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United States v. Johnson

United States Court of Appeals, Eleventh Circuit

March 22, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
PAUL JOHNSON, JR., Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20838-UU-1

          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 ...

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