363 F.3d 213 (3rd Cir. 2004), 03-1547, United States v. Bonner

Docket Nº:03-1547.
Citation:363 F.3d 213
Party Name:UNITED STATES of America, Appellant v. Jermane E. BONNER
Case Date:March 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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363 F.3d 213 (3rd Cir. 2004)

UNITED STATES of America, Appellant

v.

Jermane E. BONNER

No. 03-1547.

United States Court of Appeals, Third Circuit

March 30, 2004

Argued Sept. 16, 2003.

Page 214

Mary Beth Buchanan, Esq., Bonnie R. Schlueter, Esq. (Argued), Office of United States Attorney, Pittsburgh, PA, Counsel for Appellant.

W. Penn Hackney, Esq., Karen S. Gerlach, Esq., Lisa B. Freeland, Esq. (Argued), Office of Federal Public Defender, Pittsburgh, PA, Counsel for Appellee.

Before: McKEE, SMITH and COWEN, Circuit Judges.

Page 215

COWEN, Circuit Judge.

Jermane Bonner fled from police after the car in which he was a passenger was stopped for a routine traffic violation. The police gave chase and, upon apprehending him, discovered that he was carrying crack cocaine. The government prosecuted Bonner for possession with the intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The District Court suppressed all evidence seized during the stop including the drugs. This appeal by the government followed.

In suppressing the evidence, the District Court held that the officers lacked a reasonable, articulable suspicion that Bonner was involved in criminal activity. The District Court reasoned that the sole basis for the stop was Bonner's flight from police, and that under Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), and its progeny, mere flight when police appear on the scene is not sufficient to establish reasonable suspicion.

We will reverse. Under the facts of this case we hold that the officers had reasonable suspicion to stop Bonner. Although flight alone is not enough to justify a police stop, this is not a case of flight upon noticing police. The officers in this case were effectuating a legitimate traffic stop. During a traffic stop, police officers may exercise reasonable superintendence over the vehicle, its driver, and passengers. Because Bonner prevented the police from maintaining oversight and control over the traffic stop by fleeing, we hold that the police had reasonable suspicion to stop him.

I

On March 8, 2001, Officers Harbaugh, English, Stewart, and Sweeney were in uniform and on duty at the police security booth at the entrance to the Ohioview Acres housing project in Stowe Township, Pennsylvania. At approximately 11:40 p.m., Officer Harbaugh noticed a sports utility vehicle leaving the housing project that had one headlight out and an expired inspection sticker. He signaled for the vehicle to stop. The driver, Nathan Stewart, complied. In addition to the driver, there were two passengers: the driver's brother, Neil Stewart, in the back seat and Jermane Bonner in the front passenger seat.

As Officer Harbaugh approached the driver's side of the vehicle, Bonner alighted and ran. Officer Stewart chased after him on foot, repeatedly yelling for him to stop. Officer English gave chase in the patrol car, driving in the direction Bonner was running, then parked and continued the chase on foot.

Officer English eventually caught Bonner by tackling him. Both officers then subdued and handcuffed Bonner. While subduing him, Officer English observed a clear plastic bag in Bonner's hand. The bag contained seven golf ball sized rocks, which were later tested and found to be crack cocaine. The officers also seized $534.25 from Bonner during the arrest.

The driver and other passenger were told to put the vehicle in park, turn off the ignition, and step out of the vehicle. Both were handcuffed and detained for a brief period of time, then released with a citation for the traffic violations.

We have jurisdiction under 18 U.S.C. § 3731, and conduct plenary review of the District Court's determination that the officers did not have reasonable suspicion to stop Bonner. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Valentine, 232 F.3d 350 (3d Cir. 2000). We review the District Court's findings of fact for clear error. Ornelas, 517 U.S. at 698, 116 S.Ct. at 1663.

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II

As a preliminary matter, the government challenges the District Court's findings that the area was not a high crime area, and that the hour of the stop, 11:40 pm, was not significant to the reasonable suspicion inquiry. In support of its contention that the Ohioview Acres housing project was a high crime area, the government submitted a log book of arrests made at the housing project over a three-year period. As the District Court found, the log book reflected that there was an average of 1.3 arrests per week, and that most of the arrests were for misdemeanors and summary offenses. Considering the number of people who live in the housing project, the District Court found that this average reflected neither a high crime area nor trafficking in narcotics. The government contends this finding was clearly erroneous, and points to a news article as further evidence of the level of crime present in the area. Even considering the news article, however, the evidence does not compel the conclusion that the District Court erred in finding that the housing project was not a high crime area. The District Court found that the stop did occur at 11:40 p.m., but did not consider that factor relevant to its analysis of whether there was reasonable suspicion for the stop. The evidence does not compel a different conclusion. We conclude that the fact finding by the District Court was not clearly erroneous.

III

It is uncontested that the initial traffic stop was lawful under the Fourth Amendment. A police officer who observes a violation of state traffic laws may lawfully stop the car committing the violation. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977). It is also well settled that a police officer executing such a stop may exercise reasonable superintendence over the car and its passengers. Under Mimms, the officer may order the driver out of the vehicle without any particularized suspicion. Mimms, 434 U.S. at 110-11, 98 S.Ct. at 333. The Supreme Court extended that bright line rule to allow the officer to order any passengers out of the car as well. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Alternatively, the officer may order all of the occupants to remain in the car with their hands up. United States v. Moorefield, 111 F.3d 10 (3d Cir. 1997). In addition, the officer may pat down the occupants of the vehicle and conduct a search of the passenger compartment, if he has a reasonable suspicion that the occupants might be armed and dangerous. Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983) (permitting search of vehicle during traffic stop); Mimms, 434 U.S. at 111-112, 98 S.Ct. at 334 (permitting pat down of driver upon reasonable suspicion); Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); Moorefield, 111 F.3d at 13-14 (permitting pat down of passenger upon reasonable suspicion).

The government asserts that the police officers ordered Bonner and the other occupants to stay in the vehicle. At the suppression hearing, however, there was conflicting testimony whether the officers said anything before Bonner ran. The District Court made no finding with respect to what, if anything, the officers said before Bonner got out of the vehicle and ran. We will assume for the purpose of this opinion that the officers did not issue any commands before Bonner began running. But even absent a specific command, it is undisputed that Bonner, an occupant of the stopped vehicle, ran from the scene of a legitimate traffic stop without

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authorization or consent of the officers. During such a stop, a police officer has the authority and duty to control the vehicle and its occupants, at least for a brief period of time.1 Bonner prevented Officer Stewart from controlling the stop by running from the vehicle before the purpose of the stop was even announced.

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, an officer may conduct a brief, investigatory stop when that officer has "a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675, 145 L.Ed.2d 570 (2000). Although reasonable suspicion is less demanding than probable cause, the Fourth Amendment does require that an officer making a stop have some level of objective justification for that stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). In evaluating whether a particular stop was justified, courts must look at the totality of the circumstances surrounding the stop. Sokolow, 490 U.S. at 8, 109 S.Ct. at 1586 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621(1981)). In effectuating a valid stop, police officers are allowed to use a reasonable amount of force. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Bonner argues that flight, standing alone, is not sufficient to engender reasonable suspicion on the part of a police officer. Indeed, the Supreme Court has never held that unprovoked flight alone is enough to justify a stop. The Supreme Court has held, however, that flight upon noticing police, plus some other indicia of wrongdoing, can constitute reasonable suspicion. Wardlow, 528 U.S. at 125-26, 120 S.Ct. at 676-77. The "plus" factor was Wardlow's mere presence in an area known for high narcotics trafficking. Wardlow, 528 U.S. at 124, 120 S.Ct. at 676. In holding that flight plus presence in a high crime area justified the stop, the Court explained, "the determination of reasonable suspicion must be based on commonsense judgments...

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