592 F.3d 442 (3rd Cir. 2010), 09-2245, United States v. Johnson

Docket Nº:09-2245.
Citation:592 F.3d 442
Opinion Judge:HARDIMAN, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Anthony JOHNSON, Appellant.
Attorney:Michael A. Consiglio, Eric Pfisterer, Office of United States Attorney, Harrisburg, PA, Attorneys for Appellee. Frederick W. Ulrich, Office of Federal Public Defender, Harrisburg, PA, Attorney for Appellant.
Judge Panel:Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.
Case Date:January 27, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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592 F.3d 442 (3rd Cir. 2010)

UNITED STATES of America, Appellee,


Anthony JOHNSON, Appellant.

No. 09-2245.

United States Court of Appeals, Third Circuit.

January 27, 2010

Submitted Under Third Circuit LAR 34.1(a) Dec. 1, 2009.

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[Copyrighted Material Omitted]

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Michael A. Consiglio, Eric Pfisterer, Office of United States Attorney, Harrisburg, PA, Attorneys for Appellee.

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Frederick W. Ulrich, Office of Federal Public Defender, Harrisburg, PA, Attorney for Appellant.

Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.


HARDIMAN, Circuit Judge.

In this appeal we consider whether a vehicle stop based on information provided by a witness who called 911 to report a shooting violated Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As we shall explain, the vehicle stop was supported by reasonable suspicion that at least one of its occupants was involved in the shooting. In addition, the police officers' conduct in effectuating the stop was reasonable under the circumstances. Accordingly, the District Court did not err when it denied Appellant Anthony Johnson's motion to suppress evidence.


A hard rain was falling in Harrisburg, Pennsylvania on the night of January 7, 2007 when Tammy Anderson noticed a taxicab pull into a parking lot across the street from her house and park next to a van. Though visibility was poor, Anderson was able to observe what appeared to be two men emerge from the vehicles and begin to fight. Watching this altercation develop from the doorway of her home, Anderson heard at least one gunshot ring out.

Upon hearing the gunshot, Anderson called 911 and told the police dispatcher: " I heard a gunshot. I seen [sic] two people wrestling on the ground and I don't see them now. And there was a gunshot. I'm standing here on [sic] my front door." When prompted by the dispatcher, Anderson provided her full name, her telephone number, and described the location of the parking lot. Although Anderson was unable to describe in any detail the individuals involved in the altercation, she said the taxi appeared to be white-possibly with tan paneling-and had a green light on its roof. While she was still on the phone, Anderson told the dispatcher that the taxi was departing from the parking lot and heading southbound on Seventh Street. The van, Anderson noted, remained in the lot and appeared to be unattended.

The information Anderson provided was dispatched to Harrisburg police officers on patrol that evening. Officer John Doll responded to the parking lot and confirmed that a van was parked in the lot. Doll arrived so quickly that Anderson, who was still on the phone, told the dispatcher that she saw a police car drive by. At about the same time, another officer reported that he had spotted a taxicab matching the description provided by Anderson heading southbound on Seventh Street approximately ten blocks away. After determining that no one remained with the van, Officer Doll proceeded southbound on Seventh Street in search of the taxicab.

Doll quickly tracked down the taxi, though he did not stop the vehicle immediately. Concerned that its occupants might be armed, Doll and other officers followed the taxi for several blocks to allow backup to join the pursuit. When the taxi turned onto Aberdeen Street, a narrow alleyway approximately two miles from the reported altercation, the officers initiated a traffic stop. The purpose of this stop, Doll testified at the suppression hearing, was to investigate the " shots fired call" and to ensure that no one in the taxicab was either armed or injured. Positioning their vehicles to block the exit to the alleyway, numerous officers surrounded the taxicab. Because the information relayed by the dispatcher indicated that the occupants of the taxi may have been involved in the reported shooting incident, the officers approached

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the taxicab slowly, with guns drawn, while shouting for the occupants to exit the vehicle. According to Doll, such a response was " general practice" in such circumstances " in case somebody comes out of the vehicle with a gun ready to shoot."

The police proceeded to clear and secure the vehicle. Riding in the backseat of the taxi with his young son was the Appellant, Anthony Johnson. After removing both Johnson and the taxi driver, Kenneth Cobb, the officers handcuffed both men, though neither was formally arrested at that time. Rather, Officer Doll testified at the suppression hearing that the police handcuffed the men so the officers could safely clear the vehicle and gather information about the shooting reported by Anderson. Surprised to discover Johnson's eight-year-old son in the taxicab, the officers also removed him and placed him to the side.

After Johnson and Cobb were detained, another responding officer, Richard Gibney, approached the car. Though it was raining hard, the location was well-lighted and the taxicab's interior dome light was on, illuminating the vehicle's passenger compartment. Looking through a back window, Officer Gibney observed the butt of a Taurus .38 Special revolver protruding from an unzipped duffel bag on the taxicab's rear seat, where Johnson had been sitting. After consulting with Officer Doll, Officer Gibney retrieved the weapon from the taxi and unloaded it, finding two spent shell casings inside.

Officer Doll then placed Johnson, a convicted felon, under arrest for possession of the gun and suspected involvement in the shooting and altercation reported by Anderson. After reading Johnson his Miranda rights, Doll began questioning him about the firearm and the shooting. Johnson declined to respond. A search of Johnson incident to his arrest revealed that he carried on his person marijuana, cocaine, and related drug paraphernalia.

Johnson was transported to the police station for booking, where he again encountered Officer Doll, who had traveled to the station separately. Although Doll did not attempt to question Johnson at the police station, Johnson began speaking to Doll during the booking process, admitting ownership of the revolver and duffel bag but denying responsibility for the shooting reported by Anderson. Johnson also attempted to persuade Doll to forego charging him with any drug offenses.

A grand jury indicted Johnson on a single count of illegal possession of a firearm by a person with three prior felony convictions in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). After Johnson pleaded not guilty, the Government filed a superseding indictment, adding a single count of possession with the intent to distribute marijuana and cocaine in violation of 21 U.S.C. § 841(a)(1). Johnson then filed the motion to suppress at issue in this appeal, contending that the firearm, drugs, and any inculpatory statements made to Doll should be suppressed because the initial stop of the taxicab violated the Fourth Amendment's prohibition against unreasonable searches and seizures. After the District Court denied his motion, Johnson conditionally pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(e), reserving his right to appeal the District Court's denial of his motion to suppress. The District Court sentenced Johnson to 180 months incarceration and imposed a fine of $1,000, together with four years of supervised release.


Johnson now appeals the District Court's denial of his motion to suppress. The District Court had jurisdiction pursuant

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to 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291.

On appeal, Johnson claims the initial stop of the taxi was unconstitutional for two independent reasons. First, he argues that the stop of the taxi amounted to a de facto arrest which required probable cause that the information provided by Anderson could not provide. Alternatively, Johnson argues that the stop of the taxicab was not supported by reasonable suspicion because the information provided by Anderson was insufficiently detailed, particularized, and reliable. Examining the District Court's factual findings for clear error, United States v. Bonner, 363 F.3d 213, 215 (3d Cir.2004), and exercising de novo review over the District Court's legal determination that the seizure at issue here did not violate the Fourth Amendment, United States v. Myers, 308 F.3d 251, 255 (3d Cir.2002) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)), we address Johnson's arguments in turn.


The Fourth Amendment prohibits " unreasonable searches and seizures...." U.S. Const. amend. IV. A traffic stop of a motor vehicle is a seizure of the vehicle's occupants for the purposes of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Mosley, 454 F.3d 249, 253 (3d Cir.2006). Ordinarily, " for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause." United States v. Robertson, 305 F.3d 164, 167 (3d Cir.2002). Under the well-established exception to the warrant requirement set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), however, " an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); see also Prouse, 440 U.S. at 663, 99 S.Ct. 1391 (stop of vehicle must be based on reasonable suspicion of criminal activity). Evidence obtained as the result of a " Terry stop" " that does not meet this exception must be suppressed as ‘ fruit of the poisonous tree.’ " United States v. Brown, 448 F.3d 239, 244 (3d Cir.2006) (citing Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).


Johnson first contends that the evidence recovered from the...

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