©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute – United States v. Johnson, No. 09-2245, 2010 U.S. App. LEXIS (3rd Cir. Decided January 27, 2010)

On January 27, 2010, the Third Circuit Court of Appeals decided the United States v. Johnsoni, which serves as an excellent example and review of reasonable suspicion and the ability of officers to lawfully conduct “felony stops.”  The facts of the case are as follows:

[internal citations omitted] on the night of January 7, 2007 when Tammy Anderson noticed a taxicab pull into a parking lot across the street from her house and park next  to a van. Though visibility was poor, Anderson was able to observe what appeared to be two men emerge from the vehicles and begin to fight. Watching this altercation develop from the doorway of her home, Anderson heard at least one gunshot ring out.

Upon hearing the gunshot, Anderson called 911 and told the police dispatcher: “I heard a gunshot. I seen [sic] two people wrestling on the ground and I don’t see them now. And there was a gunshot. I’m standing here on [sic] my front door.” When prompted by the dispatcher, Anderson provided her full name, her telephone number, and described the location of the parking lot. Although Anderson was unable to describe in any detail the individuals involved in the altercation, she said the taxi appeared to be white– possibly with tan paneling–and had a green light on its roof. While she was still on the phone, Anderson told the dispatcher that the taxi was departing from the parking lot and heading southbound on Seventh Street. The van, Anderson noted, remained in the lot and appeared to be unattended.

The information Anderson provided was dispatched to Harrisburg police officers on patrol that evening. Officer John Doll responded to the parking  lot and confirmed that a van was parked in the lot. Doll arrived so quickly that Anderson, who was still on the phone, told the dispatcher that she saw a police car drive by. At about the same time, another officer reported that he had spotted a taxicab matching the description provided by Anderson heading southbound on Seventh Street approximately ten blocks away. After determining that no one remained with the van, Officer Doll proceeded southbound on Seventh Street in search of the taxicab.

Doll quickly tracked down the taxi, though he did not stop the vehicle immediately. Concerned that its occupants might be armed, Doll and other officers followed the taxi for several blocks to allow backup to join the pursuit. When the taxi turned onto Aberdeen Street, a narrow alleyway approximately two miles from the reported altercation, the officers initiated a traffic stop. The purpose of this stop, Doll testified at the suppression hearing, was to investigate the “shots fired call” and to ensure that no one in the taxicab was either armed or injured. Positioning their vehicles to block the exit to the alleyway, numerous officers surrounded the taxicab. Because the information relayed by  the dispatcher indicated that the occupants of the taxi may have been involved in the reported shooting incident, the officers approached the taxicab slowly, with guns drawn, while shouting for the occupants to exit the vehicle. According to Doll, such a response was “general practice” in such circumstances “in case somebody comes out of the vehicle with a gun ready to shoot.”

The police proceeded to clear and secure the vehicle. Riding in the backseat of the taxi with his young son was the Appellant, Anthony Johnson. After removing both Johnson and the taxi driver, Kenneth Cobb, the officers handcuffed both men, though neither was formally arrested at that time. Rather, Officer Doll testified at the suppression hearing that the police handcuffed the men so the officers could safely clear the vehicle and gather information about the shooting reported by Anderson. Surprised to discover Johnson’s eight-year-old son in the taxicab, the officers also removed him and placed him to the side.

After Johnson and Cobb were detained, another responding officer, Richard Gibney, approached the car. Though it was raining hard, the location was well-lighted and the taxicab’s interior dome light was  on, illuminating the vehicle’s passenger compartment. Looking through a back window, Officer Gibney observed the butt of a Taurus .38 Special revolver protruding from an unzipped duffel bag on the taxicab’s rear seat, where Johnson had been sitting. After consulting with Officer Doll, Officer Gibney retrieved the weapon from the taxi and unloaded it, finding two spent shell casings inside.

Officer Doll then placed Johnson, a convicted felon, under arrest for possession of the gun and suspected involvement in the shooting and altercation reported by Anderson. After reading Johnson his Miranda rights, Doll began questioning him about the firearm and the shooting. Johnson declined to respond. A search of Johnson incident to his arrest revealed that he carried on his person marijuana, cocaine, and related drug paraphernalia.

Johnson was transported to the police station for booking, where he again encountered Officer Doll, who had traveled to the station separately. Although Doll did not attempt to question Johnson at the police station, Johnson began speaking to Doll during the booking process, admitting ownership of the revolver and duffel bag but denying responsibility for the shooting  reported by Anderson. Johnson also attempted to persuade Doll to forego charging him with any drug offenses.

Johnson was ultimately indicted on federal weapon and drug charges.  He filed a motion to suppress and argued that the firearm, drugs and any statements that he made should be suppressed because the stop of the taxicab violated the Fourth Amendment.  His motion was denied and he pleaded guilty with the right to appeal.

Johnson then appealed to the Third Circuit Court of Appeals.  He raised two issues which both alleged that his stop violated the Fourth Amendment.  First, he argued that the stop of the taxicab amounted to a de facto arrest which required probable cause, which he opines was absent under the facts of his case.  Second, he argued that the stop of the taxi was not supported with sufficient reasonable suspicion because the information provided by the complainant was not detailed and could not be considered reliable.  A third point also discussed by the court was whether the Terry stop that the police conducted was overly intrusive so as to violate the Fourth Amendment.

General Rules

In beginning its analysis, the Third Circuit first noted that, while searches and seizures must normally be supported by probable cause, there is an exception to this requirement that is consistent with the Fourth Amendment.  Particularly, the United States Supreme Court has stated:

An officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has reasonable, articulable suspicion that criminal activity is afoot.ii

The Supreme Court has applied the above rule to stops of motor vehicles based upon reasonable suspicion.iii

Was the stop of the taxicab a de facto arrest?

Johnson admits that vehicle stops may be based upon reasonable suspicion.  However, he argues, that in his case, the manner in which the stop was conducted transformed the stop into a de facto arrest that required probable cause.  He points specifically to the fact that the officers approached the taxicab with guns drawn, yelling verbal commands, and then handcuffed him and the driver, without first questioning them about their involvement.

The court noted that, at times, it may be difficult to distinguish between a Terry stop, requiring reasonable suspicion, and a de facto arrest, requiring probable cause.  The court then stated:

We have recognized that the vast majority of courts have held that police actions in blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se.iv

The court also noted precedent where they have held:

Nor does placing a suspect in handcuffs while securing a location or conducting an investigation automatically transform an otherwise valid Terry stop into a full-blown arrest…There is no per se rule that pointing guns at people, or handcuffing them, constitutes an arrest.v

While Johnson contends that the officers should have questioned him prior to handcuffing him, the Third Circuit noted that this simply is not required of officers by the Supreme Court when the officers are faced with armed and dangerous suspects.  Specifically, in Terry v. Ohio, the Supreme Court stated:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating … is armed and presently dangerous to the officer or to others, it would …be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.vi

In light of the above precedent, the Third Circuit then held that, since the officers were acting on a credible tip that at least one occupant of the taxi was armed, the officer’s actions were reasonable and did not transform the stop into a de facto arrest which would have required probable cause.

Was the stop of the taxicab supported by reasonable suspicion?

Since the court determined that the reasonable suspicion standard should apply, they next sought to determine if the stop was supported by reasonable suspicion.  Johnson contends that Anderson’s (the complainant) 911 call did not provide sufficient reasonable suspicion to justify the stop of the taxicab in which he rode.  The court noted that they must view the “totality of the circumstances” when making this determination.

The court then stated:

When a Terry stop is based on a tip provided by an informant, we must scrutinize the informant’s “veracity, reliability, and basis of knowledge” to determine whether the information relied upon by the police was sufficient to establish reasonable suspicion for the stop. [internal citations omitted]vii

The court noted five factors to consider when determining the reliability of an informants tip.  The five factors are as follows:

  1. Whether the information was provided to the police in a face to face interaction, allowing an officer to directly assess credibility;
  2. Whether the informant can be held responsible if her allegations were untrue;
  3. Whether the information would not be available to the ordinary observer;
  4. Whether the informant has recently witnessed the criminal activity at issue; and
  5. Whether the informant’s information accurately depicts future activity.viii

The court stated that no single factor is alone determinative, but rather the information should be view under the totality of the circumstances.

The court next applied the facts of Johnson’s case to the factors above.  First, the complainant, while not involved in a face to face interaction with police, gave the dispatcher her name and contact information.  Thus, she could have been held accountable if her information proved untrue.  Next, the complainant’s call made it clear that she was reporting on-going criminal activity, particularly a fight in progress with gunfire.  The complainant also gave a description of the taxicab and the van involved.  Fourth, she gave the police the direction of travel of the taxicab, which turned out to be accurate; this also worked to enhance the complainant’s credibility.

Also bolstering the officer’s reasonable suspicion was the fact that they corroborated part of the complainant’s information.  She said that the van remained in the parking lot.  Officer Doll went to the parking lot saw the van at that location.  He then proceeded south on Seventh Street and located a taxicab that met the description provided by the complainant.

In consideration of the totality of the circumstances, the court held that:

[the complainant’s] tip, bolstered by the officer’s independent corroboration of certain details, was sufficiently reliable to provide the police with reasonable suspicion that the occupants of the taxicab in which Johnson was riding had been involved in the shooting reported by [the complainant.].   Therefore, we hold that the officer’s decision to stop the taxi was “justified at its inception in the present case.ix

Was the Terry stop overly intrusive?

In Terry v. Ohio, the Supreme Court noted that they perform a dual inquiry in determining whether an investigative detention (a/k/a Terry stop) is constitutionally reasonable.x  The first inquiry is whether the officer action, particularly the detention, was justified at its inception.  A stop is justified at its inception when it is supported by reasonable suspicion.  In Johnson, the Third Circuit Court of Appeals determined that the stop was supported by reasonable suspicion, and thus, justified at its inception.

The second inquiry under Terry, is whether the stop was conducted in a manner that was “reasonably related to the circumstances that justified the interference in the first place.”xi  Johnson complains that officers surrounded his vehicle, pointed their guns, yelled commands, and handcuffed him.  The court has previously held that the “use of guns and handcuffs must be justified by the circumstances” that authorized the investigative detention.xii  Here, the police had information that a taxicab’s occupants had been involved in a fight and a shooting, moments before the stop.  The Third Circuit cited an Eleventh Circuit case that held:

An officer with reasonable suspicion that the occupants of a vehicle are armed and dangerous does not act unreasonably by drawing his weapon, ordering the occupants out of the vehicle, and handcuffing them until the scene is secured.xiii

The Third Circuit also noted that they have previously held that it is reasonable to order a person to “get down” during a Terry stop, so there was no problem with the officer’s yelling verbal commands.xiv

In light of the above precedent the court held the stop was the taxicab was not only supported by reasonable suspicion, but also conducted in a manner that was reasonably related in scope to the circumstance that justified the stop.  In other words, the stop was not overly intrusive.

Thus, the Third Circuit affirmed the denial of the motion to suppress.


i United States v. Johnson, No. 09-2245, 2010 U.S. App. LEXIS (3rd Cir. Decided January 27, 2010)

ii Id. (quoting Illinois v. Wardow, 528 U.S. 119, 123 (2000))

iii Delaware v. Prouse, 440 U.S. 648, 663 (1979)

iv Johnson at 10 (quoting United States v. Edwards, 53 F.3d 616, 619 (3rd Cir. 1995))

v Id. (quoting Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3rd Cir. 1993); Torres v. United States, 200 F.3d 179, 185 (3rd Cir. 1999))

vi Id. at 11 (quoting Terry v. Ohio, 392 U.S. 1,24 (1968))

vii Id. at 13

viii Id. at 13-14

ix Id at 21

x Id. at 22

xi Id. at 23 (quoting Terry, 392 U.S. at 19-20)

xii Id.

xiii Id. at 25 (quoting United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989) (finding that police officers with reasonable suspicion that suspects were armed acted reasonably in drawing their weapons and handcuffing suspects)

xiv Id. at 25-26

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