445 F.3d 793 (5th Cir. 2006), 05-60695, United States v. Johnson

Docket Nº:05-60695.
Citation:445 F.3d 793
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George D. JOHNSON, Defendant-Appellant.
Case Date:April 04, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 793

445 F.3d 793 (5th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

George D. JOHNSON, Defendant-Appellant.

No. 05-60695.

United States Court of Appeals, Fifth Circuit.

April 4, 2006

Page 794

David Anthony Sanders, Oxford, MS, for U.S.

Thomas Constantine Levidiotis, Oxford, MS, for Johnson.

Appeal from the United States District Court for the Northern District of Mississippi

Before Smith, Garza and Owen, Circuit Judges.

Jerry E. Smith, Circuit Judge:

George Johnson appeals his conviction, under 18 U.S.C. § 922(g)(1), of being a felon in possession of a firearm, arguing that the gun powder residue test performed on his hands, the results of which were admitted at trial, constituted an unlawful search and seizure in violation of the Fourth Amendment. Additionally, Johnson appeals his 120-month sentence on the basis of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm.

I.

While two police officers were in the process of arresting an individual responsible for causing a disturbance at a motel in Clarksdale, Mississippi, Johnson and other persons approached the officers, shouting threats at them. After the officers called for back-up, Johnson and his cohorts left the scene and walked down Lincoln Place, the street on which the motel was located.

Page 795

Ten additional officers arrived at the motel, responding to the call for back-up. While the police were discussing the events that had transpired, gunshots were fired at them from the direction in which Johnson and the others had walked. When the shooting ceased, the officers began searching Lincoln Place, trying to locate the gunman. During the search, one officer received an anonymous telephone call informing him that Johnson was the shooter and that he was hiding at 829 Lincoln Place. At approximately the same time that the police received the informant's call, another officer found five spent .45-caliber shell casings in the street in front of 829 Lincoln Place.

On the basis of the informant's tip and the discovered shell casings, the police surrounded 829 Lincoln Place. At least two officers posted around the house could see Johnson pacing in a back bedroom. The police located the owner of the house, Arnetta Randolph, who was not inside. Randolph's children, however, were inside, and she therefore told the police they could enter. The officers knocked, and when there was no response, Randolph gave them permission to break down her door.

The police removed Randolph's children and located Johnson, who was lying in a bed, fully-clothed and with shoes on, in the same back room where officers had previously witnessed him pacing. The police accordingly did not believe Johnson's claim that he had been asleep.

They handcuffed Johnson and searched the premises for a firearm, finding a .45-caliber handgun on the roof. Johnson was then placed under arrest and taken to the police station, where a gun powder residue test was performed on his hands. The test yielded a positive result for his right hand; ballistics matched the shell casings found in front of the house to the gun found on the roof.

On the basis of these events, and because he had previously been convicted of a felony punishable by a term of imprisonment exceeding one year, the grand jury indicted Johnson for being a felon in possession of a firearm in violation of § 922(g)(1). Johnson moved to suppress the results of the gun powder residue test, arguing that he was arrested solely on the basis of an anonymous informant's tip and therefore that the arrest was unlawful because it was made without probable cause. He contended that the results of the residue test, as "fruit of the poisonous tree," were accordingly inadmissible.

The court denied the motion to suppress. The jury found Johnson guilty as charged, and the court sentenced him to 120 months in prison, the maximum allowed by statute...

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