United States v. Johnson, 16-15690

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation885 F.3d 1313
Docket NumberNo. 16-15690,16-15690
Parties UNITED STATES of America, Plaintiff–Appellee, v. Paul JOHNSON, Jr., Defendant–Appellant.
Decision Date22 March 2018

Cary Oren Aronovitz, Tonya R. Long, Assistant U.S. Attorneys, Jonathan Colan, Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for PlaintiffAppellee.

Michael Caruso, Federal Public Defender, Ian McDonald, Celeste S. Higgins, Federal Public Defender's Office, Miami, FL, for DefendantAppellant.

Before JORDAN and JILL PRYOR, Circuit Judges, and DUFFEY,* District Judge.

DUFFEY, District Judge:

This appeal requires us to consider whether the pat down of a burglary suspect and the identification of a round of ammunition in the suspect's pocket constitutionally allowed the officer to retrieve the round and another item from the suspect's pocket.

I. BACKGROUND
A. Facts

The City of Opa–Locka, Florida has "high crime constantly," including shootings and armed burglaries usually committed by multiple people. Hrg. Transcript at 3–4, 39 (Doc. 22). The Opa–Locka Police Department receives a "high volume of calls" including "bodily harm done to others [and] firearms used in different aspects of the crimes from burglaries to robberies to home invasions." Id. at 22.

On June 14, 2015, shortly after 4:00 a.m., the Opa–Locka Police Department received a 911 call about a potential burglary in progress at a multifamily duplex located at 2525 Superior Street in Opa–Locka (the "Duplex"). The Duplex contained four units. Close behind the Duplex, on the north side, was a wooden fence that separated the Duplex to the south from the adjacent property to the north. The front of the Duplex contained a small parking lot with a gate at the center.

The 911 caller reported that a "person [was] trying to get through the window of [a] neighbor's house" and described the person as a black male wearing a white shirt. Id. at 6, 19. Officer Dwight Williams was dispatched to investigate. During the dispatch call he was given the description of the suspected burglar.

Officer Williams arrived at the Duplex within five minutes of receiving the call. Corporal B.A. Colebrooke arrived at the Duplex in a separate car at about the same time. When Officer Williams and Corporal Colebrooke got to the Duplex, it was still dark outside, and they "saw [Mr. Johnson] coming from the back, the west, back side of the complex" through an unlit alleyway. Id. at 5. Mr. Johnson, a black male, was wearing a white shirt. The officers did not see anyone else in the area.

Officer Williams and Corporal Colebrooke drew their weapons, pointed them at Mr. Johnson, and ordered him to come to the front of the building with his hands up. Mr. Johnson complied, and Officer Williams handcuffed him and ordered him to get down on the ground. Officer Holborow arrived while they were ordering Mr. Johnson to put his hands up. Officer Williams testified that Mr. Johnson matched the description given by the police dispatcher, and he told Mr. Johnson that he was being detained until they could "figure things out." Id. at 33. Mr. Johnson was detained "very far" from the fence, "towards the front of the complex" in the parking area. Id. at 12, 27–28.

Officer Williams testified that, because of "the nature of the call, the area of the call, and the lighting conditions," he detained Mr. Johnson and conducted a pat down "for officer safety." Id. at 5, 7–8. During the pat down, Officer Williams testified:

I felt like a nylon piece of material; and then, underneath it, a round, hard-like, oval-shaped object, which led me to believe it was ammunition, from the previous encounters with training [sic] and experience throughout the City of Opa–Locka.

Supp. Hrg. Transcript at 6 (Doc. 30). Officer Williams further testified:

I immediately thought it was ammunition. And then, after that, I immediately thought, you know, maybe there's a weapon somewhere nearby, maybe there's another person in an apartment that may come out with something; so, you know, I just wanted to remove that and just try to make the scene secure as much as possible for the other officers.

Id. at 7.

Officer Williams reached into Mr. Johnson's right front pocket and removed a black nylon pistol holster and one round of .380 caliber ammunition. Officer Williams "notified the officers in the area" and asked Mr. Johnson: "was [sic] there any more weapons or anything near that this ammunition and this holster goes [sic] to." Hrg. Transcript at 10 (Doc. 22). Mr. Johnson said there was not.

The investigation activity continued. Two officers provided a description of the activity and why it was conducted.1 Officer Williams testified at the Suppression Hearing:

Q. Finding a person at 5 in the morning with ammunition and a holster in their pocket, what did you think to do next?
A. Canvas the area to see if the weapon was possibly thrown. We have that a lot in Opa–Locka.
Q. Why would you be looking for weapons to have been thrown? Can you explain that?
A. I was looking for the weapons to be thrown because the round that was in his pocket and the holster led me to believe that there is a weapon that that round goes to and something goes into that holster.

Hrg. Transcript at 10 (Doc. 22). Officer Williams further testified:

Q. So it wasn't until after finding the holster and the bullet that the officers began canvassing to look for firearms?
A. Correct.
Q. They had no other reason to believe that there were any firearms around there?
A. We normally do a check given the nature of those type of calls.
Q. You canvas an entire area even if there is no reason, you don't find any kind of ammunition or holster?
A. We normally always just look around and just see if there is anything; weapons, narcotics, anything.
Q. Look sort of in the immediate area where the person was—
A. Correct.
Q.—detained? And you didn't—and you didn't locate any firearms in the, sort of, 10 feet or so surrounding Mr. Johnson?
A. No.

Id. at 33–44. Officer Horn testified:

Q. And you mentioned this on direct as well, but so, you know, you arrive, you see Mr. Johnson handcuffed on the ground with a bullet and holster there, and then at that point officers begin to conduct a canvas for firearms?
A. Yes.
Q. And that's because they found the holster and bullet in his pocket?
A. Right.
Q. And the reason for—they had no other reason to think there were guns around there, right?
A. Right.
Q. And immediately the first check was sort of the immediate area where Mr. Johnson was detained—
A. Yes.
....
Q. In your experiences in responding to a robbery, will you canvas the scene?
A. Sometimes if we need to find evidence.
Q. What is it that you are looking for?
A. Any evidence that would be tied to the crime that we are investigating.
Q. Are you also looking to secure the scene?
A. Yes, absolutely. And additional suspects.

Id. at 60, 64.

At the April 8, 2016, Supplemental Hearing, Officer Williams testified:

Q. Officer Williams, when you felt the pocket, what did you think?
A. I immediately thought it was ammunition. And then, after that, I immediately thought, you know, maybe there's a weapon somewhere nearby, maybe there's another person in an apartment that may come out with something; so, you know, I just wanted to remove that and just try to make the scene secure as much as possible for the other officers.

Supp. Hrg. Transcript at 6–7 (Doc 30).

During the further investigation Officer Williams walked toward the back of the Duplex "where [he] found a hole in the fence" separating the Duplex in which Mr. Johnson claimed he lived and the property behind it. Hrg. Transcript at 11–12 (Doc. 22). Mr. Johnson had been "less than a foot" away from the hole when Officer Williams and Corporal Colebrooke first saw him. Id. at 12. Officer Williams "then got in [his] car and drove around the block to the north side of [the] [D]uplex across the fence where [he] found two pistols laying near the hole." Id. at 11. It took Officer Williams "15 to 20 minutes" to find the two firearms after retrieving the round of ammunition and holster from Mr. Johnson's pocket. Id. at 15. The firearms were found on the property directly north of the Duplex. Id. at 36. Officer Williams ran a check of the serial numbers and discovered the firearms had been reported stolen.2

Mr. Johnson was transported to the Opa–Locka Police Station, read his Miranda rights, and questioned. Mr. Johnson claimed that his brother and his cousin bought the firearms "off the street," brought them to his house, and the three of them hid the firearms in the backyard.

B. Procedural History

On October 27, 2015, a federal grand jury returned an indictment charging Mr. Johnson with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).

On December 14, 2015, Mr. Johnson moved to suppress all physical evidence and statements derived from the pat down leading to the seizure of the two firearms and ammunition. Mr. Johnson argued that the officers lacked probable cause to search him without a warrant, the search was not incident to his arrest, and he did not consent to the search.

On January 11, 2016, the Magistrate Judge conducted an evidentiary hearing. On January 19, 2016, the Magistrate Judge issued her Report and Recommendation ("R&R"), recommending that Mr. Johnson's motion be denied because the stop and pat down were lawful.

Mr. Johnson timely filed his objections to the R&R. On March 15, 2016, the district court chose to refer the matter back to the Magistrate Judge to develop the record further on the limited issue whether Officer Williams's decision to reach into Mr. Johnson's pocket was prompted by a reasonable belief that the object identified during the pat down was a weapon or contraband.

On April 8, 2016, the Magistrate Judge conducted the second evidentiary hearing. At the beginning of the hearing, the Magistrate Judge stated that the district judge directed:

She refer[red] the matter back to me for resolving one issue; and that issue, as she phrased it, was ...
...

To continue reading

Request your trial
6 cases
  • United States v. Hartsell
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 7, 2020
    ...refused to expand Terry to allow immediate intrusions into a person's pockets and thereafter emptying them. See United States v. Johnson, 885 F.3d 1313, 1323 (11th Cir. 2018) ; United States v. Miles, 247 F.3d 1009, 1014 (9th Cir. 2001) ; United States v. Lindsey, No. IP 03-121-CR-1 H/F, 20......
  • U.S. v. Johnson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 16, 2019
    ...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 b......
  • United States v. Johnson, 16-15690
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 16, 2019
    ...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.3dPage 3 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing ......
  • Law Solutions Chi., LLC v. Jacobs
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • February 25, 2019
    ......TERESA R. JACOBS, United States Bankruptcy Administratorfor the Middle District of Alabama, Plaintiff-Appellee.CASE NO. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT