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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10200 Non-Argument Calendar ________________________
D.C. Docket No. 6:18-cr-00113-CEM-DCI-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE TOM JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 28, 2020)
Before WILLIAM PRYOR, JILL PRYOR and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, Willie Johnson appeals his convictions for possession of a Case: 19-10200 Date Filed: 04/28/2020 Page: 2 of 24
firearm or ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) (“§ 922(g)(1) firearm offense”), and possession with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C) (“drug-possession offense”). First, Johnson argues that the district court
erroneously denied his motion to suppress. Second, Johnson contends for the first
time on appeal that his § 922(g)(1) firearm conviction must be vacated in light of
Rehaif v. United States, 588 U.S. __, 139 S. Ct. 2191 (2019). After review, we
affirm.
I. FACTUAL BACKGROUND
A. Offense Conduct
On January 26, 2018, Johnson, the driver and sole occupant of a Mercedes,
was parked next to a gas pump at a gas station. Nearby law enforcement officer
Corporal Jessie Bourque of the Orange County Sheriff’s Office (“OCSO”) was
inside her marked patrol car running vehicles’ license tags through a law
enforcement database. While inside her patrol car, Corporal Bourque spotted from
across the street the Mercedes and its license tag, ran the tag on the law
enforcement database, and discovered that the tag was stolen. Believing the
Mercedes itself to be stolen as well, Corporal Bourque and backup Deputy
Timothy Parkhurst approached in marked patrol cars to conduct a “tactical park”
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by boxing in the Mercedes. Corporal Bourque moved her patrol car directly in
front of the Mercedes and Deputy Parkhurst moved his directly behind it.
Johnson looked up at Corporal Bourque, put the Mercedes in reverse, and
backed into Deputy Parkhurst’s patrol car. Johnson again made eye contact with
Corporal Bourque and leaned down towards the floor of his car. Assuming
Johnson was reaching for a weapon, Corporal Bourque grabbed her firearm and
pointed it at Johnson. In response, Johnson opened his driver’s side car door, got
out of the car without closing the car door, and fled on foot. Deputy Parkhurst,
along with backup Deputies James Baggs and Kevin Howard-Campbell, chased
after Johnson while Corporal Bourque trailed behind.
The officers caught up with Johnson several blocks from the gas station,
apprehended and handcuffed him, and placed him under arrest for having a stolen
license tag and resisting arrest without violence. The officers placed Johnson in
the back of Deputy Baggs’ patrol vehicle.
Because the Mercedes was still running and in reverse, and because the
driver’s side door was still open, Deputy Baggs approached the car to put it in
park. As he was about to sit down in the driver’s seat, Deputy Baggs observed the
handle of a firearm sticking out from underneath the driver’s seat on the
floorboard. Deputy Baggs stood back outside of the car, and he and Deputy
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Parkhurst documented the firearm’s location. The officers collected the firearm
and ejected the magazine, which contained a live round of ammunition.
After documenting and collecting the firearm and ammunition, the officers
searched the Mercedes and found a baggie containing 111 grams of powder
cocaine (netting 109.97 grams), a baggie containing 30 grams of crack cocaine
(netting 26.5 grams), a cigar pack containing marijuana, a partially used box of
clear Ziploc bags, a digital scale, a razor blade, and cash. The Mercedes was
towed and impounded.
During the foot chase, Johnson dropped his cell phone, which officers
recovered. After obtaining a search warrant, the officers searched the contents of
Johnson’s cell phone and discovered text messages referencing, for example, the
sale of narcotics, quantities of narcotics, and meet-up spots.
At some point during the investigation (the record did not clarify when), the
officers ran the Mercedes’s vehicle identification number (“VIN”) and discovered
that, while the car was not stolen, Johnson was not the registered owner. Several
months later, in May 2018, Deputy Parkhurst contacted the Mercedes’s owner of
record, who informed that he had sold the car to an unknown person.
B. Indictment
A federal grand jury charged Johnson with the § 922(g)(1) firearm offense
and the drug-possession offense. As to the § 922(g)(1) firearm offense, the
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superseding indictment charged that Johnson, “having been previously convicted
in any court of a crime punishable by imprisonment for a term exceeding one year
. . . did knowingly possess . . . a firearm and ammunition.”
C. Motion to Suppress
Johnson moved to suppress the evidence found inside the Mercedes.
Johnson argued that: (1) the officers did not have probable cause or reasonable
suspicion to search the car; (2) there were no exigent circumstances; (3) the search
was not incident to arrest; and (4) the plain view exception did not apply.
In opposition, the government argued, inter alia, that: (1) Johnson fled,
abandoned the car, and thus lacked standing to challenge the search of the car;
(2) the officers had probable cause to search the car; and (3) even if they lacked
probable cause, they would have conducted an inventory search of the car prior to
towing and the inventory search would have inevitably revealed the contraband
within the car.
At a hearing on the motion to suppress, the government called Corporal
Bourque, Deputy Parkhurst, and Deputy Baggs, who testified about the above
January 2018 incident and their towing decision.
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For example, Corporal Bourque testified that she often towed cars after
arresting the driver and the OCSO’s vehicle inventory policy applied. 1 According
to Corporal Bourque, the Mercedes needed to be towed for several reasons: (1) the
car needed to be moved because it was obstructing a gas pump; (2) there was no
one to lawfully take possession of and remove the car, as Johnson was arrested, he
would not explain whose vehicle he was driving, and the individual to whom the
car was registered stated that he had sold the car to an unknown person; and (3) the
car could not be lawfully driven because its license tag was stolen and had to be
removed.
Corporal Bourque conceded that: (1) an inventory search occurs after an
officer decides to tow a car; and (2) the search of the Mercedes was conducted
before the towing decision was made. However, she and Deputy Baggs explained
that if the search had not yet been done, the officers would have had to conduct an
inventory search of the car before towing it.
1 That inventory policy provides that “[t]he purpose of a vehicle inventory is to protect property in law enforcement custody, verify against false claims of lost, stolen, or damaged property, and protect the deputy and the community against dangerous instrumentalities.” The policy directs that, “[a]fter a deputy calls for the tow or impound of a vehicle, he or she shall confirm it is appropriately inventoried.” Officers have authority to conduct an inventory search so long as they follow agency policy and the totality of the circumstances do not indicate that the inventory was conducted for the sole purpose of investigation. The policy requires that an officer conducting an inventory search remove any personal property inside the car for which he has probable cause to believe may be contraband or evidence of a crime. 6 Case: 19-10200 Date Filed: 04/28/2020 Page: 7 of 24
The district court denied Johnson’s motion to suppress. The district court
found that: (1) Johnson had “opened the driver’s side door and took off running,
abandoning the vehicle and leaving the door open”; and (2) the officers’ search of
the abandoned Mercedes and their contraband discovery fell within the inevitable
discovery exception to the warrant requirement. After Johnson’s arrest, the
officers determined the Mercedes had to be impounded, which inevitably would
have triggered an inventory search under the OCSO’s procedures. The district
court also concluded that the plain view exception applied as to the firearm, which
Deputy Baggs plainly saw sticking out from under the driver’s side seat on the
floorboard.
D. Jury Trial and Convictions
Johnson’s first jury trial ended in a mistrial. During retrial, Johnson and the
government stipulated to the jury that, “[a]t the time of the offense alleged in
Count 1[,]”—the § 922(g)(1) firearm offense—“Johnson[] had been previously
convicted of a felony, a crime punishable by imprisonment for more than one
year.” The trial evidence included this testimony: (1) the law enforcement officers
testified about the events of January 26, 2018; (2) the owner of the license tag
found on the Mercedes testified that it had been stolen; (3) a firearm expert
testified that both the firearm found in the Mercedes and the ammunition inside
were manufactured outside of Florida and affected or traveled in interstate
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commerce; (4) a forensic chemist expert testified as to the 26.5-gram baggie of
crack cocaine and the 109.97-gram baggie of powder cocaine found in the
Mercedes; and (5) a digital forensic investigator testified about the messages
revealed through the search of Johnson’s cell phone.
On October 24, 2018, the jury found Johnson guilty of both charges.
E. Sentencing
Johnson’s presentence investigation report (“PSI”) assigned him a total
offense level of 26 and a criminal history category of IV, yielding an advisory
guidelines range of 92 to 115 months’ imprisonment.
As to criminal history, the PSI stated that, prior to committing this
§ 922(g)(1) firearm offense, Johnson had, among others, three prior drug-
possession convictions. 2 First, in 2008, Johnson pled guilty to felony possession of
cocaine and misdemeanor possession of 20 grams or less of marijuana in Florida
state court. He was sentenced to five days’ imprisonment and 24 months’
probation. After Johnson twice violated his probation, he was resentenced to
2 These three convictions were listed as Johnson’s prior felony convictions supporting his § 922(g)(1) firearm offense.
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concurrent terms of 366 days’ imprisonment on the cocaine-possession conviction
and 111 days’ imprisonment on the marijuana-possession conviction. 3
Second, in 2009, Johnson pled nolo contendere to felony cocaine possession
in Florida state court and was sentenced to 210 days’ imprisonment. The PSI
noted that, on his date of arrest, Johnson had “reported to the Seminole County
Sheriff’s Office to register as a felon,” but that officers arrested him on an
outstanding warrant, took him into custody, and found crack cocaine in his pocket.
Third, in 2015, Johnson pled nolo contendere to felony cocaine possession in
Florida state court and was sentenced to one day of imprisonment and 18 months’
probation on that offense.
Johnson raised objections to the PSI, most of which are not relevant to his
appeal. Notably, Johnson did not contest: (1) that his three cocaine-possession
convictions were felonies; or (2) that, in 2009, he went to the sheriff’s office to
register as a felon before he was arrested. While Johnson contested the PSI’s
stated reasons for his probation violation on his 2008 cocaine-possession
conviction, he did not contest the length of the sentence imposed. At sentencing,
3 The PSI stated that the 366-day sentence was imposed on the marijuana-possession conviction and the 111-day sentence was imposed on the cocaine-possession conviction. However, the Florida Department of Corrections lists the 366-day sentence on the cocaine- possession conviction. See Fla. Dep’t of Corrs., Corrections Offender Network: Inmate Release Information Detail – Willie T. Johnson, http://www.dc.state.fl.us/offenderSearch/detail.aspx?Page=Detail&DCNumber=X65163&TypeS earch=IR (last visited Apr. 6, 2020). 9 Case: 19-10200 Date Filed: 04/28/2020 Page: 10 of 24
Johnson argued, however, that the longest sentence that he had ever served was
one year and one day (366 days).
The district court adopted the PSI’s undisputed factual statements and
guidelines calculations, adopted the probation officer’s position as to the disputed
PSI factual statements, and determined that Johnson’s total offense level of 26 and
criminal history category of IV yielded the 92-to-115-month advisory guidelines
range. Ultimately, the district court varied downward from the advisory guidelines
range and sentenced Johnson to 72 months’ total imprisonment followed by three
years’ supervised release.
This is Johnson’s appeal.
II. MOTION TO SUPPRESS
A. Abandonment of Mercedes
Ordinarily, an individual maintains a reasonable expectation of privacy in
his personal property that is protected by the Fourth Amendment. United States v.
Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001). However, a defendant has no
reasonable expectation of privacy to complain of a search or seizure of property he
has voluntarily abandoned. United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir.
1994). Although the defendant bears the initial burden of proving a legitimate
expectation of privacy in the property searched, the government bears the burden
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of proving the defendant’s abandonment of that property. Id. at 1023. 4
In deciding whether the defendant abandoned his personal property, we look
to the defendant’s intent, which we discern from acts, statements, and other facts.
United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir. 1982). We consider the
surrounding facts and circumstances existing at the time of the alleged
abandonment, see id., as well as post-abandonment events that evidence “the
defendant’s intent to abandon the property at the previous time,” United States v.
Winchester, 916 F.2d 601, 604 (11th Cir. 1990). The “critical inquiry” is whether
Johnson “voluntarily discarded, left behind, or otherwise relinquished his interest
in [his car] so that he could no longer retain a reasonable expectation of privacy
with regard to it at the time of the search.” Ramos, 12 F.3d at 1022 (quotation
marks and emphasis omitted).
In applying the abandonment doctrine in the automobile context, this Court
has held that a defendant who abandons his car to flee from law enforcement
officers has no reasonable expectation of privacy with respect to the car and
thereby forfeits his right to Fourth Amendment protection in it. See United States
4 In reviewing the denial of a motion to suppress evidence, this Court reviews the district court’s factual findings for clear error and its legal rulings de novo. United States v. Laist, 702 F.3d 608, 612 (11th Cir. 2012). We construe the facts in the light most favorable to the party that prevailed below, here, the government. Id. We will conclude that the district court clearly erred in making its factual findings only if “our review of the record leaves us with the definite and firm conviction that a mistake has been committed.” United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003) (quotation marks omitted). 11 Case: 19-10200 Date Filed: 04/28/2020 Page: 12 of 24
v. Edwards, 441 F.2d 749, 751-53 (5th Cir. 1971).5 In Edwards, the defendant
abandoned his car when, after leading police on a high-speed chase, he stopped,
“jumped from the car,” and left the car “to the police, on a public highway, with
the engine running, keys in the ignition, lights on, and fled on foot.” Id. at 750-51;
see also United States v. Williams, 569 F.2d 823, 824-26 (5th Cir. 1978) (holding a
defendant abandoned his unlocked trailer and its contents when he unhooked the
trailer from his truck, left it in a parking area, and drove away while being pursued
by federal agents). Historically, cars have received lesser Fourth Amendment
protection because there is a “diminished expectation of privacy” in them. See
United States v. Holland, 740 F.2d 878, 880 (11th Cir. 1984).
Here, the district court did not clearly err in finding that Johnson “opened
the driver’s side door and took off running, abandoning the vehicle and leaving the
door open.” Johnson does not contest this finding. Moreover, the record shows
that, once Johnson realized that officers in marked patrol cars were pursuing him,
he put the Mercedes in reverse in an unsuccessful attempt to escape while still
inside the car, then got out of the Mercedes while it was still in reverse, left the car
on and the car door open, and fled on foot from the officers for several blocks.
Under the circumstances, Johnson’s actions showed that he “relinquished his
5 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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interest in [the Mercedes] so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the search.” See Ramos, 12
F.3d at 1022 (quotation marks and emphasis omitted); Pirolli, 673 F.2d at 1204.
Just like the drivers in Edwards and Williams, Johnson abandoned the Mercedes
and its contents and thereby forfeited his right to Fourth Amendment protection in
them. See Williams, 569 F.2d at 824-26; Edwards, 441 F.2d at 751-53.
Accordingly, the district court properly denied Johnson’s motion to suppress
the contraband discovered in the Mercedes. See United States v. Noriega, 676
F.3d 1252, 1260 (11th Cir. 2012) (“We can . . . affirm a district court’s denial of a
motion to suppress on any ground supported by the record.”).6
B. Inevitable Discovery Exception
Alternatively, as the district court found, the discovery of the contraband
inside the Mercedes was inevitable because the officers were already investigating
the car’s stolen tag and ownership and determined that the car had to be towed and
6 In this Circuit, there is some tension about whether the abandonment of personal property raises a jurisdictional issue that implicates Article III standing, see United States v. Sparks, 806 F.3d 1323, 1339-42 (11th Cir. 2015), or raises a non-jurisdictional, merits-based inquiry under substantive Fourth Amendment doctrine, having nothing to do with Article III standing, see United States v. Ross, 941 F.3d 1058, 1065 (11th Cir. 2019), reh’g en banc granted and opinion vacated by 953 F.3d 744 (11th Cir. 2020); Presley v. United States, 895 F.3d 1284, 1290 (11th Cir. 2018). We have granted rehearing en banc in Ross specifically to address this tension and whether Sparks should be overruled to the extent that it holds that a suspect’s abandonment of an item implicates both Fourth Amendment and Article III standing. However, we need not decide that issue because the district court’s denial of Johnson’s motion to suppress is due to be affirmed in any event. 13 Case: 19-10200 Date Filed: 04/28/2020 Page: 14 of 24
impounded, which would have triggered an inventory search and revealed its
contents in any event. Generally, unless there is consent, law enforcement officers
must obtain a warrant supported by probable cause to justify a search under the
Fourth Amendment. United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir.
2005). When evidence is obtained in violation of the Fourth Amendment, it
ordinarily must be suppressed. United States v. Jordan, 635 F.3d 1181, 1185 (11th
Cir. 2011). Nevertheless, there are exceptions. United States v. Virden, 488 F.3d
1317, 1322 (11th Cir. 2007).
Under the inevitable discovery exception to the exclusionary rule, evidence
obtained by unlawful means will still be admissible if the prosecution establishes
by a preponderance of the evidence that the subject items ultimately would have
been discovered by lawful means. Id. The government must go beyond law
enforcement’s mere assertion that the items would have been inevitably discovered
and instead show that “the lawful means which made discovery inevitable were
being actively pursued prior to the occurrence of the illegal conduct.” Id.
(quotation marks omitted and emphasis in original).
Here, the district court did not clearly err in finding that the officers had
multiple valid reasons for towing and impounding the Mercedes. Importantly, the
Mercedes was improperly parked next to a gas pump; the officers were
investigating whether the Mercedes was stolen; there was no one to lawfully take
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possession of and remove the car because driver Johnson was arrested for having a
stolen license tag; and the officers had not yet located the owner of the car.
Corporal Bourque also testified that, under the OCSO’s inventory search
policy, she would have been required to conduct an inventory search of the
Mercedes before towing it. Moreover, given the stolen tag suggesting the car was
stolen and the inability to locate the owner of the car, the totality of the
circumstances shows that the lawful means which made the discovery inevitable
were being actively pursued prior to the search.
Johnson argues that the fact that none of the officers stated during their
search of the Mercedes that they intended to impound it demonstrates that it was
truly an investigatory search and that they later falsely claimed it was an inventory
search. Even if, at the time of the search of the Mercedes, the officers were still
investigating and not yet inventorying, the officers’ testimonies still show that the
lawful means nevertheless was “being actively pursued prior to the occurrence of
the illegal conduct.” See Virden, 488 F.3d at 1322.
Our decision in United States v. Shawnton Johnson is spot on. 777 F.3d
1270 (11th Cir. 2015). In Shawnton Johnson, a patrolling officer searched a car’s
license plate number on his computer, discovered that the owner was deceased, and
stopped the car when it failed to signal a turn. Id. at 1272. When asked for his
driver’s license, the driver admitted that it was suspended, which the officer
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confirmed. Id. at 1272-73. After learning that the driver’s license had been
suspended six times, the officer decided to arrest the driver. Id. However, before
arresting the driver, the officer saw an item wrapped in cloth, removed the cloth,
and discovered a sawed-off shotgun. Id. at 1273. The officer arrested the driver
and conducted a detailed inventory search of the car. Id. After unsuccessfully
trying to find another registered owner, the officer completed a vehicle storage
receipt and requested that the car be towed. Id.
This Court held that the officer’s investigation into the car’s ownership that
began before, and was independent of, the illegal search of the car was the “lawful
means which made discovery inevitable.” Id. at 1274-75, 1277 (quotation marks
omitted). We determined that, even though the officer had not yet decided to
impound the car when he illegally searched it, the record showed that the officer
nevertheless would have towed and impounded the car, and discovered the shotgun
through a subsequent inventory search, because: (1) the car was registered to a
deceased person; (2) the driver was being arrested for driving the car with a
suspended license; (3) there was no other registered driver to whom the car could
be turned over; and (4) as the officer had testified, police were required to make
vehicle disposition decisions based on ownership of the vehicle. Id. at 1274, 1277.
We reasoned that “[t]he district court could have reasonably inferred from [the
officer’s] testimony and common sense that he was acting on the basis of a police
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policy that ownerless [cars] should not be left on the side of the road.” Id. at 1278;
see also United States v. Williams, 936 F.2d 1243, 1248 (11th Cir. 1991)
(upholding an inventory search where the district court had indicated that the
police department’s policy permitted impoundment under the circumstances of that
case and that the defendant had not countered that assertion).
Thus, this Court concluded, the officer’s “active pursuit of the ordinary
investigation of the evidence already in his possession”—regarding the ownership
of the car—“would have led him to the shotgun.” Shawnton Johnson, 777 F.3d at
1274-75 (quotation marks omitted and alteration accepted). Notably, “nothing of
substance . . . would have changed” if the illegal search was subtracted “from the
factual picture in this case.” Id. at 1277.
Like the officer in Shawnton Johnson, Corporal Bourque’s investigation into
the ownership of the Mercedes began before the officers searched inside the car—
when Corporal Bourque ran the Mercedes’s license tag in the law enforcement
database and discovered that it was stolen, which caused her to believe the car
itself might also be stolen. See id. at 1274-75, 1277. That investigation continued,
as Corporal Bourque testified that Johnson did not explain who owned the car, that
the officers searched the car’s VIN and identified the car’s registered owner, and
that the officers spoke to the registered owner who said that he sold the car to an
unknown person.
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Accordingly, even though the officers searched the Mercedes before making
the decision to tow it, their “active pursuit of the ordinary investigation of the
evidence already in [their] possession”—regarding the ownership of the
Mercedes—“would have led [them] to the [contraband].” See id. at 1274-75.
Because the officers would have conducted an inventory search and inevitably
discovered the contraband, “nothing of substance . . . would have changed” if the
illegal search was subtracted “from the factual picture in this case.” See id. at
1277. 7
C. Alleged Seizure of Johnson’s Person at the Gas Station
Next, Johnson argues—as a free-standing challenge brought for the first time
on appeal—that Corporal Bourque and Deputy Parkhurst unreasonably seized
Johnson at the gas station when they tactically boxed the Mercedes in without a
warrant, probable cause, or reasonable suspicion. Because Johnson did not raise
this argument in the district court, we review his seizure claim for plain error.8
7 On appeal, the government also contends that the officers’ warrantless search of the Mercedes was lawful under both the automobile exception and the plain view exception to the warrant requirement. Because we affirm on the other grounds listed above, we need not address the applicability of these additional exceptions. 8 When a party fails to timely object in the district court, we review for plain error only. United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018). Under the plain-error standard, we will not vacate a judgment unless the party demonstrates (1) an error, (2) that is plain, and the error both (3) affected the defendant’s substantial rights, and (4) seriously affected the fairness of the judicial proceedings. Id. A defendant cannot prevail on plain-error review “where there is no precedent from the Supreme Court or this Court directly resolving” the issue in his favor. United States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017) (quotation marks omitted). 18 Case: 19-10200 Date Filed: 04/28/2020 Page: 19 of 24
A person is “seized” for Fourth Amendment purposes when his “cooperation
is induced by coercive means or if a reasonable person would not feel free to
terminate the encounter.” Jordan, 635 F.3d at 1186 (quotation marks omitted). We
consider several factors in determining whether a seizure has occurred, such as
whether the defendant’s path is blocked or impeded by officers, the number of
officers present, and whether the officers displayed weapons. Id. However, the
ultimate question is whether the defendant’s “freedom of movement was restrained
by physical force or by submission to a show of authority.” Id. For example,
“[w]hen a suspect flees from the police, he is not submitting to their authority and
therefore is not seized.” Id.
Notably here, despite Corporal Bourque and Deputy Parkhurst boxing in the
Mercedes and drawing a firearm, Johnson immediately fled from the officers on
foot. By fleeing, Johnson did not submit to their show of authority at that point
and therefore was not yet seized. See id. It was not until after Johnson fled from
the Mercedes, and ran several blocks away from the gas station, that he was
physically detained and seized by officers. See id. Under the circumstances, the
officers’ tactical park to box in the Mercedes did not constitute a “seizure” of
Johnson for Fourth Amendment purposes. Johnson has not pointed to any binding
precedent from the Supreme Court or this Court holding otherwise. See United
States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017). There was no error—plain
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or otherwise—in this regard.9
D. Alleged Search of Mercedes’s License Tag
Johnson also argues—for the first time on appeal—that Corporal Bourque
unreasonably searched the Mercedes’s license tag by running it through the law
enforcement database without a warrant or any articulable and reasonable
suspicion to search the tag. Again, we review this issue for plain error only. See
United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018).
It is well-settled that a motorist can have no reasonable expectation of
privacy in the license tag information he is required by law to display in plain
view. In fact, “[t]he exterior of a car, of course, is thrust into the public eye, and
thus to examine it does not constitute a ‘search.’” See New York v. Class, 475
U.S. 106, 114, 106 S. Ct. 960, 966 (1986). Specifically, “it is unreasonable to have
an expectation of privacy in an object required by law to be located in a place
ordinarily in plain view from the exterior of the automobile.” Id. at 114, 106 S. Ct.
at 966 (considering, as “the object at issue,” “an identification number behind the
transparent windshield of an automobile driven upon the public roads”).
Johnson nevertheless argues that Class is distinguishable because, here,
9 To the extent that Johnson attempts to argue that any abandonment of the Mercedes was not “voluntary” because the officers unreasonably seized him by boxing the Mercedes in, the argument fails for the same reason. See Jordan, 635 F.3d at 1186; see also Pirolli, 673 F.2d at 1204 (explaining that, when a defendant abandons an item during pursuit in an effort to avoid being caught with the item, his abandonment is not rendered involuntary or the product of police misconduct). 20 Case: 19-10200 Date Filed: 04/28/2020 Page: 21 of 24
when Corporal Bourque searched Johnson’s license tag, Johnson was parked at a
“private[ly]” owned gas station and was not traveling on a public road. This
argument ignores that the gas station was open to the public and Johnson was
parked in a public area of the gas station. Further, Johnson points to no binding
precedent from either the Supreme Court or this Court holding that a motorist—
who is parked in a gas station open to the public—has a reasonable expectation of
privacy in his license tag information that is displayed in plain view. See Lange,
862 F.3d at 1296. Johnson has shown no plain error as to the license tag.
All in all, the district court did not clearly err in its factual findings nor did it
err, plainly or otherwise, in denying Johnson’s motion to suppress.
III. REHAIF CHALLENGE
In a supplemental brief, Johnson argues that his conviction for the
§ 922(g)(1) firearm offense must be vacated in light of the Supreme Court’s
decision in Rehaif v. United States, 588 U.S. __, 139 S. Ct. 2191 (2019), because
his indictment did not charge, the jury was not instructed, and the government did
not prove beyond a reasonable doubt that Johnson knew he was a felon at the time
he possessed the firearm. 10 As Johnson concedes, this challenge—raised for the
10 The district court instructed the jury that Johnson could be found guilty of the § 922(g)(1) firearm offense only if the following facts were proved beyond a reasonable doubt: (1) “[Johnson] knowingly possessed a firearm or ammunition in or affecting interstate or foreign commerce”; and (2) “before possessing the firearm or ammunition, [Johnson] had been convicted of a felony, a crime punishable by imprisonment for more than one year.” 21 Case: 19-10200 Date Filed: 04/28/2020 Page: 22 of 24
first time on appeal—is reviewable for plain error only. See Hernandez, 906 F.3d
at 1370.
In Rehaif, the Supreme Court held that in prosecutions under §§ 922(g) and
924(a)(2), the government must prove—as an element of the crime—that when the
defendant possessed the firearm, “he knew he belonged to the relevant category of
persons barred from possessing a firearm,” such as his status as a convicted felon.
See 588 U.S. at __, 139 S. Ct. at 2194-97, 2200.
Here, Rehaif makes plain that the district court erred when it did not require
the indictment to charge, the jury to be instructed, and the government to prove
beyond a reasonable doubt that Johnson knew he was a felon at the time he
possessed the firearm. See id. at __, 139 S. Ct. at 2194-97, 2200. Therefore, as the
government concedes in this direct appeal case, Johnson has shown error that is
plain. However, Johnson’s Rehaif challenge fails because he cannot show that the
district court’s error affected his substantial rights.
To show that the Rehaif error affected Johnson’s substantial rights, he must
establish “a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v. United States, 578
U.S. __, __, 136 S. Ct. 1338, 1343 (2016) (quotation marks omitted). In making
this determination, we consider the whole record. United States v. Reed, 941 F.3d
1018, 1021 (11th Cir. 2019).
22 Case: 19-10200 Date Filed: 04/28/2020 Page: 23 of 24
Here, the record as a whole demonstrates that Johnson knew of his status as
a convicted felon when he possessed the firearm in the instant 2018 offense. First,
at trial, Johnson stipulated to the fact that he “had been previously convicted of a
felony, a crime punishable by imprisonment for more than one year.”
Then, at sentencing, while Johnson objected to the PSI’s factual narratives
surrounding some of his convictions, he did not object to the convictions
themselves. Namely, the unobjected-to facts in the PSI showed that he had three
convictions for possession of cocaine, which Johnson concedes is a felony under
Florida law. See Fla. Stat. §§ 893.13(1)(a)(1), 893.03(2)(a)(4). Nor did Johnson
object to the PSI’s indication that he ultimately served a total of 366 days’
imprisonment on his 2008 conviction. In fact, he admitted at the sentencing
hearing that his longest sentence had been one year and one day. Johnson did not
object to the PSI fact that, on the date of his 2009 cocaine-possession arrest, he
reported to the sheriff’s office “to register as a felon.” Under these circumstances,
a reasonable jury could “have inferred that [Johnson] knew he was a felon” when
he possessed the firearm in the instant § 922(g)(1) firearm offense. See Reed, 941
F.3d at 1022.
While Johnson points out that his stipulation to being a convicted felon was
not a stipulation that he had knowledge of his felon status at the time of the firearm
possession, it was still a fact for the jury to consider in determining the knowledge
23 Case: 19-10200 Date Filed: 04/28/2020 Page: 24 of 24
element of the offense. See id. Johnson also argues that the record “might support
an inference that”—given his background, intelligence level, and mental health
issues—“[he] may not appreciate nor fully understand the collateral consequences
of his prior criminal history[.]” Even if this is the case, Rehaif only requires the
government to prove that Johnson had knowledge of his status as a convicted
felon, not that he knew that his firearm possession, as a convicted felon, was in fact
unlawful. See Rehaif, 588 U.S. at __, 139 S. Ct. at 2194-97, 2200.
Because Johnson cannot show a reasonable probability that, but for the
Rehaif error, the outcome of his trial would have been different, he cannot show
that the error affected his substantial rights. See Molina-Martinez, 578 U.S. at __,
126 S. Ct. at 1343; Reed, 941 F.3d at 1021-22. Johnson has failed to meet the
plain error standard.
IV. CONCLUSION
In sum, Johnson has not shown that the district court erred, plainly or
otherwise, in denying his motion to suppress or that the district court plainly erred
under Rehaif. Thus, we affirm his convictions. 11
AFFIRMED.
11 In this direct appeal, Johnson does not challenge his 72-month sentence. 24