                                                                                                                           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Precedential or Non-Precedential: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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 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.

12
