United States v. Bonner

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

3-30-2004

USA v. Bonner
Precedential or Non-Precedential: Precedential

Docket No. 03-1547

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 PRECEDENTIAL W. Penn Hackney, Esq.
Karen S. Gerlach, Esq.
UNITED STATES COURT OF Lisa B. Freeland, Esq. (Argued)
APPEALS Office of Federal Public Defender
FOR THE THIRD CIRCUIT 1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
No. 03-1547
Counsel for Appellee

UNITED STATES OF AMERICA,
OPINION
Appellant

v. COWEN, Circuit Judge.

JERMANE E. BONNER Jermane Bonner fled from police
after the car in which he was a passenger
was stopped for a routine traffic violation.
On Appeal from the United States The police gave chase and, upon
District Court apprehending him, discovered that he was
for the Western District of Pennsylvania carrying crack cocaine. The government
(D.C. Criminal No. 02-cr-00046) prosecuted Bonner for possession with the
District Judge: Hon. Gary L. Lancaster intent to distribute 50 grams or more of
crack cocaine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A)(iii). The District
Argued September 16, 2003 Court suppressed all evidence seized
during the stop including the drugs. This
BEFORE: MC KEE, SMITH and appeal by the government followed.
COWEN, Circuit Judges
In suppressing the evidence, the
(Filed: March 30, 2004) District Court held that the officers lacked
a reasonable, articulable suspicion that
Mary Beth Buchanan, Esq. Bonner was involved in criminal activity.
Bonnie R. Schlueter, Esq. (Argued) The District Court reasoned that the sole
Office of United States Attorney basis for the stop was Bonner’s flight from
700 Grant Street police, and that under Illinois v. Wardlow,
Suite 400 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed.
Pittsburgh, PA 15219 570 (2000), and its progeny, mere flight
when police appear on the scene is not
Counsel for Appellant sufficient to estab lish reasonable
suspicion.
 We will reverse. Under the facts of the patrol car, driving in the direction
this case we hold that the officers had Bonner was running, then parked and
reasonable suspicion to stop Bonner. continued the chase on foot.
Although flight alone is not enough to
justify a police stop, this is not a case of Officer English eventually caught
flight upon noticing police. The officers in Bonner by tackling him. Both officers
this case were effectuating a legitimate then subdued and handcuffed Bonner.
traffic stop. During a traffic stop, police While subduing him, Officer English
officers m ay exercise reasonable observed a clear plastic bag in Bonner’s
superintendence over the vehicle, its hand. The bag contained seven golf ball
driver, and passengers. Because Bonner sized rocks, which were later tested and
prevented the police from maintaining found to be crack cocaine. The officers
oversight and control over the traffic stop also seized $534.25 from Bonner during
by fleeing, we hold that the police had the arrest.
reasonable suspicion to stop him.
The driver and other passenger
I were told to put the vehicle in park, turn
off the ignition, and step out of the vehicle.
On March 8, 2001, Officers Both were handcuffed and detained for a
Harbaugh, English, Stewart, and Sweeney brief period of time, then released with a
were in uniform and on duty at the police citation for the traffic violations.
security booth at the entrance to the
Ohioview Acres housing project in Stowe We have jurisdiction under 18
T o w nship , Pen nsylv ania . At U.S.C. § 3731, and conduct plenary review
approximately 11:40 p.m., Officer of the District Court’s determination that
Harbaugh noticed a sports utility vehicle the officers did not have reasonable
leaving the housing project that had one suspicion to stop Bonner. Ornelas v.
headlight out and an expired inspection United States, 517 U.S. 690, 116 S. Ct.
sticker. He signaled for the vehicle to 1657, 134 L. Ed. 2d 911 (1996); United
stop. The driver, Nathan Stewart, States v. Valentine, 232 F.3d 350 (3d Cir.
complied. In addition to the driver, there 2000). We review the District Court’s
were two passengers: the driver’s brother, findings of fact for clear error. Ornelas,
Neil Stewart, in the back seat and Jermane 517 U.S. at 698, 116 S. Ct. at 1663.
Bonner in the front passenger seat.
II
As Officer Harbaugh approached
the driver’s side of the vehicle, Bonner As a preliminary matter, the
alighted and ran. Officer Stewart chased government challenges the District Court’s
after him on foot, repeatedly yelling for findings that the area was not a high crime
him to stop. Officer English gave chase in area, and that the hour of the stop, 11:40

2
pm, was not significant to the reasonable U.S. 106, 109, 98 S. Ct. 330, 332, 54 L.
suspicion inquiry. In support of its Ed. 2d 331 (1977). It is also well settled
contention that the Ohioview Acres that a police officer executing such a stop
housing project was a high crime area, the may exercise reasonable superintendence
government submitted a log book of over the car and its passengers. Under
arrests made at the housing project over a Mimms, the officer may order the driver
three-year period. As the District Court out of the vehicle without any
found, the log book reflected that there particularized suspicion. Mimms, 434
was an average of 1.3 arrests per week, U.S. at 110-11, 98 S. Ct. at 333. The
and that most of the arrests were for Supreme Court extended that bright line
misdemeanors and summary offenses. rule to allow the officer to order any
Considering the number of people who passengers out of the car as well.
live in the housing project, the District Maryland v. Wilson, 519 U.S. 408, 117 S.
Court found that this average reflected Ct. 882, 137 L. Ed. 2d 41 (1997).
neither a high crime area nor trafficking in Alternatively, the officer may order all of
narcotics. The government contends this the occupants to remain in the car with
finding was clearly erroneous, and points their hands up. United States v.
to a news article as further evidence of the Moorefield, 111 F.3d 10 (3d Cir. 1997).
level of crime present in the area. Even In addition, the officer may pat down the
considering the news article, however, the occupants of the vehicle and conduct a
evidence does not compel the conclusion search of the passenger compartment, if he
that the District Court erred in finding that has a reasonable suspicion that the
the housing project was not a high crime occupants might be armed and dangerous.
area. The District Court found that the Michigan v. Long, 463 U.S. 1032, 1049-
stop did occur at 11:40 p.m., but did not 50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d
consider that factor relevant to its analysis 1201 (1983) (permitting search of vehicle
of whether there was reasonable suspicion during traffic stop); Mimms, 434 U.S. at
for the stop. The evidence does not 111-112, 98 S. Ct. at 334 (permitting pat
compel a different conclusion. We down of driver upon reasonable
conclude that the fact finding by the suspicion); Terry v. Ohio, 392 U.S. 1, 17,
District Court was not clearly erroneous. 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889
(1968); Moorefield, 111 F.3d at 13-14
III (permitting pat down of passenger upon
reasonable suspicion).
It is uncontested that the initial
traffic stop was lawful under the Fourth The government asserts that the
Amendment. A police officer who police officers ordered Bonner and the
observes a violation of state traffic laws other occupants to stay in the vehicle. At
may lawfully stop the car committing the the suppression hearing, however, there
violation. Pennsylvania v. Mimms, 434 was conflicting testimony whether the

3
officers said anything before Bonner ran. its progeny, an officer may conduct a brief,
The District Court made no finding with investigatory stop when that officer has “a
respect to what, if anything, the officers reasonable, articulable suspicion that
said before Bonner got out of the vehicle criminal activity is afoot.” Illinois v.
and ran. We will assume for the purpose Wardlow, 528 U.S. 119, 123, 120 S. Ct.
of this opinion that the officers did not 673, 675, 145 L. Ed. 2d 570 (2000).
issue any commands before Bonner began Although reasonable suspicion is less
running. But even absent a specific demanding than probable cause, the Fourth
command, it is undisputed that Bonner, an Amendment does require that an officer
occupant of the stopped vehicle, ran from making a stop have some level of objective
the scene of a legitimate traffic stop justification for that stop. United States v.
without authorization or consent of the Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,
officers. During such a stop, a police 1585, 104 L. Ed. 2d 1 (1989). In
officer has the authority and duty to evaluating whether a particular stop was
control the vehicle and its occupants, at justified, courts must look at the totality of
least for a brief period of time. 1 Bonner the circumstances surrounding the stop.
prevented Officer Stewart from controlling Sokolow, 490 U.S. at 8, 109 S. Ct. at 1586
the stop by running from the vehicle (quoting United States v. Cortez, 449 U.S.
before the purpose of the stop was even 411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d
announced. 621(1981)). In effectuating a valid stop,
police officers are allowed to use a
Under Terry v. Ohio, 392 U.S. 1, 88 reasonable amount of force. Graham v.
S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Connor, 490 U.S. 386, 109 S. Ct. 1865,
104 L. Ed. 2d 443 (1989). Bonner argues
that flight, standing alone, is not sufficient
1 to engender reasonable suspicion on the
The Supreme Court has never
part of a police officer. Indeed, the
addressed the question of whether, during
Supreme Court has never held that
a lawful traffic stop, the police could
unprovoked flight alone is enough to
detain any passengers for the entire
justify a stop. The Supreme Court has
duration of the stop. Indeed, the Court
held, however, that flight upon noticing
explicitly left that question open when it
police, plus some other indicia of
held that the police could order passengers
wrongdoing, can constitute reasonable
out of the car during a stop. Maryland v.
suspicion. Wardlow, 528 U.S. at 125-26,
Wilson, 519 U.S. 408, 415 n. 3, 117 S. Ct.
120 S. Ct. at 676-77. The “plus” factor
882, 886 n. 3, 137 L. Ed. 2d 41 (1997).
was Wardlow’s mere presence in an area
That question is not before us, as Bonner
known for high narcotics trafficking.
fled before the purpose of the stop was
Wardlow, 528 U.S. at 124, 120 S. Ct. at
announced, and before the police could
676. In holding that flight plus presence in
exercise the initial control authorized by
a high crime area justified the stop, the
Wilson and other cases.

4
Court explained, “the determination of Terry, 392 U.S. at 34, 88 S. Ct. at 1886
reasonable suspicion must be based on (White, J. concurring)). Moreover, a
commonsense judgments and inferences refusal to cooperate with the police in a
about human behavior.” Wardlow, 528 consensual encounter, without more,
U.S. at 125, 120 S. Ct. at 676. cannot constitute reasonable suspicion for
a stop. Florida v. Bostick, 501 U.S. 429,
In Wardlow, eight officers in a 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d
four-car caravan converged on a 389 (1991) (citations omitted).
neighborhood known for high narcotics
trafficking. Upon arriving in the area, two In this case, however, Bonner did
of the officers noticed the defendant not simply flee upon “noticing” police, nor
standing near a building, holding a bag. did he simply refuse to cooperate during a
The defendant looked in the direction of consensual encounter. Bonner fled from a
the officers and then fled. Wardlow, 528 lawful traffic stop, before the officers had
U.S. at 122, 120 S. Ct. at 675. Before he the chance to announce the purpose of the
ran, the officers had no reason to suspect stop. He continued fleeing despite
the defendant of any wrongdoing, and had repeated orders to stop, and he did not stop
no legitimate cause to detain him; the running until he was tackled by Officer
defendant simply fled from the possibility English. Bonner’s flight from a lawful
of a consensual encounter with the police. police traffic stop, where that flight
prevented the police from discharging their
Mere presence in an area known for duty of maintaining oversight and control
high crime does not give rise to reasonable over the traffic stop, provided the officers
suspicion for a stop. Brown v. Texas, 443 with reasonable suspicion to stop Bonner
U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. for further investigation. Flight from a
Ed. 2d 357 (1979). Police officers may non-consensual, legitimate traffic stop (in
approach individuals without reasonable which the officers are authorized to exert
suspicion or probable cause, and may superintendence and control over the
question such individuals without occupants of the car) gives rise to
implicating the Fourth Amendment. reasonable suspicion.
Florida v. Royer, 460 U.S. 491, 497, 103
S. Ct. 1319, 1324, 75 L. Ed. 2d 229 IV
(1983). An individual approached in this
manner “need not answer any question put By reason of Bonner’s flight in the
to him; indeed, he may decline to listen to course of a legitimate traffic stop, the
the questions at all and may go on his officers had reasonable suspicion to stop
way.” Royer, 460 U.S. at 498, 103 S. Ct. him. Upon effectuating the stop the drugs
at 1324 (citing Terry v. Ohio, 392 U.S. 1, were revealed, giving probable cause to
32-33, 88 S. Ct. 1868, 1885-86 20 L. Ed. arrest. The judgment of the District Court
2d 889 (1968) (Harlan, J. concurring); entered on February 12, 2003, will be

5
reversed. The case will be remanded to
the District Court for further proceedings
consistent with this opinion.

United States v. Bonner, No. 03-1547 because I believe these alternatives require
the D istrict Court to conduct
Smith, Concurring.
fundamentally different inquiries, even
Because I agree that “flight from a though the evidence offered for both may
non-consensual, legitimate traffic stop (in be overlapping or even identical.
which the officers are authorized to exert
Here, the District Court found that
superintendence and control over the
“the government has not shown by a
occupants of the car) gives rise to
preponderance of the evidence that Ohio
reasonable suspicion,” I join Judge
View Acres is such an area.” After
Cowen’s opinion in full. Maj. op. at 5. I
reviewing the relevant evidence, the
write separately only to highlight an issue
District Court declared that evidence
implicated in the District Court’s fact-
“hardly makes Ohio View Acres a heavy
finding which we have not been required
crime and narcotics trafficking area.”
to address: whether under the flight “plus”
analysis of Wardlow, 528 U.S. 119, the What I am concerned about in these
government is required to prove the Wardlow-type cases is the fact-finder’s
existence of objective criteria for what focus: should it be that of a federal judge,
constitutes a high crime area and that the operating within the confines of a
stop occurred in such an area, or rather that courtroom, who believes the area to be one
the government is required to prove that of high crime, or that of a police officer
officers effecting the stop had a reasonable who, based on experience and an
articulable basis to believe that they were awareness of crime and arrest data, had a
in a “high crime area.” 2 I point this out

in which there is a high volume of crime,
2
Judge Cowen describes this factor as but does not qualify as a “high narcotics
whether the area was a “high crime area.” trafficking area.” Because the test should
Maj. op. at 2. The District Court’s be the same for either analysis, however,
analysis, however, was more limited and the distinction is not material for purposes
addressed only whether this was a “high of this concurrence. For purposes of
narcotics trafficking area.” As there are continuity, then, I adopt Judge Cowen’s
many crimes which do not involve articulation of the question–whether the
narcotics trafficking, an area could be one area was a “high crime area.”

6
basis to form a reasonable articulable their own experience and specialized
belief that it is such an area?3 Obviously, training to make inferences from and
the differences in focus are not only dedu ctions abou t the cu mu lative
differences of experience and perspective. information available to them that might
A judge engaged in adjudicative fact- well elude an untrained person.”) (internal
finding will apply standards of credibility quotation marks omitted); Ornelas v.
and proof that differ from the cognitive United States, 517 U.S. 690, 699 (1996)
processes of an officer acting in the field. (reviewing court must give the appropriate
weight to factual inferences drawn by local
law enforcement officers). In the same
The touchstone of Terry v. Ohio is
way, an officer is in the position to know
its requirement that a court consider
the routines and patterns of a geographic
whether “the facts available to the officer
area, and whether it is more prone to
at the moment of the seizure or the search
crime. This knowledge may not be
‘warrant a man of reasonable caution in
reflected on arrest records and log sheets,
the belief’ that the action taken was
as arrests are not the only indicia of crime.
appropriate[.]” 392 U.S. at 21-22 (1968)
In any case, we need not resolve the issue
(citing Carroll v. United States, 267 U.S.
here.
132 (1925); Beck v. Ohio, 379 U.S. 89, 96-
97 (1964)). As explained by the Supreme I agree that the evidence offered by
Court in United States v. Cortez, 449 U.S. the government does not compel the
411, 418 (1981), an officer’s suspicion that conclusion that the District Court erred in
criminal activity is afoot may be informed finding that Ohio View Acres was not a
by “various objective observations, high crime area. And even if the District
information from police reports, if such are Court were required to determine whether
available, and consideration of the modes the officers had a reasonable articulable
or patterns of operation of certain kinds of basis to believe it was a high crime area,
lawbreakers. From these data, a trained such a finding would contribute nothing to
officer draws inferences and makes the result here because the government has
deductions–inferences and deductions that demonstrated flight “plus” by other
might well elude an untrained person.” evidentiary means.
See also United States v. Arvizu, 534 U.S.
Finally, although I join Judge
266, 274 (2002) (officers may “draw on
Cowen in reversing the District Court, I
echo the sentiments of Judge McKee
3 expressed in Part III of his dissent.
Wardlow did not resolve this issue
because it appears that in that case there It should be a rare occasion when
was no dispute that the stop took place in judges criticize, and thereby intrude into, a
a high crime area. In the case before us, legitimate exercise of prosecutorial
the District Court did confront a factual discretion. Nor should we routinely
dispute on this issue.

7
question in our opinions the policy Court precedent compels us to affirm the
decisions of Congress to federalize what district court’s order suppressing the
has traditionally been state law street evidence that was seized in this case.
crime. Our institutional role as judges is Moreover, although I do not think the
limited by our jurisdiction and by the circumstances here establish a Terry stop,
comity and respect we owe to coordinate I do agree that we must begin our analysis
branches of government. with the Supreme Court’s decision in
Terry.
That being said, the instant case
presents a series of events which the I. Terry v. Ohio
dissent characterizes as a prosecutorial
In Terry, the Supreme Court held
“switcheroo.” I cannot disagree with that
that a police officer may approach an
characterization, and I share the “concern
individual “for purposes of investigating
for the appearance of fairness” expressed
possibly criminal behavior even though
by Judge McKee. It is one thing for the
there is no probable cause to make an
government to assume an investigation
arrest,” and briefly detain him/her in order
initiated by state law enforcement
to fulfill “[a] legitimate investigative
officials, or even to adopt a prosecution
function [.]” 392 U.S. at 22.
commenced by state prosecutors. It is
quite another to seek a federal indictment The police officer in Terry
where the federal interest in the case is approached and briefly detained two
recognized only after state prosecutors individuals after observing their suspicious
have given the case their best shot in the behavior from a distance and concluding
state courts and lost on an issue of state that they were casing a store that they were
law. Not only does such a tactic offend about to burglarize. The Terry Court held
fundamental notions of fairness, it is that the Fourth Amendment allowed the
contrary to traditional notions of our officer to briefly detain them in order to
federalism. conduct a brief investigation into their
suspicious behavior. Since the
individuals’ actions also suggested that
U.S. v. Bonner, No. 03-1547 they might be armed, the Court also
concluded that the Fourth Amendment
McKee, Dissenting
allowed the officer “to conduct a carefully
I must respectfully dissent, because limited search of the outer clothing . . . in
I believe the majority’s analysis is an attempt to discover weapons which
inconsistent with Terry v. Ohio, 392 U.S. might be used to assault [the officer].” Id.
1 (1968), and Illinois v. Wardlow, 528 at 30. The Court explained:
U.S. 119 (2000). Although I view this
The actions of [th e
case a bit differently than the district court,
defendants] were consistent
I nevertheless conclude that Supreme
with the officer’s hypothesis

8
 that these men were content than that required to
c o n t e m p l a t in g a establish probable cause, but
daylight robbery - - also in the sense that
which, it is reasonable suspicion can
reasonable to arise from information that
assume, would be is less reliable than that
likely to involve the required to show probable
use of weapons - - cause.
and nothing in their
conduct from the
time he first noticed Id. (internal quotation marks omitted)
them until the time (quoting Alabama v. White, 496 U.S. 325,
he confronted them 330 (1990)). Accordingly, absent probable
and identified cause, an individual’s detention must be
himself as a police supported by “reasonable, articulable
officer gave him suspicion that criminal activity is afoot.”
sufficient reason to Illinois v. Wardlow, 528 U.S. 119, 123
nega te that (2000). However, Bonner was “detained”
hypothesis. after the vehicle he was riding in was
stopped for a traffic infraction, and the
Supreme Court has allowed greater
Id. at 28. latitude in the context of traffic stops.
Therefore, “under Terry v. Ohio and A. Terry applied to traffic stops
subsequent cases, ‘an officer may,
Terry was first implicated in the
consistent with the Fourth Amendment,
context of a lawful traffic stop in
conduct a brief, investigatory stop if the
Pennsylvania v. Mimms, 434 U.S. 106
officer has a reasonable, articulable
(1977). There, a police officer legally
suspicion that criminal activity is afoot.’”
stopped a car for a traffic violation and
United States v. Valentine, 232 F.3d 350,
ordered the driver to get out. The officer
353 (3d Cir. 2000) (internal citation
was not motivated by any particularized
omitted). The Supreme Court has
suspicion in doing so; rather, it was the
explained that:
officer’s policy to order drivers out of their
Reasonable suspicion is a cars “as a matter of course whenever they
less demanding standard had been stopped for a traffic violation.”
than probable cause not only Id. at 109-10. Once the driver was out of
in the sense that reasonable the car, the officer noticed a bulge under
suspicion can be established the driver’s jacket and the officer
with information that is immediately conducted a “pat-down”
different in quantity or search because he believed the bulge was

9
a weapon. Id. at 111-12. As a result of that minimal additional intrusion. Id. at 413-14.
search, a gun was seized, and the In addition, “the fact that there is more
defendant was thereafter arrested. than one occupant of the vehicle increases
the possible sources of harm to the
The Supreme Court held that the
officer.” Moreover, “the motivation of a
search did not violate the Fourth
passenger to employ violence to prevent
Amendment. The Court reasoned that
apprehension. . . is every bit as great as
considerations of safety justified allowing
that of the driver.” Id. at 414.
police to order drivers to get out of their
vehicles during lawful traffic stops B. Bonner was not detained under
because weapons could be concealed Terry
inside the vehicle in easy reach of the
The majority’s analysis assumes
driver. Since police could lawfully order
that we are confronted with a Terry stop,
the driver out of the vehicle, the Court
and the district court ultimately analyzed
concluded that, under Terry, the officer
the detention under Terry. However, after
was “justified in conducting a limited
reviewing the transcript of the suppression
search for weapons once he had reasonably
hearing, it is clear to me that the police
concluded that the person whom he had
officers who “stopped” Bonner were not
legitimately stopped might be armed and
basing their actions on any reasonable,
presently dangerous.” Id.
articulable suspicion as is required under
The Court extended the rule of Terry. They certainly never were able to
Mimms to include passengers of lawfully explain their conduct by establishing any
stopped vehicles in Maryland v. Wilson, such suspicion despite having every
519 U.S. 408 (1997). There, as in Mimms, opportunity to do so during the
a traffic violation created the grounds to suppression hearing. I think it telling that,
legally stop an automobile. The police at the very beginning of the suppression
ordered the passenger out of the car as a hearing, the district court asked the
precaution, not because of any suspicion of government if Bonner was searched
illegality. The Wilson Court had no pursuant to a Terry stop. The court
difficulty concluding that the same inquired: “I understand that this is a
considerations of safety present when warrantless search; is that a Terry v. Ohio
drivers are ordered to get out of a stopped search?” App. at 127. The government’s
vehicle outweighed the minimal intrusion response did not confirm a Terry stop.
on any passenger who is ordered out of a Rather, counsel stated: “This was a search
car that has been legally stopped for a incident to arrest.” Id.
traffic infraction. Id. at 414. The Wilson
It is not surprising that the
Court found that, “as a practical matter, the
government did not argue Terry initially
passengers are already stopped by the
because the testimony that the government
virtue of the stop of the vehicle,” and the
produced at the suppression hearing did
order to get out of the car creates only a

10
not establish a Terry stop. Rather, the findings only when they are clearly
testimony was consistent with, but fell erroneous, i.e. when they are “completely
short of establishing, a search incident to a devoid of a credible evidentiary basis or
valid arrest. The seizure can not be
justified on that basis because the
testimony failed to establish probable
between establishing that an area is a “high
cause for an arrest other than mere flight.
crime area” versus establishing an officer’s
See United States v. Myers, 308 F.3d 251,
good faith belief that it is one. I do not
265-66 (3d Cir. 2002).4
suggest that the district court was correct
When Officer English was asked to the extent that it required the
why he chased Bonner he responded: government to prove that the area is
“They were exiting a high crime area, actually “a high crime area” by a
known trafficking (sic), and the officers preponderance of the evidence. Rather,
informed the Defendant to stop and get the inquiry must be the subjective belief of
back into the vehicle, and he failed to the arresting officer. However, it is clear
comply with the officer’s orders.” App. at under Terry that the subjective belief must
148. However, the district court rejected be objectively reasonable. Hill v.
the testimony that Bonner was ordered California, 401 U.S. 797 (1971). Absent
back into the car as well as the officer’s more than was offered at the suppression
testimony about a “high crime area” or one hearing, the district court’s inquiry
known for “narcotics trafficking.” Id. at undermined the objective reasonableness
17.5 We reverse the district court’s factual of any subjective belief that the area in
question was a “high crime” area or known
for “narcotics trafficking.”
4
Despite its initial inquiry into a search Moreover, I think that the
incident to arrest, the district court did requirement of an objectively reasonable
base its ruling on Terry. App. at 18-19 belief addresses Judge Smith’s concern
(“Bonner’s flight alone is insufficient to that such determinations are being made
create a reasonable articulable suspicion by judges in the comfort of their
that he was involved in criminal activity. . courtrooms rather than by officers in the
. . Because this court finds that the streets. See Concurring Op. at 2. Although
government failed to meet its burden of proper deference must be afforded to the
showing Bonner’s stop was supported by training, experience, and knowledge of
a reasonable articulable suspicion of police officers, as well as the trying
criminal conduct, the stop and seizure c i r c u ms t a n c e s f a c i n g t h em, th e
violated Bonner’s Fourth Amendment Constitution does not allow us to abdicate
rights.”). our responsibilities in favor of their
judgments simply because we are
5
In his concurring opinion, Judge operating within the comfortable confines
Smith correctly notes the distinction of a courtroom or appellate chambers.

11
bear no rational relationship to the had him in a grasp around
supporting data.” 6 Here, the district the waist; he continued to
court’s findings of fact are clearly try to get up and get away
supported by the record. from me. . . . I informed
him numerous times to place
There was conflicting testimony
his hands behind his back
about whether the officers said anything to
and quit resisting.
Bonner before he ran, and the court
discredited the officers’ conflicting App. at 149. The officer was then asked
testimony that they did. Id. at 15. Thus, as whether or not it was necessary to forcibly
Judge Smith summarizes in his concurring place Bonner’s hands behind his back and
opinion, the issue before us may be Officer English confirmed that he was able
distilled as whether “flight from a non- “to subdue the Defendant” together with
consensual, legitimate traffic stop . . . [by Officer Sweeney and Officer Stewart. Id.
itself] gives rise to reasonable suspicion.” Therefore, the district court was quite
See Concurring Op. at 1, and Maj. Op. at correct in stating: “The only pertinent
9. factor is Bonner’s flight.” App. at 18.
Bonner was chased, tackled and The majority states that Officer
handcuffed simply because he ran. That is English observed a plastic bag in Bonner’s
abso lutely cons istent w ith Officer hand “[w]hile subduing him.” Maj. Op. at
English’s testimony at the suppression 4. However, Officer English actually
hearing. Officer English was asked the stated that he did not see the bag until after
following question: “[T]he reason M r. Bonner had been handcuffed. Officer
Bonner was being chased was because he English stated that after he was finally able
started running, correct?” The officer to subdue Bonner, the officers discovered
responded: “That’s the reason the initial that “he was clutching a plastic baggie. .
chase was started, I believe.” App. at 153. .”. App. at 149. The other officer, Officer
Officer English described the stop as Stewart, was never asked when he first
follows: saw the baggie that Bonner was clutching.
The only relevant testimony on this record
I eventually caught up with
is English’s testimony that he noticed the
the Defendant, and we fell
bag after Bonner was subdued, not before
to the ground. . . . The
or while he was being subdued. Officer
Defendant continued to try
Stewart testified that he saw Officer
to get up away from me. I
English take something out of Bonner’s
hand “[a]fter he was in handcuffs.” App.
6 at 136.
United States v. Taftsiou, 144 F.3d
287, 293 (3d Cir. 1998); see also United “It is the state’s burden to
States v. Perez, 280 F.3d 318, 336 (3d Cir. demonstrate that the seizure it seeks to
2002).

12
justify on the basis of the reasonable 392 U.S. at 24. Nevertheless, the Court
suspicion was sufficiently limited in scope remained cognizant of “the nature and
and duration to satisfy the conditions of an quality of the intrusion” of the person
investigative seizure.” Florida v. Royer, detained. Id. It concluded that the
460 U.S. 491, 500 (1983). Terry, like authority conferred on the Fourth
Mimms and Wilson, recognized that Amendment for a brief detention must be
officers who briefly detain individuals for “narrowly drawn. . . to permit a reasonable
investigation based upon articulable search for weapons for the protection of
suspicion need to protect themselves and the police officer, where he has reason to
that concerns for the safety of the officer believe that he is dealing with an armed
and others justify certain limited steps and dangerous individual, regardless of
consistent with that concern. The Terry whether he has probable cause to arrest the
Court explained: individual for the crime.” Id. at 27. Thus,
“[t]he manner in which the seizure and
[W]e can no t blind
search were conducted is . . . as vital a part
ourselves to the need for law
of the inquiry as whether they were
enforcement officers to
warranted at all.” Id. at 28.
protect themselves and other
prospective victims of As noted above, the Mimms Court
violence in situations where held that police may order the driver of a
they may lack probable lawfully stopped automobile to step out of
cause for an arrest. When the car for the officer’s own protection,
an officer is justified in stating that “a significant percentage of
believing that an individual murders of police officers occurs when the
whose suspicious behavior officers are making traffic stops.” 434 U.S.
he is investigating at close 106, 110 (1977) (internal citation and
range is armed and quotation marks omitted). The danger is
dangerous to the officer or reduced with only minimal additional
to others, it would appear to intrusion by allowing officers to “control”
be clearly unreasonable to the situation to the extent of ordering
deny the officer the power occupants out of the car. “Establishing a
to take necessary reasonable face-to-face confrontation diminishes the
measures to determin e possibility, otherwise substantial, that the
whether the person is in fact driver,” or passenger, “can make
carrying a weapon and to unobserved movements; this, in turn,
neutralize the threat of reduces the likelihood that the officer will
physical harm. be the victim of an assault.” Id. “The risk
of harm to both the police and the
occupants is minimized if the officers
routinely exercise unquestioned command

13
of the situation.” Michigan v. Summers, the suppression court that was precisely
452 U.S. 692, 702-03 (1981) (internal the justification for the search. However,
citation omitted). 7 absent probable cause to arrest Bonner, the
search can not be sustained as a search
However, my colleagues have
incident to an arrest. United States v.
severed the rule from its analytical
Myers, 308 F.3d 251, 265-66 (3d Cir.
moorings. They are applying the rule here
2002). Moreover, even if we view this as
even though the police did not even
a Terry stop, I would still conclude that the
attempt to explain their actions in terms of
district court’s suppression order was
any perceived threat from Bonner getting
correct because there is nothing to
out of the car and any danger arose from
establish reasonable suspicion but
chasing, tackling, and subduing an
Bonner’s flight.
occupant of a stopped vehicle who was
merely trying to leave. Of course, I do not In addition, as noted above, the
mean to suggest that flight necessarily scope and duration of the detention
eliminates the danger the Court was authorized under Terry must be consistent
concerned with in Terry, Mimms or with the articulable suspicion underlying
Wilson. However, I think it a stretch to the detention; that is the sine qua non of
equate law enforcement’s need to control Terry. It is the basis for eliminating the
a driver or passenger with the officers’ requirement of probable cause before
need to control Bonner here. Officer detaining someone. As the Court stated in
English clearly testified that Bonner was Florida v. Royer, 460 U.S. 491, 500
chased and handcuffed because he ran (1983), “an investigative detention must
away from a stopped car. No other be temporary and last no longer than is
justification is offered, except by my necessary to effectuate the purpose of the
colleagues. Accordingly, I believe this stop. Similarly, the investigative methods
seizure can only stand only if it can be employed should be the least intrusive
justified as a search incident to a valid means reasonably available to verify the
warrantless arrest. officer’s suspicions in a short period of
time.” Terry does not authorize police to
The government no doubt realized
chase, tackle and handcuff one who runs
this and therefore, as explained above, told
away from them based solely on flight.
Moreover, I do not believe other precedent
can support that level of intrusion either.
7
In United States v. Moorefield, 111
F.3d 10, 12-13 (3d Cir. 1997), we held that II. Detention Based on Flight Alone
police could order a passenger in a To determine if Bonner was
lawfully stopped car to remain inside with legitimately detained based solely on his
his/her hands in the air based upon the flight, we must examine two Supreme
same considerations of safety relied upon Court cases regarding an individual’s right
in Mimms and Wilson.

14
to walk away from police officers; Florida person who is no more than suspected of
v. Royer, 460 U.S. 491 (1983), and Illinois criminal activity, the police may not carry
v. Wardlow, 528 U.S. 119 (2000). out a full search of the person. . . . Nor
may the police seek to verify their
A. Florida v. Royer
suspicions by means that approach the
In Royer, the Supreme Court held conditions of arrest.” Id. (citing Dunaway
that there is no obligation to submit to v. New York, 442 U.S. 200, 207-09
inquiries when approached by police. The (1979)).
Court also held that refusal to submit to
The majority notes that Bonner was
police questioning or cooperate with a
the occupant of a stopped vehicle who “ran
police inquiry does not, without more,
from the scene of a legitimate traffic stop
furnish the necessary grounds for
without authorization or consent of the
detention. 460 U.S. at 497-98.
officers,” and assume that analysis under
Prior to Terry v. Ohio [], Mimms and Wilson is appropriate. Maj.
any restraint on the person Op. at 6 (emphasis added). However,
amounting to a seizure for under Royer, it is irrelevant that Bonner
the purposes of the Fourth left the vehicle without the police officers’
Amendment was invalid authorization. Royer did not condition an
unless justified by probable individual’s right to go on his/her way on
cause. Terry created a first obtaining police permission. In fact,
limited exception to this conditioning the right to leave a police
general rule: search and inquiry on the street on obtaining
seizures are justifiable under “authorization or consent” would totally
the Fourth Amendment if negate Royer’s holding. As the majority
there is articulable suspicion correctly notes, a refusal to cooperate with
that a person has committed the police in a consensual encounter,
or is about to commit a without more, can not co nstitute
crime. reasonable suspicion for a stop. Maj. Op.
at 9 (quoting Florida v. Bostick, 501 U.S.
429, 437 (1991)).
Id. at 498 (citations omitted).
The difficulty with analyzing this
Thus, the Royer Court reinforced case stems not from Royer but from
the fact that Terry did not create a license Illinois v. Wardlow, 528 U.S. 119 (2000).
to detain for investigation in the absence The Court’s language there creates some
of articulable suspicion. The Court also tension with its prior holding in Royer
stressed that “[d]etentions may be even though the Wardlow Court was
‘investigative’ yet violative of the Fourth careful to explicitly reaffirm the holding in
Amendment absent probable cause.” Id. at Royer.
499. “In the name of investigating a

15
 B. Illinois v. Wardlow c i r c u m s ta n c e s , a l l o w i n g o f f i c e rs
“confronted with such flight to stop the
In Wardlow, the Court held that
fugitive and investigate further is quite
police properly conducted a Terry stop of
consistent with the individual’s right to go
an individual who fled after looking in the
about business or to stay put and remain
direction of an approaching police caravan
silent in the face of police questioning.”
in “an area known for heavy narcotics
Id. at 125. “It was in this context that
trafficking.” 528 U.S. at 121. The Court
[police] decided to investigate Wardlow
summarized Royer as holding “that when
after observing him flee.” Id. at 124
an officer, without reasonable suspicion or
(emphasis added). When the pursuing
probable cause, approaches an individual,
police officer caught Wardlow, he
an individual has a right to ignore the
immediately conducted a “pat-down search
police and go about his business.” Id. at
for weapons. . . because in his experience,
125. However, the Court also noted that
it was common for there to be weapons in
flight is one of the circumstances that must
the near vicinity of narcotics transactions.”
be considered under Terry. Id. In doing
Id. at 121-22.
so, however, the Court reiterated that “any
refusal to cooperate, without more, does The context here is quite different,
not furnish the minimal level of objective and we should not be so quick to ignore
justification needed for a detention or the Supreme Court’s pronouncement in
seizure.” Id. (quoting Florida v. Bostick, Royer that one who is approached by
501 U.S. 429, 437 (1991)). police “need not answer any question put
to him; he may decline to listen to the
A close reading of the Court’s
questions at all and may go on his way.”
opinion in Wardlow resolves any apparent
Royer, 460 U.S. at 498 (citing Terry v.
tension. It was not Wardlow’s flight that
Ohio, 392 U.S. 1, 32-33 (1968)). Of
justified his detention. Rather, it was
course, Bonner did not walk away; he ran.
flight in context with the other
The Court in Wardlow noted that running
circumstances in that case. The
away is more consistent with guilt than
circumstances included the fact that police
with going about one’s business. 528 U.S.
were “patrolling an area known for heavy
at 125 (“[U]nprovoked flight is simply not
narcotics trafficking.” Id. at 121. In fact,
a mere refusal to cooperate. Flight, by its
the police were traveling in a caravan
very nature, is not ‘going about one’s
“because they expected to find a crowd of
business’; in fact, it is just the opposite.”).
people in the area, including lookouts and
That was clearly true in Wardlow’s case
[drug] customers.” Id. As the police
because the area where he was found, the
caravan approached Wardlow, police saw
drug activity there and the bag in his hand
him look at them and run, holding a bag as
combined with his flight to create the
he fled. Given the context, police could
articulable suspicion required under Terry.
reasonably conclude that he was a drug
Here, there is only flight, and my
dealer, purchaser, or lookout. Under those

16
colleagues concede that “the Supreme see the importance of whether the purpose
Court has never held that unprovoked of the stop had been announced or not as
flight alone is enough to justify a stop.” the majority’s analysis would surely be the
Maj. Op. at 8. same if Officer Stewart had announced the
purpose of the stop. Moreover, an
I doubt that the Court in Wardlow
individual who exercises his or her
intended to stretch its focus on running to
constitutional right to leave a police
the extent that the rule in Royer would be
officer will inevitably prevent the police
swallowed, especially since the Court
officer “from controlling the stop” and
disclaimed any such intent. Thus, I am
completing an investigation. Given the
skeptical that the Supreme Court intended
o f f i c e r s ’ t e s ti m o n y, our Fo u r t h
to announce a rule under Royer and
Amendment inquiry must focus on
Wardlow that would cause the Fourth
Bonner’s flight, not the resultant loss of
Amendment to rest upon the speed with
control or the inability of police to
which one chooses to leave an officer’s
announce the reason for the stop.
presence. Under such a rule the
fundamental guarantees of the Fourth Bonner could have been briefly
Amendment would vary with a suspect’s detained inside of the vehicle, and he
gait. Until the Supreme Court announces could also have been detained pursuant to
such a rule, I am not willing to conclude an order to step outside of the vehicle. In
that someone in Bonner’s situation is free both situations, the detention would be
to walk away from a lawfully stopped justified by very real concerns about the
vehicle, but not free to walk too quickly officers’ safety. That is not what
away or run. happened. The majority’s focus misses the
point. Absent circumstances that permit
My colleagues repeatedly stress that
the kind of detention authorized by Mimms
“Bonner prevented Officer Stewart from
and its progeny, this case must be analyzed
controlling the stop by running from the
under the more restrictive lens of Terry,
vehicle before the purpose of the stop was
Royer, and Wardlow. Under the precedent
even announced.” Maj. Op. at 7.8 I fail to
of those cases, flight alone does not give
rise to probable cause, or reasonable
suspicion. Similarly, police can not rely
8
See also Maj. Op. at 6-7 (“[A] police upon some undefined and untethered
officer has the authority and duty to notion of “control” to prevent someone
control the vehicle and its occupants”); id from walking away from an interrogation
at 7, n.1 (“. . .Bonner fled before the in the absence of probable cause or
purpose of the stop was announced, and articulable suspicion where circumstances
before the police could exercise the initial
control authorized by Wilson and other
cases.”); id. at 9 (“[Bonner’s] flight duty of maintaining oversight and control
prevented the police from discharging their over the traffic stop. . . .”).

17
do not suggest the safety concerns so Commonwealth of Pennsylvania charged
central to Terry, Mimms and their progeny. Bonner with possession with the intent to
Of course, as I explain above, it is not the distribute crack cocaine as well as several
arresting officers here who attempt to misdemeanors and summary offenses.
explain Bonner’s arrest in terms of Defending himself in the Court of
“control”; it is the majority. The officers Common Pleas, Bonner moved to suppress
quite simply state that Bonner was arrested the physical evidence seized from him
because he ran; and so he was. upon his arrest. He argued that the police
lacked reasonable suspicion to initially
Today we therefore hold that
detain him. Following a hearing on his
“[f]light from a nonconsensual, legitimate
suppression motion, the Court of Common
traffic stop (in which the officers are
Pleas granted Bonner’s motion and
authorized to exert superintendence and
suppressed the evidence that was seized
control over the occupants of the car) gives
from him on November 29, 2001.
rise to reasonable suspicion.” Maj. Op. at
9. This is a troubling resolution of a close The Commonwealth thereafter
and difficult case. Reasonable minds can appealed the court’s suppression order to
easily disagree about the application of the Superior Court. However, the
Wardlow and Royer to the circumstances Commonwealth was not content to wait
here. In the final analysis, it may well be until the state appellate court could
that the Supreme Court will resolve the resolve its appeal. On March 13, 2002,
tension I see between those two cases. Bonner was indicted in federal court for
However, until that day comes, I simply possessing a controlled substance with
can not agree with the majority’s intent to distribute. App. at 4, 9. The
application of Supreme Court precedent. Commonwealth thereafter withdrew its
appeal before the Superior Court of
III. The Procedural Posture of this
Pennsylvania could rule on it.
Prosecution
The state suppression ruling was
There is an additional, and
based upon that court’s interpretation of
troubling aspect of this case that requires a
the Pennsylvania Constitution and the
brief comment. Inasmuch as the
ruling of the district court is, of course,
possession of the controlled substance
based upon the U nited S tates
found in Bonner’s possession after his
Constitution.9 Accordingly, the Rooker-
arrest constituted an offense under both
state and federal law, prosecutors initially
had the option of prosecuting him in state
9
court or in federal court. For reasons not The Pennsylvania Supreme Court has
apparent on this record, prosecutors held that Art. I, § 8 of the Pennsylvania
initially filed state charges and he was Constitution affords greater protection
prosecuted in state court where the than the Fourth Amendment of the United
States Constitution despite the almost

18
Feldman doctrine is not implicated by cooperation and communication between
what can best be described as a state and federal prosecutors who executed
prosecutorial “switchero o.” 10 this hand-off in order to execute an end
Nevertheless, I am still concerned that run around the adverse decision of the
state and federal prosecutors apparently Court of Common Pleas. Although we
chose to shift this case to federal court have jurisdiction here and must exercise it,
while the appeal of the state court’s this procedural history does not reflect
suppression order was pending. I think it well on the criminal justice system and
fair to assume a significant level of undermines the appearance of fairness so
important to its proper functioning. “[T]o
perform its high function in the best way[,]
identical language of the two constitutional ‘justice must satisfy the appearance of
prov isions. See Commonw ealth v. justice.’” In re Murchison, 349 U.S. 133,
Edmunds, 526 Pa. 374, 398 (1991) 136 (1955) (quoting Offutt v. United
(refusing to adopt a good faith exception States, 348 U.S. 11, 14 (1954)). In the
to the warrant requirement as set forth in future, I would hope that concern for the
United States v. Leon, 468 U.S. 897 appearance of fairness will constrain
(1984)). prosecutors from engaging in the kind of
10 unexplained tactical manipulation that
See District of Columbia Court of
appears so evident here.
Appeals v. Feldman, 460 U.S. 462, 482
(1983); Rooker v. Fidelity Trust Co., 263
U.S. 413, 415-16 (1923). See also
Williamson B.C. Chang, Rediscovering the
Rooker Doctrine, 31 H ASTINGS L.J. 1337,
1350 (1980) (“[I]f [federal and state] trial
courts could readily annul the judgments
of each other on the merits, the
prerequisite of finality in the judicial
system would be destroyed.”); 18 JAMES
W M. M OORE ET AL., M OORE’S F EDERAL
P RACTICE ¶ 133.30[3][a] (3d ed. 2003).
Under Rooker-Feldman, lower
federal courts cannot entertain a
constitutional claim if it has been
previously adjudicated in state court, or if
the relief requested in the claim requires
either determining that the state court's
decision is wrong or voiding the state
court’s ruling. Gulla v. North Strabane
Twp., 146 F.3d 168, 171 (3d Cir. 1998).

19