Dickerson v. United States

296 A.2d 708, 1972 D.C. App. LEXIS 283

• Court: District of Columbia Court of Appeals
• Decided: November 10, 1972
• Docket: 6212
• Status: Published

Opinions

HOOD, Chief Judge, Retired:

This appeal is from a conviction of carrying a pistol without a license.¹ Finding the pistol to have been the product of an unlawful search, we reverse.

Appellant, operating an automobile bearing temporary Virginia tags, was stopped by the arresting officers because the tags appeared old and faded and also gave the appearance of having been altered. Appellant’s driver’s permit was in order but the car’s registration gave evidence of alteration by change of date and closer inspection of the front and rear tags revealed apparent alteration of dates. As it is a violation of the traffic regulations to drive a car with outdated tags, appellant was ordered to get out of his car and into the police car with the other officer, and the arresting officer entered appellant’s car. The intent was that the arresting officer would drive appellant’s car to the police station while appellant was being taken there in the police car. Appellant quietly and promptly complied with the officers’ requests and instructions.

After entering appellant’s car and observing nothing unusual in the car, the officer started the motor and then reached under the seat and found a loaded .38 caliber revolver. He then returned to the police car, ordered appellant to get out, frisked him, and then placed him under arrest for carrying a pistol without a license.

Appellant concedes that the officer had probable cause to arrest him for the traffic violation, i. e., for having altered license plates, but argues that the officer had no right to make the search which produced the pistol.

The officer’s explanation for reaching under the seat was that he had been taught that the “normal hiding place for any type of narcotics, weapons or such” was under the front seat, and that “just out of habit I' reached under the front seat.”

In the recent case of United States v. Green, 465 F.2d 620 (D.C. Cir. 1972), Judge Tamm, speaking for the majority, said that “the law with regard to a search incident to an arrest for a traffic violation remains unsettled,” and he cites numerous authorities and cases on the subject. This court has recognized that there are limitations on the right to search incident to a traffic arrest. See Mayfield v. United States, D.C.App., 276 A.2d 123 (1971) and cases there cited.

Here the search was not for fruits of the offense because there were none. It was not for evidence of the offense because the officers already had the altered tags and registration. It was not a protective search for weapons because appellant had already been removed from his car and placed in the police car. No action by appellant had indicated an attempt to conceal contraband in the car, and the officers had no reason to believe that the car contained weapons or other contraband. As the officer frankly admitted, he searched under the seat simply out of habit.

Under present conditions, when the illegal carrying of guns is so prevalent, it is hard to fault the officer for his actions; but under established authority we must hold that his action constituted an illegal search.

Reversed with instructions to enter a judgment of acquittal.

1 . D.O.Oode 1967, § 22-3204.