from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:15-cr-20838-UU-1
JORDAN and JILL PRYOR, Circuit Judges, and DUFFEY, [*] District Judge.
DUFFEY, DISTRICT JUDGE
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.
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.
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
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.
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.
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,
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
Supp. Hrg. Transcript at 6 (Doc. 30). Officer Williams
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.
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.
investigation activity continued. Two officers provided a
description of the activity and why it was
conducted. Officer Williams testified at the
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
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
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 ...