United States v. Johnson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 15 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v. No. 03-2153
RAYMOND JOHNSON,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-02-2038-MV)

Laura Fashing, Assistant U.S. Attorney (David C. Iglesias, U.S. Attorney, with
her on the brief) Albuquerque, New Mexico, for Plaintiff-Appellant.

Richard Winterbottom, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellee.

Before TYMKOVICH and McWILLIAMS , Circuit Judges, and PAYNE , * Chief
District Judge.

TYMKOVICH , Circuit Judge.

*
James H. Payne, Chief District Judge, United States District Court for the
Eastern District of Oklahoma, sitting by designation.
 The United States appeals from a district court order granting defendant

Raymond Johnson’s motion to suppress a pistol seized from him by an

Albuquerque police officer. We exercise jurisdiction pursuant to 18 U.S.C.

§ 3731 and 28 U.S.C. § 1291, reverse the district court’s order, and remand for

further proceedings.

Background

On October 24, 2002, Albuquerque Police (“APD”) received a call from a

citizen saying he had just seen a middle-aged man forcing a pre-teen girl to walk

down Copper and Pennsylvania Avenues in a part of town known to police as the

“War Zone” for its high levels of violent crime. The caller said he was still

observing the pair and described their actions and appearance in detail, noting

that the man appeared to be pushing and yelling at the girl and looking around for

something, but that he did not see any weapons. The caller promptly gave police

his cell phone number when asked and forthrightly answered all of the

dispatcher’s questions. He stayed on the line for approximately eight minutes,

until he saw a marked police cruiser approach the pair.

The cruiser belonged to Officer Robert Middleton, who had heard the

dispatcher’s report of the incident on his police radio. The dispatcher had

requested that officers investigate a suspicious person, and classified the call as

Priority 2. Priority 2 calls are the second-highest category in the APD’s priority

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system, below emergencies requiring immediate response but above those which

can wait for an hour or more. The dispatcher described a black male adult forcing

a white female juvenile to walk southbound on Pennsylvania and described the

man as approximately 35 years old, five feet, nine inches tall, with short, curly

hair, wearing green jeans and a white jacket with red “USA” lettering. The

dispatcher described the girl as around 12 years old, wearing a green hooded

jacket and blue jeans, approximately 90 pounds, and the same height as the man.

The dispatch information, which was also displayed on a computer screen in

Officer Middleton’s vehicle, indicated that it was unknown whether the man was

intoxicated or armed.

Minutes after receiving the call, Officer Middleton drove down

Pennsylvania Avenue and saw a man and girl matching the descriptions given by

the caller and relayed by the dispatcher. The only difference in their appearance

was the girl’s height, which the caller had estimated as five feet, four inches, but

which the dispatcher mistakenly had listed as five feet, nine inches. Officer

Middleton briefly watched the pair and testified that he did not observe the man

push or otherwise threaten the girl. He then pulled his marked cruiser next to the

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pair, got out and identified himself. The man was later identified as the defendant

and the girl as Samantha D. 1

Officer Middleton told the pair about the call and asked if the girl was

“okay.” Samantha said she was, and both she and Johnson denied that anything

untoward had happened. Officer Middleton testified that the girl did not appear

injured or upset. According to Officer Middleton, however, Johnson was acting

“fidgety” and looking back and forth. Johnson was also repeatedly pressing the

transmission button on a walkie-talkie he was carrying, though he did not put it to

his mouth and speak directly into it.

Just after Officer Middleton approached the pair, another officer, Rob

Duren, arrived. Officer Middleton asked Officer Duren to question the girl while

he talked to Johnson separately. Johnson and Officer Middleton then walked a

few steps to the front of Officer Middleton’s car, and Officer Middleton asked

Johnson to put down the walkie-talkie. Johnson did so.

Officer Middleton testified that he was concerned that Johnson may have

kidnapped the girl, or that the two were involved in prostitution. Officer

1
Though the girl later testified that she initially gave a false name because
she had run away from foster care in Ohio, we will follow the district court’s lead
and identify her herein as “Samantha” for purposes of consistency. Neither
Samantha nor Johnson immediately told Officer Middleton what their relationship
was, but later testimony revealed that Johnson was a friend of Samantha’s mother,
with whom Samantha was staying in Albuquerque.

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Middleton knew that prostitution and drug dealing were prevalent in the “War

Zone,” and that drug dealers and other criminals often used walkie-talkies to

signal each other to police presence or possibly to call in attackers. Officer

Middleton himself had previously been involved in a shooting in the area.

Once they were alone, Officer Middleton asked to see Johnson’s

identification. Johnson handed over an ID card or his wallet, which the officer

either put on the hood of his car or held in his hand. Officer Middleton then said,

“I’m going to pat you down for weapons.” Johnson immediately told the officer

that he had a gun and gestured to his right side. Officer Middleton told Johnson

to turn away from him, pulled Johnson’s jacket aside, and retrieved a .22 caliber

pistol from Johnson’s belt. Officer Middleton then handcuffed Johnson.

Officer Middleton testified that Johnson was compliant, never made any

threatening movements or remarks, and indeed acted “like a gentleman” during

the three minutes between their initial meeting and the discovery of the weapon.

On November 15, 2002, a federal grand jury indicted Johnson on the sole

count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). In response, Johnson filed a motion to suppress the

pistol. After conducting an evidentiary hearing, the district court granted

Johnson’s motion. This appeal followed.

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 Discussion

In its order, the district court gave three reasons for suppressing the

weapon: (1) the anonymous call to police “was insufficient to provide reasonable

suspicion for the initial stop,” (2) even if the initial stop was permissible any

“reasonable suspicion was dispelled by Officer Middleton’s initial contact with

Defendant and Samantha,” and (3) “the pat-down search . . . was not based on a

reasonable suspicion that Defendant was armed and dangerous, and was

conducted after any possible reasonable suspicion of criminal activity had been

dispelled.” On appeal, we view the evidence in the light most favorable to the

prevailing party and review the district court’s findings of fact only for clear

error. United States v. De la Cruz-Tapia, 162 F.3d 1275, 1277-78 (10th Cir.

1998). The ultimate question of the reasonableness of the seizure of the pistol is

a legal question we review de novo. Id. at 1277.

I.

As we have recognized before, police-citizen encounters come in three

varieties.

The first involves the voluntary cooperation of a citizen in response
to non-coercive questioning. The second is a Terry v. Ohio, 392 U.S.
1 (1968), stop, involving only a brief, non-intrusive detention and
frisk for weapons when officers have a reasonable suspicion that the
defendant has committed a crime or is about to do so. The third
encounter is the arrest of the defendant.

United States v. Madrid, 30 F.3d 1269, 1275 (10th Cir. 1994).

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 “The Fourth Amendment proscribes unreasonable searches and seizures; it

does not proscribe voluntary cooperation.” Florida v. Bostick, 501 U.S. 429, 439

(1991). Police officers may approach citizens, ask them questions and ask to see

identification without implicating the Fourth Amendment’s prohibition against

unreasonable searches and seizures. See id. at 434-35. The parties here agree

that Johnson’s interaction with Officer Middleton began as a voluntary, non-

coercive conversation that evolved into an investigatory detention and search for

weapons that falls within Madrid’s second category. They agree the district court

erred when it stated that Officer Middleton needed “a particularized, articulable

and reasonable suspicion that Defendant was engaged in criminal activity” before

initially stopping and questioning Johnson and Samantha.

The parties disagree about precisely when Johnson’s participation became

involuntary, thus implicating the Fourth Amendment. Though it is debatable

whether the relevant aspects of the encounter ever moved beyond voluntary

cooperation, the government has conceded that a seizure occurred when Officer

Middleton took Johnson’s identification. Johnson claims it was a few moments

earlier, when Officer Middleton asked him to put down the walkie-talkie.

Because we conclude Officer Middleton had reasonable suspicion both when he

asked Johnson to put down the walkie-talkie and when he asked for Johnson’s

identification, we need not determine the precise moment when a seizure occurred

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and will assume, without deciding, that the “inception of the detention” coincided

with Officer Middleton’s request that Johnson put down the walkie-talkie.

For our purposes, then, we simply note that after separating Johnson and

Samantha, Officer Middleton did four things in rapid succession: First he asked

Johnson to put down the walkie-talkie. Next, he took Johnson’s identification.

Then he told Johnson he was going to pat him down for weapons. Finally, after

Johnson said he was carrying a gun, Officer Middleton reached under Johnson’s

jacket and removed the pistol. These actions, taken together, constitute the

detention and weapons search whose reasonableness we must decide.

II.

Terry sets up a two-prong test of the reasonableness of investigatory

detentions and weapons searches. See Gallegos v. City of Colorado Springs, 114

F.3d 1024, 1028 (10th Cir. 1997). First, we must decide whether the detention

was “‘justified at its inception.’” Id. (quoting Terry, 392 U.S. at 20). The

government “must be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant the

intrusion.” Terry, 392 U.S. at 21. Those facts must tend to show that the

detainee has committed or is about to commit a crime. Gallegos, 114 F.3d at

1028 (citing Florida v. Royer, 460 U.S. 491, 498 (1993)). Second, the officer’s

actions must be “‘reasonably related in scope to the circumstances which justified

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the interference in the first place.’” United States v. Shareef, 100 F.3d 1491,

1500 (10th Cir. 1996) (quoting Terry, 392 U.S. at 20). At both stages, the

reasonableness of the officer’s suspicions is “judged by an objective standard

taking the totality of the circumstances and information available to the officers

into account.” United States v. Lang, 81 F.3d 955, 965 (10th Cir. 1996).

A.

We agree with the government that the district court’s order impermissibly

“evaluate[d] and reject[ed] each factor in isolation” and failed to accord proper

deference to the judgment of an experienced officer. See United States v.

Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir. 2003). The district court

proceeded through the factors listed by the government, but evaluated and

rejected each before moving on to the next. The court’s order mentions the

appropriate “totality of the circumstances” standard only once, in passing, and

only after having analyzed each factor cited by Officer Middleton in isolation.

Our de novo review of those factors leads us to conclude that the totality of the

circumstances Officer Middleton faced made his suspicions and actions

reasonable.

1. The Tip

The district court first addressed whether the anonymous call alone was

sufficient to give Officer Middleton reasonable suspicion. The court relied

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heavily on Florida v. J.L., 529 U.S. 266 (2000), in deciding it was not. In J.L., an

anonymous caller told police that a young black male wearing a plaid shirt at a

particular bus stop was carrying a gun. Officers responded to the bus stop, where

they found three young black men, including J.L., who was wearing a plaid shirt.

They frisked J.L. and found a gun. The Supreme Court pointed out that “apart

from the tip, the officers had no reason to suspect any of the three of illegal

conduct.” Id. at 268. The Court then held that even though J.L. matched the tip’s

physical description, without any other evidence of criminal conduct the tip did

not have sufficient “indicia of reliability” to give rise to reasonable suspicion. Id.

at 271-72 (citing Alabama v. White, 496 U.S. 325 (1990)).

The purpose of the Fourth Amendment and the associated exclusionary rule

is not to grant certain guilty defendants a windfall by letting them go free --

though it sometimes does do that. See Elkins v. United States, 364 U.S. 206, 217

(1960) (quoting then-Judge Cardozo in People v. Defore, 150 N.E. 585, 587 (N.Y.

1926): “The criminal is to go free because the constable has blundered.”). The

objective is rather to protect all citizens, particularly the innocent, by deterring

overzealous police behavior. See Mapp v. Ohio, 367 U.S. 643, 656 (1961)

(“[T]he purpose of the exclusionary rule ‘is to deter . . . .’”) (quoting Elkins, 364

U.S. at 217); Arizona v. Evans, 514 U.S. 1, 10 (1995) (“The exclusionary rule

operates as a judicially created remedy designed to safeguard against future

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violations of Fourth Amendment rights through the rule’s general deterrent

effect.”). See also Potter Stewart, The Road to Mapp v. Ohio and Beyond, 83

Colum. L. Rev. 1365, 1368 (1983) (arguing that the exclusionary rule is needed to

reduce “frequent infringements motivated by commendable zeal, not condemnable

malice”). 2

With that in mind, we can better understand why anonymous tips trouble

the courts and sometimes lead to the suppression of otherwise reliable evidence.

The first concern relates to the motives of the tipster. A tipster who refuses to

identify himself may simply be making up the story, perhaps trying to use the

police to harass another citizen. This is why the Supreme Court, in White and

J.L., has required that anonymous tips be accompanied by corroboration and

“other indicia of reliability.” See J.L. 529 U.S. at 271-72 (citing White, 496 U.S.

325 (1990)).

A second concern relates not to a tip’s anonymity but to its level of

specificity. Overly generic tips, even if made in good faith, could give police

2
Whether other remedies might better serve that purpose has provided the
basis for much academic debate. See, e.g., Akhil Reed Amar, Against Exclusion
(Except to Protect Truth or Prevent Privacy Violations), 20 Harv. J.L. & Pub.
Pol’y 457, 464 (1997) (“[T]he distribution of benefits under the exclusionary rule
is ‘upside down,’ helping the guilty, not the innocent.”); William J. Stuntz, The
Virtues and Vices of the Exclusionary Rule, 20 Harv. J.L. & Pub. Pol’y 443
(1997); Yale Kamisar, In Defense of the Search and Seizure Exclusionary Rule,
26 Harv. J.L. & Pub. Pol’y 119 (2003), and sources discussed therein at n.1.

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excessive discretion to stop and search large numbers of citizens. This too was

underlying the J.L. decision, where the Court emphasized the lack of detail in the

tip, which only pointed to a young black man wearing a plaid shirt at a certain bus

stop. See 529 U.S. at 272. Such a tip could, obviously, give police an excuse to

stop and search a large number of young men. The Court’s insistence on

additional detail from the tipster and corroborating observation by the police

helps ensure that police do not use vague tips to violate the Fourth Amendment

rights of innocent citizens. See White, 496 U.S. at 330 (“[I]f a tip has a low

degree of reliability, more information will be required to establish the required

quantum of suspicion than would be required if the tip were more reliable.”).

Though we are mindful of the concerns expressed in J.L., they are mitigated

by other facts here. First, although the dispatcher did not ask the caller’s name or

address, he did give police his cell phone number. See United States v. Jenkins,

313 F.3d 549, 554 (10th Cir. 2002) (ability of police to determine tipster’s

identity “provides a disincentive for making false allegations,” which courts

should take into account). He also stayed on the line for approximately eight

minutes describing what he was seeing, and his descriptions of Johnson’s and

Samantha’s appearance and location, if not the threatening behavior, were

confirmed by Officer Middleton’s observations. See id. at 554-55 (firsthand

knowledge entitles the tip to greater weight); United States v. Tuter, 240 F.3d

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1292, 1297-98 (10th Cir. 2001) (substantiated firsthand observations can support

a finding of reliability). These facts diminish the likelihood that the caller was

fabricating his story. Secondly, the description’s considerable detail significantly

circumscribed the number of people police could have stopped in reliance on it. 3

Because the initial stop and conversation between Johnson and Officer

Middleton was consensual, however, we need not decide whether the tip alone

was sufficient under White and J.L. to provide reasonable suspicion for a search.

We simply hold that the tip and the accompanying information relayed to Officer

Middleton, which included the dispatch’s priority level and a description of the

people and situation, are sufficiently reliable to be analyzed as part of the totality

of the circumstances.

2. The Initial Conversation

The district court, “assuming arguendo that the anonymous tip provided

reasonable suspicion justifying the initial stop” ruled that any such reasonable

suspicion “was dispelled after Officer Middleton’s initial contact” with them.

Again, perhaps because the district court was incorrect in its determination of

when reasonable suspicion was necessary to justify Officer Middleton’s actions,

3
Indeed, it seems unlikely that the tip would have given police a reason to
stop any other couple in the state of New Mexico, let alone on a particular street
in a high crime neighborhood in Albuquerque.

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its analysis of this issue fails to account for the totality of the circumstances

standard.

It is true that Officer Middleton’s initial observation and conversation with

the pair called into question much of the information in the tip. They both denied

that Johnson had been forcing Samantha to do anything, and Samantha’s

appearance did not belie their claims. Johnson’s gentlemanly, if nervous,

behavior likewise gave credence to their denials.

This does not mean, however, that Officer Middleton should have simply

abandoned his investigation at this point, blithely sending the couple on their way

in Albuquerque’s most dangerous neighborhood. The Fourth Amendment does

not require police to be so credulous. As Officer Middleton pointed out, in a

kidnapping, domestic violence, or similar situation, Samantha would likely be

intimidated when answering in front of Johnson, and both would have had an

incentive to lie if they were involved in some other criminal activity such as

prostitution or drug dealing. It is not an unreasonable inference that even before

Officer Middleton pulled over in a marked police cruiser, the two knew an officer

was watching them and behaved accordingly.

3. Johnson’s Nervousness

The district court next found that Johnson’s fidgeting and looking about

was “entirely normal” and therefore not a pertinent factor in the reasonable

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suspicion analysis. The government disputes both the characterization of

Johnson’s behavior and the decision not to consider it.

The first of these decisions by the district court – that Johnson’s behavior

was not outside the range of normal reactions to police questioning – is a finding

of fact, which we review only for clear error. See Gandara-Salinas, 327 F.3d at

1129. The record indicates that Johnson was “acting fidgety,” that he

continuously glanced around, and that he repeatedly depressed the transmission

button on his walkie-talkie. But as the district court noted, we have recognized

that even innocent people can display some nervousness when being questioned

by police. See United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998).

Though Johnson’s nervous behavior might suggest he had something to hide, we

cannot say the district court committed clear error in characterizing it as within

the range of behavior that an innocent person might exhibit under similar

circumstances.

The district court’s decision that this means Johnson’s behavior was not

part of the totality of the circumstances, however, is an incorrect application of

the law. We have held that typical “nervousness alone cannot support reasonable

suspicion of criminal activity,” and “is of limited significance,” and that courts

should “discount the detaining officer’s reliance on the detainee’s nervousness.”

Id. (internal quotations and citations omitted). Conduct that may be wholly

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innocent may nonetheless support a finding of reasonable suspicion in certain

circumstances. United States v. Sokolow, 490 U.S. 1, 9-10 (1989). For that

reason, we have also made clear that nervousness, even if it may be a normal

reaction, is still among the pertinent factors a reasonable law enforcement officer

would analyze in investigating possible crimes, and should not be completely

disregarded. See United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1998);

United States v. Williams, 271 F.3d 1262, 1268-69 (10th Cir. 2001).

“Discounting” something is not the same as “disregarding” it, as bargain-hunters

responding to advertisements for “discounted prices” will discover. The district

court therefore erred in not including Johnson’s behavior in the totality of the

circumstances.

4. The Walkie-Talkie

After having rejected the tip and Johnson’s behavior, the district court went

on to dismiss Johnson’s “handling of the walkie-talkie [as] a contributing factor

to the reasonable suspicion determination.” Officer Middleton testified that

Johnson’s handling of the walkie-talkie made him suspicious because walkie-

talkies are often used by people involved in drug dealing and other crime, and that

by depressing the button Johnson could be signaling to someone that he was being

confronted by police. The court refused to consider this because Officer

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Middleton acknowledged that Johnson never spoke directly into the walkie-talkie

and that he was not sure Johnson was actually calling someone.

The district court’s ruling on this point is directly contradicted by our

holding in Williams, where we acknowledged that police have learned that such

devices are often used by drug traffickers and that they suggest the close

proximity of a coconspirator. See 271 F.3d at 1269. See also United States v.

Inocencio, 40 F.3d 716, 723 n.9 (5th Cir. 1994) (describing use of walkie-talkies

by drug smugglers). An officer need not actually observe an individual use an

object in a criminal manner for it to raise the officer’s suspicions. See Sokolow,

490 U.S. at 9-10. Indeed, in Williams, the officer never even saw the defendant

touch the walkie-talkie; he just saw it on the passenger seat of the defendant’s

vehicle. 271 F.3d at 1265. Although in some situations a walkie-talkie may be

innocuous, here, as in Williams, “the radio in this case contributed substantially to

the officer’s suspicion that criminal activity was afoot.” 271 F.3d at 1269. In

Officer Middleton’s words, a walkie-talkie “really gives us that heightened sense

of awareness . . . . [W]e get really concerned as to who is watching us and who is

listening to what’s going on and who is going to be coming in to see us.” The

fact that Johnson appeared to be using this device to broadcast his dialogue with

Officer Middleton only added to the aura of illegality and danger.

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 5. The “War Zone”

The only factor the district court found relevant to the reasonable suspicion

analysis was the dangerousness of the area in which the stop took place. Quoting

Illinois v. Wardlow, 528 U.S. 119, 124 (2000), the district court correctly

acknowledged that the nature of the area in which a detention takes place is a

relevant consideration in the Terry analysis. The court went on, however, to find

the following statement in Wardlow controlling: “An individual’s presence in an

area of expected criminal activity, standing alone, is not enough to support a

reasonable, particularized suspicion that the person is committing a crime.” 528

U.S. at 124. Given our discussion above of the numerous factors erroneously

rejected by the district court, this latter statement obviously does not apply in this

case. 4

6. The Totality of the Circumstances

In ignoring these reasons for Officer Middleton’s continuing suspicion, the

district court “failed to accord deference to the [officer’s] ability to ‘draw on (his)

own experience and specialized training to make inferences from and deductions

about the cumulative information available to (him) that might well elude an

untrained person.’” Gandara-Salinas, 327 F.3d at 1130 (quoting United States v.

Nor did it in Wardlow itself, where the Court upheld the detention of a
4

suspect who had attempted to flee from police in a dangerous area. 528 U.S. at
124-25.

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Arvizu, 534 U.S. 266, 273 (2002)). All of these factors, mitigating and

aggravating, should have been analyzed as part of the totality of the circumstances

faced by Officer Middleton at the inception of the detention.

When we apply the proper legal analysis to the fact findings of the district

court, then, the record shows that the following circumstances faced Officer

Middleton at the time of the detention: (1) the police had received a call from a

citizen who gave his phone number (but not his name) and described an adult

male forcing a juvenile girl down the street; (2) the caller gave a detailed and

accurate description of Johnson’s and Samantha’s appearance and where officers

would find them; (3) the caller did not know if the man was armed; (4) the

dispatcher requested that officers check on a suspicious person and attached the

department’s second-highest priority to it; (5) Officer Middleton’s brief

observation did not suggest that Johnson was using force on Samantha; (6)

Samantha and Johnson both denied the caller’s allegations when first questioned;

(7) drug dealers, pimps, and kidnappers are often armed; (8) Johnson was

nervous, if not abnormally so, but also cooperative and polite; (9) Johnson was

depressing the transmission button on a walkie-talkie; (10) individuals involved in

criminal activity often use walkie-talkies to communicate with each other; (11)

the incident took place in Albuquerque’s highest-crime area.

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 Though we agree with Johnson that under these circumstances a reasonable

person might have some doubts about the accuracy of the tipster and about

Johnson’s actual involvement in criminal activity, we do not agree that such

doubts made Officer Middleton’s actions unreasonable. “A determination that

reasonable suspicion exists . . . need not rule out the possibility of innocent

conduct.” Arvizu, 534 U.S. at 277. Indeed, “the likelihood of criminal activity

need not rise to the level required for probable cause, and it falls considerably

short of satisfying a preponderance of the evidence standard.” Id. at 274.

Furthermore,

[r]easonable suspicion is a less demanding standard than probable cause
not only in the sense that reasonable suspicion can be established with
information that is different in quantity or content than that required to
establish probable cause, but also in the sense that reasonable suspicion
can arise from information that is less reliable than that required to
show probable cause.

Tuter, 240 F.3d at 1296 n.2 (citing White, 496 U.S. at 330). Thus, as long as he

has a particularized and objective basis for suspecting an individual may be

involved in criminal activity, he may initiate an investigatory detention even if it

is more likely than not that the individual is not involved in any illegality.

Under the specific facts of this case, Officer Middleton had a reasonable

suspicion that Johnson might be involved in one or more criminal activities,

including drug dealing, kidnapping, or prostitution. His suspicions were

particularized to Johnson, and were based on how his training and experience

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taught him to interpret a number of objectively reasonable details. This is more

than the “inchoate and unparticularized suspicion or ‘hunch’” warned against in

Terry. See 392 U.S. at 27. We cannot say it was unreasonable, therefore, for

Officer Middleton to suspect that criminal activity was afoot. See id.

B.

To satisfy Terry’s second prong Officer Middleton’s actions must also have

been “reasonably related in scope to the circumstances which justified the

interference in the first place.” 392 U.S. at 20. During the detention Officer

Middleton took Johnson’s identification, told Johnson that he was going to pat

him down, and retrieved the gun from where Johnson indicated it was.

An officer may take reasonable precautions to protect his safety during an

investigative detention. See Shareef, 100 F.3d at 1502. Because Officer

Middleton reasonably suspected that Johnson might be involved in drug dealing,

kidnapping, or prostitution, these actions did not exceed the scope of his

suspicions. The crimes about which Officer Middleton was concerned are

typically associated with some sort of weapon, often guns. Officer Middleton

“confined his search strictly to what was minimally necessary” to ensure Johnson

was not armed, simply telling Johnson he was going to pat him down. See Terry,

392 U.S. at 29-30. He did not threaten Johnson in any way, use force, or

handcuff him. Indeed, once Johnson told him where the gun was, Officer

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Middleton did no more than was required to retrieve the gun. These actions were

permissible under Terry. See id. at 29-30 (“[The officer] confined his search

strictly to what was minimally necessary to learn whether the men were armed and

to disarm them once he discovered the weapons. He did not conduct a general

exploratory search for whatever evidence of criminal activity he might find.”).

Conclusion

The district court’s findings of fact are not clearly erroneous. Our de novo

review of the legal conclusions to be drawn from those facts, however, shows that

the district court erred in granting Johnson’s motion to suppress because Officer

Middleton’s actions were objectively reasonable.

This is a close case. A reasonable officer in Officer Middleton’s shoes may

have thought Johnson was in fact not involved in criminal activity. But every

indication is that Officer Middleton acted just as society would want its law

enforcement officers to act when investigating a suspicious situation. 5 He was

aware of a number of facts that made him suspect that Johnson might be involved

in potentially dangerous criminal activity. He did not threaten or intimidate

Johnson, or do any more than was necessary to negate or, as it turned out, confirm

his suspicions. He took modest steps to protect his and the public’s safety.

5
Mr. Johnson, by all accounts, also should be commended for his
“gentlemanly,” honest, and civil behavior toward Officer Middleton.
Unfortunately for all involved, before encountering Officer Middleton, he decided
to break a federal law by carrying a weapon.

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 [W]here the officer’s conduct is objectively reasonable, “excluding the
evidence will not further the ends of the exclusionary rule in any
appreciable way; for it is painfully apparent that . . . the officer is
acting as a reasonable officer would and should act in similar
circumstances. Excluding the evidence can in no way affect his future
conduct unless it is to make him less willing to do his duty.”

United States v. Leon, 468 U.S. 897, 919-920 (1984) (quoting Stone v. Powell,

428 U.S. 465, 539-40 (1976) (White, J., dissenting)). In this case, excluding the

weapon Officer Middleton took from Johnson would not deter any misbehavior

and would only make police officers less willing to do their duties.

The decision of the district court is therefore REVERSED and the case is

REMANDED for further proceedings consistent with this opinion.

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