design and construction.” Scott, 243 A.2d at 56.

Which is not to say that possession of a baton cannot ever be grounds for an arrest under § 22-4504(a). As the Broadie court observed, “a 16-inch steel rod — like the more commonplace lead pipe — is capable of inflicting great bodily injury when used for that purpose.” 452 F.3d at 882. However, just as the dangerous potential of a lead pipe would not furnish probable cause to arrest, for example, a plumber who is found in possession of the tools and materials of his trade, the law requires further inquiry in this case into the surrounding circumstances of the discovery of the baton in Tuckson’s car. As we have explained, “[s]ome factors to consider when determining whether an individual intends to use an object as a dangerous weapon are (1) the design of the instrument, (2) the conduct of the defendant prior to his arrest, (3) any physical alteration of the object, and (4) the time and place of its possession.” Strong, 581 A.2d at 386 (citation omitted).

After evaluating these factors, we cannot conclude that a person “of reasonable caution,” Perkins, 936 A.2d at 306, would have probable cause to believe that Tuck-son intended to use the baton as a weapon. In this case, the design and purpose of the instrument, as we noted earlier, are not necessarily for offensive use as a weapon. Tuckson suggests that a baton could also be used merely as a prop to complete a hobbyist’s police officer costume. Moreover, none of the attendant facts would give rise to a conclusion that Tuckson’s intent was to use the baton as a weapon. Tuckson did not display, wield, or even hold the baton in the presence of the police officers. Cf. In re S.P., 465 A.2d 823, 827 (D.C.1983) (“It was undisputed at trial that appellant both intended to and did carry and twirl around his body the nunehaku in the midst of a crowd of onlookers.”). There was no indication that Tuckson had altered the baton in any fashion. Further, the baton was discovered during daylight hours, holstered, and tucked into the car’s door pocket. Cf. Broadie, 452 F.3d at 883 (noting intent to use baton as weapon supported by evidence that defendant was encountered “late at night in a high-crime area” and the baton was “within arm’s reach”).

The trial court essentially reached these same conclusions. The trial court was “a little loathe” to come to the conclusion that the baton was a “per se ... dangerous weapon,” and never made a finding that Tuckson intended to use the baton as a weapon. Instead, the trial court found probable cause to believe Tuckson possessed the baton in order to assist him in the future commission of the crime of “impersonating a police officer.” We cannot affirm the trial court’s ruling on this basis. Intending to use the baton as a prop to complete a fraudulent act is not the same as intending to use the baton as a weapon “unlawfully against another” — that is, as a weapon. Nor is it enough to make the baton a dangerous weapon. We have held, for example, that an intent to use an inoperable air pistol “to frighten others” was not sufficient to establish an intent to use the air pistol as a dangerous weapon within the meaning of D.C.Code § 22-4504(a). Strong, 581 A.2d at 387 (citing previous codification of carrying a dangerous weapon statute at § 22-3204 (1981)). We explained that the purpose of the carrying a dangerous weapon statute was “protecting the safety of the public,” and accordingly we declined to affirm a conviction under that statute “in cases such as this where there is no evidence that the defendant planned to harm anyone.” Id. For the same reason, we cannot affirm the trial court’s probable cause determination in this case without evidence that Tuckson “planned to harm anyone” with the baton. As there was no probable cause to believe that the baton was a “dangerous weapon,” there was no probable cause to arrest Tuckson under D.C.Code § 22-4504(a), or, a fortiori, D.C.Code § 22-4514(b).

Impersonating a Police Officer

Although the trial court specifically found that the police lacked probable cause to believe that Tuckson had already committed the offense of impersonating a police officer, it did find that probable cause existed to believe that Tuckson “was about to commit the crime of impersonating a police officer.” However, the trial court expressed some uncertainty about whether the police were permitted to make an arrest if they had probable cause to believe a crime was “going to be committed in the future.” Accordingly, we must also inquire whether probable cause to believe that appellant was about to commit the crime of impersonating a police officer could have justified his arrest. We conclude that it did not.

To be clear, we share the trial court’s doubt that the Fourth Amendment permits the police to arrest (as opposed to temporarily detain) a person to deter the future commission of a crime. The government quotes Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), as authority for the proposition that the police may arrest a suspect upon probable cause to believe that “the suspect has committed, is committing, or is about to commit an offense.” We note, however, that the “is about to commit an offense” language is not included in a long line of cases, including more recent ones, in which the Supreme Court describes the probable cause standard. See, e.g., Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 370, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (referring to the “belief that an offense has been or is being committed”) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), and Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)); Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (citing United States v. Watson, 423 U.S. 411, 417-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), and Brinegar ).⁹ Further, the government cites no cases in its brief where an arrest was upheld on probable cause that a crime was about to be committed.¹⁰ Accordingly, we are doubtful that an arrest to prevent a crime from being committed can be justified. Even if it were permitted by the Fourth Amendment, the phrase “about to commit” implies immediacy, and we can easily conclude that the officers in this case lacked probable cause to believe that Tuckson’s conduct would rise to the level of the crime of impersonating a police officer in the immediate future.

First, we note our agreement with the trial court’s conclusion that the police lacked probable cause to believe that appellant had already committed or was in the process of committing the crime of impersonating a police officer. Under D.C.Code § 22-1406 (2001), it is “a misdemeanor ... for any person, not a member of the police force, to falsely represent himself as being such [a] member, with a fraudulent design.” Accordingly, we must look for probable cause of both (1) false representation, and (2) fraudulent design. A false representation need not be an explicit statement, but can be any “intentionally conveyed ... impression.” Gary v. United States, 955 A.2d 152, 155 (D.C.2008). A fraudulent design, however, requires some “evidence that the defendant impersonated a police officer to deceive another in order to gain some advantage thereby.” Id. This advantage “need not be monetary or even material in nature.” Id.

It is undisputed that Tuckson’s car looked and was lawfully equipped like an unmarked police vehicle.¹¹ Under the circumstances, we are willing to assume, without deciding, that when the officers discovered the baton, a common piece of police equipment, they had probable cause to believe that Tuckson was implicitly falsely representing himself as a police officer.¹² However, we see no evidence that Tuckson had a “fraudulent design.” On appeal and at trial, the government has suggested that Tuckson’s use of an illegal parking spot (in front of a fire hydrant) was evidence of his effort to gain an advantage, specifically the advantage of avoiding punishment for illegal parking. But as the trial court noted, Tuckson “might just [have been] ... parking illegally,” and we see no facts that would convert that momentary action — Tuckson parked the car in front of the hydrant for the few minutes it took to deliver keys — to anything more sinister than ignorance of or indifference to the District’s parking laws.

Similarly, we do not think that, viewed in context, the evidence supports the government’s suggestion that “appellant’s portrayal of himself as a police officer and his Impala as an unmarked police vehicle also aided his attempt to avoid being ticketed for illegal tinting.” Throughout his interaction with the officers, Tuckson acted in a straightforward manner: He made no attempt to claim that the window tinting was lawful, allowed the officers to check his car windows, and quickly acknowledged he was not a police officer. Thus, we think that, like appellant’s conduct in parking in front of a fire hydrant, the mere fact that he had illegal window tinting is insufficiently assertive of intent to constitute an effort to deceive another person that he was a police officer and thereby gain an unfair advantage.

A close reading of the trial court’s decision demonstrates that it was the lack of evidence of a specific fraudulent design that led the trial court to conclude that although Tuckson might be “about” to commit the crime, he was not currently committing it. However, we think this deficiency also afflicts the trial court’s conclusion that the police had probable cause to believe Tuckson was “about” to commit the crime of impersonating a police officer. Probable cause may not rest on a “mere suspicion” of criminal activity. Rucker v. United States, 455 A.2d 889, 891 (D.C.1983). When asked whether he was a police officer, Tuckson immediately and truthfully said he was not. Aside from driving a car decked out with police gear, Tuckson was not seen acting like a police officer. At most, in this case, the police had only a “ ‘hunch’ or a ‘gut’ feeling” that, at some point in the future, Tuckson might attempt to use his police trappings to deceive another person. In re T.H., 898 A.2d 908, 913 (D.C.2006) (quoting Brown v. United States, 590 A.2d 1008, 1014 (D.C.1991)). However, there is no “‘objective justification’ ” for that suspicion in this record, id., and we cannot uphold an arrest based on a hunch that a civilian appearing in broad daylight with legally possessed police-related equipment may be up to no good. Cf. United States v. Reis, 906 F.2d 284, 288 (7th Cir.1990) (noting that suspect “can hardly be punished for driving an automobile that resembles an unmarked police car,” but that activation of police-type fireball on dashboard and aggressive behavior accusing undercover detectives of moving violations provided probable cause to believe suspect was impersonating a police officer). We see- nothing in the record from which a reasonable police officer could have concluded that Tuckson had any specific “fraudulent design” in mind at the time of his arrest. Therefore, there was no objective basis to support probable cause that Tuckson’s conduct was “about to” become criminal in nature.

The Automobile Exception

Finally, we turn to an issue raised neither before the trial court nor in the parties’ initial briefs to this court. Following oral argument, we requested additional briefing on the “automobile exception,” a doctrine that allows police to search an automobile without a warrant if they have probable cause to believe the car contains “‘contraband or evidence of a crime.’” Holston v. United States, 633 A.2d 378, 385 (D.C.1993) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In response, Tuck-son argues that the government has waived this argument by failing to present it at trial or on appeal. He also argues that, in any event, the “automobile exception” does not apply in this case. After considering the arguments submitted by the parties at our direction, we decline to affirm the trial court’s order on this basis.

“It is a basic principle of appellate jurisprudence that points not urged on appeal are deemed to be waived.” Rose v. United States, 629 A.2d 526, 535 (D.C.1993); cf. Bardoff v. United States, 628 A.2d 86, 90 n. 8 (D.C.1993) (noting that points without “supporting argument in [the party’s] brief’ are “considered] ... to be abandoned”). And although we will “make our own inquiry” in the unusual circumstance when the government “does not defend” a judgment “on the merits” and “effectively conced[es] error,” Randolph v. United States, 882 A.2d 210, 216 (D.C.2005), we are not presented with that scenario here. See also Rose, 629 A.2d at 533-34 (analogizing the court’s role in those cases to the one it fills under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), when a defendant’s attorney claims there is no “non-frivolous issue warranting reversal of the client’s conviction”). Rather, here “the government urges affirmance and has selected the arguments it believes are best suited to achieve that end.” Rose, 629 A.2d at 534. Since the government has “assumed its traditional role of advocate ... the adversary system should be allowed to function as such.” Id. Rose identifies some other situations in which this court will reach issues that have not been raised by the parties, but none of those circumstances applies here. See id. at 537.

In addition to considerations of good order, judicial efficiency, and respect for the proper role of institutional litigants that argue against our consideration of an argument that the government has not seen fit to present, we note that application of the automobile exception to this case is not one we could “easily resolve” or that is “beyond serious debate.” Id. (internal citation omitted). In order for the automobile exception to apply, the police must have probable cause to believe that a car will contain either contraband or evidence of a crime. See Holston v. United States, 633 A.2d 378, 385 (D.C.1993). As we have previously discussed, none of the visible items in appellant’s car (other than the tint on the windows) was illegal for a civilian to possess. Nor did Tuckson’s conduct or statements to the police suggest any connection between these items and any criminal activity. Cf. Wyoming v. Houghton, 526 U.S. 295, 298, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (officers’ search of car justified after driver admitted that hypodermic needle in his pocket was for drugs).

To find probable cause on the facts the officers had in this case, we would have to endorse the generalization that any person whose car is lawfully equipped, like Tuck-son’s, with police-type equipment, is likely to also carry guns or evidence of fraudulent intent.¹³ There is no factual basis in this case, or knowledge gleaned from a long line of cases, however, to support such a generalization. Moreover, the probable cause determination is not a theoretical exercise that can be based on generalizations, but an individualized judgment, based on objective, observable “facts . and circumstances” indicating commission of a crime by a particular person. Perkins, 936 A.2d at 306 (noting that probable cause “must be ‘particularized’ with respect to the person to be searched or seized” (quoting Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979))). Were we to uphold the search of Tuckson’s car, we would be endorsing an unacceptable generalization as support for probable cause.¹⁴ The police may not rely on an assumption that people whose cars are lawfully equipped with police gear possess either guns or evidence of unlawful fraud, in deciding whether a particular individual with such a vehicle is likely to do so.¹⁵

Thus, both for reasons of procedural good order and because the matter is debatable, we follow our earlier opinion in Rose and decline to consider the applicability of the “automobile exception” in this case.

Accordingly, we conclude that the trial court’s denial of the motion to suppress cannot be upheld, and that the gun and ammunition found in the car should have been suppressed. As that evidence was central to the government’s case, we reverse appellant’s convictions.¹⁶ Reversed.

1 . At oral argument counsel for appellant explained that although appellant’s name is pronounced ''Antoine,” it is spelled “Antione.”

2 . Violations of, respectively, D.C.Code §§ 22-4504(a), 22-4503(a)(2), 7-2506.01(a)(3) (2001).

3 . Tuckson apparently only had a photocopy of his license, but other than being odd, no additional import appears to have been attached to Tuckson’s failure to produce his actual license.

4 . "Asp” appears to be an acronym for the name of a company that makes police batons (A.S.P. — Armament Systems & Procedures, Inc.), and seems to have become a generic term for any police baton. It appears both un-capitalized and capitalized in the record. For convenience, this opinion will use "baton” where possible.

5 . The court also cited precedent from the D.C. Circuit (the parties agree that the court was referring to United States v. Broadie, 452 F.3d 875 (D.C.Cir.2006), although it mistakenly named another case), where the "surrounding circumstances” of the discovery of a baton gave the police "probable cause to believe” that the defendant "intended to use it so as to inflict great bodily injury.” Id. at 883. However, the trial court noted that it was “a little loathe to come to that same conclusion” on the basis of that precedent alone. In any event, the court determined that "one could conclude here that the asp wasn’t being used for self-defense purposes,” which, according to the court, “would make its use unlawful, ... particularly if it was being used to commit the crime of impersonating a police officer.”

6 . The trial court considered the motion to suppress under the principles enunciated in Gant because at the time Tuckson was placed under arrest, he was "standing over by the sidewalk on the passenger side of the vehicle,” would have needed to take "a couple of steps forward” in order to be able to touch the vehicle, and was "in the custody of a large contingent of police officers.” Thus, as the trial court found, Tuckson was not "within reaching distance” of the car’s passenger compartment. Gant, 556 U.S. at 346, 129 S.Ct. 1710. Tuckson concedes on appeal that the search took place prior to the Gant opinion and that, under the law applicable at the time, the police could have searched his car so long as they had probable cause to arrest appellant of any crime. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), abrogated by Gant, 556 U.S. at 342-43, 349, 129 S.Ct. 1710 (rejecting lower courts' "broad reading” of Belton as permitting vehicle searches incident to all arrests of recent occupants); United States v. Debruhl, 38 A.3d 293, 296 (D.C.2012) (citing this court's post-Belton cases, before Gant). In light of appellant’s concession, the trial court’s application of Gant will not be addressed in this opinion.

7 . D.C.Code § 22-4514(b) states that "[n]o person shall within the District of Columbia 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.” (emphasis added.) D.C.Code § 22-4504(a) states that "[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, or any deadly or dangerous weapon capable of being so concealed." (emphasis added.)

8 . Although these considerations are analytically similar to the considerations that would go into the element of "to use unlawfully against another” in § 22-4514(b), the circumstances surrounding the discovery of an instrument can establish it as a dangerous weapon without necessarily also establishing intent to use the weapon unlawfully against another. See Broadie, 452 F.3d at 881 (circumstances surrounding discovery did not establish "possession of a prohibited weapon,” but did establish crime of "carrying a dangerous weapon”).

9 . None of the cases cited in DeFillippo after the sentence quoted by the government in its brief contains the "about to commit” language, nor do their facts support it.

10 . In the DeFillippo case, for example, the arrest was upheld based on "abundant probable cause” that the conduct the officer observed — a suspect's evasive and inconsistent answers to a request that he identify himself— had actually violated an ordinance. 443 U.S. at 37, 99 S.Ct. 2627. The "about to commit” language is pure dictum.

11 . With the exception of the unlawfully tinted windows.

12 . One officer testified that he thought that Tuckson was dressed in a manner similar to the garb often worn by plain clothes policemen. We give little weight to this particular fact. Tuckson’s clothes, though "nice," were not otherwise remarkable or distinctive.

13 . We are not persuaded by the summary conclusion that there was probable cause to apply the automobile exception in Reis, 906 F.2d at 291, on which the government relies. In Reis, before the court turned to discuss the automobile exception, it had already determined that there was probable cause to arrest the driver for IPO, a holding that we have cited above as supporting the conclusion that there was no such probable cause in this case. Reis also was a pre-Ganí case, and, therefore, the officers would have been authorized to search the car incident to the driver’s arrest, without need of additional justification to search the vehicle. See note 6 supra. Moreover, in Reis, what the appellant argued was that the automobile exception does not apply in the case of a vehicle that is not in motion or being driven, but parked in front of a residence, an argument the court analyzed and rejected. Reis, 906 F.2d at 290-91. The opinion does not reveal that there was a challenge to the nature and quantum of evidence of probable cause to search the car for contraband or evidence of a crime, and the court does no more than mention it in a conclusory sentence. Id.

14 . This generalization is distinguishable from the oft-cited proposition, supported by many cases over the years and expert testimony, that "drugs and weapons go together.” E.g., Peay v. United States, 597 A.2d 1318, 1321 (D.C.1991) (en banc) (citing United States v. Payne, 805 F.2d 1062, 1065-66 (D.C.Cir.1986) (collecting cases), and Irick v. United States, 565 A.2d 26, 31 (D.C.1989) (expert testimony)). The facts in this case, however, do not support such an inference because the officers had not seen any drugs before they found the gun during the warrantless search.

15 . The fact that the search did actually reveal the presence of contraband cannot affect our analysis. It has been established beyond peradventure that "[a] search is not to be made legal by what it turns up; it is good or bad when it starts and does not change character from its success.” Brown v. United States, 590 A.2d 1008, 1013 (D.C.1991) (citing United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948), and Smith v. United States, 353 F.2d 838, 840 n. 1 (D.C.Cir.1965)).

16 .The government has not argued otherwise.