U.S. v. Johnson, 90-7050

• Decision Date: 23 May 1991
• Docket Number: No. 90-7050,90-7050
• Citation: 932 F.2d 1071
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Miles JOHNSON, Defendant-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1071

932 F.2d 1071

UNITED STATES of America, Plaintiff-Appellee, v. Steven Miles JOHNSON, Defendant-Appellant,

No. 90-7050.

United States Court of Appeals Fifth Circuit.

May 23, 1991.

Timothy W. Crooks, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, Tex., for defendant-appellant.

Richard G. Roper, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

ON SUGGESTION FOR REHEARING EN BANC

(Opinion April 25, 1991, 932 F.2d 1068 (5th Cir.1991))

Before JOHNSON, SMITH and WIENER, Circuit Judges.

PER CURIAM:

Treating the suggestion for rehearing en banc as a petition for panel rehearing, IT IS ORDERED that the petition for panel rehearing is DENIED. No member of the panel nor judge in regular active service of this court having requested that the court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for rehearing en banc is DENIED.

In his suggestion for rehearing en banc, the assistant federal public defender representing Johnson vigorously insists that the District of Columbia Circuit decided United States v. McClinnhan, 660 F.2d 500 (D.C.Cir.1981) "incorrectly." He is adamant that McClinnhan, Id., is "incorrect" under the principles espoused by Terry ¹ and Arkansas v. Sanders, ² as interpreted by Flippin, ³ and that McClinnhan "creates a rule of automatic exigent circumstances wherever there is any container in the vicinity of a Terry detainee."

By implication counsel for Johnson tars this court's instant decision with the same brush. We suggest that counsel re-read those cases, paying particularly close attention to the factual distinctions among them as well as with the instant case.

First, counsel's conclusion that McClinnhan creates a rule of automatic exigent circumstances constitutes hyperbole which can only be excused by condoning the fervor with which counsel seeks to represent the interest of his client. He relies heavily on Flippin, but that case so differs factually from the instant case as to be inapposite. The incident in Flippin took place in a motel room characterized by the court as the abode of the defendant. In the "home" setting the court gave special deference to the fourth amendment, a deference to which Johnson is not entitled because he was outside of a residence he neither owned nor occupied. Because the district court in Flippin suppressed the evidence of the gun found inside the rigid cosmetics case, suppression was entitled to deference on appeal. In the instant case, however, the district court refused to suppress the evidence of Johnson's gun, so deference ran in favor of the government. But even in Flippin, wherein the Court of Appeals for the Ninth Circuit reversed the suppression by the district court and allowed the evidence of the gun found in the cosmetics kit, the case was decided on the basis of exigent circumstances related to the potential danger to the officer and others, relying heavily on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), which recognized a lower standard than probable cause under such circumstances.

Moreover, the Ninth Circuit distinguished Flippin from United States v. Vaughan, 718 F.2d 332 (9th Cir.1983), wherein evidence found in the warrantless search of a soft briefcase was suppressed because the officer, who claimed he was looking for a weapon when he opened the soft container, could have just as effectively "patted down" the pliable container without opening it. Even in Vaughan, the Ninth Circuit implied that if a pat-down of the soft container had revealed the location of a weapon within, evidence of the weapon would not have been suppressible.

Johnson's principal error in urging a rehearing en banc is in clinging too rigidly to Terry. He does not (and could not) contend that a Terry pat-down was improper, given the articulated facts substantiating probable cause. Rather, he grounds his complaint in the officer's removal of the gun from the open pocket of the coveralls, miscasting that act as an unwarranted extension of Terry. But the seizure of...