U.S. v. Johnson

• Decision Date: 08 June 2005
• Docket Number: No. 04-4376.,04-4376.
• Citation: 410 F.3d 137
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. TYRONSKI JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

410 F.3d 137

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

No. 04-4376.

United States Court of Appeals, Fourth Circuit.

Argued February 2, 2005.

Decided June 8, 2005.

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ARGUED: Paresh S. Patel, Office of the Federal Public Defender, Greenbelt Maryland, for Appellant. Hollis Raphael Weisman, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Daniel W. Stiller, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Greenbelt, Maryland, for Appellee.

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Affirmed in part and dismissed in part by published opinion. Judge MOTZ wrote the opinion, in which Judge TRAXLER and Judge SHEDD joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

Pursuant to a plea agreement, Tyronski Johnson pled guilty to possession of a firearm by a convicted felon and operation of a motor vehicle while under the influence of drugs. Although the agreement contained a standard appeal waiver provision, Johnson retained the right to appeal the denial of his suppression motions, which he does now. He also seeks to have his sentence vacated. We affirm in part and dismiss in part.

I.

A.

On July 22, 2003, at approximately 11 a.m., United States Park Police Officer Ken Bentivegna heard a radio report of a crash on the Baltimore-Washington Parkway. He arrived at the accident scene to find a Toyota with substantial front-end damage stopped in the far right traffic lane of a three-lane segment of the parkway. The car's badly crumpled hood obscured visibility through the front windshield. A second car sat on the right shoulder some distance ahead of the Toyota. Officer Bentivegna neither witnessed the accident nor was told how it occurred.

The officer approached the Toyota and saw Tyronski Johnson seated in the driver's seat, although he did not know Johnson's name at the time. A deputy sheriff at the scene told Officer Bentivegna that the driver was conscious but unresponsive. The officer walked to the driver's side door, which was open, and asked Johnson "if he was okay, if he had been injured, if anything hurt." Johnson stared straight ahead and did not respond. Officer Bentivegna continued to ask Johnson if he was alright; obtaining no response, the officer called for an ambulance.

While the officer waited for the ambulance, he asked Johnson if he was okay "[a] couple more times." The officer testified that he then walked around the car to the front passenger compartment to see if he could "see anything else in the car that might give [him] some kind of an idea as to what was wrong" with Johnson. He wanted to determine whether Johnson had been injured in the accident, was intoxicated, or was suffering from an unrelated medical condition. As Officer Bentivegna walked around the car, Johnson said his chest hurt. The officer asked Johnson whether he hit the steering wheel and what had happened, but Johnson responded only that his chest hurt.

Officer Bentivegna opened the passenger door and noticed a prescription bottle in the center console of the car. He cursorily looked around the passenger compartment of the car for any more prescription bottles or narcotics—"anything that might give me an indication as to what happened to this individual."

Officer Bentivegna thought he might get a response from the defendant if he could call him by name, so the officer opened the glove compartment to find identification. Inside, he found a nine millimeter handgun. The officer confiscated the weapon and, with the help of a Prince George's County deputy sheriff, removed Johnson from the car and placed him in handcuffs for possessing a gun on federal property. Other park police took custody of Johnson while Officer Bentivegna moved Johnson's vehicle out of the traffic lane, where it had blocked traffic, to the shoulder; the car was too damaged to be driven from the scene and was eventually towed.

Because Johnson was conscious but unresponsive, Park Police Officer Robert Stratton tried to administer a field sobriety test to him. When Johnson refused to cooperate, Officer Raymon Valencia took Johnson to the hospital to have his blood drawn to test for illegal substances. As Johnson sat handcuffed in the reception area of the emergency room with Officers Valencia and Bentivegna, Johnson stated repeatedly, without prompting, "[I]t's only for my protection." He also stated: "You know, there's crazy people out there. That's why I carry a gun. It's for protection. I'm not a violent dude. Can I get my baby back? And I just beat a charge. Now I got a gun charge with the Feds." Officer Bentivegna obtained a sheet of paper from a nurse and wrote down these statements.

Officer Valencia asked Johnson whether he had been drinking or taken any drugs, to which Johnson responded that he had smoked a "dipper." As the district court noted, a "dipper" is a cigarette dipped in liquid phencyclidine or PCP. When Johnson asked if his gun could be returned, Officer Valencia asked whether he had registration for the gun, and Johnson said he did not and only carried it for protection.

Johnson's blood was drawn at the hospital. Pursuant to a contract between the U.S. Park Police and the Army's Armed Forces Institute of Pathology, the toxicology analysis of Johnson's blood was performed at the Institute. Johnson's blood tested positive for PCP and a derivative of marijuana.

B.

Johnson sought to suppress the fruits of the search of his glove compartment, the statements he made to the police at the hospital, and the results of the blood test. He filed three motions to suppress. In the first, Johnson argued that the Park Police violated the Fourth Amendment by conducting a warrantless search of his glove compartment; in the second, he maintained that the officers questioned him at the hospital without reading him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or obtaining a knowing, intelligent, and voluntary waiver of those rights; in the third, he contended that the drug test performed on his blood at the Armed Forces Institute violated the prohibition on military intervention in civilian law enforcement codified in the Posse Comitatus Act, 18 U.S.C. § 1385 (2000).

The district court conducted an evidentiary hearing at which Johnson conceded that the unsolicited statements he made at the hospital regarding the gun were admissible, and the Government conceded that Johnson's "statement that he had smoked a `dipper' must be suppressed because it was the result of custodial interrogation by Officer Valencia without advisement of Miranda rights." The court therefore granted his second suppression motion in part; the court denied Johnson's first and third motions in their entirety. See United States v. Johnson, No. CR-03-0364 (D.Md. Dec. 16, 2003).

Johnson then entered into a plea agreement with the Government. In exchange for Johnson's conditional guilty plea to Count 1, possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and Count 3, operating a motor vehicle while under the influence of drugs in violation of 36 C.F.R. § 4.23(a)(1), the Government agreed to dismiss Count 2, possession of marijuana in violation of 21 U.S.C. § 844, and to recommend that the court order Johnson's sentence for Count 3 to run concurrently with his sentence for Count 1. Johnson signed a standard waiver of appellate rights but expressly retained the right to appeal the district court's denial of his suppression motions. Consistent with the then mandatory United States Sentencing Guidelines, the district court sentenced Johnson to forty months imprisonment on Count 1 and six months imprisonment on Count 3 to run concurrently with the sentence on Count 1.

Johnson appeals the district court's denial of his first and third motions to suppress. He also seeks to challenge his sentence as contrary to United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We consider each of these three arguments in turn.

II.

First, Johnson contends that the district court erred in upholding the search of the glove compartment of his car.

A.

The Supreme Court has recognized that "[t]he Fourth Amendment demonstrates a `strong preference for searches conducted pursuant to a warrant.'" Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant." Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (internal quotation marks and citation omitted).

Searches of cars are one class of situations to which the warrant requirement does not apply. Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). Under the automobile exception, the police can search a vehicle without first obtaining a warrant if they have probable cause to believe the car contains contraband or evidence of illegal activity. Id. at 467. Officer Bentivegna, however, lacked probable cause to believe the car or, more specifically, the glove compartment, contained contraband or evidence of wrongdoing. The district court erred in accepting a variant of the automobile exception created by other district courts and concluding that it permitted Officer Bentivegna's warrantless search. As articulated by the district court, this variant would allow the police to search a driver's car for his registration and identification absent a warrant and probable cause whenever a driver did not readily provide registration and identification information at...