# United States v. Jermane E. Bonner > Court of Appeals for the Third Circuit · March 30, 2004 · 363 F.3d 213 URL: https://www.frixlaw.com/law-library/cases/9496867 ## Case - **Full name:** UNITED STATES of America, Appellant v. Jermane E. BONNER - **Court:** Court of Appeals for the Third Circuit - **Decided:** March 30, 2004 - **Citations:** 363 F.3d 213; 2004 U.S. App. LEXIS 6107; 2004 WL 720380 - **Precedential status:** Published - **Opinion:** Concurrence by Smith - **Judges:** McKee, Smith, Cowen - **Cited by:** 84 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496867 ## How later opinions describe it (automated extraction) - finding that “[f]light [by a passenger] from a non-consensual legitimate traffic stop (in which the officers are authorized to exert superintendence and control over the occupants of the car) gives rise to reasonable suspicion” - holding that the police’s tackling of the defendant, who fled from a traffic stop and continued to flee despite repeated orders to stop, was a Terry stop - holding officers may frisk a car occupant and search the passenger compartment upon reasonable suspicion that the occupant is armed and dangerous - recognizing that flight from uniformed officers supports reasonable suspicion - concluding that flight from a traffic stop creates a reasonable suspicion ## Opinion text SMITH, Concurring. Because I agree that “flight from a non-consensual, legitimate traffic stop (in which the officers are authorized to exert superintendence and control over the occupants of the car) gives rise to reasonable suspicion,” I join Judge Cowen’s opinion in full. Maj. op. at 217. I write separately only to highlight an issue implicated in the District Court’s fact-finding which we have not been required to address: whether under the flight “plus” analysis of Wardlow, 528 U.S. 119 , 120 S.Ct. 673 , 145 L.Ed.2d 570 , the government is required to prove the existence of objective criteria for what constitutes a high crime area and that the stop occurred in such an area, or rather that the government is required to prove that officers effecting the stop had a reasonable articulable basis to believe that they were in a “high crime area.” 2 I point this out because I believe these alternatives require the District Court to conduct fundamentally different inquiries, even though the evidence offered for both may be overlapping or even identical. Here, the District Court found that “the government has hot shown by a preponderance of the evidence that Ohio View *219 Acres is such an area.” After reviewing the relevant evidence, the District Court declared that evidence “hardly makes Ohio View Acres a heavy crime and narcotics trafficking area.” What I am concerned about in these Wardlow-type cases is the fact-finder’s focus: should it be that of a federal judge, operating within the confines of a courtroom, who believes the area to be one of high crime, or that of a police officer who, based on experience and an awareness of crime and arrest data, had a basis to form a reasonable articulable belief that it is such an area? 3 Obviously, the differences in focus are not only differences of experience and perspective. A judge engaged in adjudicative fact-finding will apply standards of credibility and proof that differ from the cognitive processes of an officer acting in the field. The touchstone of Terry v. Ohio is its requirement that a court consider whether “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate[.]” 392 U.S. at 21-22, 88 S.Ct. 1868 (1968) (citing Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Beck v. Ohio, 379 U.S. 89, 96-97 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964)). As explained by the Supreme Court in United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981), an officer’s suspicion that criminal activity is afoot may be informed by “various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions-inferences and deductions that might well elude an untrained person.” See also United States v. Arvizu, 534 U.S. 266, 274 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002) (officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.”) (internal quotation marks omitted); Ornelas v. United States, 517 U.S. 690, 699 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996) (reviewing court must give the appropriate weight to factual inferences drawn by local law enforcement officers). In the same way, an officer is in the position to know the routines and patterns of a geographic area, and whether it is more prone to crime. This knowledge may not be reflected on arrest records and log sheets, as arrests are not the only indicia of crime. In any case, we need not resolve the issue here. I agree that the evidence offered by the government does not compel the conclusion that the District Court erred in finding that Ohio View Acres was not a high crime area. And even if the District Court were required to determine whether the officers had a reasonable articulable basis to believe it was a high crime area, such a finding would contribute nothing to the result here because the government has demonstrated flight “plus” by other evi-dentiary means. Finally, although I join Judge Cowen in reversing the District Court, I echo the sentiments of Judge McKee expressed in Part III of his dissent. It should be a rare occasion when judges criticize, and thereby intrude into, a legitimate exercise of prosecutorial discretion. Nor should we routinely question in our opinions the policy decisions of Congress *220 to federalize what has traditionally been state law street crime. Our institutional role as judges is limited by our jurisdiction and by the comity .and respect we owe to coordinate branches of government. That being said, the instant case presents a series of events which the dissent characterizes as a prosecutorial “switche-roo.” I cannot disagree with that characterization, and I share the “concern for the appearance of fairness” expressed by Judge McKee. It is one thing for the government to assume an investigation initiated by state law enforcement officials, or even to adopt a prosecution commenced by state prosecutors. It is quite another to seek a federal indictment where the federal interest in the case is recognized only after state prosecutors have given the case their best shot in the state courts and lost on an issue of state law. Not only does such a tactic offend fundamental notions of fairness, it is contrary to traditional notions of our federalism. . Judge Cowen describes this factor as whether the area was a "high crime area.”- Maj. op. at 215. The District Court’s analysis, however, was more limited and addressed only whether this was a "high narcotics trafficking • area.” As there are many crimes which do not involve narcotics trafficking, an area could be one in which there is a high volume of crime, but does not qualify as a "high narcotics trafficking area.” Because the test should be the same for either analysis, however, the distinction is not material for purposes of this concurrence. For purposes of continuity, then, I adopt Judge Cowen’s articulation of the question-whether the area was a "high crime area.” . Wardlow did not resolve this issue because it appears that in that case there was no dispute that the stop took place in a high crime area. In the case before us, the District Court did confront a factual dispute on this issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496867. Public record. Not legal advice.