TAMM, Circuit Judge:
This appeal follows from a conviction for carrying a pistol without a license in violation of D.C.Code § 22-3204. Appellant asserts that his Fourth Amendment rights were violated in that the search of his automobile incident to a traffic arrest was unwarranted and unnecessarily broad in scope. Resolving these matters adversely to appellant, we affirm the decision of the district court.
I.
At approximately 2:00 a. m. one October evening, police officers Wells and Bolden, on routine patrol in a marked squad car, observed appellant’s vehicle travelling at an excessive speed1 on 13th and W Streets, N.W. They proceeded to follow the vehicle at a distance of approximately one car length whereupon appellant “ran a stop sign.” The officers immediately turned on their flashing red dome light “in preparation of making a routine traffic stop.” Prior to bringing appellant’s vehicle to a halt, Officer Wells testified that when he saw appellant “his body was leaned over, and it appeared as though his arm was in front of his body, not to the side or to the rear.” The officer stated that he believed appellant had moved his left arm and that appellant’s shoulder, elbow and forearm were visible to him. He further testified that it did not appear that appellant “was going for his wallet.” Both officers testified that their immediate reaction was that appellant was armed. Officer Wells testified that he stopped the police vehicle one and one-half car lengths in back of appellant’s car instead of almost immediately to the rear as is usual. He also took the added precaution of ordering appellant out and away from his car via the cruiser’s public address system. The defendant did as told, leaving the car door open according to the officers, although appellant asserts it was closed. Appellant alighted from his automobile proceeding to the rear where Officer Bolden conducted a “frisk,” finding nothing. Meanwhile, Officer Wells was standing beside the cruiser with one hand on a radio and the other placed upon the butt of his un-drawn revolver. Appellant produced his license, but did not have the registration card, whereupon he told Officer Bolden it may be in the glove compartment.2 Officer Bolden then proceeded to lean inside the car from the driver’s side and recover a fully-loaded pistol from underneath the driver’s seat.
At a hearing on appellant’s motion to suppress the government originally relied upon the “plain view” theory to justify the search. The trial court, however, stated that it disbelieved the officers’ testimony and accordingly granted the motion to suppress. Shortly thereafter the government filed a motion for reconsideration. In its motion the government abandoned its theory that there was a “plain view” search and urged that the search was a protective one. The trial court thereupon reversed itself, denying the motion to suppress, and holding the search valid.
II.
The Fourth Amendment proscription against unreasonable searches and seizures bans warrantless searches with certain exceptions. The exception relevant to our instant inquiry, search incident to arrest, is justified when used to remove any weapons the arrestee might seek to use in order to resist arrest or effect his escape; or when used to seize the fruits, implements or evi[622]*622dence of the crime for which the arrestee is seized in order to prevent its destruction. Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Sanction of searches incident to arrest, however, “does not mean that [the person arrested] is subject to any and all searches that the arresting officer may wish to conduct.” United States v. Mills, No. 22,444 sl. op. 5 (D.C.Cir. May 10, 1972) (en banc). “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The touchstone both as to whether the search is warranted and the propriety of its scope remains reasonableness. Although it is clear that an automobile is entitled to less privacy than a home under the Fourth Amendment, Chambers v. Maroney, 399 U.S. 42, 48-51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the law with regard to a search incident to an arrest for a traffic violation remains unsettled.3 The Supreme Court left the question open in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), and not unexpectedly the federal and state courts have set forth divergent views.
In a clear, scholarly analysis in another case, Judge Wright has delineated two categories of traffic arrests— “pure” and “special circumstances.”4 The “pure” traffic situation is one in which mere routine procedures are undertaken by the officer to ticket the offender.5 In this category several courts have stated that there is no right to search, relying upon the theory that since there are no fruits, instrumentalities or evidence to be gathered from a traffic arrest there can be no search incident thereto. E. g., Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968) (dictum); People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970) (en banc). See cases collected in Annotation, Lawfulness of Search of Motor Vehicle Following Arrest for Traffic Violation, 10 A.L.R.3d 314 (1966) and B. George, Constitutional Limitations on Evidence in Criminal Cases 70 (1969). Other courts have, however, implied or stated in broad terms, often without exposition or explanation, that there is a right to search incident to a traffic arrest. E. g., Sumrall v. United States, [623]*623382 F.2d 651 (10th Cir. 1967); Welch v. United States, 361 F.2d 214 (10th Cir. 1966); Watts v. State, 196 So.2d 79 (Miss.1967); Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2270, 20 L.Ed.2d 1387 (1968); State v. Coles, 20 Ohio Misc. 12, 249 N.E.2d 553 (1969); See cases collected in Simeone, Search and Seizure Incident to Traffic Violations, 6 St. Louis U.L.J. 506, 512 n. 35 (1961); Note, Search and Seizure — Search Incident to Arrest for Traffic Violation, 1959 Wis.L.Rev. 347, 357 n. 56. Since the ramifications of a search incident to a “pure” traffic arrest are presently under consideration by this court in United States v.
Free access — add to your briefcase to read the full text and ask questions with AI
TAMM, Circuit Judge:
This appeal follows from a conviction for carrying a pistol without a license in violation of D.C.Code § 22-3204. Appellant asserts that his Fourth Amendment rights were violated in that the search of his automobile incident to a traffic arrest was unwarranted and unnecessarily broad in scope. Resolving these matters adversely to appellant, we affirm the decision of the district court.
I.
At approximately 2:00 a. m. one October evening, police officers Wells and Bolden, on routine patrol in a marked squad car, observed appellant’s vehicle travelling at an excessive speed1 on 13th and W Streets, N.W. They proceeded to follow the vehicle at a distance of approximately one car length whereupon appellant “ran a stop sign.” The officers immediately turned on their flashing red dome light “in preparation of making a routine traffic stop.” Prior to bringing appellant’s vehicle to a halt, Officer Wells testified that when he saw appellant “his body was leaned over, and it appeared as though his arm was in front of his body, not to the side or to the rear.” The officer stated that he believed appellant had moved his left arm and that appellant’s shoulder, elbow and forearm were visible to him. He further testified that it did not appear that appellant “was going for his wallet.” Both officers testified that their immediate reaction was that appellant was armed. Officer Wells testified that he stopped the police vehicle one and one-half car lengths in back of appellant’s car instead of almost immediately to the rear as is usual. He also took the added precaution of ordering appellant out and away from his car via the cruiser’s public address system. The defendant did as told, leaving the car door open according to the officers, although appellant asserts it was closed. Appellant alighted from his automobile proceeding to the rear where Officer Bolden conducted a “frisk,” finding nothing. Meanwhile, Officer Wells was standing beside the cruiser with one hand on a radio and the other placed upon the butt of his un-drawn revolver. Appellant produced his license, but did not have the registration card, whereupon he told Officer Bolden it may be in the glove compartment.2 Officer Bolden then proceeded to lean inside the car from the driver’s side and recover a fully-loaded pistol from underneath the driver’s seat.
At a hearing on appellant’s motion to suppress the government originally relied upon the “plain view” theory to justify the search. The trial court, however, stated that it disbelieved the officers’ testimony and accordingly granted the motion to suppress. Shortly thereafter the government filed a motion for reconsideration. In its motion the government abandoned its theory that there was a “plain view” search and urged that the search was a protective one. The trial court thereupon reversed itself, denying the motion to suppress, and holding the search valid.
II.
The Fourth Amendment proscription against unreasonable searches and seizures bans warrantless searches with certain exceptions. The exception relevant to our instant inquiry, search incident to arrest, is justified when used to remove any weapons the arrestee might seek to use in order to resist arrest or effect his escape; or when used to seize the fruits, implements or evi[622]*622dence of the crime for which the arrestee is seized in order to prevent its destruction. Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Sanction of searches incident to arrest, however, “does not mean that [the person arrested] is subject to any and all searches that the arresting officer may wish to conduct.” United States v. Mills, No. 22,444 sl. op. 5 (D.C.Cir. May 10, 1972) (en banc). “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The touchstone both as to whether the search is warranted and the propriety of its scope remains reasonableness. Although it is clear that an automobile is entitled to less privacy than a home under the Fourth Amendment, Chambers v. Maroney, 399 U.S. 42, 48-51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the law with regard to a search incident to an arrest for a traffic violation remains unsettled.3 The Supreme Court left the question open in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), and not unexpectedly the federal and state courts have set forth divergent views.
In a clear, scholarly analysis in another case, Judge Wright has delineated two categories of traffic arrests— “pure” and “special circumstances.”4 The “pure” traffic situation is one in which mere routine procedures are undertaken by the officer to ticket the offender.5 In this category several courts have stated that there is no right to search, relying upon the theory that since there are no fruits, instrumentalities or evidence to be gathered from a traffic arrest there can be no search incident thereto. E. g., Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968) (dictum); People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970) (en banc). See cases collected in Annotation, Lawfulness of Search of Motor Vehicle Following Arrest for Traffic Violation, 10 A.L.R.3d 314 (1966) and B. George, Constitutional Limitations on Evidence in Criminal Cases 70 (1969). Other courts have, however, implied or stated in broad terms, often without exposition or explanation, that there is a right to search incident to a traffic arrest. E. g., Sumrall v. United States, [623]*623382 F.2d 651 (10th Cir. 1967); Welch v. United States, 361 F.2d 214 (10th Cir. 1966); Watts v. State, 196 So.2d 79 (Miss.1967); Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2270, 20 L.Ed.2d 1387 (1968); State v. Coles, 20 Ohio Misc. 12, 249 N.E.2d 553 (1969); See cases collected in Simeone, Search and Seizure Incident to Traffic Violations, 6 St. Louis U.L.J. 506, 512 n. 35 (1961); Note, Search and Seizure — Search Incident to Arrest for Traffic Violation, 1959 Wis.L.Rev. 347, 357 n. 56. Since the ramifications of a search incident to a “pure” traffic arrest are presently under consideration by this court in United States v. Robinson, we need not mediate this dispute here.
The second category of traffic arrest is that involving “special circumstances.” In such situations there are special circumstances which alert the officer or create in him a reasonable apprehension of danger. Courts have consistently held that in such circumstances a search is permissible.6 Among the many special circumstances recited by Judge Wright in Robinson is the situation in which an “officer notes a suspicious movement by one of the car’s occupants as he makes his approach.” 7
In the case at bar we note that although the traffic arrest may have begun as a “pure” or routine one, it ceased to be such when the officers, observing the furtive movements by the occupant of the vehicle, became reasonably fearful of danger. The testimony of the officers and the precautionary action taken by them clearly indicates their apprehension of harm. According to the testimony the officers stopped their scout car further back than normal. In addition, contrary to usual procedure, appellant was ordered out and away from the car via a public address system. Moreover, one officer put a hand on his revolver while holding the radio in the other hand.
While these facts demonstrate fear on the part of the officers, this is not sufficient for our purposes. The fear must be a reasonable one. As the Supreme Court has stated, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880. Of course the conduct must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training, Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194 (1962), for “[c]onduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.”8 Davis v. United States, 133 U.S.App.D.C. 172, 174, 409 F.2d 458, 460 (1969).
Having considered the totality of facts and circumstances, United States v. Davis, 147 U.S.App.D.C. 400, 458 F.2d 819 (1972), we are of the view, that the officers’ fear was reasonable. Confronted with a speeding vehicle running a stop sign at 2:00 a. m., they observed the driver making furtive movements as though pulling something out of his belt and placing it under his seat. We believe this is a sufficient basis upon which to uphold the limited protective search conducted here. An officer “need not defer protective measures to the [624]*624point of peril. All the law requires is that he have reasonable basis for believing that his safety or the safety of others requires a search or seizure." Young v. United States, 140 U.S.App.D.C. 333, 337, 435 F.2d 405, 409 (1970).
The cases principally relied upon by appellant do not dissuade us from our holding. In many of the cited cases there is no indication that the officers were fearful of their own safety. E. g., United States v. Collins, 142 U.S.App.D.C. 100, 439 F.2d 610 (1971); United States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969); Grundstrom v. Beto, 273 F.Supp. 912 (N.D.Tex.1967). More particularly, in People v. Superior Court of Yolo County, supra, a case upon which appellant places great emphasis, the court was dealing with an entirely different situation from that which now faces us. The traffic stop there, occurring on a well-travelled highway at 8:00 a. m., involved an officer turning his back on the defendant thereby clearly indicating his lack of fear. Beyond the holding in that case there is, of course, much dicta. We are not persuaded by this dicta nor that contained in Amador-Gonzalez v. United States, supra. Furthermore, we note that in our own jurisdiction a search similar to the instant one has been held valid. McGee v. United States, 270 A.2d 348 (D.C. App.1970).9
III.
Appellant also asserts that the scope of the search was unnecessarily broad. After reviewing the record we must, however, disagree. Under familiar rubric it is clear that the “search must be 'strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, supra, 392 U.S. at 19, 88 S.Ct. at 1878. Incident to an arrest an officer may make a warrantless “search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, supra, 395 U.S. at 763, 89 S.Ct. at 2040. See Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). As a result of the potential danger to the community and the officer which weapons pose, United States v. Blyther, 132 U.S.App.D.C. 344, 345, 407 F.2d 1279, 1280 (1969),10 the situations in which a protective search will be permitted should be broader than those where the search is for non-protective reasons, whereas the scope of a protective search in a non-continuing relationship context should be more restrained.11 We should, however, keep in mind the peculiar nature of the animal with which we are dealing for “[n]o discussion of crime can ignore the automobile, or the fact that the incidence of crime is hinged directly to the amount of privacy we accord it.” State v. Boykins, 50 N.J. 73, 77, 232 A.2d 141, 145 (1967).
We hold the search conducted in the instant case was sufficiently limited in [625]*625scope to satisfy constitutional requirements. The officer first conducted a limited “frisk” for weapons upon the person of appellant. He then went to the car and recovered a fully-loaded pistol from under the driver’s seat where he reasonably expected it to be. The officer did not search the trunk, glove compartment or back seat. His search was not general or exploratory, but rather limited to the danger at hand. The search under the driver’s seat of an open-door vehicle to which the driver will return is a search of an area under the immediate control of the driver. Cf. United States v. Free, 141 U.S.App.D.C. 198, 201, 437 F.2d 631, 634 (1970); Young v. United States, supra; Application of Kiser, 419 F.2d 1134 (8th Cir. 1969). Our result is in accordance with the view of an often cited commentator who states: “[i]f after initiating the encounter the experienced officer reasonably believes that the driver or occupants may be armed, he should be fully justified in ordering them out, frisking them, and quickly checking the part of the vehicle that might be accessible to them if they should break away from the officer and attempt to flee,”12
Although appellant asserts that it is “incredulous” that he would open fire on the officers after they had permitted him to re-enter his vehicle, we note that the possibility is not as remote as one might think. An examination of the statistics for the year of July 1970 to June 1971 shows that 92 officers were injured and 6 slain in the course of making traffic arrests.13 As one court has observed “the cemeteries and police stations contain living epitaphs of those dedicated traffic officers who failed to take reasonable precautions for their own protection.”14 Moreover, the arrestee may not be the respectable citizen we would like him to be, but rather he may be an individual who may have good reason to avoid a prolonged encounter with the police thereby resulting in resort to a weapon or attempted escape. Furthermore, it has not been demonstrated to date that searches incident to traffic violations have been subjected to abuse. Finding no error, the judgment of the district court is
Affirmed.