            Case: 19-10200     Date Filed: 04/28/2020   Page: 1 of 24



                                                          [DO NOT PUBLISH]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”




                                          2
              Case: 19-10200    Date Filed: 04/28/2020   Page: 3 of 24



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




                                         3
              Case: 19-10200     Date Filed: 04/28/2020    Page: 4 of 24



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


                                          4
              Case: 19-10200     Date Filed: 04/28/2020   Page: 5 of 24



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.




                                          5
                Case: 19-10200        Date Filed: 04/28/2020       Page: 6 of 24



       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


                                          7
                Case: 19-10200       Date Filed: 04/28/2020       Page: 8 of 24



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.


                                               8
                 Case: 19-10200     Date Filed: 04/28/2020     Page: 9 of 24



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




                                           10
               Case: 19-10200        Date Filed: 04/28/2020        Page: 11 of 24



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).

                                               12
               Case: 19-10200       Date Filed: 04/28/2020       Page: 13 of 24



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


                                          14
              Case: 19-10200     Date Filed: 04/28/2020     Page: 15 of 24



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


                                           15
             Case: 19-10200     Date Filed: 04/28/2020   Page: 16 of 24



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


                                         16
              Case: 19-10200     Date Filed: 04/28/2020   Page: 17 of 24



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.


                                              17
                Case: 19-10200        Date Filed: 04/28/2020        Page: 18 of 24



       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


                                          19
               Case: 19-10200       Date Filed: 04/28/2020       Page: 20 of 24



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
