Tuesday, April 16, 2019

Big en banc 4th Amendment opinion comes down 7-5

It's the usual battle lines in United States v. Paul Johnson, Jr.

William Pryor for the majority, which includes Ed Carnes, Tjoflat, Marcus, Newsom, Branch and Grant. Newsom concurs, Branch concurs (joined by Grant), Jordan dissents, Rosenbaum dissents, and Jill Pryor dissents (joined by Wilson, Martin, and Jordan).

Lots of interesting writing and fighting here.

Pryor starts off this way:
This appeal requires us to decide whether a police officer violated the Fourth Amendment when he removed a round of live ammunition and a holster from the pocket of a suspect during a protective frisk, see Terry v. Ohio, 392 U.S. 1 (1968). At 4:00 a.m., the officer responded to a call about a burglary in progress in a high-crime area. When the officer arrived at the scene, he saw Paul Johnson, who matched the burglar’s description, standing in a dark alley. After detaining Johnson, the officer frisked him and immediately recognized that he had a round of ammunition in his pocket. The officer removed the ammunition and an empty holster covering it. He then canvassed the area and found two pistols less than a foot from where he first saw Johnson. After a grand jury indicted Johnson for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the district court denied his motion. A panel of this Court reversed. United States v. Johnson, 885 F.3d 1313 (11th Cir.), reh’g en banc granted, op. vacated, 892 F.3d 1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en banc. We now affirm the denial of Johnson’s motion to suppress because the officer was entitled to seize the ammunition to protect himself and others.

Newsom writes a concurrence saying that both sides have nice totality of the circumstances arguments and that on balance he's with the majority, but he favors bright lines and would end up saying that cops can always seize a bullet:
So in the next “bullet case,” rather than asking—or worse, requiring the responding officer to ask—whether the neighborhood is sufficiently scary, the hour sufficiently late, the light sufficiently dim, and the suspect and scene sufficiently secure, I would simply hold that the Fourth Amendment permits the protective seizure.

Branch agrees (Grant joins) with Newsom but writes separately without all of the nice stuff about the dissents:
Because I conclude that a bullet falls in to the category of “guns, knives, clubs, or other hidden instruments for the assault of the police officer,” id. at 29, and cannot logically be separated from a gun for Terry purposes, I would find that anytime an officer conducts a lawful Terry frisk, the officer may seize any bullet located during the frisk.

Jordan dissents and says, what about originalism? Originalism would not have allowed this to go forward and all of those in the majority who are generally champions of originalism are awfully quiet now:
Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry, and must therefore ignore the original understanding of the Fourth Amendment.2
The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in Terry can be understood to allow . . . any search whatever for anything but weapons.”). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).

Rosenbaum dissents, arguing that the majority is answering a question that was never briefed or argued:

Today we hold that any ammunition may always be seized during a frisk when the searching officer immediately identifies it as ammunition, regardless of any surrounding circumstances. This is a new rule that we did not ask the parties to address, that neither party briefed, and that the government expressly declined to adopt at oral argument.
Indeed, during oral argument, the Court asked the government, “Once you feel the bullet, the officer can seize the bullet. Is that the government’s position?” Recording of Oral Argument dated Oct. 24, 2018, at 38:58. And the government responded without equivocation, “No, Your Honor.” Id. Then the government explicitly stated, “We are not asking the Court to rule that a bullet in isolation in all circumstances would be sufficient to reach in [to the pocket and seize]; we are asking the Court to apply the facts-specific Fourth Amendment tests that this Court has applied and other courts have applied . . . under the totality of the circumstances.” Id. at 51:34.1
Because we operate only “as arbiters of legal questions presented and argued by the parties,” Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 148 n.10 (2011) (citations and internal quotation marks omitted), once the government disclaimed the per se rule at oral argument, we were left with only two permissible options: apply a true totality-of-the-circumstances test or rehear the case, ask the per se question to the parties and, if necessary, appointed counsel, and analyze the arguments presented. Instead, the Majority Opinion takes a third route and adopts the new per se rule on its own. That new rule may well be correct. Or it may not. But if we wanted to consider such a rule, we should have asked the parties to brief and argue it in this en banc proceeding, instead of asking them to brief and argue a more discrete question.

Judge Rosenbaum is the Kagan of our Circuit. A glimpse here from the conclusion:
Charades may be fun at parties, but not in judicial opinions where officer safety and privacy rights hang in the balance. I therefore respectfully decline to engage in that activity.12
IV.
Today we issue a new rule we did not ask the parties to brief, they did not brief, and the government expressly disavowed. And we do this even though we could have obtained the parties’ input on the question we decide today. I respectfully decline to participate in that activity. The parties’ testing of the issues we decide is and should be the engine that drives our adversarial system.

Jill Pryor's dissent (joined by Wilson, Martin, and Jordan) defends the panel decision:
The panel correctly held that the seizure of a bullet and holster from the pocket of Mr. Johnson—who was compliant with officers’ commands, on the ground, handcuffed behind his back, and held at gunpoint by several officers—constituted an unreasonable seizure under Terry and its progeny. See United States v. Johnson, 885 F.3d 1313, 1323-24 (11th Cir. 2018). With respect, I dissent from the majority opinion’s contrary holding.


11 comments:

Robert Kuntz said...

>>I conclude that a bullet falls in to the category of “guns, knives, clubs, or other hidden instruments for the assault of the police officer,” <<


If a stray bullet is an instrument with which to assault an officer, so is a quarter, and there is now effectively no rational limit to the scope of Terry.

Anonymous said...

This is about putting and keeping people of color in prison.

Anonymous said...

513
How do you know paul Johnson is a person of color?

Anonymous said...

513

"The call reported a burglary in progress at a nearby multi-family duplex and described the burglar as a black male wearing a white shirt."

Anonymous said...

It is also a reminder that elections have consequences. Newsom, Branch and Grant in majority.
With Newsom basically saying, "Fourth Amendment? We don't need no stinking Fourth Amendment!"fn




fn/ Unless, of course, we are talking about Roger Stone getting woken up by a SWAT team

Anonymous said...

The Eleventh Circuit's "keep brown people in prison" exception to the Fourth, Fifth, and Sixth Amendments and the Federal Rules of Evidence strikes again.

Anonymous said...

I think the majority is right. Even committed originalists don't think circuit courts can employ originalism to reach results contrary to binding USSC precedent. A round of pistol ammo and a holster are not the equivalent of a quarter.
One of you criminal defense folks answer me this: The cop said he knew it was a cartridge (the opinions repeatedly use bullet, which isn't really accurate). What if he had not seized it, but still conducted his search for the gun based on his suspicion that where there is a round of ammo there is probably a gun nearby. Is there even a 4th amendment issue?

Anonymous said...

Its funny, I wonder what would happen if you asked these same judges whether a bullet (on its own) is a weapon in the context of ruling on a gun laws/second amendment case?

I suspect that most of the judges (on both sides of the issue) would reverse course.

Anonymous said...

12:33 - if there was a pat down and the officer felt a bullet of course he could then search the area for a gun. No 4th amendment issue.

The problem here is that being a felon in possession of that bullet is a crime (and in some cases subjects the person to a 15 year mandatory minimum).

Just wondering how many people out there who read this blog think that if they couldn't get into their own house one night and banged on the window to get someone's attention would wind up like this fellow:

Officer Williams saw Paul Johnson, a black male wearing a white shirt standing near a fence in a dark alley at the back of the duplex.

The officers asked Johnson to come toward them where they could “see him a little better.” Johnson complied, and as he walked toward them, another officer arrived on the scene. The officers ordered Johnson to lie on the ground and handcuffed him. Officer Williams then began frisking Johnson.

Anonymous said...

528

Im having trouble equating myself trying to get into my own home with the situation mr johnson put himself in. Mr Johnson is a convicted felon who lost his right to possess a firearm. Even so, he had the bullet and 2 pistols, both reported stolen, in his possession that night. Why exactly do i feel sorry for him?

Let me ask...i dunno johnsons priors, but do you think his neighbors think Johnson is getting the shaft?

Anonymous said...

9:21: I'm not asking you to feel sorry for Mr. Johnson, I can sense you have no empathy.

I'm asking if you've ever been locked out of your house and trying to wake someone up to let you in you found yourself face down in your front yard handcuffed. My guess is no.