Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
3-30-2004
USA v. Bonner Precedential or Non-Precedential: Precedential
Docket No. 03-1547
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Recommended Citation "USA v. Bonner" (2004). 2004 Decisions. Paper 879. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/879
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL W. Penn Hackney, Esq. Karen S. Gerlach, Esq. UNITED STATES COURT OF Lisa B. Freeland, Esq. (Argued) APPEALS Office of Federal Public Defender FOR THE THIRD CIRCUIT 1001 Liberty Avenue 1450 Liberty Center Pittsburgh, PA 15222 No. 03-1547 Counsel for Appellee
UNITED STATES OF AMERICA, OPINION Appellant
v. COWEN, Circuit Judge.
JERMANE E. BONNER Jermane Bonner fled from police after the car in which he was a passenger was stopped for a routine traffic violation. On Appeal from the United States The police gave chase and, upon District Court apprehending him, discovered that he was for the Western District of Pennsylvania carrying crack cocaine. The government (D.C. Criminal No. 02-cr-00046) prosecuted Bonner for possession with the District Judge: Hon. Gary L. Lancaster intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The District Argued September 16, 2003 Court suppressed all evidence seized during the stop including the drugs. This BEFORE: MC KEE, SMITH and appeal by the government followed. COWEN, Circuit Judges In suppressing the evidence, the (Filed: March 30, 2004) District Court held that the officers lacked a reasonable, articulable suspicion that Mary Beth Buchanan, Esq. Bonner was involved in criminal activity. Bonnie R. Schlueter, Esq. (Argued) The District Court reasoned that the sole Office of United States Attorney basis for the stop was Bonner’s flight from 700 Grant Street police, and that under Illinois v. Wardlow, Suite 400 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. Pittsburgh, PA 15219 570 (2000), and its progeny, mere flight when police appear on the scene is not Counsel for Appellant sufficient to estab lish reasonable suspicion. We will reverse. Under the facts of the patrol car, driving in the direction this case we hold that the officers had Bonner was running, then parked and reasonable suspicion to stop Bonner. continued the chase on foot. Although flight alone is not enough to justify a police stop, this is not a case of Officer English eventually caught flight upon noticing police. The officers in Bonner by tackling him. Both officers this case were effectuating a legitimate then subdued and handcuffed Bonner. traffic stop. During a traffic stop, police While subduing him, Officer English officers m ay exercise reasonable observed a clear plastic bag in Bonner’s superintendence over the vehicle, its hand. The bag contained seven golf ball driver, and passengers. Because Bonner sized rocks, which were later tested and prevented the police from maintaining found to be crack cocaine. The officers oversight and control over the traffic stop also seized $534.25 from Bonner during by fleeing, we hold that the police had the arrest. reasonable suspicion to stop him. The driver and other passenger I were told to put the vehicle in park, turn off the ignition, and step out of the vehicle. On March 8, 2001, Officers Both were handcuffed and detained for a Harbaugh, English, Stewart, and Sweeney brief period of time, then released with a were in uniform and on duty at the police citation for the traffic violations. security booth at the entrance to the Ohioview Acres housing project in Stowe We have jurisdiction under 18 T o w nship , Pen nsylv ania . At U.S.C. § 3731, and conduct plenary review approximately 11:40 p.m., Officer of the District Court’s determination that Harbaugh noticed a sports utility vehicle the officers did not have reasonable leaving the housing project that had one suspicion to stop Bonner. Ornelas v. headlight out and an expired inspection United States, 517 U.S. 690, 116 S. Ct. sticker. He signaled for the vehicle to 1657, 134 L. Ed. 2d 911 (1996); United stop. The driver, Nathan Stewart, States v. Valentine, 232 F.3d 350 (3d Cir. complied. In addition to the driver, there 2000). We review the District Court’s were two passengers: the driver’s brother, findings of fact for clear error. Ornelas, Neil Stewart, in the back seat and Jermane 517 U.S. at 698, 116 S. Ct. at 1663. Bonner in the front passenger seat. II As Officer Harbaugh approached the driver’s side of the vehicle, Bonner As a preliminary matter, the alighted and ran. Officer Stewart chased government challenges the District Court’s after him on foot, repeatedly yelling for findings that the area was not a high crime him to stop. Officer English gave chase in area, and that the hour of the stop, 11:40
2 pm, was not significant to the reasonable U.S. 106, 109, 98 S. Ct. 330, 332, 54 L. suspicion inquiry. In support of its Ed. 2d 331 (1977). It is also well settled contention that the Ohioview Acres that a police officer executing such a stop housing project was a high crime area, the may exercise reasonable superintendence government submitted a log book of over the car and its passengers. Under arrests made at the housing project over a Mimms, the officer may order the driver three-year period. As the District Court out of the vehicle without any found, the log book reflected that there particularized suspicion. Mimms, 434 was an average of 1.3 arrests per week, U.S. at 110-11, 98 S. Ct. at 333. The and that most of the arrests were for Supreme Court extended that bright line misdemeanors and summary offenses. rule to allow the officer to order any Considering the number of people who passengers out of the car as well. live in the housing project, the District Maryland v. Wilson, 519 U.S. 408, 117 S. Court found that this average reflected Ct. 882, 137 L. Ed. 2d 41 (1997). neither a high crime area nor trafficking in Alternatively, the officer may order all of narcotics. The government contends this the occupants to remain in the car with finding was clearly erroneous, and points their hands up. United States v. to a news article as further evidence of the Moorefield, 111 F.3d 10 (3d Cir. 1997). level of crime present in the area. Even In addition, the officer may pat down the considering the news article, however, the occupants of the vehicle and conduct a evidence does not compel the conclusion search of the passenger compartment, if he that the District Court erred in finding that has a reasonable suspicion that the the housing project was not a high crime occupants might be armed and dangerous. area. The District Court found that the Michigan v. Long, 463 U.S. 1032, 1049- stop did occur at 11:40 p.m., but did not 50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d consider that factor relevant to its analysis 1201 (1983) (permitting search of vehicle of whether there was reasonable suspicion during traffic stop); Mimms, 434 U.S. at for the stop. The evidence does not 111-112, 98 S. Ct. at 334 (permitting pat compel a different conclusion. We down of driver upon reasonable conclude that the fact finding by the suspicion); Terry v. Ohio, 392 U.S. 1, 17, District Court was not clearly erroneous. 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968); Moorefield, 111 F.3d at 13-14 III (permitting pat down of passenger upon reasonable suspicion). It is uncontested that the initial traffic stop was lawful under the Fourth The government asserts that the Amendment. A police officer who police officers ordered Bonner and the observes a violation of state traffic laws other occupants to stay in the vehicle. At may lawfully stop the car committing the the suppression hearing, however, there violation. Pennsylvania v. Mimms, 434 was conflicting testimony whether the
3 officers said anything before Bonner ran. its progeny, an officer may conduct a brief, The District Court made no finding with investigatory stop when that officer has “a respect to what, if anything, the officers reasonable, articulable suspicion that said before Bonner got out of the vehicle criminal activity is afoot.” Illinois v. and ran. We will assume for the purpose Wardlow, 528 U.S. 119, 123, 120 S. Ct. of this opinion that the officers did not 673, 675, 145 L. Ed. 2d 570 (2000). issue any commands before Bonner began Although reasonable suspicion is less running. But even absent a specific demanding than probable cause, the Fourth command, it is undisputed that Bonner, an Amendment does require that an officer occupant of the stopped vehicle, ran from making a stop have some level of objective the scene of a legitimate traffic stop justification for that stop. United States v. without authorization or consent of the Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, officers. During such a stop, a police 1585, 104 L. Ed. 2d 1 (1989). In officer has the authority and duty to evaluating whether a particular stop was control the vehicle and its occupants, at justified, courts must look at the totality of least for a brief period of time. 1 Bonner the circumstances surrounding the stop. prevented Officer Stewart from controlling Sokolow, 490 U.S. at 8, 109 S. Ct. at 1586 the stop by running from the vehicle (quoting United States v. Cortez, 449 U.S. before the purpose of the stop was even 411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d announced. 621(1981)). In effectuating a valid stop, police officers are allowed to use a Under Terry v. Ohio, 392 U.S. 1, 88 reasonable amount of force. Graham v. S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Bonner argues that flight, standing alone, is not sufficient 1 to engender reasonable suspicion on the The Supreme Court has never part of a police officer. Indeed, the addressed the question of whether, during Supreme Court has never held that a lawful traffic stop, the police could unprovoked flight alone is enough to detain any passengers for the entire justify a stop. The Supreme Court has duration of the stop. Indeed, the Court held, however, that flight upon noticing explicitly left that question open when it police, plus some other indicia of held that the police could order passengers wrongdoing, can constitute reasonable out of the car during a stop. Maryland v. suspicion. Wardlow, 528 U.S. at 125-26, Wilson, 519 U.S. 408, 415 n. 3, 117 S. Ct. 120 S. Ct. at 676-77. The “plus” factor 882, 886 n. 3, 137 L. Ed. 2d 41 (1997). was Wardlow’s mere presence in an area That question is not before us, as Bonner known for high narcotics trafficking. fled before the purpose of the stop was Wardlow, 528 U.S. at 124, 120 S. Ct. at announced, and before the police could 676. In holding that flight plus presence in exercise the initial control authorized by a high crime area justified the stop, the Wilson and other cases.
4 Court explained, “the determination of Terry, 392 U.S. at 34, 88 S. Ct. at 1886 reasonable suspicion must be based on (White, J. concurring)). Moreover, a commonsense judgments and inferences refusal to cooperate with the police in a about human behavior.” Wardlow, 528 consensual encounter, without more, U.S. at 125, 120 S. Ct. at 676. cannot constitute reasonable suspicion for a stop. Florida v. Bostick, 501 U.S. 429, In Wardlow, eight officers in a 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d four-car caravan converged on a 389 (1991) (citations omitted). neighborhood known for high narcotics trafficking. Upon arriving in the area, two In this case, however, Bonner did of the officers noticed the defendant not simply flee upon “noticing” police, nor standing near a building, holding a bag. did he simply refuse to cooperate during a The defendant looked in the direction of consensual encounter. Bonner fled from a the officers and then fled. Wardlow, 528 lawful traffic stop, before the officers had U.S. at 122, 120 S. Ct. at 675. Before he the chance to announce the purpose of the ran, the officers had no reason to suspect stop. He continued fleeing despite the defendant of any wrongdoing, and had repeated orders to stop, and he did not stop no legitimate cause to detain him; the running until he was tackled by Officer defendant simply fled from the possibility English. Bonner’s flight from a lawful of a consensual encounter with the police. police traffic stop, where that flight prevented the police from discharging their Mere presence in an area known for duty of maintaining oversight and control high crime does not give rise to reasonable over the traffic stop, provided the officers suspicion for a stop. Brown v. Texas, 443 with reasonable suspicion to stop Bonner U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. for further investigation. Flight from a Ed. 2d 357 (1979). Police officers may non-consensual, legitimate traffic stop (in approach individuals without reasonable which the officers are authorized to exert suspicion or probable cause, and may superintendence and control over the question such individuals without occupants of the car) gives rise to implicating the Fourth Amendment. reasonable suspicion. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 IV (1983). An individual approached in this manner “need not answer any question put By reason of Bonner’s flight in the to him; indeed, he may decline to listen to course of a legitimate traffic stop, the the questions at all and may go on his officers had reasonable suspicion to stop way.” Royer, 460 U.S. at 498, 103 S. Ct. him. Upon effectuating the stop the drugs at 1324 (citing Terry v. Ohio, 392 U.S. 1, were revealed, giving probable cause to 32-33, 88 S. Ct. 1868, 1885-86 20 L. Ed. arrest. The judgment of the District Court 2d 889 (1968) (Harlan, J. concurring); entered on February 12, 2003, will be
5 reversed. The case will be remanded to the District Court for further proceedings consistent with this opinion.
United States v. Bonner, No. 03-1547 because I believe these alternatives require the D istrict Court to conduct Smith, Concurring. fundamentally different inquiries, even Because I agree that “flight from a though the evidence offered for both may non-consensual, legitimate traffic stop (in be overlapping or even identical. which the officers are authorized to exert Here, the District Court found that superintendence and control over the “the government has not shown by a occupants of the car) gives rise to preponderance of the evidence that Ohio reasonable suspicion,” I join Judge View Acres is such an area.” After Cowen’s opinion in full. Maj. op. at 5. I reviewing the relevant evidence, the write separately only to highlight an issue District Court declared that evidence implicated in the District Court’s fact- “hardly makes Ohio View Acres a heavy finding which we have not been required crime and narcotics trafficking area.” to address: whether under the flight “plus” analysis of Wardlow, 528 U.S. 119, the What I am concerned about in these government is required to prove the Wardlow-type cases is the fact-finder’s existence of objective criteria for what focus: should it be that of a federal judge, constitutes a high crime area and that the operating within the confines of a stop occurred in such an area, or rather that courtroom, who believes the area to be one the government is required to prove that of high crime, or that of a police officer officers effecting the stop had a reasonable who, based on experience and an articulable basis to believe that they were awareness of crime and arrest data, had a in a “high crime area.” 2 I point this out
in which there is a high volume of crime, 2 Judge Cowen describes this factor as but does not qualify as a “high narcotics whether the area was a “high crime area.” trafficking area.” Because the test should Maj. op. at 2. The District Court’s be the same for either analysis, however, analysis, however, was more limited and the distinction is not material for purposes addressed only whether this was a “high of this concurrence. For purposes of narcotics trafficking area.” As there are continuity, then, I adopt Judge Cowen’s many crimes which do not involve articulation of the question–whether the narcotics trafficking, an area could be one area was a “high crime area.”
6 basis to form a reasonable articulable their own experience and specialized belief that it is such an area?3 Obviously, training to make inferences from and the differences in focus are not only dedu ctions abou t the cu mu lative differences of experience and perspective. information available to them that might A judge engaged in adjudicative fact- well elude an untrained person.”) (internal finding will apply standards of credibility quotation marks omitted); Ornelas v. and proof that differ from the cognitive United States, 517 U.S. 690, 699 (1996) processes of an officer acting in the field. (reviewing court must give the appropriate weight to factual inferences drawn by local law enforcement officers). In the same The touchstone of Terry v. Ohio is way, an officer is in the position to know its requirement that a court consider the routines and patterns of a geographic whether “the facts available to the officer area, and whether it is more prone to at the moment of the seizure or the search crime. This knowledge may not be ‘warrant a man of reasonable caution in reflected on arrest records and log sheets, the belief’ that the action taken was as arrests are not the only indicia of crime. appropriate[.]” 392 U.S. at 21-22 (1968) In any case, we need not resolve the issue (citing Carroll v. United States, 267 U.S. here. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96- 97 (1964)). As explained by the Supreme I agree that the evidence offered by Court in United States v. Cortez, 449 U.S. the government does not compel the 411, 418 (1981), an officer’s suspicion that conclusion that the District Court erred in criminal activity is afoot may be informed finding that Ohio View Acres was not a by “various objective observations, high crime area. And even if the District information from police reports, if such are Court were required to determine whether available, and consideration of the modes the officers had a reasonable articulable or patterns of operation of certain kinds of basis to believe it was a high crime area, lawbreakers. From these data, a trained such a finding would contribute nothing to officer draws inferences and makes the result here because the government has deductions–inferences and deductions that demonstrated flight “plus” by other might well elude an untrained person.” evidentiary means. See also United States v. Arvizu, 534 U.S. Finally, although I join Judge 266, 274 (2002) (officers may “draw on Cowen in reversing the District Court, I echo the sentiments of Judge McKee 3 expressed in Part III of his dissent. Wardlow did not resolve this issue because it appears that in that case there It should be a rare occasion when was no dispute that the stop took place in judges criticize, and thereby intrude into, a a high crime area. In the case before us, legitimate exercise of prosecutorial the District Court did confront a factual discretion. Nor should we routinely dispute on this issue.
7 question in our opinions the policy Court precedent compels us to affirm the decisions of Congress to federalize what district court’s order suppressing the has traditionally been state law street evidence that was seized in this case. crime. Our institutional role as judges is Moreover, although I do not think the limited by our jurisdiction and by the circumstances here establish a Terry stop, comity and respect we owe to coordinate I do agree that we must begin our analysis branches of government. with the Supreme Court’s decision in Terry. That being said, the instant case presents a series of events which the I. Terry v. Ohio dissent characterizes as a prosecutorial In Terry, the Supreme Court held “switcheroo.” I cannot disagree with that that a police officer may approach an characterization, and I share the “concern individual “for purposes of investigating for the appearance of fairness” expressed possibly criminal behavior even though by Judge McKee. It is one thing for the there is no probable cause to make an government to assume an investigation arrest,” and briefly detain him/her in order initiated by state law enforcement to fulfill “[a] legitimate investigative officials, or even to adopt a prosecution function [.]” 392 U.S. at 22. commenced by state prosecutors. It is quite another to seek a federal indictment The police officer in Terry where the federal interest in the case is approached and briefly detained two recognized only after state prosecutors individuals after observing their suspicious have given the case their best shot in the behavior from a distance and concluding state courts and lost on an issue of state that they were casing a store that they were law. Not only does such a tactic offend about to burglarize. The Terry Court held fundamental notions of fairness, it is that the Fourth Amendment allowed the contrary to traditional notions of our officer to briefly detain them in order to federalism. conduct a brief investigation into their suspicious behavior. Since the individuals’ actions also suggested that U.S. v. Bonner, No. 03-1547 they might be armed, the Court also concluded that the Fourth Amendment McKee, Dissenting allowed the officer “to conduct a carefully I must respectfully dissent, because limited search of the outer clothing . . . in I believe the majority’s analysis is an attempt to discover weapons which inconsistent with Terry v. Ohio, 392 U.S. might be used to assault [the officer].” Id. 1 (1968), and Illinois v. Wardlow, 528 at 30. The Court explained: U.S. 119 (2000). Although I view this The actions of [th e case a bit differently than the district court, defendants] were consistent I nevertheless conclude that Supreme with the officer’s hypothesis
8 that these men were content than that required to c o n t e m p l a t in g a establish probable cause, but daylight robbery - - also in the sense that which, it is reasonable suspicion can reasonable to arise from information that assume, would be is less reliable than that likely to involve the required to show probable use of weapons - - cause. and nothing in their conduct from the time he first noticed Id. (internal quotation marks omitted) them until the time (quoting Alabama v. White, 496 U.S. 325, he confronted them 330 (1990)). Accordingly, absent probable and identified cause, an individual’s detention must be himself as a police supported by “reasonable, articulable officer gave him suspicion that criminal activity is afoot.” sufficient reason to Illinois v. Wardlow, 528 U.S. 119, 123 nega te that (2000). However, Bonner was “detained” hypothesis. after the vehicle he was riding in was stopped for a traffic infraction, and the Supreme Court has allowed greater Id. at 28. latitude in the context of traffic stops. Therefore, “under Terry v. Ohio and A. Terry applied to traffic stops subsequent cases, ‘an officer may, Terry was first implicated in the consistent with the Fourth Amendment, context of a lawful traffic stop in conduct a brief, investigatory stop if the Pennsylvania v. Mimms, 434 U.S. 106 officer has a reasonable, articulable (1977). There, a police officer legally suspicion that criminal activity is afoot.’” stopped a car for a traffic violation and United States v. Valentine, 232 F.3d 350, ordered the driver to get out. The officer 353 (3d Cir. 2000) (internal citation was not motivated by any particularized omitted). The Supreme Court has suspicion in doing so; rather, it was the explained that: officer’s policy to order drivers out of their Reasonable suspicion is a cars “as a matter of course whenever they less demanding standard had been stopped for a traffic violation.” than probable cause not only Id. at 109-10. Once the driver was out of in the sense that reasonable the car, the officer noticed a bulge under suspicion can be established the driver’s jacket and the officer with information that is immediately conducted a “pat-down” different in quantity or search because he believed the bulge was
9 a weapon. Id. at 111-12. As a result of that minimal additional intrusion. Id. at 413-14. search, a gun was seized, and the In addition, “the fact that there is more defendant was thereafter arrested. than one occupant of the vehicle increases the possible sources of harm to the The Supreme Court held that the officer.” Moreover, “the motivation of a search did not violate the Fourth passenger to employ violence to prevent Amendment. The Court reasoned that apprehension. . . is every bit as great as considerations of safety justified allowing that of the driver.” Id. at 414. police to order drivers to get out of their vehicles during lawful traffic stops B. Bonner was not detained under because weapons could be concealed Terry inside the vehicle in easy reach of the The majority’s analysis assumes driver. Since police could lawfully order that we are confronted with a Terry stop, the driver out of the vehicle, the Court and the district court ultimately analyzed concluded that, under Terry, the officer the detention under Terry. However, after was “justified in conducting a limited reviewing the transcript of the suppression search for weapons once he had reasonably hearing, it is clear to me that the police concluded that the person whom he had officers who “stopped” Bonner were not legitimately stopped might be armed and basing their actions on any reasonable, presently dangerous.” Id. articulable suspicion as is required under The Court extended the rule of Terry. They certainly never were able to Mimms to include passengers of lawfully explain their conduct by establishing any stopped vehicles in Maryland v. Wilson, such suspicion despite having every 519 U.S. 408 (1997). There, as in Mimms, opportunity to do so during the a traffic violation created the grounds to suppression hearing. I think it telling that, legally stop an automobile. The police at the very beginning of the suppression ordered the passenger out of the car as a hearing, the district court asked the precaution, not because of any suspicion of government if Bonner was searched illegality. The Wilson Court had no pursuant to a Terry stop. The court difficulty concluding that the same inquired: “I understand that this is a considerations of safety present when warrantless search; is that a Terry v. Ohio drivers are ordered to get out of a stopped search?” App. at 127. The government’s vehicle outweighed the minimal intrusion response did not confirm a Terry stop. on any passenger who is ordered out of a Rather, counsel stated: “This was a search car that has been legally stopped for a incident to arrest.” Id. traffic infraction. Id. at 414. The Wilson It is not surprising that the Court found that, “as a practical matter, the government did not argue Terry initially passengers are already stopped by the because the testimony that the government virtue of the stop of the vehicle,” and the produced at the suppression hearing did order to get out of the car creates only a
10 not establish a Terry stop. Rather, the findings only when they are clearly testimony was consistent with, but fell erroneous, i.e. when they are “completely short of establishing, a search incident to a devoid of a credible evidentiary basis or valid arrest. The seizure can not be justified on that basis because the testimony failed to establish probable between establishing that an area is a “high cause for an arrest other than mere flight. crime area” versus establishing an officer’s See United States v. Myers, 308 F.3d 251, good faith belief that it is one. I do not 265-66 (3d Cir. 2002).4 suggest that the district court was correct When Officer English was asked to the extent that it required the why he chased Bonner he responded: government to prove that the area is “They were exiting a high crime area, actually “a high crime area” by a known trafficking (sic), and the officers preponderance of the evidence. Rather, informed the Defendant to stop and get the inquiry must be the subjective belief of back into the vehicle, and he failed to the arresting officer. However, it is clear comply with the officer’s orders.” App. at under Terry that the subjective belief must 148. However, the district court rejected be objectively reasonable. Hill v. the testimony that Bonner was ordered California, 401 U.S. 797 (1971). Absent back into the car as well as the officer’s more than was offered at the suppression testimony about a “high crime area” or one hearing, the district court’s inquiry known for “narcotics trafficking.” Id. at undermined the objective reasonableness 17.5 We reverse the district court’s factual of any subjective belief that the area in question was a “high crime” area or known for “narcotics trafficking.” 4 Despite its initial inquiry into a search Moreover, I think that the incident to arrest, the district court did requirement of an objectively reasonable base its ruling on Terry. App. at 18-19 belief addresses Judge Smith’s concern (“Bonner’s flight alone is insufficient to that such determinations are being made create a reasonable articulable suspicion by judges in the comfort of their that he was involved in criminal activity. . courtrooms rather than by officers in the . . Because this court finds that the streets. See Concurring Op. at 2. Although government failed to meet its burden of proper deference must be afforded to the showing Bonner’s stop was supported by training, experience, and knowledge of a reasonable articulable suspicion of police officers, as well as the trying criminal conduct, the stop and seizure c i r c u ms t a n c e s f a c i n g t h em, th e violated Bonner’s Fourth Amendment Constitution does not allow us to abdicate rights.”). our responsibilities in favor of their judgments simply because we are 5 In his concurring opinion, Judge operating within the comfortable confines Smith correctly notes the distinction of a courtroom or appellate chambers.
11 bear no rational relationship to the had him in a grasp around supporting data.” 6 Here, the district the waist; he continued to court’s findings of fact are clearly try to get up and get away supported by the record. from me. . . . I informed him numerous times to place There was conflicting testimony his hands behind his back about whether the officers said anything to and quit resisting. Bonner before he ran, and the court discredited the officers’ conflicting App. at 149. The officer was then asked testimony that they did. Id. at 15. Thus, as whether or not it was necessary to forcibly Judge Smith summarizes in his concurring place Bonner’s hands behind his back and opinion, the issue before us may be Officer English confirmed that he was able distilled as whether “flight from a non- “to subdue the Defendant” together with consensual, legitimate traffic stop . . . [by Officer Sweeney and Officer Stewart. Id. itself] gives rise to reasonable suspicion.” Therefore, the district court was quite See Concurring Op. at 1, and Maj. Op. at correct in stating: “The only pertinent 9. factor is Bonner’s flight.” App. at 18. Bonner was chased, tackled and The majority states that Officer handcuffed simply because he ran. That is English observed a plastic bag in Bonner’s abso lutely cons istent w ith Officer hand “[w]hile subduing him.” Maj. Op. at English’s testimony at the suppression 4. However, Officer English actually hearing. Officer English was asked the stated that he did not see the bag until after following question: “[T]he reason M r. Bonner had been handcuffed. Officer Bonner was being chased was because he English stated that after he was finally able started running, correct?” The officer to subdue Bonner, the officers discovered responded: “That’s the reason the initial that “he was clutching a plastic baggie. . chase was started, I believe.” App. at 153. .”. App. at 149. The other officer, Officer Officer English described the stop as Stewart, was never asked when he first follows: saw the baggie that Bonner was clutching. The only relevant testimony on this record I eventually caught up with is English’s testimony that he noticed the the Defendant, and we fell bag after Bonner was subdued, not before to the ground. . . . The or while he was being subdued. Officer Defendant continued to try Stewart testified that he saw Officer to get up away from me. I English take something out of Bonner’s hand “[a]fter he was in handcuffs.” App. 6 at 136. United States v. Taftsiou, 144 F.3d 287, 293 (3d Cir. 1998); see also United “It is the state’s burden to States v. Perez, 280 F.3d 318, 336 (3d Cir. demonstrate that the seizure it seeks to 2002).
12 justify on the basis of the reasonable 392 U.S. at 24. Nevertheless, the Court suspicion was sufficiently limited in scope remained cognizant of “the nature and and duration to satisfy the conditions of an quality of the intrusion” of the person investigative seizure.” Florida v. Royer, detained. Id. It concluded that the 460 U.S. 491, 500 (1983). Terry, like authority conferred on the Fourth Mimms and Wilson, recognized that Amendment for a brief detention must be officers who briefly detain individuals for “narrowly drawn. . . to permit a reasonable investigation based upon articulable search for weapons for the protection of suspicion need to protect themselves and the police officer, where he has reason to that concerns for the safety of the officer believe that he is dealing with an armed and others justify certain limited steps and dangerous individual, regardless of consistent with that concern. The Terry whether he has probable cause to arrest the Court explained: individual for the crime.” Id. at 27. Thus, “[t]he manner in which the seizure and [W]e can no t blind search were conducted is . . . as vital a part ourselves to the need for law of the inquiry as whether they were enforcement officers to warranted at all.” Id. at 28. protect themselves and other prospective victims of As noted above, the Mimms Court violence in situations where held that police may order the driver of a they may lack probable lawfully stopped automobile to step out of cause for an arrest. When the car for the officer’s own protection, an officer is justified in stating that “a significant percentage of believing that an individual murders of police officers occurs when the whose suspicious behavior officers are making traffic stops.” 434 U.S. he is investigating at close 106, 110 (1977) (internal citation and range is armed and quotation marks omitted). The danger is dangerous to the officer or reduced with only minimal additional to others, it would appear to intrusion by allowing officers to “control” be clearly unreasonable to the situation to the extent of ordering deny the officer the power occupants out of the car. “Establishing a to take necessary reasonable face-to-face confrontation diminishes the measures to determin e possibility, otherwise substantial, that the whether the person is in fact driver,” or passenger, “can make carrying a weapon and to unobserved movements; this, in turn, neutralize the threat of reduces the likelihood that the officer will physical harm. be the victim of an assault.” Id. “The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command
13 of the situation.” Michigan v. Summers, the suppression court that was precisely 452 U.S. 692, 702-03 (1981) (internal the justification for the search. However, citation omitted). 7 absent probable cause to arrest Bonner, the search can not be sustained as a search However, my colleagues have incident to an arrest. United States v. severed the rule from its analytical Myers, 308 F.3d 251, 265-66 (3d Cir. moorings. They are applying the rule here 2002). Moreover, even if we view this as even though the police did not even a Terry stop, I would still conclude that the attempt to explain their actions in terms of district court’s suppression order was any perceived threat from Bonner getting correct because there is nothing to out of the car and any danger arose from establish reasonable suspicion but chasing, tackling, and subduing an Bonner’s flight. occupant of a stopped vehicle who was merely trying to leave. Of course, I do not In addition, as noted above, the mean to suggest that flight necessarily scope and duration of the detention eliminates the danger the Court was authorized under Terry must be consistent concerned with in Terry, Mimms or with the articulable suspicion underlying Wilson. However, I think it a stretch to the detention; that is the sine qua non of equate law enforcement’s need to control Terry. It is the basis for eliminating the a driver or passenger with the officers’ requirement of probable cause before need to control Bonner here. Officer detaining someone. As the Court stated in English clearly testified that Bonner was Florida v. Royer, 460 U.S. 491, 500 chased and handcuffed because he ran (1983), “an investigative detention must away from a stopped car. No other be temporary and last no longer than is justification is offered, except by my necessary to effectuate the purpose of the colleagues. Accordingly, I believe this stop. Similarly, the investigative methods seizure can only stand only if it can be employed should be the least intrusive justified as a search incident to a valid means reasonably available to verify the warrantless arrest. officer’s suspicions in a short period of time.” Terry does not authorize police to The government no doubt realized chase, tackle and handcuff one who runs this and therefore, as explained above, told away from them based solely on flight. Moreover, I do not believe other precedent can support that level of intrusion either. 7 In United States v. Moorefield, 111 F.3d 10, 12-13 (3d Cir. 1997), we held that II. Detention Based on Flight Alone police could order a passenger in a To determine if Bonner was lawfully stopped car to remain inside with legitimately detained based solely on his his/her hands in the air based upon the flight, we must examine two Supreme same considerations of safety relied upon Court cases regarding an individual’s right in Mimms and Wilson.
14 to walk away from police officers; Florida person who is no more than suspected of v. Royer, 460 U.S. 491 (1983), and Illinois criminal activity, the police may not carry v. Wardlow, 528 U.S. 119 (2000). out a full search of the person. . . . Nor may the police seek to verify their A. Florida v. Royer suspicions by means that approach the In Royer, the Supreme Court held conditions of arrest.” Id. (citing Dunaway that there is no obligation to submit to v. New York, 442 U.S. 200, 207-09 inquiries when approached by police. The (1979)). Court also held that refusal to submit to The majority notes that Bonner was police questioning or cooperate with a the occupant of a stopped vehicle who “ran police inquiry does not, without more, from the scene of a legitimate traffic stop furnish the necessary grounds for without authorization or consent of the detention. 460 U.S. at 497-98. officers,” and assume that analysis under Prior to Terry v. Ohio [], Mimms and Wilson is appropriate. Maj. any restraint on the person Op. at 6 (emphasis added). However, amounting to a seizure for under Royer, it is irrelevant that Bonner the purposes of the Fourth left the vehicle without the police officers’ Amendment was invalid authorization. Royer did not condition an unless justified by probable individual’s right to go on his/her way on cause. Terry created a first obtaining police permission. In fact, limited exception to this conditioning the right to leave a police general rule: search and inquiry on the street on obtaining seizures are justifiable under “authorization or consent” would totally the Fourth Amendment if negate Royer’s holding. As the majority there is articulable suspicion correctly notes, a refusal to cooperate with that a person has committed the police in a consensual encounter, or is about to commit a without more, can not co nstitute crime. reasonable suspicion for a stop. Maj. Op. at 9 (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). Id. at 498 (citations omitted). The difficulty with analyzing this Thus, the Royer Court reinforced case stems not from Royer but from the fact that Terry did not create a license Illinois v. Wardlow, 528 U.S. 119 (2000). to detain for investigation in the absence The Court’s language there creates some of articulable suspicion. The Court also tension with its prior holding in Royer stressed that “[d]etentions may be even though the Wardlow Court was ‘investigative’ yet violative of the Fourth careful to explicitly reaffirm the holding in Amendment absent probable cause.” Id. at Royer. 499. “In the name of investigating a
15 B. Illinois v. Wardlow c i r c u m s ta n c e s , a l l o w i n g o f f i c e rs “confronted with such flight to stop the In Wardlow, the Court held that fugitive and investigate further is quite police properly conducted a Terry stop of consistent with the individual’s right to go an individual who fled after looking in the about business or to stay put and remain direction of an approaching police caravan silent in the face of police questioning.” in “an area known for heavy narcotics Id. at 125. “It was in this context that trafficking.” 528 U.S. at 121. The Court [police] decided to investigate Wardlow summarized Royer as holding “that when after observing him flee.” Id. at 124 an officer, without reasonable suspicion or (emphasis added). When the pursuing probable cause, approaches an individual, police officer caught Wardlow, he an individual has a right to ignore the immediately conducted a “pat-down search police and go about his business.” Id. at for weapons. . . because in his experience, 125. However, the Court also noted that it was common for there to be weapons in flight is one of the circumstances that must the near vicinity of narcotics transactions.” be considered under Terry. Id. In doing Id. at 121-22. so, however, the Court reiterated that “any refusal to cooperate, without more, does The context here is quite different, not furnish the minimal level of objective and we should not be so quick to ignore justification needed for a detention or the Supreme Court’s pronouncement in seizure.” Id. (quoting Florida v. Bostick, Royer that one who is approached by 501 U.S. 429, 437 (1991)). police “need not answer any question put to him; he may decline to listen to the A close reading of the Court’s questions at all and may go on his way.” opinion in Wardlow resolves any apparent Royer, 460 U.S. at 498 (citing Terry v. tension. It was not Wardlow’s flight that Ohio, 392 U.S. 1, 32-33 (1968)). Of justified his detention. Rather, it was course, Bonner did not walk away; he ran. flight in context with the other The Court in Wardlow noted that running circumstances in that case. The away is more consistent with guilt than circumstances included the fact that police with going about one’s business. 528 U.S. were “patrolling an area known for heavy at 125 (“[U]nprovoked flight is simply not narcotics trafficking.” Id. at 121. In fact, a mere refusal to cooperate. Flight, by its the police were traveling in a caravan very nature, is not ‘going about one’s “because they expected to find a crowd of business’; in fact, it is just the opposite.”). people in the area, including lookouts and That was clearly true in Wardlow’s case [drug] customers.” Id. As the police because the area where he was found, the caravan approached Wardlow, police saw drug activity there and the bag in his hand him look at them and run, holding a bag as combined with his flight to create the he fled. Given the context, police could articulable suspicion required under Terry. reasonably conclude that he was a drug Here, there is only flight, and my dealer, purchaser, or lookout. Under those
16 colleagues concede that “the Supreme see the importance of whether the purpose Court has never held that unprovoked of the stop had been announced or not as flight alone is enough to justify a stop.” the majority’s analysis would surely be the Maj. Op. at 8. same if Officer Stewart had announced the purpose of the stop. Moreover, an I doubt that the Court in Wardlow individual who exercises his or her intended to stretch its focus on running to constitutional right to leave a police the extent that the rule in Royer would be officer will inevitably prevent the police swallowed, especially since the Court officer “from controlling the stop” and disclaimed any such intent. Thus, I am completing an investigation. Given the skeptical that the Supreme Court intended o f f i c e r s ’ t e s ti m o n y, our Fo u r t h to announce a rule under Royer and Amendment inquiry must focus on Wardlow that would cause the Fourth Bonner’s flight, not the resultant loss of Amendment to rest upon the speed with control or the inability of police to which one chooses to leave an officer’s announce the reason for the stop. presence. Under such a rule the fundamental guarantees of the Fourth Bonner could have been briefly Amendment would vary with a suspect’s detained inside of the vehicle, and he gait. Until the Supreme Court announces could also have been detained pursuant to such a rule, I am not willing to conclude an order to step outside of the vehicle. In that someone in Bonner’s situation is free both situations, the detention would be to walk away from a lawfully stopped justified by very real concerns about the vehicle, but not free to walk too quickly officers’ safety. That is not what away or run. happened. The majority’s focus misses the point. Absent circumstances that permit My colleagues repeatedly stress that the kind of detention authorized by Mimms “Bonner prevented Officer Stewart from and its progeny, this case must be analyzed controlling the stop by running from the under the more restrictive lens of Terry, vehicle before the purpose of the stop was Royer, and Wardlow. Under the precedent even announced.” Maj. Op. at 7.8 I fail to of those cases, flight alone does not give rise to probable cause, or reasonable suspicion. Similarly, police can not rely 8 See also Maj. Op. at 6-7 (“[A] police upon some undefined and untethered officer has the authority and duty to notion of “control” to prevent someone control the vehicle and its occupants”); id from walking away from an interrogation at 7, n.1 (“. . .Bonner fled before the in the absence of probable cause or purpose of the stop was announced, and articulable suspicion where circumstances before the police could exercise the initial control authorized by Wilson and other cases.”); id. at 9 (“[Bonner’s] flight duty of maintaining oversight and control prevented the police from discharging their over the traffic stop. . . .”).
17 do not suggest the safety concerns so Commonwealth of Pennsylvania charged central to Terry, Mimms and their progeny. Bonner with possession with the intent to Of course, as I explain above, it is not the distribute crack cocaine as well as several arresting officers here who attempt to misdemeanors and summary offenses. explain Bonner’s arrest in terms of Defending himself in the Court of “control”; it is the majority. The officers Common Pleas, Bonner moved to suppress quite simply state that Bonner was arrested the physical evidence seized from him because he ran; and so he was. upon his arrest. He argued that the police lacked reasonable suspicion to initially Today we therefore hold that detain him. Following a hearing on his “[f]light from a nonconsensual, legitimate suppression motion, the Court of Common traffic stop (in which the officers are Pleas granted Bonner’s motion and authorized to exert superintendence and suppressed the evidence that was seized control over the occupants of the car) gives from him on November 29, 2001. rise to reasonable suspicion.” Maj. Op. at 9. This is a troubling resolution of a close The Commonwealth thereafter and difficult case. Reasonable minds can appealed the court’s suppression order to easily disagree about the application of the Superior Court. However, the Wardlow and Royer to the circumstances Commonwealth was not content to wait here. In the final analysis, it may well be until the state appellate court could that the Supreme Court will resolve the resolve its appeal. On March 13, 2002, tension I see between those two cases. Bonner was indicted in federal court for However, until that day comes, I simply possessing a controlled substance with can not agree with the majority’s intent to distribute. App. at 4, 9. The application of Supreme Court precedent. Commonwealth thereafter withdrew its appeal before the Superior Court of III. The Procedural Posture of this Pennsylvania could rule on it. Prosecution The state suppression ruling was There is an additional, and based upon that court’s interpretation of troubling aspect of this case that requires a the Pennsylvania Constitution and the brief comment. Inasmuch as the ruling of the district court is, of course, possession of the controlled substance based upon the U nited S tates found in Bonner’s possession after his Constitution.9 Accordingly, the Rooker- arrest constituted an offense under both state and federal law, prosecutors initially had the option of prosecuting him in state 9 court or in federal court. For reasons not The Pennsylvania Supreme Court has apparent on this record, prosecutors held that Art. I, § 8 of the Pennsylvania initially filed state charges and he was Constitution affords greater protection prosecuted in state court where the than the Fourth Amendment of the United States Constitution despite the almost
18 Feldman doctrine is not implicated by cooperation and communication between what can best be described as a state and federal prosecutors who executed prosecutorial “switchero o.” 10 this hand-off in order to execute an end Nevertheless, I am still concerned that run around the adverse decision of the state and federal prosecutors apparently Court of Common Pleas. Although we chose to shift this case to federal court have jurisdiction here and must exercise it, while the appeal of the state court’s this procedural history does not reflect suppression order was pending. I think it well on the criminal justice system and fair to assume a significant level of undermines the appearance of fairness so important to its proper functioning. “[T]o perform its high function in the best way[,] identical language of the two constitutional ‘justice must satisfy the appearance of prov isions. See Commonw ealth v. justice.’” In re Murchison, 349 U.S. 133, Edmunds, 526 Pa. 374, 398 (1991) 136 (1955) (quoting Offutt v. United (refusing to adopt a good faith exception States, 348 U.S. 11, 14 (1954)). In the to the warrant requirement as set forth in future, I would hope that concern for the United States v. Leon, 468 U.S. 897 appearance of fairness will constrain (1984)). prosecutors from engaging in the kind of 10 unexplained tactical manipulation that See District of Columbia Court of appears so evident here. Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). See also Williamson B.C. Chang, Rediscovering the Rooker Doctrine, 31 H ASTINGS L.J. 1337, 1350 (1980) (“[I]f [federal and state] trial courts could readily annul the judgments of each other on the merits, the prerequisite of finality in the judicial system would be destroyed.”); 18 JAMES W M. M OORE ET AL., M OORE’S F EDERAL P RACTICE ¶ 133.30[3][a] (3d ed. 2003). Under Rooker-Feldman, lower federal courts cannot entertain a constitutional claim if it has been previously adjudicated in state court, or if the relief requested in the claim requires either determining that the state court's decision is wrong or voiding the state court’s ruling. Gulla v. North Strabane Twp., 146 F.3d 168, 171 (3d Cir. 1998).