PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4042
LARRY JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:07-cr-00153-RDB-1)
Argued: January 29, 2010
Decided: April 1, 2010
Before WILKINSON and AGEE, Circuit Judges, and
R. Bryan HARWELL, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Agee and Judge Harwell joined.
COUNSEL
ARGUED: Sapna Mirchandani, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Tonya Kelly Kowitz, OFFICE OF THE UNITED
2 UNITED STATES v. JOHNSON
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Balti-
more, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Jonathan Biran, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Larry Johnson appeals on Fourth Amendment grounds
from his conviction on various drug and firearm charges.
Police witnessed Johnson making what appeared to be a series
of hand-to-hand exchanges with multiple people in a known
open-air drug market. By this point, the facts known to the
officers were at least sufficient to support a "reasonable suspi-
cion" that Johnson was dealing drugs, justifying a brief inves-
tigatory detention under Terry v. Ohio, 392 U.S. 1 (1968). A
police officer then approached Johnson and ordered him to
show his hands. When Johnson responded by attempting in
front of the officer to toss a heroin gelcap out of sight, reason-
able suspicion ripened into probable cause to arrest. And
when police later learned that Johnson had been back and
forth to a nearby car just before the series of hand-to-hand
contacts, probable cause to arrest in turn ripened into probable
cause to search the car.
Johnson was not detained until police had a basis for a rea-
sonable suspicion, he was not arrested until police had proba-
ble cause to arrest, and the car was not searched until police
had probable cause to search it. Since no Fourth Amendment
violation occurred at any point, we affirm the district court’s
rejection of Johnson’s motions to suppress evidence arising
out of these events. That court carefully examined the evi-
dence, heard from the parties, and its considered conclusion
UNITED STATES v. JOHNSON 3
warrants our respect. See, e.g., United States v. Arvizu, 534
U.S. 266, 276 (2002).
I.
On the evening of September 14, 2006, Baltimore City
Police Detective Eric Green was monitoring the 1800 block
of Pennsylvania Avenue in the city of Baltimore by video
camera from a police station about five minutes’ drive away.
The block is reputedly home to a brisk open-air drug trade.
Around 7 o’clock, Detective Green witnessed Johnson stand-
ing on the sidewalk of the street. He watched as Johnson, in
rapid succession, made quick hand-to-hand contact with three
different men, after which each of the three men immediately
hurried off. Although he could not see an actual object being
exchanged, it appeared to Green that something small was
being passed between them. Green, who had made thousands
of drug arrests based on observing hand-to-hand exchanges
during his career, concluded that Johnson was dealing drugs.
He immediately dispatched his partner, Officer Joseph Ban-
nerman, and another officer to the scene.
While his colleagues were en route, Detective Green con-
tinued to monitor Johnson’s movements. He watched as John-
son milled about on the sidewalk, briefly turned down a side
street, and soon returned to the spot where the previous inter-
actions had taken place. Green then saw two other people
enter the frame, whereupon Johnson headed for a local Chi-
nese carry-out restaurant with the two others appearing to fol-
low. Green suspected Johnson was about to sell them drugs,
since local dealers sometimes conduct their business in legiti-
mate shops in order to elude police cameras.
Green alerted his colleagues that Johnson was taking the
suspected buyers into the Chinese carry-out. Johnson and one
of the suspected buyers entered the eatery as the police offi-
cers pulled up, but the second suspected buyer kept walking
up the street after spotting the approaching police. Immedi-
4 UNITED STATES v. JOHNSON
ately upon arriving, Officer Bannerman entered the restaurant
and approached Johnson, identified himself as a police offi-
cer, and asked to see Johnson’s hands. Johnson, however, did
not comply, instead throwing what Bannerman correctly
believed to be a heroin gelcap over the restaurant counter. A
struggle ensued, but Bannerman eventually gained the upper
hand and Johnson was duly arrested and handcuffed. Banner-
man recovered the gelcap and loaded Johnson into his patrol
car. Johnson was found to be carrying $102 in cash.
While this was taking place, Detective Green reviewed a
recording of the earlier surveillance video. In doing so, he
noticed something he had originally overlooked. The video
showed that just before the suspected drug deals, Johnson had
gone to a car parked along the street, opened the passenger
door, shut it, paced back and forth, reached back into the car
and emerged appearing to hold something in his hand. Con-
cluding that Johnson was using the car to store drugs, Green
radioed to Officer Bannerman and instructed him to return to
the scene and secure the car.
Officer Bannerman arrived at the car and looked inside the
passenger side window. On the floor of the car, he saw a plas-
tic bag containing baggies of gelcaps like the one Johnson had
thrown during their tussle. Bannerman also saw a set of keys
on the car seat. He relayed this information to Detective
Green, who told him to bring the car back to the police sta-
tion. Bannerman then opened the car door and saw that in
addition to the gelcaps the plastic bag contained vials of what
he suspected to be cocaine. Officer Bannerman drove the car
back to the police station, whereupon Detective Green con-
ducted a full search. He found fifty-six heroin gelcaps, thirty-
nine cocaine vials, a mirror and scale, both of which had what
appeared to be drug residue on them, a razor blade, and a
loaded Rossi .38 Special handgun.
In March 2007, Johnson was charged by a federal grand
jury with distribution and possession of cocaine and heroin
UNITED STATES v. JOHNSON 5
with intent to distribute under 21 U.S.C. § 841, possession of
a firearm in furtherance of a drug trafficking crime under 18
U.S.C. § 924(c), and being a felon in possession of a firearm
under 18 U.S.C. § 922(g)(1). Prior to trial, Johnson filed two
motions to suppress evidence. The court held a hearing on the
issue, at which it viewed the surveillance footage and heard
testimony from Detective Green, Officer Bannerman, and the
officer who had accompanied Bannerman, as well as from
Johnson. At the conclusion of the hearing, the court denied
Johnson’s suppression motions. Following a three-day jury
trial, Johnson was convicted of all three charges and thereafter
sentenced to 360 months’ imprisonment. He now appeals
from the denial of his suppression motions. He also chal-
lenges the sufficiency of the evidence on the two firearms
charges and raises a Sixth Amendment objection to a portion
of his sentence.
II.
At the suppression hearing, Detective Green explained that
Johnson’s conduct appeared to him like drug-dealing "based
on hundreds of observations in that area and hundreds of
arrests." Johnson contends that Detective Green’s experience
counts for little, if anything. He argues that although Green’s
background and experience "certainly affected his perception
of events, that experience simply could not transform Mr.
Johnson’s outwardly lawful behavior into a criminal offense."
Appellant’s Br. at 29.
Johnson’s insistence that Green’s training and experience
count for little runs headlong into the teachings of the
Supreme Court. As the Court has explained, "[a] trial judge
views the facts of a particular case in light of the distinctive
features and events of the community; likewise, a police offi-
cer views the facts through the lens of his police experience
and expertise. The background facts provide a context for the
historical facts, and when seen together yield inferences that
6 UNITED STATES v. JOHNSON
deserve deference." Ornelas v. United States, 517 U.S. 690,
699 (1996).
The Fourth Amendment requires such an approach. It is
more practical than theoretical. Both the language of the
Amendment, which prohibits "unreasonable searches and sei-
zures," and the decisions of the Court interpreting it are pur-
posely imprecise. They reflect a preference for case-by-case
analysis, informed judgment, and an examination of the entire
factual picture over any "neat set of legal rules." Illinois v.
Gates, 462 U.S. 213, 232 (1983).
The reason for this is plain enough. The task the police per-
form requires them to translate the law’s abstractions into
actual practice in the unpredictable circumstances of the
streets. This is at once a vital and a difficult mission. It is vital
because errors in either direction—toward excessive intrusion
or toward impotent enforcement—can be costly. It is difficult
because the contexts are varying and, quite often, the time for
deciding is short.
Getting the balance right is never guaranteed, but the
chances of doing so are improved if officers, through training,
knowledge, and experience in confronting criminality, are
uniquely capable both of recognizing its signatures, and by
the same token, of not reading suspicion into perfectly inno-
cent and natural acts. In this way, experience leads not just to
proper action but to prudent restraint. "Reasonableness" is a
matter of probabilities, and probability in turn is best assessed
when one has encountered variations on a given scenario
many times before. See United States v. Cortez, 449 U.S. 411,
418 (1981).
Johnson simply fails to explain why the experience we
extol in other walks of life should suddenly be devalued in the
field of law enforcement. An experienced repairman may pick
up on a problem the rest of us might overlook. The same is
true of law enforcement officers, who may "draw on their
UNITED STATES v. JOHNSON 7
own experience and specialized training to make inferences
from and deductions about the cumulative information avail-
able to them that might well elude an untrained person."
Arvizu, 534 U.S. at 273 (internal quotations omitted). The
Court’s insistence on this point has been nothing less than
overwhelming. See id.; Ornelas, 617 U.S. at 700; Minnesota
v. Dickerson, 508 U.S. 366, 373 (1993); United States v.
Sokolow, 490 U.S. 1, 13 (1989); United States v. Sharpe, 470
U.S. 675, 682 n.3 (1985); Cortez, 449 U.S. at 414, 421-22;
Brown v. Texas, 443 U.S. 47, 52 n.2, (1979); United States v.
Ortiz, 422 U.S. 891, 897 (1975); United States v. Brignoni-
Ponce, 422 U.S., at 885 (1975); Terry, 392 U.S. at 27.
But while officers have the advantage of experience, they
do not necessarily have the advantage of neutrality, and that
is where district courts come in. Johnson, however, would dis-
count their vantage point as well. At no point in his arguments
to reverse its rulings does Johnson recognize the advantages
of the district court’s ability to consider the evidence first-
hand. The only time Johnson so much as acknowledges the
district court’s fact-finding efforts is when he attacks its con-
clusion that he was seen on video handing something to the
men with whom he made hand-to-hand contact. Johnson
claims the "key distinction" between touching hands and
exchanging an object "was lost on the district court"—as if
the district court after hearing the evidence was forbidden to
make a reasoned inference that something was being
exchanged. Appellant’s Reply Br. at 4.
This whole view essentially implies that the consideration
expended in suppression hearings counts for naught. The dis-
trict court, which sat in the city of Baltimore, considered the
evidence fully. The suppression hearing it conducted spanned
two days, and the transcript of the proceedings runs to well
over 150 pages. The court heard from Johnson and the three
police officers involved in his arrest. Both Green and Banner-
man were subjected to cross-examination and re-cross. When
Johnson questioned Bannerman’s credibility, the court specif-
8 UNITED STATES v. JOHNSON
ically found that Bannerman was "perfectly credible" adding
that "there’s no doubt in my mind that this officer is truthful."
The court also viewed the surveillance video.
District courts offer an unbiased forum to test the conclu-
sions of police, and they possess a perspective that appellate
forums cannot match. In examining evidence directly, those
courts assess inflections and demeanor, the human dimensions
and the practical demands in the situations before them. Here
too the Supreme Court has called attention to a "district
court’s superior access to the evidence and the well-
recognized inability of reviewing courts to reconstruct what
happened in the courtroom." Arvizu, 534 U.S. at 276; see also
Ornelas, 517 U.S. at 699.
Thus the role of courts of appeal is comparatively circum-
scribed. While it is true we examine legal determinations by
district courts de novo, it is "a peculiar sort of de novo
review." Arvizu, 534 U.S. at 278 (Scalia, J., concurring). We
must not only accept factual determinations unless they are
clearly in error, we must also "give due weight to inferences
drawn from those facts by resident judges and local law
enforcement officers"—an acknowledgement that satellite
imagery often cannot replicate community insights and on-
the-ground intelligence. Ornelas, 517 U.S. at 699. Standards
of review are formulated not out of some abstract fondness for
legal terminology but to encapsulate insights about institu-
tional vantage points. Courts of appeal have a comparative
advantage born of collegial deliberations over matters of law
while trial courts have a distinct edge when it comes to mak-
ing context-sensitive judgments. The Fourth Amendment
often implicates the latter more than the former, and the stan-
dard of review that governs in these cases is accordingly
designed to ensure they are resolved concretely, not simply
abstractly.
Johnson’s invitation to reverse would move us in the wrong
direction. His case is quintessentially one in which the offi-
UNITED STATES v. JOHNSON 9
cers involved and the district court that heard the evidence
were better positioned than we to consider the merits of his
claim. Does an officer’s long experience end the inquiry? Of
course not. But in the Supreme Court’s Fourth Amendment
calculus, it matters. Do a district court’s superior eyes and
ears end the inquiry? Of course not. But in the Supreme
Court’s Fourth Amendment calculus, they matter. So we shall
keep them much in mind as we proceed.
III.
In the case before us, Johnson argues that he was unreason-
ably seized by Officer Bannerman and that the district court
should therefore have suppressed any evidence discovered as
a result of the seizure. See Wong Sun v. United States, 371
U.S. 471, 485-86 (1963); Mapp v. Ohio, 367 U.S. 643, 655
(1961). Specifically, Johnson objects to the district court’s
having allowed evidence concerning the gelcap he threw, the
cash found on his person, and the drugs, drug paraphernalia,
and handgun discovered in the car. We review these claims in
turn.
A.
We begin with the gelcap Johnson attempted to dispose of
when Officer Bannerman arrived. In Johnson’s view, he was
subjected to an unreasonable seizure when Bannerman
entered the Chinese restaurant and ordered him to show his
hands. This claim is mistaken.
Even assuming this initial encounter was a Fourth Amend-
ment seizure, it was in no sense unreasonable. The Supreme
Court has identified two kinds of personal seizures: (1) brief
investigatory stops of the sort identified in Terry v. Ohio, 392
U.S. 1 (1968) and (2) arrests. See United States v. Brown, 401
F.3d 588, 592 (4th Cir. 2005). A so-called Terry stop allows
a police officer whose observations lead him to suspect that
a particular person has committed or is about to commit a
10 UNITED STATES v. JOHNSON
crime to detain the person briefly in order to "investigate the
circumstances that provoke suspicion." Brignoni-Ponce, 422
U.S. at 881; see also Adams v. Williams, 407 U.S. 143, 145-
46 (1972). So long as a temporary detention is for this limited
purpose, it does not cross the line into a full-blown arrest. See
United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995).
In this case, Officer Bannerman’s conduct was entirely con-
sistent with simply trying to ascertain who Johnson was and
what he was doing. Prior to his formal arrest of Johnson,
therefore, Officer Bannerman can be said at most to have sub-
jected Johnson to a Terry stop.
A Terry stop satisfies the reasonableness requirement of the
Fourth Amendment if there exists "a reasonable, articulable
suspicion that criminal activity is afoot." Illinois v. Wardlow,
528 U.S. 119, 123 (2000). This requires only "some objective
manifestation that the person stopped is, or is about to be,
engaged in criminal activity." Cortez, 449 U.S. at 417. But the
officer’s suspicions must also be more than an "inchoate and
unparticularized suspicion or hunch." Terry, 392 U.S. at 27.
In this case, Officer Bannerman had an objective basis to
think that Johnson was selling drugs. Johnson’s conduct was
entirely consistent with drug dealing. He was observed mak-
ing similar hand-to-hand contact with multiple people and
appeared to be waiting to meet them. The hasty, even furtive,
nature of this series of encounters was much in keeping with
an illicit handoff. Moreover, it is hard to imagine what else
Johnson could have been doing. The only innocent explana-
tion Johnson offers is that he could have been greeting the
men he touched. But his conduct was hardly consistent with
a social interaction. The other men did not linger or engage
in conversation. They approached quickly and just as quickly
quit the scene.
These observations, however, are only the beginning. The
fact that this activity was taking place in a location well
known for street-side drug-dealing alters the landscape of rea-
UNITED STATES v. JOHNSON 11
sonable inferences. The Supreme Court has held that the com-
bination of presence in an area known for heavy narcotics
trafficking and unprovoked flight upon seeing police arrive
was enough to support a reasonable suspicion under Terry.
See Wardlow, 528 U.S. at 124. Here we have a stronger case
than that, for Johnson appeared to have been caught in the
very act of drug-dealing for which the area was renowned. On
top of that, one of the two suspected buyers who seemed to
be following Johnson into the Chinese restaurant veered off
at the sight of the police.
For all these reasons, Johnson’s suggestion that upholding
the denial of his suppression motions means that the police
will be permitted to detain any person who is seen touching
hands with someone else in a high crime area is well off the
mark. There is nothing to suggest that the series of contacts
in question were in any way social and much to suggest that
they were instances of illegal drug dealing. Where there is a
plausible claim to be made that a suspect has been caught in
flagrante delicto, Terry standards are most often satisfied.
Since Officer Bannerman did not violate Johnson’s Fourth
Amendment rights by requiring him to open his hands in the
brief period before he attempted to arrest Johnson, evidence
concerning the gelcap that Johnson threw during that period
was not subject to suppression.
B.
Next, we consider the money found on Johnson’s person.
This evidence was obtained as a result of Johnson’s being
placed under arrest. Because we conclude that the arrest did
not violate the Fourth Amendment, the district court was
again correct in rejecting Johnson’s suppression claim.
Under the Fourth Amendment, a warrantless arrest is an
unreasonable seizure unless there is probable cause to believe
that a criminal offense has been or is being committed. See
United States v. Watson, 423 U.S. 411, 417-424 (1976);
12 UNITED STATES v. JOHNSON
Brinegar v. United States, 338 U.S. 160, 175-176 (1949). The
standard for whether probable cause exists is an objective
one; it exists when, "at the time the arrest occurs, the facts and
circumstances within the officer’s knowledge would warrant
the belief of a prudent person that the arrestee had committed
or was committing an offense." United States v. Manbeck,
744 F.2d 360, 376 (4th Cir. 1984).
Johnson argues against a finding of probable cause, urging
that much of his conduct could be seen as innocent. But as
with the "reasonable suspicion" standard under Terry, "inno-
cent behavior frequently will provide the basis for a showing
of probable cause." Gates, 462 U.S. at 243 n.13. And as we
noted earlier, "a police officer may draw inferences based on
his own experience in deciding whether probable cause
exists," Ornelas, 517 U.S. at 700, including inferences "that
might well elude an untrained person," Cortez, 449 U.S. at
418.*
At any rate, assuming arguendo that probable cause to
arrest did not already exist when Bannerman entered the Chi-
nese restaurant, it certainly did by the time Bannerman actu-
ally attempted to arrest Johnson. The reasonable suspicion
that would have supported an investigatory stop progressed to
probable cause to arrest when Johnson reacted to Officer Ban-
*Johnson cites a handful of cases in which probable cause to arrest may
have been lacking, but none of them presents the kind of circumstance we
confront here, where a suspect is observed in the course of affirmatively
committing a criminal act, as opposed to other behavior incriminating only
by inference, such as flight. See United States v. Christian, 187 F.3d 663
(D.C. Cir. 1999); United States v. Wilson, 2 F.3d 226 (7th Cir. 1993);
United States v. Embry, 546 F.2d 552 (3d Cir. 1976). The two cases from
this circuit Johnson cites are likewise inapposite. The only holding in
United States v. Mayo, 361 F.3d 802 (4th Cir. 2004) was that police could
use evidence obtained from a Terry stop. United States v. Sprinkle, 106
F.3d 613 (4th Cir. 1997), meanwhile, held that the Terry standard was not
met where a police officer "could actually see that nothing of a criminal
nature was happening" at the moment he observed the defendant. Id. at
618. In this case, the officer actually observed the opposite.
UNITED STATES v. JOHNSON 13
nerman’s commands by flinging what Bannerman believed to
be a heroin gelcap over the restaurant counter. While Banner-
man was entitled to conclude that the gelcap contained drugs
simply from its appearance, the fact that Johnson attempted to
discard it precisely when the police appeared provided even
more reason to believe that Johnson had been caught red-
handed. Once Johnson was observed in possession of illegal
drugs, the officers certainly had probable cause to believe that
the already suspicious series of hand-to-hand contacts were
exactly what police suspected them of being. Accordingly,
since the arrest did not violate the Fourth Amendment, the
district court was correct in allowing evidence obtained as a
result.
C.
Finally, Johnson challenges the district court’s refusal to
suppress evidence concerning the drugs, drug paraphernalia,
and handgun discovered in the car. Once again, we find no
error.
Officers may search a readily mobile automobile if they
have probable cause to believe that their search will uncover
contraband. See United States v. Kelly, 592 F.3d 586, 589-91
(4th Cir. 2010). Here there was ample basis for probable
cause. Officer Bannerman had probable cause to believe that
Johnson had been engaging in drug crimes by the time he
reached the car. Since Johnson was seen on video going to the
car just before the hand-to-hand encounters that were at the
heart of the probable cause to arrest, Bannerman in turn had
probable cause to believe the car contained evidence of those
activities. This was all the more so since when Bannerman
looked into the car’s window, an act that in no way violated
the Fourth Amendment, he saw gelcaps in plain view like the
one he had recovered from Johnson. See Brown, 460 U.S. at
740; United States v. Taylor, 90 F.3d 903, 909 n.4 (4th Cir.
1996).
14 UNITED STATES v. JOHNSON
IV.
In addition to his Fourth Amendment claims, Johnson chal-
lenges aspects of his conviction on two other grounds. First,
Johnson argues his convictions on the two counts relating to
possession of a firearm were not supported by sufficient evi-
dence. Because a sufficiency claim must fail "if there is sub-
stantial evidence, viewed in the light most favorable to the
Government, to support" the jury’s verdict, United States v.
Cardwell, 433 F.3d 378, 390 (4th Cir. 2005), we reject John-
son’s claim. In light of our discussion of the more than ample
reasons for the search of the car, we find no merit to John-
son’s suggestion that there was insufficient evidence for the
jury to conclude that he possessed the items found within it.
Finally, citing Apprendi v. New Jersey, 530 U.S. 466
(2000), Johnson also raises a Sixth Amendment challenge to
his sentence enhancement under 18 U.S.C. § 924(e), the
Armed Career Criminal Act. But since, as he acknowledges,
we have already rejected the very argument he makes, see
United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir. 2005),
this claim too must fail.
V.
For the foregoing reasons, the judgment is hereby
AFFIRMED