||ELEVENTH CIRCUIT UPHOLDS REMOVAL OF AMMO FROM POCKET OF BURGLARY SUSPECT

ELEVENTH CIRCUIT UPHOLDS REMOVAL OF AMMO FROM POCKET OF BURGLARY SUSPECT

On April 16, 2019, the Eleventh Circuit Court of Appeals decided the United States v. Johnson[i], in which the court examined whether an officer was authorized seize a round of ammunition and empty holster he felt during a valid Terry frisk. The relevant facts of Johnson, taken directly from the case, are as follows:

Williams, a police officer for the City of Opa-Locka, Florida, sat alone in his patrol car when a call came over his radio shortly after 4:00 a.m. on June 14, 2015. The call reported a burglary in progress at a nearby multi-family duplex and described the burglar as a black male wearing a white shirt. Officer Williams and another officer responded to the call. Officer Williams knew from experience that responding to a burglary can be dangerous because burglars are often armed.

The officers arrived at the duplex and started to search for the suspected burglar. Officer Williams saw Paul Johnson, a black male wearing a white shirt standing near a fence in a dark alley at the back of the duplex. The officers asked Johnson to come toward them where they could “see him a little better.” Johnson complied, and as he walked toward them, another officer arrived on the scene. The officers ordered Johnson to lie on the ground and handcuffed him. Officer Williams then began frisking Johnson.

While patting down Johnson’s pocket, Officer Williams felt something nylon covering “a small, round, hard object” that he immediately recognized as ammunition. He reached into Johnson’s pocket and removed the round of ammunition and an empty nylon holster. The round belonged to a .380 caliber gun. Officer Williams was concerned; as he later testified, “the round that was in [Johnson’s] pocket and the holster led [him] to believe that there [wa]s a weapon that [the] round goes to and something goes into that holster.” Based on his experience that burglaries often involve more than one perpetrator, he was also concerned that there was “another person in an apartment [who] m[ight] come out with something.”

As Officer Williams searched the area for a gun, Johnson told the other officers that he had been trying to wake up his girlfriend, who lived at the duplex, by knocking loudly on her door. Johnson suggested that someone might have thought he was trying to break in. The officers tried to confirm Johnson’s story, but his girlfriend would not answer their knock at her door.

Meanwhile, Officer Williams found a hole in the fence close to where Johnson had been standing. Knowing that suspects “throw[]” away weapons “a lot in Opa-Locka” when they encounter the police, Officer Williams drove around the fence to see if a gun had been tossed on the other side. Sure enough, he found two pistols, one .380 caliber and the other .40 caliber, less than a foot from where the officers had first seen Johnson. Officer Williams checked the serial numbers on the pistols and determined that both had been reported as stolen.

Johnson’s girlfriend eventually opened her door for the officers. She confirmed that Johnson lived at the duplex with her and that he was trying to enter their home. The officers then arrested Johnson.

The officers took Johnson to the police station, where he waived his rights to remain silent and to counsel, see Miranda v. Arizona, 384 U.S. 436 (1966). Johnson confessed that he was holding the pistols for his brother and cousin, even though he had previously been convicted of a felony. A grand jury later indicted Johnson for being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1).[ii]

Johnson filed a motion to suppress the evidence discovered as a result of the Terry frisk.  The district court denied the motion, and Johnson pleaded guilty with the right to appeal the denial of the motion to suppress.  A panel of the Eleventh Circuit Court of Appeals reversed the denial of the motion to suppress and held that “the presence of a single round of ammunition, without facts supporting the presence, or reasonable expectation of the presence of a firearm”…does not serve as justification, under the Fourth Amendment, for the officer to go into the suspects pocket to seize the ammunition and the empty holster.[iii]

The Eleventh Circuit Court of Appeals then ordered a rehearing en banc of that opinion.  The Eleventh Circuit defined the issue as follows:

[W]hether Officer Williams was entitled, when he felt a round of ammunition in Johnson’s pocket during a Terry frisk, to seize the ammunition and the holster.[iv]

The Eleventh Circuit first discussed the legal principles that they must follow when deciding this case.  The court described the relevant legal principles as follows:

  • When an officer reasonably believes that a suspect threatens his safety or the safety of others, he may search the suspect and seize concealed objects that he reasonably believes may be weapons or other instruments of assault. See Terry, 392 U.S. at 27, 29.[v]
  • To frisk a suspect, an officer “conduct[s] a carefully limited search of the outer clothing of [the suspect] . . . to discover weapons which might be used to assault him.” Id. at 30. And if an officer “feels a concealed object that he reasonably believes may be a weapon,” he may continue the search beyond the outer clothing “by searching [the suspect’s] pocket” and removing the concealed object. Clay, 483 F.3d at 743-44.[vi]
  • The sole justification of the search [of a suspect] is the protection of the police officer and others nearby,” Terry, 392 U.S. at 29, so a frisk must remain “reasonably related in scope to the circumstances which justified the [frisk] in the first place,” id. at 20. A frisk “reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer” does not exceed its permissible scope. Id. at 29.[vii]
  • When we consider “the limitations which the Fourth Amendment places upon a protective seizure and search for weapons[,] . . . [we consider] the concrete factual circumstances of [the] individual case[].” Id. We ask “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27. In this inquiry, “the totality of the circumstances—the whole picture—must be taken into account.” United States v. Cortez, 449 U.S. 411, 417 (1981). “[This] process does not deal with hard certainties, but with probabilities.” Id. at 418.[viii]

The court first examined facts of Johnson’s case that are relevant to the issue at hand.  First, the officer characterized the area where he encountered Johnson as a “high crime area” with a “high volume of calls” that involve “bodily harm” caused by guns.  Second, Johnson matched the description provided of the burglary suspect.  Third, Johnson was standing in a dark alley, and the alleged burglary scene had not yet been secured by the officers.  Fourth, the officer knew, from experience, that burglars are often armed and often have accomplices.  Fifth, the officer immediately recognized what he felt in Johnson’s pocket to be a round of ammunition.

At this point, Johnson argued that a single round of ammunition posed no threat to the officers and as such, the officer was not authorized to remove it or the empty holster.  The Eleventh Circuit acknowledged that a Terry frisk is not solely to gather evidence of a crime, however, they also noted several important points that support the officer’s decision to remove the ammunition from Johnson’s pocket.  First, the court noted that ammunition is an “essential part of a lethal weapon,” and thus “threatened the safety of [the officer] and others in this” situation.[ix]  Second, while Johnson argued that a round of ammunition without a gun is no different than a pebble, the court noted that the difference is a round of ammunition is intended to become a deadly projectile when combined with a gun.  Third, the ammunition was not found in isolation; rather, it was found during a burglary investigation, in a high-crime/high-weapon area.    The Eleventh Circuit stated

[S]eizing the ammunition in Johnson’s pocket did not “amount[] to the sort of evidentiary search that Terry expressly refused to authorize”; in this circumstance, it instead amounted to the sort of protective search that Terry permits because Officer Williams had to find any gun to secure the scene and protect himself and others.[x]

Fourth, the court noted that other jurisdictions have held the seizure of ammunition during a Terry frisk reasonable in similar circumstances.  Fifth, the court noted that other dangerous, but non-weapon type items have been permitted seizures under Terry.  The court stated

In Terry, the Supreme Court contemplated that an officer could, of course, remove “guns, knives, [and] clubs,” but it never limited a frisk to those specified weapons. Id. Instead of creating a laundry list of particular objects that an officer may remove during a frisk, the Supreme Court explained that “[t]hese limitations will have to be developed in the concrete factual circumstances of individual cases.” Id. And when applying Terry in individual cases, we have ruled that officers are entitled to seize a variety of items that are not traditional weapons. See, e.g., Clay, 483 F.3d at 743 (holding that an officer lawfully seized a “long, thin object,” which turned out to be the empty barrel of a ballpoint pen, because he thought it “might be a screwdriver or something similar that could be used as a weapon”). After all, Terry explained that an officer can also remove “other hidden instruments for the assault of the police officer.” 392 U.S. at 29; see also Sibron v. New York, 392 U.S. 40, 65 (1968) (Terry‘s companion case also ruling that an officer may remove “concealed objects which might be used as instruments of assault”).[xi]

Thus, the circumstances under which a potentially dangerous item is discovered has direct bearing on whether the officer is reasonable in a belief that he needs to seize that item for his protection.  The court stated

In considering a frisk’s proper scope, we cannot isolate Terry‘s references to “weapons” from the “sole justification” for the frisk: “the protection of the police officer and others nearby.” 392 U.S. at 29. To be sure, the scope of a frisk must be “carefully limited” to serve that justification, id. at 30, but it must not be so limited that officers cannot take reasonable actions in furtherance of their own safety and that of others. As the Terry Court made clear, we cannot “deny the officer the power to take necessary measures . . . to neutralize the threat of physical harm.” Id. at 24. In short, during a Terry frisk, an officer may remove ammunition from a suspect when the removal is reasonably related to the protection of the officers and others nearby. See id. at 19-20.[xii]

Additionally, the court of appeals discussed whether the fact that Johnson was handcuffed at the time of the frisk eliminated the danger to the officers such that the seizure of the ammunition was not authorized.  Regarding this, the court stated

That Johnson was handcuffed when he was frisked did not eliminate the danger posed by the ammunition. The Supreme Court has rejected as “mistaken” the argument that officers cannot reasonably fear for their safety when a suspect “was effectively under [the officers’] control during the investigative stop and could not get access to any weapons that might have been located [nearby].” Michigan v. Long, 463 U.S. 1032, 1051 (1983). Handcuffs do not always work, and suspects have been known to reach for weapons even when handcuffed. See United States v. Sanders, 994 F.2d 200, 209-10 (5th Cir. 1993) (rejecting the argument “that, by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will . . . do them harm”).[xiii]

The court discussed that, at the time of Johnson’s detention and frisk, the officers had not found a gun and did not know if other suspects were in the area.  The officers also knew, from experience, the burglars often work with accomplices and often carry guns.  In light of these additional facts, the frisk and seizure of the ammunition was reasonable, even though Johnson was handcuffed.

In light of the reasons discussed, the Eleventh Circuit reversed the panels original decision and held

Officer Williams’s frisk remained “reasonably related in scope to the circumstances which justified the [frisk] in the first place.” Terry, 392 U.S. at 20. Officer Williams encountered an unsecure scene, late at night, in a high-crime area, while investigating a reported burglary. Officer Williams’s removal of the ammunition and holster was reasonably related to the protection of the officers and others. We hold that Officer Williams did not violate Johnson’s Fourth Amendment rights by removing the ammunition and holster from his pocket during the frisk.[xiv]

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Citations

[i] No. 16-15690 (11th Cir. Decided April 16, 2019)

[ii] Id. at 3-5

[iii] Id. at 7

[iv] Id.

[v] Id. at 8 [emphasis added]

[vi] Id. at 9 [emphasis added]

[vii] Id. [emphasis added]

[viii] Id. [emphasis added]

[ix] Id. at 10

[x] Id. at 11

[xi] Id. at 14 [emphasis added]

[xii] Id. at 15 [emphasis added]

[xiii] Id. at 16-17 [emphasis added]

[xiv] Id. at 23-24 [emphasis added]

By |2019-12-10T14:06:15+00:00December 10th, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.