USA. v. Johnson

• Decision Date: 30 May 2000
• Docket Number: No. 98-3122,98-3122
• Citation: 341 U.S. App. D.C. 289,212 F.3d 1313
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Robert Lee Johnson, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1313

212 F.3d 1313 (D.C. Cir. 2000)

United States of America, Appellee v. Robert Lee Johnson, Appellant

No. 98-3122

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2000

Decided May 30, 2000

Appeal from the United States District Court for the District of Columbia(No. 96cr00145-01)

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Catherine Motz, Assistant United States Attorney, argued the cause for appellee. On the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Elizabeth Trosman, and Florence Pan, Assistant U.S. Attorneys.

Before: Silberman, Sentelle, and Rogers, Circuit Judges.

Silberman, Circuit Judge:

Robert Lee Johnson appeals his conviction for possession, with intent to distribute, of crack cocaine. He argues that the evidence against him was the product of a stop and frisk that was not supported by reasonable suspicion. We affirm.

I.

According to the evidence in the record, on the night of Johnson's arrest, two officers of the Metropolitan Police Department were driving in an unmarked car in an area of Southeast Washington they characterized as "a high narcotics area." They pulled into a parking lot and saw a parked car with two people in it. Johnson was sitting on the passenger's side, and another person was on the driver's side. The officers saw a young woman leaning into the passenger's window and handing Johnson an object, which they could not identify. At this point they approached the car and the woman began to walk away.

One of the officers, Michael Fulton, saw Johnson make what Fulton described as a "shoving down" motion, leading him to believe that Johnson might be armed. He drew his gun, advised his partner to do the same, and shouted, "Let me see your hands." Johnson did not immediately comply but rather made "a couple of more shoving motions down" before raising his hands. Fulton reached into the car and touched a bulge in Johnson's left pants pocket. He felt large, hard objects which he believed to be rocks of crack cocaine.He then removed a plastic bag from the pocket. It contained 18 rocks of crack cocaine that, together with another rock found in Johnson's clothing, totaled 72 grams. Johnson was arrested, but the driver of the car and the woman standing outside it were not.

Prior to trial, Johnson moved to suppress all of the evidence recovered from him. He argued that the police did not have a reasonable suspicion that he was engaged in criminal activity, and that the stop and frisk were therefore illegal .The government argued that the stop was permissible under Terry v. Ohio, 392 U.S. 1 (1968), because the police reasonably suspected that a drug transaction was taking place, and that the frisk was proper because Johnson's conduct led the officers to believe that he was armed. At a hearing on the suppression motion, the government presented the testimony of Officer Fulton. Johnson called no witnesses. The district court denied the motion without explanation. After a jury trial, Johnson was convicted and was sentenced to 168 months in prison.

On appeal, Johnson renews his argument that the stop was unjustified and that the frisk exceeded the scope allowed by Terry. He also contends that the district court erred in failing to make factual findings on the record at the suppression hearing. In his brief, he suggested that the prosecutor violated the Fifth Amendment by arguing to the jury that Johnson's presence throughout the trial gave him an opportunity to tailor his testimony in response to that of other witnesses. We need not discuss this claim because as counsel conceded at argument the theory underlying it was rejected in the Supreme Court's recent decision in Portuondo v. Agard, 120 S. Ct. 1119 (2000).

II.

We begin with Johnson's claim that, regardless of the validity of the stop and frisk, the district court's ruling cannot be affirmed because the trial judge failed to make factual findings on the record. Federal Rule of Criminal Procedure 12(e) provides: "Where factual issues are involved in determining a motion, the court shall state its essential findings on the record." The government agrees that the district court failed to comply with the rule, but it contends that Johnson waived his challenge to this omission because he did not object to the lack of factual findings, nor did he ask the court to explain its ruling.

In United States v. Harley, 990 F.2d 1340, 1341 (D.C. Cir. 1993), we held that Rule 12(e) can be waived and that when the district court has not made findings, "any factual disputes must be resolved in favor of admissibility and we must uphold the denial of [the] motion if any reasonable view of the evidence supports it." See also United States v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991). To be sure, when the district court has not made findings, and when it is not clear what legal theory the court relied on, a remand may be required even if the Rule 12(e) defect was waived. See United States v. Williams, 951 F.2d 1287 (D.C. Cir. 1991). In Williams, the district court not only did not make specific findings, it did not indicate which arguments, of the three that were advanced by the government, it accepted to justify a search. Noting that the "purpose of an appeal is to review the judgment of the district court, a function we cannot properly perform when we are left to guess at what it is we are reviewing," we relied on our inherent supervisory power over the district courts to order a remand. Id. at 1290; see also United States v. Dale, 991 F.2d 819, 840 (D.C. Cir. 1993) (reviewing the district court's findings after having remanded "because we did not know which of three separate legal theories advanced by the government the district court had adopted and what facts, if any, it relied on to support its chosen theory").

Notwithstanding Williams, when the validity of a search can be upheld "based upon an argument made by the government below and supported by evidence either uncontested or found credible by the District Court," the denial of a suppression motion may be affirmed. United States v. Taylor, 997 F.2d 1551, 1555 (D.C. Cir. 1993). The situation in Williams was "exceptional," Harley, 990 F.2d at 1341 n.1, and a remand is not necessary unless there is genuine uncertainty about what the district court did. There is no uncertainty here. The government offered only one legal theory--i.e., that Officer Fulton was frisking Johnson for weapons after a Terry stop--and it presented uncontroverted testimony from Officer Fulton. The issue then is whether the government's theory is supported by the facts that were presented at the hearing.

The government identifies several factors that it says provide the "minimal level of objective justification" necessary for a Terry stop. United States v. Sokolow, 490 U.S. 1, 7 (19...