United States v. Bonner

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

3-30-2004

USA v. Bonner

Precedential or Non-Precedential: Precedential

Docket No. 03-1547

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PRECEDENTIAL W. Penn Hackney, Esq.

Karen S. Gerlach, Esq.

UNITED STATES COURT OF Lisa B. Freeland, Esq. (Argued)

APPEALS Office of Federal Public Defender

FOR THE THIRD CIRCUIT 1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

No. 03-1547

Counsel for Appellee

UNITED STATES OF AMERICA,

OPINION

Appellant

v. COWEN, Circuit Judge.

JERMANE E. BONNER Jermane Bonner fled from police

after the car in which he was a passenger

was stopped for a routine traffic violation.

On Appeal from the United States The police gave chase and, upon

District Court apprehending him, discovered that he was

for the Western District of Pennsylvania carrying crack cocaine. The government

(D.C. Criminal No. 02-cr-00046) prosecuted Bonner for possession with the

District Judge: Hon. Gary L. Lancaster intent to distribute 50 grams or more of

crack cocaine in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(A)(iii). The District

Argued September 16, 2003 Court suppressed all evidence seized

during the stop including the drugs. This

BEFORE: MC KEE, SMITH and appeal by the government followed.

COWEN, Circuit Judges

In suppressing the evidence, the

(Filed: March 30, 2004) District Court held that the officers lacked

a reasonable, articulable suspicion that

Mary Beth Buchanan, Esq. Bonner was involved in criminal activity.

Bonnie R. Schlueter, Esq. (Argued) The District Court reasoned that the sole

Office of United States Attorney basis for the stop was Bonner’s flight from

700 Grant Street police, and that under Illinois v. Wardlow,

Suite 400 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed.

Pittsburgh, PA 15219 570 (2000), and its progeny, mere flight

when police appear on the scene is not

Counsel for Appellant sufficient to estab lish reasonable

suspicion.

We will reverse. Under the facts of the patrol car, driving in the direction

this case we hold that the officers had Bonner was running, then parked and

reasonable suspicion to stop Bonner. continued the chase on foot.

Although flight alone is not enough to

justify a police stop, this is not a case of Officer English eventually caught

flight upon noticing police. The officers in Bonner by tackling him. Both officers

this case were effectuating a legitimate then subdued and handcuffed Bonner.

traffic stop. During a traffic stop, police While subduing him, Officer English

officers m ay exercise reasonable observed a clear plastic bag in Bonner’s

superintendence over the vehicle, its hand. The bag contained seven golf ball

driver, and passengers. Because Bonner sized rocks, which were later tested and

prevented the police from maintaining found to be crack cocaine. The officers

oversight and control over the traffic stop also seized $534.25 from Bonner during

by fleeing, we hold that the police had the arrest.

reasonable suspicion to stop him.

The driver and other passenger

I were told to put the vehicle in park, turn

off the ignition, and step out of the vehicle.

On March 8, 2001, Officers Both were handcuffed and detained for a

Harbaugh, English, Stewart, and Sweeney brief period of time, then released with a

were in uniform and on duty at the police citation for the traffic violations.

security booth at the entrance to the

Ohioview Acres housing project in Stowe We have jurisdiction under 18

T o w nship , Pen nsylv ania . At U.S.C. § 3731, and conduct plenary review

approximately 11:40 p.m., Officer of the District Court’s determination that

Harbaugh noticed a sports utility vehicle the officers did not have reasonable

leaving the housing project that had one suspicion to stop Bonner. Ornelas v.

headlight out and an expired inspection United States, 517 U.S. 690, 116 S. Ct.

sticker. He signaled for the vehicle to 1657, 134 L. Ed. 2d 911 (1996); United

stop. The driver, Nathan Stewart, States v. Valentine, 232 F.3d 350 (3d Cir.

complied. In addition to the driver, there 2000). We review the District Court’s

were two passengers: the driver’s brother, findings of fact for clear error. Ornelas,

Neil Stewart, in the back seat and Jermane 517 U.S. at 698, 116 S. Ct. at 1663.

Bonner in the front passenger seat.

II

As Officer Harbaugh approached

the driver’s side of the vehicle, Bonner As a preliminary matter, the

alighted and ran. Officer Stewart chased government challenges the District Court’s

after him on foot, repeatedly yelling for findings that the area was not a high crime

him to stop. Officer English gave chase in area, and that the hour of the stop, 11:40

2

pm, was not significant to the reasonable U.S. 106, 109, 98 S. Ct. 330, 332, 54 L.

suspicion inquiry. In support of its Ed. 2d 331 (1977). It is also well settled

contention that the Ohioview Acres that a police officer executing such a stop

housing project was a high crime area, the may exercise reasonable superintendence

government submitted a log book of over the car and its passengers. Under

arrests made at the housing project over a Mimms, the officer may order the driver

three-year period. As the District Court out of the vehicle without any

found, the log book reflected that there particularized suspicion. Mimms, 434

was an average of 1.3 arrests per week, U.S. at 110-11, 98 S. Ct. at 333. The

and that most of the arrests were for Supreme Court extended that bright line

misdemeanors and summary offenses. rule to allow the officer to order any

Considering the number of people who passengers out of the car as well.

live in the housing project, the District Maryland v. Wilson, 519 U.S. 408, 117 S.

Court found that this average reflected Ct. 882, 137 L. Ed. 2d 41 (1997).

neither a high crime area nor trafficking in Alternatively, the officer may order all of

narcotics. The government contends this the occupants to remain in the car with

finding was clearly erroneous, and points their hands up. United States v.

to a news article as further evidence of the Moorefield, 111 F.3d 10 (3d Cir. 1997).

level of crime present in the area. Even In addition, the officer may pat down the

considering the news article, however, the occupants of the vehicle and conduct a

evidence does not compel the conclusion search of the passenger compartment, if he

that the District Court erred in finding that has a reasonable suspicion that the

the housing project was not a high crime occupants might be armed and dangerous.

area. The District Court found that the Michigan v. Long, 463 U.S. 1032, 1049-

stop did occur at 11:40 p.m., but did not 50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d

consider that factor relevant to its analysis 1201 (1983) (permitting search of vehicle

of whether there was reasonable suspicion during traffic stop); Mimms, 434 U.S. at

for the stop. The evidence does not 111-112, 98 S. Ct. at 334 (permitting pat

compel a different conclusion. We down of driver upon reasonable

conclude that the fact finding by the suspicion); Terry v. Ohio, 392 U.S. 1, 17,

District Court was not clearly erroneous. 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889

(1968); Moorefield, 111 F.3d at 13-14

III (permitting pat down of passenger upon

reasonable suspicion).

It is uncontested that the initial

traffic stop was lawful under the Fourth The government asserts that the

Amendment. A police officer who police officers ordered Bonner and the

observes a violation of state traffic laws other occupants to stay in the vehicle. At

may lawfully stop the car committing the the suppression hearing, however, there

violation. Pennsylvania v. Mimms, 434 was conflicting testimony whether the

3

officers said anything before Bonner ran. its progeny, an officer may conduct a brief,

The District Court made no finding with investigatory stop when that officer has “a

respect to what, if anything, the officers reasonable, articulable suspicion that

said before Bonner got out of the vehicle criminal activity is afoot.” Illinois v.

and ran. We will assume for the purpose Wardlow, 528 U.S. 119, 123, 120 S. Ct.

of this opinion that the officers did not 673, 675, 145 L. Ed. 2d 570 (2000).

issue any commands before Bonner began Although reasonable suspicion is less

running. But even absent a specific demanding than probable cause, the Fourth

command, it is undisputed that Bonner, an Amendment does require that an officer

occupant of the stopped vehicle, ran from making a stop have some level of objective

the scene of a legitimate traffic stop justification for that stop. United States v.

without authorization or consent of the Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,

officers. During such a stop, a police 1585, 104 L. Ed. 2d 1 (1989). In

officer has the authority and duty to evaluating whether a particular stop was

control the vehicle and its occupants, at justified, courts must look at the totality of

least for a brief period of time. 1 Bonner the circumstances surrounding the stop.

prevented Officer Stewart from controlling Sokolow, 490 U.S. at 8, 109 S. Ct. at 1586

the stop by running from the vehicle (quoting United States v. Cortez, 449 U.S.

before the purpose of the stop was even 411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d

announced. 621(1981)). In effectuating a valid stop,

police officers are allowed to use a

Under Terry v. Ohio, 392 U.S. 1, 88 reasonable amount of force. Graham v.

S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Connor, 490 U.S. 386, 109 S. Ct. 1865,

104 L. Ed. 2d 443 (1989). Bonner argues

that flight, standing alone, is not sufficient

1 to engender reasonable suspicion on the

The Supreme Court has never

part of a police officer. Indeed, the

addressed the question of whether, during

Supreme Court has never held that

a lawful traffic stop, the police could

unprovoked flight alone is enough to

detain any passengers for the entire

justify a stop. The Supreme Court has

duration of the stop. Indeed, the Court

held, however, that flight upon noticing

explicitly left that question open when it

police, plus some other indicia of

held that the police could order passengers

wrongdoing, can constitute reasonable

out of the car during a stop. Maryland v.

suspicion. Wardlow, 528 U.S. at 125-26,

Wilson, 519 U.S. 408, 415 n. 3, 117 S. Ct.

120 S. Ct. at 676-77. The “plus” factor

882, 886 n. 3, 137 L. Ed. 2d 41 (1997).

was Wardlow’s mere presence in an area

That question is not before us, as Bonner

known for high narcotics trafficking.

fled before the purpose of the stop was

Wardlow, 528 U.S. at 124, 120 S. Ct. at

announced, and before the police could

676. In holding that flight plus presence in

exercise the initial control authorized by

a high crime area justified the stop, the

Wilson and other cases.

4

Court explained, “the determination of Terry, 392 U.S. at 34, 88 S. Ct. at 1886

reasonable suspicion must be based on (White, J. concurring)). Moreover, a

commonsense judgments and inferences refusal to cooperate with the police in a

about human behavior.” Wardlow, 528 consensual encounter, without more,

U.S. at 125, 120 S. Ct. at 676. cannot constitute reasonable suspicion for

a stop. Florida v. Bostick, 501 U.S. 429,

In Wardlow, eight officers in a 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d

four-car caravan converged on a 389 (1991) (citations omitted).

neighborhood known for high narcotics

trafficking. Upon arriving in the area, two In this case, however, Bonner did

of the officers noticed the defendant not simply flee upon “noticing” police, nor

standing near a building, holding a bag. did he simply refuse to cooperate during a

The defendant looked in the direction of consensual encounter. Bonner fled from a

the officers and then fled. Wardlow, 528 lawful traffic stop, before the officers had

U.S. at 122, 120 S. Ct. at 675. Before he the chance to announce the purpose of the

ran, the officers had no reason to suspect stop. He continued fleeing despite

the defendant of any wrongdoing, and had repeated orders to stop, and he did not stop

no legitimate cause to detain him; the running until he was tackled by Officer

defendant simply fled from the possibility English. Bonner’s flight from a lawful

of a consensual encounter with the police. police traffic stop, where that flight

prevented the police from discharging their

Mere presence in an area known for duty of maintaining oversight and control

high crime does not give rise to reasonable over the traffic stop, provided the officers

suspicion for a stop. Brown v. Texas, 443 with reasonable suspicion to stop Bonner

U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. for further investigation. Flight from a

Ed. 2d 357 (1979). Police officers may non-consensual, legitimate traffic stop (in

approach individuals without reasonable which the officers are authorized to exert

suspicion or probable cause, and may superintendence and control over the

question such individuals without occupants of the car) gives rise to

implicating the Fourth Amendment. reasonable suspicion.

Florida v. Royer, 460 U.S. 491, 497, 103

S. Ct. 1319, 1324, 75 L. Ed. 2d 229 IV

(1983). An individual approached in this

manner “need not answer any question put By reason of Bonner’s flight in the

to him; indeed, he may decline to listen to course of a legitimate traffic stop, the

the questions at all and may go on his officers had reasonable suspicion to stop

way.” Royer, 460 U.S. at 498, 103 S. Ct. him. Upon effectuating the stop the drugs

at 1324 (citing Terry v. Ohio, 392 U.S. 1, were revealed, giving probable cause to

32-33, 88 S. Ct. 1868, 1885-86 20 L. Ed. arrest. The judgment of the District Court

2d 889 (1968) (Harlan, J. concurring); entered on February 12, 2003, will be

5

reversed. The case will be remanded to

the District Court for further proceedings

consistent with this opinion.

United States v. Bonner, No. 03-1547 because I believe these alternatives require

the D istrict Court to conduct

Smith, Concurring.

fundamentally different inquiries, even

Because I agree that “flight from a though the evidence offered for both may

non-consensual, legitimate traffic stop (in be overlapping or even identical.

which the officers are authorized to exert

Here, the District Court found that

superintendence and control over the

“the government has not shown by a

occupants of the car) gives rise to

preponderance of the evidence that Ohio

reasonable suspicion,” I join Judge

View Acres is such an area.” After

Cowen’s opinion in full. Maj. op. at 5. I

reviewing the relevant evidence, the

write separately only to highlight an issue

District Court declared that evidence

implicated in the District Court’s fact-

“hardly makes Ohio View Acres a heavy

finding which we have not been required

crime and narcotics trafficking area.”

to address: whether under the flight “plus”

analysis of Wardlow, 528 U.S. 119, the What I am concerned about in these

government is required to prove the Wardlow-type cases is the fact-finder’s

existence of objective criteria for what focus: should it be that of a federal judge,

constitutes a high crime area and that the operating within the confines of a

stop occurred in such an area, or rather that courtroom, who believes the area to be one

the government is required to prove that of high crime, or that of a police officer

officers effecting the stop had a reasonable who, based on experience and an

articulable basis to believe that they were awareness of crime and arrest data, had a

in a “high crime area.” 2 I point this out

in which there is a high volume of crime,

2

Judge Cowen describes this factor as but does not qualify as a “high narcotics

whether the area was a “high crime area.” trafficking area.” Because the test should

Maj. op. at 2. The District Court’s be the same for either analysis, however,

analysis, however, was more limited and the distinction is not material for purposes

addressed only whether this was a “high of this concurrence. For purposes of

narcotics trafficking area.” As there are continuity, then, I adopt Judge Cowen’s

many crimes which do not involve articulation of the question–whether the

narcotics trafficking, an area could be one area was a “high crime area.”

6

basis to form a reasonable articulable their own experience and specialized

belief that it is such an area?3 Obviously, training to make inferences from and

the differences in focus are not only dedu ctions abou t the cu mu lative

differences of experience and perspective. information available to them that might

A judge engaged in adjudicative fact- well elude an untrained person.”) (internal

finding will apply standards of credibility quotation marks omitted); Ornelas v.

and proof that differ from the cognitive United States, 517 U.S. 690, 699 (1996)

processes of an officer acting in the field. (reviewing court must give the appropriate

weight to factual inferences drawn by local

law enforcement officers). In the same

The touchstone of Terry v. Ohio is

way, an officer is in the position to know

its requirement that a court consider

the routines and patterns of a geographic

whether “the facts available to the officer

area, and whether it is more prone to

at the moment of the seizure or the search

crime. This knowledge may not be

‘warrant a man of reasonable caution in

reflected on arrest records and log sheets,

the belief’ that the action taken was

as arrests are not the only indicia of crime.

appropriate[.]” 392 U.S. at 21-22 (1968)

In any case, we need not resolve the issue

(citing Carroll v. United States, 267 U.S.

here.

132 (1925); Beck v. Ohio, 379 U.S. 89, 96-

97 (1964)). As explained by the Supreme I agree that the evidence offered by

Court in United States v. Cortez, 449 U.S. the government does not compel the

411, 418 (1981), an officer’s suspicion that conclusion that the District Court erred in

criminal activity is afoot may be informed finding that Ohio View Acres was not a

by “various objective observations, high crime area. And even if the District

information from police reports, if such are Court were required to determine whether

available, and consideration of the modes the officers had a reasonable articulable

or patterns of operation of certain kinds of basis to believe it was a high crime area,

lawbreakers. From these data, a trained such a finding would contribute nothing to

officer draws inferences and makes the result here because the government has

deductions–inferences and deductions that demonstrated flight “plus” by other

might well elude an untrained person.” evidentiary means.

See also United States v. Arvizu, 534 U.S.

Finally, although I join Judge

266, 274 (2002) (officers may “draw on

Cowen in reversing the District Court, I

echo the sentiments of Judge McKee

3 expressed in Part III of his dissent.

Wardlow did not resolve this issue

because it appears that in that case there It should be a rare occasion when

was no dispute that the stop took place in judges criticize, and thereby intrude into, a

a high crime area. In the case before us, legitimate exercise of prosecutorial

the District Court did confront a factual discretion. Nor should we routinely

dispute on this issue.

7

question in our opinions the policy Court precedent compels us to affirm the

decisions of Congress to federalize what district court’s order suppressing the

has traditionally been state law street evidence that was seized in this case.

crime. Our institutional role as judges is Moreover, although I do not think the

limited by our jurisdiction and by the circumstances here establish a Terry stop,

comity and respect we owe to coordinate I do agree that we must begin our analysis

branches of government. with the Supreme Court’s decision in

Terry.

That being said, the instant case

presents a series of events which the I. Terry v. Ohio

dissent characterizes as a prosecutorial

In Terry, the Supreme Court held

“switcheroo.” I cannot disagree with that

that a police officer may approach an

characterization, and I share the “concern

individual “for purposes of investigating

for the appearance of fairness” expressed

possibly criminal behavior even though

by Judge McKee. It is one thing for the

there is no probable cause to make an

government to assume an investigation

arrest,” and briefly detain him/her in order

initiated by state law enforcement

to fulfill “[a] legitimate investigative

officials, or even to adopt a prosecution

function [.]” 392 U.S. at 22.

commenced by state prosecutors. It is

quite another to seek a federal indictment The police officer in Terry

where the federal interest in the case is approached and briefly detained two

recognized only after state prosecutors individuals after observing their suspicious

have given the case their best shot in the behavior from a distance and concluding

state courts and lost on an issue of state that they were casing a store that they were

law. Not only does such a tactic offend about to burglarize. The Terry Court held

fundamental notions of fairness, it is that the Fourth Amendment allowed the

contrary to traditional notions of our officer to briefly detain them in order to

federalism. conduct a brief investigation into their

suspicious behavior. Since the

individuals’ actions also suggested that

U.S. v. Bonner, No. 03-1547 they might be armed, the Court also

concluded that the Fourth Amendment

McKee, Dissenting

allowed the officer “to conduct a carefully

I must respectfully dissent, because limited search of the outer clothing . . . in

I believe the majority’s analysis is an attempt to discover weapons which

inconsistent with Terry v. Ohio, 392 U.S. might be used to assault [the officer].” Id.

1 (1968), and Illinois v. Wardlow, 528 at 30. The Court explained:

U.S. 119 (2000). Although I view this

The actions of [th e

case a bit differently than the district court,

defendants] were consistent

I nevertheless conclude that Supreme

with the officer’s hypothesis

8

that these men were content than that required to

c o n t e m p l a t in g a establish probable cause, but

daylight robbery - - also in the sense that

which, it is reasonable suspicion can

reasonable to arise from information that

assume, would be is less reliable than that

likely to involve the required to show probable

use of weapons - - cause.

and nothing in their

conduct from the

time he first noticed Id. (internal quotation marks omitted)

them until the time (quoting Alabama v. White, 496 U.S. 325,

he confronted them 330 (1990)). Accordingly, absent probable

and identified cause, an individual’s detention must be

himself as a police supported by “reasonable, articulable

officer gave him suspicion that criminal activity is afoot.”

sufficient reason to Illinois v. Wardlow, 528 U.S. 119, 123

nega te that (2000). However, Bonner was “detained”

hypothesis. after the vehicle he was riding in was

stopped for a traffic infraction, and the

Supreme Court has allowed greater

Id. at 28. latitude in the context of traffic stops.

Therefore, “under Terry v. Ohio and A. Terry applied to traffic stops

subsequent cases, ‘an officer may,

Terry was first implicated in the

consistent with the Fourth Amendment,

context of a lawful traffic stop in

conduct a brief, investigatory stop if the

Pennsylvania v. Mimms, 434 U.S. 106

officer has a reasonable, articulable

(1977). There, a police officer legally

suspicion that criminal activity is afoot.’”

stopped a car for a traffic violation and

United States v. Valentine, 232 F.3d 350,

ordered the driver to get out. The officer

353 (3d Cir. 2000) (internal citation

was not motivated by any particularized

omitted). The Supreme Court has

suspicion in doing so; rather, it was the

explained that:

officer’s policy to order drivers out of their

Reasonable suspicion is a cars “as a matter of course whenever they

less demanding standard had been stopped for a traffic violation.”

than probable cause not only Id. at 109-10. Once the driver was out of

in the sense that reasonable the car, the officer noticed a bulge under

suspicion can be established the driver’s jacket and the officer

with information that is immediately conducted a “pat-down”

different in quantity or search because he believed the bulge was

9

a weapon. Id. at 111-12. As a result of that minimal additional intrusion. Id. at 413-14.

search, a gun was seized, and the In addition, “the fact that there is more

defendant was thereafter arrested. than one occupant of the vehicle increases

the possible sources of harm to the

The Supreme Court held that the

officer.” Moreover, “the motivation of a

search did not violate the Fourth

passenger to employ violence to prevent

Amendment. The Court reasoned that

apprehension. . . is every bit as great as

considerations of safety justified allowing

that of the driver.” Id. at 414.

police to order drivers to get out of their

vehicles during lawful traffic stops B. Bonner was not detained under

because weapons could be concealed Terry

inside the vehicle in easy reach of the

The majority’s analysis assumes

driver. Since police could lawfully order

that we are confronted with a Terry stop,

the driver out of the vehicle, the Court

and the district court ultimately analyzed

concluded that, under Terry, the officer

the detention under Terry. However, after

was “justified in conducting a limited

reviewing the transcript of the suppression

search for weapons once he had reasonably

hearing, it is clear to me that the police

concluded that the person whom he had

officers who “stopped” Bonner were not

legitimately stopped might be armed and

basing their actions on any reasonable,

presently dangerous.” Id.

articulable suspicion as is required under

The Court extended the rule of Terry. They certainly never were able to

Mimms to include passengers of lawfully explain their conduct by establishing any

stopped vehicles in Maryland v. Wilson, such suspicion despite having every

519 U.S. 408 (1997). There, as in Mimms, opportunity to do so during the

a traffic violation created the grounds to suppression hearing. I think it telling that,

legally stop an automobile. The police at the very beginning of the suppression

ordered the passenger out of the car as a hearing, the district court asked the

precaution, not because of any suspicion of government if Bonner was searched

illegality. The Wilson Court had no pursuant to a Terry stop. The court

difficulty concluding that the same inquired: “I understand that this is a

considerations of safety present when warrantless search; is that a Terry v. Ohio

drivers are ordered to get out of a stopped search?” App. at 127. The government’s

vehicle outweighed the minimal intrusion response did not confirm a Terry stop.

on any passenger who is ordered out of a Rather, counsel stated: “This was a search

car that has been legally stopped for a incident to arrest.” Id.

traffic infraction. Id. at 414. The Wilson

It is not surprising that the

Court found that, “as a practical matter, the

government did not argue Terry initially

passengers are already stopped by the

because the testimony that the government

virtue of the stop of the vehicle,” and the

produced at the suppression hearing did

order to get out of the car creates only a

10

not establish a Terry stop. Rather, the findings only when they are clearly

testimony was consistent with, but fell erroneous, i.e. when they are “completely

short of establishing, a search incident to a devoid of a credible evidentiary basis or

valid arrest. The seizure can not be

justified on that basis because the

testimony failed to establish probable

between establishing that an area is a “high

cause for an arrest other than mere flight.

crime area” versus establishing an officer’s

See United States v. Myers, 308 F.3d 251,

good faith belief that it is one. I do not

265-66 (3d Cir. 2002).4

suggest that the district court was correct

When Officer English was asked to the extent that it required the

why he chased Bonner he responded: government to prove that the area is

“They were exiting a high crime area, actually “a high crime area” by a

known trafficking (sic), and the officers preponderance of the evidence. Rather,

informed the Defendant to stop and get the inquiry must be the subjective belief of

back into the vehicle, and he failed to the arresting officer. However, it is clear

comply with the officer’s orders.” App. at under Terry that the subjective belief must

148. However, the district court rejected be objectively reasonable. Hill v.

the testimony that Bonner was ordered California, 401 U.S. 797 (1971). Absent

back into the car as well as the officer’s more than was offered at the suppression

testimony about a “high crime area” or one hearing, the district court’s inquiry

known for “narcotics trafficking.” Id. at undermined the objective reasonableness

17.5 We reverse the district court’s factual of any subjective belief that the area in

question was a “high crime” area or known

for “narcotics trafficking.”

4

Despite its initial inquiry into a search Moreover, I think that the

incident to arrest, the district court did requirement of an objectively reasonable

base its ruling on Terry. App. at 18-19 belief addresses Judge Smith’s concern

(“Bonner’s flight alone is insufficient to that such determinations are being made

create a reasonable articulable suspicion by judges in the comfort of their

that he was involved in criminal activity. . courtrooms rather than by officers in the

. . Because this court finds that the streets. See Concurring Op. at 2. Although

government failed to meet its burden of proper deference must be afforded to the

showing Bonner’s stop was supported by training, experience, and knowledge of

a reasonable articulable suspicion of police officers, as well as the trying

criminal conduct, the stop and seizure c i r c u ms t a n c e s f a c i n g t h em, th e

violated Bonner’s Fourth Amendment Constitution does not allow us to abdicate

rights.”). our responsibilities in favor of their

judgments simply because we are

5

In his concurring opinion, Judge operating within the comfortable confines

Smith correctly notes the distinction of a courtroom or appellate chambers.

11

bear no rational relationship to the had him in a grasp around

supporting data.” 6 Here, the district the waist; he continued to

court’s findings of fact are clearly try to get up and get away

supported by the record. from me. . . . I informed

him numerous times to place

There was conflicting testimony

his hands behind his back

about whether the officers said anything to

and quit resisting.

Bonner before he ran, and the court

discredited the officers’ conflicting App. at 149. The officer was then asked

testimony that they did. Id. at 15. Thus, as whether or not it was necessary to forcibly

Judge Smith summarizes in his concurring place Bonner’s hands behind his back and

opinion, the issue before us may be Officer English confirmed that he was able

distilled as whether “flight from a non- “to subdue the Defendant” together with

consensual, legitimate traffic stop . . . [by Officer Sweeney and Officer Stewart. Id.

itself] gives rise to reasonable suspicion.” Therefore, the district court was quite

See Concurring Op. at 1, and Maj. Op. at correct in stating: “The only pertinent

9. factor is Bonner’s flight.” App. at 18.

Bonner was chased, tackled and The majority states that Officer

handcuffed simply because he ran. That is English observed a plastic bag in Bonner’s

abso lutely cons istent w ith Officer hand “[w]hile subduing him.” Maj. Op. at

English’s testimony at the suppression 4. However, Officer English actually

hearing. Officer English was asked the stated that he did not see the bag until after

following question: “[T]he reason M r. Bonner had been handcuffed. Officer

Bonner was being chased was because he English stated that after he was finally able

started running, correct?” The officer to subdue Bonner, the officers discovered

responded: “That’s the reason the initial that “he was clutching a plastic baggie. .

chase was started, I believe.” App. at 153. .”. App. at 149. The other officer, Officer

Officer English described the stop as Stewart, was never asked when he first

follows: saw the baggie that Bonner was clutching.

The only relevant testimony on this record

I eventually caught up with

is English’s testimony that he noticed the

the Defendant, and we fell

bag after Bonner was subdued, not before

to the ground. . . . The

or while he was being subdued. Officer

Defendant continued to try

Stewart testified that he saw Officer

to get up away from me. I

English take something out of Bonner’s

hand “[a]fter he was in handcuffs.” App.

6 at 136.

United States v. Taftsiou, 144 F.3d

287, 293 (3d Cir. 1998); see also United “It is the state’s burden to

States v. Perez, 280 F.3d 318, 336 (3d Cir. demonstrate that the seizure it seeks to

2002).

12

justify on the basis of the reasonable 392 U.S. at 24. Nevertheless, the Court

suspicion was sufficiently limited in scope remained cognizant of “the nature and

and duration to satisfy the conditions of an quality of the intrusion” of the person

investigative seizure.” Florida v. Royer, detained. Id. It concluded that the

460 U.S. 491, 500 (1983). Terry, like authority conferred on the Fourth

Mimms and Wilson, recognized that Amendment for a brief detention must be

officers who briefly detain individuals for “narrowly drawn. . . to permit a reasonable

investigation based upon articulable search for weapons for the protection of

suspicion need to protect themselves and the police officer, where he has reason to

that concerns for the safety of the officer believe that he is dealing with an armed

and others justify certain limited steps and dangerous individual, regardless of

consistent with that concern. The Terry whether he has probable cause to arrest the

Court explained: individual for the crime.” Id. at 27. Thus,

“[t]he manner in which the seizure and

[W]e can no t blind

search were conducted is . . . as vital a part

ourselves to the need for law

of the inquiry as whether they were

enforcement officers to

warranted at all.” Id. at 28.

protect themselves and other

prospective victims of As noted above, the Mimms Court

violence in situations where held that police may order the driver of a

they may lack probable lawfully stopped automobile to step out of

cause for an arrest. When the car for the officer’s own protection,

an officer is justified in stating that “a significant percentage of

believing that an individual murders of police officers occurs when the

whose suspicious behavior officers are making traffic stops.” 434 U.S.

he is investigating at close 106, 110 (1977) (internal citation and

range is armed and quotation marks omitted). The danger is

dangerous to the officer or reduced with only minimal additional

to others, it would appear to intrusion by allowing officers to “control”

be clearly unreasonable to the situation to the extent of ordering

deny the officer the power occupants out of the car. “Establishing a

to take necessary reasonable face-to-face confrontation diminishes the

measures to determin e possibility, otherwise substantial, that the

whether the person is in fact driver,” or passenger, “can make

carrying a weapon and to unobserved movements; this, in turn,

neutralize the threat of reduces the likelihood that the officer will

physical harm. be the victim of an assault.” Id. “The risk

of harm to both the police and the

occupants is minimized if the officers

routinely exercise unquestioned command

13

of the situation.” Michigan v. Summers, the suppression court that was precisely

452 U.S. 692, 702-03 (1981) (internal the justification for the search. However,

citation omitted). 7 absent probable cause to arrest Bonner, the

search can not be sustained as a search

However, my colleagues have

incident to an arrest. United States v.

severed the rule from its analytical

Myers, 308 F.3d 251, 265-66 (3d Cir.

moorings. They are applying the rule here

2002). Moreover, even if we view this as

even though the police did not even

a Terry stop, I would still conclude that the

attempt to explain their actions in terms of

district court’s suppression order was

any perceived threat from Bonner getting

correct because there is nothing to

out of the car and any danger arose from

establish reasonable suspicion but

chasing, tackling, and subduing an

Bonner’s flight.

occupant of a stopped vehicle who was

merely trying to leave. Of course, I do not In addition, as noted above, the

mean to suggest that flight necessarily scope and duration of the detention

eliminates the danger the Court was authorized under Terry must be consistent

concerned with in Terry, Mimms or with the articulable suspicion underlying

Wilson. However, I think it a stretch to the detention; that is the sine qua non of

equate law enforcement’s need to control Terry. It is the basis for eliminating the

a driver or passenger with the officers’ requirement of probable cause before

need to control Bonner here. Officer detaining someone. As the Court stated in

English clearly testified that Bonner was Florida v. Royer, 460 U.S. 491, 500

chased and handcuffed because he ran (1983), “an investigative detention must

away from a stopped car. No other be temporary and last no longer than is

justification is offered, except by my necessary to effectuate the purpose of the

colleagues. Accordingly, I believe this stop. Similarly, the investigative methods

seizure can only stand only if it can be employed should be the least intrusive

justified as a search incident to a valid means reasonably available to verify the

warrantless arrest. officer’s suspicions in a short period of

time.” Terry does not authorize police to

The government no doubt realized

chase, tackle and handcuff one who runs

this and therefore, as explained above, told

away from them based solely on flight.

Moreover, I do not believe other precedent

can support that level of intrusion either.

7

In United States v. Moorefield, 111

F.3d 10, 12-13 (3d Cir. 1997), we held that II. Detention Based on Flight Alone

police could order a passenger in a To determine if Bonner was

lawfully stopped car to remain inside with legitimately detained based solely on his

his/her hands in the air based upon the flight, we must examine two Supreme

same considerations of safety relied upon Court cases regarding an individual’s right

in Mimms and Wilson.

14

to walk away from police officers; Florida person who is no more than suspected of

v. Royer, 460 U.S. 491 (1983), and Illinois criminal activity, the police may not carry

v. Wardlow, 528 U.S. 119 (2000). out a full search of the person. . . . Nor

may the police seek to verify their

A. Florida v. Royer

suspicions by means that approach the

In Royer, the Supreme Court held conditions of arrest.” Id. (citing Dunaway

that there is no obligation to submit to v. New York, 442 U.S. 200, 207-09

inquiries when approached by police. The (1979)).

Court also held that refusal to submit to

The majority notes that Bonner was

police questioning or cooperate with a

the occupant of a stopped vehicle who “ran

police inquiry does not, without more,

from the scene of a legitimate traffic stop

furnish the necessary grounds for

without authorization or consent of the

detention. 460 U.S. at 497-98.

officers,” and assume that analysis under

Prior to Terry v. Ohio [], Mimms and Wilson is appropriate. Maj.

any restraint on the person Op. at 6 (emphasis added). However,

amounting to a seizure for under Royer, it is irrelevant that Bonner

the purposes of the Fourth left the vehicle without the police officers’

Amendment was invalid authorization. Royer did not condition an

unless justified by probable individual’s right to go on his/her way on

cause. Terry created a first obtaining police permission. In fact,

limited exception to this conditioning the right to leave a police

general rule: search and inquiry on the street on obtaining

seizures are justifiable under “authorization or consent” would totally

the Fourth Amendment if negate Royer’s holding. As the majority

there is articulable suspicion correctly notes, a refusal to cooperate with

that a person has committed the police in a consensual encounter,

or is about to commit a without more, can not co nstitute

crime. reasonable suspicion for a stop. Maj. Op.

at 9 (quoting Florida v. Bostick, 501 U.S.

429, 437 (1991)).

Id. at 498 (citations omitted).

The difficulty with analyzing this

Thus, the Royer Court reinforced case stems not from Royer but from

the fact that Terry did not create a license Illinois v. Wardlow, 528 U.S. 119 (2000).

to detain for investigation in the absence The Court’s language there creates some

of articulable suspicion. The Court also tension with its prior holding in Royer

stressed that “[d]etentions may be even though the Wardlow Court was

‘investigative’ yet violative of the Fourth careful to explicitly reaffirm the holding in

Amendment absent probable cause.” Id. at Royer.

499. “In the name of investigating a

15

B. Illinois v. Wardlow c i r c u m s ta n c e s , a l l o w i n g o f f i c e rs

“confronted with such flight to stop the

In Wardlow, the Court held that

fugitive and investigate further is quite

police properly conducted a Terry stop of

consistent with the individual’s right to go

an individual who fled after looking in the

about business or to stay put and remain

direction of an approaching police caravan

silent in the face of police questioning.”

in “an area known for heavy narcotics

Id. at 125. “It was in this context that

trafficking.” 528 U.S. at 121. The Court

[police] decided to investigate Wardlow

summarized Royer as holding “that when

after observing him flee.” Id. at 124

an officer, without reasonable suspicion or

(emphasis added). When the pursuing

probable cause, approaches an individual,

police officer caught Wardlow, he

an individual has a right to ignore the

immediately conducted a “pat-down search

police and go about his business.” Id. at

for weapons. . . because in his experience,

125. However, the Court also noted that

it was common for there to be weapons in

flight is one of the circumstances that must

the near vicinity of narcotics transactions.”

be considered under Terry. Id. In doing

Id. at 121-22.

so, however, the Court reiterated that “any

refusal to cooperate, without more, does The context here is quite different,

not furnish the minimal level of objective and we should not be so quick to ignore

justification needed for a detention or the Supreme Court’s pronouncement in

seizure.” Id. (quoting Florida v. Bostick, Royer that one who is approached by

501 U.S. 429, 437 (1991)). police “need not answer any question put

to him; he may decline to listen to the

A close reading of the Court’s

questions at all and may go on his way.”

opinion in Wardlow resolves any apparent

Royer, 460 U.S. at 498 (citing Terry v.

tension. It was not Wardlow’s flight that

Ohio, 392 U.S. 1, 32-33 (1968)). Of

justified his detention. Rather, it was

course, Bonner did not walk away; he ran.

flight in context with the other

The Court in Wardlow noted that running

circumstances in that case. The

away is more consistent with guilt than

circumstances included the fact that police

with going about one’s business. 528 U.S.

were “patrolling an area known for heavy

at 125 (“[U]nprovoked flight is simply not

narcotics trafficking.” Id. at 121. In fact,

a mere refusal to cooperate. Flight, by its

the police were traveling in a caravan

very nature, is not ‘going about one’s

“because they expected to find a crowd of

business’; in fact, it is just the opposite.”).

people in the area, including lookouts and

That was clearly true in Wardlow’s case

[drug] customers.” Id. As the police

because the area where he was found, the

caravan approached Wardlow, police saw

drug activity there and the bag in his hand

him look at them and run, holding a bag as

combined with his flight to create the

he fled. Given the context, police could

articulable suspicion required under Terry.

reasonably conclude that he was a drug

Here, there is only flight, and my

dealer, purchaser, or lookout. Under those

16

colleagues concede that “the Supreme see the importance of whether the purpose

Court has never held that unprovoked of the stop had been announced or not as

flight alone is enough to justify a stop.” the majority’s analysis would surely be the

Maj. Op. at 8. same if Officer Stewart had announced the

purpose of the stop. Moreover, an

I doubt that the Court in Wardlow

individual who exercises his or her

intended to stretch its focus on running to

constitutional right to leave a police

the extent that the rule in Royer would be

officer will inevitably prevent the police

swallowed, especially since the Court

officer “from controlling the stop” and

disclaimed any such intent. Thus, I am

completing an investigation. Given the

skeptical that the Supreme Court intended

o f f i c e r s ’ t e s ti m o n y, our Fo u r t h

to announce a rule under Royer and

Amendment inquiry must focus on

Wardlow that would cause the Fourth

Bonner’s flight, not the resultant loss of

Amendment to rest upon the speed with

control or the inability of police to

which one chooses to leave an officer’s

announce the reason for the stop.

presence. Under such a rule the

fundamental guarantees of the Fourth Bonner could have been briefly

Amendment would vary with a suspect’s detained inside of the vehicle, and he

gait. Until the Supreme Court announces could also have been detained pursuant to

such a rule, I am not willing to conclude an order to step outside of the vehicle. In

that someone in Bonner’s situation is free both situations, the detention would be

to walk away from a lawfully stopped justified by very real concerns about the

vehicle, but not free to walk too quickly officers’ safety. That is not what

away or run. happened. The majority’s focus misses the

point. Absent circumstances that permit

My colleagues repeatedly stress that

the kind of detention authorized by Mimms

“Bonner prevented Officer Stewart from

and its progeny, this case must be analyzed

controlling the stop by running from the

under the more restrictive lens of Terry,

vehicle before the purpose of the stop was

Royer, and Wardlow. Under the precedent

even announced.” Maj. Op. at 7.8 I fail to

of those cases, flight alone does not give

rise to probable cause, or reasonable

suspicion. Similarly, police can not rely

8

See also Maj. Op. at 6-7 (“[A] police upon some undefined and untethered

officer has the authority and duty to notion of “control” to prevent someone

control the vehicle and its occupants”); id from walking away from an interrogation

at 7, n.1 (“. . .Bonner fled before the in the absence of probable cause or

purpose of the stop was announced, and articulable suspicion where circumstances

before the police could exercise the initial

control authorized by Wilson and other

cases.”); id. at 9 (“[Bonner’s] flight duty of maintaining oversight and control

prevented the police from discharging their over the traffic stop. . . .”).

17

do not suggest the safety concerns so Commonwealth of Pennsylvania charged

central to Terry, Mimms and their progeny. Bonner with possession with the intent to

Of course, as I explain above, it is not the distribute crack cocaine as well as several

arresting officers here who attempt to misdemeanors and summary offenses.

explain Bonner’s arrest in terms of Defending himself in the Court of

“control”; it is the majority. The officers Common Pleas, Bonner moved to suppress

quite simply state that Bonner was arrested the physical evidence seized from him

because he ran; and so he was. upon his arrest. He argued that the police

lacked reasonable suspicion to initially

Today we therefore hold that

detain him. Following a hearing on his

“[f]light from a nonconsensual, legitimate

suppression motion, the Court of Common

traffic stop (in which the officers are

Pleas granted Bonner’s motion and

authorized to exert superintendence and

suppressed the evidence that was seized

control over the occupants of the car) gives

from him on November 29, 2001.

rise to reasonable suspicion.” Maj. Op. at

9. This is a troubling resolution of a close The Commonwealth thereafter

and difficult case. Reasonable minds can appealed the court’s suppression order to

easily disagree about the application of the Superior Court. However, the

Wardlow and Royer to the circumstances Commonwealth was not content to wait

here. In the final analysis, it may well be until the state appellate court could

that the Supreme Court will resolve the resolve its appeal. On March 13, 2002,

tension I see between those two cases. Bonner was indicted in federal court for

However, until that day comes, I simply possessing a controlled substance with

can not agree with the majority’s intent to distribute. App. at 4, 9. The

application of Supreme Court precedent. Commonwealth thereafter withdrew its

appeal before the Superior Court of

III. The Procedural Posture of this

Pennsylvania could rule on it.

Prosecution

The state suppression ruling was

There is an additional, and

based upon that court’s interpretation of

troubling aspect of this case that requires a

the Pennsylvania Constitution and the

brief comment. Inasmuch as the

ruling of the district court is, of course,

possession of the controlled substance

based upon the U nited S tates

found in Bonner’s possession after his

Constitution.9 Accordingly, the Rooker-

arrest constituted an offense under both

state and federal law, prosecutors initially

had the option of prosecuting him in state

9

court or in federal court. For reasons not The Pennsylvania Supreme Court has

apparent on this record, prosecutors held that Art. I, § 8 of the Pennsylvania

initially filed state charges and he was Constitution affords greater protection

prosecuted in state court where the than the Fourth Amendment of the United

States Constitution despite the almost

18

Feldman doctrine is not implicated by cooperation and communication between

what can best be described as a state and federal prosecutors who executed

prosecutorial “switchero o.” 10 this hand-off in order to execute an end

Nevertheless, I am still concerned that run around the adverse decision of the

state and federal prosecutors apparently Court of Common Pleas. Although we

chose to shift this case to federal court have jurisdiction here and must exercise it,

while the appeal of the state court’s this procedural history does not reflect

suppression order was pending. I think it well on the criminal justice system and

fair to assume a significant level of undermines the appearance of fairness so

important to its proper functioning. “[T]o

perform its high function in the best way[,]

identical language of the two constitutional ‘justice must satisfy the appearance of

prov isions. See Commonw ealth v. justice.’” In re Murchison, 349 U.S. 133,

Edmunds, 526 Pa. 374, 398 (1991) 136 (1955) (quoting Offutt v. United

(refusing to adopt a good faith exception States, 348 U.S. 11, 14 (1954)). In the

to the warrant requirement as set forth in future, I would hope that concern for the

United States v. Leon, 468 U.S. 897 appearance of fairness will constrain

(1984)). prosecutors from engaging in the kind of

10 unexplained tactical manipulation that

See District of Columbia Court of

appears so evident here.

Appeals v. Feldman, 460 U.S. 462, 482

(1983); Rooker v. Fidelity Trust Co., 263

U.S. 413, 415-16 (1923). See also

Williamson B.C. Chang, Rediscovering the

Rooker Doctrine, 31 H ASTINGS L.J. 1337,

1350 (1980) (“[I]f [federal and state] trial

courts could readily annul the judgments

of each other on the merits, the

prerequisite of finality in the judicial

system would be destroyed.”); 18 JAMES

W M. M OORE ET AL., M OORE’S F EDERAL

P RACTICE ¶ 133.30[3][a] (3d ed. 2003).

Under Rooker-Feldman, lower

federal courts cannot entertain a

constitutional claim if it has been

previously adjudicated in state court, or if

the relief requested in the claim requires

either determining that the state court's

decision is wrong or voiding the state

court’s ruling. Gulla v. North Strabane

Twp., 146 F.3d 168, 171 (3d Cir. 1998).

19