NOT PRECEDENTIAL
UNITED STATE COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3171
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UNITED STATES OF AMERICA
v.
ANTHONY JOHNSON, JR.,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 2:08-cr-00285)
District Judge: Hon. Gustave Diamond
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Submitted Under Third Circuit LAR 34.1(a)
October 26, 2011
Before: FISHER, VANASKIE and ROTH Circuit Judges
(Filed: November 22, 2011)
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OPINION
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VANASKIE, Circuit Judge.
Anthony Johnson, Jr., appeals his conviction on two counts of possession with
intent to deliver more than five grams of crack cocaine in violation of 21 U.S.C §
841(a)(1) and § 841(b)(1)(B)(iii), and one count of possessing a firearm “in relation to”
and “in furtherance” of a drug trafficking offense in violation of 18 U.S.C. § 924(c).
Johnson contends that the evidence is insufficient to sustain a conviction on any of the
three counts. Johnson also contends the District Court incorrectly denied his motion to
suppress evidence seized from his person and did not properly instruct the jury regarding
the elements of a violation of 18 U.S.C. § 924(c). We reject these arguments and will
affirm.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we will relate only those facts necessary to our
analysis.
Aliquippa Police Sergeant Robert Sealock was on routine patrol with another
officer in a marked vehicle on August 23, 2007 at about 12:20 a.m., when he initiated a
traffic stop of a Buick sedan being driven by Johnson. The Buick had dark-tinted
windows in violation of 75 Pa. C.S. § 4524(e). Loud music was also coming from the
vehicle. 1
As Sergeant Sealock approached the car, he observed Johnson through the open
driver’s window leaning toward the passenger side of the vehicle. When Sergeant
Sealock addressed him, Johnson appeared nervous, and was sweating and stuttering.
Sealock recognized Johnson based upon prior encounters with him, and was aware that
Johnson had been involved in several incidents involving firearms and that Johnson had
1
Johnson was charged in state court with disorderly conduct because of the loud
music and with violating § 4524(e) of the Pennsylvania Motor Vehicle Code, which
prohibits the operation of a vehicle with “any sun screening device or other material
which does not permit a person to see or view the inside of the vehicle through the
windshield, side wing or side window of the vehicle.” 75 Pa. C.S. § 4524(e).
2
been associated with drug traffickers. Sealock then observed an open box of plastic
sandwich baggies inside the car. Based on his training and experience, Sealock knew that
sandwich baggies are sometimes used to package narcotics.
Sergeant Sealock asked Johnson to step out of the car. Upon conducting a pat-
down of Johnson’s outer clothing, Sealock felt a large bulge in Johnson’s right pocket,
which, based on his experience, felt like crack cocaine. He retrieved a sandwich baggie
from Johnson’s right pocket and placed him under arrest. Sealock opened the baggie and
counted eighty-seven individually-wrapped rocks. The eighty-seven rocks weighed 8.2
grams and were confirmed to be crack cocaine by the Pennsylvania Police Crime Lab.
Sealock also found a cell phone and $160 on Johnson. The Buick was inventoried and no
drug use items, such as crack pipes, were found in the car or on Johnson’s person.
Johnson was stopped by Sergeant Sealock for a second time on March 5, 2008.
Sealock, while responding to a call for back-up on an unrelated traffic stop, observed an
Oldsmobile Alero pass a pick-up truck in a no-passing zone. Sealock activated his lights
and siren to pass the Alero so he could proceed to the back-up site. The Alero did not
move over to allow Sealock to pass. Instead, the Alero accelerated, traveling
approximately 50 miles per hour in a 25 mile per hour speed zone while also speeding
through a stop sign. The Alero eventually pulled over and Sealock nudged it with his
police car. Johnson was driving the Alero and was the lone occupant of the vehicle.
Johnson jumped out of the Alero and proceeded toward the middle of the road. Sealock
caught Johnson and placed him under arrest. Sealock patted Johnson down and found
three cell phones.
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Officer Eric McPhilomy arrived on the scene and informed Sealock that he had
observed crack cocaine inside the Alero. Sealock then looked inside the Alero with a
flashlight and observed a piece of suspected crack cocaine inside a plastic baggie on the
floor in front of the driver’s seat. Sealock and McPhilomy took photographs of the scene
and then had the Alero towed to a garage.
A search of the Alero on the afternoon of March 5, 2008, pursuant to a warrant
resulted in the discovery of crack cocaine in a sandwich baggie and a handgun. The
weapon was found under the driver’s seat, with the handle facing towards the front of the
car, in close proximity to the baggie of crack cocaine. 2 The handgun had been reported
as stolen from a private residence on February 21, 2007, and is a firearm as defined by 18
U.S.C. § 921(a). A live magazine was inside the firearm with one round inside the
chamber, operable and ready to fire. Johnson did not have a license to carry a firearm or
a valid sportsman’s firearms permit under Pennsylvania law.
On July 30, 2008, a grand jury in the Western District of Pennsylvania returned a
three-count Superseding Indictment charging Johnson with two counts of possession with
intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(iii) (Counts One and Two), and carrying a firearm in
furtherance of and in relation to a drug trafficking crime in violation of 18 U.S.C. §
924(c) (Count Three). Johnson filed a Motion to Suppress Evidence, and a hearing was
2
It was subsequently learned that the owner of the Alero was Johnson’s girlfriend,
Lakeya Whatley. Ms. Whatley had been driven to the hospital in the Alero by Johnson
on March 4, 2008, where she delivered a baby. Johnson had possession of the Alero
throughout March 5, 2008. Ms. Whatley denied ownership of the crack and the firearm
found in her car.
4
held on December 1, 2009. By Opinion and Order filed on January 27, 2010, the District
Court denied Johnson’s Motion to Suppress Evidence. Johnson was tried by a jury
beginning on March 9, 2010, and found guilty on all counts on March 11, 2010. On July
14, 2010, the District Court sentenced Johnson to a 120-month term of imprisonment,
consisting of 60 months on Counts One and Two plus a consecutive 60 months to be
served on Count Three.
II.
We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. We will first address Johnson’s challenge to the sufficiency of evidence
to support his convictions.
A.
Johnson moved for judgment of acquittal at the close of the Government’s case
and at the close of testimony. The District Court denied the motion. When a sufficiency
of evidence challenge has first been made in the district court, we exercise plenary review
on appeal and ask “whether there is substantial evidence that, when viewed in the light
most favorable to the government, would allow a rational trier of fact to convict.” United
States v. Bornman, 559 F.3d 150, 152 (3d Cir. 2009) (quoting United States v. Helbing,
209 F.3d 226, 238 (3d Cir. 2000)). Though plenary, the “standard of review is highly
deferential.” Id. (quoting Helbing, 209 F.3d at 238).
“A conviction for possession with intent to distribute drugs requires that the
defendant knowingly and intentionally possessed drugs with the intent to distribute
them.” United States v. Iafelice, 978 F.2d 92, 95 (3d Cir. 1992). Johnson concedes that
5
he was found with crack cocaine on both dates. Proof of his intent to distribute the crack
cocaine could be made through circumstantial evidence. See United States v. Johnson,
302 F.3d 139, 149 (3d Cir. 2002).
Michael Warfield, a seventeen-year veteran of the Pennsylvania State Police,
testified as an expert, without objection by Johnson, regarding the characteristics of drug
trafficking. 3 Warfield explained the process of cutting cocaine for distribution; the value
of a “rock” of cocaine; how drug traffickers sell smaller quantities as street level dealers;
the packaging of a rock of crack; and the significance of the presence of cash as well as
the use of plastic baggies and multiple cell phones. Warfield also explained the role
firearms play in the world of drug trafficking. Based on his experience and training,
Warfield concluded that Johnson’s possession of 5.6 grams of crack on March 5, 2008
and 8.2 grams of crack on August 23, 2007 was consistent with someone possessing
drugs with the intent to distribute them. Warfield explained that with 8.2 grams of crack
divided into 87 rocks, the rocks could have been sold for $870, if they were sold as ten-
dollar rocks, or for over $1,700, if they were sold as twenty-dollar rocks. Warfield
further testified that he would not expect someone who had eight grams or five grams of
crack to be found with any drug paraphernalia because that person would be selling, not
using, the drug. This evidence was plainly sufficient to support a finding of guilt on the
drug trafficking offenses charged in Counts One and Two of the Superseding Indictment.
3
We recognize that “operations of narcotics dealers is a proper field of expertise,”
an expert may testify about “the quantity, purity, usage dosage units, and street value of
narcotics,” and “experts may describe, in general and factual terms, the common
practices of drug dealers.” United States v. Watson, 260 F.3d 301, 306 (3d Cir. 2001).
6
Johnson also challenges the sufficiency of the evidence on Count Three, charging
him with a violation of 18 U.S.C. § 924(c)(1)(A) by carrying a firearm during and in
relation to a drug trafficking crime and possessing a firearm in furtherance of such a
crime. To prove a violation of 18 U.S.C. § 924(c)(1)(A) arising out of possession of a
firearm in furtherance of a drug trafficking crime, the government must prove: (1) the
defendant committed the crime of possession with intent to distribute narcotics; (2) the
defendant knowingly possessed a firearm; and (3) the defendant knowingly possessed the
firearm in furtherance of the offense of possession with intent to distribute. 4 United
States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006).
The first element is established by virtue of the jury’s guilty verdict on Count Two
of the Superseding Indictment. The second element, knowing possession of a firearm,
may be established by actual or constructive possession. See United States v.
Cunningham, 517 F.3d 175, 178 (3d Cir. 2008). “A person who, although not in actual
possession, knowingly has both the power and the intention at a given time to exercise
4
The elements the government must establish beyond a reasonable doubt to obtain
a conviction for carrying a firearm during and in relation to a drug trafficking crime
include the first two elements for possessing firearm in furtherance of a drug trafficking
crime. The additional element that the firearm be carried during and in relation to a drug
trafficking crime requires proof that the firearm “facilitate[d], or ha[d] the potential [to]
facilitat[e]” the drug trafficking crime. See United States v. Loney, 219 F.3d 281, 287 (3d
Cir. 2000) (quoting Smith v. United States, 508 U.S. 223, 238 (1993)). We have
acknowledged that “Congress may well have intended ‘in furtherance’ to impose a more
stringent standard than ‘in relation to.’” Id.; see also United States v. Combs, 369 F.3d
925, 932 (6th Cir. 2004) (noting that the “in furtherance” standard is a “slightly higher
standard” and “encompass[es] the ‘during and in relation to’ language”). Because we
find the evidence sufficient to sustain a conviction that Johnson possessed a firearm in
furtherance of the drug trafficking crime, the evidence is also sufficient to sustain a
conviction for carrying a firearm during and in relation to the drug trafficking crime.
7
dominion or control over a thing, either directly or through another person or persons, is
then in constructive possession of it.” United States v. Garth, 188 F.3d 99, 112 (3d Cir.
1999) (quoting United States v. Blackstone, 940 F.2d 877, 883 (3d Cir. 1991)).
Dominion and control need not be exclusive, but they must be established by something
more than “[m]ere proximity.” United States v. Introcaso, 506 F.3d 260, 270-71 (3d Cir.
2007).
The third element of the charged crime requires an assessment of the totality of the
evidence to determine whether “possession of the firearm advanced or helped forward a
drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004).
The following non-exclusive factors may be considered in determining that a gun was
possessed “in furtherance” of a drug trafficking crime: “the type of drug activity that is
being conducted, accessibility of the firearm, the type of the weapon, whether the weapon
is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded,
proximity to drugs or drug profits, and the time and circumstances under which the gun is
found.” Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.
2000)).
With these factors in mind, and viewing the evidence in the light most favorable to
the government, we conclude that the jury had sufficient evidence to support a conviction
under 18 U.S.C. § 924(c)(1)(A). Johnson fled from the Aliquippa police on March 5,
2008 in an Oldsmobile Alero. Sergeant Sealock seized crack cocaine from the floor of
the Alero and found a handgun under the driver’s seat, with the handle facing towards the
front of the car. The handgun is a firearm as defined by 18 U.S.C. § 921(a). A live
8
magazine was inside the firearm with one round inside the chamber, operable and ready
to fire. The handgun had been reported as stolen and Johnson did not have a license to
carry a firearm or a valid sportsman’s firearms permit under Pennsylvania law. Although
Johnson did not own the car, its owner—Johnson’s girlfriend—denied ownership of the
gun. It was quite reasonable for the jury to conclude that the weapon was placed
strategically so that Johnson could defend his drugs and money. See United States v.
Lawrence, 308 F.3d 623, 630 (6th Cir. 2002). Accordingly, Johnson’s challenge to the
sufficiency of the evidence on Count Three fails.
B.
Johnson also contends the District Court committed plain error in its instructions
to the jury regarding the elements of 18 U.S.C. § 924(c)(1)(A). Specifically, Johnson
argues that the District Court erred by not instructing the jury that it must find that
Johnson possessed a firearm both “in relation to” and “in furtherance of” drug trafficking
activity because that is how the charge was described in the Superseding Indictment.
Johnson did not raise an objection to the District Court’s instruction to the jury
regarding a violation of 18 U.S.C. § 924(c)(1)(A). Therefore, we review for plain error,
and will reverse only if the trial court committed error that was fundamental and highly
prejudicial. Alexander v. Riga, 208 F.3d 419, 426-27 (3d Cir. 2000).
We have held that while an indictment employs the conjunctive, jury instructions
may employ the disjunctive where, as here, the statute employs the disjunctive. United
States v. Cusumano, 943 F.2d 305, 311 (3d Cir. 1991). The District Court instructed the
jury on both the “in relation to” aspect of § 924(c)(1)(A), as well as the “in furtherance
9
of” aspect, explaining that a unanimous finding of guilt on either would be sufficient to
convict Johnson under § 924(c)(1)(A). This instruction clearly survives plain error
review.
C.
Finally, Johnson challenges the District Court’s denial of his Motion to Suppress
Evidence seized from his person by Sergeant Sealock on August 23, 2007. We review
the District Court’s denial of a motion to suppress for clear error as to the underlying
factual findings and exercise plenary review of the District Court’s application of the law
to those facts. United States v. Delfin-Colina, 464 F.3d 392, 395-96 (3d Cir. 2006).
A traffic stop of a vehicle and the detention of its occupants is a “seizure” under
the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 809-10 (1996). A
warrantless seizure based on less than probable cause is permissible “where a police
officer observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the person with whom he is
dealing may be armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 30 (1968).
Under those circumstances, the officer “is entitled for the protection of himself and others
in the area to conduct a carefully limited search of the outer clothing of such persons in
an attempt to discover weapons which might be used to assault him.” Id.
The reasonable suspicion standard applies to routine traffic stops. Delfin-Colina,
464 F.3d at 397. The Government bears the initial burden of proving that authorities had
specific, articulable facts to justify a reasonable suspicion that an individual has violated
the traffic laws. Id. “‘Reasonable suspicion’ is a less demanding standard than probable
10
cause and requires a showing considerably less than preponderance of the evidence.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Only a “minimal level of objective
justification” is necessary. Id.
The stop of the Buick was based on an articulable and reasonable suspicion that
either the vehicle or an occupant violated the law. See United States v. Johnson, 63 F.3d
242, 245 (3d Cir. 1995). Sergeant Sealock stopped Johnson’s vehicle because of the
tinted windows in violation of 75 Pa. C.S. § 4524(e) and the loud music. After pulling
the car over, Sealock recognized Johnson and had concerns for his safety because of
Johnson’s association with individuals that traffic in narcotics. Sealock was also
concerned for his safety because he knew Johnson had been involved in other incidents
involving firearms. Sealock saw Johnson making a furtive movement by leaning toward
the passenger side of the car. Johnson also appeared nervous, and was sweating and
stuttering. Sealock then observed an open box of plastic sandwich bags inside the vehicle
as he spoke with Johnson and he knew that plastic baggies are sometimes used in
packaging narcotics. Sealock also knew that people who traffic in narcotics carry
firearms “a lot of times.” (A. 132.) Based on this knowledge, Sealock was concerned
that Johnson may be armed and dangerous. Viewing these circumstances in their
entirety, Sealock was justified in believing that Johnson may have been armed and
dangerous, warranting a protective pat-down for a weapon.
Johnson contends that the purpose of the protective pat-down search was limited
to a search for a weapon and that the seizure of crack cocaine exceeded the scope of the
warrantless search. Police officers may seize non-threatening contraband detected during
11
a protective pat-down search “so long as the officers’ search stays within the bounds
marked by Terry.” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). In United States
v. Yamba, we defined the scope of a “plain feel” search under Dickerson and determined
that the proper inquiry “is not the immediacy and certainty with which an officer knows
an object to be contraband or the amount of manipulation required to acquire that
knowledge, but rather what the officer believes the object is by the time he concludes that
it is not a weapon.” 506 F.3d 251, 259 (3d Cir. 2007). As we explained in Yamba, it is
permissible to confiscate contraband if “spontaneously discovered during a properly
executed Terry search.” Id. When determining whether the scope of a particular Terry
search is proper, “the areas of focus should be whether the officer had probable cause to
believe an object was contraband before he knew it not to be a weapon and whether he
acquired that knowledge in a manner consistent with a routine frisk.” Id. If the officer
develops probable cause to believe, given his training and experience, that an object is
contraband before he eliminates the possibility that it is a weapon, he may lawfully
perform a more intrusive search, and if he discovers contraband, he may seize it and it
will be admissible against the suspect. Id.
Viewing the totality of the circumstances, we are satisfied that Sergeant Sealock
had probable cause to believe the object he felt in Johnson’s pocket was contraband at the
same moment or before he determined it was not a weapon. As in Yamba, Sealock’s
belief that the object he felt was crack cocaine “was reached quickly and upon minimal
manipulation,” consistent with a routine Terry-frisk. See id. at 260. Based on Sealock’s
experience and training, he was able to identify the object as contraband. In short,
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Sealock was “able to point to specific and articulable facts, which taken together with
rational inferences from those facts, reasonably warrant[ed] the intrusion.” Terry, 392
U.S. at 21. Accordingly, the District Court did not err in denying Johnson’s Motion to
Suppress.
III.
For the foregoing reasons, we will affirm the conviction and judgment of the
District Court.
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