United States v. Paul Johnson Jr (11th Cir. April 2019), EN BANC

Fourth Amendment – Totality of circumstances supported officer removing ammunition from defendant’s pocket during a Terry frisk where officers were in a high crime area late at night, it was reasonably likely that accomplices or discarded firearms were nearby, and removing the ammunition was reasonably related to officer safety.

Paul Johnson Jr. was convicted for possession of a firearm by a convicted felon. Officers in a high-crime area responded to calls about a burglary in progress and, upon seeing Johnson, detained him in handcuffs and frisked him. The officer felt a round of ammunition in Johnson’s pocket and removed it, along with an empty holster. Officers then found two pistols in the area near Johnson.

Johnson’s motion to suppress the evidence was denied by the district court, but that order was reversed by a panel of the Court. The panel concluded that removal of the ammunition from Johnson’s pocket exceeded the scope of a permissible Terry frisk, did not fall under the exception for seizing weapons found during a frisk, and violated the Fourth Amendment.

After a rehearing en banc, the Court vacated and reversed the panel opinion, holding that the totality of the circumstances supported the seizure of the bullet and holster under the exception to seize weapons for officer safety.

The Court rejected Johnson’s argument that seizure of the bullet and holster during a Terry frisk is impermissible since a frisk is limited to a search for weapons and bullets are not weapons. The Court clarified that the proper test is not “whether a given object qualifies as a weapon in the abstract,” but is rather “whether removing and securing the object is reasonably related to the protection of the police officer and others nearby” based on the circumstances.

The circumstances here—namely the officers’ location in a high crime area late at night, the fact that the firearm for the bullet had not yet been found, and the likelihood of dangerous accomplices nearby—justified the officer’s decision to reach in Johnson’s pocket to remove the bullet once he felt it. Though Johnson was handcuffed when he was frisked, the Court held that this “did not eliminate the danger posed by the ammunition, since “handcuffs do not always work.”

While the Court conceded that a round of ammunition is not dangerous “by itself,” the Court explained that it was “an integral part of what makes a gun lethal.”

The Court added that removing the ammunition would also have assisted the officers in searching for the right caliber gun that were in the vicinity, though it was quick to concede that Terry frisks cannot be used to father evidence. Rather, the Court explained, removing the ammunition during the frisk was part of a “protective search” that would let the officers find the gun and secure the scene.

The Court also rejected Johnson’s originalist argument for a narrow application of Terry v. Ohio, reasoning that the Court is a “lower” court bound to apply the law “only faithfully.” Judge W. Pryor’s opinion emphasized that this was not a categorical rule allowing ammunition to be seized during any Terry stop and that such seizures must be supported by the totality of the circumstances and reasonably related to officer safety.

Judge Newsom concurred in the majority opinion, but argued that the totality of circumstances test from Terry should not apply to seizing bullets from a suspect’s pocket—there should be a categorical rule that officers may seize ammunition during frisks in order to neutralize threats to officer safety. Judge Newsom added that the dissent could make a good argument that the circumstances did not implicate officer safety and that a categorical rule would protect officers from having to second-guess themselves.

Judge Branch echoed Judge Newsom’s call for a categorical rule. She also argued that the totality of the circumstances test applies only to an officer’s decision whether to stop and frisk a detained person. Once a frisk is underway, she wrote, an officer may “in all circumstances” seize an object he reasonably believes is a bullet. Judge Branch expounded on the reasons why a bullet poses an “inherent risk” to officer safety.

Judge Jordan’s dissent focused on the majority’s failure to engage with Johnson’s originalist argument for limiting the reach of Terry v. Ohio to prohibit the seizure of items “that are neither weapons nor contraband.” Judge Jordan channeled Justice Scalia’s scholarship on the Fourth Amendment to argue that Terry, while binding precedent, need not be extended. He also wrote that the majority’s opinion was ahistorical and inconsistent with the Court’s stated preference for originalism as “a preferable mode of constitutional interpretation.”

Judge Rosenbaum and J. Pryor each dissented, arguing that the practical effect of the majority’s decision would allow officers to seize ammunition during a frisk under any circumstances. Judge Rosenbaum sharply criticized the majority decision for deciding a separate question than the issues to be briefed, while Judge J. Pryor argued that the majority decision “unjustifiably broadened the scope of Terry’s narrow exception for seizing weapons.”

Judge Pryor emphasized that the circumstances did not implicate officer safety, noting that Johnson had immediately complied with officer demands to stop and get on the ground, he was handcuffed during the frisk and surrounded by officers, and there had been no 911 report involving a firearm. She further argued that the majority decision would allow Terry frisks for the purpose gathering evidence, “something the Supreme Court expressly has forbidden.”

Opinion by W. Pryor, joined by E. Carnes, Tjoflat, Marcus, Newsom, Branch, and Grant

Concurring opinion by Newsom

Concurring opinion by Branch, joined by Grant

Dissenting opinion by Jordan

Dissenting opinion by Rosenbaum

Dissenting Opinion by J. Pryor, joined by Wilson, Martin, and Jordan

Click here to read the opinion.

 


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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