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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15690
________________________
D.C. Docket No. 1:15-cr-20838-UU-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAUL JOHNSON, JR.,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 22, 2018)
Before JORDAN and JILL PRYOR, Circuit Judges, and DUFFEY, * District Judge.
*
Honorable William S. Duffey, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
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DUFFEY, District Judge:
This appeal requires us to consider whether the pat down of a burglary
suspect and the identification of a round of ammunition in the suspect’s pocket
constitutionally allowed the officer to retrieve the round and another item from the
suspect’s pocket.
I. BACKGROUND
A. Facts
The City of Opa-Locka, Florida has “high crime constantly,” including
shootings and armed burglaries usually committed by multiple people. Hrg.
Transcript at 3-4, 39 (Doc. 22). The Opa-Locka Police Department receives a
“high volume of calls” including “bodily harm done to others [and] firearms used
in different aspects of the crimes from burglaries to robberies to home invasions.”
Id. at 22.
On June 14, 2015, shortly after 4:00 a.m., the Opa-Locka Police Department
received a 911 call about a potential burglary in progress at a multifamily duplex
located at 2525 Superior Street in Opa-Locka (the “Duplex”). The Duplex
contained four units. Close behind the Duplex, on the north side, was a wooden
fence that separated the Duplex to the south from the adjacent property to the
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north. The front of the Duplex contained a small parking lot with a gate at the
center.
The 911 caller reported that a “person [was] trying to get through the
window of [a] neighbor’s house” and described the person as a black male wearing
a white shirt. Id. at 6, 19. Officer Dwight Williams was dispatched to investigate.
During the dispatch call he was given the description of the suspected burglar.
Officer Williams arrived at the Duplex within five minutes of receiving the
call. Corporal B.A. Colebrooke arrived at the Duplex in a separate car at about the
same time. When Officer Williams and Corporal Colebrooke got to the Duplex, it
was still dark outside, and they “saw [Mr. Johnson] coming from the back, the
west, back side of the complex” through an unlit alleyway. Id. at 5. Mr. Johnson,
a black male, was wearing a white shirt. The officers did not see anyone else in the
area.
Officer Williams and Corporal Colebrooke drew their weapons, pointed
them at Mr. Johnson, and ordered him to come to the front of the building with his
hands up. Mr. Johnson complied, and Officer Williams handcuffed him and
ordered him to get down on the ground. Officer Holborow arrived while they were
ordering Mr. Johnson to put his hands up. Officer Williams testified that
Mr. Johnson matched the description given by the police dispatcher, and he told
Mr. Johnson that he was being detained until they could “figure things out.”
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Id. at 33. Mr. Johnson was detained “very far” from the fence, “towards the front
of the complex” in the parking area. Id. at 12, 27-28.
Officer Williams testified that, because of “the nature of the call, the area of
the call, and the lighting conditions,” he detained Mr. Johnson and conducted a pat
down “for officer safety.” Id. at 5, 7-8. During the pat down, Officer Williams
testified:
I felt like a nylon piece of material; and then, underneath it, a round,
hard-like, oval-shaped object, which led me to believe it was
ammunition, from the previous encounters with training [sic] and
experience throughout the City of Opa-Locka.
Supp. Hrg. Transcript at 6 (Doc. 30). Officer Williams further testified:
I immediately thought it was ammunition. And then, after that, I
immediately thought, you know, maybe there’s a weapon somewhere
nearby, maybe there’s another person in an apartment that may come
out with something; so, you know, I just wanted to remove that and
just try to make the scene secure as much as possible for the other
officers.
Id. at 7.
Officer Williams reached into Mr. Johnson’s right front pocket and removed
a black nylon pistol holster and one round of .380 caliber ammunition. Officer
Williams “notified the officers in the area” and asked Mr. Johnson: “was [sic] there
any more weapons or anything near that this ammunition and this holster goes [sic]
to.” Hrg. Transcript at 10 (Doc. 22). Mr. Johnson said there was not.
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The investigation activity continued. Two officers provided a description of
the activity and why it was conducted.1 Officer Williams testified at the
Suppression Hearing:
Q. Finding a person at 5 in the morning with ammunition and a
holster in their pocket, what did you think to do next?
A. Canvas the area to see if the weapon was possibly thrown. We
have that a lot in Opa-Locka.
Q. Why would you be looking for weapons to have been thrown?
Can you explain that?
A. I was looking for the weapons to be thrown because the round that
was in his pocket and the holster led me to believe that there is a
weapon that that round goes to and something goes into that holster.
Hrg. Transcript at 10 (Doc. 22). Officer Williams further testified:
Q. So it wasn’t until after finding the holster and the bullet that the
officers began canvassing to look for firearms?
A. Correct.
Q. They had no other reason to believe that there were any firearms
around there?
A. We normally do a check given the nature of those type of calls.
Q. You canvas an entire area even if there is no reason, you don't find
any kind of ammunition or holster?
A. We normally always just look around and just see if there is
anything; weapons, narcotics, anything.
Q. Look sort of in the immediate area where the person was --
A. Correct.
Q. -- detained? And you didn’t -- and you didn’t locate any firearms
in the, sort of, 10 feet or so surrounding Mr. Johnson?
A. No.
Id. at 33-44. Officer Horn testified:
Q. And you mentioned this on direct as well, but so, you know, you
arrive, you see Mr. Johnson handcuffed on the ground with a bullet
1
These descriptions were offered at the January 4, 2016, Suppression Hearing and the
April 8, 2016, Supplemental Suppression Hearing.
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and holster there, and then at that point officers begin to conduct a
canvas for firearms?
A. Yes.
Q. And that’s because they found the holster and bullet in his pocket?
A. Right.
Q. And the reason for -- they had no other reason to think there were
guns around there, right?
A. Right.
Q. And immediately the first check was sort of the immediate area
where Mr. Johnson was detained --
A. Yes.
....
Q. In your experiences in responding to a robbery, will you canvas
the scene?
A. Sometimes if we need to find evidence.
Q. What is it that you are looking for?
A. Any evidence that would be tied to the crime that we are
investigating.
Q. Are you also looking to secure the scene?
A. Yes, absolutely. And additional suspects.
Id. at 60, 64.
At the April 8, 2016, Supplemental Hearing, Officer Williams testified:
Q. Officer Williams, when you felt the pocket, what did you think?
A. I immediately thought it was ammunition. And then, after that, I
immediately thought, you know, maybe there’s a weapon somewhere
nearby, maybe there’s another person in an apartment that may come
out with something; so, you know, I just wanted to remove that and
just try to make the scene secure as much as possible for the other
officers.
Supp. Hrg. Transcript at 6-7 (Doc 30).
During the further investigation Officer Williams walked toward the back of
the Duplex “where [he] found a hole in the fence” separating the Duplex in which
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Mr. Johnson claimed he lived and the property behind it. Hrg. Transcript at 11-12
(Doc. 22). Mr. Johnson had been “less than a foot” away from the hole when
Officer Williams and Corporal Colebrooke first saw him. Id. at 12. Officer
Williams “then got in [his] car and drove around the block to the north side of [the]
[D]uplex across the fence where [he] found two pistols laying near the hole.” Id. at
11. It took Officer Williams “15 to 20 minutes” to find the two firearms after
retrieving the round of ammunition and holster from Mr. Johnson’s pocket. Id. at
15. The firearms were found on the property directly north of the Duplex. Id. at
36. Officer Williams ran a check of the serial numbers and discovered the firearms
had been reported stolen.2
Mr. Johnson was transported to the Opa-Locka Police Station, read his
Miranda rights, and questioned. Mr. Johnson claimed that his brother and his
cousin bought the firearms “off the street,” brought them to his house, and the
three of them hid the firearms in the backyard.
B. Procedural History
On October 27, 2015, a federal grand jury returned an indictment charging
Mr. Johnson with being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1).
2
Officer Dennis Horn arrived after the ammunition and holster were retrieved from
Mr. Johnson’s pocket. Hrg. Transcript at 41 (Doc. 22). After he helped canvass the area for
weapons, Officer Horn knocked on the door of the unit in which Mr. Johnson claimed he lived.
Id. at 41. After approximately fifteen minutes, Mr. Johnson’s girlfriend answered the door and
stated that Mr. Johnson lived in the unit. Id. at 41-42.
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On December 14, 2015, Mr. Johnson moved to suppress all physical
evidence and statements derived from the pat down leading to the seizure of the
two firearms and ammunition. Mr. Johnson argued that the officers lacked
probable cause to search him without a warrant, the search was not incident to his
arrest, and he did not consent to the search.
On January 11, 2016, the Magistrate Judge conducted an evidentiary
hearing. On January 19, 2016, the Magistrate Judge issued her Report and
Recommendation (“R&R”), recommending that Mr. Johnson’s motion be denied
because the stop and pat down were lawful.
Mr. Johnson timely filed his objections to the R&R. On March 15, 2016, the
district court chose to refer the matter back to the Magistrate Judge to develop the
record further on the limited issue whether Officer Williams’s decision to reach
into Mr. Johnson’s pocket was prompted by a reasonable belief that the object
identified during the pat down was a weapon or contraband.
On April 8, 2016, the Magistrate Judge conducted the second evidentiary
hearing. At the beginning of the hearing, the Magistrate Judge stated that the
district judge directed:
She refer[red] the matter back to me for resolving one issue; and that
issue, as she phrased it, was . . . “the record is unclear whether Officer
Williams’ decision to reach into defendant’s pocket following the
frisk of defendant’s outer clothing was prompted by a reasonable
belief that the concealed object was a weapon or contraband.”
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Supp. Hrg. Transcript at 3-4 (Doc. 30).
Officer Williams testified at the second hearing that, upon patting
Mr. Johnson’s outer clothing, he “immediately” identified the lump he felt as
ammunition. Supp. Hrg. Transcript at 7 (Doc. 30). On April 25, 2016, the
Magistrate Judge issued her Supplemental R&R, which again recommended that
Mr. Johnson’s motion be denied. Mr. Johnson filed objections to the Supplemental
R&R.
On May 20, 2016, the district court overruled Johnson’s objections and
adopted the R&R. United States v Johnson, Case No. 1:15-cr-20838-UU (Doc. 37)
(S.D. Fla. May 20, 2016). The district court found that an investigatory stop was
reasonable under Terry v. Ohio, 392 U.S. 1 (1968), because the officers had
reasonable suspicion, supported by specific and articulable facts, that Mr. Johnson
was involved in the reported burglary. The district court concluded that, at the
time he conducted the pat down, Officer Williams had reasonable suspicion to
believe that his safety or the safety of others was at risk, including because the
officers were dispatched to a suspected burglary, during the pre-dawn hours, to a
high-crime area where burglaries are typically armed and, when they encountered
Mr. Johnson, he was in a dark alley and matched the description of the suspect
provided by the caller. The district court also observed that, at the time of the
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frisk, the scene was not secure because the officers had not inspected the home of
the reported burglary for additional suspects.
The district court concluded that Officer Williams’s decision to search the
interior of Mr. Johnson’s pocket and remove the ammunition and holster was a
permissible continuation of the initial frisk. The district court stated that “[a]n
officer’s seizure of ammunition following a lawful frisk when investigating a
possible violent crime, particularly when confronted with an unsecure scene, is
sufficiently connected to officer safety not to run afoul of the Fourth Amendment.”
Johnson, Case No. 1:15-cr-20838-UU (Doc. 37) at 12. Although the Magistrate
Judge did not find credible Officer Williams’s testimony that Mr. Johnson
consented to a search before the pat down, the Magistrate Judge concluded, and the
district court agreed, that because the pat down and search of the pocket were
permissible under Terry, it was not necessary to determine whether Mr. Johnson
consented to the search after the initial pat down. Magistrate Report and
Recommendation (Doc. 21) at 6 n.1, 9 n.2; Johnson, Case No. 1:15-cr-20838-UU
(Doc. 37) at 6-7. 3
On June 8, 2016, Mr. Johnson entered a conditional plea of guilty to Count
One of the Indictment. In his written plea agreement, Mr. Johnson reserved the
3
Having found that Officer Williams’s pat down and removal of ammunition from
Mr. Johnson’s pocket were lawful, the district court did not address Mr. Johnson’s remaining
arguments for suppression of the weapons and Mr. Johnson’s statements as fruit of the poisonous
tree because they were “conditioned on the unlawfulness of the initial search.” Johnson, Case
No. 1:15-cr-20838-UU (Doc. 37) at 13.
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right to appeal the district court’s ruling on his motion to suppress on the grounds
of (i) whether the pat down was permitted under Terry, and (ii) whether the search
of his pocket exceeded the scope of Terry. The district court sentenced
Mr. Johnson to 37 months’ imprisonment.
II. STANDARDS OF REVIEW
“A ruling on a motion to suppress presents a mixed question of law and
fact.” United States v. Virden, 488 F.3d 1317, 1321 (11th Cir. 2007) (citation
omitted). This Court will “review the district court’s findings of fact for clear error
and its legal conclusions de novo.” Id. The district court’s “factual determinations
on evidentiary issues will not be disturbed unless they are clearly erroneous.”
United States v. Williams, 936 F.2d 1243, 1249 (11th Cir. 1991). When
considering a ruling on a suppression motion, we construe all facts in the light
most favorable to the party that prevailed below and afford substantial deference to
the district court’s credibility determinations, whether explicit or implicit. United
States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012).
Preserved Constitutional issues are reviewed de novo. United States v.
Scott, 263 F.3d 1270, 1271 (11th Cir. 2001).
III. DISCUSSION
Mr. Johnson presents two issues in this appeal. First, whether the district
court erred in finding there was a sufficient basis to justify the pat down. Second,
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whether the district court “erred in concluding that an officer was permitted to
reach into his pocket, following a frisk of his outer clothing, where (1) the officer
immediately recognized the object he felt as a single round of ammunition, which,
absent a firearm . . . could pose no danger to officer safety, and (2) the round was
not immediately apparent contraband.” (Appellant Br. at 2).
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” U.S. Const. amend. IV. The Supreme Court has held that “police can
stop and briefly detain a person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that criminal activity ‘may be
afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490
U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
To determine the legality of an investigatory stop under Terry, we first
consider if the stop was justified at its inception. See United States v. Street, 472
F.3d 1298, 1306 (11th Cir. 2006). We then ask whether the officer’s actions were
reasonably related in scope to the circumstances that justified the stop in the first
place. See id. In making these assessments, we look at “the totality of the
circumstances—the whole picture[.]” United States v. Cortez, 449 U.S. 411, 417
(1981).
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A.
Mr. Johnson does not contest that the initial investigatory stop was lawful.
He argues, however, that the district court erred in concluding that the
circumstances in this case were sufficient to justify a pat down.
“Once an officer has stopped an individual, he may conduct a pat down or
frisk for weapons if he reasonably believes that his safety, or the safety of others, is
threatened.” United States v. Griffin, 696 F.3d 1354, 1359 (11th Cir. 2012). The
district court, in adopting the Magistrate Judge’s Report and Recommendation,
concluded that
[T]he Report reasonably concluded that the following factors justified
the pat-down of Johnson’s outer clothing: (1) the Officers were
dispatched to a suspected burglary; (2) during pre-dawn hours; (3) to a
high-crime area where burglaries are typically armed burglaries;
(4) and, when they encountered Johnson he was in a dark-alley and
matched the description of the suspect provided in the 911 call.
Moreover, at time of the frisk the scene was not secure as the Officers
had not inspected the home of the reported burglary for additional
suspects.
United States v Johnson, Case No. 1:15-cr-20838-UU (Doc. 37) (S.D. Fla. May 20,
2016) at 9-10.
Mr. Johnson argues that “[t]here is no evidence that [he] acted evasively,
reached for his waistband, attempted to flee, tried to strike an officer, or did
anything else that courts generally conclude could lead an officer to reasonably
believe he was armed and dangerous.” (Appellant Br. at 14).
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In determining whether a pat down is warranted, “Terry does not demand
definitive evidence of a weapon or absolute certainty that an individual is armed.”
United States v. Griffin, 696 F.3d 1354, 1359 (11th Cir. 2012). In evaluating an
officer’s actions, the court does not consider each observation in isolation. United
States v. Lopez-Garcia, 565 F.3d 1306, 1313 (11th Cir. 2009). “[R]easonable
suspicion may exist even if each fact alone is susceptible of innocent explanation.”
United States v. Bautista-Silva, 567 F.3d 1266, 1272 (11th Cir. 2009) (internal
quotation marks omitted). In determining if an officer reasonably believed his
safety or the safety of others was threatened, the court considers “the totality of the
circumstances in the light of the officer’s special training and experience.” United
States v. Matchett, 802 F.3d 1185, 1192 (11th Cir. 2015).
Here, the totality of the circumstances of the investigatory stop supports the
constitutionality of the pat down. Officer Williams, and others, received a report
of a suspected burglary around 4:00 a.m. in a high-crime area by a black suspect
wearing a white shirt. Mr. Johnson fit the description of the suspect and was the
only person in the area. Mr. Johnson relies on various cases to argue that some
specific threat was required before a pat down was allowed, but the cases cited do
not support Mr. Johnson’s argument that more concrete threatening conduct was
required for the officers to reasonably believe that their safety was threatened and a
pat down justified. The question is whether a police officer reasonably believed,
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based on the totality of the circumstances, that his safety, or the safety of others,
was threatened. Griffin, 696 F.3d at 1359; see also Illinois v. Wardlow, 528 U.S.
119, 124 (2000) (explaining that an individual’s presence in a high-crime area is a
relevant factor in the reasonable-suspicion analysis); United States v. Felix, No.
16-16457, 2017 WL 5176219, at *4 (11th Cir. Nov. 8, 2017) (affirming district
court’s holding that “[s]topping an individual who matches the description of an
armed robber in relative close proximity to the crime scene, within ten minutes of
the crime occurring, and patting them down for weapons is well within the bounds
of the Fourth Amendment and Terry”); United States v. Hunter, 291 F.3d 1302,
1306 (11th Cir. 2002) (stating that an individual’s proximity to illegal activity is
relevant to the reasonable-suspicion analysis).4
The district court found that Officer Williams and the other officers were
responding to a reported burglary around 4:00 a.m. in a high-crime area, in which
many burglaries involve weapons, Mr. Johnson matched the general description of
the suspect, the scene was not yet secure, and the officers were uncertain whether
there were other suspects in the vicinity. Considering the totality of the facts, the
district court correctly found that Officer Williams reasonably believed that his
safety, or the safety of his fellow officers, was at risk. Giving due weight “to the
specific reasonable inferences which he is entitled to draw from the facts in light of
4
We recognize that unpublished opinions are not binding on the panel. We note, however,
that they are helpful in explaining the legal principles that apply.
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his experience,” Terry, 392 U.S. at 27, we do not believe that the district court
erred in ruling that these facts supported a pat down or in holding that the pat down
was allowed. The pat down did not violate Mr. Johnson’s Fourth Amendment
rights.
B.
We consider next whether Officer Williams’s decision to reach into
Mr. Johnson’s front pants pocket and retrieve the round of ammunition and nylon
holster impermissibly exceeded the lawful scope of a protective search. We
conclude that it did. “The Terry case created an exception to the requirement of
probable cause, an exception whose ‘narrow scope’ this Court ‘has been careful to
maintain.’” Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (quoting Dunaway v. New
York, 442 U.S. 200 (1979)). The purpose of a protective search under Terry is
“not to discover evidence of crime, but to allow the officer to pursue his
investigation without fear of violence.” Adams v. Williams, 407 U.S. 143, 146
(1972).
Our circuit has repeatedly affirmed that “a Terry search may continue when
an officer feels a concealed object that he reasonably believes may be a weapon.”
United States v. Clay, 483 F.3d 739, 743-44 (11th Cir. 2007) (affirming an
officer’s search of a defendant’s pockets to retrieve an empty barrel of a ball-point
pen where officer had reason to believe the item “might be a screwdriver or
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something similar that could be used as a weapon”). “Under Terry, a search does
not exceed ‘that which is necessary for the discovery of weapons which might be
used to harm the officer or others nearby’ if the officer has an objective, reasonable
belief that ‘his safety or that of others is in danger.’” Id. at 744 (quoting Terry, 392
U.S. at 26-27). The pat down and feeling of an object in a pocket is limited,
however, to determining if the object is a weapon.
An officer’s protective frisk to search a suspect’s outer clothing for weapons
has been extended to allow the seizure of contraband—the incriminating character
of which is apparent during an otherwise lawful pat down for weapons. Minnesota
v. Dickerson, 508 U.S. 366, 373 (1993). In patting down for weapons, an officer
may identify and seize contraband in a suspect’s pocket. As we noted in Griffin:
If a police officer lawfully pats down a suspect’s outer clothing and
feels an object whose contour or mass make its identity immediately
apparent, there has been no invasion of the suspect’s privacy beyond
that already authorized by the officer’s search for weapons.
Griffin, 696 F.3d at 1363 (citing Dickerson, 508 U.S. at 375); see also Dickerson,
508 U.S. at 375-76 (“[I]f the object is contraband, its warrantless seizure would be
justified by the same practical considerations that inhere in the plain-view
context.”).
The question before us is whether the ammunition round that Officer
Williams identified justified the further intrusion into Mr. Johnson’s pocket to
extract it and the holster. The Government does not contest that the round in
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Mr. Johnson’s pocket was not believed to be contraband when found. See United
States v Johnson, Case No. 1:15-cr-20838-UU (Doc. 37) (S.D. Fla. May 20, 2016)
at 12 (“Ammunition itself, though . . . is not illegal; and Officer Williams did not
know Johnson was a felon at the time he retrieved the ammunition.”). The
Government also does not contend that ammunition alone is a weapon. The
Government suggests, however, that the principle in Dickerson that permits the
seizure of readily apparent contraband extends to items that are neither weapons
nor contraband because the retrieval of an item identified during a proper Terry pat
down does not present an invasion of privacy greater than the pat down itself.
(Appellee Br. at 23).
Dickerson, carefully read, does not justify the warrantless retrieval of any
item identified during an outer garment pat down. It allows an intrusion into the
pocket if an outer clothing search allows a police officer to conclude that an item in
a pocket is a weapon or contraband. Items not in these two categories cannot be
retrieved. To allow the intrusion into a pants pocket to retrieve an object that is not
contraband or a weapon would expand Terry-based searches beyond what is
constitutionally allowed based on the faulty reasoning that any identifiable object
may be retrieved. It also would invite an extended pat down to identify items so
that a further intrusion into pockets of outerwear could be conducted.
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To support that the seizure of the round of ammunition was lawful, the
district court relied on an unreported case, United States v. Perez, No. 09–20096–
01–KHV, 2010 WL 571839 (D. Kan. Feb. 12, 2010), for the proposition that
“[e]ven though bullets by themselves are not weapons, courts have held that it is
reasonable for an officer to retain bullets during a Terry pat down search.” 2010
WL 571839, at *4. Perez does not support the district court’s conclusion. The
Perez court determined that the officer’s seizure of a single bullet from the
defendant’s pocket was illegal after concluding the defendant did not possess any
weapons. Id. at *4 n.5. The cases cited in Perez support only the unremarkable
proposition that various facts have been found to support an officer’s reasonable
belief that his safety or that of others was in danger. 5
We hold, on the facts here, that the presence of a single round of
ammunition—without facts supporting the presence, or reasonable expectation of
the presence, of a firearm—was insufficient to justify the seizure of the bullet and
the holster from Mr. Johnson’s pocket. While deference is owed to the experience
and training of police officers, Officer Williams’s testimony at the supplemental
hearing is not enough, on the facts of this case, to support the search. The district
court’s reliance on the officers’ confrontation of an “unsecure scene” while
5
The cases cited in Perez stand for the proposition that recovery of ammunition from a
pocket was allowed where there was evidence of the possession or the presence of a weapon.
We express no view on whether those cases were correctly decided.
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“investigating a possible violent crime” did not support the additional intrusion
into Mr. Johnson’s pocket to retrieve a round of ammunition, because a bullet was
not a weapon and was not immediately identifiable as contraband. Therefore, the
court erred in not suppressing the ammunition round and holster. 6
IV. CONCLUSION
We REVERSE the district court’s decision not to suppress the ammunition
and holster and VACATE the judgment entered against, and sentence imposed
upon, the Appellant. We REMAND this case to the district court for further
proceedings consistent with this Opinion.
6
Terry searches are not “necessarily restricted to the outer clothing of the suspect” and
“may be extended to include areas within the immediate control and ready access of the detained
suspect.” United States v. Rainone, 586 F.2d 1132, 1136 (7th Cir. 1978). The search of the hole
in the fence, and the adjacent property on the other side of the fence, however, cannot be justified
as a lawful extension of the Terry search itself. The testimony showed that Mr. Johnson was
handcuffed on the ground “very far” from the fence, “towards the front of the complex” in the
parking area. Hrg. Transcript at 12, 27-28 (Doc. 22). It took Officer Williams “15 to 20
minutes” to get in his car, drive around the block, and discover the two firearms in the adjacent
parcel to the north of the Duplex. Id. at 11, 15. Thus the search of the adjacent parcel along the
fence cannot be justified as an expansion of the initial Terry stop. See Government of Canal
Zone v. Bender, 573 F.2d 1329, 1332 (5th Cir. 1978) (“To allow the scope of a Terry search to
extend outside the area of immediate control would be to sever the Terry exception from its
rationale.”).
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