Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
8-16-1995
United States v Johnson Precedential or Non-Precedential:
Docket 94-7646
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Recommended Citation "United States v Johnson" (1995). 1995 Decisions. Paper 223. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/223
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 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 1 UNITED STATES COURT OF APPEALS 2 FOR THE THIRD CIRCUIT 3 4 5 6 No. 94-7646 7 8 9 UNITED STATES OF AMERICA, 10 11 Appellant, 12 13 v. 14 15 PAUL N. JOHNSON; DARRYL JONNS; 16 LAMONT BELL; and CRAIG RICHARDSON, 17 18 PAUL N. JOHNSON, 19 20 Appellee. 21 22 23 24 Appeal from the United States District Court 25 for the Middle District of Pennsylvania 26 (D.C. Crim. No. 1:CR-94-145-1) 27 28 29 Argued April 18, 1995 30 31 32 Before: STAPLETON, HUTCHINSON and SEITZ, Circuit Judges. 33 34 Filed: August 16, 1995 35 36 37 David M. Barasch, United States Attorney 38 Dennis C. Pfannenschmidt, Assistant U.S. Attorney (Argued) 39 Office of the United States Attorney 40 Federal Building 41 228 Walnut Street 42 P.O. Box 11754 43 Harrisburg, PA 17108 44 45 Attorneys for Appellant 46 47 Spero T. Lappas, Esquire (Argued) 48 205 State Street 2
1 P.O. Box 808 2 Harrisburg, PA 17108-0808 3 4 Attorney for Appellee 5 Stefan Presser, Esquire 6 ACLU of Pennsylvania 7 125 South 9th Street, Suite 701 8 P.O. Box 1161 9 Philadelphia, PA 19105 10 11 David Rudovsky, Esquire 12 ACLU of Pennsylvania 13 Kairys & Rudovsky 14 924 Cherry Street, 5th Floor 15 Philadelphia, PA 19107 16 17 Eric B. Henson, Esquire 18 Jan Fink Call, Esquire 19 R. David Walk, Jr., Esquire 20 Hoyle, Morris & Kerr 21 4900 One Liberty Place 22 1650 Market Street 23 Philadelphia, PA 19103 24 25 Attorneys for Amicus Curiae ACLU of Pennsylvania 26 27 28 29
30 OPINION OF THE COURT 31
32 SEITZ, Circuit Judge.
33 Paul N. Johnson ("Defendant") was indicted by a federal 34 grand jury for conspiracy to distribute narcotics, see 21 U.S.C. 35 § 846, possession and distribution of narcotics, in violation of
36 21 U.S.C. § 841, and related firearms offenses, see 18 U.S.C.
37 §§ 922(g), 924(a)(2), (c)(1), (c)(2). The government appeals
38 here from an order of the district court granting Defendant's
39 pretrial motion to suppress contraband seized by the Pennsylvania
40 State Police during a vehicle search. The district court had 3
1 jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
2 pursuant to 18 U.S.C. § 3731. The trial has been stayed pending
3 the disposition of this appeal. 4 I. FACTS
5 The historic facts are taken from the memorandum
6 decision filed by the district court, see FED. R. CRIM. P. 12(e),
7 after the hearing on Defendant's motion to suppress the seized
8 materials.
9 A Pennsylvania State Trooper, while following a vehicle
10 traveling on Interstate 78 toward Harrisburg and driven by
11 Defendant, noticed "several large objects," which appeared to be
12 air fresheners, hanging from its inside rearview mirror. Because
13 he believed the hanging objects constituted a violation of the
14 Pennsylvania Vehicle Code, see 75 PA. CONS. STAT. ANN. § 4524(c)
15 (Supp. 1994),1 the trooper engaged his overhead lights and
16 signaled for the vehicle to pull to the side of the road.
17 After both vehicles stopped, the trooper asked
18 Defendant to produce his driver's license and automobile
19 registration card. Defendant produced a South Carolina driver's
20 license bearing the name "Tracy Lamar Washington." Although he
21 was unable to produce an automobile registration card, a
1 Section 4524(c) provides in relevant part: (c) Other obstruction.─No person shall drive any motor vehicle with any object or material hung from the inside rearview mirror . . . as to materially obstruct, obscure or impair the driver's vision through the front windshield or any manner as to constitute a safety hazard. Title 75, § 4524(c). 4
1 violation of the Pennsylvania Vehicle Code, see 75 PA. CONS. STAT. 2 ANN. § 1311(b) (Supp. 1994), Defendant told the trooper that he
3 owned the vehicle. See Appendix at A60-A61. At that point, the
4 trooper went to his patrol car and had the police dispatcher run
5 a check on the vehicle's license number.
6 While waiting for the vehicle check to be completed,
7 the trooper spoke separately with Defendant and the other
8 occupants of the vehicle. According to the trooper, during these
9 conversations Defendant as well as the passengers seemed
10 "unusually" and "exceptionally" nervous and gave the trooper
11 conflicting statements about the origin and the destination of
12 their trip. Although Defendant knew the name of one of the
13 passengers, he could identify another one only as "T." The
14 trooper testified that the circumstances caused him to suspect
15 that there were narcotics or contraband in the vehicle.
16 The trooper asked Defendant whether there was anything
17 illegal in the vehicle, and Defendant replied in the negative.
18 The trooper then asked Defendant for his consent to search the
19 car and presented him with a consent form to read and sign.
20 Although Defendant would not sign the form, the trooper testified
21 that he orally consented to the search. In the search that
22 followed, the trooper discovered one-half pound of marijuana, one
23 and one-half ounces of cocaine, one ounce of a substance often
24 used to "cut" cocaine, and a digital scale. At that point, the
25 trooper read the adult occupants of the vehicle their Miranda
26 rights, then placed them under arrest, and seized the contraband. 5
1 Defendant was first charged in state court with a
2 number of violations under the Pennsylvania Crimes Code, the Drug
3 Code, and the Vehicle Code. He, thereafter, filed a pretrial
4 motion to suppress the seized drugs and other contraband. The
5 Court of Common Pleas for Berks County, Pennsylvania suppressed
6 the seized materials found in the vehicle because it concluded
7 that they were obtained during an unlawful search. That action 8 was later nolle prossed. See id. at A71. 9 Defendant was also charged in the district court with
10 federal narcotics and firearms violations. Again, he moved to
11 suppress the same materials obtained by the trooper following the
12 traffic stop. Thereafter, the district court conducted a
13 pretrial suppression hearing and concluded that the traffic stop
14 was used by the trooper as a pretext, that is, a legal
15 justification for an otherwise unconstitutional vehicle stop
16 based on suspicion of narcotics possession. See United States v.
17 Johnson, No. 1:CR-94-145-01, slip op. at 6 (M.D. Pa. Oct. 24,
18 1994) ("Mem. Op."). As a result, the court found that the
19 subsequent search and seizure were tainted by this pretextual
20 stop and the seized materials were suppressed. The government
21 appeals that order. 22 II. DISCUSSION
23 Some preliminary observations are appropriate to an
24 understanding of the structure of this opinion.
25 We emphasize that this is an appeal by the government
26 from an order of the district court granting Defendant's pretrial
27 suppression motion. In the district court, Defendant set forth 6
1 what we understand to be two grounds for suppression: (1) the
2 traffic stop that eventuated in the seizure of the illegal
3 materials was unconstitutional, thus tainting the seizure; and
4 (2) the real reason for the traffic stop was to find a way to
5 search for drugs and not to enforce the traffic laws. As we read
6 the memorandum decision of the district court, it rejected 7 Defendant's first ground but relied on the second, i.e., pretext, 8 to grant his motion.
9 On appeal the government attacks the district court's
10 pretext finding, which, of course, the Defendant supports. We
11 will initially address whether the district court erred in its
12 ruling on the first ground in Defendant's motion. We do so
13 because if the district court erred in that determination, it
14 would be unlikely that the more complex pretext issue would be
15 decided. See, e.g., United States v. Shabazz, 993 F.2d 431, 435
16 n.3 (5th Cir. 1993). 17 A. Was The Traffic Stop Justified?
18 The United States Supreme Court has held that stopping
19 a car and detaining its occupants is a seizure under the Fourth 20 Amendment. See United States v. Hensley, 469 U.S. 221, 226 21 (1985); see also United States v. Velasquez, 885 F.2d 1076, 1081
22 (3d Cir. 1989), cert. denied, 494 U.S. 1017 (1990). However, a
23 stop to check a driver's license and registration is
24 constitutional when it is based on an "articulable and reasonable
25 suspicion that . . . either the vehicle or an occupant" has 26 violated the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979); 7
1 see Velasquez, 885 F.2d at 1081; see also 75 PA. CONS. STAT. ANN. 2 § 6308(b) (Supp. 1995).2
3 As a general rule, the burden of proof is on the
4 defendant who seeks to suppress evidence. See United States v.
5 Acosta, 965 F.2d 1248, 1256 n.9 (3d Cir. 1992) (citations
6 omitted). However, once the defendant has established a basis
7 for his motion, i.e., the search or seizure was conducted without
8 a warrant, the burden shifts to the government to show that the
9 search or seizure was reasonable. See United States v. McKneely,
10 6 F.3d 1447, 1453 (10th Cir. 1993).
11 The trooper testified that he stopped Defendant's
12 vehicle because, based on what he saw, he believed it was in
13 violation of the Pennsylvania Vehicle Code. See Appendix at A57.
14 As we read the district court's memorandum decision, it accepted
15 this testimony. See Mem. Op. at 12, 14. This finding of fact
16 exceeds the showing required of the government to justify the
17 traffic stop under Prouse, which requires only an articulable and
18 reasonable suspicion that the car was in violation of
19 Pennsylvania law. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 20 109 (1977); Velasquez, 885 F.2d at 1081. Because this finding is
21 not clearly erroneous, we conclude that the district court
2 Under section 6308(b) of the Pennsylvania Vehicle Code, a trooper who has reasonable and articulable grounds to believe that a vehicle or driver is in violation of the Vehicle Code may stop the vehicle. See Commonwealth v. Benton, 655 A.2d 1030, 1033 (Pa. Super. Ct. 1995). Although an actual violation need not be established, a reasonable basis for the officer's belief is required to validate the stop. See id.; Commonwealth v. McElroy, 630 A.2d 35, 40-41 (Pa. Super. Ct. 1993). 8
1 correctly determined that the trooper's basis for the stop,
2 standing alone, met Fourth Amendment requirements. 3 B. The Pretext Issue
4 Although the traffic stop itself met constitutional
5 requirements, the district court suppressed the seized materials 6 because it found that the traffic stop was merely a pretext to 7 find a basis to thereafter search Defendant's vehicle for
8 narcotics and, as such, was violative of the Fourth Amendment.
9 See Mem. Op. at 16. We now determine whether the district court
10 applied the proper standard in determining that the stop was
11 pretextual. This important issue presents a question of law
12 subject to plenary review. See United States v. Deaner, 1 F.3d
13 192, 196 (3d Cir. 1993).
14 In evaluating the constitutionality of a police traffic
15 stop, most courts agree that an objective analysis of the facts
16 and circumstances surrounding the stop is appropriate. See, e.g.,
17 Scott v. United States, 436 U.S. 128, 137-38 (1978); United
18 States v. Whren, 53 F.3d 371, 374 (D.C. Cir. 1995); United States
19 v. Hawkins, 811 F.2d 210, 213 (3d Cir.), cert. denied, 484 U.S.
20 833 (1987). However, courts of appeals have had some difficulty
21 in applying this objective assessment to the argument that a
22 traffic stop, otherwise lawful, is really a pretext to search for
23 evidence of an unrelated serious crime and, thus, unlawful.
24 Neither the Supreme Court nor this court seems to have directly
25 addressed this constitutional issue.3
3 Some courts have characterized this court's opinion in United States v. Hawkins, 811 F.2d 210 (3d Cir. 1987) as endorsing the 9
1 The majority of the courts of appeals have adopted the
2 so-called "authorization test." Under that approach, materials
3 seized following a traffic stop are admissible so long as a 4 reasonable police officer could have made the stop (also known as 5 the "could" test). These courts simply inquire whether, at the
6 time of the stop, the police officer reasonably believed the
7 defendant was committing a traffic offense, and whether the law
8 authorized a stop for such an offense.4
9 A minority of the courts of appeals have adopted the
10 "usual police activities" test (also known as the "would" test).
11 Applying that test to a traffic stop, materials seized are
12 admissible as evidence only if a reasonable police officer would
13 have made the stop in the absence of an invalid purpose.5 These
14 courts inquire not only into the legality of the stop, but also
15 into its conformity with regular police practices.
"authorization" test. See, e.g., United States v. Scopo, 19 F.3d at 783; United States v. Ferguson, 8 F.3d 385, 389 (6th Cir. 1993). In Hawkins, the police gave a pretext, a traffic violation, as the reason for stopping a vehicle whose occupants, they believed, were involved in the purchase and sale of narcotics. This court, without relying on the pretext asserted by the police, found an objectively reasonable basis for the stop. See Hawkins, 811 F.2d at 215. It stated that the pretext used by the police did not render an otherwise constitutional search invalid. See id. Therefore, the court was not required to address the allegedly pretextual nature of the traffic stop. 4 See Whren, 53 F.3d at 375-76; Scopo, 19 F.3d at 782-84; United States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994); United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994); United States v. Roberson, 6 F.3d 1088, 1092 (5th Cir. 1993); Ferguson, 8 F.3d at 389-91; United States v. Hadfield, 918 F.2d 987, 993 (1st Cir. 1990), cert. denied, 500 U.S. 936 (1991); United States v. Hope, 906 F.2d 254, 257-58 (7th Cir. 1990). 5 See United States v. Millan, 36 F.3d 886, 888 (9th Cir. 1994); United States v. Dirden, 38 F.3d 1131, 1139-40 (10th Cir. 1994); United States v. Harris, 928 F.2d 1113, 1116-17 (11th Cir. 1991). 10
1 In this case the district court adopted the minority
2 approach, the usual police activities test. It held that a
3 "reasonable" trooper would not have stopped the vehicle for the
4 minor traffic violation here involved, absent a "hunch" that the 5 occupants were trafficking in narcotics. See Mem. Op. at 15-16. 6 The usual police activities test, the court reasoned, "is most
7 faithful to the spirit of the Fourth Amendment." Id. at 13.
8 Thus, we must decide, under a plenary standard of
9 review, whether to adopt the minority standard employed by the
10 district court or the rule of the majority of the courts of
11 appeals.
12 The Supreme Court has consistently held that an
13 analysis of Fourth Amendment issues involves "`an objective
14 assessment of the officer's actions in light of the facts and
15 circumstances confronting him at the time' and not on the
16 officer's actual state of mind at the time the challenged action
17 was taken." Maryland v. Macon, 472 U.S. 463, 470-71 (1985)
18 (quoting Scott, 436 U.S. at 136); see Hawkins, 811 F.2d at 213-
19 14. "[T]he fact that the officer does not have the state of mind
20 which is hypothecated by the reasons which provide the legal
21 justification for the officer's action does not invalidate the
22 action so long as the circumstances, viewed objectively, justify 23 that action." Scott, 436 U.S. at 138; see United States v. 24 Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (stating that
25 the fact that customs officers boarding a ship pursuant to a
26 statute authorizing a check of the vessel's documentation
27 suspected that the vessel carried marijuana was not a violation 11
1 of the Fourth Amendment); Hawkins, 811 F.2d at 214 ("Both the 2 Supreme Court and this court have held that a seizure that is
3 valid based upon the stated purpose cannot be challenged on the
4 grounds that the seizing officers were in fact motivated by an
5 improper purpose."); see also Velasquez, 885 F.2d at 1081. We
6 conclude that the authorization test incorporates this objective
7 analysis.
8 On the other hand, the usual police activities test
9 applied by the district court is not a wholly objective test
10 because it requires a reviewing court to examine the motivations
11 and hopes of a police officer. See Mem. Op. at 9 ("The crux of
12 [the would] test is an objective analysis of what a reasonable
13 police officer would have done under the same circumstances
14 absent any underlying improper purpose."). This approach would
15 require a court to move past the objective facts and
16 circumstances, i.e., the traffic violation, and attempt to
17 ascertain an officer's true state of mind.
18 In response to the government's argument seeking to
19 have us apply the majority view, Defendant and amicus, ACLU,
20 contend that the authorization standard will do nothing to
21 restrain the arbitrary exercise of discretionary police power. 22 See Defendant's Br. at 12; ACLU Br. at 11-14; see also United 23 States v. Cannon, 29 F.3d 472, 474-75 (9th Cir. 1994) ("In the
24 absence of some limit on police power to make such stops,
25 thousands of everyday citizens who violate minor traffic
26 regulations will be subject to unfettered police discretion as to 27 whom to stop."); United States v. Guzman, 864 F.2d 1512, 1516 12
1 (10th Cir. 1988); 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE
2 FOURTH AMENDMENT § 1.4(e), at 28 (Supp. 1995) (arguing that the 3 authorization test has "conferred upon the police a virtual carte 4 blanche to stop people because of the color of their skin or for
5 any other arbitrary reason").
6 However, the police are subject to a number of
7 statutory and common law limitations. For example, officers
8 cannot make a traffic stop without probable cause or a reasonable
9 suspicion, based on articulable facts, that a traffic violation
10 has occurred. See Prouse, 440 U.S. at 661; Velasquez, 885 F.2d at
11 1081; see also 75 PA. CONS. STAT. ANN. § 6308(b). Thus, in
12 evaluating the constitutionality of a traffic stop, a court is
13 free to examine the sufficiency of the reasons for the stop as
14 well as the officer's credibility.
15 Furthermore, a traffic stop must be reasonably related
16 in scope to the justification for the stop. See Berkemer v.
17 McCarty, 468 U.S. 420, 439 (1984); Bloomfield, 40 F.3d at 915;
18 Scopo, 19 F.3d at 785; United States v. Hassan El, 5 F.3d 726,
19 731 (4th Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994). To
20 justify a greater intrusion unrelated to the traffic stop, the
21 totality of the circumstances known to the police officer must
22 establish reasonable suspicion or probable cause to support the 23 intrusion. See United States v. Ramos, 42 F.3d 1160, 1163 (8th 24 Cir. 1994); United States v. Hernandez, 872 F. Supp. 1288, 1293-
25 94 (D. Del 1994). Clearly, a lawful traffic stop is not "carte
26 blanche" for an officer to engage in other unjustified action. 13
1 In addition, the authorization test ensures that the
2 validity of a traffic stop "is not subject to the vagaries of
3 police departments' policies and procedures" concerning the kinds 4 of traffic offenses which are enforced. Ferguson, 8 F.3d at 392; 5 see Whren, 53 F.3d at 376; Scopo, 19 F.3d at 784. Therefore, the
6 validity of a traffic stop should be evaluated on the officer's
7 objective legal basis for the stop and not on whether the police
8 department routinely enforces a particular traffic law or assigns
9 a traffic officer to make such stops. It is not apparent why
10 police officers should be precluded from making an otherwise
11 valid traffic stop merely because by doing so they would be
12 departing from some routine.
13 We conclude that the district court erred in adopting
14 and applying the usual police activities test rather than the
15 authorization test in deciding that the basis for the vehicle
16 stop was a pretext to search for drugs. In adopting the majority
17 standard, we recognize that any rule governing this issue can be
18 abused by the authorities. But, that concern is inherent in the
19 nature of law enforcement. Based on the foregoing, we now
20 examine Defendant's pretext argument in light of the standard we
21 have adopted.
22 We next consider whether we should go on and apply the
23 standard we adopt to Defendant's pretext argument or remand it
24 for resolution by the district court. Because the district court
25 has already made the relevant factual findings, we will decide
26 this issue. 14
1 As we have noted, the district court found that the
2 trooper reasonably believed that Defendant's vehicle was in 3 violation of the Pennsylvania Vehicle Code. See supra at 7. 4 Applying the authorization test, we hold that the stop was not
5 unconstitutionally pretextual under the Fourth Amendment because
6 it was authorized under Pennsylvania law. See supra note 2. 7 III. CONCLUSION
8 The suppression order of the district court will be
9 vacated and Defendant's motion to suppress will be remanded to
10 the district court to decide whether the subsequent consent and
11 search were valid.