U.S. v. Johnson

• Decision Date: 15 April 2004
• Docket Number: No. 03-2153.,03-2153.
• Citation: 364 F.3d 1185
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Raymond JOHNSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

364 F.3d 1185

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

No. 03-2153.

United States Court of Appeals, Tenth Circuit.

April 15, 2004.

Laura Fashing, Assistant U.S. Attorney (David C. Iglesias, U.S. Attorney, with her on the brief) Albuquerque, NM, for Plaintiff-Appellant.

Richard Winterbottom, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellee.

Before TYMKOVICH and McWILLIAMS, Circuit Judges, and PAYNE,^* Chief District Judge.

TYMKOVICH, Circuit Judge.

The United States appeals from a district court order granting defendant Raymond Johnson's motion to suppress a pistol seized from him by an Albuquerque police officer. We exercise jurisdiction pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291, reverse the district court's order, and remand for further proceedings.

Background

On October 24, 2002, Albuquerque Police ("APD") received a call from a citizen saying he had just seen a middle-aged man forcing a pre-teen girl to walk down Copper and Pennsylvania Avenues in a part of town known to police as the "War Zone" for its high levels of violent crime. The caller said he was still observing the pair and described their actions and appearance in detail, noting that the man appeared to be pushing and yelling at the girl and looking around for something, but that he did not see any weapons. The caller promptly gave police his cell phone number when asked and forthrightly answered all of the dispatcher's questions. He stayed on the line for approximately eight minutes, until he saw a marked police cruiser approach the pair.

The cruiser belonged to Officer Robert Middleton, who had heard the dispatcher's report of the incident on his police radio. The dispatcher had requested that officers investigate a suspicious person, and classified the call as Priority 2. Priority 2 calls are the second-highest category in the APD's priority system, below emergencies requiring immediate response but above those which can wait for an hour or more. The dispatcher described a black male adult forcing a white female juvenile to walk southbound on Pennsylvania and described the man as approximately 35 years old, five feet, nine inches tall, with short, curly hair, wearing green jeans and a white jacket with red "USA" lettering. The dispatcher described the girl as around 12 years old, wearing a green hooded jacket and blue jeans, approximately 90 pounds, and the same height as the man. The dispatch information, which was also displayed on a computer screen in Officer Middleton's vehicle, indicated that it was unknown whether the man was intoxicated or armed.

Minutes after receiving the call, Officer Middleton drove down Pennsylvania Avenue and saw a man and girl matching the descriptions given by the caller and relayed by the dispatcher. The only difference in their appearance was the girl's height, which the caller had estimated as five feet, four inches, but which the dispatcher mistakenly had listed as five feet, nine inches. Officer Middleton briefly watched the pair and testified that he did not observe the man push or otherwise threaten the girl. He then pulled his marked cruiser next to the pair, got out and identified himself. The man was later identified as the defendant and the girl as Samantha D.¹

Officer Middleton told the pair about the call and asked if the girl was "okay." Samantha said she was, and both she and Johnson denied that anything untoward had happened. Officer Middleton testified that the girl did not appear injured or upset. According to Officer Middleton, however, Johnson was acting "fidgety" and looking back and forth. Johnson was also repeatedly pressing the transmission button on a walkie-talkie he was carrying, though he did not put it to his mouth and speak directly into it.

Just after Officer Middleton approached the pair, another officer, Rob Duren, arrived. Officer Middleton asked Officer Duren to question the girl while he talked to Johnson separately. Johnson and Officer Middleton then walked a few steps to the front of Officer Middleton's car, and Officer Middleton asked Johnson to put down the walkie-talkie. Johnson did so.

Officer Middleton testified that he was concerned that Johnson may have kidnapped the girl, or that the two were involved in prostitution. Officer Middleton knew that prostitution and drug dealing were prevalent in the "War Zone," and that drug dealers and other criminals often used walkie-talkies to signal each other to police presence or possibly to call in attackers. Officer Middleton himself had previously been involved in a shooting in the area.

Once they were alone, Officer Middleton asked to see Johnson's identification. Johnson handed over an ID card or his wallet, which the officer either put on the hood of his car or held in his hand. Officer Middleton then said, "I'm going to pat you down for weapons." Johnson immediately told the officer that he had a gun and gestured to his right side. Officer Middleton told Johnson to turn away from him, pulled Johnson's jacket aside, and retrieved a .22 caliber pistol from Johnson's belt. Officer Middleton then handcuffed Johnson.

Officer Middleton testified that Johnson was compliant, never made any threatening movements or remarks, and indeed acted "like a gentleman" during the three minutes between their initial meeting and the discovery of the weapon.

On November 15, 2002, a federal grand jury indicted Johnson on the sole count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In response, Johnson filed a motion to suppress the pistol. After conducting an evidentiary hearing, the district court granted Johnson's motion. This appeal followed.

Discussion

In its order, the district court gave three reasons for suppressing the weapon: (1) the anonymous call to police "was insufficient to provide reasonable suspicion for the initial stop," (2) even if the initial stop was permissible any "reasonable suspicion was dispelled by Officer Middleton's initial contact with Defendant and Samantha," and (3) "the pat-down search ... was not based on a reasonable suspicion that Defendant was armed and dangerous, and was conducted after any possible reasonable suspicion of criminal activity had been dispelled." On appeal, we view the evidence in the light most favorable to the prevailing party and review the district court's findings of fact only for clear error. United States v. De la Cruz-Tapia, 162 F.3d 1275, 1277-78 (10th Cir.1998). The ultimate question of the reasonableness of the seizure of the pistol is a legal question we review de novo. Id. at 1277.

I.

As we have recognized before, police-citizen encounters come in three varieties.

The first involves the voluntary cooperation of a citizen in response to non-coercive questioning. The second is a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), stop, involving only a brief, non-intrusive detention and frisk for weapons when officers have a reasonable suspicion that the defendant has committed a crime or is about to do so. The third encounter is the arrest of the defendant.

United States v. Madrid, 30 F.3d 1269, 1275 (10th Cir.1994).

"The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation." Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Police officers may approach citizens, ask them questions and ask to see identification without implicating the Fourth Amendment's prohibition against unreasonable searches and seizures. See id. at 434-35, 111 S.Ct. 2382. The parties here agree that Johnson's interaction with Officer Middleton began as a voluntary, non-coercive conversation that evolved into an investigatory detention and search for weapons that falls within Madrid's second category. They agree the district court erred when it stated that Officer Middleton needed "a particularized, articulable and reasonable suspicion that Defendant was engaged in criminal activity" before initially stopping and questioning Johnson and Samantha.

The parties disagree about precisely when Johnson's participation became involuntary, thus implicating the Fourth Amendment. Though it is debatable whether the relevant aspects of the encounter ever moved beyond voluntary cooperation, the government has conceded that a seizure occurred when Officer Middleton took Johnson's identification. Johnson claims it was a few moments earlier, when Officer Middleton asked him to put down the walkie-talkie. Because we conclude Officer Middleton had reasonable suspicion both when he asked Johnson to put down the walkie-talkie and when he asked for Johnson's identification, we need not determine the precise moment when a seizure occurred and will assume, without deciding, that the "inception of the detention" coincided with Officer Middleton's request that Johnson put down the walkie-talkie.

For our purposes, then, we simply note that after separating Johnson and Samantha, Officer Middleton did four things in rapid succession: First he asked Johnson to put down the walkie-talkie. Next, he took Johnson's identification. Then he told Johnson he was going to pat him down for weapons. Finally, after Johnson said he was carrying a gun, Officer Middleton reached under Johnson's jacket and removed the pistol. These actions, taken together, constitute the detention and weapons search whose reasonableness we must decide.

II.

Terry sets up a two-prong test of the reasonableness of investigatory detentions and weapons searches. See Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1028 (10th Cir.1997). First, we must decide whether the detention was "`justified at its inception.'" Id. (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). The government "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant...