U.S. v. Johnson

• Citation: 63 F.3d 242
• Decision Date: 16 August 1995
• Docket Number: No. 94-7646,94-7646
• Parties: UNITED STATES of America, Appellant, v. Paul N. JOHNSON; Darryl Jonns; Lamont Bell; and Craig Richardson, Paul N. Johnson, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 242

63 F.3d 242

UNITED STATES of America, Appellant, v. Paul N. JOHNSON; Darryl Jonns; Lamont Bell; and Craig Richardson, Paul N. Johnson, Appellee.

No. 94-7646.

United States Court of Appeals,

Third Circuit.

Argued April 18, 1995.

Decided Aug. 16, 1995.

David M. Barasch, U.S. Atty., Dennis C. Pfannenschmidt, Asst. U.S. Atty. (argued), Harrisburg, PA, for appellant.

Spero T. Lappas (argued), Harrisburg, PA, for appellee.

Stefan Presser, ACLU of Pennsylvania, Philadelphia, PA, David Rudovsky, ACLU of Pennsylvania, Kairys & Rudovsky, Philadelphia, PA, Eric B. Henson, Jan Fink Call, R. David Walk, Jr., Hoyle, Morris & Kerr, Philadelphia, PA, for amicus curiae ACLU of Pennsylvania.

Before: STAPLETON, HUTCHINSON and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Paul N. Johnson ("Defendant") was indicted by a federal grand jury for conspiracy to distribute narcotics, see 21 U.S.C. Sec. 846, possession and distribution of narcotics, in violation of 21 U.S.C. Sec. 841, and related firearms offenses, see 18 U.S.C. Secs. 922(g), 924(a)(2), (c)(1), (c)(2). The government appeals here from an order of the district court granting Defendant's pretrial motion to suppress contraband seized by the Pennsylvania State Police during a vehicle search. The district court had jurisdiction under 18 U.S.C. Sec. 3231, and we have jurisdiction pursuant to 18 U.S.C. Sec. 3731. The trial has been stayed pending the disposition of this appeal.

I. FACTS

The historic facts are taken from the memorandum decision filed by the district court, see FED.R.CRIM.P. 12(e), after the hearing on Defendant's motion to suppress the seized materials.

A Pennsylvania State Trooper, while following a vehicle traveling on Interstate 78 toward Harrisburg and driven by Defendant, noticed "several large objects," which appeared to be air fresheners, hanging from its inside rearview mirror. Because he believed the hanging objects constituted a violation of the Pennsylvania Vehicle Code, see 75 PA.CONS.STAT.ANN. Sec. 4524(c) (Supp.1994), ¹ the trooper engaged his overhead lights and signaled for the vehicle to pull to the side of the road.

After both vehicles stopped, the trooper asked Defendant to produce his driver's license and automobile registration card. Defendant produced a South Carolina driver's license bearing the name "Tracy Lamar Washington." Although he was unable to produce an automobile registration card, a violation of the Pennsylvania Vehicle Code, see 75 PA.CONS.STAT.ANN. Sec. 1311(b) (Supp.1994), Defendant told the trooper that he owned the vehicle. See Appendix at A60-A61. At that point, the trooper went to his patrol car and had the police dispatcher run a check on the vehicle's license number.

While waiting for the vehicle check to be completed, the trooper spoke separately with Defendant and the other occupants of the vehicle. According to the trooper, during these conversations Defendant as well as the passengers seemed "unusually" and "exceptionally" nervous and gave the trooper conflicting statements about the origin and the destination of their trip. Although Defendant knew the name of one of the passengers, he could identify another one only as "T." The trooper testified that the circumstances caused him to suspect that there were narcotics or contraband in the vehicle.

The trooper asked Defendant whether there was anything illegal in the vehicle, and Defendant replied in the negative. The trooper then asked Defendant for his consent to search the car and presented him with a consent form to read and sign. Although Defendant would not sign the form, the trooper testified that he orally consented to the search. In the search that followed, the trooper discovered one-half pound of marijuana, one and one-half ounces of cocaine, one ounce of a substance often used to "cut" cocaine, and a digital scale. At that point, the trooper read the adult occupants of the vehicle their Miranda rights, then placed them under arrest, and seized the contraband.

Defendant was first charged in state court with a number of violations under the Pennsylvania Crimes Code, the Drug Code, and the Vehicle Code. He, thereafter, filed a pretrial motion to suppress the seized drugs and other contraband. The Court of Common Pleas for Berks County, Pennsylvania suppressed the seized materials found in the vehicle because it concluded that they were obtained during an unlawful search. That action was later nolle prossed. See id. at A71.

Defendant was also charged in the district court with federal narcotics and firearms violations. Again, he moved to suppress the same materials obtained by the trooper following the traffic stop. Thereafter, the district court conducted a pretrial suppression hearing and concluded that the traffic stop was used by the trooper as a pretext, that is, a legal justification for an otherwise unconstitutional vehicle stop based on suspicion of narcotics possession. See United States v. Johnson, No. 1:CR-94-145-01, slip op. at 6 (M.D.Pa. Oct. 24, 1994) ("Mem.Op."). As a result, the court found that the subsequent search and seizure were tainted by this pretextual stop and the seized materials were suppressed. The government appeals that order.

II. DISCUSSION

Some preliminary observations are appropriate to an understanding of the structure of this opinion.

We emphasize that this is an appeal by the government from an order of the district court granting Defendant's pretrial suppression motion. In the district court, Defendant set forth what we understand to be two grounds for suppression: (1) the traffic stop that eventuated in the seizure of the illegal materials was unconstitutional, thus tainting the seizure; and (2) the real reason for the traffic stop was to find a way to search for drugs and not to enforce the traffic laws. As we read the memorandum decision of the district court, it rejected Defendant's first ground but relied on the second, i.e., pretext, to grant his motion.

On appeal the government attacks the district court's pretext finding, which, of course, the Defendant supports. We will initially address whether the district court erred in its ruling on the first ground in Defendant's motion. We do so because if the district court erred in that determination, it would be unlikely that the more complex pretext issue would be decided. See, e.g., United States v. Shabazz, 993 F.2d 431, 435 n. 3 (5th Cir.1993).

A. Was The Traffic Stop Justified?

The United States Supreme Court has held that stopping a car and detaining its occupants is a seizure under the Fourth Amendment. See United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 678, 83 L.Ed.2d 604 (1985); see also United States v. Velasquez, 885 F.2d 1076, 1081 (3d Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 497 (1990). However, a stop to check a driver's license and registration is constitutional when it is based on an "articulable and reasonable suspicion that ... either the vehicle or an occupant" has violated the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); see Velasquez, 885 F.2d at 1081; see also 75 PA.CONS.STAT.ANN. Sec. 6308(b) (Supp.1995). ²

As a general rule, the burden of proof is on the defendant who seeks to suppress evidence. See United States v. Acosta, 965 F.2d 1248, 1256 n. 9 (3d Cir.1992) (citations omitted). However, once the defendant has established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable. See United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir.1993).

The trooper testified that he stopped Defendant's vehicle because, based on what he saw, he believed it was in violation of the Pennsylvania Vehicle Code. See Appendix at A57. As we read the district court's memorandum decision, it accepted this testimony. See Mem.Op. at 12, 14. This finding of fact exceeds the showing required of the government to justify the traffic stop under Prouse, which requires only an articulable and reasonable suspicion that the car was in violation of Pennsylvania law. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977); Velasquez, 885 F.2d at 1081. Because this finding is not clearly erroneous, we conclude that the district court correctly determined that the trooper's basis for the stop, standing alone, met Fourth Amendment requirements.

B. The Pretext Issue

Although the traffic stop itself met constitutional requirements, the district court suppressed the seized materials because it found that the traffic stop was merely a pretext to find a basis to thereafter search Defendant's vehicle for narcotics and, as such, was violative of the Fourth Amendment. See Mem.Op. at 16. We now determine whether the district court applied the proper standard in determining that the stop was pretextual. This important issue presents a question of law subject to plenary review. See United States v. Deaner, 1 F.3d 192, 196 (3d Cir.1993).

In evaluating the constitutionality of a police traffic stop, most courts agree that an objective analysis of the facts and circumstances surrounding the stop is appropriate. See, e.g., Scott v. United States, 436 U.S. 128, 137-38, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978); United States v. Whren, 53 F.3d 371, 374 (D.C.Cir.1995); United States v. Hawkins 11 F.2d 210, 213 (3d Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987). However, courts of appeals have had some difficulty in applying this objective assessment to the argument that a traffic stop, otherwise lawful, is really a pretext to search for evidence of an unrelated serious crime and, thus, unlawful. Neither the Supreme Court nor this court seems to have directly addressed this constitutional issue. ³

The majority of the courts of appeals have adopted the so-called "authorization test."...