USA v. Johnson

• Decision Date: 08 September 2010
• Docket Number: No. 09-5397.,09-5397.
• Citation: 620 F.3d 685
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurice T. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

620 F.3d 685

UNITED STATES of America, Plaintiff-Appellee,

v.Maurice T. JOHNSON, Defendant-Appellant.

No. 09-5397.

United States Court of Appeals,Sixth Circuit.

Argued: Aug. 4, 2010.

Decided and Filed: Sept. 8, 2010.

ARGUED: Laura E. Davis, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant. Zachary C. Bolitho, Assistant United States Attorney, Knoxville, Tennessee, for Appellee. ON BRIEF: Nikki C. Pierce, Federal Defender Services of Eastern Tennessee, Inc., Greeneville, Tennessee, for Appellant. Zachary C. Bolitho, Assistant United States Attorney, Knoxville, Tennessee, Donald Wayne Taylor, Assistant United States Attorney, Johnson City, Tennessee, for Appellee.

Before GUY, MOORE, and GRIFFIN, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which GRIFFIN, J., joined. GUY, J. (pp. 696-99), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

On April 14, 2007, Newport, Tennessee police officers Scott Lamb and Rick Parton responded to a 4:00 a.m. 911 call asserting that “some people” connected with a blue Cadillac were “walking around” outside the caller's apartment. Reaching the area within minutes, the officers observed a blue Cadillac parked across the street from the front of the caller's home. They then saw a man who turned out to be the defendant, Maurice T. Johnson, carrying a bag and walking at a normal pace from a grassy area next to the caller's residence (that is, from the direction opposite the Cadillac) toward a white car on the street that ran alongside the residence. The officers ordered Johnson, who was walking with his back toward them, to stop, but he did not respond. Instead, Johnson proceeded at the same pace to the white car, walked around the front of the car and opened the passenger-side door, threw his bag inside, and stood outside the car with one hand on the door frame and the other atop the open door. Johnson stood still but did not respond to subsequent commands to raise his hands. Lamb and Parton then drew their weapons, and Johnson raised his hands. The officers patted Johnson down, found a loaded gun, and arrested him. Upon further searching his person, they found 3.8 grams of crack cocaine, a glass pipe, and various prescription pills. The government later indicted Johnson on gun and drug charges.

Johnson moved to suppress the evidence as the fruit of an illegal seizure. After an evidentiary hearing, the district court denied the motion, concluding that the officers had reasonable suspicion to detain Johnson in compliance with the Fourth Amendment. Thereafter, Johnson pleaded guilty to being a felon in possession of a firearm and to possession of crack cocaine with intent to distribute, reserving his right to appeal the denial of his suppression motion, and received a 192-month prison sentence. He now raises his Fourth Amendment claim on appeal. For the reasons discussed below, we REVERSE the district court's denial of Johnson's motion to suppress and REMAND for further proceedings.

I. BACKGROUND

At approximately 4:00 a.m. on April 14, 2007, a woman residing at an apartment run by the Newport Housing Authority called 911 and had the following conversation with the operator:

OPERATOR: 911 Where is your emergency?

CALLER: [XYZ] Whitson Drive.

OPERATOR: What's the problem there?

CALLER: Um. They've finally had to come over here a couple of times before because I had some people coming by my house and they're back.

OPERATOR: What kind of vehicle are they in?

CALLER: They've got it parked now. They're outside their vehicle walking around my house.

OPERATOR: And what kind of vehicle is it?

CALLER: A Cadillac. Uh a blue Cadillac.

App'x at 4 (911 Call Transcript). Sergeant Scott Lamb and Officer Rick Parton departed the police station and headed to the caller's residence in separate vehicles. Neither Lamb nor Parton had heard the 911 call itself, but they were told by the dispatcher that the caller reported suspicious people around a blue Cadillac. ¹ At the hearing, Lamb and Parton testified that officers had responded to calls from the same caller earlier that evening and the previous day. Doc. 27 at 8, 46. Although Lamb stated that the earlier calls involved “some subjects that had been coming to her residence bothering her,” id. at 7, and agreed with defense counsel that the caller stated “that those people had been there looking for somebody,” id. at 24, 29, the basis for these characterizations was never brought out, and the district court found that “the nature of the prior complaints is not known,” United States v. Johnson, No. 07-CR-93, 2008 WL 2718882, at *1 (E.D.Tenn. July 10, 2008) (unpublished opinion).

Two to three minutes after being dispatched, Lamb and Parton arrived at the area of the caller's residence, a duplex at the northeast corner of the intersection between the east-west street Whitson Drive and the north-south street Buda Road. Lamb testified that this was “a high drug trafficking area.” Doc. 27 at 10. The officers observed a blue Cadillac parked in a parking space on Whitson Drive across the street from the caller's residence; it had a shredded, flat tire. ² Lamb parked directly behind the Cadillac, and Parton parked directly behind Lamb. They alighted from their vehicles, scanned the area, and saw a person who turned out to be Johnson walking from a grassy area to the side of the duplex toward Buda Road, where a white car with a female driver was waiting. Johnson was not near the Cadillac, ³ and the officers did not observe anyone else walking or running in the area.

Johnson's back was toward the officers and he was twenty to thirty yards away when they observed him stepping from the grassy area onto Buda Road. Johnson was carrying a bag, ⁴ a fact that Lamb testified made him suspicious. Lamb and Parton yelled at Johnson, “[s]top, hey, hold on, wait a second,” instructed him to “stay right there where he was” and to let them talk to him, and said “police” several times. Id. at 14, 33, 52. Johnson did not stop and instead continued walking at the same pace toward the white car. He crossed in front of the white car, opened the passenger-side door, threw his bag into the car, and then stood at the passenger-side door. The officers ordered Johnson to put his hands up, but he did not do so. According to Sergeant Lamb, Johnson “was sort of bracing himself in the door frame and on the top of the door.” Id. at 14. Lamb believed Johnson “was either thinking I'm going to jump in the car or I'm going to run.” Id. The officers again ordered him to put up his hands, and again he did not. Finally, the officers drew their weapons and repeated their demand; at gunpoint, Johnson raised his hands.

On the officers' orders, Johnson then stepped out from the side of the vehicle, whereupon Lamb noticed a sagging bulge in the hand-warmer of the hooded sweatshirt that Johnson was wearing. Around this time, Lamb observed Johnson “sort of bending over ..., he bent over and actually put his hands towards his middle region of his, of his body, and was sorta slumped over and bending.” Id. at 16-17. Lamb approached Johnson, patted him down, and discovered a loaded gun inside a sock in the hand-warmer. The officers handcuffed Johnson and recovered from his person 3.8 grams of cocaine base, assorted pills, and a glass pipe. A third officer arrived during the arrest to back up Lamb and Parton.

On October 9, 2007, the government charged Johnson in a five-count indictment with being a felon in possession of a firearm; possession of crack cocaine, alprazolam, and oxycodone with intent to distribute; and using and carrying a firearm during and in relation to a drug-trafficking offense. Johnson filed a motion to suppress the evidence as obtained in violation of the Fourth Amendment. After an evidentiary hearing, a magistrate judge recommended that the motion be denied. The district court adopted the recommendation. It concluded that although the 911 call “lacked even moderate indicia of reliability,” the officers' initial attempt to speak to Johnson was permissible and Johnson's “actions after this initial request, when viewed in the totality of the circumstances, ... provide[d] the officers with a particularized and objective basis for stopping the defendant.” Johnson, 2008 WL 2718882, at *3 (internal quotation marks omitted).

Pursuant to a plea agreement that preserved his right to appeal the district court's denial of his motion to suppress, Johnson pleaded guilty to being a felon in possession of a firearm and to possession of crack cocaine with intent to distribute. The government agreed to dismiss the other charges. The district court then sentenced Johnson as an armed career criminal to 192 months of imprisonment and 6 years of supervised release. Johnson timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

Whether a seizure was reasonable under the Fourth Amendment is a question of law that we review de novo. See United States v. Blair, 524 F.3d 740, 747 (6th Cir.2008). When the district court has denied a motion to suppress, we must consider the evidence in the light most favorable to the government. Id. at 748.

B. Constitutionality of the Seizure

Johnson does not contend that the police could not have patted him down after detaining him, arrested him after finding the gun, or searched his person after arresting him. Rather, he argues that the officers lacked a constitutional basis to detain him in the first place. If that is so, then the gun and drugs must be suppressed as fruits of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The Fourth Amendment protects “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const. amend. IV. This protection extends to all seizures, including the brief investigatory stops described by the Supreme Court in Terry v. Ohio, ...