Cases

United States v. Johnson   11thCIR   16APR2019

At 0400 one morning in Opa-Locka Florida, police were dispatched to respond to a report of a burglary in progress. The caller provided a description of the burglar. An officer responding to the call saw the defendant (Johnson) standing in a dark alley. Johnson matched the description, so the officer detained him and frisked him. Upon conducting the frisk, the officer felt what he immediately recognized as a round of ammunition in Johnson’s pocket. The officer retrieved the round as well as an empty holster. He then searched the area and found two handguns a foot away from where he originally spotted Johnson. John, a convicted felon, was charged with being a felon in possession of a firearm.  Johnson sought to have the ammunition and holster suppressed as the result of an unlawful search. Specifically, Johnson argued that the presence of a bullet did not warrant retrieval of the item since a bullet alone could not be used as a weapon against the officer.

The Eleventh Circuit, sitting en banc after vacating a previous decision suppressing the items, held that under a totality of the circumstances the bullet posed a danger to the officer because it could result in grave injury if it had been loaded into a gun.  Furthermore, bullets go with guns so the retrieval of the bullet might help the officer locate the firearm associated with it.  The court held that the question is not whether a given object qualifies as a “weapon” in the abstract. Rather, the question is “whether removing and securing the object is reasonably related to “the protection of the police officer and others nearby.”  Using this query, under a totality of the circumstances the retrieval of the bullet was lawful pursuant to the Terry Frisk.

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