                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2004

USA v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3796




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-3796


                           UNITED STATES OF AMERICA

                                           v.

                                 TYRONE JOHNSON
                                  a/k/a Tariq Shabazz

                           Tariq Shabazz aka Tyrone Johnson,
                                                  Appellant


                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Criminal No. 02-cr-00731)
                    District Judge: Honorable William H. Yohn, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 16, 2004

             Before: RENDELL, STAPLETON and LAY*, Circuit Judges.

                                 (Filed: April 23, 2004)


                              OPINION OF THE COURT




*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
LAY, Circuit Judge.

       Tyrone Johnson was found guilty of one count of possession of a firearm by a

convicted felon and sentenced to forty-six months in prison followed by three years

supervised release. He appeals the District Court’s denial of his motion to suppress

evidence on the basis that the evidence was obtained and admitted at trial in violation of

his Fourth and Fifth Amendment rights. We will affirm.




                                   I. BACKGROUND

       On the afternoon of July 10, 2001, an individual named David Nurse called 911.

Nurse explained that on June 18, 2001, he had been involved in a “road rage” incident in

which an individual in a Range Rover with a license plate including the numbers “7222”

had pointed a gun at him and threatened him. Nurse further explained that the very same

Range Rover was presently parked at 1900 Rittenhouse Square in Philadelphia. Officers

Hill, O’Malley, and Cortes responded to the call. Sergeant Hill talked with Nurse, who

was at the scene. Nurse explained to Hill the same information he had given the 911

operator. The officers observed that Nurse appeared to be agitated and upset.

       The three officers then approached Johnson’s Range Rover with their guns drawn,

observing that there was an individual seated in the driver’s seat of the vehicle. They

asked Johnson to show his hands. Johnson rolled down the window. They asked Johnson

to get out of the vehicle, which he did. The officers then frisked Johnson. Either



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immediately before or during this initial frisk of Johnson, the officers asked if Johnson

had a gun, and Johnson replied that he did. Officer O’Malley then found a loaded nine

millimeter semiautomatic pistol in Johnson’s rear waistband.

       Johnson was arrested and charged with one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). Prior to trial, Johnson filed an oral

motion to suppress both the physical evidence of the gun and his statement to police that

he had a gun. After a hearing, this motion was denied. On May 29, 2003, after a two-day

trial, a jury found Johnson guilty. The District Court then sentenced him to forty-six

months imprisonment, followed by three years supervised release. Johnson now appeals

the District Court’s denial of his motion to suppress, arguing that the officers did not have

reasonable suspicion to stop and frisk him, and that the admission of his response to the

question, “do you have a gun?” violated his Fifth Amendment right against self-

incrimination.




                                      II. ANALYSIS

       We review the District Court’s denial of Johnson’s motion to suppress evidence

“for clear error as to the underlying factual findings and exercise[] plenary review of the

District Court’s application of the law to those facts.” United States v. Perez, 280 F.3d

318, 336 (3d Cir. 2002).

       It has long been established, under Terry v. Ohio, 392 U.S. 1 (1968), and



                                              3
subsequent cases, that an officer “may, consistent with the Fourth Amendment, conduct a

brief, investigatory stop when the officer has a reasonable, articulable suspicion” of

criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123 (2000). It is similarly well-

established that an informant’s tip can provide the reasonable suspicion necessary to

support a stop and frisk, if it contains a sufficient “indicia of reliability.” Adams v.

Williams, 407 U.S. 143, 147 (1972) (“[W]e reject respondent’s argument that reasonable

cause for a stop and frisk can only be based on the officer’s personal observation, rather

than on information supplied by another person.”).

       In assessing whether an informant’s tip is sufficiently reliable to provide

reasonable suspicion, we must look to the “totality of the circumstances.” See Illinois v.

Gates, 462 U.S. 213, 230-35 (1983). While Johnson is correct to note that an anonymous

tip over the telephone is not itself enough to warrant a stop and frisk under Terry, see

Florida v. J.L., 529 U.S. 266, 268-74 (2000), the Supreme Court has recognized that a

stop and frisk can be based on a tip from a known informant whose reputation can be

assessed and who can be held responsible if his allegations turn out to be fabricated. See

Adams, 407 U.S. at 146-47.

       In Adams, an officer was approached by a known informant, who told him that an

individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist.

Id. at 144-45. The officer approached the vehicle and asked the occupant to open the

door. Id. at 145. When the occupant rolled down the window instead, the officer reached



                                               4
inside the car and removed the occupant’s gun from his waistband. Id. The Supreme

Court held that the officer acted properly in responding to the informant’s tip. Id. at 146.

The Court distinguished this case from an anonymous telephone tip, stressing that the

informant was known to the officer, was at the scene, and “might have been subject to

immediate arrest for making a false complaint had [the officer’s] investigation proved the

tip incorrect.” Id. at 147. The Court therefore concluded that “the information carried

enough indicia of reliability to justify the officer’s forcible stop of Williams.” Id. The

Court also held that the frisk was justified because the officer had “reason to believe that

the suspect [was] armed and dangerous.” Id. at 146 (“When an officer is justified in

believing that the individual whose suspicious behavior he is investigating at close range

is armed and presently dangerous to the officer or to others, he may conduct a limited

protective search for concealed weapons.”) (quotations and citation omitted).

       This court has recognized these principles and applied them to uphold a stop and

frisk where the informant was far less reliable than in the instant case. See United States

v. Valentine, 232 F.3d 350, 353-55 (3d Cir. 2000). In Valentine, two officers patrolling a

high-crime neighborhood were approached by an individual who explained he had just

seen a man with a gun. Id. at 352. The informant described the gunman but would not

identify himself, stating that he feared retribution from the armed man and entanglement

with the police. Id. at 352-53. The police did not further question or detain the

informant, who promptly disappeared, but went in search of the gunman, whom they



                                              5
found and proceeded to stop and frisk, finding a gun. Id. at 353. On appeal, we found the

tip to be reliable, distinguishing Florida v. J.L. on the basis that a tip given face to face is

more reliable than an anonymous telephone call, even when the informant does not

identify himself. Id. at 354. We supported this holding by reasoning that: 1) the officers

had the opportunity to assess the informant’s credibility and demeanor; 2) the informant

was at risk for retaliation by the armed man, who was nearby, making it less likely he

would lie; and 3) the informant faced retaliation from the police, who could quickly

confirm the tip and knew what the informant looked like. Id. at 354-55.

       In light of this precedent, we are compelled to find that the face-to-face tip from

Nurse had sufficient indicia of reliability to provide the officers with a reasonable

suspicion that Johnson had engaged in criminal activity and was currently armed and

dangerous. 1 Just as in Adams and Valentine, the officers here were justified in relying on


   1
    Johnson also argues that the stop and frisk was impermissible because he was not
engaged in any criminal activity at that time. We note, however, that the road rage
incident occurring three weeks prior, as related by Nurse, “involv[ed] a threat to the
public safety,” and was sufficient to support the stop and frisk. See United States v.
Hensley, 469 U.S. 221, 229 (1985) (“Particularly in the context of felonies or crimes
involving a threat to public safety, it is in the public interest that the crime be solved and
the suspect detained as promptly as possible. The law enforcement interests at stake in
these circumstances outweigh the individual’s interest to be free of a stop and detention
that is no more extensive than permissible in the investigation of imminent or ongoing
crimes.”). Additionally, even without reference to Hensley, we believe that Nurse’s tip
gave the officers reasonable suspicion that Johnson was armed and dangerous at that time.
See Valentine, 232 F.3d at 356-57 (holding that while mere possession of a gun is legal,
and therefore will not support a stop and frisk, possession of a gun plus surrounding
circumstances suggesting criminal activity will support a stop and frisk). As we stated in
Valentine, we believe that “given the large number of potential crimes and the danger

                                                6
the tip from Nurse, who remained at the scene during the stop and was therefore

accountable to both Johnson and the police officers if his complaint turned out to be

unfounded. Accordingly, the officers did not violate Johnson’s Fourth Amendment rights

in making an investigatory stop and frisk to verify the validity of Nurse’s complaint, and

the District Court correctly denied Johnson’s motion to suppress.

       Johnson also argues that his response to the officers’ question, “do you have a

gun?” was improperly admitted into evidence in violation of the Fifth Amendment

because he was not read his Miranda rights before being asked the question. See Miranda

v. Arizona, 384 U.S. 436 (1966). We find, however, that the District Court was correct to

hold that the officers’ question falls under the “public safety” exception of New York v.

Quarles, 467 U.S. 649 (1984). In Quarles, the Court held that answers given to questions

asked prior to reading a suspect his Miranda warnings will not be excluded from evidence

if the purpose of the officers’ question was “to secure their own safety or the safety of the

public” and not “designed solely to elicit testimonial evidence from a suspect.” Id. at

659. Here, we think Johnson’s statement was properly admitted because the question was

clearly intended to secure the officers’ safety and the safety of the public, and not to

obtain evidence useful in convicting Johnson.




posed by an armed criminal, we think that if the police officers had done nothing and
continued on their way after receiving the informant’s tip, the officers would have been
remiss.” Id. at 356.

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                          III. CONCLUSION

For the above reasons, the decision of the District Court will be AFFIRMED.




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