NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0653n.06
Filed: September 5, 2007
Case No. 06-1751
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
BRIAN COURTNEY JOHNSON, ) DISTRICT OF MICHIGAN AT
) DETROIT
Defendant-Appellant. )
_______________________________________ )
)
BEFORE: BATCHELDER and COLE, Circuit Judges, and PHILLIPS,* District Judge.
THOMAS W. PHILLIPS, District Judge. The matter before the Court involves an appeal
of a criminal judgment entered following the defendant-appellant's conditional guilty plea of firearm
possession. Defendant-Appellant's appeal is based on essentially two grounds: (1) the officers did
not have reasonable suspicion that defendant was engaged in criminal activity to warrant an
investigatory detention in violation of defendant's rights under the Fourth Amendment, and (2) the
officers were not justified in searching defendant for weapons, thus violating defendant's
constitutional rights guaranteed under the Fourth Amendment. Based on the totality of the
circumstances, we find that the officers were justified in their actions involving both the stop and
pat down of the defendant. Accordingly, we find that the motion to suppress was correctly denied,
*
The Honorable Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
and we affirm the decision of the district court.
I. Background
On the morning of June 15, 2003, at 1:25 a.m., Detroit Police Officers Khistopher
Richardson and Jevon Johnson were dispatched to 4388 Clements Street, in the City of Detroit, with
respect to a report of gunshots being fired. The officers arrived on Clements Street at 1:35 a.m. to
investigate the matter. The officers did not speak to anyone at the address given, as it did not exist;
however, the officers spoke to a nearby resident, Anita Robertson, who denied that shots were fired.
While the defendant asserts that the officers had concluded that no shots had been fired, the
government asserts that the officers continued to investigate the shooting.
At 1:50 a.m., Officers Richardson and Johnson were called to a "hit and run" accident scene
at the intersection of Dexter and West Davison to assist police officers who had previously arrived.
Paramedics from Detroit Emergency Medical Services ("EMS") had been called to the accident scene
approximately two minutes after Officers Richardson and Johnson had been dispatched for the "shots
fired" call. When Officers Richardson and Johnson arrived at the accident scene, they found only
one severely damaged and inoperable vehicle and no driver or passengers. The officers then
followed the trail of auto fluids to the other car involved in the accident, which was located just a
few blocks away. This vehicle was also severely damaged with a deployed airbag, a smashed
windshield in a spiderweb pattern as if the driver had hit it, front end damage, and blood covering
the interior. Further, the ignition had been torn out so that it could be operated without a key,
indicating to the officers that the vehicle had been stolen. No driver or passengers were present. The
officers were aided by information from a caller that the driver had "bailed out" of the vehicle,
2
abandoning it. Unfortunately, no description of the driver was provided.
Officers Richardson and Johnson then went to a nearby liquor store, D&L Party Store, located
at the corner of Davison and Livernois Avenues, which was about one block away from the
abandoned vehicle, to find leads as to the whereabouts of the driver. At the store, an anonymous
source claimed to have observed a black male wearing dark clothes, bleeding from the head, walking
east on Davison away from the D&L Party Store, that is, in the direction leading back to the scene
of the hit and run accident. The officers proceeded back to Davison where they saw a black male,
who was bleeding from the head and walking east, two-tenths of a mile from the accident scene. The
officers testified that the male, who in fact was defendant Brian Johnson, appeared to be intoxicated,
injured, and disoriented. Officer Johnson asked defendant Johnson if he was "okay." Johnson
replied that "some guys jumped me." According to the government, since Johnson had injuries
consistent with the evidence found in the abandoned vehicle, was walking in a high-crime area late
at night in the vicinity of the accident, and appeared disoriented as well as intoxicated, the officers
believed Johnson was the driver of the abandoned vehicle and decided to temporarily detain and
question him regarding the hit and run incident involving a stolen vehicle. Morever, the officers
detained the defendant for purposes of providing medical treatment.
The defendant was then subjected to a pat-down before being placed in the squad car to be
transported back to the accident scene for investigation and medical treatment. According to the
government, all suspects to be placed in the back of a patrol car are frisked for weapons in an effort
to ensure officer safety pursuant to Detroit Police Department policy. When the defendant was
frisked, Officer Richardson felt a heavy, hard object that he believed to be a gun. Indeed, defendant
3
was in the possession of a firearm located in his right front pant pocket.
After the defendant was transported to the accident scene, Officer Johnson frisked the
defendant again and found another firearm concealed in his waistband. After the defendant refused
treatment, the officers transported him to the precinct for booking. Detroit Police Lieutenant
William Brown was the desk supervisor at the Tenth Precinct when the defendant arrived for
booking and observed that the defendant had sustained head lacerations. After noting the injuries
in the daily detail blotter, Lieutenant Brown sent the defendant to the hospital.
The defendant later confessed to being in an auto accident, sustaining a head injury as a result
of the accident, and carrying two firearms. However, the defendant was not the driver of the
abandoned stolen vehicle; rather, he was the driver of the vehicle that was found at the scene of the
hit and run accident.
On June 27, 2003, Johnson was charged in a criminal complaint with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). A one-count indictment was returned
for the same offense on July 10, 2003. Thereafter, Johnson was charged in a superceding indictment
with being an Armed Career Criminal in violation of 18 U.S.C. § 924(e), as well as possession of
a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
In the course of the proceedings, Johnson filed a motion to suppress the firearms that formed
the basis of the charge against him. After evidentiary hearings, additional briefing, and oral
arguments, the district court entered an order denying the motion to suppress. Johnson thereafter
entered a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2), reserving the right to challenge the
suppression issue. Johnson received 180 months’ imprisonment as punishment at sentencing.
4
Johnson then filed this timely appeal.
II. Analysis
The factual determinations in a district court's suppression order are reviewed for clear error
while the application of the law to those facts is reviewed de novo. United States v. Townsend, 330
F.3d 438, 439 (6th Cir. 2003). Further, this court will consider the "evidence in the light most likely
to support the district court's decision." United States v. Marxen, 410 F.3d 326, 328 (6th Cir. 2005)
(quotation omitted) (punctuation altered), cert. denied, 410 F.3d 326 (2006).
On appeal, Johnson reasserts the arguments that he raised below. He maintains that the
officers did not have a warrant, probable cause to arrest or search, or reasonable suspicion to detain
or frisk him, and that all evidence, obtained after the encounter with the police, was the fruit of the
"poisonous tree," that is, an unconstitutional search and seizure. Accordingly, Johnson urges the
Court to reverse the district court's denial of his motion to suppress.
A. The stop
Consistent with the Fourth Amendment, any officer may temporarily detain an individual
whom he or she has reasonable suspicion, based on specific and articulable facts, to believe that the
individual is, was, or is about to be, engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 21
(1868); United States v. Cortez, 449 U.S. 411, 417 (1981). Reviewing courts "must look at the
‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized
and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting Cortez, 449 U.S. at 417); see United States v. Sokolow, 490 U.S. 1, 8-9 (1989)
(finding that although the facts may be consistent with innocence, all that is required to justify an
5
investigatory stop is that the officer's suspicion be "reasonable" and "articulable" as determined by
the totality of the circumstances). Observations leading to an "inarticulate hunch" that criminal
activity is afoot are insufficient to justify a detention, but reasonable suspicion requires considerably
less than proof of wrongdoing by a preponderance of the evidence. Terry, 392 U.S. at 22; United
States v. Hurst, 228 F.3d 751, 757 (6th Cir.2000) (citing Sokolow, 490 U.S. at 7); Houston v. Clark
County Sheriff Deputy John Does 1-5, 174 F.3d 809, 813 (6th Cir.1999). Regarding reasonable
suspicion as required for Terry stops, the Sixth Circuit has stated that "the district court is at an
institutional advantage, having observed the testimony of the witnesses and understanding local
conditions, in making this determination," and therefore, " ‘due weight’ should be given to inferences
drawn from facts by ‘resident judges.’ " United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.
2006) (citations omitted).
The "totality of the circumstances" in this case consists of several separate pieces of
information. When the officers arrived at the scene of the accident, only one severely damaged
vehicle was present, and there was no sign of any driver or passengers. The officers had reasonable
suspicion that persons in the accident had violated Michigan Compiled Law ("MCL") § 257.617a,
which, at the time of the accident, stated:
Sec. 617a. The driver of a vehicle who knows or who has reason to believe that he
has been involved in an accident upon public or private property, when the property
is open to travel by the public, resulting in injury to a person shall immediately stop
his vehicle at the scene of the accident and shall remain there[.]
After locating the second vehicle a few blocks away, the officers observed the vehicle's
damage and condition, which indicated that the driver's head was thrust into the windshield resulting
6
in open head lacerations, as well as indicating from the punched ignition that the vehicle was stolen.
Further, officers had received an anonymous call that someone had "bailed out" of the second
vehicle. At this point, the officers were looking for a potentially dangerous individual on foot, in
near proximity to the abandoned vehicle, who had open head lacerations, and possibly disoriented
from the impact of the collision.
The officers then received an in-person report from a citizen outside a nearby store that a
black male in dark clothes, who was bleeding from the head, was walking east on West Davison.
The officers located the described individual, defendant Johnson, and initiated conversation. After
observing the disorientation of Johnson, the signs of intoxication, the open head lacerations, the
closeness of Johnson in both time and location to the events, as well as evaluating Johnson to be
lying as to the cause of his injuries, the officers believed Johnson to be: (1) the driver of the stolen
car, (2) involved in the hit and run accident, (3) while driving intoxicated, and (4) making a false
report as to the commission of a crime, all of which are in violation of the law, necessitating the need
to drive Johnson back to the scene of the accident. The specific, articulable facts indicated that
Johnson had committed at least one of the above crimes. Moreover, the time of day, the high-crime
area, and the suspicious actions and condition of Johnson, support the finding that the officers had
reasonable suspicion that criminal activity had occurred. United States v. Wright, No. 06-5164, 2007
WL 1026668, at *2 (6th Cir. Apr. 3, 2007) (Slip copy).
In sum, we concur with the district court's reasoning, which in relevant part is as follows:
In the instant case, the Court finds that given the totality of facts available to the two
officers, combined with their specialized training and experience in dealing with auto
accidents and bloodied individuals walking down the street at 1 a.m., and given their
investigation regarding the second car which had a punched ignition, and at the D&L
7
Party Store, permitted them "to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained person."
R. 40: Opinion at 6/JA 84, citing Marxen, 410 F.3d at 331-32). Accordingly, the officers were
justified under the totality of the circumstances to stop Johnson.
B. The pat-down
When an individual is subject to a lawful investigative detention, an officer may conduct a
limited frisk or pat-down of that person for weapons if the officer has a reasonable belief that the
suspect is armed and dangerous. See Terry, 392 U.S. at 30; see also United States v. Strahan, 984
F.2d 155, 158 (6th Cir. 1993) (a police officer may conduct a limited search for concealed weapons,
if the officer believes that a suspect may be dangerous). The purpose of this limited search is not to
discover evidence of a crime, but to allow the officer to pursue his investigation without fear of
violence. Adams v. Williams, 407 U.S. 143, 146 (1972).
In an examination of the record, the officers did not merely suspect the defendant of fleeing
the scene of the hit-and-run accident, the officers reasonably suspected the defendant of being the
driver of a stolen automobile involved in a hit-and-run accident. The reasonableness of this
suspicion is supported by the following facts: (1) the officers observed that the defendant’s head
injuries were consistent with hitting one’s head against a windshield (as found in the stolen
automobile); (2) the defendant asked for a ride at a liquor store across the street from the stolen
vehicle; and (3) the officers stopped the defendant just two-tenths of a mile from the stolen vehicle.
The officers’ reasonable suspicion that the defendant was driving a stolen vehicle and that he fled
the scene - combined with the officers’ belief that the defendant was lying about the source of his
8
injuries, and the fact that the officers found the defendant at 2:00 a.m., in a high crime neighborhood,
in close proximity in time and location to the unconfirmed (but not dismissed) shots-fired allegations
- permitted the officers to infer that the defendant was armed and dangerous. Thus, the officers were
justified in submitting Johnson to a pat-down search for weapons prior to placing him in the rear of
the vehicle to be transported to the accident scene for investigatory and treatment purposes. It is of
no consequence to our analysis that the officers later learned that the defendant was not, in fact, the
driver of the stolen vehicle because the reasonable suspicion inquiry considers only facts known to
the officers at the time of the detention. See Terry, 392 U.S. at 21 (asking whether “the facts
available to the officer at the moment of the seizure . . . [would] warrant a man of reasonable caution
in the belief that the action taken was appropriate”).
The government presents a second justification for the pat-down of the defendant, that is, that
a pat-down of suspects for dangerous objects before transporting them in the back seat of a patrol
car was a part of proper procedure under the department's policy. For this proposition, the
government claims that at least two other circuits have upheld an administrative search, which is
applied uniformly and independent of whether there is reasonable suspicion that a particular
transportee is armed and dangerous. See United States v. McCargo, 464 F.3d 192 (2nd Cir. 2006);
United States v. Abokhai, 829 F.2d 666 (8th Cir. 1987).
Since the court finds that the totality of the circumstances justified the pat-down in that the
officers had a reasonable belief that the defendant was armed and dangerous, the court declines to
discuss the justification for a pat-down pursuant to a department policy standing alone for all
individuals placed in a police vehicle. Although it does not appear that the Sixth Circuit has
9
specifically addressed the constitutionality of a department policy requiring pat-downs for
transportees placed in the back of a patrol vehicle, the Sixth Circuit has previously indicated that the
rights of citizens are to be carefully considered in detainment situations:
Counsel may shout "officer safety" until blue-in-the-face, but the Fourth Amendment
does not tolerate, nor has the Supreme Court or this Court ever condoned, pat-down
searches without some specific and articulable facts to warrant a reasonable officer
in the belief that the person detained was armed and dangerous. The Supreme Court
has, in interpreting the Fourth Amendment, struck a balance between the justifiable
concern for officer safety when confronting an individual and the substantial
individual interest in being free from unreasonable intrusion. The Framers' concerns
and clear intent to protect individuals from arbitrary government intrusion was
enshrined in the Fourth Amendment to prevent situations such as those alleged
here-officers, having no reason to fear for their safety, may not require citizens,
whom they have not arrested, to stand up against gates or place their hands on police
cars, and submit to searches. This has long been the law.
Bennett v. City of Eastpointe, 410 F.3d 810, 841 (6th Cir. 2005).
III. Conclusion
As both the stop and pat-down were justified under the totality of the circumstances, the
district court's ruling to deny the motion to suppress is affirmed.
10
R. GUY COLE, JR., Circuit Judge, concurring. I agree with the majority that we should
affirm the decision of the district court. I write separately because I disagree with Part II.B of the
majority’s opinion. That is, I do not believe the officers had a reasonable basis to believe that
Johnson was armed and dangerous. A weapons frisk unsupported by this reasonable basis typically
violates the Fourth Amendment. See, e.g., Bennett v. City of Eastpointe, 410 F.3d 810, 836 (6th Cir.
2005) (“To justify a pat-down search during a Terry stop the Fourth Amendment requires a
reasonable belief that the suspect is armed and dangerous . . . .”). Nonetheless, I believe the limited
weapons frisk of Johnson, prior to placing him in the rear of the police car for lawful transportation,
was constitutionally permissible because the officers had a legitimate law-enforcement purpose for
placing Johnson in the police car, and the weapons frisk was effectuated in accordance with a police-
department policy designed to ensure officer safety when transporting suspects. See United States
v. McCargo, 464 F.3d 192, 1999 (2d Cir. 2006).
A. Reasonable, Individualized Suspicion that Johnson Was Armed and Dangerous
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court did not adopt a bright-line rule
authorizing weapons frisks in all on-the-street confrontational encounters, despite the obvious danger
to police officers that inheres in these encounters. Id. at 27; see also Maryland v. Buie, 494 U.S. 325,
334 n.2 (1990). That is, before an officer effectuates a limited frisk for weapons incident to a lawful
Terry stop, the officer must have a reasonable belief that the suspect is both (1) armed, and (2)
dangerous. Terry, 392 U.S. at 30. Simply believing a suspect is dangerous, without more, is
insufficient. “Even in high crime areas, where the possibility that any given individual is armed is
significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be
11
conducted.” Buie, 494 U.S. at 334 n.2; accord, e.g., Bennett, 410 F.3d at 841.
The majority contends that the officers had a reasonable, individualized suspicion that
Johnson was armed because (1) Johnson was found in a high-crime area; (2) officers suspected that
Johnson had fled the scene of a hit-and-run car accident; (3) Johnson’s condition was “suspicious,”
namely, he was bloodied and disoriented; (4) officers found Johnson just two-tenths of a mile from
a stolen vehicle; and (5) officers believed that there was a “possible link” between Johnson and the
earlier shots-fired call. (Maj. Op. 8–9.) I cannot see how the first four reasons in any way support a
reasoned basis for believing that Johnson was armed. To my mind, a bloodied, disoriented man
found in a high-crime area and believed to have been involved in an car accident, even if one of the
cars was possibly stolen, does not provide officers with a reasonable, individualized suspicion that
the man is armed. Cf., e.g., United States v. Lane, 909 F.2d 895, 900 (6th Cir. 1990) (concluding that
officers reasonably believed suspect was armed and dangerous after he “twice attempted to reach into
his coat pocket”); United States v. McKoy, 428 F.3d 38, 40–41 (1st. Cir. 2005) (“It is simply not
reasonable to infer that a driver is armed and dangerous because the officers believe that he appears
nervous and reaches toward the car’s console when approached by police, even in a high-crime
neighborhood.”); United States v. Scott, 270 F.3d 30, 42 (1st Cir. 2001) (holding that a reasonable
suspicion that a suspect was involved in a nonviolent crime (fraud) did not provide a reasoned basis
for believing the suspect was armed because “[t]his logic would seem to permit a frisk on reasonable
suspicion of almost any felony”); United States v. Thomas, 863 F.2d 622, 629 (9th Cir. 1998) (“An
officer cannot simply frisk all ‘pretty big’ guys without more specific objective reasons why the
suspect posed a risk to the safety of the officer.”).
12
As for the fifth reason, if in fact there was a plausible link between Johnson and the shots-
fired call, then I would agree that the officers had a reasonable, individualized suspicion that Johnson
was armed. The officers’ belief, however, that Johnson was involved in the nearby shooting strains
credulity. The officers originally responded to a report of shots fired at 4388 Clements Street. They
arrived at the scene at 1:35 am. The officers’ investigation of the shots fired began and ended when
they realized that the address did not exist and spoke to a neighborhood resident who denied hearing
any gunshots. Fifteen minutes later, at 1:50 am, the officers left Clements Street after the police
dispatcher sent them, as backup, to the scene of a car accident a half mile away. The officers cannot
plausibly maintain that they were still investigating the shots-fired call when they arrived at the scene
of a wholly unrelated car accident, where they were to act as backup to the primary unit that had
already arrived, and where emergency medical personnel were already present. Absent any evidence
or a reasonable inference that the shots-fired call and the hit-and-run accident were related, the
majority’s analysis would permit officers to presume that anyone found within some time period and
some distance of a shots-fired call is armed and dangerous. This is too wide-sweeping a presumption.
There is simply nothing here, based on specific, articulable facts, that an encounter with Johnson
would lead “a reasonably prudent [officer under] the circumstances” to believe that Johnson was
armed and “that [the officer’s] safety or that of others was in danger.” Terry, 392 U.S. at 27.
B. Weapons Frisk Pursuant to Police-Department Policy
As a threshold matter, the officers were justified in placing Johnson in the back of the police
car and transporting him back to the scene of the accident. The Supreme Court has recognized that,
in some circumstances, police may transport a suspect a short distance in aid of a Terry stop, see
13
United States v. Place, 462 U.S. 696, 706 (1983), so long as the transport is reasonable, see United
States v. Sharpe, 470 U.S. 675, 686–87 (1985) (“The question is not simply whether some other
alternative was available, but whether the police act unreasonably in failing to recognize or pursue
it.”). In addition, four of our sister circuits, have specifically held that the police may transport a
suspect for identification purposes as part of a Terry stop. See United States v. McCargo, 464 F.3d
192, 199 (2d Cir. 2006); United States v. McCarthy, 77 F.3d 522, 531 (1st Cir. 1996); United States
v. Dickson, 58 F.3d 1258, 1263-64 (8th Cir. 1995); United States v. Short, 570 F.2d 1051, 1054
(D.C. Cir. 1978). Here, transporting Johnson two-tenths of a mile back to the scene of the accident
furthered the legitimate law-enforcement purpose of confirming or dispelling whether Johnson was
involved in the hit-and-run accident—no doubt, witnesses at the scene could identify Johnson as an
occupant of one of the totaled cars, or whether he was involved in the accident at all.
The only question remaining then is whether the Fourth Amendment prohibits police from
conducting a weapons frisk of a suspect, pursuant to departmental policy, prior to placing the suspect
in the back of a police car for lawful transport, where the police lack a reasonable belief that the
suspect is armed. I believe that the frisk here was permitted by the Fourth Amendment.
Although the Sixth Circuit has not yet addressed the issue, the Second Circuit recently held
“that in cases where the police may lawfully transport a suspect to the scene of the crime in the rear
of a police car, the police may carry out a departmental policy, imposed for reasons of officer safety,
by patting down the person.” McCargo, 464 F.3d at 201; cf. United States v. Abokhai, 829 F.3d 666,
670–71 (8th Cir. 1987) (holding that “the close proximity and limited observation of the suspect in
the back seat of the patrol car,” in addition to other “specific and articulable hazards,” provided
14
sufficient justification for the weapons frisk). Here, as mentioned, the officers had a legitimate law-
enforcement purpose for placing Johnson in the police car. Prior to placing Johnson in the police car,
the officers frisked Johnson for weapons in accordance with Detroit Police Department policy
requiring weapons frisks before transporting any person in a police car to ensure officer safety.
Under these narrow circumstances, I believe the officers’ administrative weapons frisk of Johnson
was constitutionally permissible. This is not to say that such searches would be reasonable under all
circumstances. See United States v. $53,082.00 in United States Currency, 985 F.2d 245, 248 (6th
Cir. 1993) (“Fourth Amendment inquiries are fact-specific and each case must be evaluated on its
own facts.”).
It is this rationale that I would employ to uphold the officers’ frisk of Johnson and not the
grounds relied upon by the majority.
15