212 F.3d 1313 (D.C. Cir. 2000)
United States of America, Appelleev.Robert Lee Johnson, Appellant
No. 98-3122
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2000Decided May 30, 2000

Appeal from the United States District Court for the District of Columbia(No. 96cr00145-01)
Sandra G. Roland, Assistant Federal Public Defender,  argued the cause for appellant.  With her on the briefs was  A. J. Kramer, Federal Public Defender.  Neil H. Jaffee,  Assistant Federal Public Defender, entered an appearance.
Catherine Motz, Assistant United States Attorney, argued  the cause for appellee.  On the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Elizabeth Trosman, and  Florence Pan, Assistant U.S. Attorneys.
Before:  Silberman, Sentelle, and Rogers, Circuit Judges.
Silberman, Circuit Judge:


1
Robert Lee Johnson appeals his  conviction for possession, with intent to distribute, of crack  cocaine.  He argues that the evidence against him was the  product of a stop and frisk that was not supported by  reasonable suspicion.  We affirm.

I.

2
According to the evidence in the record, on the night of  Johnson's arrest, two officers of the Metropolitan Police  Department were driving in an unmarked car in an area of  Southeast Washington they characterized as "a high narcotics  area."  They pulled into a parking lot and saw a parked car  with two people in it.  Johnson was sitting on the passenger's  side, and another person was on the driver's side.  The  officers saw a young woman leaning into the passenger's  window and handing Johnson an object, which they could notidentify.  At this point they approached the car and the  woman began to walk away.


3
One of the officers, Michael Fulton, saw Johnson make  what Fulton described as a "shoving down" motion, leading  him to believe that Johnson might be armed.  He drew his  gun, advised his partner to do the same, and shouted, "Let  me see your hands."  Johnson did not immediately comply  but rather made "a couple of more shoving motions down"  before raising his hands.  Fulton reached into the car and  touched a bulge in Johnson's left pants pocket.  He felt large,  hard objects which he believed to be rocks of crack cocaine.He then removed a plastic bag from the pocket.  It contained  18 rocks of crack cocaine that, together with another rock  found in Johnson's clothing, totaled 72 grams.  Johnson was  arrested, but the driver of the car and the woman standing  outside it were not.


4
Prior to trial, Johnson moved to suppress all of the evidence recovered from him.  He argued that the police did not have a reasonable suspicion that he was engaged in criminal  activity, and that the stop and frisk were therefore illegal .The government argued that the stop was permissible under  Terry v. Ohio, 392 U.S. 1 (1968), because the police reasonably suspected that a drug transaction was taking place, and  that the frisk was proper because Johnson's conduct led the  officers to believe that he was armed.  At a hearing on the  suppression motion, the government presented the testimony  of Officer Fulton.  Johnson called no witnesses.  The district  court denied the motion without explanation.  After a jury  trial, Johnson was convicted and was sentenced to 168 months in prison.


5
On appeal, Johnson renews his argument that the stop was  unjustified and that the frisk exceeded the scope allowed by  Terry.  He also contends that the district court erred in  failing to make factual findings on the record at the suppression hearing.  In his brief, he suggested that the prosecutor  violated the Fifth Amendment by arguing to the jury that  Johnson's presence throughout the trial gave him an opportunity to tailor his testimony in response to that of other  witnesses.  We need not discuss this claim because as counsel  conceded at argument the theory underlying it was rejected  in the Supreme Court's recent decision in Portuondo v.  Agard, 120 S. Ct. 1119 (2000).

II.

6
We begin with Johnson's claim that, regardless of the  validity of the stop and frisk, the district court's ruling cannot  be affirmed because the trial judge failed to make factual  findings on the record.  Federal Rule of Criminal Procedure  12(e) provides:  "Where factual issues are involved in determining a motion, the court shall state its essential findings on  the record."  The government agrees that the district court  failed to comply with the rule, but it contends that Johnson  waived his challenge to this omission because he did not  object to the lack of factual findings, nor did he ask the court  to explain its ruling.


7
In United States v. Harley, 990 F.2d 1340, 1341 (D.C. Cir.  1993), we held that Rule 12(e) can be waived and that when  the district court has not made findings, "any factual disputes  must be resolved in favor of admissibility and we must uphold  the denial of [the] motion if any reasonable view of the  evidence supports it."  See also United States v. Caballero,  936 F.2d 1292 (D.C. Cir. 1991).  To be sure, when the district  court has not made findings, and when it is not clear what  legal theory the court relied on, a remand may be required  even if the Rule 12(e) defect was waived.  See United States  v. Williams, 951 F.2d 1287 (D.C. Cir. 1991).  In Williams, the  district court not only did not make specific findings, it did  not indicate which arguments, of the three that were advanced by the government, itaccepted to justify a search. Noting that the "purpose of an appeal is to review the  judgment of the district court, a function we cannot properly  perform when we are left to guess at what it is we are  reviewing," we relied on our inherent supervisory power over  the district courts to order a remand.  Id. at 1290;  see also  United States v. Dale, 991 F.2d 819, 840 (D.C. Cir. 1993)  (reviewing the district court's findings after having remanded  "because we did not know which of three separate legal  theories advanced by the government the district court had  adopted and what facts, if any, it relied on to support its  chosen theory").


8
Notwithstanding Williams, when the validity of a search  can be upheld "based upon an argument made by the government below and supported by evidence either uncontested or  found credible by the District Court," the denial of a suppression motion may be affirmed.  United States v. Taylor, 997  F.2d 1551, 1555 (D.C. Cir. 1993).  The situation in Williams  was "exceptional," Harley, 990 F.2d at 1341 n.1, and a remand is not necessary unless there is genuine uncertainty  about what the district court did.  There is no uncertainty  here.  The government offered only one legal theory--i.e.,  that Officer Fulton was frisking Johnson for weapons after a  Terry stop--and it presented uncontroverted testimony from  Officer Fulton.  The issue then is whether the government's theory is supported by the facts that were presented at the  hearing.


9
The government identifies several factors that it says provide the "minimal level of objective justification" necessary  for a Terry stop. United States v. Sokolow, 490 U.S. 1, 7  (1989).  First, Johnson's car was in a high-crime area.  Officer Fulton described it as a "high narcotics area," adding "I  have been involved in numerous narcotics arrests there."  While obviously insufficient by itself to amount to reasonable  suspicion, this is "among the relevant contextual considerations in a Terry analysis."  Illinois v. Wardlow, 120 S. Ct. 673, 676 (2000).  Second, Fulton saw a woman lean into the  car and hand Johnson an object, and third, when Fulton  approached in his unmarked car, the woman walked away and  Johnson made a "shoving down" motion.


10
If the seizure had taken place at that point, we doubt very  much whether it would have been valid.  As Johnson points  out, simply receiving an object from another person--Fulton  did not see Johnson give the woman anything in exchange--is  a common occurrence for which there could be many innocent  explanations.  And while Johnson's furtive gestures prior to  Fulton's command may be more suspicious, they are significant only if they were undertaken in response to police  presence.  It is not clear that Johnson was aware that Fulton  was a police officer;  Fulton was after all in an unmarked car.  While Fulton did testify that his car was "one of those ones  that everybody knows it's a police cruiser" because it had "a  little dome light in it," that may not help much. The government did not seek to qualify Fulton as an expert on public identification of police vehicles, and Fulton did not establish a  factual foundation for opinion testimony as a lay witness.  Cf.  Fed. R. Evid. 701, 702.


11
We need not focus on those questions, however, because we  do not think the seizure took place immediately after Johnson's first "shoving down" motion, when Fulton drew his gun  and ordered Johnson to raise his hands.  Under California v.  Hodari D., 499 U.S. 621 (1991), a seizure requires the application of physical force or submission to an assertion of authority.  Before Johnson raised his hands, Fulton had made a  show of authority but Johnson had not submitted to it.  On  the contrary, he continued to make "shoving down" motions,  gestures that were the very opposite of complying with  Fulton's order, and which a reasonable officer could havethought were actually suggestive of hiding (or retrieving) a  gun.  In sum, by the time the stop actually took place, it was  supported by Johnson's continued furtive gestures in response to being confronted by a police officer, and that was  suspicious enough to support a reasonable belief that Johnson  may have been engaged in criminal activity.


12
Johnson argues that the stop actually took place much  earlier:  as soon as the officers pulled into the parking lot,  because they blocked Johnson's car with their own.  Brower  v. County of Inyo, 489 U.S. 593 (1989), suggests that blocking  a vehicle can be the kind of application of physical force that  constitutes a seizure.  So if Johnson's car had been blocked,  he would have been stopped, and the stop would be invalid  because at that point Fulton had almost no reason to suspect  Johnson of wrongdoing.  But Johnson can find little factual  support for this argument in the record.  The testimony on  which he relies is ambiguous at best;  such as Fulton's  statement that "I was in a parking lot almost in front of their  vehicle but off, a little off-centered to the vehicle."  And the  rest of the testimony actually contradicts the theory.  For  example, Fulton went on to say that he was about 25 feet  away from Johnson's car, hardly close enough to block it. More importantly, Johnson did not present this argument to  the district court (and did not raise it here until his reply  brief).  His suppression motion is flatly inconsistent with his  theory, arguing that "Mr. Johnson was seized for purposes of  implicating his Fourth Amendment rights when the police  officers forcibly detained and searched him."  The district  court was not obligated to conclude that Johnson was seized  when Fulton pulled into the parking lot.


13
Since the stop was valid, the frisk was permissible, for  Fulton obviously had reason to suspect Johnson of being  armed.  The government points out that the discovery of  crack during the frisk comes within the plain-feel doctrine of Minnesota v. Dickerson, 508 U.S. 366 (1993).  Johnson responds with the claim that "Terry does not permit officers to  frisk any and every bump or bulge.  A bump or bulge that  could not reasonably be a weapon cannot justify a pat-down  frisk."  That is inconsistent with Dickerson and with common  sense.  A frisk may after all be conducted even when a  suspect's clothing exhibits no visible bulges.  The limitation  imposed by Dickerson is that once the officer finds an object  on the person of a suspect, he may not palpate it more than is  necessary to determine whether it is a weapon.  See, e.g.,  United States v. Ponce, 8 F.3d 989, 999 (5th Cir. 1993)  (removal of folded dollar bills from pocket was inappropriate  because the officer could not have thought they were a  weapon).  Here, Fulton frisked Johnson and felt "a big  bulge" in which he "fe[lt] what I immediately recognize[d] to  be large, hard objects."  He explained, "based on my experience ... I believe[d] what I [was] feeling to be crack cocaine."  Fulton did not exceed the permissible contours of a  Terry frisk.


14
****

The judgment of the district court is

15
Affirmed.

