D.C. criminal defense attorneys know that one of the first things we analyze following a traffic arrest is whether the officer had probable cause both to stop the vehicle or search it in the first place.
Recently, the District of Columbia Court of Appeals ruled that the "furtive gestures" of a passenger are not necessarily enough to justify a search. As such, the charges against the defendant in Jackson v. U.S. will likely be dismissed.
According to court records, the defendant, Mr. Jackson, entered a conditional plea of guilty to one count of possession of cocaine with intent to distribute. He was reportedly pulled over by a D.C. police officer back in 2010. He was driving in his own van, and the officer reportedly stopped him for having window tinting that was too dark. The officer reportedly searched the vehicle, and discovered cocaine that was hidden in the steering wheel horn.
Jackson, upon appeal, asserted that the cocaine and other evidence found in the van should be suppressed - or barred from being considered as evidence - because the officer conducted a search of his vehicle without "reasonable articulable suspicion.
The appellate court agreed, finding that the officer did not have a reasonable suspicion that he may be dealing with a dangerous person, and thus the van search violated Mr. Jackson's rights under the Fourth Amendment.
At issue is the standard for "furtive gestures." The officer testified that after stopping the vehicle, which had been driven by a female, the officer noted that the vehicle began to rock, and there was "a lot of shaking." Rather than running registration, as he might normally, the officer immediately stepped out of his vehicle and walked tot he side of the driver's side door.
Once there, the officer noted that a man was behind the wheel, later identified as Mr. Jackson. The officer said there was a lot of movement and commotion going on in the front of the dash area with the occupants' hands. The officer said such movements were both unusual and unnecessary.
As such, the officer ordered Mr. Jackson out of the vehicle. He asked whether he had any weapons. Mr. Jackson answered no. The officer said the defendant appeared nervous. The officer actually testified that he could "feel how hard Jackson's heart was beating." How he did this is not actually clear.
He subsequently searched the car for weapons. He found an open container of gin, empty plastic bags and a small hatchet. The officer then noticed the horn appeared out of position, and when he inspected it more closely, noted several plastic bags inside containing cocaine. Mr. Jackson was subsequently arrested.
The officer was right about the window tinting - it was too dark. Mr. Jackson did have a valid license, but his vehicle registration was expired.
The trial court later ruled that the officer had probable cause to stop the van based on the window tinting. The trial court further ruled that the officer's observations of the two switching places and the furtive hand gestures were justification for a search of the vehicle.
However, the appellate court ruled that this was not "sufficient to arouse reasonable fear" that Mr. Jackson was dangerous. There was nothing in particular to indicate he was retrieving or hiding a weapon. That is, the whole reason "furtive gestures" are a valid reason to search a vehicle is that they may suggest a person is reaching for a weapon. If the prosecution can't prove that there was a reasonable suspicion of this - and in this case, they could not - then everything found in the subsequent search may be suppressed.