U.S. v. Johnson, No. 16-15690

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtWILLIAM PRYOR, Circuit Judge
Citation921 F.3d 991
Docket NumberNo. 16-15690
Decision Date16 April 2019
Parties UNITED STATES of America, Plaintiff-Appellee, v. Paul JOHNSON, Jr., Defendant-Appellant.

921 F.3d 991

UNITED STATES of America, Plaintiff-Appellee,
v.
Paul JOHNSON, Jr., Defendant-Appellant.

No. 16-15690

United States Court of Appeals, Eleventh Circuit.

April 16, 2019


921 F.3d 994

Jonathan Colan, Cary Oren Aronovitz, Tonya R. Long, Assistant U.S. Attorneys, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Ian McDonald, Michael Caruso, Federal Public Defender, Celeste S. Higgins, Federal Public Defender's Office, Miami, FL, Andrew L. Adler, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendant-Appellant.

Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and GRANT, Circuit Judges.

NEWSOM, Circuit Judge, filed a concurring opinion.

BRANCH, Circuit Judge, filed a concurring opinion, in which GRANT, Circuit Judge, joined.

JORDAN, Circuit Judge, filed a dissenting opinion.

ROSENBAUM, Circuit Judge, filed a dissenting opinion.

JILL PRYOR, Circuit Judge, filed a dissenting opinion, in which WILSON, MARTIN, and JORDAN, Circuit Judges, joined.

WILLIAM PRYOR, Circuit Judge:

921 F.3d 995

This appeal requires us to decide whether a police officer violated the Fourth Amendment when he removed a round of live ammunition and a holster from the pocket of a suspect during a protective frisk, see Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At 4:00 a.m., the officer responded to a call about a burglary in progress in a high-crime area. When the officer arrived at the scene, he saw Paul Johnson, who matched the burglar’s description, standing in a dark alley. After detaining Johnson, the officer frisked him and immediately recognized that he had a round of ammunition in his pocket. The officer removed the ammunition and an empty holster covering it. He then canvassed the area and found two pistols less than a foot from where he first saw Johnson. After a grand jury indicted Johnson for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the district court denied his motion. A panel of this Court reversed. United States v. Johnson , 885 F.3d 1313 (11th Cir.), reh'g en banc granted, op. vacated , 892 F.3d 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en banc. We now affirm the denial of Johnson’s motion to suppress because the officer was entitled to seize the ammunition to protect himself and others.

I. BACKGROUND

We review the facts adduced at the evidentiary hearings because they are critical to our resolution of this case. Dwight Williams, a police officer for the City of Opa-Locka, Florida, sat alone in his patrol car when a call came over his radio shortly after 4:00 a.m. on June 14, 2015. The call reported a burglary in progress at a nearby multi-family duplex and described the burglar as a black male wearing a white shirt. Officer Williams and another officer responded to the call. Officer Williams knew from experience that responding to a burglary can be dangerous because burglars are often armed.

The officers arrived at the duplex and started to search for the suspected burglar. Officer Williams saw Paul Johnson, a black male wearing a white shirt standing near a fence in a dark alley at the back of the duplex. The officers asked Johnson to come toward them where they could "see him a little better." Johnson complied, and as he walked toward them, another officer arrived on the scene. The officers ordered Johnson to lie on the ground and handcuffed him. Officer Williams then began frisking Johnson.

While patting down Johnson’s pocket, Officer Williams felt something nylon covering "a small, round, hard object" that he immediately recognized as ammunition. He reached into Johnson’s pocket and removed the round of ammunition and an empty nylon holster. The round belonged to a .380 caliber gun. Officer Williams was concerned; as he later testified, "the round that was in [Johnson’s] pocket and the holster led [him] to believe that there [wa]s a weapon that [the] round goes to and something goes into that holster." Based on his experience that burglaries often involve more than one perpetrator, he was also concerned that there was "another person in an apartment [who] m[ight] come out with something."

As Officer Williams searched the area for a gun, Johnson told the other officers that he had been trying to wake up his girlfriend, who lived at the duplex, by

921 F.3d 996

knocking loudly on her door. Johnson suggested that someone might have thought he was trying to break in. The officers tried to confirm Johnson’s story, but his girlfriend would not answer their knock at her door.

Meanwhile, Officer Williams found a hole in the fence close to where Johnson had been standing. Knowing that suspects "throw[ ]" away weapons "a lot in Opa-Locka" when they encounter the police, Officer Williams drove around the fence to see if a gun had been tossed on the other side. Sure enough, he found two pistols, one .380 caliber and the other .40 caliber, less than a foot from where the officers had first seen Johnson. Officer Williams checked the serial numbers on the pistols and determined that both had been reported as stolen.

Johnson’s girlfriend eventually opened her door for the officers. She confirmed that Johnson lived at the duplex with her and that he was trying to enter their home. The officers then arrested Johnson.

The officers took Johnson to the police station, where he waived his rights to remain silent and to counsel, see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Johnson confessed that he was holding the pistols for his brother and cousin, even though he had previously been convicted of a felony. A grand jury later indicted Johnson for being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1).

Johnson moved to suppress the ammunition, the holster, and the pistols, along with any statements resulting from the frisk. Johnson argued that Officer Williams violated the Fourth Amendment by frisking him and by seizing the ammunition and holster. A magistrate judge held two evidentiary hearings on the motion.

The officers who detained Johnson testified that Opa-Locka is a "high-crime area" that receives a "high volume of calls" involving "bodily harm done to others" and the use of firearms "in [multiple] aspects of the crimes from burglaries to robberies to home invasions." The officers testified that, in their experience, burglaries in Opa-Locka often involve more than one perpetrator. According to Officer Williams, a reported burglary presents a dangerous situation for the officers because, "when [the officers] arrive to the scene, [they] never know where the potential [suspect] may be, ... never know what [a suspect] has, [and] never know if [they] have any lighting to see the potential [suspect]." Officer Williams testified that the officers detained Johnson "because of the nature of the call and the current conditions" at the scene and to "make sure that no one else was on the premise with him." After the hearings, the magistrate judge issued a report and recommendation concluding that Officer Williams did not violate the Fourth Amendment by frisking Johnson and removing the ammunition and holster from his pocket.

The district court adopted the magistrate judge’s report and recommendation and denied Johnson’s motion to suppress. The district court ruled that the frisk was constitutional at its inception because "Officer Williams had reasonable suspicion to believe that his safety or the safety of others was in danger." And it ruled that the removal of the ammunition and holster "was a justified continuation of the initial frisk." The district court reasoned that "[a]n officer’s seizure of ammunition following a lawful frisk when investigating a possible violent crime, particularly when confronted with an unsecure scene, is sufficiently connected to officer safety not to run afoul of the Fourth Amendment." Johnson pleaded guilty but reserved his

921 F.3d 997

right to appeal the denial of his motion to suppress.

A panel of this Court reversed. Johnson , 885 F.3d at 1324. The panel agreed that the frisk was constitutional at its inception because, "[c]onsidering the totality of the facts, ... Officer Williams reasonably believed that his safety, or the safety of his fellow officers, was at risk." Id. at 1322. But the panel concluded that the removal of the ammunition and holster from Johnson’s pocket violated the Fourth Amendment. Id. at 1322–24. It held "the presence of a single round of ammunition—without facts supporting the presence, or reasonable expectation of the presence, of a firearm—was insufficient to justify the seizure of the bullet and the holster." Id. at 1323–24.

We vacated the panel’s opinion and ordered rehearing en banc. We instructed the parties to address one issue: whether Officer Williams was entitled, when he felt a round of ammunition in Johnson’s pocket...

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30 practice notes
  • Granda v. United States, No. 17-15194
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 11, 2021
    ...held en banc in United States v. Johnson, "when ‘a precedent of the Supreme Court has direct application,’ we must follow it." 921 F.3d 991, 1001 (11th Cir.) (en banc) (alteration accepted) (citation omitted), cert. denied, ––– U.S. ––––, 140 S. Ct. 376, 205 L.Ed.2d 215 (2019) ; s......
  • Crocker v. Beatty, No. 18-14682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 20, 2021
    ...drawing a nice, bright line between the Fourth and Fourteenth Amendments at the probable-cause hearing. Cf. United States v. Johnson , 921 F.3d 991, 1004–06 (11th Cir. 2019) (en banc) (Newsom, J., concurring) (stressing the importance of bright lines and "clear rule[s]" in Fourth ......
  • Williams v. Homeland Ins. Co. of N.Y., 20-30196
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 30, 2021
    ...Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (same); United States v. Johnson, 921 F.3d 991, 1010 (11th Cir. 2019) (en banc) (Jordan, J., dissenting) (when it comes to precedent with a "shaky originalist foundation . . . there is al......
  • United States v. Feldman, No. 17-13443
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 30, 2019
    ...Edwards v. Prime, Inc. , 602 F.3d 1276, 1298 (11th Cir. 2010) (emphasis added) (collecting decisions); see also United States v. Johnson , 921 F.3d 991, 1003 (11th Cir. 2019) (en banc); New Port Largo, Inc. v. Monroe County , 985 F.2d 1488, 1500 & n.7 (11th Cir. 1993) (Edmondson, J., co......
  • Request a trial to view additional results
28 cases
  • Granda v. United States, No. 17-15194
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 11, 2021
    ...held en banc in United States v. Johnson, "when ‘a precedent of the Supreme Court has direct application,’ we must follow it." 921 F.3d 991, 1001 (11th Cir.) (en banc) (alteration accepted) (citation omitted), cert. denied, ––– U.S. ––––, 140 S. Ct. 376, 205 L.Ed.2d 215 (2019) ; s......
  • Crocker v. Beatty, No. 18-14682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 20, 2021
    ...drawing a nice, bright line between the Fourth and Fourteenth Amendments at the probable-cause hearing. Cf. United States v. Johnson , 921 F.3d 991, 1004–06 (11th Cir. 2019) (en banc) (Newsom, J., concurring) (stressing the importance of bright lines and "clear rule[s]" in Fourth ......
  • Williams v. Homeland Ins. Co. of N.Y., 20-30196
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 30, 2021
    ...Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (same); United States v. Johnson, 921 F.3d 991, 1010 (11th Cir. 2019) (en banc) (Jordan, J., dissenting) (when it comes to precedent with a "shaky originalist foundation . . . there is al......
  • United States v. Feldman, No. 17-13443
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 30, 2019
    ...Edwards v. Prime, Inc. , 602 F.3d 1276, 1298 (11th Cir. 2010) (emphasis added) (collecting decisions); see also United States v. Johnson , 921 F.3d 991, 1003 (11th Cir. 2019) (en banc); New Port Largo, Inc. v. Monroe County , 985 F.2d 1488, 1500 & n.7 (11th Cir. 1993) (Edmondson, J., co......
  • Request a trial to view additional results

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