U.S. v. Johnson

• Decision Date: 10 September 2009
• Docket Number: No. 08-30094.,08-30094.
• Citation: 581 F.3d 994
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Todd Douglas JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

581 F.3d 994

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

No. 08-30094.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 23, 2009.

Filed September 10, 2009.

M.J. Haden, Office of the Federal Public Defender for the District of Alaska, Anchorage, AK, for the defendant-appellant.

Erin E. White (argued), Nelson P. Cohen, United States Attorney's Office for the District of Alaska, Anchorage, AK, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska, Timothy M. Burgess, District Judge, Presiding. D.C. No. 3:07-cr-00047-TMB.

Before: ROBERT R. BEEZER, RICHARD C. TALLMAN, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge RICHARD C. TALLMAN; Partial Concurrence and Partial Dissent by JUDGE MILAN D. SMITH, JR.

TALLMAN, Circuit Judge:

Defendant-Appellant Todd Johnson pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(1). On appeal Johnson argues (1) that the district court improperly denied his motion to suppress and (2) that the district court erred in declining to award him a one-level downward adjustment pursuant to § 3E.1.1(b) of the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

On October 19, 2006, Alaska State Trooper Vic Aye and Deputy Troy Meeks of the United States Marshals Service were serving federal warrants on the east side of Anchorage. The officers were wearing plain clothes and driving an unmarked sports utility vehicle. While the officers were stopped at a traffic light across from the First National Bank, Deputy Meeks noticed three suspicious individuals standing in the bank's parking lot next to a tan Buick sedan. The car was parked about 20 feet from the bank's front entrance and its hood was raised. The three men—later identified as Johnson, David Brookins, and Alvin Nelson—were not looking under the hood but instead appeared to be surveying the bank and the surrounding area. As the officers drove away, Deputy Meeks observed Johnson and Nelson head toward the bank's front door. Johnson, who was wearing a hooded sweatshirt under a jacket, flipped up his hood partially obscuring his face.

His suspicions aroused, Deputy Meeks described to Trooper Aye what he had just witnessed. The officers decided to double back for another look. By the time they circled back to the bank, the sedan's hood had been closed, and Brookins was alone in the vehicle sitting in the driver's seat. The other two men were nowhere to be seen. Trooper Aye decided to enter the bank while Deputy Meeks stayed outside to surveil Brookins.

Once inside the bank, Trooper Aye immediately noticed a teller nervously watching Johnson and Nelson, who were standing in line. The men were whispering to each other, and Johnson appeared to be surveying the bank lobby. Trooper Aye approached another bank employee who also appeared to be eyeing the men. He surreptitiously identified himself as a state trooper and asked the employee if everything was alright. She responded "no," and also appeared nervous.

Although not in uniform, Trooper Aye could still be recognized as a law enforcement officer. He was carrying several pieces of police equipment including a sidearm, taser, and two-way radio and he was wearing a bulletproof vest underneath his outer clothing. At some point, Johnson looked directly at Trooper Aye, said something to Nelson, and immediately walked out of the bank. Deputy Meeks observed Johnson exit the bank and stand at the driver's side of the sedan. Johnson appeared to gesture to Brookins before getting into the back seat. Trooper Aye and Deputy Meeks communicated by cellular phone as to what each had just witnessed. Trooper Aye then left the bank and rejoined Deputy Meeks in the police vehicle. The officers decided to stop and question the men. They pulled behind the sedan and activated their emergency lights.

The officers approached the car and displayed their badges. They verbally identified themselves as law enforcement officers and asked for identification. Trooper Aye told Johnson and Brookins that the whole incident "might be a misunderstanding" and that they "just want[ed] to talk with [them]." The men cooperated with the officers' request that they step out of the car. Deputy Meeks patted down Brookins and discovered a loaded .25 caliber handgun in his front pocket and a spare magazine in his back pocket. Deputy Meeks informed Trooper Aye, who was talking to Johnson, that he had found a gun. The officers then conducted a patdown search of Johnson and located another semi-automatic pistol in his coat pocket. The officers handcuffed Johnson and Brookins and seated them on the curb. Nelson then emerged from the bank and walked toward the sedan with his hands in his pockets.

Having already discovered that his associates were armed, the officers drew their own weapons and demanded that Nelson place his hands in plain view. After conducting a patdown frisk, which uncovered no additional firearms, the officers secured Nelson.

The officers explained to the three suspects that the matter still could be a misunderstanding, but they needed to run their identifications to determine whether they had any active warrants or other criminal history. At that point, Johnson volunteered that he had a previous drug conviction in Florida.¹ Deputy Meeks and Trooper Aye contacted the Anchorage Police Department ("APD"), whose officers responded and took over the investigation.

On April 19, 2007, Johnson was indicted in the District of Alaska on a single count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(1). He was arrested soon thereafter in Miami, Florida, and transported to Anchorage where he was arraigned. Johnson initially pled not guilty. He filed a motion to suppress all evidence obtained as a result of the detention, including the pistol officers had found in his coat pocket. Johnson also notified the prosecution that he intended to plead guilty if his suppression motion was unsuccessful.

On October 1, 2007, a magistrate judge held an evidentiary hearing on the motion, at which both Deputy Meeks and Trooper Aye testified. After evaluating the evidence and witness testimony, the magistrate recommended denial of Johnson's suppression motion, concluding that officers had reasonable suspicion that criminal activity might be afoot to detain Johnson for questioning and to conduct a patdown search. On November 19, 2007, the district court, over Johnson's objections, adopted the magistrate's recommendation in full and denied Johnson's motion to suppress. On November 27, 2007, Johnson formally entered a conditional guilty plea, which reserved his right to appeal the denial of his suppression motion.

At sentencing, the government did not oppose a two-level reduction to Johnson's offense level for acceptance of responsibility under United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 3E1.1(a), as recommended in the presentence investigation report. The government, however, declined to move for an additional one-level decrease under § 3E1.1(b), citing Johnson's decision to pursue the suppression issue on appeal. The district court, after considering the parties' arguments, rejected Johnson's argument that he should nonetheless be awarded the third-level adjustment because he timely pled guilty and thus permitted the government to avoid preparing for a trial. The court then sentenced Johnson to thirty months incarceration followed by three years of supervised release. This appeal followed.

II

Johnson first appeals the district court's denial of his suppression motion, which we review de novo. See United States v. Bautista, 362 F.3d 584, 588-89 (9th Cir.2004). Whether there is reasonable suspicion to justify an investigatory stop is a mixed question of law and fact also reviewed de novo. See United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.1992). We review factual findings for clear error. See United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.2004). Contrary to Johnson's argument that the seizure of the firearm stemmed from a violation of his Fourth Amendment rights, we think the record amply supported a "stop and frisk" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

"The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Enslin, 327 F.3d 788, 795 (9th Cir.2003) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Police may detain or seize an individual for brief, investigatory purposes, provided the officers making the stop have reasonable suspicion "that criminal activity may be afoot." United States v. Orman, 486 F.3d 1170, 1173 (9th Cir. 2007) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). If an officer reasonably suspects the individual may be armed and dangerous, the officer may "frisk" the person he has stopped to determine if the individual is carrying any weapons. United States v. Washington, 387 F.3d 1060, 1067 (9th Cir.2004) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). This frisk is limited to a patdown of the exterior clothing. Id.

"Reasonable suspicion `is formed by specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.'" United States v. Thompson, 282 F.3d 673, 678 (9th Cir. 2002) (quoting United States v. Rojas-Millan, 234 F.3d 464, 468-69 (9th Cir.2000)). "To determine whether reasonable suspicion existed, the court must consider the totality of the circumstances surrounding the stop." Hall, 974 F.2d at 1204. This determination is made with reference to the "collective knowledge of the officers involved,...