United States v. Johnson

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

8-16-1995

United States v Johnson
Precedential or Non-Precedential:

Docket 94-7646

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Recommended Citation
"United States v Johnson" (1995). 1995 Decisions. Paper 223.
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 1 UNITED STATES COURT OF APPEALS
2 FOR THE THIRD CIRCUIT
3
4
5
6 No. 94-7646
7
8
9 UNITED STATES OF AMERICA,
10
11 Appellant,
12
13 v.
14
15 PAUL N. JOHNSON; DARRYL JONNS;
16 LAMONT BELL; and CRAIG RICHARDSON,
17
18 PAUL N. JOHNSON,
19
20 Appellee.
21
22
23
24 Appeal from the United States District Court
25 for the Middle District of Pennsylvania
26 (D.C. Crim. No. 1:CR-94-145-1)
27
28
29 Argued April 18, 1995
30
31
32 Before: STAPLETON, HUTCHINSON and SEITZ, Circuit Judges.
33
34 Filed: August 16, 1995
35
36
37 David M. Barasch, United States Attorney
38 Dennis C. Pfannenschmidt, Assistant U.S. Attorney (Argued)
39 Office of the United States Attorney
40 Federal Building
41 228 Walnut Street
42 P.O. Box 11754
43 Harrisburg, PA 17108
44
45 Attorneys for Appellant
46
47 Spero T. Lappas, Esquire (Argued)
48 205 State Street
 2

1 P.O. Box 808
2 Harrisburg, PA 17108-0808
3
4 Attorney for Appellee
5 Stefan Presser, Esquire
6 ACLU of Pennsylvania
7 125 South 9th Street, Suite 701
8 P.O. Box 1161
9 Philadelphia, PA 19105
10
11 David Rudovsky, Esquire
12 ACLU of Pennsylvania
13 Kairys & Rudovsky
14 924 Cherry Street, 5th Floor
15 Philadelphia, PA 19107
16
17 Eric B. Henson, Esquire
18 Jan Fink Call, Esquire
19 R. David Walk, Jr., Esquire
20 Hoyle, Morris & Kerr
21 4900 One Liberty Place
22 1650 Market Street
23 Philadelphia, PA 19103
24
25 Attorneys for Amicus Curiae ACLU of Pennsylvania
26
27
28
29

30 OPINION OF THE COURT
31

32 SEITZ, Circuit Judge.

33 Paul N. Johnson ("Defendant") was indicted by a federal
34 grand jury for conspiracy to distribute narcotics, see 21 U.S.C.
35 § 846, possession and distribution of narcotics, in violation of

36 21 U.S.C. § 841, and related firearms offenses, see 18 U.S.C.

37 §§ 922(g), 924(a)(2), (c)(1), (c)(2). The government appeals

38 here from an order of the district court granting Defendant's

39 pretrial motion to suppress contraband seized by the Pennsylvania

40 State Police during a vehicle search. The district court had
 3

1 jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction

2 pursuant to 18 U.S.C. § 3731. The trial has been stayed pending

3 the disposition of this appeal.
4 I. FACTS

5 The historic facts are taken from the memorandum

6 decision filed by the district court, see FED. R. CRIM. P. 12(e),

7 after the hearing on Defendant's motion to suppress the seized

8 materials.

9 A Pennsylvania State Trooper, while following a vehicle

10 traveling on Interstate 78 toward Harrisburg and driven by

11 Defendant, noticed "several large objects," which appeared to be

12 air fresheners, hanging from its inside rearview mirror. Because

13 he believed the hanging objects constituted a violation of the

14 Pennsylvania Vehicle Code, see 75 PA. CONS. STAT. ANN. § 4524(c)

15 (Supp. 1994),1 the trooper engaged his overhead lights and

16 signaled for the vehicle to pull to the side of the road.

17 After both vehicles stopped, the trooper asked

18 Defendant to produce his driver's license and automobile

19 registration card. Defendant produced a South Carolina driver's

20 license bearing the name "Tracy Lamar Washington." Although he

21 was unable to produce an automobile registration card, a

1
Section 4524(c) provides in relevant part:
(c) Other obstruction.─No person shall drive
any motor vehicle with any object or material
hung from the inside rearview mirror . . . as
to materially obstruct, obscure or impair the
driver's vision through the front windshield
or any manner as to constitute a safety
hazard.
Title 75, § 4524(c).
 4

1 violation of the Pennsylvania Vehicle Code, see 75 PA. CONS. STAT.
2 ANN. § 1311(b) (Supp. 1994), Defendant told the trooper that he

3 owned the vehicle. See Appendix at A60-A61. At that point, the

4 trooper went to his patrol car and had the police dispatcher run

5 a check on the vehicle's license number.

6 While waiting for the vehicle check to be completed,

7 the trooper spoke separately with Defendant and the other

8 occupants of the vehicle. According to the trooper, during these

9 conversations Defendant as well as the passengers seemed

10 "unusually" and "exceptionally" nervous and gave the trooper

11 conflicting statements about the origin and the destination of

12 their trip. Although Defendant knew the name of one of the

13 passengers, he could identify another one only as "T." The

14 trooper testified that the circumstances caused him to suspect

15 that there were narcotics or contraband in the vehicle.

16 The trooper asked Defendant whether there was anything

17 illegal in the vehicle, and Defendant replied in the negative.

18 The trooper then asked Defendant for his consent to search the

19 car and presented him with a consent form to read and sign.

20 Although Defendant would not sign the form, the trooper testified

21 that he orally consented to the search. In the search that

22 followed, the trooper discovered one-half pound of marijuana, one

23 and one-half ounces of cocaine, one ounce of a substance often

24 used to "cut" cocaine, and a digital scale. At that point, the

25 trooper read the adult occupants of the vehicle their Miranda

26 rights, then placed them under arrest, and seized the contraband.
 5

1 Defendant was first charged in state court with a

2 number of violations under the Pennsylvania Crimes Code, the Drug

3 Code, and the Vehicle Code. He, thereafter, filed a pretrial

4 motion to suppress the seized drugs and other contraband. The

5 Court of Common Pleas for Berks County, Pennsylvania suppressed

6 the seized materials found in the vehicle because it concluded

7 that they were obtained during an unlawful search. That action
8 was later nolle prossed. See id. at A71.
9 Defendant was also charged in the district court with

10 federal narcotics and firearms violations. Again, he moved to

11 suppress the same materials obtained by the trooper following the

12 traffic stop. Thereafter, the district court conducted a

13 pretrial suppression hearing and concluded that the traffic stop

14 was used by the trooper as a pretext, that is, a legal

15 justification for an otherwise unconstitutional vehicle stop

16 based on suspicion of narcotics possession. See United States v.

17 Johnson, No. 1:CR-94-145-01, slip op. at 6 (M.D. Pa. Oct. 24,

18 1994) ("Mem. Op."). As a result, the court found that the

19 subsequent search and seizure were tainted by this pretextual

20 stop and the seized materials were suppressed. The government

21 appeals that order.
22 II. DISCUSSION

23 Some preliminary observations are appropriate to an

24 understanding of the structure of this opinion.

25 We emphasize that this is an appeal by the government

26 from an order of the district court granting Defendant's pretrial

27 suppression motion. In the district court, Defendant set forth
 6

1 what we understand to be two grounds for suppression: (1) the

2 traffic stop that eventuated in the seizure of the illegal

3 materials was unconstitutional, thus tainting the seizure; and

4 (2) the real reason for the traffic stop was to find a way to

5 search for drugs and not to enforce the traffic laws. As we read

6 the memorandum decision of the district court, it rejected
7 Defendant's first ground but relied on the second, i.e., pretext,
8 to grant his motion.

9 On appeal the government attacks the district court's

10 pretext finding, which, of course, the Defendant supports. We

11 will initially address whether the district court erred in its

12 ruling on the first ground in Defendant's motion. We do so

13 because if the district court erred in that determination, it

14 would be unlikely that the more complex pretext issue would be

15 decided. See, e.g., United States v. Shabazz, 993 F.2d 431, 435

16 n.3 (5th Cir. 1993).
17 A. Was The Traffic Stop Justified?

18 The United States Supreme Court has held that stopping

19 a car and detaining its occupants is a seizure under the Fourth
20 Amendment. See United States v. Hensley, 469 U.S. 221, 226
21 (1985); see also United States v. Velasquez, 885 F.2d 1076, 1081

22 (3d Cir. 1989), cert. denied, 494 U.S. 1017 (1990). However, a

23 stop to check a driver's license and registration is

24 constitutional when it is based on an "articulable and reasonable

25 suspicion that . . . either the vehicle or an occupant" has
26 violated the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979);
 7

1 see Velasquez, 885 F.2d at 1081; see also 75 PA. CONS. STAT. ANN.
2 § 6308(b) (Supp. 1995).2

3 As a general rule, the burden of proof is on the

4 defendant who seeks to suppress evidence. See United States v.

5 Acosta, 965 F.2d 1248, 1256 n.9 (3d Cir. 1992) (citations

6 omitted). However, once the defendant has established a basis

7 for his motion, i.e., the search or seizure was conducted without

8 a warrant, the burden shifts to the government to show that the

9 search or seizure was reasonable. See United States v. McKneely,

10 6 F.3d 1447, 1453 (10th Cir. 1993).

11 The trooper testified that he stopped Defendant's

12 vehicle because, based on what he saw, he believed it was in

13 violation of the Pennsylvania Vehicle Code. See Appendix at A57.

14 As we read the district court's memorandum decision, it accepted

15 this testimony. See Mem. Op. at 12, 14. This finding of fact

16 exceeds the showing required of the government to justify the

17 traffic stop under Prouse, which requires only an articulable and

18 reasonable suspicion that the car was in violation of

19 Pennsylvania law. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106,
20 109 (1977); Velasquez, 885 F.2d at 1081. Because this finding is

21 not clearly erroneous, we conclude that the district court

2
Under section 6308(b) of the Pennsylvania Vehicle Code, a
trooper who has reasonable and articulable grounds to believe
that a vehicle or driver is in violation of the Vehicle Code may
stop the vehicle. See Commonwealth v. Benton, 655 A.2d 1030, 1033
(Pa. Super. Ct. 1995). Although an actual violation need not be
established, a reasonable basis for the officer's belief is
required to validate the stop. See id.; Commonwealth v. McElroy,
630 A.2d 35, 40-41 (Pa. Super. Ct. 1993).
 8

1 correctly determined that the trooper's basis for the stop,

2 standing alone, met Fourth Amendment requirements.
3 B. The Pretext Issue

4 Although the traffic stop itself met constitutional

5 requirements, the district court suppressed the seized materials
6 because it found that the traffic stop was merely a pretext to
7 find a basis to thereafter search Defendant's vehicle for

8 narcotics and, as such, was violative of the Fourth Amendment.

9 See Mem. Op. at 16. We now determine whether the district court

10 applied the proper standard in determining that the stop was

11 pretextual. This important issue presents a question of law

12 subject to plenary review. See United States v. Deaner, 1 F.3d

13 192, 196 (3d Cir. 1993).

14 In evaluating the constitutionality of a police traffic

15 stop, most courts agree that an objective analysis of the facts

16 and circumstances surrounding the stop is appropriate. See, e.g.,

17 Scott v. United States, 436 U.S. 128, 137-38 (1978); United

18 States v. Whren, 53 F.3d 371, 374 (D.C. Cir. 1995); United States

19 v. Hawkins, 811 F.2d 210, 213 (3d Cir.), cert. denied, 484 U.S.

20 833 (1987). However, courts of appeals have had some difficulty

21 in applying this objective assessment to the argument that a

22 traffic stop, otherwise lawful, is really a pretext to search for

23 evidence of an unrelated serious crime and, thus, unlawful.

24 Neither the Supreme Court nor this court seems to have directly

25 addressed this constitutional issue.3

3
Some courts have characterized this court's opinion in United
States v. Hawkins, 811 F.2d 210 (3d Cir. 1987) as endorsing the
 9

1 The majority of the courts of appeals have adopted the

2 so-called "authorization test." Under that approach, materials

3 seized following a traffic stop are admissible so long as a
4 reasonable police officer could have made the stop (also known as
5 the "could" test). These courts simply inquire whether, at the

6 time of the stop, the police officer reasonably believed the

7 defendant was committing a traffic offense, and whether the law

8 authorized a stop for such an offense.4

9 A minority of the courts of appeals have adopted the

10 "usual police activities" test (also known as the "would" test).

11 Applying that test to a traffic stop, materials seized are

12 admissible as evidence only if a reasonable police officer would

13 have made the stop in the absence of an invalid purpose.5 These

14 courts inquire not only into the legality of the stop, but also

15 into its conformity with regular police practices.

"authorization" test. See, e.g., United States v. Scopo, 19 F.3d
at 783; United States v. Ferguson, 8 F.3d 385, 389 (6th Cir.
1993). In Hawkins, the police gave a pretext, a traffic
violation, as the reason for stopping a vehicle whose occupants,
they believed, were involved in the purchase and sale of
narcotics. This court, without relying on the pretext asserted
by the police, found an objectively reasonable basis for the
stop. See Hawkins, 811 F.2d at 215. It stated that the pretext
used by the police did not render an otherwise constitutional
search invalid. See id. Therefore, the court was not required to
address the allegedly pretextual nature of the traffic stop.
4
See Whren, 53 F.3d at 375-76; Scopo, 19 F.3d at 782-84; United
States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994); United States
v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994); United States v.
Roberson, 6 F.3d 1088, 1092 (5th Cir. 1993); Ferguson, 8 F.3d at
389-91; United States v. Hadfield, 918 F.2d 987, 993 (1st Cir.
1990), cert. denied, 500 U.S. 936 (1991); United States v. Hope,
906 F.2d 254, 257-58 (7th Cir. 1990).
5
See United States v. Millan, 36 F.3d 886, 888 (9th Cir. 1994);
United States v. Dirden, 38 F.3d 1131, 1139-40 (10th Cir. 1994);
United States v. Harris, 928 F.2d 1113, 1116-17 (11th Cir. 1991).
 10

1 In this case the district court adopted the minority

2 approach, the usual police activities test. It held that a

3 "reasonable" trooper would not have stopped the vehicle for the

4 minor traffic violation here involved, absent a "hunch" that the
5 occupants were trafficking in narcotics. See Mem. Op. at 15-16.
6 The usual police activities test, the court reasoned, "is most

7 faithful to the spirit of the Fourth Amendment." Id. at 13.

8 Thus, we must decide, under a plenary standard of

9 review, whether to adopt the minority standard employed by the

10 district court or the rule of the majority of the courts of

11 appeals.

12 The Supreme Court has consistently held that an

13 analysis of Fourth Amendment issues involves "`an objective

14 assessment of the officer's actions in light of the facts and

15 circumstances confronting him at the time' and not on the

16 officer's actual state of mind at the time the challenged action

17 was taken." Maryland v. Macon, 472 U.S. 463, 470-71 (1985)

18 (quoting Scott, 436 U.S. at 136); see Hawkins, 811 F.2d at 213-

19 14. "[T]he fact that the officer does not have the state of mind

20 which is hypothecated by the reasons which provide the legal

21 justification for the officer's action does not invalidate the

22 action so long as the circumstances, viewed objectively, justify
23 that action." Scott, 436 U.S. at 138; see United States v.
24 Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (stating that

25 the fact that customs officers boarding a ship pursuant to a

26 statute authorizing a check of the vessel's documentation

27 suspected that the vessel carried marijuana was not a violation
 11

1 of the Fourth Amendment); Hawkins, 811 F.2d at 214 ("Both the
2 Supreme Court and this court have held that a seizure that is

3 valid based upon the stated purpose cannot be challenged on the

4 grounds that the seizing officers were in fact motivated by an

5 improper purpose."); see also Velasquez, 885 F.2d at 1081. We

6 conclude that the authorization test incorporates this objective

7 analysis.

8 On the other hand, the usual police activities test

9 applied by the district court is not a wholly objective test

10 because it requires a reviewing court to examine the motivations

11 and hopes of a police officer. See Mem. Op. at 9 ("The crux of

12 [the would] test is an objective analysis of what a reasonable

13 police officer would have done under the same circumstances

14 absent any underlying improper purpose."). This approach would

15 require a court to move past the objective facts and

16 circumstances, i.e., the traffic violation, and attempt to

17 ascertain an officer's true state of mind.

18 In response to the government's argument seeking to

19 have us apply the majority view, Defendant and amicus, ACLU,

20 contend that the authorization standard will do nothing to

21 restrain the arbitrary exercise of discretionary police power.
22 See Defendant's Br. at 12; ACLU Br. at 11-14; see also United
23 States v. Cannon, 29 F.3d 472, 474-75 (9th Cir. 1994) ("In the

24 absence of some limit on police power to make such stops,

25 thousands of everyday citizens who violate minor traffic

26 regulations will be subject to unfettered police discretion as to
27 whom to stop."); United States v. Guzman, 864 F.2d 1512, 1516
 12

1 (10th Cir. 1988); 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE

2 FOURTH AMENDMENT § 1.4(e), at 28 (Supp. 1995) (arguing that the
3 authorization test has "conferred upon the police a virtual carte
4 blanche to stop people because of the color of their skin or for

5 any other arbitrary reason").

6 However, the police are subject to a number of

7 statutory and common law limitations. For example, officers

8 cannot make a traffic stop without probable cause or a reasonable

9 suspicion, based on articulable facts, that a traffic violation

10 has occurred. See Prouse, 440 U.S. at 661; Velasquez, 885 F.2d at

11 1081; see also 75 PA. CONS. STAT. ANN. § 6308(b). Thus, in

12 evaluating the constitutionality of a traffic stop, a court is

13 free to examine the sufficiency of the reasons for the stop as

14 well as the officer's credibility.

15 Furthermore, a traffic stop must be reasonably related

16 in scope to the justification for the stop. See Berkemer v.

17 McCarty, 468 U.S. 420, 439 (1984); Bloomfield, 40 F.3d at 915;

18 Scopo, 19 F.3d at 785; United States v. Hassan El, 5 F.3d 726,

19 731 (4th Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994). To

20 justify a greater intrusion unrelated to the traffic stop, the

21 totality of the circumstances known to the police officer must

22 establish reasonable suspicion or probable cause to support the
23 intrusion. See United States v. Ramos, 42 F.3d 1160, 1163 (8th
24 Cir. 1994); United States v. Hernandez, 872 F. Supp. 1288, 1293-

25 94 (D. Del 1994). Clearly, a lawful traffic stop is not "carte

26 blanche" for an officer to engage in other unjustified action.
 13

1 In addition, the authorization test ensures that the

2 validity of a traffic stop "is not subject to the vagaries of

3 police departments' policies and procedures" concerning the kinds
4 of traffic offenses which are enforced. Ferguson, 8 F.3d at 392;
5 see Whren, 53 F.3d at 376; Scopo, 19 F.3d at 784. Therefore, the

6 validity of a traffic stop should be evaluated on the officer's

7 objective legal basis for the stop and not on whether the police

8 department routinely enforces a particular traffic law or assigns

9 a traffic officer to make such stops. It is not apparent why

10 police officers should be precluded from making an otherwise

11 valid traffic stop merely because by doing so they would be

12 departing from some routine.

13 We conclude that the district court erred in adopting

14 and applying the usual police activities test rather than the

15 authorization test in deciding that the basis for the vehicle

16 stop was a pretext to search for drugs. In adopting the majority

17 standard, we recognize that any rule governing this issue can be

18 abused by the authorities. But, that concern is inherent in the

19 nature of law enforcement. Based on the foregoing, we now

20 examine Defendant's pretext argument in light of the standard we

21 have adopted.

22 We next consider whether we should go on and apply the

23 standard we adopt to Defendant's pretext argument or remand it

24 for resolution by the district court. Because the district court

25 has already made the relevant factual findings, we will decide

26 this issue.
 14

1 As we have noted, the district court found that the

2 trooper reasonably believed that Defendant's vehicle was in
3 violation of the Pennsylvania Vehicle Code. See supra at 7.
4 Applying the authorization test, we hold that the stop was not

5 unconstitutionally pretextual under the Fourth Amendment because

6 it was authorized under Pennsylvania law. See supra note 2.
7 III. CONCLUSION

8 The suppression order of the district court will be

9 vacated and Defendant's motion to suppress will be remanded to

10 the district court to decide whether the subsequent consent and

11 search were valid.

12